Some Surprises, Some Disappointment

The Supreme Court Building, Photo by dbking

Supreme Court Photo by dbking

While many of us are happy to have the Right we cherish upheld and affirmed, as we always knew it should. Many will not be happy. There were some surprises in it too. It affirms that it is an individual Right that predates the Bill of Rights. Something that has been at the heart of the gun control debate for many years. The history lesson and logic that is outlined in this decision will be a topic of discussion for many years in law schools.

In Section 3 one of the paragraphs opens the door to interpretation that may have bearing on California law. Prior to Heller the Miller decision said the it (paraphrased) only protected militia type weapons. In the Heller decision it seems to leave the door open for the removal of the assault weapon ban in all states.

(Direct quotes from the court) …We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

Partial footnote 25 See United States vs.. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Perhaps we will regain the Right to black, ugly, non-politically correct, conspicuity protruding, semi-automatic firearms. Perhaps even the purchase real magazines again.

The meat of the verdict for Heller;

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.


Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s

law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74–75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address

the licensing requirement.

The court did not address licensing but did seem to accept it as long as it was fairly applied.

They also said;

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 judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

What does all this have to do with you and me? Well it means that we all have a Right, that has now been affirmed by the courts. It should change future legislation as well as roll back some others. Bans on firearms in public housing, like actions now being filed by NRA in San Francisco, that would protect a gay man who is living in public housing and claims he needs it for protection against hate crimes.

The restrictions and limits on transfers and those who can be denied the Right seem to be left intact. If you’re a felon or mentaly incompetant you are precluded from ownership. We will see some of the blanket bans as in Chicago & Morton Grove probably go off the books and Rights restored in the second city. The fallout will surely not be completely known for some time.

The greatest bonus is we now have a decision that we can balance our future on that is less vague and more concrete than we have had in many many years. Let the debates begin!


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6 Responses to Supreme Court Decision DC Vs. Heller, Majority Report

  1. avatar cook says:

    It is good that this debate has been cleared up.

    To bad 4 of the judges don’t understand the US Constitution.

  2. I fully agree.

    The minorty reports could be a post or two by themselves. However I really would have to reread it, again, to post it and I’ve been through it three times already. All in all I am fairly happy with what the majority said and is now, law of the land.

  3. The Right of the People to keep and bear arms shall not be infringed. A fairly definitely statement. A couple of things worth discussing however:
    (1) Teenagers can lose their right to drive….if
    they drink and drive and hurt someone.
    (2) Felons lose their right to secure firearms
    when they break the law.
    (3) LAW Missles, Bazooka’s and other Destructive
    Devices are restricted….not banned.

    Our great fear…in this decision…is that local governments will determine that a long list of firearms will become “Restricted”….and require very invasive rules, annual fees and add numerous reasons not to grant access.

    This battle is just beginning!

  4. R&A

    I think you may have just written the smartest thing you ever have. I’m impressed!


  5. avatar stephen says:

    R&A… a couple of differences
    - the right to drive is not guaranteed by the constitution.. driving is a privilege, not a right
    and anyone can drive a car on their own private property, no matter what license you have or don’t have
    - it seems to me, by my reading of the opinion is that the 2nd amendment should be read as the 1st .. regulations are fine, so long as they are reasonable and don’t intrude on the fundamental right itself.. so its ok to require a permit to march down the street, but its not ok to not establish fair rules for everyone to request and be approved for a permit…

    i imagine the next 30 years or so will test just how far these regulations can go, but by explicitly disjoining the right to bear arms with the militia, Scalia undercut the most obvious justification for egregious regulation

  6. avatar Michael Nutto says:

    Ron & Anna –

    You’re on the right track, with one small correction. Teens, as well as others, have the privilege of driving. While Americans have the right to move about the country, it is merely a privilege to do so by driving.

    Carl –

    Well done, and on only three readings too. I’ve been doing this for a while now, and I’m still not ready to fully parse the decision yet. And don’t get me started on the dissenting opinions, I’m going to need another Jameson before tackling them.

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