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Heller Wrap-Up
Posted by: Dale Franks on Thursday, June 26, 2008

Looking over the Heller opinion and dissents, several things occur to me, in no particular order.

First, it was a 5-4 majority. We are one robed lawyer away from being told that the right to keep and bear arms is not a right at all. And there will certainly be more chances for that to happen in the not-too-distant future, because this is going to spawn a number of legal cases in gun-banning cities like Chicago and San Francisco. That we have reached a state where an enumerated right's existence depends on how Justice Kennedy feels on the particular day he looks at the issue is a travesty.

And Justice Scalia's opinion is going to fuel that fire, because he went out of his way to address incorporation of the 1st Amendment onto states through the 14th, by reference of 19th-Century cases that did not hold such incorporation. As a result, Mayor Daley of Chicago has announced that Heller only applies to the Feds, and so anyone who thinks Chicago's gun ban is on the ropes can go screw. This will, without a doubt, result in a number of cases that will force the Court to face it's entire body of incorporationist rulings, which imply, when taken at face value, that the 2nd Amendment is just as equally binding on the states as the 1st, 4th, and 5th.

This is definitely not over yet, and a change in the court's direction by a single vote could void Heller. Essentially we have no rights, other than those the Supreme Court extends to us. I don't think that was the way the whole "rights" thing was supposed to work.

The dissent by Justice Stevens is a pretty shoddy piece of work.
[A]t p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..."
Since Miller wasn't convicted, there was no conviction for the case to uphold.
"In 1901 the President revitalized the militia by creating the 'National Guard of the several States,' Perpich 496 U.S. at 341 and nn. 9-10."
Not exactly. In 1901, Teddy called on Congress to reform the militia. At least, that's what Perpich actually says, as opposed to what Justice Stevens says it says. In any event, how would a president—having no power to make the laws of the United States—create the National Guard? Congress, in fact, created the national guard in 1903, through the amusingly named Dick Act.

Neither Justice Stevens, Justices Ginsburg, Souter, and Breyer, nor any of their clerks, appear to have read the citations to ensure their correctness. This is, by the way, the level of keen legal argument that will strip the 2nd Amendment of any meaning, if a single vote switches from the majority.

I mentioned Mayor Daley above. Man, is he ticked off.
An angry Mayor Richard Daley on Thursday called the Supreme Court's overturning of the Washington D.C. handgun ban "a very frightening decision" and vowed to fight vigorously any challenges to Chicago's ban.

That challenge was not long in coming. Hours after the high court's ruling was made public Thursday, the Second Amendment Foundation and the Illinois State Rifle Association sued the city and the mayor in an effort to overturn Chicago's quarter-century ban on handguns.

City officials expressed confidence the city would prevail in any court challenge, asserting, among other things, that the 2nd Amendment as part of the Bill of Rights restricts the federal government and does not apply to state and local governments.
So is the state's governor.
"It's a big blow to those of us who believe in common sense gun laws," Gov. Rod Blagojevich said during an appearance at a West Side community agency to announce a summer jobs program. "And as a result, it's the wrong decision."
How's that for solid Constitutional reasoning? "I beleive in gun control. So the decision is wrong." As if the Constitution's meaning was based on Governor Blagojevich's personal beleifs. Who does he think he is, a Supreme Court Justice?

I really liked this bit, though:
"Chicago, like other big cities, has a compelling interest in reducing crime related to firearms," the [city's Heller amicus] brief states.

Chicago Police Department statistics show that from 2004 to November 2007 there were 43,685 firearms-related violent crimes in the city.
Well. I'd say that their gun ban is just doing a bang-up job then, huh?

According to the FBI, in 2006, Illinois—a state that has fairly strict gun laws—had a violent crime rate of 541.6 per 100,000. Meanwhile, down in gun-totin'Texas—twice the population, but with very similar demographics—the wild-eyed cowboys managed to tote up a rate of 516.3 per 100,000.

