Freeper Question about Heller Decision

US Supreme Court Majority Opinion Heller vs DC ^ | 06/26/08 | JerseyHighlander

[JerseyHighlander]

I'd like some assistance understanding the Majority opinion in the Heller vs DC case, specifically how it will affect States, especially a state like NJ which doesn't have a RKBA provision in the State Constitution. Here is a relevant quote, but I don't know what it means without background:

 On the question of the Second Amendment’s application to the States: “23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”

[JerseyHighlander]

So Freepers, what does this decision change at a state level in the most restrictive RKBA states? Are all state laws regarding at home gun safety locks and gun safes invalidated? Are states going to be forced to permit all citizens who apply and qualify to purchase handguns now?

[Daveinyork]

I don’t think it changes anything. There is virtually no consequence for government officials who ignore court decisions. Conservatives usually follow the decisions of courts. Liberals only do so if it suits them. The EPA was repremanded by a Federal judge for ignoring court decisions, but there was no consequence to the EPA officials. They are free to ignore more court orders.

[Repeal 16-17]

It means that Cruikshank will be overruled in a future case. There's no logical reason for not "incorporating" the Second Amendment, while the First is incorporated. That overruling couldn't take place in Heller, because the case did not involve a State.

[JerseyHighlander]

Link to the Case Preview: http://supreme.justia.com/us/92/542/

Link to the Full Text of Case: http://supreme.justia.com/us/92/542/case.html
U.S. Supreme Court
United States v. Cruikshank, 92 U.S. 542 (1875)

United States v. Cruikshank

92 U.S. 542

Syllabus

1. ...

6. The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendments means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.

7. Sovereignty, for the protection of the rights of life and personal liberty within the respective States, rests alone with the States.

8. The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, and from denying to

Page 92 U. S. 543

any person within its jurisdiction the equal protection of the laws, but it adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guaranty.

[infowarrior]

So Freepers, what does this decision change at a state level in the most restrictive RKBA states? Are all state laws regarding at home gun safety locks and gun safes invalidated? Are states going to be forced to permit all citizens who apply and qualify to purchase handguns now?

What you're looking at is incorporation under the 14th Amendment. This is not in effect, as yet, and was not addressed in Heller, as DC isn't a state. But it is coming, and sooner than you might think.

Today, on the steps of the US Supreme Court, after the reading of the Heller decision, the NRA announced it was going after the "copycat" DC ban in force in Chicago. This will put incorporaion to the fore, and *should* make the precedent in Heller binding on the states.

At that point, the laws you mentioned would be invalidated as un-Constitutional, and the clear language of Heller be the guidance...

the infowarrior

[Verginius Rufus]

It looks like sec. 8 could be used to declare the Civil Rights Act of 1964 unconstitutional, at least insofar as it tried to control the behavior of private citizens.

Their reasoning seems to be that the Bill of Rights only protects citizens against the Congress, not against the other branches of the federal government. Congress can't abridge freedom of religion, but the courts can. Congress can't abridge freedom of speech, but the courts can (and will).

[GovernmentShrinker]

Are states going to be forced to permit all citizens who apply and qualify to purchase handguns now?

Yes, though it appears that some limitations on types of handguns may still be permissible. And this decision is likely to be used to strike down laws which give local officials (other than courts) the right to deny gun permits at their discretion. Barring felons and the mentally ill from possessing firearms is a concept that fell into the common sense department back when the Second Amendment was passed, and this can be found in the writings of some of the framers. Nobody felt the need to mention it in the text of the amendment, and the basic concept will hold up. What is not likely to hold up is laws that allow some local official like a sheriff to independently decide that someone is "mentally ill" or "is a criminal" despite no actual felony convictions, and be the end of the line for that individual's attempt to possess or carry a handgun legally.

Are all state laws regarding at home gun safety locks and gun safes invalidated?

No, the limits of permissible restrictions on storage remain to be determined by future court decisions. However, this decision will force restrictions to be consistent with the individual right to self-defense, which this decision makes clear is guaranteed by the Second Amendment. Storage requirements that significantly impair the effectiveness of a handgun for self-defense would likely be struck down based on this decision, since "we don't have to let you use a firearm to defend yourself" will no longer fly.

[kevkrom]

In the most narrow reading, this case merely directs the District of Columbia to issue the permit originally sought by Heller.

At a broader level, the possession and carry of firearms for personal defense (and for other reasons) was recognized as a federal right. However, the Court explicitly did not address (this is not the same as affirm) the issues of incorporation to the states or what reasonable restrictions can be placed on the sale or possession of arms.

On the other hand, Scalia's opinion seems to pretty much invite cases designed to cover these aspects.

[BlueMondaySkipper]

My concern with the decision is the frequent reference to allowing guns “in the home”...

[stylin19a]

#3 is kind of interesting....

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation 2 DISTRICT OF COLUMBIA v. HELLER Syllabus of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this Cite as: 554 U. S. ____ (2008) 3 Syllabus prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. 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. Pp. 56–64. 478 F. 3d 370, affirmed.

