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boomerang wrote:

HerbM wrote:What weasel language would you change from Scalia's majority opinion?

The whole thing about location, for one. If he used the example of prohibiting weapons in prisons I would see his point. But there's no logical or constitutional justification for prohibiting a brain surgeon with a CHL from carrying in a school at a PTA event or if she has to pick up her daughter at the school nurse's office.

Why weasel? I don't think the Roe v. Wade decision said it might be acceptable to restrict abortions near schools and churches.

Truthfully I think this part was ignorance, incompetence if anything, since this subject was not before the Court. There was no binding language here, just a disavowal that the decision would automatically wipe out any of this type of law.

When you think about this globally -- that's actually a pretty good sign since it tends to reinforce when he says that it is a right to bear ANY BEARABLE ARMS.

Like you, I am sure that in a perfectly logical world the school bans are not only unconstitutional but also counter-productive. They ATTRACT psychopaths rather than enhancing security.

Multiple Victim Public Shootings
JOHN R. LOTT Jr.
State University of New York - Department of Economics
WILLIAM M. LANDES
University of Chicago Law School; National Bureau of Economic Research (NBER) October 19, 2000

Abstract:
Few events obtain the same instant worldwide news coverage as multiple victim public shootings. These crimes allow us to study the alternative methods used to kill a large number of people (e.g., shootings versus bombings), marginal deterrence and the severity of the crime, substitutability of penalties, private versus public methods of deterrence and incapacitation, and whether attacks produce "copycats." The criminals who commit these crimes are also fairly unusual, recent evidence suggests that about half of these criminals have received a "formal diagnosis of mental illness, often schizophrenia." Yet, economists have not studied multiple victim shootings. Using data that extends until 1999 and includes the recent public school shootings, our results are surprising and dramatic. While arrest or conviction rates and the death penalty reduce "normal" murder rates and these attacks lead to new calls from more gun control, our results find that the only policy factor to have a consistently significant influence on multiple victim public shootings is the passage of concealed handgun laws. We explain why public shootings are more sensitive than other violent crimes to concealed handguns, why the laws reduce the number of shootings and have an even greater effect on their severity.

Lott, John R. and Landes, William M., "Multiple Victim Public Shootings" (October 19, 2000). Available at SSRN: http://ssrn.com/abstract=272929

...

VIII. Conclusion
Right-to-carry laws reduce the number of people killed or wounded from multiple victim public shootings as many attackers are either deterred from attacking or when attacks do occur they are stopped before the police can arrive. We are able to provide evidence for the first time that the harm from crimes that still occur can be mitigated.

Given that half the attackers in these multiple victim public shootings have had formal diagnoses of mental illness, the fact that some results indicate concealed handgun laws reduce these attacks by almost 70 percent is remarkable.

Differences in state right-to-carry laws are also important: restricting the places where permits are prohibited increases murders, injuries and shootings; more training requirements reduce injuries; and higher fees increase injuries and the number of attacks. The much greater deterrence that right-to-carry laws have for multiple victim public shootings than for other crimes like murder is consistent with the notion that a higher probability of citizens being able to defend themselves should produce a greater level of deterrence. The results are robust with respect to different specifications of the dependent variable, different specifications of the handgun law variable, and different control variables. Not only does the passage of a right-to-carry law have a significant impact on multiple shootings but it is the only gun law that appears to have a significant impact. While other law enforcement efforts -- from the arrest rate for murder and the death penalty -- reduce the number of people harmed from multiple shootings, the effect is not as consistently significant as for right-to-carry laws. Finally, the data provides no evidence of substitution from shootings to bombings and little consistent evidence of “copycat� effects.

KBCraig wrote:I would normally quote and interlace comments carefully for context, HerbM. But it's late, I'm tired, and I'm not sure what you're arguing about.

I said Scalia had to insert weasel language to get a majority. Stevie agreed. You said it was because of the realities of the case; I mildly disagreed, saying it was more about the realities of the current composition of the Court. I cited the minority opinion as an example of sitting justices' inability to read plain text.

Then you pointed out it was a MINORITY quote. "Well, duh!", as the teens say. Glad you're keeping up.

Beyond that, I really don't know why you're arguing with me.

What weasel language would you change from Scalia's majority opinion? The Minority opinion is not even competent.

You cannot blame Scalia for the minority wording however; that is illogical.

I am arguing that Scalia got it wonderfully right -- the more I read it the better it is. The only things I would improve (if I had magic powers) are beyond the scope of the case -- the Court's practice is to rule on what it before it, not some hypothetical. That's generally a good thing, or else WITHOUT EVIDENCE Scalia might have assumed that "sensitive place" or "registration" were Ok. He didn't assume either of those in anything with force.

