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Supreme Court affirms firearms are "an individual right"

From the decision in in D.C. v. Heller, via On Deadline:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved.


2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition--in the place where the importance of the lawful defense of self, family, and property is most acute--would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

Those who derided the Court's decisions on Guantanamo detainees and the death penalty as horrible will, presumably, feel this is the greatest decision ever and, perhaps, vice versa.

The full decision is here [PDF]

Update: Congratulations to Eugune Volokh on being the first citation. Writing for the majority, Justice Scalia cited Volokh's Commonplace Second Amendment (more) on page 6. As one commenter noted:

...[I]t has to be said that this is one of the most impressive 180 degree turns ever to occur in Supreme Court jurisprudence, and it was largely spurred by Professor Volokh's writings.


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Comments (22)

Difference between this dec... (Below threshold)

Difference between this decision and the last two.......this one SUPPORTS the constitution.

How did the decision on det... (Below threshold)

How did the decision on detainees in Guantanamo run afoul of the Constitution, BGT? Seems that was a pretty sound legal decision, especially in light of the fact that no evidence exists to support Scalia's assertion that released detainees have returned to the battlefield (not that that ought to have played any role in SCOTUS deliberations).

No evidence exists that Git... (Below threshold)
The Listkeeper:

No evidence exists that Gitmo detainees have returned to the battlefield?

What kind of crack have you been smoking? A few dozen have been identified as having returned to the battlefield.


One of the signal character... (Below threshold)
DJ Drummond:

One of the signal characteristics of the Bill of Rights, is that the rights applied to individuals, not the collective.

That is, the State has no rights, they belong to individual People. The State holds power, granted by the de facto consent of the governed. The 2nd Amendment is recognition that if/when the government refuses to accept limits to its power and actions, or where the government is unable/unwilling to meet obligations for the defense of lives and persons' safety and commonwealth (not to be mistaken for Society or 'the common good' or somesuch nonsense), individuals have the right to use force as is needed to that end.

Bob Barr just released a st... (Below threshold)

Bob Barr just released a statement expressing his support of the Heller Decision - calling it "One of Court's most important rulings on behalf of liberty". See it at http://www.bobbarr2008.com/press


Chris Cox from NRA announce... (Below threshold)
The Listkeeper:

Chris Cox from NRA announced on Glenn Beck that the Chicago ban is next.

Why, then, has the DoD disa... (Below threshold)

Why, then, has the DoD disavowed the assertion, Listkeeper? Scalia's argument--that the detainees not currently guilty of anything might cause some future harm if released--is a) not based on reality, and b) irrelevant.

You're right Kevin, it all ... (Below threshold)

You're right Kevin, it all depends on whether one likes the outcome of a particular decision. If you do, then the decision is well-founded in constitutional law. If you don't, it's just another power grab by unelected judges ignoring the Constitution in their attempt to impose their values on society.

Steve, most the time I agre... (Below threshold)

Steve, most the time I agree with your assertion that it depends what side of an issue you are on. Or it depends whose ox is being gored. But this is directly related to an amendment to our constitution. All lovers of freedom should welcome this decision. ww

All lovers of freedom sh... (Below threshold)

All lovers of freedom should welcome this decision.

Absolutely agree. As DJ has aptly pointed out, this is a step in the proper direction that the Constitution guarantees the rights of individuals, as opposed to the absurdity of collective rights.

This is a very good day for freedom.

Release all of those in GIT... (Below threshold)

Release all of those in GITMO. They will return to their terrorists activities (as the 35+ who have been identified,caught-killed did) and the U.S. military will kill them. Start following the Geneva Convention to the 'T', no uniform in combat, battlefield trial, shot on the spot. Problem solved.

I see this as the first bat... (Below threshold)

I see this as the first battle won, but not the war; The fact still remains that a citizen still must jump through numerous unnecessary "hoops" to exercise his second amendment rights.

