VICTORY!!

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This is big.



Though the Devil is in the details, weapons are seen as a RIGHT. 5-4 decision (liberals decenting, of course).



As soon as decision is published I am sure it will be posted!

Writing for the majority, Justice Antonin Scalia said that an individual right to bear arms is supported by "the historical narrative" both before and after the Second Amendment was adopted.

The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home," Scalia said. The court also struck down Washington's requirement that firearms be equipped with trigger locks or kept disassembled, but left intact the licensing of guns.

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It's kind of a victory, except for the whole ignoring the 'shall not be infringed' part and allowing 'reasonable regulation'...

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While debate rages, don't be so quick to view this as a wholesale victory or a complete affirmation of your right.

It does start a long chain of lawsuits that will wend their way though the state and federal courts on restrictive laws and so on.

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Hello everyone-

New poster, but long time diligent reader. Given today's Supreme Court decision, I had to put this out!

I just read this in the WSJ.com,let's hear it forJustice Antonin Scalia:

"We find that they guarantee the individual right to possess and carry weapons in case of confrontation," Justice Antonin Scalia wrote in the majority ruling. "This meaning is strongly confirmed by the historical background of the Second Amendment."

http://online.wsj.com/article/SB121448371745506881.html?mod=hps_us_whats_news

Click to expand...

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Urgh it's gonna take a while to get a handle on all of this.

They failed to incorporate the 2nd with the 14th. They narrowly addressed self defense, they allowed "reasonable restrictions" although it seems that a license for a handgun (if a place requires that must be issued) etc... lots of good stuff, lots of not so good stuff.

Chicago and New York's gun bans are so going down.

In fact one may be able to make the argument this opens the door for national carry licensing, or at least national reciprocity. It may also open the door to compell shall issue CPL's in all states.

Sometimes I feel real glad Washington State already has such strong protections of the RKBA.

Oh yes and Libertas welcome aboard!

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Report : http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf

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sv_libertarian wrote:

It may also open the door to compell shall issue CPL's in all states.

Click to expand...

I have to disagree on this. The opinion states multiple times that DC must issue a license to carry a pistol in the home not outside of the home. But is does state that we have the right as individuals to protect ourselves in self defense in case of confrontation.

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Try this link: http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

MD

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Yeah Libertas, welcome aboard! Its about time!

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One very scary aspect of this decision is, as Rush expressed this morning, that four members of the Supreme Court, who are sworn to uphold the Constitution, voted essentially to delete the Second Amendment. The Constitution was upheld by only one vote. That is scary!

Also, don't expect the same results in the future after a democrat controlled Senate confirmsPresident Obama's nomination ofHillary Clinton to the Supreme Court.

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I'm in the middle of reading this opinion, in it's entirety, and half-way through it, ok 1/3rd, I find this gem:

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 unregis-
tered short-barreled shotgun in interstate commerce, in
violation of the National Firearms Act, 48 Stat. 1236. It is
entirely clear that the Court’s basis for saying that the
Second Amendment did not apply was not that the defen-
dants were “bear[ing] arms” not “for . . . military purposes”
but for “nonmilitary use,” post, at 2. Rather, it was that
the type of weapon at issue was not eligible for Second
Amendment protection: “In the absence of any evidence
tending to show that the possession or use of a [short-
barreled shotgun] at this time has some reasonable rela-
tionship to the preservation or efficiency of a well regu-
lated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instru-
ment.” 307 U. S., at 178 (emphasis added). “Certainly,”
the Court continued, “it is not within judicial notice that
this weapon is any part of the ordinary military equip-
ment or that its use could contribute to the common de-
fense.” Ibid. Beyond that, the opinion provided no expla-
nation of the content of the right.

Click to expand...

I read this with great interest. US v. Miller was a case in which Miller was found to have been lawfully convicted of carrying a short barreled shotgun. It appears that Scalia believes the SBS was not protected under the 2nd, because it's military purpose could not be established.

The way I read that opinion, then, is that any firearm which has a military purpose does fall under the 2nd. Being as M-4's and M-16's are the current standard issue firearm for our armed service, that would mean they fall under the 2nd and are thus an individually obtainable firearm.

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Haven't read the dissent yet, but finished the affirmation reading...

The Justices site (see below) that the arguement you are referring to could be made, but because those weapons are not common to the general public and would not be brought from home by a militia member, that they are no longer common weapons.

