Posted on 06/28/2008 2:11:52 PM PDT by Congressman Billybob
Everyone who has a TV, a computer, a newspaper, or a radio, knows that the Supreme Court handed down its decision in the Heller case on Thursday, ruling that the Second Amendment provides a personal right to "keep and bear arms." Therefore it struck down the District of Columbia law that has banned citizens from owning new handguns after 1976. But the case is much more important than that.
Cases concern more than just the parties involved. The Heller decision will affect the rights of millions of Americans to protect themselves, their families, and their homes. But the “why” of a Supreme Court decision has far more importance than the “what” or “who.” The logic of the decision will live on, and can apply to cases that have nothing to do with the facts of the current case.
An object lesson comes from the very first case ever decided by the Court, The Schooner Peggy. That case concerned whether a French ship, captured by a American privateer, was properly awarded to the captor. For centuries, we have had no more privateers. We are now fully friends with the French. Still, in 1976 I cited that case in a Circuit Court case, and it was ultimately used in the Supreme Court as dispositive in an attorneys fee case out of Richmond.
How did that happen? Well, the “why” of the Schooner Peggy is that when the law changes between the trial in court and the Supreme Court review, the Court must follow the new law, even though the trial court was correct when it made the original decision.
Exactly the same will, I think, apply to the Heller case in the years and decades to come.
Heller was a 5-4 decision, and the majority Opinion by Justice Scalia had very harsh words for the two Dissents by Justices Stevens and Breyer. The divisions among the sides were harsh, and identical. Scalia’s Opinion was joined by the Chief Justice, and Justices Kennedy, Thomas and Alito. Both Dissents were filed for all of the remaining Justices, Stevens, Souter, Ginsburg and Breyer.
Here are some of the charges leveled by the Opinion against the Dissents: “Justice Stevens is dead wrong to think that the right to petition [First Amendment] is ‘primarily collective in nature.’ ” “Justice Stevens flatly misreads the historical record.” “Justice Stevens suggests that ‘there is not so much as a whisper’ in [Joseph Story’s Commentaries on the Constitution] ... that favors the individual-rights view.... That is wrong.’
“Justice Breyer arrives at his... answer: because handgun violence is a problem,... the law is limited to an urban area,.. there were similar restrictions in the founding period (a false proposition...),... [therefore] the interest-balancing inquiry [means] the handgun ban is [constitutional].”
Here are some of the charges leveled by the Dissents against the Opinion: From Stevens, the Opinion lacks “respect for the well-settled views of all of our predecessors on the court, and for the rule of law itself.” From Breyer, “The majority derides my approach as ‘judge-empowering....’ I take this criticism seriously, but I do not think it accurate.”
In the normally polite environment of Supreme Court decisions, these charges are the equivalent of calling each other dishonest at gathering and using legal sources, and even incompetent as judges. The simple truth is that one side in this war of words is correct, and the other is dead wrong. And what that says about the future of the Court and the Constitution is truly important.
To my view, the majority Opinion is a textbook on how to understand, obey and enforce the Constitution, that is, as it describes itself, “the supreme Law.” Like all laws, its meaning is determined by those who wrote it. For the Constitution, the writers were the drafters in Philadelphia, followed by the ratifiers in the states.
Do not take my word for it. The Opinion and both Dissents are on the Internet. Laymen can understand most of the text. If more cases on any subject use the logic of the Heller case, the Justices will be more honest, and the Constitution will be safer.
The problem in reaching that result is that the next President of the United States will probably name at least two, as many as four, new Justices to the Supreme Court. I, for one, consider the nomination of new Justices to be an overriding consideration in the 2008 election.
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About the Author: John Armor practiced law in the US Supreme Court for 33 years. He now lives in Highlands, NC, and is working on a book on Thomas Paine. John_Armor@aya.yale.edu
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John / Billybob
Thanks Billybob. As I posted somewhere else: It is not the end or the beginning of the end; however, it is the end of the beginning.
bttt
Could not be any clearer or more accurate.