[Condor51]

*** What you're looking at is incorporation under the 14th Amendment. This is not in effect, as yet, and was not addressed in Heller, as DC isn't a state. But it is coming, and sooner than you might think. ***

I downloaded the decision when it came out and just did a search. There's Eight References to the 14th Amendment. Page 46

• Page 47
• Page 51 - 3 times
• Page 106
• Page 107

The whole thing is 157 pages and the Majority is 64 pages so the last two are in the dissent. (I only read the Majority opinion thus far)

Here's a link: DC v Heller (NOTE pdf)

And I just heard Mayor Daley of Chicago on the local radio. He was incoherent and his head almost exploded -- per the NRA his gun laws are next :-)

[fatboy]

Well Jersey, I cannot answer your question, in fact I would like to know myself how it will filter down to states like NJ and Maryland that don’t outlaw ownership of handguns but have rather strict laws regarding their use.

It is truly amazing the difference between the gun laws of NJ and Pennsylvania, just on the other side of the Delaware River. When I lived in NJ, it took me 6 months to get a handgun purchase permit. As a resident of PA, it took me 29 minutes to get a CCW license. Strange but true but open carry is legal in PA. Around here, the question isn’t “do you have a gun?” but rather “how many and what kinds of guns do you have?”

Since I work in Phillipsburg, NJ I cannot exercise my right to CCW on work days, but I still carry when I’m not leaving the commonwealth.

Gun laws asside, since leaving NJ, the state of my birth, I cannot see any circumstance that would bring me back. PA is not perfect, but I’ve become used to being left alone by the government. I didn’t leave NJ, I fled.

Take care,
Tom

[Lurking Libertarian]

This has to do with the doctrine of "incorporation."

Originally, the Supreme Court held that the Bill of Rights only limited what the federal government could do; if a state chose to limit your freedom of speech or take your property without just compensation or do something else prohibited by the BOR, that didn't violate the federal constitution.

When the 14th Amendment was ratified after the Civil War, it prohibited states from depriving their own citizens of "life, liberty or property without due process of law." Beginning in the 1920s, the Supreme Court began to hold that certain rights protected by the BOR were now binding on the states because they were "incorporated" into the word "liberty."

The Court has never ruled that this "incorporation" is complete. Most of the BOR has been held binding on states, but a few provisions were held not to be binding on states-- states can eliminate jury trials in civil (but not criminal) cases, notwithstanding the 7th Amendment; and states don't have to use grand juries in criminal cases despite the 5th Amendment (though the rest of the 5th Amendment is now binding on the states).

The Court here is saying that it hasn't decided whether the Second Amendment is binding on the states (D.C. being a purely federal jurisdiction), but it is hinting that, when the right case comes along, it will hold that the Second is binding on the states.

[JerseyHighlander]

Thank you all for the responses.

The Heller decision has left so much up in the air, it will take longer than I had hoped for this ruling to filter down into the lives of citizens residing in states with restrictive gun laws. I just say Mayor Bloomberg’s press conference regarding Heller, and he sees it as a reaffirmation of the legality of NY State’s and NY City’s gun laws.

And I would tend to agree with his assessment here.

[Repeal 16-17]

I just saw Mayor Bloomberg’s press conference regarding Heller, and he sees it as a reaffirmation of the legality of NY State’s and NY City’s gun laws.

Every mayor and governor is going to claim that his jurisdiction's gun regulations are consistent with Heller. All such regulations are up in air until future 2A SCOTUS cases are decided.

[Pearls Before Swine]

It has no immediate effect. You can cite it as legal precedent, though, when you sue for your rights. Don’t count on that being settled until it gets appealed to a pretty high court.

Since most citizens can’t afford to sue the government on their own, it will take a long time. It also takes a lot of money, because the legal system is expensive. This is an example of how the deck is stacked in favor of government or large legally adept organizations against the common citizen or the common good (think ACLU, ACORN, or many environmental groups).

[muawiyah]

What is the length of the decision? Something like 180 pages?

Seems to me the direction the courts in the whole country in every state will have to take is to kick out laws like the DC "no possession" law. The reason is simply that even if you lost at the state supreme court level in a case like this when you appealed to the US District Court for relief the judge there would be prohibited from upholding the decision of the state courts.

You win when the federales are disabled.

Seems to me New Jersey's overly restrictive laws will soon be toast.

[muawiyah]

The “in the home” business simply refers to the special status of your residence in the law. Now you go outside and walk down the public street with a gun strapped on your hip, and you are not in Virginia, you might well need a “license” of some kind. There are also questions of “concealment” and Heller didn’t deal with that.

[Bob Leibowitz]

The next big case up will likely be Chicago, brought by NRA-ILA. Chicago's restrictions are very similar to DC's, creating favorable odds for success, good enough for NRA to take the lead.

The issue will be incorporation, either under the 14th Amendment or under the privileges clause.

Either way, it will be a high-probability win.

We will owe Scalia a tremendous debt of gratitude for doing such a superb job of dotting and crossing. He left very little room for a future (Obama?) Court to backtrack and built a strong foundation for the expansion of rights under the 2nd Amendment. Rather than using a hammer to shatter, such as taking on rights to carry outside the home, registration and licensing, level of scrutiny, etc., he used the blade of an ax to split the log, thereby making it difficult for bad guys to put it back together and making future splits even easier.

This is the most consequential Court ruling of our generation. It will be studied for 100 years, or more. BUT, it is only the beginning.

For more, see Scalia Gets His Gun

[bpjam]

way to see around the corner. I don’t doubt that Scalia was waving a big red flag for the NRA to go after Cruikshank.