Category Archive 'District of Columbia v. Heller'
03 Mar 2010
The LA Times is predicting that the Supreme Court will ultimately rule in McDonald v. Chicago as it did in District of Columbia v. Heller, striking down the City of Chicago’s complete ban on the private ownership of handguns.
Reading the tea leaves is not very hard, since Justice Anthony Kennedy these days casts the deciding vote.
[D]uring Tuesday’s arguments, the justices who formed the majority in the D.C. case said they had already decided that gun rights deserved national protection.
Justice Anthony M. Kennedy said the individual right to bear arms is a “fundamental” right, like the other protections in the Bill of Rights. “If it’s not fundamental, then Heller is wrong,” he said, referring to the D.C. ruling, which he joined. Roberts and Justices Antonin Scalia and Samuel A. Alito Jr. echoed the same theme.
At one point, Justice John Paul Stevens proposed a narrow ruling in favor of gun rights. Two years ago, he dissented and said the 2nd Amendment was designed to protect a state’s power to have a “well regulated militia.”
Now, however, Stevens said the court could rule that residents had a right to a gun at home, but not a right “to parade around the street with a gun.”
A lawyer representing the National Rifle Assn. scoffed at the idea and opposed a “watered-down version” of the 2nd Amendment.
Scalia also questioned the idea. In his opinion two years ago, he described the right to bear arms as a right to “carry” a weapon in cases of “confrontation.” Such a right would not be easily limited to having a gun at home.
The justices will meet behind closed doors to vote this week on the case of McDonald vs. Chicago. It may be late June before they issue a written ruling.
13 Jan 2009
Eugene Volokh discusses U.S. v. Arzberger a case in which a defendant charged with possession of child pornography when released on bail would previously have automatically lost his right to possess firearms simply by virtue of being accused of a federal crime.
The federal magistrate found that, D.C. v. Heller having recognized the existence of a Constitutionally-protected individual right, Due Process comes into play, and it becomes necessary for the Government to establish the existence of a public danger of such a defendant engaging in violent actions using firearms before his Right to Keep and Bear Arms may be infringed.
The US Constitution has begun returning from exile.
20 Jul 2008
WUSA9.com reports that the District of Columbia is insolently evading compliance with the Supreme Court decision affirming an individual right to bear arms based on the Second Amendment by playing games with definitions.
Dick Heller is the man who brought the lawsuit against the District’s 32-year-old ban on handguns. He was among the first in line Thursday morning to apply for a handgun permit. But when he tried to register his semi-automatic weapon, he says he was rejected. He says his gun has seven bullet clip. Heller says the City Council legislation allows weapons with fewer than eleven bullets in the clip. A spokesman for the DC Police says the gun was a bottom-loading weapon, and according to their interpretation, all bottom-loading guns are outlawed because they are grouped with machine guns.
Apparently, Dick Heller has started filing petition signatures to get on the ballot to run for Eleanor Holmes Norton’s seat in the House of Representatives on the Libertarian Party ticket.
Heller, Duggan reports, was at the doors at 6:30 this morning. He did not bring his weapon with him as D.C. regulations require, however. He did raise his frustrations with the District’s continued ban on semiautomatic weapons. It’s that issue that city officials and gun rights advocates both say is likely to land the city back in court at some point.
But we’re burying the real news here. It seems that Heller may not have brought his gun with him to register, but he was armed with a load of candidate petitions, Duggan said.
Seems that Heller is planning to run for the House seat currently held by Eleanor Holmes Norton. Heller is seeking signatures to be on the ballot as a libertarian candidate.
A man identifiying himself as J. Bradley Jansen, who said he was Heller’s campaign manager, said Heller must get 3,000 signatures and has until the end of August to collect them.
Dick Heller registering his H&R revolver
Heller came back on Friday and registered a Harrington & Richardson Longhorn nine-shot .22 revolver. WaPo
DC residents can theoretically, therefore, still arm themselves with the top-loading Mauser C-96 Broomhandle semiautomatic pistol, the same gun Winston Churchill used on the dervishes at the battle of Omdurman in 1898.
The one in this 1:06 video is chambered in 9mm Parabellum. The original 7.63 Mauser cartridge is much hotter.
27 Jun 2008
Ilya Somin, at Volokh Conspiracy, advises Gun rights supporters not to rejoice too soon.
For many years, gun rights advocates have fought to persuade the Supreme Court that the Second Amendment guarantees an individual right to bear arms. That battle has now been won in Heller. Indeed, all nine justices (including the four dissenters) seem to agree that there is some individual right to bear arms that goes beyond a “collective right” protection for state militias.
However, the experience of the struggle for judicial protection of constitutional property rights suggests that recognition of the mere existence of a right isn’t enough. If the scope of the right is defined narrowly by courts, recognition won’t mean much in practice.
Read the whole thing.
26 Jun 2008
As predicted, Justice Scalia wrote the majority opinion in District of Columbia v. Heller, which was naturally decided by Justice Anthony Kennedy in his capacity as decisive swing vote.
On first glance, I would say that the Court’s ruling primarily represents a strong rebuke to intellectually farcical sophistry and the kinds of whimsical and creative legal analysis which divorce themselves from the Constitution’s historical background, the expressed views and intentions of the framers, commentaries on the Constitution, and the entirety of history before 1932.
Justice Scalia writes at length, and with ill-concealed contempt, for efforts to eliminate the individual right to keep and bear arms by facile manipulation of the prefatory “well-regulated militia” clause, happily following the jurisprudential practice of recent decades of including a thorough and comprehensive survey of the relevant history.
And he concludes:
There seems to us no doubt, on the basis of both the text and history, that the Second Amendment conferred an individual right to keep and bear arms.
But, no sooner does Justice Scalia arrive at his bold conclusion than he begins retreating from its implications and striving actively to limit its practical consequences.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. …
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those â€œin common use at the time.â€ 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of â€œdangerous and unusual weapons.â€
It may be objected that if weapons that are most useful in military serviceâ€”M-16 rifles and the likeâ€”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 Amendmentâ€™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 smallarms 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.
In the end, the ruling merely affirms the existence of the individual right to keep and bears arms, and strikes down the District of Columbia’s ban on handgun possession in the home and its requirement that lawful firearms kept in a home be inoperable. It specifically declines to address licensing requirements (which Heller failed to challenge). Insofar as the Court affirms a right of self defense, it has done so only with respect to one’s home.
The moderation of Scalia’s opinion is likely to make its power as a decision stronger rather than weaker though, and District of Columbia v. Heller signals a major reversal in the direction of Constitutional Law at the Supreme Court level.
26 Jun 2008
While we’re waiting for the Supreme Court decision in Heller, Larrey Anderson, at American Thinker, has a bit of fun applying ordinary language philosophy to the oh-so-inscrutable meaning of the Second Amendment.
It is depressing to imagine how a Court which finds execution by lethal injection for child rape violative of the cruel and unusual punishments clause of the 8th Amendment is capable of reading the Second Amendment.
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