Thursday, June 26, 2008

UPDATED CONSTITUTIONAL SIGNS OF LIFE: Supreme Court Locates Second Amendment in Heller Case--DC Gun Ban Unconstitutional

UPDATE: Edited for clarity and readibility, and broadened to include an aside on the applicability of this decision to modern weapons technology.

Two steps towards tyranny in the last two weeks, but--today at least--one step towards the Law of the Land (via Allah):

Just across at SCOTUS Blog. 5-4, which means Kennedy was the deciding vote — or, if you prefer, Alito was the deciding vote. Would O’Connor or Harriet Miers have voted the same way? If nothing else, Bush at least delivered this.

Stand by for the opinion.

Update: The first AP report says the right extends to “self-defense and hunting.” And here’s an update. Hmmm:

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

Update: Here’s the opinion at SCOTUS Blog. They’re getting hammered by Drudge so e-mail us if you can’t access it there and I’ll upload it elsewhere.


As predicted the other day, this ruling did not necessarily affirm any type of weapon ought be available to the general population. But it does for the first time establish a precedent that the occasional need during civil unrest or collapse of institutions for "self regulated militias" does not preclude the individual's right to own "common" weapons for self defense. For now anyway, that particular argument is kaput.

And, (as was also predicted) Scalia did not infer that the 2nd Amendment granted any individual the right to any specific weapon, and he even went so far to say that it was reasonable to restrict certain "special" arms from the general public (WMD's is my own extreme example of this logic...).

On the other hand, in a circumstance where order might completely break down in the US today, e.g. due to some nuclear catastrophe or the detonation of a "pulse weapon" (a distinct possibility--especially with a President who appeases our Jihadist enemies and the states arming them); then a militia was envisioned as being arguably necessary by the Founders (and this was restated in today's opinion). If so, in our scenario, let's just say that armed drug lords and/or Hezbollah-equipped fighters (Chavez thugs, FARC types, Sandinistas etc.), armed with AK-47's were to come flowing across the border in an incursion or hostage-taking type scenario, to commit terror acts, or to otherwise try and fill a "disorder vaccum" which such a catastrophe might create; at this point the "need" for citizens to utilize its "militia" arguably ought to also include the Founders' intent: to be a sufficient deterrent to allow citizens to keep order and defend its society and families. Reading Scalia's opinion today, to me it at least implies that the intent for "militia" in such circumstances is that they at least be equipped with sufficient arms required for it to be an effective deterrent.

To the extent that an armed insurgency with hundreds or thousands of the most plentiful weapon on earth (i.e. AK-47's) could easily trample over a Constitutionally mandated "deterrent"--because the arms necessary to defeat our adversaries were restricted from our own citizens (and the "militia" they would form), it would render the Second Amendment's "self defense" deterrent virtually worthless.

This is clearly not the Founder's intent--and that is according to today's majority opinion. The needed restoration of order in such a circumstance is what Scalia explains is the very REASON that the Founders crafted and added in the "militia" preamble (see Scalia's quotes below).

As nice as they are in everyday situations for self defense--pistols and shotguns, e.g. are not likely to defeat foreign-trained adversaries armed with AK-47s in skirmishes or otherwise "equal" battle conditions...

To illustrate what I mean about the "intent", one must also understand the "arms parity" which was likely taken for granted at the time of the Founders: during the American Revolution and thereafter, the Continental Army (initially consisting of many individuals who joined variously-organized "militias" at the time with their own weapons) could be argued to have had then at least enough parity in selecting a "preferred firearm" (although arguably fewer cannons, etc. than the British had), that, when confronted by the British Regulars, the citizen militias' weaponry was sufficient to provide the intended deterrent force--i.e. to prevail over a tyrannical, but "modernly-armed" force that would otherwise establish a non-Constitutional authority or otherwise terrorize the citizenry.

In other words, many if not most citizens during the time of the crafting of the Constitution--especially those in the frontier areas--had virtually the same flintlock rifle as a standard weapon as arguably any armed force on earth at that time, including the British. For me anyway, this historical fact suggests that there still may be some grey area to be decided about just how weapon technology should play into this implied right, especially in light of today's ruling. What weapons available today (should Governmental restrictions be guided by such a rule) would serve a "militia's" Constitutionally implied purpose in the modern day, ie. to provide an effective deterrent to insurgency or attack under extraordinary circumstances?

I would argue that in order to be a true "deterrent" against an organized insurgency who arguably would not have the same constraints or their ability to utilize more advanced weaponry, should there not be some sort of balance found as to what other weapons might be appropriate to allow our law-abiding citizens ( presumably after background checks, proficiency tests, etc)--beyond handguns, shotguns, and single-fire rifles--in the event of a such a chaotic and life-threatening circumstance? (which arguably is more likely today even than it was during the Cold War...)

