Thursday, June 26, 2008

In Anticipation of the Heller Decision

The Supreme Court is expected to release today its' decision on the Heller case. While most fears with regard to possible loss of individual rights hinge directly on the 2nd Amendment, I am most fearful for the decay of the Bill of Rights as a whole.

Most analysts explain that the case involves the verbal distinction found in the 2nd Amendment. Wikipedia has a line that summarizes the modern confusion:
Another major point of contention is whether it protects an individual right to personal firearms or a collective State militia right

I know you all remember verbatim each of the 10 Amendments that comprise the Bill of Rights, but out of stubbornness, I'll include the language of the 2nd here:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
So, here's what I'm worried about. The Constitution was designed by the Founders as a limit of government power, not on individual rights. The Bill of Rights was to further clarify. This decision could begin an unravelling of the entire Bill of Rights. If the 2nd Amendment is found not to be a limitation on government but on individuals, there is no reason I can see for the same thinking to be applied to the 1st Amendment (goodbye freedom of speech), etc.

This could be a historic, dark day.

4 comments:

varangianguard said...

Or, not.

Michael said...

Well, it didn't turn out as horrible as it could have. They managed to affirm the right as a pre-existing, individual right, but they also managed to keep infringements such as registration, gun bans and licensing intact. They also managed to take a swipe at the 1st Amendment and restrictions on it and the 2nd. They also affirmed that the 2nd applies ONLY to the feds, not necessarily the states. All in all it was kinda disappointing overall. We'll just have to see how subsequent cases that are sure to come up, play out.

Anonymous said...

The Supreme Court ruled Thursday that Americans have a constitutional right to keep guns in their homes for self-defense, the justices' first major pronouncement on gun control in U.S. history.

The court's 5-4 ruling struck down the District of Columbia's 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms restrictions intact.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The basic issue for the justices was whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted.

The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home," Scalia said. The court also struck down Washington's requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns.

Scalia noted that the handgun is Americans' preferred weapon of self-defense in part because "it can be pointed at a burglar with one hand while the other hand dials the police."

In a dissent he summarized from the bench, Justice John Paul Stevens wrote that the majority "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons."

He said such evidence "is nowhere to be found."

Justice Stephen Breyer wrote a separate dissent in which he said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Joining Scalia were Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas. The other dissenters were Justices Ruth Bader Ginsburg and David Souter.

Gun rights supporters hailed the decision. "I consider this the opening salvo in a step-by-step process of providing relief for law-abiding Americans everywhere that have been deprived of this freedom," said Wayne LaPierre, executive vice president of the National Rifle Association.

The NRA will file lawsuits in San Francisco, Chicago and several of its suburbs challenging handgun restrictions there based on Thursday's outcome.

Sen. Dianne Feinstein, D-Calif., a leading gun control advocate in Congress, criticized the ruling. "I believe the people of this great country will be less safe because of it," she said.

The capital's gun law was among the nation's strictest.

Dick Anthony Heller, 66, an armed security guard, sued the District after it rejected his application to keep a handgun at his Capitol Hill home a short distance from the Supreme Court.

"I'm thrilled I am now able to defend myself and my household in my home," Heller said shortly after the opinion was announced.

The U.S. Court of Appeals for the District of Columbia ruled in Heller's favor and struck down Washington's handgun ban, saying the Constitution guarantees Americans the right to own guns and that a total prohibition on handguns is not compatible with that right.

The issue caused a split within the Bush administration. Vice President Dick Cheney supported the appeals court ruling, but others in the administration feared it could lead to the undoing of other gun regulations, including a federal law restricting sales of machine guns. Other laws keep felons from buying guns and provide for an instant background check.

White House reaction was restrained. "We're pleased that the Supreme Court affirmed that the Second Amendment protects the right of Americans to keep and bear arms," White House spokesman Tony Fratto said.

Scalia said nothing in Thursday's ruling should "cast doubt on long-standing prohibitions on the possession of firearms by felons or the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings."

In a concluding paragraph to the his 64-page opinion, Scalia said the justices in the majority "are aware of the problem of handgun violence in this country" and believe the Constitution "leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns."

The law adopted by Washington's city council in 1976 bars residents from owning handguns unless they had one before the law took effect. Shotguns and rifles may be kept in homes, if they are registered, kept unloaded and either disassembled or equipped with trigger locks.

Opponents of the law have said it prevents residents from defending themselves. The Washington government says no one would be prosecuted for a gun law violation in cases of self-defense.

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.

Forty-four state constitutions contain some form of gun rights, which are not affected by the court's consideration of Washington's restrictions.

The case is District of Columbia v. Heller, 07-290
bob

Mike Kole said...

Generally good news here, but like Michael, I wish it went further towards declaring gun ownership an absolute right.

The opportunity to re-affirm that the Bill of Rights is a document that limits government and not individuals, but that seems to have not been stated, while stating that the right to possess exists along with acceptable government limitations. Don't like that at all. It suggests to me that while the DC gun ban is toast, other states that have weaker state constitutional language than, say, Indiana has, is ripe for a more carefully worded ban by a municipality.