He set up the core of the decision to make virtually every gun control law illegal -- and that is correct since none of them will pass strict scrutiny which has traditionally been required to infringe a right.

He carefully left strict scrutiny for later while demolishing Breyer's proposed non-standard "interest balancing inquiry" -- Scalia also sets up the decision to lead eventually and (almost) inexorably to strict scrutiny. During oral arguments, Chief Justice Roberts expressed some doubt that one of the tradional forms of review was even required. This didn't seem to be an attack on the 2nd Amendment per se but rather some philosophically intended attack on reading more things into the Constitution than are really there. There are no such standards in the Constitution.

I don't agree with Roberts on this -- stare decisis would seem to be necessary on something so well entrenched and so general -- how do you decide when and by how much a right can be infringed?

There must be some criteria, and it is likely best not to invent them ad hoc (Breyer's 'interest balancing inquiry' is essentially this) for every case.

We know that if I abuse my rights by abusing yours sufficiently that I can be halted, or even punished, so some limitations always exist on every right. My right to happiness does not mean I can step on your toe just because it gives me the giggles. Your right to property doesn't mean you can take mine or anyone else's and so on. There are some limits somewhere.

Where it usually gets interesting is when the state claims there is some general requirement to prevent undesirable behavior. Not just noise ordinances that prevent us from having a 2nd Amendment rally in a residential neighborhood at 2 AM, but serious issues like "can a parade permit be required?" (at all) or "must we give one to the odious but lawful KKK march?".

Strict scrutiny prevents those permits from being used arbitrarily and for all but the largest parades and public meetings. If we decide to conduct a firearms safety class in a hotel and rent a room suitable for several hundred people, no on can hinder us with assembly or parade permits if we have an attendance of 100 or so peaceful participants even if we proclaim support repealing local gun control laws.

The government cannot stop the exercise of our natural and fundament unalienable right to assemble, nor the natural and fundament unalienable right to keep and bear arms simply because they don't like our politics (in opposition to their policies) nor because they don't like our firearms.

I think this would allow such a meeting right now in Chicago were 100 people or so willing to become a test case. This always bothers me about American Constitutional law -- most of the time one must commit a crime to have standing to challenge such laws.

I think we are pretty well set for civil rights challenges on 2nd Amendment abridgments however. It is no accident that the first plaintiff in San Francisco is a gay resident of public housing who feels his life is threaten by both local crime in that housing and by his being gay, extra exposure to hate crimes.

KBCraig wrote:

stevie_d_64 wrote:

KBCraig wrote:Here's my overall feeling: the holding was correct, but all the dicta leading up to the holding constitute the weakest possible correct ruling.

I believe Scalia had to insert lots of weasel language to bring Kennedy (certainly) and Roberts (possibly) on board for a single 5-vote ruling.

"Nail on the Head" post of the day!!!
It's more about the realities of the current Court, not the details of the case.

If you cannot lay out at least roughly something that you would change in the decision then we cannot know what you mean. Given the facts of the Heller case, what specifically would you to change in the decision?

Remember in the following, that THE Majority Opinion is THE RESULT of DC v. Heller and the minority opinion which is not binding on any lower court.

KBCraig wrote: When a sitting justice can write this:
"The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
...when it's clear that's exactly what they meant by "shall not be infringed", then you have to worry about the state of constitutional law in this country.

That was in the MINORITY opinion which has no force in law and nothing to do with either Scalia or the reality of the decision.

I agree that the four Justices who signed off on that language proved their intellectual dishonesty and due to several amateurish FACTUAL errors their own incompetence (and that they didn't even supervise their clerks who likely made those mistakes), but none of this really weakens Heller nor can be laid at the foot of Justice Scalia.

The more I read DC v Heller the better I like it.

I haven't found ANYTHING above the level of allusion or hints that I would absolutely have to scratch out were I able to edit it (except perhaps to weaken or make slightly more ambiguous that "sensitive places" language just a little.) I sincerely believe that Justice Scalia used those allusions to appease Kennedy into concurrence WITHOUT having him bolt and write his own separate concurrence.

As it stands, we have a win AND a MAJORITY OPINION which is important in and of itself, since it casts NO DOUBT nor ambiguity on what the decision actually SAYS about the individual right, separable from militia service, of each American, to keep (own) and bear (carry) Arms.

stevie_d_64 wrote:

KBCraig wrote:Here's my overall feeling: the holding was correct, but all the dicta leading up to the holding constitute the weakest possible correct ruling.

