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Messages - greenplaid

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OK, I just finished reading the opinions.  While I think Scalia has the better textual argument over Stevens, he pulled that blanket allowance of handguns out of his ass.  Breyer definitely has the better argument there, and he took Scalia to task on it:
Pajamas Media;
Constitution Is Big Winner in D.C. Gun Case
June 26, 2008 - by Dave Kopel

Dave Kopel is research director at the Independence Institute, in Golden, Colorado. He was one of three lawyers at the counsel table who assisted Alan Gura at the oral argument on March 18. His brief for the International Law Enforcement Trainers and Educators Association was cited four times in Thursday's opinions

The Supreme Court’s decision upholding the Second Amendment, and striking down the District of Columbia’s handgun ban and the ban on the use of any firearm for self-defense in the home, is solidly reasoned. Although the case leaves ample room for moderate gun control laws, the case casts doubt on the continuing validity of a variety of other gun prohibitions.

Justice Scalia, who has long shown an interest in firearms law and policy, wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito. A dissent written by Justice Stevens, and joined by Justices Souter, Ginsburg, and Breyer argued that the Second Amendment protects only an individual right of vanishingly small proportions — the right of a militiaman not to be disarmed by the federal government when he is on active militia duty. Justice Breyer wrote a separate dissent, joined by the other three dissenters, arguing that even if the Second Amendment protects all law-abiding citizens, the handgun ban should be upheld because it is reasonable.

Justice Scalia’s majority opinion was impressively well-informed by the scholarly debate over the Second Amendment that has been going for the past several decades. The textual analysis is meticulous, supplemented by careful attention to the many early American and English sources which elucidate the meaning of the various words.

Justice Stevens’ effort to read the Second Amendment as militia-only requires too many implausible inferences. For example, it is true that the phrases “keep arms” and “bear arms” were often used to refer to arms possession and use in military bodies such as the militia. But as Justice Scalia points out, there are also many examples of both phrases being used to refer to owning and carrying guns for other purposes, such as self-defense and hunting.

After analyzing the text of the Second Amendment, the majority opinion then detailed the interpretation of the Second Amendment in the first half of the 19th century, showing that every legal scholar (except for one minor exception), along with state and federal courts, recognized the Second Amendment as an individual right to have guns for various purposes, including self-defense.

As Scalia explained, after the Civil War, Congress passed the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1871, and then the Fourteenth Amendment — all with the explicit purpose of stopping southern governments from interfering with the Second Amendment rights of former slaves to own firearms to protect their homes and families. All the scholarly commentators of the late 19th century — including the legal giants Thomas Cooley and Oliver Wendell Holmes, Jr. — recognized the Second Amendment as an individual right.

Previous Supreme Court precedents have not — contrary to the vehement insistence of gun prohibition advocates — adopted a contrary interpretation, the majority said. United States v. Cruikshank (1876) described the right to arms as a preexisting natural right which was protected — but not created — by the Second Amendment.

The 1939 case of United States v. Miller, which held that a tax and registration requirement for sawed-off shotguns was not facially unconstitutional, is heavily relied on by the dissent. But the majority points out that Miller’s analysis of the history of the Second Amendment was cursory; Miller did not even submit a brief, and, as explicated in a law review article cited by Scalia, the Miller case appears to have been a collusive case involving a corrupted defense attorney doing the bidding of the prosecutor. Most importantly, the Miler opinion turned on whether the particular type of gun was protected by the Second Amendment, and did not declare that only militiamen had a right to arms.

Lanier plans to seal off rough ’hoods in latest effort to stop wave of violence
Michael Neibauer and Bill Myers, The Examiner
2008-06-04 07:00:00.0

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.
Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate “Neighborhood Safety Zones.” At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn’t live there, work there or have “legitimate reason” to be there will be sent away or face arrest, documents obtained by The Examiner show.

Lanier has been struggling to reverse D.C.’s spiraling crime rate but has been forced by public outcry to scale back several initiatives including her “All Hands on Deck” weekends and plans for warrantless, door-to-door searches for drugs and guns.

Under today’s proposal, the no-go zones will last up to 10 days, according to internal police documents. Front-line officers are already being signed up for training on running the blue curtains.

Peter Nickles, the city’s interim attorney general, said the quarantine would have “a narrow focus.”

“This is a very targeted program that has been used in other cities,” Nickles told The Examiner. “I’m not worried about the constitutionality of it.”

Others are. Kristopher Baumann, chairman of the D.C. police union and a former lawyer, called the checkpoint proposal “breathtaking.”

Shelley Broderick, president of the D.C.-area American Civil Liberties Union and the dean of the University of the District of Columbia’s law school, said the plan was “cockamamie.”

“I think they tried this in Russia and it failed,” she said. “It’s just our experience in this city that we always end up targeting poor people and people of color, and we treat the kids coming home from choir practice the same as we treat those kids who are selling drugs.”

