Law School Discussion

Nine Years of Discussion
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Poll

Does the 2nd Amendment give us, the people, the right to bear arms or is that right attached to being a part of a militia?

The 2A gives the right to own guns to the people without question.
 25 (67.6%)
The 2A gives the people the right to own guns only if they belong to a militia.
 9 (24.3%)
Not sure.
 3 (8.1%)

Total Members Voted: 34

Author Topic: The "Right" to Bear Arms before the Court - So who is right?  (Read 7783 times)

greenplaid

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #20 on: June 27, 2008, 07:58:31 AM »

I also like Bryer's interests-balancing approach...Scalia gave no guidance as to how to decide future cases.
THE WALL STREET JOURNAL
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.
http://online.wsj.com/article/SB121453315144709663.html?mod=djemEditorialPage

A.

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #21 on: June 27, 2008, 09:24:15 AM »
I really couldn't care less what the msm have to say.  Get me Larry Tribe's opinion.

greenplaid

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #22 on: June 27, 2008, 10:13:06 AM »
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!

A.

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #23 on: June 27, 2008, 10:58:35 AM »
Battle of the editorials:

June 27, 2008
Editorial
Lock and Load

Thirty-thousand Americans are killed by guns every year — on the job, walking to school, at the shopping mall. The Supreme Court on Thursday all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling striking down key parts of the District of Columbia’s gun-control law.

In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a “militia.” The ruling will give gun-rights advocates a powerful new legal tool to try to strike down gun-control laws across the nation.

This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life.

There already is a national glut of firearms: estimates run between 193 million and 250 million guns. The harm they do is constantly on heartbreaking display. Thirty-three dead last year in the shootings at Virginia Tech. Six killed this year at Northern Illinois University.

On Wednesday, as the court was getting ready to release its decision, a worker in a Kentucky plastics plant shot his supervisor, four co-workers and himself to death.

Cities and states have tried to stanch the killing with gun-control laws. The District of Columbia, which has one of the nation’s highest crime rates, banned the possession of nearly all handguns and required that other firearms be stored unloaded and disassembled, or bound with a trigger lock.

Overturning that law, the court’s 5-to-4 decision says that individuals have a constitutional right to keep guns in their homes for self-defense. But that’s a sharp reversal for the court: as early as 1939, it made clear that the Second Amendment only protects the right of people to carry guns for military use in a militia.

In his dissent, Justice John Paul Stevens was right when he said that the court has now established “a new constitutional right” that creates a “dramatic upheaval in the law.”

Even if there were a constitutional right to possess guns for nonmilitary uses, constitutional rights are not absolute. The First Amendment guarantees free speech, but that does not mean that laws cannot prohibit some spoken words, like threats to commit imminent violent acts. In his dissent, Justice Stephen Breyer argued soundly that whatever right gun owners have to unimpeded gun use is outweighed by the District of Columbia’s “compelling” public-safety interests.

In this month’s case recognizing the habeas corpus rights of the detainees at Guantánamo Bay, Cuba, Justice Scalia wrote in dissent that the decision “will almost certainly cause more Americans to be killed.” Those words apply with far more force to his opinion in this District of Columbia case.

The gun lobby will now trumpet this ruling as an end to virtually all gun restrictions, anywhere, at all times. That must not happen. And today’s decision still provides strong basis for saying it should not.

If the ruling is held to apply to the states, and not just to the District of Columbia — which is not certain — there will still be considerable dispute about what it means for other less-sweeping gun laws. Judges may end up deciding these on a law-by-law basis.

Supporters of gun control must fight in court to ensure that registration requirements and background-check rules, and laws against bulk sales of handguns — a major source of guns used in crimes — are all upheld.

The court left room for gun-control advocates to fight back. It made clear that there were gun restrictions that it was not calling into question, including bans on gun possession by felons and the mentally ill, or in “sensitive places” like schools and government buildings.

That last part is the final indignity of the decision: when the justices go to work at the Supreme Court, guns will still be banned. When most Americans show up at their own jobs, they will not have that protection.

This audaciously harmful decision, which hands the far right a victory it has sought for decades, is a powerful reminder of why voters need to have the Supreme Court firmly in mind when they vote for the president this fall.

Senator John McCain has said he would appoint justices like Chief Justice John Roberts and Justice Samuel Alito — both of whom supported this decision. If the court is allowed to tip even further to the far right, there will be even more damage done to the rights and the safety of Americans.

http://www.nytimes.com/2008/06/27/opinion/27fri1.html?_r=1&oref=slogin

pikey

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #24 on: June 27, 2008, 11:05:57 AM »
Battle of the editorials:


It's no surprise which one I agree with.
The noobs are so into themsleves you'd think they allready have offers at Tool, Tool, feminine hygiene product & Dumbass LLC

lsn

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #25 on: June 27, 2008, 11:22:10 AM »
What battle?  I only see one editorial here.
dont worry guys, i had lotsof drinks, and now i feel better. hth.

greenplaid

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #26 on: June 27, 2008, 11:28:45 AM »
Battle of the editorials:


It's no surprise which one I agree with.


Some might say "Long Live The First Amendment!"

Burning Sands, Esq.

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #27 on: June 27, 2008, 12:04:11 PM »
I have some issues with the Wall Street Journal piece.

It stated:

"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."

First of all, it has been WELL ESTABLISHED by both conservative and liberal Justices for many years that the bill of rights provide a "right to privacy."  This was established long before Ginsburg, Stevens, Souter or Breyer ever got to the bench.  This article makes it sound like this is some kind of made up con law doctrine which has no backing in the Constitution that only liberal justices pull out of their azz.  C'mon wall street.

And as an aside, despite the RECENT voting records of Stevens and Souter, I still don't concede them to be "liberals" but that's another debate for another time.