I believe Scalia had to insert lots of weasel language to bring Kennedy (certainly) and Roberts (possibly) on board for a single 5-vote ruling.

"Nail on the Head" post of the day!!!

Given the realities of the Heller case, what specifically would you expect differently?

There will be much more work to do for the next 5, 10, or many more years, but this was about a 'giant' a step as this case would allow.

The particular case and defendants were chosen to maximize the chance of success and minimize the issues -- to create a CLEAN 2nd Amendment case in the Federal District of Columbia. It used no "criminals" and was focused SOLELY on keeping a handgun in the home to limit complexity and extraneous issues.


I have long claimed that automatic rifles are protected. The "militia phrase" sets the context that requires AT LEAST the protection of those arms normally issued to the individual infrantryman or the (paramilitary) police officer.

It's right there in the opinion too:

Majority Opinion DC v Heller, page 8:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

All bearable arms.


All bearable arms.

I think that Justice Scalia might have just SLIPPED that by. There is no quibble there. That is without qualification.

KBCraig wrote:Here's my overall feeling: the holding was correct, but all the dicta leading up to the holding constitute the weakest possible correct ruling.

I believe Scalia had to insert lots of weasel language to bring Kennedy (certainly) and Roberts (possibly) on board for a single 5-vote ruling.

This case reveals the lunacy of reliance on stare decisis. In a true case of first impression, like this one, there are no prior rulings to compare and weigh. Without guidance, the Court wandered timidly out of its comfort zone and blinked at the blinding light glaring off a Constitution unfiltered by judicial opinion; they hovered near the the mouth of the cave, eager to dart back inside at the first hint of danger or controversy.

Subsequent rulings won't have to suffer such anxiety: they won't have to rule "This is what the Constitution says," they can just say "This is what previous Courts have ruled."

Stare decisis has its place in statutory and tort law, where it can be relied on to assure equal treatment before the law. In constitutional law, it is ridiculous: the first examination of every constitutional question should begin with the plain language of the Constitution itself.

I believe you (KBCraig) are pretty much correct in the above but without sharing your lament (re: lunacy) on stare decisis since next time we can expect that as you say, they can get on with the law and ignore the given that the 2nd Amendment protects an individual right.

Once we reach this point, everyone will be able to argue, and hopefully they will take another step out of the cave, that as an individual right it must be treated approximately the same as other enumerated and essential rights that are both explicitly protected and long standing even prior to the Constitution.

At that point we need to demand (something like) strict scrutiny, whether they call it this or not.

Now that would be a win, the win we all hope to achieve, but for now, this was a great first step.

It is not quite a "ratchet" though, even though it is close to one. They CAN go back into the cave or just stay chained by fear around the entrance.

Our goal is get them on the outside and then to brick up that cave so that no future Court can ever retreat again.

About the only thing that could have conceivably (given reality) been better would have been for it to be 9-0. It really should have been but weakening further was likely not worth the danger and thus Scalia likely made the best choices available to him.

The ACLU will remain hypocritical since on no other right did they presume they would lose without ever making the argument -- and they made these arguments commonly for the most bizarre readings of the Constitution and for people where clearly despicable and admitted violent criminals and racists.

Now it is -- or rather would be -- a good thing to have some organization defend all the rights of everyone no matter how vile, but clearly when they eschewed the RKBA and the 2nd Amendment they confirmed that their are mere ideologue hypocrites.

BTW: There web site is not full of provable errors on this issue.

The experts agree (or are starting to do so as they read Heller) that incorporation (effect on the STATES) is not explicitly addressed but that it is (strongly?) implied.

Chicago and suburbs are IMMEDIATELY NEXT according the the NRA.

[Eugene Volokh, June 26, 2008 at 10:25am] Trackbacks
The Second Amendment and State and Local Laws:

The Heller decision of course only involved the Second Amendment's effects on federal laws (including laws of federal enclaves, such as D.C.). Whether the Constitution limits state and local gun bans -- which is to say whether the Second Amendment is "incorporated" against states and their subdivisions by the Fourteenth Amendment -- will have to be decided in a future case. The majority doesn't clearly signal its view on the question, but it does suggest that simply citing some late 1800s cases which rejected incorporation (at a time when incorporation was generally being rejected as to nearly all of the Bill of Rights) will not suffice. Here's footnote 23, on page 48 of the majority oinion:

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

Cruikshank's judgment that the First Amendment wasn't incorporated was of course reversed by "later cases" starting in the 1920s.

