Today, the Supreme Court finally ended decades worth of ambiguity about the application and meaning of the 2nd amendments clause ", the right of the people to keep and bear arms shall not be abridged."
From CBSNews.com:
"Gun rights advocates now have a fully recognized individual right to bear arms. But gun control advocates now have a Supreme Court ruling that declares that this right, like other rights in the Constitution, is not absolute. So we finally get some clarity in an area of the law that was begging for it," writes CBS News chief legal analyst Andrew Cohen. "
Antonin Scalia, writing for the majority said the 2nd Amendment,(does not permit)"the absolute prohibition of handguns held and used for self-defense in the home."
While John Paul Stevens, writing the dissent said,"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"
I believe the right decision was made on several levels:
First, how can a people oppose an oppressive government if the only protection is a regular militia - it seems clear the founding fathers intended that 'the people' mean us, the individual citizens, to make-up and arm any such militia with weapons commonly available (to paraphrase Miller 1939).
Second, the decision did not attempt to incorporate the 2nd Amendment onto the states, which it should not have done, this isn't a due process or equal protection question (the kind that the 14th Amendment sought to address). Each state should, and still is allowed to, make up it's own rules, so long as disarming it's citizens in basic violation to the individual right to bear arms isn't done.
Third, it made clear this is a state's right - that Congress isn't a party to it.
However, the way the court got here is wrong.
First, it talks about a right to hunt - no such language exists anywhere in the Constitution, the fore-fathers may have embraced it, but they did not include it. Such language is an outgrowth of a lower court phrasing (and some of the text of the founding period) - none of which is anything other than activism of the first order.
Second, a more pure application of the way Scalia has framed things, would overturn any ban. Scalia justifies owning handguns, as a right not to be infringed, but doesn't explain (AT ALL) why only handguns, or long guns, why not machine guns? Such silence is deafening in pointing out the paucity of logic. It seems, yet again, the right-wing members, joined by Kennedy - have chosen to overturn a state's laws (or a home-rule District's in this case) - by looking for the answer they wanted first, rather than answering the question asked and which answer they needed to provide.
And lastly, as Justice Stevens rightly points out, those who seek to limit the federal government from usurping the rights of states, have seen a seminal blow to their stance. No incorporation exists, no justification for it exists, yet a state's laws (effectively) or at least the District's ability to legislate, has been unilaterally usurped by an activist bench without proper justification WITHIN the Constitution or even as an adaptation to modern usage. It's frankly a bit shameful, and of course, entirely consistent with the shallow-thinking Thomas and Scalia, and as we now know, Roberts and Alito. When I listened to their questions (Roberts and Alito) it was pretty clear which way they were going - their questions tilted a certain way, but they were the questions of one not interested in legal application, but of finding a way to enshrine a right that isn't present in the way they've done.
Ultimately, as some may know, I predicted based on listening to the testimony, that it was clear the state's powers to regulate would be preserved, but that the ban would fall. Those who advocate ALL laws limiting ownership were unconstitutional, or as I think they call it pure absolution, have once again discovered their predictions (as well as their absolutist idiocy) are/were flawed. This is the norm for such people (like Mitch Berg - who clearly knew an insufficient amount about the facts in question - and was thus loathe to guess an outcome until he heard Scalia was writing it - yet, even in that - his guess of absolute allowance, was wrong).
Yet of course, as we see at Scared of the Dark - the right-wing is embracing this as akin to the second coming, wrapping themselves in the trappings of warriors for freedoms (they don't understand), and as something THEY engineered. Hardly, this was engineered by stacking the court with legal midgets, who seek out legal mumbo-jumbo to enshrine not what the Constitution says, but what they want.
In the end, the right decision was made, you cannot have a secure nation, without a populace able to provide for it's own defense - but the mechanics engaged in to get there, were wrong - and of course, far short of the lunacy advocated by either the extreme left (total ban) or extreme right (total permissiveness). Wrapping oneself in a flag today is simply the hallmark of folks who take their defense of the Constitution at a myopic, single (misunderstood) point.