Everytime the feds do something favorable to the 2nd Admendment, the state of NJ freaks out and take it out on the gunowners in the state. When the assault rifle ban expired, the NJ legislature introduced bills to classify any rifle with a pistol grip as an assault rifle. Within 72 hours after taking office Gov Corzine signed an executive order at the behest of the Super of State Police that high capacity mags blocked to allow only 15 rounds were illegal. Now 50 cal rifles are banned and a limit of one handgun per month is being considered by the legislature. NJ also passed a possession law which stipulates that only persons with a state firearm ID can hold and operate firearms even on private property. Example if you are on travel and a burglar breaks into your house, and your wife uses your handgun to defend herself. She can be arrested for operating a firearm w/o the NJ fire arm ID and you the owner would also be arrested for creating a storage condition that allows a non fire arm ID person to easily access your gun and operate it illegally. Granted common sense will exonerate you and your wife, but not after both are arrested, post bail and spend $ 10,000 minimum per person to appear in court and hopefully the county DA is not a hard ass. Otherwise you may spend up to $ 100,000 on a criminal trial in order to be found innocent.
Ypu wrote and I quote, "the Court must follow the new law"
Then you expressed an opinion, "Exactly the same will, I think, apply to the Heller case in the years and decades to come.",
If you could please tell me how that can be? In the case under discussion, the Law was at all times set forth in the 2nd Amendment. Unless at some future date, the 2nd Amendment in repealed, where will the new law come from?
Semper Fi
An old Man
And, when looks back 30 to 40 years and assesses some of the decisions that the Court has made and the resultant affect and effect these decisions have had on our society, one wonders where the moral, common sense of these people resides.
One additionally wonders what motivates them and what benefit they are able to redeem for these decisions.
Inquiring minds want to know.
it’s a wonder that some dan rather hasn’t made the claim that the 2nd applies to arms, but not fingers, legs, feet, or ears. and the NYT cheers him on.
My friends could not understand why I was so euphoric when this decision came down on Thursday. They just couldn’t grasp the significance of this decision. I had to explain it to each and every one of them. As a true American, I don’t agree with the “media” that Obama getting elected would be “historic.” If the “media” wants “historic,” this decision was HISTORIC! IMHO.
Bump
Innocent? You have a lot of faith in the system. Was it Carlin who said he feared bring tried by 12 people who weren't smart enough to get out of jury duty?
The true meaning is that our all our rights went from coming from God to coming from a parchment that’s interpreted by man.
If the Constitution were to turn to dust would we lose our rights?
Likewise, the Heller case states a general principle, that the meaning of any part of the Constitution is determined by what it meant when it was written, and ratified. The earliest writing was in 1787, ratification by 1789, for the Second Amendment. (The latest ratification was in 1992, BTW.)
The general principle of Heller SHOULD be followed in all Supreme Court cases to come. We shall see.
John / Billybob
The scary thing about this is the 4 jurists who decided to ignore the Constitution in the Heller decision.
Is he too old for Zyprexa?
One shouldn't have to hope for such an outcome.
I have some experience of Jersey justice in the urban atmosphere. Briefly, unless you are:
a. a raving, orally foaming imminent danger to society, or
b. someone the prosecutor personally wants to destroy,
you will not be bothered for committing a technicality, because THEY cannot be bothered. They’re that backlogged.
This decision points out the difference between liberals and conservatives. Liberals are for collective freedoms for the state to do as it will against the individual and conservatives are for the freedom of the individual to do as he will against he state. We almost lost the second amendment to the state.
I sorry to say it will take some NJ people, lawyers, and money to fix it.
—bflr—
Well, even if he was "dead right", the word "primarily" is not the same thing as the word "exclusively".
Shall I hold by breath to when the ACLU takes up a gun rights case?
This is evidenced by news “articles” in which editorial comments are inserted into news stories in places like the NY Times claiming bizarre things (on their own front page!) as that DC vs Heller “won't have any significant impact” anywhere, anytime, ever.
