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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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