Indeed, similar rates carry through across the board:

Murder:
IL: 6.1
TX: 5.9

Robbery:
IL: 185.3
TX: 158.5

Aggravated Assault:
IL: 318.4
TX: 316.4

To be fair, TX still has the lead in forcible rape, at 35.6 compared to 31.8 in IL.

Meanwhile, in DC:
Murder: 29.1
Robbery: 658.4
Aggravated Assault: 789.1

Although, DC is still a relatively genteel place for the ladies, with the forcible rape per 100,000 coming in at a Chicago-style friendliness of 31.8.

Maybe, just maybe, the problem isn't "guns". Perhaps there's some human factor that could explain these numbers. If only we could understand what it might possibly be...

Speaking of DC, Colbert King is all in a tizzy, too. In an piece entitled, "The Thugs Win the Case", he opines:
The record will show that our home-grown shooters have blown through the city's so-called strict handgun ban like John Riggins going up the middle. Over the past 20 years, there have been more than 6,500 homicides in the nation's capital, most committed with firearms, predominantly handguns. In 1976, the year the ban was put in place, the District had 135 gun-related murders, according to CNN. Last year, the number reached 143. Thus far this year, we've had 85 murders.
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You thought D.C. stands for "District of Columbia? "Dodge City" is more like it.

If D.C. street thugs are pleased by anything, it's probably the fact that five of the justices — a slim majority, but that's all it takes to win — have come around to seeing things their way.
Yes. No doubt the Capital's gang-bangers are giddy with delight, seeing as how hard it's been to wreak havoc with the capital's gun ban in place.

There is, of course, an alternative view, in which a particularly cynical person might hold the opinion that the reason thugs have turned DC into Dodge City is that they've known for years that they could prey on the citizens of the District with relative impunity.

I merely add the latter through a keen sense of fairness, not because I have any particular suspicion that it may be, you know, correct.

If Mr. King truly believes that the gun ban has been an effective deterrent to crime in his fair city, then I can only assume that he believes his fellow residents of the District are so completely depraved that overturning the ban will result in Somalia-style bloodshed in the Capital.

Indeed, that is the most charitable construction I can put on his article. Otherwise, I must beleive that he dislikes guns so much, he is willing to live in Dodge City because he cares more about guns being eliminated than he does his law-abiding fellow citizens being stalked and killed as defenseless prey.

In any event, Heller was, at best, a small step forward. Whether it's the prelude to two steps back in a future court, remains to be seen.

Somehow, we've evolved a system where nine robed lawyers dictate to us what our rights are, and the other 300 million of us are expected to fall, sheeplike, in line.

I'm pretty sure that wasn't the original plan.

UPDATE: Reader/Lawyer XRLQ notes:
Unfortunately, Justice Scalia made the same error on p. 49 of the majority opinion:
Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreld shotgun in interstate commerce, in violation fo the National Firearms Act, 48 Stat. 1236.
Well, that's just perfect, huh? All nine justices, and all their clerks, in working on opinions for the first 2nd Amendment case since US v Miller in 1939, seem not to know that Miller wasn't convicted. Miller was bought to the Supreme Court by the US Attorney who was upset that the trial court threw out the NFA indictment.

"Can't anybody here play this game?"
 
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Comments
The consequences of the Heller decision should yield, at least, some interesting studies about firearm ownership, use and associated effects on the rate of various crimes. That is, I suppose, a possible rather grisly expectation, but the opportunity could yield some very useful empirical data.

I suspect that some of those who woefully decrying to end of firearms laws have read neither the full opinion nor even any good summary analyses of it, otherwise one might expect that they’d’ve read Justice Scalia’s opinion that,"Of course the right [to bear arms] was not unlimited, just as the First Amendment’s right of free speech was not." There is sure to be argument about the implications of that, but it does not wholly strip governments of power to regulate the possession and use of firearms, indeed they probably have rather little worth worrying about on that point. They could’ve pronounced wiser, subtler opinions after reading one or two posts on The Volokh Conspiracy or even consulting any legal scholar who happened to be at hand.