I find it slightly suspect thatthe Justices would use that arguement in that the reason those firearms are uncommon is that many states specifically prohibit automatic weapons. I suppose they could site (probably) low ownership percentages where it is legal to have a automatic weapon with a Class 3 license, but even in that instance the extremely high cost of the Class 3 license itself is prohibitive...

"It may be objected that if weapons that are most useful

[align=left]in military service—M-16 rifles and the like—may be[/align]
[align=left]banned, then the Second Amendment right is completely[/align]
[align=left]detached from the prefatory clause. But as we have said,[/align]
[align=left]the conception of the militia at the time of the Second[/align]
[align=left]Amendment’s ratification was the body of all citizens[/align]
[align=left]capable of military service, who would bring the sorts of[/align]
[align=left]lawful weapons that they possessed at home to militia[/align]
[align=left]duty. It may well be true today that a militia, to be as[/align]
[align=left]effective as militias in the 18th century, would require[/align]
[align=left]sophisticated arms that are highly unusual in society at[/align]
[align=left]large. Indeed, it may be true that no amount of small[/align]
arms could be useful against modern-day bombers and

[align=left]tanks. But the fact that modern developments have limited[/align]
[align=left]the degree of fit between the prefatory clause and the[/align]
[align=left]protected right cannot change our interpretation of the[/align]
right."

Click to expand...

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joeroket wrote:

sv_libertarian wrote:

It may also open the door to compell shall issue CPL's in all states.

Click to expand...

I have to disagree on this. The opinion states multiple times that DC must issue a license to carry a pistol in the home not outside of the home.

Click to expand...

It will certainly be a strong basis for attacking "May Issue" CPLs as they are pretty much only "enforced in an arbitrary and capricious manner".

What sucks is the decision apparently clearly rules out incorporation, so if your state constitution does not protect the right to bear arms, you might go from "may issue" to "no issue at all".

As far as that is concerned, glad I'm in Washington.

--

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arms_libertas wrote:

Haven't read the dissent yet, but finished the affirmation reading...

The Justices site (see below) that the arguement you are referring to could be made, but because those weapons are not common to the general public and would not be brought from home by a militia member, that they are no longer common weapons.

I find it slightly suspect thatthe Justices would use that arguement in that the reason those firearms are uncommon is that many states specifically prohibit automatic weapons. I suppose they could site (probably) low ownership percentages where it is legal to have a automatic weapon with a Class 3 license, but even in that instance the extremely high cost of the Class 3 license itself is prohibitive...

Click to expand...

It's circular reasoning. There are only about 165,000 registered MGs in a nation in which there are approximately 2.1 million total guns. Therefore, they are uncommon. However, they are uncommon because of the Hughes Amendment, which capped NFA registry of machine guns. So, they're uncommon because they're banned, and they're banned because they're uncommon.

As far as changing it though, the best we'll probably see is subcategorization of "machine gun" into"submachine guns", "automatic rifles", and "machine guns". The first two categories, if new ones were allowed, would become as popular as their neutered counterparts inthe "assault weapons" category; ARs, AK, MP5s, Uzis, etc etc. If owners of those weapons could have bought the full-auto version for a similar cost (it actually costs more in most cases to make the semi-auto version), I would bet money that 80% or more would have done exactly that. LMGs in the class of the M60 or M249, as well as heavier emplaced MGs, would be rare even if freely allowed. Evenin countries like Israel and Switzerland where the carry of automatic weapons is encouraged, you're not gonna see many guys with an M60 strapped to their back. As such, the last category of light/heavy machine guns would probably remain banned as they are "dangerous AND uncommon" as the opinion notes in describing regulations that would stand up to review.

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John Hardin wrote:

joeroket wrote:

sv_libertarian wrote:

It may also open the door to compell shall issue CPL's in all states.

Click to expand...

I have to disagree on this. The opinion states multiple times that DC must issue a license to carry a pistol in the home not outside of the home.

Click to expand...

It will certainly be a strong basis for attacking "May Issue" CPLs as they are pretty much only "enforced in an arbitrary and capricious manner".

What sucks is the decision apparently clearly rules out incorporation, so if your state constitution does not protect the right to bear arms, you might go from "may issue" to "no issue at all".

As far as that is concerned, glad I'm in Washington.

Click to expand...

That is exactly the way i am reading it and thinking some states might swing. They will have to allow for carry inside the home but certainly not outside the home. Unless that statement of carrying in case of confrontation could be construed as a confrontation anywhere.

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arms_libertas wrote:

Haven't read the dissent yet, but finished the affirmation reading...