According to Tom Goldstein, “The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is. So today’s ruling likely applies equally to State regulation.�

03Lightningrocks wrote:Well shoot. I thought the ruling was a good thing. Now I read all this and I'm not so sure anymore. It is fun to watch the story on the different media outlets, each slanting the ruling to meet their own agenda.

It's a good thing. It is a very good thing.

It affirmed an individual right by all 9 justices (4 of which didn't agree with overturning the ban however.)

It disconnected the right from any requirement for belonging to a militia.

It said that banning pistols was not allowed just because rifles might be available.

It said that trigger lock requirements don't work either, i.e., you cannot require them to make the gun inoperable through a lock or disassembly.
(This does not necessarily mean the requiring locks to be available or to be sold with firearms is disallowed, or locked when not attended etc.)

It was about what we (those following the case closely) expected.

It was a big win -- it doesn't add any new restrictions. It removed a few. It moves the argument to what is reasonable and necessary and what is allowed to restrict an essential right.

I don't think we would agree with all those restrictions that MAY be allowed, but at least the argument has been moved radically.

The Annoyed Man wrote:

DParker wrote:

57Coastie wrote:Does anyone read this decision to change anything in Texas?

I certainly don't. TX law already seems to be predicated on an individual RKBA.

In the sense that the court affirmed DC's right to impose licensing and registration requirements for possession of handguns in the home, look for some Texas cities to try the same. Whether or not it would ultimately pass muster in a legal challenge, somebody is sure to try it.

I don't think they did this "affirmed DC's right" but rather presumed that it could be done without violating Heller's rights -- since this was not at issue it is not really covered.

They did IMPLY that such might be affirmed, but left the question open (as far as I can tell on a fast read).

I am also not finding any real guidance on INCORPORATION, are the states also prohibited from enacting such bans?

Others have asked, "how does this affect Texas" and the quick answer is that it doesn't today. It might be argued that a ban on open carry of handguns while allowing such for rifles is similar but that is something of a stretch and would take a court decision.

What has essentially happened is that they have protected the right for all law-abiding people for some legal purposes (presumably all) but then limited those protections vaguely.

Now we get to watch the DEFENSE attorneys try to use this to get the criminals (and innocent) off.

I still believe this will be as big as Miranda and eventually used similarly.

Pinkycatcher wrote: Here's where I can see something happening, where automatic weapons could be challenged, Miller happened in 1939, automatic weapons were in common use anywhere around the world, in any militia or in any standing army. In WWII, we used the m1 garand as our main weapon in common use for our army, automatic weapons were not nearly as plentiful so they can be argued they were not in common use. Now we use an M16 (variants) that is an automatic weapon, nearly every police force, and military force issues them out to every one of their members, that would be in common use.

See my logic? I can see this wording being very helpful, and am excited to see what might happen!

Yes, of course your reasoning is good. And the other half is that the government cannot logically ban something then claim the ban is valid because the object banned is not longer in common use (by civilians) DUE to that ban, but this decision implies strongly that this will work. (It doesn't say it outright but it comes close.)

This reading is intellectually dishonest -- but yours is not necessarily going to prevail without careful work.

...We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing� approach. 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. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing� approach to the prohibition of a peaceful neo-Nazi march through Skokie. ...

...The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. ...

...We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. 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. 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....

...We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing� approach. 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. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing� approach to the prohibition of a peaceful neo-Nazi march through Skokie. ...

The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different.

I too was wrong about Ginsbert to a degree -- they won't affirm, but they all agree that it is an individual right.

9-0 on that but only 5 to affirm overturning the ban.

stroo wrote:I just skimmed through the decision. It is about as bad as a good decision could be. On the good side, all of the justices agreed that the 2nd Amendment is an individual right and five of the justices agreed that the 2nd Amendment incorporated the right to self defense (this in fact appears to be the big argument between the justices). From there it goes to awful. All of the justice agreed that the right to bear arms can be significantly limited. The majority basically agreed that limits on carry in schools, purchasing requirements, bans of certain types of arms, and licensing requirements are permissible. From reading this, I think the majority would uphold an assault weapons ban. I think the only thing we got out of this is that handguns carried in the home can not be banned.

Overall this is a pretty awful decision. Not much to celebrate.

The opinion would forestall the AWB as previously passed and now the new proposal. It protects weapons in common use by the public and doesn't support banning one (important) class by allowing another.

It WOULD (and probably does) allow for the machine gun bans and automatic rifles, true assault machine guns.

Of course these are only "not in common use" because they are virtually banned.