The proposal has the provisional support of D.C. Councilman Harry “Tommy” Thomas, D-Ward 5, whose ward has become a war zone.

“They’re really going to crack down on what we believe to be a systemic problem with open-air drug markets,” Thomas told The Examiner.

Thomas said, though, that he worried about D.C. “moving towards a police state.”

Staff Writer Scott McCabe contributed to this report.


Stevens does have a good point - no fundamental right in the Constitution is absolute.  The government can always regulate our fundamental rights for the safety of the public, as it should. 

13th. Amendment   Right to Freedom  ???
to the U.S. Constitution

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

Battle of the editorials:

It's no surprise which one I agree with.

Some might say "Long Live The First Amendment!"

I really couldn't care less what the msm have to say.  Get me Larry Tribe's opinion.

Even though you and the WSJ Board do not agree on the "interest-balancing test" approach as applied by Justice Breyer, your immediate identification and commentary on the approach were seen as a sign of high analytical ability. OUCH!


I also like Bryer's interests-balancing approach...Scalia gave no guidance as to how to decide future cases.
Silver Bullet
  June 27, 2008; Page A12
The 2008 Supreme Court term ended with a bang yesterday as the Justices issued their most important ruling ever in upholding an individual right to bear arms. The dismaying surprise is that the Second Amendment came within a single vote of becoming a dead Constitutional letter.

That's the larger meaning of yesterday's landmark 5-4 ruling in D.C. v. Heller, the first gun control case to come before the Court in 70 years. Richard Heller brought his case after the Washington, D.C. government refused to grant him a permit to keep a handgun in his home. The District has some of the most restrictive handgun laws in the country – essentially a total ban. The D.C. Circuit Court of Appeals, in a 2-1 decision by Judge Laurence Silberman, overturned the ban in an opinion that set up yesterday's ruling by taking a panoramic view of gun rights and American legal history.

In writing for the majority, Justice Antonin Scalia follows the Silberman Constitutional roadmap in finding that the "right of the people to keep and bear arms" is an individual right. The alternative view – argued by the District of Columbia – is that the Second Amendment is merely a collective right for individuals who belong to a government militia.

Justice Scalia shreds the collective interpretation as a matter of both common law and Constitutional history. He writes that the Founders, as well as nearly all Constitutional scholars over the decades, believed in the individual right. Many Supreme Court opinions invoke the Founders, but this one is refreshing in its resort to first American principles and its affirmation of a basic liberty. It's not too much to say that Heller is every bit as important to the Second Amendment as Near v. Minnesota (prior restraint) or N.Y. Times v. Sullivan (libel) are to the First Amendment.

Which makes it all the more troubling that no less than four Justices were willing to explain this right away. These are the same four liberal Justices who routinely invoke the "right to privacy" – which is nowhere in the text of the Constitution – as a justification for asserting various social rights. Yet in his dissent, Justice John Paul Stevens argues that a right to bear arms that is plainly in the text adheres to an individual only if he is sanctioned by government.

Justice Breyer, who wrote a companion dissent, takes a more devious tack. He wants to establish an "interest-balancing test" to weigh the Constitutionality of particular restrictions on gun ownership. This balancing test is best understood as a roadmap for vitiating the practical effects of Heller going forward.

Using Justice Breyer's "test," judges could accept the existence of an individual right to bear arms in theory, while whittling it down to nothing by weighing that right against the interests of the government in preventing gun-related violence. Having set forth this supposedly neutral standard, Justice Breyer shows his policy hand by arguing that under this standard the interests of the District of Columbia would outweigh Mr. Heller's interest in defending himself, and the ban should thus be upheld.

But as Justice Scalia writes, no other Constitutional right is subjected to this sort of interest-balancing. "The very enumeration of the right takes [it] out of the hands of government" – even the hands of Olympian judges like Stephen Breyer. "Like the First, [the Second Amendment] is the very product of an interest-balancing by the people – which Justice Breyer would now conduct for them anew."
In that one sentence, Justice Scalia illuminates a main fault line on this current Supreme Court. The four liberals are far more willing to empower the government and judges to restrict individual liberty, save on matters of personal lifestyle (abortion, gay rights) or perhaps crime. The four conservatives are far more willing to defend individuals against government power – for example, in owning firearms, or private property (the 2005 Kelo case on eminent domain). Justice Anthony Kennedy swings both ways, and in Heller he sided with the people.

Heller leaves many questions unanswered. Contrary to the worries expressed by the Bush Administration in its embarrassing amicus brief, the ruling does not bar the government from regulating machine guns or other heavy weapons; or from limiting gun ownership by felons or the mentally ill. Any broad restriction on handguns or hunting rifles will be Constitutionally suspect, but legislatures will still have room to protect public safety.

