Heller ruling out of SCOTUS today?

[stevie_d_64]

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!!!

[HerbM]

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?

[KBCraig]

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?

It's more about the realities of the current Court, not the details of the case.

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.

[HerbM]

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.

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.

[KBCraig]

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.

[HerbM]

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.

[boomerang]

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.

[HerbM]

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.