The Justices site (see below) that the arguement you are referring to could be made, but because those weapons are not common to the general public and would not be brought from home by a militia member, that they are no longer common weapons.

I find it slightly suspect thatthe Justices would use that arguement in that the reason those firearms are uncommon is that many states specifically prohibit automatic weapons. I suppose they could site (probably) low ownership percentages where it is legal to have a automatic weapon with a Class 3 license, but even in that instance the extremely high cost of the Class 3 license itself is prohibitive...

"It may be objected that if weapons that are most useful

[align=left]in military service—M-16 rifles and the like—may be[/align]
[align=left]banned, then the Second Amendment right is completely[/align]
[align=left]detached from the prefatory clause. But as we have said,[/align]
[align=left]the conception of the militia at the time of the Second[/align]
[align=left]Amendment’s ratification was the body of all citizens[/align]
[align=left]capable of military service, who would bring the sorts of[/align]
[align=left]lawful weapons that they possessed at home to militia[/align]
[align=left]duty. It may well be true today that a militia, to be as[/align]
[align=left]effective as militias in the 18th century, would require[/align]
[align=left]sophisticated arms that are highly unusual in society at[/align]
[align=left]large. Indeed, it may be true that no amount of small[/align]
arms could be useful against modern-day bombers and

[align=left]tanks. But the fact that modern developments have limited[/align]
[align=left]the degree of fit between the prefatory clause and the[/align]
[align=left]protected right cannot change our interpretation of the[/align]
right."

Click to expand...

Click to expand...

I just read that part, and I would actually make the argument that between what you've quoted, and the part I've quoted, it could be used to make that argument.

The ONLY part I see which does might counter that argument is this:

We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits. Read in isolation, Miller’s phrase “part of ordi-
nary military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939. We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “

Click to expand...

Specifically, “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.”

But I think the argument could be made that the sole reason these arms are not common anymore is because of the NFA itself, and subsequent bans based on the NFA. I mean a 10,000 dollar pre-86 M4...come on. The only reason we can't own them is because of the high cost of ownership, due to artificially inflated prices. That doesn't mean they're uncommon to the time, since they're standard issue for our military.

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They may not be uncommon at this time but unfortunately they are uncommon for normal citizens to possess them.

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Fenty responds(5:12), sounds like another challenge afoot, but I'm still reading the opinion.

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BigDaddy5 wrote:

I'm in the middle of reading this opinion, in it's entirety, and half-way through it, ok 1/3rd, I find this gem:

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 unregis-
tered short-barreled shotgun in interstate commerce, in
violation of the National Firearms Act, 48 Stat. 1236. It is
entirely clear that the Court’s basis for saying that the
Second Amendment did not apply was not that the defen-
dants were “bear[ing] arms” not “for . . . military purposes”
but for “nonmilitary use,” post, at 2. Rather, it was that
the type of weapon at issue was not eligible for Second
Amendment protection: “In the absence of any evidence
tending to show that the possession or use of a [short-
barreled shotgun] at this time has some reasonable rela-
tionship to the preservation or efficiency of a well regu-
lated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instru-
ment.” 307 U. S., at 178 (emphasis added). “Certainly,”
the Court continued, “it is not within judicial notice that
this weapon is any part of the ordinary military equip-
ment or that its use could contribute to the common de-
fense.” Ibid. Beyond that, the opinion provided no expla-
nation of the content of the right.

Click to expand...

I read this with great interest. US v. Miller was a case in which Miller was found to have been lawfully convicted of carrying a short barreled shotgun. It appears that Scalia believes the SBS was not protected under the 2nd, because it's military purpose could not be established.

The way I read that opinion, then, is that any firearm which has a military purpose does fall under the 2nd. Being as M-4's and M-16's are the current standard issue firearm for our armed service, that would mean they fall under the 2nd and are thus an individually obtainable firearm.

Click to expand...

Your interpretation doesn't wash as they left the NFA in place so no auto weapons allowed.

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The incorporation issue could not have been addressed in this case. This was not a case involving a state thus had the court made a statement about incorporation, it would have been in dicta and would no be binding.

What is interesting, is that the court did not announce what level of scrutiny would be used to evaluate their constitutionality. Even under this decision, "rational basis review" would lead to many restrictive gun laws being upheld. "Strict Scrutiny" would lead to many of them being struck down.

Scalia mentions some of these things in a footnote and seems to be asking for more litigation.

The NRA filed suit seeking to strike down the Chicago gun ban 15 minutes after the decision was announced.