Heller reveals the High Court at its best, upholding individual liberty as the Founders intended. Yet it is also precarious because the switch of a single Justice would have rendered the Second Amendment a nullity. With the next President likely to appoint as many as three Justices, the right to bear arms has been affirmed but still isn't safe.


I don't presume to speak for most Black Americans and neither should they.

Most 'organizations' seem to suffer from that affliction. ;)

Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research, has been a leading voice of the African-American community since 1992. 

Really?   ???  Who knew?   :D
During the debate over the nomination of John Roberts to the U.S. Supreme Court, People for the American Way said: "Project 21, the NCPPR's effort to create a 'new leadership for Black America,' seems little more than African American spokespeople with extremist views that are at odds with what the majority of African Americans care about and believe."

Do you believe that the Heller Decision is out of step with the views of most black Americans?

For Release: June 26, 2008
District of Columbia v. Heller Supreme Court Second Amendment Decision Hailed by Black Activists

Washington, D.C. - Today's U.S. Supreme Court ruling guaranteeing the Constitution's individual right to own firearms and overturning the ban on most gun ownership in the nation's capital in the first major Second Amendment case in almost 70 years is being hailed by black activists of the Project 21 leadership network.

Project 21 Fellow Deneen Borelli says the decision supporting an individual right to use firearms is a loud and clear declaration that the government cannot pick and choose what constitutional protections are honored and enforced.

"This is a great day for law-abiding citizens of the nation's capital who have unjustly been denied their full right to protect themselves and families for over 30 years," said Borelli.  "The Second Amendment guarantees the individual right of citizens to arm themselves for self-defense and not become easy prey.  Perhaps the government should find a better way to keep illegal guns away from criminals and not law-abiding citizens."

The case of District of Columbia v. Heller is an appeal of the decision of the U.S. Court of Appeals for the DC Circuit in Parker v. District of Columbia.  In Parker v. District of Columbia, the DC Circuit ruled the District of Columbia's Firearms Control Regulations Act of 1975, which bars handgun ownership by most D.C. residents, is unconstitutional. 

The specific question being answered in District of Columbia v. Heller today was, as phrased by the Court: "Whether... provisions [in the District of Columbia code] violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

The District of Columbia, defending the constitutionality of the firearm ban before the Court in oral arguments March 18, argued the Second Amendment's right to "bear arms" refers not to an individual right to use firearms, but rather to a "right to participate in the common defense" and a restriction of "the authority of the federal government to interfere with the arming" of state militias.  The District of Columbia argued to the Court that "the Second Amendment... is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license."

Opponents of the ban, however, said the Founders considered self-defense a right and one they intended the Second Amendment to protect, telling the Court "the framers knew exactly how to condition a right on militia service... and they didn't do it with respect to the Second Amendment."

"There are countless instances in which individuals are on their own when it comes to protecting themselves and their property.  A majority of the Justices recognized this and upheld the Second Amendment's specific protection of an individual right to self-defense.  Now that D.C.'s citizens have had this constitutional right restored, criminals will have good reason to think twice before trying to plunder another's property," added Project 21's Borelli.

In 2007, in a newspaper column published in Philadelphia, Chicago, Pittsburgh and elsewhere, Borelli addressed some of the public policy aspects of the case:

Besides violating the Second Amendment, D.C.'s gun ban is a violation of the fundamental rationale of law.  In The Law, noted political theorist Frederic Bastiat wrote: 'It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work.  All the measures of the law should protect property and punish plunder.'  D.C. promotes the opposite, effectively protecting the plunderer and punishing the property owner.

Borelli also pointed out:

Research shows that law-abiding citizens using firearms for protection can save lives and deter crimes.  In 'Armed: New Perspectives on Gun Control,' co-authors Gary Kleck and Don Kates note that 'as many as 2.5 million victims use guns to defend against crime each year' and 'handguns are actually used by victims to repel crime far more often than they are by criminals in committing crimes - as much as three times more.'

Borelli believes that in addition to it being unconstitutional, it is immoral to deny law-abiding citizens the right to legally possess a firearm, especially within crime-infested neighborhoods.

Borelli's column is available at

Project 21, a nonprofit and nonpartisan organization sponsored by the National Center for Public Policy Research, has been a leading voice of the African-American community since 1992.  For more information, contact David Almasi at (202) 543-4110 x11 or, or visit Project 21's website at


Law School Admissions / Re: Toby Stock Call Thread
« on: June 23, 2008, 04:09:02 PM »
I GOT ACCEPTED about an hour agao! I can't believe this actually happened. It's been about six months since my first TS1 and more than a month since my second TS1, so I didn't really have much hope, but hey, Toby called again out of the blue..and after business hours too.

I know I already posted in the ACCEPTANCES thread, but I can't help myself..


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