There’s more than one, "trigger finger," joke or some variation thereof that can be made about this, but I leave that one’s imagination.
 
Written By: Paludicola
URL: http://www.vikinghats.com
The gist of Scalia’s opinion, to put into laymans terms is not that government does not have the right to regulate guns, Government does not have the right, through such regulation to effectively eliminate the right of the citizen to a firearm.

As for your crime statistics. Paludicola, there is no amount of empirical evidence which will convince the gun grabbers. We already have reams of evidence that gun laws are not only ineffective, but actually make crime worse.

They are motivated by ideology and immune to reason.
 
Written By: kyleN
URL: http://impudent.blognation.us/blog
As if the Constitution’s meaning was based on Governor Blagojevich’s personal beleifs. Who does he think he is, a Supreme Court Justice?
What I love is that it’s been mentioned that Heller opens up "open carry", though it would depend on the State’s Attorney General...

Considering the antipathy the Madigan family (Mike is leader of the State Senate, Lisa his daughter is SAG) holds for Roddy (Mike’s started almost SCREAMING for the man’s impeachment from office), it’s quite possible we’ll have Open Carry just to spite our Governor...
 
Written By: Scott Jacobs
URL: http://
Since Miller wasn’t convicted, there was no conviction for the case to uphold.
Unfortunately, Justice Scalia made the same error on p. 49 of the majority opinion:
Nothing so clearly demonstrates the weakness of JUSTICE STEVENS’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreld shotgun in interstate commerce, in violation fo the National Firearms Act, 48 Stat. 1236.
I suppose that if either side had gotten that detail right, the other would have noticed and corrected it before any of the opinions went to press.
 
Written By: Xrlq
URL: http://xrlq.com/
Tell Mayor Daly that the Consatitution trumps his administrations policies.
 
Written By: shark
URL: http://
I suppose that if either side had gotten that detail right, the other would have noticed and corrected it before any of the opinions went to press.


I didn’t catch that. Good one.

Actually, I’m not really impressed all that much with Scalia’s opinion. As Sandy Levinson pointed out yesterday, both Scalia and Stevens elide past so much if the history on this issue, that there is some measure of intellectual dishonesty in both opinions.
 
Written By: Dale Franks
URL: http://www.qando.net
First, it was a 5-4 majority. We are one robed lawyer away from being told that the right to keep and bear arms is not a right at all.

Stevens wouldn’t even grant a Constitutional right to self-defense.
 
Written By: Aldo
URL: http://
All nine justices, and all their clerks, in working on opinions for the first 2nd Amendment case since US v Miller in 1939, seem not to know that Miller wasn’t convicted.
I dunno... Justice Scalia’s comment seems to just refference "two men"... I am, however, unable to remember the specifics of Miller, so maybe it was about two guys...
 
Written By: Scott Jacobs
URL: http://
I am, however, unable to remember the specifics of Miller, so maybe it was about two guys...
Yes. Jack Miller and Frank Layton
 
Written By: Dale Franks
URL: http://www.qando.net
Ah...

Sorry, just been reading the Court’s opinion and the two dissents, because a) the dissents are nearly comical and b) any opinion (be it majority or dissenting) writen by Scalia is just priceless...

He all but calls Stevens retarded...
 
Written By: Scott Jacobs
URL: http://
"Go screw" is essentially Mayor Daley’s response to anyone that disagrees with one of his wishes. I see absolutely no reason why he should shy away from a policy which has worked pretty well for him for 16 years or so.

The fun part about the Chicago gun ban is that members of our city government are routinely granted the right to carry a gun. Protecting the citizens from our government, indeed.
 
Written By: Greg
URL: http://

 
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