Thursday, June 26, 2008

DC Gun Ban goes down in flames

The opinion has not been released as I type yet, so there may be limits or quirks to the ruling that I am as yet unaware of, but the gist of it is that the DC vs Heller case has been affirmed by SCOTUS in a rather predictable 5-4 ruling, The four dissenters are of course the usual suspects of Breyer, Souter, Ginsburg, and Stevens. I'll update when I know more of the specifics.

Update #1:
The ruling can be read here. I have not had any time to read or analyze it yet. When
I have read it and analyzed it, I will update.

Update #2:

Ok, I have not read the entire opinion yet but my first impressions are these:
  • The second amendment does not confer an absolute right. Reasonable restrictions may be put in place.
  • The ruling does not give you carte blanche to own a nuke or an ICBM if you like, although there would appear to be wiggle room for a further ruling down the road on this. It says that an individual has the right to posess any weapon commonly used by a militia. Since the National Guard is a lawful militia and posesses a wide range of weapons and weapons systems for lawful purposes, one could argue (and Im sure someone will at some point) that any weapon system they posess should be fair game for an individual.
  • Restrictions on felons and the mentally infirm for example are reasonable restrictions per this ruling, as are restrictions on carrying in sensitive places and carrying concealed.
  • Licensing is permissible as a reasonable restriction, but it would appear at first blush that this would refer to "shall issue" licensing vs "may issue" because it must be applied fairly and equally:
"Because Heller conceded at oral argument
that the D. C. licensing law is permissible if it is not enforced arbitrarily
and capriciously, the Court assumes that a license will satisfy
his prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment
rights, the District must permit Heller to register his handgun and
must issue him a license to carry it in the home."
  • "Just as the First Amendment protects modern forms of communications,
    e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27,
    35–36 (2001),the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the
    founding." This would appear to say that any man portable weapon falls under the second amendment, regardless of how modern they may be.
  • The opinion specifically does not speak to the incorporation clause of the 14th amendment placing the states under the same laws as the federal Government, in the footnotes, the opinion points out two decisions from the 1880's that would appear not to apply the incorporation clause. This is going to be the subject of other litigation I am sure.
  • It does not strike down US vs Miller that taxes may be collected on the sale and transfer of certain weapons.

2 Comments:

Blogger Jean said...

It's still a small victory for the right to bear arms. Our individual liberties are continuously being eroded. We can't seem to keep guns out of the hands of criminals (i.e., the trailer trash drive-by shooting in Pasedena). How else are we to protect our property and our lives? I'm anxiously awaiting the grand jury decision in the Joe Horn case. It may set a precedent.

June 26, 2008 11:15 AM  
Blogger Rorschach said...

After re-reading the opinion a few times, I have to think that Scalia really wanted to strike down licensing as well, but that Heller had made the mistake of conceding licensing as acceptable to him thereby tying his hands in that regard. look for this to be the subject of further litigation as well.

July 02, 2008 7:12 AM  

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