Obviously Scalia is not the sort likely to easily "invent" a broader interpretation and infer that it was the Founders' intent to give every American an automatic weapon--nor would I want him to. That after all is what the Judicial Activists do, for example, in Boumediene. But it does seem to me that Scalia has left enough of a crack in the anti-gun facade that future Courts may well be called on to rule on finer points of arms technology, for example should a Border State like Texas decide that such a deterrent might indeed be necessary to fulfill the Founder's intent for individuals (who would organize as the militia in such circumstances), is the State not entitled to pass a law that would allow its lawful citizens the wherewithal to provide a clear "deterrent" to such aggression?

Call it my own fascination for weaponry, but I think it is a valid question.

But do not get me wrong: today's ruling is great progress against the anti-gun lobby, without question: because the part of this case which most persons (including myself) were most concerned about was that Heller specifically was reviewed because a clarification on the connection between the "militia" preamble, and the operative clause of the Second Amendment "the people's right to keep and bear arms shall not be infringed"--was being directly challenged by the lower courts' litigation.

And while--as noted above-- the 2nd Amendment does not specifically say what type of arms are within that "right", the Court has now held that this sweeping handgun ban clearly violates that 2nd Amendment right; not only that, but Scalia and the other "Constructionists" appear to have been at least persuasive to a majority that handguns often have been the only difference between the now affirmed individuals' right to self defense and an outcome that could ultimately cost that individual his life.

In effect, the court ruled specifically that the individual right did not depend on the "militia" preamble.

This in itself is miraculous, especially based on the other repugnant decisions which have come down this term. Perhaps the brilliance and persistence of Scalia, combined with his obvious knowledge of this topic, were enough to win the day. At the very least, the fickle Justice Kennedy (I am being kind today...) apparently was persuaded by Scalia's undeniable citation of historical precedent regarding the intent of the Second Amendment:
We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. [See, e.g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981).] John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” [2 Documentary History of the Ratification of the Constitution 508–509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). ]

Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. [See, e.g., A Pennsylvanian III (Feb. 20, 1788), in The 26 DISTRICT OF COLUMBIA v. HELLER Opinion of the Court Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia, Feb. 22, 1788, in id., at 280, 281; A Citizen of America, (Oct. 10, 1787) in id., at 38, 40; Remarks on the Amendments to the federal Constitution, Nov. 7, 1788, in id., at 556.]

It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down. It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia.

The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. JUSTICE BREYER’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self defense had little to do with the right’s codification; it was the central component of the right itself.

(Emphases mine)
I am very relieved; in fact I may just go to the range later this afternoon to celebrate!

All in all this was a horrible term for the Court. But today, at least, there is a silver lining, and it is a pretty big deal.

But will that be enough if a Marxist Obama is allowed to put more Activists/Bench Legislators on the Court to overrule this precedent as the Activists have so casually ignored other precedent this year? Only if all the conservatives on the court (plus, presumably someone at least as fence-riding as Kennedy) would outlast any Democrat Administration. But even in this event, an opportunity to replace a retiring "Activist" with a Justice who understands his/her appropriate role within the Constitution: to interpret it and, not to AMEND it themselves with no input from the people or the President--is critical now more than ever, especially with all these 5-4 decisions, many of them indefensible and outrageous in regard to the actual Constitution that is our Social Contract.

This Court's term (even the "appropriate" rulings like today's) is a clear argument for just how critical the Presidency is--if for no other reason than: if there are no checks against a runaway Court, we could lose everything.

Obama's Court appointments would be like adding gasoline to the flames--he has already assured voters multiple times in the debates that he would appoint more Activists to the Court and to the Appeals Courts who would arguably ignore the terms of this "contract" between the Government and its citizens at any given time, on a whim or based on some sick notion of "consensus".

Therefore, even if there was no other reason to vote for John McCain (which some of my betrayed Conservative friends believe), after the unbelievable damage to our Liberty that this Court has inflicted over this term (while augmenting the "liberties" of our sworn blood enemies abroad to the level of "Constitutional rights"...), it follows that the President's role in appointing new Justices is one UNDENIABLE reason that McCain is really the only sane choice this year, that is if we have a hope in hell to keep our country from descending into the abyss of Judicial tyranny.

1 comment:

Punditarian said...


Excellent post!

One comment with respect to this observation:

"In other words, many if not most citizens during the time of the crafting of the Constitution--especially those in the frontier areas--had virtually the same flintlock rifle as a standard weapon as arguably any armed force on earth at that time, including the British."

At the time the Constitution was ratified, the Pennsylvania Long Rifle (aka the Kentucky Rifle) was actually far superior to "Brown Bess," the British Army's musket. This salient fact was demonstrated a while later at the Battle of New Orleans.

Thus many private citizens, at the time the Constitution was ratified, possessed better small arms than did any army in the world, and many private citizens in America were unarguably better shots than any regular soldiers in any army of the world.

Far from being afraid of that situation, the Framers wanted to preserve it forever!

Thus the National Rifle Association was founded some years after the Civil War, when many prescient and far-sighted American leaders feared that young Americans were losing their habitual rifleman's skills.