There is certainly a need for a "no gun" list, and those whose rights to gun ownership have been revoked through due process would be on that list. There is, however, no constitutional precedent for firearm registration, extensive background checks, concealed carry licensure, waiting periods, and the like. These things, too, must be addressed in the same light as this decision.

Basically SCOTUS rulings no... (Below threshold)

Basically SCOTUS rulings nowadays depend on Kennedy and whether or not he decides to go by what the Constitution says or how he feels. In Kelo he decided to feel that "public use" meant "public benefit". Re: gitmo he decided that the Constitution was meant to apply to non-citizens who have never set foot in the US. For this one he apparently decided to read that 'the right to bear arms' means 'the right to bear arms'. There's nothing more to be read into it, conservatives can simply enjoy that on this day in this case Kennedy decided to follow the Constitution, not what he thinks the Constitution could or should say. Without tipping one more justice there will never be a way to predict how the court will rule at this point, it depends too much on Kennedy's wishywashiness. However, if you must have something to guess by, guess that Kennedy will vote his liberal side except when the issue has the potential to cause an absolute uproar...can you imagine if they had said that the Constitution allows for the government to take your gun based on a line intended specifically to keep the government from doing things like take your gun? Maybe he learned from seeing how people reacted to his allowing the government to take your home for an office building.

As a lifetime NRA member, I... (Below threshold)

As a lifetime NRA member, I am very excited about today's ruling from SCOTUS. I have been following this case for quite some time. I was very anxious to see how far SCOTUS was going to go in applying their affirmation of the second ammendment to existing federal laws that limit gun ownership. In particular I was curious if they were going to rollback both the National Fireams Act of 1934 and the National Gun Control Act of 1964.

Next up, the opressive gun ownership laws in Illinois and the Peoples Socialist Republic of Kalifornia...

error correction:...... (Below threshold)

error correction:
...that should read National Gun Control Act of 1968...

I'm not seeing where DoD ha... (Below threshold)
The Listkeeper:

I'm not seeing where DoD has disavowed statements that Gitmo detainees have returned to the fight... Seeing a lot where they've pointed out that they HAVE returned, but nothing that shows they haven't. Perhaps hyperbolist is lying.

<a href="http://thestar.com... (Below threshold)
The Listkeeper:
Yesterday we're told that t... (Below threshold)

Yesterday we're told that the STATE can't execute child-rapists.

Today we're told citizens can arm themselves.

Oh...I get it!!

"Today we're told citize... (Below threshold)

"Today we're told citizens can arm themselves."

No, today we are told the Constitution means what it says. A citizen cannot be forced to disarm themselves by government fiat. As in "the state shall pass no law" abridging the right to bear arms. You have the right to or not to bear arms - your choice - not the states.

There is a difference.

The gun grabbers have alrea... (Below threshold)

The gun grabbers have already changed tactics. The emphasis is now on controlling ammunition. You can buy all the guns you want, but WE control how much ammunition you can purchase and WE want to know who you are, where you live, what caliber your puchasing, give us a thumbprint and WE are going to slap a "transaction fee" on your purchase.

Wonder how the MSM would treat such laws if they were applied to NEWSPRINT and BLACK INK?

Listkeeper, thanks for prov... (Below threshold)

Listkeeper, thanks for providing a link to a story from May 2007. You're on the ball!

Here's something you ought to have a look at, re: detainee recidivism. (I think the word "recidivism" is out of place here, as it implies that these people did something wrong in the first place. While they might have, there was no proof, as evidenced by their release, and thus in the eyes of the law, they hadn't done anything wrong.)

"can you imagine if they ha... (Below threshold)

"can you imagine if they had said that the Constitution allows for the government to take your gun based on a line intended specifically to keep the government from doing things like take your gun?"

Exactly--The next revolution would have begun. It may still one day come.

Great ruling not only keeps the "right of the people", but also without trigger locks and other constraints that would prevent self defense.






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