Getting back to the case at hand, I do agree with the proposition in the article regarding how shocking it is that the individual right to own a gun provided by the 2nd amendment almost got knocked out by one vote.  I am disappointed in the 4 who voted against that particular issue.  Does everything have to be a 5-4 split with these cats?  Sheesh.

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.  I haven't read Scalia's opinion but if he overlooked or dismissed that fact then I can understand the basis for dissenting with his majority opinion.
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jeffislouie

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #28 on: June 27, 2008, 12:21:52 PM »
"Thirty-thousand Americans are killed by guns every year — on the job, walking to school, at the shopping mall. The Supreme Court on Thursday all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling striking down key parts of the District of Columbia’s gun-control law."

Yet another loudmouth liberal spouting off after getting confused and ignoring the confusing part....
More people die of Septicemia than guns.  Where's the outrage over Septicemia?  And by the way, libs - the bulk of those 30,000 deaths per year by handguns?  Suicide.  55% of all the deaths related to guns are suicide.  Just over 17000.  Meaning there are just 13,000 or so homicides or accidents related to firearms in this country per YEAR.  More people die from plain old battery's.  More people die from parkinsons disease.  The liberal media has you folks believing that guns kill more people than cancer, when the reality is that the numbers show that close to three times more people die in car accidents.  Should we ban cars?  Maybe just in cities where there are a lot of accidents?  There are 304 million people in this country, making gun deaths responsible for around .004 percent of the population.
And what happened to the violent crime rate in DC immediately after the ban was passed?  It went up.  People are still getting shot (more than before the ban) and it is sad to say that gun violence in DC has been on the increase.  The explanation is quite simple:  criminals don't follow laws.  As such, they own guns.  They use their guns to commit crimes because they know that the law abiding citizens don't have guns.  This is common sense.  Unfortunately, this is a quality that the liberals seem to avoid like the black plague.
GUN BANS DON'T WORK.  You can't possess a handgun in Chicago.  This is well known.  Yet every day, there are stories of kids getting killed in schools, near schools, by driveby's, and by accident.  Strange how in towns where gun bans exist, gun violence flourishes, that is unless you have a brain and realize that gun bans take guns out of the hands of peaceful, law abiding, safety trained citizens, not the criminals who are responsible for 90+% of the gun deaths.
The supreme court got this right (finally) and corrected a major issue.  The framers understood that the ownership of guns by the citizenry is important - so important that they made it the second amendment.  Why did they think it was important?  Because when the US was formed, our military was rather sparse.  The nation ran the risk of being overrun by the british and they understood that if they take the gun out of the citizens hand, they will be powerless to defend themselves and their country.
But there is more to it than that.  They understood that tyranny in government is a real danger and that the citizens should posess the power to stand up and fight against tyrants.  They understood that there was a real risk of the government being destroyed and replaced by a monarchy - especially without an armed constituency.  They also understood that a man has a right to lawful self defense.  When you make gun ownership illegal, peace-loving, law-abiding citizens are the one's who turn in their guns.  Criminals don't follow the law, so they hold on to them.  
Gun bans are unconstitutional and ridiculous on their face.  Like a gun ban in DC is going to influence Ray-Ray, the leader of the latin kings, to turn in his gat.  Please, Ray-Ray is PRAYING you dumb morons turn in your guns because then he knows that when he pulls his out, you won't be able to get off a shot on him.
Justice is tangy....

A.

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Re: The "Right" to Bear Arms before the Court - So who is right?
« Reply #29 on: June 27, 2008, 12:36:59 PM »
I agree with Breyer with regard to your point:

These empirically based arguments may have proved
strong enough to convince many legislatures, as a matter
of legislative policy, not to adopt total handgun bans. But
the question here is whether they are strong enough to
destroy judicial confidence in the reasonableness of a
legislature that rejects them. And that they are not. For
one thing, they can lead us more deeply into the uncertainties
that surround any effort to reduce crime, but they
cannot prove either that handgun possession diminishes
crime or that handgun bans are ineffective. The statistics
do show a soaring District crime rate. And the District’s
crime rate went up after the District adopted its handgun
ban. But, as students of elementary logic know, after it
does not mean because of it. What would the District’s
crime rate have looked like without the ban? Higher?
Lower? The same? Experts differ; and we, as judges,
cannot say.

What about the fact that foreign nations with strict gun
laws have higher crime rates? Which is the cause and
which the effect? The proposition that strict gun laws
cause crime is harder to accept than the proposition that
strict gun laws in part grow out of the fact that a nation
already has a higher crime rate. And we are then left with
the same question as before: What would have happened
to crime without the gun laws—a question that respondent
and his amici do not convincingly answer.

Further, suppose that respondent’s amici are right when
they say that householders’ possession of loaded handguns
help to frighten away intruders. On that assumption, one
must still ask whether that benefit is worth the potential
death-related cost. And that is a question without a directly
provable answer.

Finally, consider the claim of respondent’s amici that
handgun bans cannot work; there are simply too many
illegal guns already in existence for a ban on legal guns to
make a difference. In a word, they claim that, given the
urban sea of pre-existing legal guns, criminals can readily
find arms regardless. Nonetheless, a legislature might
respond, we want to make an effort to try to dry up that
urban sea, drop by drop. And none of the studies can show
that effort is not worthwhile.

In a word, the studies to which respondent’s amici point
raise policy-related questions. They succeed in proving
that the District’s predictive judgments are controversial.
But they do not by themselves show that those judgments
are incorrect; nor do they demonstrate a consensus, academic
or otherwise, supporting that conclusion.

. . . .

There is no cause here to depart from the standard set
forth in Turner, for the District’s decision represents the
kind of empirically based judgment that legislatures, not
courts, are best suited to make.