ILNews

SCOTUS makes history, shoots down gun ban

Michael W. Hoskins
January 1, 2008
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Answering a 217-year-old constitutional question, the U.S. Supreme Court issued a historic ruling this morning that the Second Amendment protects an individual's right to have a gun in his or her home.

The ideologically split 5-4 decision in District of Columbia, et al. v. Heller, No. 07-290, struck down a city handgun ban in Washington, D.C., and defined the scope of the gun rights amendment to the U.S. Constitution for the 21st century.

Specific to this case, the court affirmed a Circuit Court ruling striking down the city's 1976 law banning handguns and allowing only disassembled or locked rifles and shotguns. Heller, a security guard, challenged the law after police refused to issue a license allowing him to keep a handgun in his home for protection.

In a cumulative 157-page decision that included two dissenting opinions, the court dissected the Second Amendment's scope for the first time since 1939, and wrote a court document laced with many historic references, legal analysis, and caselaw citations.

The court analyzed the language that says, "A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

This ruling is the first time in almost seven decades the court has considered the Second Amendment's scope, though the ruling in U.S. v. Miller, 307 U.S. 174, 179 (1939), didn't directly deal with this interpretation of the language - meaning it's the first time since the Bill of Rights was ratified in 1791 that the court has taken on this monumental task.

Justice Antonin Scalia wrote for the majority that - despite times and gun varieties changing since 1791 and how the court is aware of the handgun violence problems that exist - the Second Amendment applies to modern society.

"Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security and where gun violence is a serious problem," he wrote in the 64-page majority opinion. "That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct."

Majority justices rejected arguments that the Second Amendment applied only to those arms that existed during the 18th century, pointing to caselaw on how the First and 14th Amendments also apply respectively to modern forms of communications and search methods. It applies to "all instruments that constitute bearable arms" and doesn't just apply to those participating in structured military organizations, the court wrote.

But the court wrote that "like most rights, the right secured by the Second Amendment is not unlimited," and used that to emphasize that it isn't casting doubt on long-standing bans on carrying a concealed gun or on gun possession by felons or the mentally retarded, and that laws putting conditions on gun sales and barring guns from schools or government buildings still apply.

Justices John Paul Stevens and Stephen Breyer dissented in their own opinions, noting that the majority limited state legislators from regulating gun control and no evidence outside of "historical narratives" leads to the conclusion reached by the majority that the constitution's framers intended to limit that action.

"I can find no legal basis for launching the courts on such a formidable and potentially dangerous a mission," Justice Breyer wrote, referring to the decision's potential to throw into doubt gun laws across the nation. "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Sixty-seven amici briefs were filed in the case, with 47 in support of Heller's Second Amendment right and 20 wanting a reversal to scale back the scope. Indiana Attorney General Steve Carter is one of 31 state attorneys general who signed an amicus brief in support of the individual right, arguing that the Second Amendment applies to the rights of individuals, not states. Another brief from Congress recognized 250 House of Representative members and 55 Senators who supported Heller, including five of nine Indiana representatives but no Hoosier senators. Those included are: Representatives Dan Burton, Steve Buyer, Joe Donnelly, Michael Pence, and Mark Souder.
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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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