June 27th, 2008

Heller and the Supreme Court

With the caveat that I’ve not read the full text of the SCOTUS opinion on Heller, but am relying on summaries and articles about it, I will say that I agree that there is nothing in the Second Amendment that would indicate its protection of the right to bear arms should be narrowly limited to militias. But I understand that it is an issue that has been debated for decades, and that the closeness of the decision—another 5-4 vote—underscores not only the political leanings of the current Justices, but the complexity of the discussion.

I refer you to this panel in Reason for the articulation of various (mostly pro-Heller) views, or scroll down and see all the relevant posts of the last few days at Volokh.

My additional thoughts are that this SCOTUS decision underscores, as do so many others, the importance of the coming presidential election in terms of the future composition of the Supreme Court and other federal courts. The next president, with the help of what is promising to be a large Democrat majority in Congress, will be appointing quite a few new Justices and judges. Does anyone believe that a couple more liberals (or perhaps even one more) on the bench would not have had the almost certain result of a very different decision here?

14 Responses to “Heller and the Supreme Court”

  1. Grimmy Says:

    Every able bodied American man within the age limits is a member of the militia, whether he believe themselves to be or not.

    It is this militia that the draft is called from, and the legal underpinnings of a conscript draft.

    The “militias” that have been springing up are not the militia spoken of in The Constitution.

    The concept is to keep the government in check by a citizenry that wont put up with an unchecked gov. The citizenry has every right to have the arms and ability to provide the threat of violence that causes pathological liars and predatory politicos respectful.

    This is one of the major defining differences between a peasantry and free citizens.

    The issue of crime is an issue of crime. Take away the guns and the crimes just get committed with other tools.

    Punish the offenders, not everyone else because there are offenders.

  2. Grimmy Says:

    Bad edit job above, but…

    PIMF is for sissies.

  3. Daveg Says:

    Does anyone believe that a couple more liberals (or perhaps even one more) on the bench would not have had the almost certain result of a very different decision here?

    I’m going to go with “maybe.” I wonder how they dissenters would have voted had they known that their dissenting vote would have in fact been the majority vote. Knowing that the majority decision was going to find for an individual right, I wonder how many of the dissenting votes were simple posturing. After all, can Stevens really believe the Constitution is and was intended to preserve the powers of the legislating body and not the citizen?

  4. Tater Says:

    Does anyone believe that a couple more liberals (or perhaps even one more) on the bench would not have had the almost certain result of a very different decision here?

    Nope, but the problem is neither candidate is a conservative, and therefore will not choose conservative judges. Obama, expect more Ginsburg-types. McCain, expect more Kennedy-types. Gonna be one crappy election!

  5. Dave Moelling Says:

    The deference to the Supreme Court (and also the Supreme Courts or equivalents of the states) is new and troubling. Liberals like it because it reinforces the elitism of their current approach. Roe v. Wade was accepted by many people as somewhat of a libertarian issue even if they did not approve of abortion. If Heller had gone the other way (and based on the dissenting opinions) there may have been a start to toppling the SC off its pedestal. After all Andy Jackson told them where to go (and they were correct) in the Georgia indian land grab. Judges of any kind such as Sports Referees face the issue of respect every day. Stray too far from the rules and you’ve lost it all.

  6. SteveH Says:

    Liberals want guns banned because they know the caliber of citizenry they’re working hard to make a majority, lack the discipline to be a responsible gun owner. What else are we to expect from people who lack the discipline to even be responsible for themselves?

    Keep guns. Destroy liberalism.

  7. expat Says:

    Dave M,

    This deference to the judiciary is common in Europe. Here in Germany, the tendency is to add another right to the constitution and let the judges decide. It’s scary to me.

  8. Sergey Says:

    The wording of the Second amendment is a very strange, indeed. This is the most akward sentence in the whole text of the constutution. But if one asks the only right question about this conundrum – what Framers could have possibly intended to say? – the answer is clear: this amendment, as all others, was meant to defend citizens individual rights from government intervention. This individual right was firmly established in this time, so the original intent is hardly disputable.

  9. njcommuter Says:

    We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing’ approach. The very enumeration of the right takes out of the hands of government–even the Third Branch of government–the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future justices’ assessments of its usefulness is no constitutional guarantee at all.

    Judicial modesty, sung to the rafters!

  10. FredHjr Says:

    I understand the mentality of some of the dissenters, having once been a Leftist intellectual of sorts. People on the Left, especially lawyers and judges, take the view of history as a Hegelian march of progress, civilization, and socialization. So, they look at events and documents (like the U.S. Constitution) in terms of progress. In the minds of “the living Constitution” crowd, the U.S. Constitution is a wonderful thing that we sophisticates have to move beyond. It was an important moment in our history, not a defining contract with the people. In other words, what this means, for example, is that the 2nd Amendment is SO very 18th century. They consider it an artifact.

