Free Markets, Free People


SCOTUS – all Americans have the right to keep and bear arms

In a rather interesting ruling which, unsurprisingly, split along ideological lines, the Supreme Court today made it clear that all Americans enjoy the full right and benefit of self-defense guaranteed by the 2nd Amendment.  Mary Katharine Ham notes part of the majority opinion written by Justice Samuel Alito:

Alito writes in part, “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right,” while allowing, as in Heller, for sensible gun ownership restrictions.

Alito went on to write:

We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms.

Of course, the crack left by that sentence will be fully exploited by municipalities and states, calling whatever they try to do "sensible gun ownership restrictions". But Alito makes it clear that the Bill of Rights, as incorporated under the Constitution, doesn’t mean that states have the right or authority to radically change the intent of the constitutional guarantees they provide citizens:

"The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.”

Or, screw with this ruling at your own peril.

As mentioned, the court split 5-4.  Justice Stephen Breyer wrote the dissent:

He disagreed with the majority that it is a fundamental right, and said the court was restricting state and local efforts from designing gun control laws that fit their particular circumstances, and turning over all decisions to federal judges.

"Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a nation whose constitution foresees democratic decision-making, is it so fundamental a matter as to require taking that power from the people?" Breyer wrote. "What is it here that the people did not know? What is it that a judge knows better?"

Well that’s a simple one, Justice Breyer – because rights aren’t something one votes on.  A right is something one either has or doesn’t.  What Breyer is suggesting is it should be up to a majority to “vote” to take away the rights guaranteed to all Americans by the Constitution.  In my ideological neck of the woods, that dog won’t hunt.

~McQ

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31 Responses to SCOTUS – all Americans have the right to keep and bear arms

  • He disagreed with the majority that it is a fundamental right, and said the court was restricting state and local efforts from designing gun control laws that fit their particular circumstances, and turning over all decisions to federal judges.

    Considering the crime rate in Chicago since the gun ban, I actually don’t think turning the law-making over to federal judges would be such a bad idea…  God knows they can’t screw that city up more than it already is…

    And getting rid of a corrupt federal judge is still easier than it is to get rid of a corrupt chicago politician.

    During oral Arguments, was the fact that Dailey, anyone on his staff, and anyone on the city council enjoys the right of un-fettered conceal-carry brought up?

  • This is a victory for the federal government’s ability to limit state powers — with the thought process essentially the same as the one used by so-called liberal activist judges when the issues fit them.   No one denies, not even the dissenters, that states cannot violate the constitution.  The issue is to what extent state laws can veer from federal laws in dealing with issues that raise constitutional concerns.  No right is absolute — you have the right to bear arms, but that is limited (both to certain convicts, but also you can’t own your own nuclear weapon).  The Court essentially limits the leeway of localities or states to define things in ways that reflect local concerns.  It is a loss of power for states.
    Is this appropriate in this case?   Perhaps — but the idea that voting “no” would mean that states didn’t have to apply the second amendment or there that there is no right to bear arms is ridiculously stupid.   No one who understands an iota of constitutional law, conservative or liberal, could make such a statement without knowingly engaging in dishonest rhetoric.   However this decision went, all Americans would still be covered by the Second Amendment.

    • Um…  Waste Of Time speaks again.

      This was NOT a BIG GOVERNMENT victory, idiot.  It was an individual liberty victory, and a Constitutional victory.

      Perhaps — but the idea that voting “no” would mean that states didn’t have to apply the second amendment or there that there is no right to bear arms is ridiculously stupid.

      Gee, then why was the case brought?  Why was it considered?  Why did it obtain certiorari?  “Ridiculously stupid” is as writes.

      • The left has been going “Ministry of Truth” with doublespeak focused on big government and other tea party issues. 

        They want to innoculate students from being able to even carry on a discussion about Tea Party issues by just f’ing up the definitions. 

    • “This is a victory for the federal government’s ability to limit state powers”

      Thank you Outer Party Professor Erb – you proles, pay attention, our resident expert on Doublethink speaks.
       

      • Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right,” while allowing, as in Heller, for sensible gun ownership restrictions.

        In order for Erp to spout his crap, he had to totally ignore that part…  That sort of makes him a liar in my book…

        • Furthermore -
          “Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

          Now, I suppose you could claim that the Federal Government has limited the states, but a more sane person would read that the Federal Government recognizes US citizens have these nasty old rights, and NO government entity shall restrain them, neither the Fed nor the States.

          But since Erb does not believe in inalienable rights, it’s natural he would view this as Federal incursion on State authority.  The SCOTUS has reaffirmed the intent of the 14th amendment as it was understood WHEN it was passed.

    • It’s pretty clear that you do not understand what has been the debate over the Second Amendment, Scott. So your phrase, “No one who understands an iota of constitutional law…,” is pretty hilarious. You completely missed what is at stake in this issue. I’ll leave it for you to figure that out for yourself, knowing that you are too lazy to do so.

    • No Scott, you are wrong again.  This ruling simply extends the rights we enjoy through the Constitution through to the states.  If you were correct, the states could inhibit religion.  States could disallow freedom of the press or anything in the bill of right because not to allow the states that latitude would be to limit the states power.    But, it is a continuation of power for the individual which is what the bill of rights is all about.

