Sunday, June 29, 2008

DC v Heller, or Why I Took So Long Posting

The Supreme Court finally turned out their verdict on the Second Amendment. So naturally, I waited until Friday to dig into the long-winded and critical decision. I managed to get through the entire opinion, written by Justice Scalia, while at work. After reading that legally long, heavily annotated, exceedingly tediously boring, and occasionally witty and scathing opinion (click here for crossed eyes(pdf file)), I understand why Dee is so enthusiastic about him. To quote one of the funnier parts of the opinion, where he's trying to clarify the term "keep and bear arms," Scalia writes:
It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.
After grinding through this, I got home with the kids and two days off. Between good weather and my tendency to get into games that take hours to play, I didn't get to the dissenting opinions. So Justices Stevens and Breyer got short shrift, as I paused writing this Sunday morning to very briefly skim their dissenting opinions (also punctuated by yet another Episode III viewing).

So let me get to the basic analysis and my always insightful opinion, which is about to be interrupted for lunch (and the occasional lightsaber battle).

Okay, I'm back. Let's go:

First of all, let's look back in the founding era. The Founding Fathers faced an king and country that sought to subdue them by disarming them and filling their homes with soldiers (thus the 3rd Amendment). When they created the Bill of rights, its purpose was to secure individual rights against a government too easily seduced by power. The Constitution, in securing those natural rights, sets them out of the jurisdiction of the government.

As for the wording of the Amendment itself, it is divided into two parts by the Court, the Prefatory clause (A well regulated Militia, being necessary to the security of a free State,) and the operative clause (the right of the people to keep and bear Arms, shall not be infringed.). The prefatory clause, while defining a purpose, does not limit the operative clause, which is the defined right. The use of a pistol (the common weapon) as a means of defense in the home (the common use), is the protected right in question.

And like other rights, it is limited by law to legal activities (murder by firearm being illegal), by protecting the rights of others (using a firearm to deprive another of rights is, of course, illegal), and by some regulation (gun laws). So the limitation is that, while the government can regulate many aspects of weapons, they cannot ban them outright or, by regulation, create conditions where the weapons are effectively banned.

The decision of the Court secures the individual right to keep and bear arms, subject to regulation by the state. Thus, the DC gun ban, which rendered the use of a pistol for self-defense in the home effectively illegal, was unconstitutional.

I will leave the effects of the ruling for another post. I've got some youngling slaughter to watch.


Beth said...

Had the court decided to allow the ban, then I would have had bumper stickers made that said:

"The Supreme Court decisions - Because it's not fair to only let the unborn be defenseless"

But they surprised me and ruled properly! Although seriously, it should have been a 9 - 0 ruling!!!

Toad734 said...

So where in the 2nd amendment does it discuss pistols? So you are saying any firearm is ok? And no, people in the 1700s didn't commonly have pistols for home protection, they had 4 foot long muskets which fired a lead ball once every minute or two.

And with the exception of the Patriot Act, you don't really have to worry about the Government coming into your house and repressing you.

Patrick M said...

Beth: I'm just glad I don't have to start building hiding places for my guns.

Toad: Let me quote me in answering you:

The use of a pistol (the common weapon) as a means of defense in the home (the common use), is the protected right in question.

By your rationale, every weapon, except a blackpowder musket, would not be protected. Because every pistol, every rifle, and every shotgun (including your 20ga) uses a cartridge system, which wasn't really around at the end of that century.

As for the government coming in to repress, you obviously forgot the weapon theft sanctioned by the government down in New Orleans.

Also, I'll be over with similar arguments on your post next, so consider yourself warned. I've just been excessively lazy. Kids.

Toad734 said...

I never knew about the weapon theft? I have no idea what you are talking about.

Yes, the 2nd amendment was written at a time where we had virtually no standing army and needed the citizens to form militias. Thats why we have the right to bear arms. Arms, to them, were large, not easily hidden, innacurate weapons designed to kill people of course, but not designed to kill specific people. Its why the British fought in rows; they didn't aim at a guy on the other side, they just pointed in the general direction and fired at the opposing line. Thats how those weapons worked. With todays weapons, you and I could take out an entire british regiment fighting with Musketts. They just never thought Ice Cube was going to be riding around with an AK-47 street sweeper in his car, it's not what they had in mind. That being said, sure society and technology has evolved and our law has to evolve with it. I am not saying I disagree with the actual decision, but I also don't agree with a hand gun ban. Now, I also don't think the hand gun ban was effective but I also don't think that more guns are going to save more lives, not even more innocent lives.

Patrick M said...

The police were confiscating weapons from law-abiding citizens in the wake of Katrina, thereby depriving them of a means of defense of their property. This was done under the guise of 'protecting' people. Go ahead and Google it.

The sad thing about Napoleonic tactics is that they lasted up to the Civil War. That's when technology permanently retired forming firing lines. That was something they didn't see coming either.

It should not be about dueling statistics when it comes to enumerated rights protected by the Constitution. After all, if the government can rule away one right, then they can eventually rule them all away. After all, there is a rationale for every law that restricts our freedom. How far is too far though?