And this “lashing out” is also evidenced in the dissents filed by Stevens and Breyer that make claims (e.g. that there were urban gun bans in 1776 America) that they can not support with evidence.
Snap!
In the above we can find solace...for the Left has overstretched itself. Their claims are being laid bare.
For another example, consider that for *decades* the academic Left has invented (from whole cloth) and propagated a “collective rights” theory to explain why the 2nd Amendment allowed gun bans.
No more!
Now “collective rights” are dead.
Individual rights have triumphed...and even wild-eyed left-wing bastions of great legal heft (e.g. Harvard Law School) will have to begin teaching individual rights while stuffing “collective rights” theories down the memory hole...or at least...after this initial period of the Left lashing out at the Heller ruling has passed, *then* they will have to begin teaching individual rights in law schools.
And notice that I say “begin.”
What a sad state of affairs that our last several *decades* have seen law schools teach rubbish instead of actual Constitutional Law.
That ends here.
DC vs Heller is a game changer.
The Constitution means what it says, and the Bill of Rights protect individual rights.
For the Left, this is a radical rethink (but then again, that's why they are the Left while we've always been right).
We can survive McCain's environmentalism (which is quickly fading) and we stopped his immigration bill. The Republic will be in good hands if he does nominate judges in the mold of Scalia and Thomas and Alito. He said he would. The Republic would not survive a President Obama. The SCOTUS is but one judicial appointment away from judicial tyranny. We would see a multitude of decisions 5-4 or 6-3 that would undermine the Bill of Rights. The judiciary would become a defacto legislative branch.
Vote for McCain it is damned important. After you vote for McCain have a couple of drinks and bath you will feel better about your vote. If you would like the country run by the likes of Justice Ginsburg, stay home and do not vote. There is not enough whiskey that would make you feel better about that.
Excellent points!!
I have a neat idea, MOVE!!! There are better places than the Marxist state of NJ. We down south don't have such problems. We are all armed to the teeth.
That would be for Amendment 27 - Limiting Congressional Pay Increases. Ratified 5/7/1992
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
I read that to mean that if they vote themselves a pay raise once a week, they will be in violation of the constitution. Why is the date significant?
You lawyers scare the hell out of me. It's as if you dwell in a universe apart from the rest of us.
How long has it been since a Supreme Court ruling protected the rights of anyone other than drug dealers, perverts and killers?
In an historic, long-overdue ruling, the Supreme Court has confirmed what non-liberal Americans have known for more than 200 years: the Second Amendment defines an individual right, and it is unconstitutional to prohibit citizens from exercising normal means of self-defense of their person and property.New Jersey's decades-old violations of this constitutionally-guaranteed right are legion -- ranging from arbitrary and capricious licensure restrictions, to prohibition of entire classes of weapons (also unconstitutional), to the threat of state and civil liabilities should a citizen exercise his God-given, constitutionally-guaranteed right of self-defense.
In all parts of this country, it has been demonstrated beyond doubt that gun-restricted areas (especially so-called "gun-free zones") suffer higher rates of violent crime. New Jersey, however, holds the right of criminals sacrosanct, deeming the lives of its citizens expendable.
AG Anne Milgram's misguided response to the ruling shows that nothing has changed. Politicians here are as committed as ever to maintaining iron-clad control over subjects (not citizens). Smart politicians would move, immediately, to lift this state's restrictive, unconstitutional gun laws, but that is not the New Jersey way. Instead, they will spend years and millions of taxpayer dollars fighting the inevitable.
You slapped them with a glove. Keep it up.
A man with a gun is a citizen. A man without a gun is a subject.