The majority decision was remarkably well written, considering the writer. On the other hand, of the conservative justices on the Court, Justice Scalia is probably the best writer.
ReplyDeleteI will take issue on at least one of your points. By expressly refusing the extend the 2nd Amendment's prohibition to the states, (which would have occurred by inventing some form of due process right), the Court DOES allow individual states to regulate and even ban handguns.
Unfortunately, the Court did not define its jurisdiction here, in other words, whether or not it was stating that the 2nd Amendment specifically applies to each and every local government, or just to the District of Columbia. They also left open the right of states to regulate firearms and other weapons. In an unfortunate turn of events, the Court gave no directions or guidance on how those regulations should be worded or what would constitute reasonable regulation, and therefore, invites additional and expensive regulation.
I concur (they were duplicitously shallow), they both said the states CAN create law, and said, but not a law banning handguns.
ReplyDeleteThen, they proceeded to fail to define why either was true - in short, exactly what you've said.
As an attorney - you not I - I'll take your word for it that it was well written - my view is it can't be well-written when it fails so completely to define what it needed to. As I said, though, as a criminal defense attorney, I suspect your grasp of well crafted decision is better than mine.
However, I still content it's activism of the first order. It negates the self-rule of DC - while saying, in effect, DC has self-rule. It provides no guidance at all past Presser.
P,
ReplyDeleteI understand where you're coming from on this. I like the ruling because it does affirm the proper reading of the Framers' intent regarding the right of self-defense. The Court did punt some of the issues but my sense is that is by design. I would still prefer that legislatures write laws and where the Court has gone most wrong in the past has been in cases like Roe where they made themselves legislators. While I understand thoughtsofeternity's point that the decision will invite further litigation, that's not particularly surprising - we live in a very litigious society.
Since there isn't a very effective check on the Court's power, it's better that the Court be circumspect in how it uses that power.
Mark,
ReplyDeleteI spent a fair amount of time talking with a good friend over the weekend about this decision - he is an ardent conservative, and frankly, I've found him far more informed on the 2nd amendment than folks like Berg. Berg typically does a little bit of reading, and then pretends to be an expert.
Anyway, his view was that while he wished the court had gone further (and incorporated the 2nd), he thought they would have lost Kennedy by doing so. My thought was that by being more clear, and constraining the extent of the ruling, they'd likely have gained more of the liberal bench.
They needed to define what they think the 2nd amendment means, and then restrict the federalization of it to THAT meaning, leaving state's their autonomy, rather than mouthing autonomy, while in the same ruling cutting down a state's law (DC being the equivilant here) - without explaining the limit of that usurpration. In short, they said they back state's autonomy, and then stripped it. It's not consistent.
Further - finding a 'self-defense right' I support - it's implied by 'right to life/libert/pursuit of..', but I think the framers meant something more, the right of the individual to be free from tyranny, and the right to stand up to it (Robespierre). They didn't reaffirm that right - had they, they would have explained the entire separate second clause on it's own without needing to invent the 'right to hunt.'
Lastly, Roe V. Wade, imho, was simply an extension of the 'right to freedom from intrusion' (aka right to privacy) from the government - under the 14th. It was LESS activist, imho, than this ruling - at least where 'state's rights' and 'the right to hunt' are concerned.
Unfortunately, all too often you see the more conservative movement hoisted on its on petard.
ReplyDeleteOne can't have it both ways. Either one construes the Constitution exactly as it is written, and ignore that the law and society in general has changed dramatically in 200 years, or one views the Constitution as a living, breathing document, and then are branded an "activist".
I disagree with Justice Scalia's version of strict construction, in as much as far as I can see it, the 2nd amendment is strictly a restriction on the ability of Congress to not pass federal laws concerning the individual ownership of guns. There is no due process or other argument by which it can be extended to the states, and therefore, each state (or home rule territory) should be able to fathom gun laws as they see fit... unfortunately, the 2nd amendment is a cause celebre for the far right... unfortunately, although they may think they got what they wanted, in closer reading, I don't see it that way at all.