Well, i just read Heller for the first time because it was assigned for my Constitutional Law class.
here are some of the important things i took from it...I already wrote an official brief of it so im going to keep this to the form of ramblings which i find much more inefficient and fun.
My favorite quote: "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"
---why i liked it: the dissenters wanted an "interest balancing test" to determine whether gun owners rights are infringed by various state and local laws. this would be disasterous to gun rights because 99% of the time, balancing tests, in all their forms lean heavily toward the state over the individual. Property taking and emminent domain cases are a perfect example of this. when the government stops short of taking your land from you and using it for its own purposes (such as passing laws that dont let you build on your land) there are almost no cases in which the government is forced to pay you because a balancing test is used. many commentators often call it "a presumption of validity for the statute"
Least favorite quote: "the term "arms" was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity"
-----reason i dont like it: First of all, I think its wrong. Back at the time when the constitution was written, military arms and civilian arms were essentially the same. even as late as the civil war the boys in grey went to war with their rifles from home that they used for hunting and they were essentially the same as the rifles the boys in blue were using. Additionally, this leaves the door wide open for another ban on sport utility rifles because, at least as far as any court would be concerned, our AR's, AK's were probably specifically designed for military use and employed in a military capacity, thus they are not constituionally protected.
Other Thoughts:
Another quote i really liked was on the historical background of the 2nd amendment whereupon the court stated essentially that the 2nd amendment wasn't for personal protection from eachother but also from the government to "secure the ideal of a citizen militia, which might be necessary to oppose an opressive military fore if the constitutional order broke down". although i wish i could say the "court stated" without having to say "court stated essentially".
-I dont like the emphasis placed on the popularity of handguns as part of the reason why the 2nd amendment covers them. the court spends quite a bit of time talking about "guns regularly used for law abiding purposes" and how handguns are "the weapon of choice for home defense". This possibly opens the door for governments to argue that certain guns are not popular for certain purposes and thus are not open to the protection in heller. for example if a new gun comes out that is somewhat different than existing common use guns, the state might be able to outlaw it because it is not in common use.
-additionally the Court holds that the states and most likely congress can regulate gun storage to prevent accidents, and "the constitution leaves DC a variety of tools for combating the problem of handgun violence including some measures regulating handguns". these phrases leave an important door open. the only limit they set is that governments can not eliminate handguns (and probably any other particular genus of gun) altogether. however that doesn't mean that the state cant limit us to say...single shot bolt action handguns and limit caliber to .22 and under.
I know the holes i have seen for gun rights in this case seem sort of silly but these are just arguments i have made of a cursory reading of this case and i am extremely biased towards gun rights...imagine what kinds of arguments some pro-left winger-hot shot Brady Campaign attorney can spin.
Overall, i am extremely happy that the court found this way, even if the opinion is not bullet proof and does not necessarily even maintain the status quo because of the various limitiations it leaves on the table. I like that the court makes it clear that the 2nd amendment doesn't only apply to militias but to individuals and we have a lot more protection for our rights than we did before this case. but keep in mind that it was a 5-4 decision and the court will only be getting more and more liberal. Liberal judges dont stick to precedent like conservative judges do.
A liberal judge would have no problem spinning some sort of silly argument essentially overturning this case in practice although not explicitly. That is why this country has gotten more and more liberal over time and not more and more conservative. a conservative judge follows the law, a liberal judge makes new law. unfortunately a conservative judge even follows the legal fiction that a liberal judge will spin.
the moral of the story is, this case is a big victory for us and for america, but we still need to keep pushing...hard! we need to keep contributing to the NRA and other groups so they can pay their lawyers to fight for our rights while this case is still fresh, so lower courts will feel more inclined to follow it rather than try to weasel around it and the Court still has the same people in it. We have the momentum right now, lets not sit on our hands, we need to keep pushing foward.
to quote tom hanks pretending to be jim lovell in apollo 13, "imagine if christopher columbus had never returned to the new world" we need to return to Heller and open it as wide as we can!
Nice analysis. If you aren't already a member of NRA, you should join up and read what the ILA is doing. There is an article on page 106 of the latest issue of the magazine about how cases invoking Heller and clarifying/strengthening the position are moving rapidly through the courts -- if you'll pardon the oxymoron.
Something of great importance but that is not really all that exciting in a gun guy way is the revival of the SCOTUS interest in the campaign finance reform act that prevents organizations like NRA from speaking about particular candidates within rather large time windows prior to an election. The case is Citizens United v. Federal Election Commission. When it was first heard in March of this year, the Obama team asserted that the Bipartisan Campaign Reform Act gave incumbent politicians the power to criminalize signs, DVDs, books, and postings on the internet which showed them in an unfavorable light in addition to the already banned TV, Radio, and paper news media advertising.
SCOTUS has scheduled the next round for September, before the new term begins. The court has specifically asked the parties to bring arguments which will address the constitutionality of the entire concept of laws criminalizing the use of corporate funds to pay for political speech, which BCRA specifically supports.
It could be an interesting autumn.
__________________ Teach
Taxpayers voting for Obama are like chickens voting for Colonel Sanders.
that does sound interesting, those political finance reform acts are the biggest slap in the face of the constitution going on right now, but judges have managed to say that the 1st amendment "press" only applies to the printed word, and the government controls the airwaves.
Teach
