Waiting for the actual decision, but the Supreme Court affirmed the lower court ruling striking down DC’s ban on keeping handhuns in the home. I’ll be interested to see how exactly they parse this decision so that people aren’t allowed to own nuclear weapons or something. One would think that the right to bear arms is either absolute or it isn’t.
This was, as probably expected, a 5-4 decision.
Update 1:
From ScotusBlog:
Justice Antonin Scalia’s opinion for the majority stressed that the Court was not casting doubt on long-standing bans on gun possession by felons or the mentally retarded, or laws barring guns from schools or government buildings, or laws putting conditions on gun sales.
So what exactly is their reasoning? That if you have a gun, you have a right to keep it, but that’s it? If so, then it’s not as big of a 2nd amendment victory as some people may have hoped. Again, we’ll have to wait for the actual opinion to find out.
Update 2:
The initial holdings:
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….
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….
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.
The first key argument is this:
The “militia” comprised all males physically capable of acting in concert for the common defense.
The argument here is that “the militia” is not a standing state-sponsored organization. Instead, all males (and I assume all people now) “capable of acting…for the common defense” are inherently “the militia.” Therefore gun ownership is an individual right because no state organization or sponsorship is necessary to have a “militia, necessary for the security of a free state.”
The second key argument is this:
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.
This is basically the “nuclear weapon” exception. People have the right to bear arms…but only those arms which are in “common use at the time.” That would seem to indicate that bans on automatic or semi-automatic weapons or on other military or special weapons would still be considered constitutional.
I’ll read further to see if there is any sort of test or guideline on how to exactly determine when a gun is “in common use at the time” or not.
Update 3:
This is one of the arguments which I find wrong, and Scalia himself reveals why:
The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
…
Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.
And this is exactly the point…such an “explanation” clause isn’t used anywhere else in the Constitution. The fact that OTHER documents may have used such a clause seems irrelevant to me. The founders either used those clauses or they didn’t. Why is the 2nd Amendment so special that they need to explain why they have it? Why not just say “The right of the people to keep and bear arms shall not be infringed” and be done with it? I think this is a serious hole in their argument.
Update 4:
OK, this is just dumb:
Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.”
No, but if it had read something like “The need of the people to challenge the actions of an unfair and corrupt government, the right of the people to petition for redress of grievances shall not be infringed.” then it would make sense, and be in the gramatical fashion as the 2nd Amendment. Except the whole point of this exercise is that they didn’t do that. I think Scalia is trying to argue that they didn’t because they couldn’t. But of course they could, and I just showed it. Scalia is basically just making shit up here.
Update 5:
Scalia just blows off the “well regulated” part of the 2nd amendment:
Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training.
My question to Scalia would be this: Since a “well regulated” militia is apparently declared to be “necessary” for the security of a free state, how can in individual right to bear arms, with “the militia” is defined as “all able-bodied males” possibly ensure that the said militia is “well regulated” and with discipline and training.
If the preamble of the 2nd amendment is to explain the amendment by saying that it is needed to have a disciplined and trained militia, as Scalia appears to be arguing, how does the “operative” part of the amendment “the right of the people to keep and bear arms” actually accomplish that? There is no guarantee that giving the people the individual right to keep and bear arms will in any way ensure that the militia is “well regulated.”
However, as I noted above, Scalia completely sidesteps this concern.
Update 6:
The stupid! It burns! Scalia’s discussion about what “free state” means almost made my hair catch on fire I think:
The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued….It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “ ‘free country’ ” or free polity….And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution.
Oy. Let me start from the bottom up. Many Americans are confused over the meaning of the word “state” because we use is a sub-division of the nation as a whole, as opposed to something like provinces like what many other nations use. A state is generally seen as an independent political or geopolitical construct. In this sense, all nations in the world are states. The United States is itself a state.
So why do we call the states within the United States states? Because upon their declaration of independence from England, they all technically became independent nations – ie, they all became states in the international sense instead of being colonies. When the Articles fo Confederation were created, it was actually meant to be more of an international government than anything else, much like what the European Union is today. It has the power of governance over it’s member states, but it’s members states are still soverign states themselves.
The constitution created a central government where the states now became clearly subservient, but states still held on to a portion of their soverignty and has powers that the central government had no right to take away.
For Scalia to read the constitution and believe that the term “foreign state” and state as it refered to the member states of the United States were meant to be different things clearly doesn’t understand the history of the term nor the dynamics of the states vis-a-vis other states and other nations at the time. It would be like saying that states of the European Union and the State of Canada are fundamentally different things.
Next, we once again get the argument from Scalia that the 2nd Amendment is special: that “state” is a reference to the member states of the United States except for in the 2nd Amendment. I think he is on the right track in the sense that a “free state” would seem to suggest that it’s people are also free (with the converse being true as well), but I think Scalia is trying to go beyond that and says that the term “free state” doesn’t even apply to the state but instead means that a state’s people have freedoms. In other words, protecting a “free state” is protecting the state’s people, but not necessarily the state itself.
Update 7
Scalia finally gets to the part where the 2nd Amendment isn’t necessarily absolute:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.
If I’m reading this right, Scalia is basically saying that guns which are “common at the time” determine what arms are protected by the 2nd Amendment, not the type of arms that may be required to be used to fight a modern war.
In other words, even though tanks and anti-aircraft batteries may be required armaments for an organized militia in modern times to defend a state, such weapons are not common among the citizenry and thus aren’t protected.
Update 8
And we finally get to it:
Banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” would fail constitutional muster.