    This is why you have judges who now bring in legal traditions from other countries, eras, and institutions. Legal precedent is no longer anchored by our founding documents, but is a cobbled together line of reasoning that brings in alien policy and worldviews into our nation.

    Of course, since I’ve left the Left I no longer agree with a lot of its reasoning. But, I am not a lawyer and so some of the justices have written things which I do not understand. I like Scalia, because he writes in language we can understand and uses logic in a way that is honest and compelling. Justice Roberts is more elegant, but he is still basically understandable.

    I am a gun owner. I own a muzzleloader, a shotgun, a classic 30-30 Winchester lever action, a 270 scoped rifle, and a 9 mm Smith & Wesson pistol. I sometimes partake of deer season here in New Hampshire, but mostly I go to the local gun club I belong to and do target practice. The pistol is primarily to defend against home invasion. The southern rim of central New Hampshire is still rural, but more and more the denizens are moving up from other states south of here. Crime is inching up.

    I think there are layers to obfuscation employed in how liberals and Leftists articulate their opposition to guns. But, as you peel back the layers eventually you get to the last one – and it’s the one that the real hardcore Leftists will not publicly share with many people: they fear the ability of the people to overthrow them if they ever get power the way they want it. I know almost no one on the Left who knows how to use guns, knows military tactics, or has even served in the military. God help us if it ever came to it, because it would not be a pleasant thing. But if the people ever did rise up against a Left that has precipitated a crisis, most of the military and the police would be on our side. In a shooting war on our soil to restore the Republic the Left would be utter annihilated. And they know it.

  11. strcpy Says:

    “the answer is clear: this amendment, as all others, was meant to defend citizens individual rights from government intervention.”

    This is absolutely 100% true.

    Frankly, the idea that the second amendment is a collective right of the govt is stupid, both from a historical point of view and a contextual point of view.

    Historically the the founding fathers felt no need to protect the govt from the people, the whole idea is the the people are protected from the govt. Indeed we note that much of the constitution deals with how the citizenry can change it. As for a govt right to a standing military the founding fathers abhorred the idea of a standing military – they sought to limit the govt from having one. This is al readily written out in both the Constitution and the Federalist Papers – there is no need to try and interpret their feelings when they expressed them clearly.

    Further we note that at the time of their writing there was an argument as to include them or not. One side felt they were self evident and that by enumerating the people right later generations would feel they govt granted them those rights and can take them away. The other side felt that if they were not explicitly stated that they would have no real protection against being revoked. Unfortunately both side were right in their fears, however it is absolutely 100% clear that the bill of rights was always intended as a list of individual rights.

    Further from a contextual point of view we know that the whole Constitution is about limiting the govt. and protecting the rights of the citizens. The whole gist of the thing is that the govt is run by the people and they should be protected from a govt. One would then have to believe that the *only* line in there that isn’t that way is the second amendment and protects the right of the govt to form a military. We have read a right to privacy into the Constitution base on the context of the whole document (and I actually agree with that) but those same people ignore not only the obvious meaning but the only sane one based on the context of the document.

    In fact, though I can’t really say that I support the idea (I don’t think that they saw some of our weapons even in their wildest imagination), it is clear that the Founding Fathers felt that the citizenry should have *all* the same things the govt has along with the ability to overthrow it. I don’t think that they felt there should be “reasonable limits” at all. I think that the Heller case does a fine job of trying to walk that line and don’t have a problem with it, however given what the founding fathers ideas were it is crazy to think they didn’t see the second amendment as an individual right to own and operate weapons (note that the second amendment is about “arms” or weapons – not just firearms as it has come to mean in the last few decades).

  12. Tom Says:

    In its editorial of opposition to Heller, theWashington Post explains the 2nd Amendment was clearly intended to give states the means and the right to take up arms against a potentially tyrannical Federal government. (i regret no link to it, but my computer literacy is limited!). Very interesting for the Left to empower us to do just that! States’ Rights defended by the Left. Wow, let’s run with it.

  13. Thomass Says:

    Sergey Says:

    “The wording of the Second amendment is a very strange, indeed. This is the most akward sentence in the whole text of the constutution.”

    True… and (re: in addition to your point) also the Framers wrote books and had private papers et cetera. It is not hard to see what they thought it meant from these.

  14. Richard Aubrey Says:

    It would be strange if the Constitution itself, before the first ten amendments, had neglected to provide for military equipment and a military force. Did they forget and then decide to pitch it in with an amendment?
    Logically, this can’t be a matter of polishing up the basic document’s plan for defense of the nation.
    Has to be something else, and that would probably be somewhere in the area of what the words mean.
    But that’s just a guess.

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