District of Columbia v. Heller opinion released online
Posted on June 26th, 2008 by bile Tags: District of Columbia v. Heller, guns, SCOTUS, Supreme Court, Uncategorized, Washington DCDistrict of Columbia v. Heller PDF
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, butdoes not limit or expand the scope of the second part, the operativeclause. The operative clause’s text and history demonstrate that itconnotes an individual right to keep and bear arms. Pp. 2–22.
(b) The prefatory clause comports with the Court’s interpretation 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 beararms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.
(c) The Court’s interpretation is confirmed by analogous arms-bearing 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.
Not unlimited? Given that all rights from speech to press to bearing arms and due process and troop housing are derived from property rights they are absolute and unlimited. You can’t yell fire in a theater not because your speech can be limited but that the theater owner’s right to his property and his ability to decide how it’s used. These concepts of limitable rights is created because of “public” property.
2 Responses to “District of Columbia v. Heller opinion released online”
Leave a Reply
You must be logged in to post a comment.
June 26th, 2008 at 12:53 pm
The 2nd Amendment Vindicated?
Posted by Butler Shaffer at June 26, 2008 10:33 AM
At first blush, today’s Supreme Court decision recognizing the right to own handguns sounds good. Bear in mind, however, that it is a familiar practice for courts to announce a seemingly far-reaching opinion, only to begin back-tracking in subsequent cases. It would not surprise me to see a case come up involving a ban on assault weapons, with the court upholding the prohibition by distinguishing today’s decision from the later one. When complaints are leveled against the court, the response would be made that the the 2nd Amendment was upheld in the D.C. case - as to handguns - thus creating the impression that the right to gun ownership was being respected, thus defusing the opposition to gun-control laws.
One sees this tactic in free speech cases. Flag-burning is a protected 1st Amendment right - largely because burning a flag represents no significant threat to the state - but picketing a munitions plant, in wartime, urging workers to not work, is not a form of protected speech. The same pattern emerges: liberty is always given a narrow interpretation by the state, while governmental powers are always given an expansive definition.
June 26th, 2008 at 6:02 pm
re: The Great Gun Decision
Posted by Thomas DiLorenzo at June 26, 2008 04:49 PM
Today’s Supreme Court decision that we have individual rights to arm ourselves highlights more than any other recent decision the absurdity of allowing the federal government, through its courts, to determine the limits of its own powers. This came about in the post-1865 era, once states’ rights/federalism was destroyed. (Yes, judicial review existed for a long time before that, but presidents, state legislatures, and citizens viewed it as merely the Supreme Court’s opinion, not THE FINAL WORD, ONCE AND FOR ALL on constitutional issues).
The shocking thing about today’s decision is that if one man — Anthony Kennedy — voted the other way, then what — we would all be forcefully disarmed?
A judicial dictatorship is what nationalists like Alexander Hamilton and his disciple, Justice John Marshall, wanted, and that of course is what we’ve ended up with. But imagine if the Court declared in 1805 that Americans do not have individual rights to own firearms. Do you think Jefferson, Patrick Henry, and George Washington would have given up their firearms and genuflected to the black-robed deities of the Court? Hell no; they would have reached for them and commenced another revolution.