    • Scott, the victory for the feds was Slaughterhouse.

      The feds already have full power. You side has done that. Before you were born.

      All this case does is incorporate the 2nd, so that it stands with other rights that were already incoprorated.

  • “Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a nation whose constitution foresees democratic decision-making, is it so fundamental a matter as to require taking that power from the people?” Breyer wrote. “What is it here that the people did not know? What is it that a judge knows better?”

    What a fascinating inversion of the issue!!!  Breyer has NO trouble deciding he knows better than the democratically expressed will of the people in EVERY OTHER arena.  None whatsoever.  Why is it so fundamental?!?!?!  Because the Framers knew human nature and the proclivity to abuse power.

    But he’s right about one thing, though I’m sure he’d be gob-smacked to fully realize what he was saying; the people DO have the right…via democracy and the process included in our charter itself…to change the charter.  It isn’t easy, which is how it should be.  Five judges can’t do it, and should NEVER be permitted to try.

  • So lets get this straight-

    Four justices basically voted against the Constitution.

    Hookay then.

  • What “local concerns”, exactly, validate demolishing a constitutional right?
    No “local concern” counters the First Amendment.
    No “local concern” counters the Fourth Amendment.
    No “local concern” counters the Fifth Amendment.
    Funny how it’s only one of the Amendments that’s second-class, such that it’s a lamentable loss of “control” (well, the got THAT part right) by the States to have it actually enforced that the right exists and matters, for everyone.
    (PS. Bruce? That’s “Americans”, plural. Not “American’s”, possessive.)
     

    • Very good point.

      Self-defense is fundamental in every locale and a free society demands that everyone have access to at least the status quo means (i.e., the handgun) of maintaining it.

      (I note the handgun because it is convenient, ready, unobtrusive, and manageable. That doesn’t mean that shotguns and rifles are any less protected, but you might not want to take one into the pharmacy when you go in for a bottle of aspirin.)

  • Really, what part of  “shall not be infringed” is so hard to understand?

  • “why, in a nation whose constitution foresees democratic decision-making, is it so fundamental a matter as to require taking that power from the people?”

    All power to the people!!

    How retro.

  • 1.  The Court got this wrong.  The Wise Latina said so. / sarc

    2.  I’m guessing that we won’t be hearing much chatter from the libs about stare decisis on this ruling.  Rather, they’ll be champing at the bit to get that crucial fifth liberal justice to say that the Court was totally, absolutely, completely, utterly, Plessy v. Ferguson-level W-R-O-N-G about this, vis. that the people have NO right to bear arms except as uniformed members of the National Guard, and that the states, counties, and municipalities have the right to refuse people the right to the means to murder each other as they see fit.  I’m sure that pudgy loser* currently lying to the Senate judiciary committee sees it that way.

    —–

    (*) I would say that she looks like a retard, but the comparison would be insulting to mentally handicapped people.

  • “Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a nation whose constitution foresees democratic decision-making, is it so fundamental a matter as to require taking that power from the people?” Breyer wrote.

    This is actually a good point (though I think I may be forgiven for believing that Mr. Justice Breyer is being cynically dishonest in making it as I doubt he believes a single word of what he wrote):

    Is the Constitution and especially the Bill of Rights AS WRITTEN intended as a charter between the citizen and the government at any level, or merely the citizen and the federal government

    If the latter – and I think that a good case can be made that this was the intent in 1787 – then the federal government, through the agency of the Supreme Court, has no business telling the City of Chicago how it may structure its local laws.  If the former, then why bother with the farce of having municipal, county and state governments as they are, in the final analysis, merely appendages of the federal government?  Why bother to have state constitutions if they have no meaning or power compared to the federal Constitution (which, as we’ve seen too often, has a different meaning depending on what set of nine justices happen to be sitting on the SCOTUS)?

    I add that it would be interesting to see Mr. Justice Breyer make the same argument with regard to the New Deal decisions, Brown, Gideon, Miranda, or any other similar ruling in which the Court (gasp!) decided that it had to take power from the people in matters of “considerable empirical and local value-laden nature”.

    Alito writes in part, “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right,” while allowing, as in Heller, for sensible gun ownership restrictions.

    Color me cynical, but the Court made matters MORE murky than they were before they ruled.  Basically, the majority held that Chicago went too far.  OK… Where IS the line to be drawn, then?  If self-defense is a basic right being upheld in the II Amendment, then can the State put ANY limits on it?  And who does the Court think that people are defending themselves from?  If we spin back the clock to 1775, our illustrious forebears were defending themselves NOT from common criminals but rather from the armed forces of a tyrannical government.  Texans may say the same about their ancestors.  This points away from the relatively small, weak handgun and toward more potent weapons.  Would the Court agree that the II Amendment allows people to own those?  I think not.

    In effect, the Court is trying to have it both ways: it says that self-defense and the arms that make that easier are a right, yet still allows pretty significant limits on what those arms may be and who may own them.  This ruling is going to be tested and right quickly as the thugs who rule Chicago attempt to write another law that has the same effect as their current ban while paying lip service to the right that Alito and the Court claims exists under the II Amendment.