The Dalai Bama was on the record as saying that D.C.’s gun ban was constitutional just twenty four hours before Scalia’s opinion came down. When the decision came down he said he was in agreement with the majority. What gives? After all, he voted against the confirmation of Chief Justice Roberts and Associate Justice Alito, both of whom voted with the majority! The New Messiah is a fraud who would go back on any principle, however sacred, if politically expedient. Does he disagree with Scalia’s contention that we have a right to bear arms? What part of the majority opinion does he take exception to? Which part/s of Stevens’ dissent does he agree with? The fact is he’s a fraud and on all fours with Bill Clinton. A disgusting human being that the media fawns over. They make me sick to my stomach. The press has never been this servile. In fact, they are nothing but a bunch of servile suck ass supplicants vying to perform the Pharoah’s ablutions.
I consider myself smart enough to accept jury duty.
Certainly little common ground between the majority and the minority opinions!And certainly, even one new member of SCOTUS would change the pivot which is Kennedy. If Stevens, aged 88, or any of the other four "liberals" retires soon, then if we could even have a Sandra Day O'Connor in his place it would be an improvement. At least once in a while they would disagree with Kennedy when Kennedy was wrong - thus giving the Constitution a 5-4 win.
When you propose the likelihood of up to four vacancies before 2012, how many of those would likely be from the majority in Heller?
Here are some of the charges leveled by the Opinion against the Dissents: “Justice Stevens is dead wrong to think that the right to petition [First Amendment] is ‘primarily collective in nature.’ ” “Justice Stevens flatly misreads the historical record.” “Justice Stevens suggests that ‘there is not so much as a whisper’ in [Joseph Story’s Commentaries on the Constitution] ... that favors the individual-rights view.... That is wrong.’
The thing I notice in this discussion is the implication that the final configuration of the Opinion and the Dissents is arrived at collaboratively - the Opinion speaks confidently as to the exact nature of each of the Dissents. Has that always been routine?
I served four times over the past twenty years. I got to be foreman twice; once by luck of the draw and once by election.
As (legal) gun ownership is dependent upon the whims of local police departments, the following MAY be in order:
1. Multiple "Citizen Xes", with no criminal background or mental defect, apply for gun "permit".
2. Gun "permits" are denied.
3. (fill in the blank)
4. Shoots an intruder in his or her home, breaking 2 NJ laws simultaneously, "illegal weapon", no "castle" provision.
5. Does NOT allow or rejects plea bargain on multiple counts.
6. Takes issue to SCOTUS on points decided in Heller:
Comments?
Great job!
According to the book, The Brethren, there was exactly one instance when the circulation of opinions caused one Justice to change his mind, which resulted in a change in the whole verdict from 5-4 one way, to 5-4 the other way.
Especially when the divisions among the Justices are very strong, and their criticisms are particularly harsh, you will see cross references like those in Heller. Think of two children squabbling in a sand box, "Did so. Did not. Did so." Now, give both of them advanced degrees and huge vocabularies. What you get is what you see in Heller.
John / Billybob
John / Billybob
But you're right. Sometimes lawyers ARE a little scary, like they lived in an alternative universe. LOL.
John / Billybob
While I relish this victory, anger and rage still remain due to that fact.
I sure would like to see a case brought which would challenge the objectivity of journalism and, on that basis, delegitimate first McConnell v. FEC and ultimately Buckley v. Valeo
Spot on!
Scalia wrote in effect that D.C.’s laws couldn’t pass any level of scrutiny, IIRC. What does that mean for us peons? Is that in effect strict scrutiny?
That's why you and I both cancelled our subscriptions to these liberal rags years ago. That's why neither of us tunes into Dan Rather and his ilk on the broadcast stations.
The liberal media is suffering a staggering decline in readership and viewership and the two of us need to continue encouraging others to join us in starving the liberal media to death.
Beast, don’t know much about the urban setting, but I’d have to say this isn’t the case in the rurals of the north where where they breed the new State Police troopers.
Fee,
1 gun a month-bill A339- passed a few days before the Heller decision.
Don’t feel sorry for us, just donate some bucks to the NRA or GOA on our behalf.
We have a huge uphill battle in this state and its going to take a lot of lawsuits to take back our rights here in NJ.
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