    A right that can be regulated into nothingness isn’t much of a right.  My own view is that there should be no prior restraint on what arms people may have, but rather severe penalties for abusing that right.  In the same way that a man may be punished for abusing his right to free speech by shouting “Fire!” in a crowded theatre, or by publishing lies about another man in the newspaper, a man ought to be punished for using his arms for criminal purposes, NOT be told that he can’t have them in the first place.

    • Easy boy, easy.

      Heller confirmed that the 2nd is an individual right (and even went a bit farther than that).

      Now McDonald has incorporated the 2nd, so it now applies to the states as well.

      One step at a time.

    • Also, consider the case that preceeded Heller: Miller. In Miller, the supremes quoted an 1840 something state case that argued that we had an individual right to militia type weapons, but that this did not extend to weapons sutable only for self defense. I.e., the 2nd was only about weapons suitable for militia duty. Hence Miller’s sawed off shotgun likely wasn’t protected.

      In Heller, all 9 justices held that the 2nd was an individual right. Four of them argued that DC met that right because it allowed locked up / dissasembled shotguns and rifles (as long as they were not semiauto). The winning five held that self defense was a protected right.

      The self defense nexus is powerful and common sense. That does not mean that AR15s or M4geries are not protected. It is a serious expansion of our basic rights, even if it does not settle every aspect of the gun debate.

      What we see with McDonald is the extention of this right to the states, as is appopriate.

      • DonThe self defense nexus is powerful and common sense. That does not mean that AR15s or M4geries are not protected. It is a serious expansion of our basic rights, even if it does not settle every aspect of the gun debate.

        I agree that self-defense is sensible, but it isn’t “common sense” or else we wouldn’t be in the fix where the Supreme Court has to affirm that right, or various states / localities have to have laws explicitly stating that people have the right to defend themselves instead of running  away or locking themselves in a bathroom and hoping for the best.  For libs, it’s “common sense” not to allow people the means to so easily hurt or kill their fellow man.

        Don - What we see with McDonald is the extention of this right to the states, as is appopriate.
        Why is it appropriate?  This is the gist of my questions above: is the Constitution a compact between citizen and federal government, or citizen and ANY government?

        As it happens, Art. I sec. 22 of the Illinois State Constitution (1970) states:

        Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be
        infringed.

        It seems to me that McDonald should have had his case heard by the Illinois courts, and that the SCOTUS incorporating the II Amendment onto the States is not only an example of judicial activism, but also unnecessary: his right was already guaranteed by his own State’s constitution.  That this right was not upheld speaks to the (frankly) stupidity and apathy of the people of Illinois.  One wonders what other rights they would give up so blithely.

        Let’s assume a hypothetical: the SCOTUS decides that the II Amendment does NOT protect an individual right to bear arms for self-defense or for any other reason.  Would it therefore trump or otherwise invalidate Art. I sec. 30 of the North Carolina State Constitution, which, aside from a caveat about concealed weapons, is pretty much a direct copy of the federal II Amendment?  If so, then – again – why bother to have state constitutions, laws, legislatures, courts, etc. at all?

        • Incorporation of the 2nd is appropriate because of the 14th amendment. The radical Republicans who pushed through the 14th had the 2nd firmly in mind: their writings make that clear. Prior to the 14th, the federal BoRs did not apply to the states. But the 14th is a valid amendment.

          The left prefers to use the 14th to get what they want, and ignore it when they don’t agree with the result. We might as well benifit from the 14th, which was passed according to the Constitution (I suppose that one could argue that the 14th shouldn’t exist because most southern males had lost their vote post Civil War, but that’s a losing argument).

          Now, why not apply the state BoRs? Well, the whole point of McDonald was incorporation. Now, we have something that applies nationwide.

          • Don[T]he whole point of McDonald was incorporation. Now, we have something that applies nationwide.

            My point exactly.  If I may indulge in a bit of hyperbole, this drives a stake through the heart of federalism: local laws and even state constitutions have no power if the SCOTUS can find (or not find) something in the US Constitution that contradicts them.  That’s fine in a large degree (the federal Constitution is and ought to be the supreme law of the land), but it becomes a bloody big problem when the SCOTUS either finds things that plainly AREN’T in the Constitution (abortion, for example) or fails to “find” things that plainly ARE there (RKBA, which four of nine justices somehow managed to miss).

          • docjim505,

            The basis for the courts decision is the 14th amendment. The real “stake through the heart of federalism” is the Slaughterhouse interpretation of the commerce clause.

            Both the 14th and the commerce clause represent threats to federalism. In the case of the 14th, it is an actual constitutional amendment, and it is a limited threat because it simply imposes the BoRs on the states.

            The commerce clause is a threat that came about via absurd interpreations of the clause, and it is essentially unlimited in scope (what doesn’t effect interstate commerce?).

            You are worrying about the wrong thing. The f’ing barn is burning down, and you are worried that the barn door squeaks.

  • There is no need to explain the meaning.  The Bill of Rights was clearly and precisely written