Thursday, June 26, 2008

It's a Heller-va Ruling--and it's not what it should be!

Today the Supreme Court made history by FINALLY addressing the meaning of the Second Amendment.

In case you live under a rock, or on another planet, here's the Second Amendment to the United States Constitution:

"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.”

Pretty simple, right? Look at the grammar:

Subject Clause: "the right"
Modifying subject prepositional phrases: "of the people", "to keep and bear arms"
Verb Clause: "shall not be infringed".

That's pretty straightforward: the right of the people shall not infringed. That's commonly referred to in libertarian circles as the "individual right" perspective.

In contrast, there are some who think the amendment applies to a militia or a group of people, and not single persons. That's commonly referred to in authoritarian circles as the "collective right" perspective. Libertarians commonly refer to it as "bullshit."

So what did the Supreme Court do today? Well, to hear the LameStream Media tell it, the Court upheld the individual right perspective.

And to some extents they did. Here's the first sentence of the actual holdings:

"1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

So far so good.

But, wait a minute, all is not as it seems. Note that was Section 1 of the holdings. Now, here's Section 2:

"2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons."

WTF is this?!? The Court in this section contradicts itself! "shall not be infringed" means exactly that: no infringements--no limitations. Yet here they say the right is not unlimited. It has infringements!

So, once again, in the tradition of Kelo and Raich, we have the Supreme Court engaging in Orwellian doublespeak: black is white, up is down, "public use" is "public purpose", "intra-state commerce" is "interstate commerce", and now, we can new to the list, "shall not be infringed" is "may be infringed". Is that bullshit or what?

Look at the list of allowed infringements:

Possession by felons. Considering that these days the legal defintion of a felon is much more than a hardened criminal who robs, rapes, or kills, this infringement is ridiculous. You want to keep them away from felons? Then fix what a felon actually is, and actually lock them up and throw away the keys!
Possession by the mentally ill. These days the definition of mentally ill has expanded more than the definition of a felon. Mental illness is not just for rubber-room candidates anymore, so this infringement is also ridiculous. Fix the definition to mean the criminally insane, lock them up, and throw away the keys!
Carrying in "sensitive" places. No, they don't mean with a cocked hammer in the front of your waistband. They mean schools ("think of the children!"), government buildings ("we must protect our oppressive bureaucrats from the public they piss off!"), airplanes ("pass the box cutters!"), and so on. In other words, the Killing Fields. Didn't 9/11, Virginia Tech, and Columbine teach them ANYTHING? (I leave out prisoners in prisons for obvious reasoning--they have forfeited this right in the first place!)
Conditions and Qualifications on commercial sales. This means FFLs, gun show loopholes, background checks, and all that meaningless garbage. Come over to my house later so we can ignore this crap while I buy your rifle.
Dangerous and unusual weapons. Well, the first term is redundant. Weapons are SUPPOSED to be dangerous! As for unusual, what's that? An XP-38 Space Modulator? A rocket launcher? A suitcase nuke? An angry Tazmanian Devil? The Airborne Laser? A Super Soaker, Wrist Rocket, Daisy BB gun, rubber band gun, or a paintball gun?

Note two things on this list: the Looney Tunes references in the infringements (but I repeat myself!), and the fact that criminals and terrorists can, do, and will ignore any and all of these infringements at will.

And there's one more infringement in Section 3. See it?

"3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. "

Yep, the licensing part. The Court naively assumes that a license is not an infringement, mainly because Heller wimped out on that point at oral arguments, which outraged those of us who believe in RKBA. Police departments in general don't like to grant licenses or CCW permits because they mistakenly think only their guys should be the armed ones--never mind that that mentality fosters an attitude of arrogance, corruption, and brutality, and greatly improves one's chances of suicide-by-cop.

But the Court in Section 3 also pointed out two other things.

First, that the trigger lock and disassembly requirements are unconstitutional, because in that state the purpose of self-defense cannot be fulfilled. They got that one right. No criminal is going to wait for you to assemble and load your gun, and no criminal is going to wait for you figure out how to get off the trigger lock. In those cases, you're dead because you couldn't defend yourself (unless you beat the crap out of the criminal with the locked-up gun or gun parts!).

Second, they pointed out that a total ban on handguns is a prohibition on a class of arms, and that fails constitutional muster. That also means banning any other class of arms is also unconstitutional by extension. Note this contradicts part of the infringements listed as OK above for "dangerous and unusual weapons"! This includes machine guns, so-called assault rifles, and so on. Yep, the machine gun ban is lifted by implication.

So this ruling is not what it is claimed to be.

Yes, the Second Amendment is officially an individual right.
No, it can be infringed, despite the plain wording.
Yes, the Supreme Court are a bunch of hypocritical fools. They refer to the plain language on one hand when referring to the individual right part, but then turn around and ignore it when looking at "shall not be infringed."

So, once again, the Supreme Court screwed up. What they should have ruled was this:

"The Second Amendment says that individuals have the right to keep and bear arms, without any restriction by government. But that right also includes the right to self-defense, so if you are packing and start shooting up the joint, you better hope your insurance is paid up, because your life will quickly end by return fire. Learn to shoot straight and accurate and for crying out loud, if you feel depressed, angry, frustrated, homicidal, suicidal, or just ready to snap, be responsible, put the gun away and get some help!"

Section 2 is a travesty. Shame on the Court for being unable to read plain English.

We are back to the age-old question: "What part of 'shall not be infringed' don't you understand???"

P.S. The Incorporation Cluse of the 14th Amendment makes this apply to the states as well. This makes perfect sense since a state cannot deny a Constitutional right anyway.


Ladygaura said...

First question I have. Does the find of unConstitutionality on a whole class of weapons also apply to wholesale bans on double-edged blades such as exist in many towns here in CA?

The Mudslinger said...

Probably by implication, but it would take a lawsuit and a court to admit that a blade is an "arm".

Angela Keaton said...

You can check out coverage on Heller. Short and painless.

The Mudslinger said...

From Third Party Watch:

MikeB said, with my comments interspersed:

"Specifically, Mr. McCain has promised to appoint more judges in the tradition of Roberts and Alito."

That's scary. We don't need more judges like them. We need more judges like Jim Gray and OW Holmes.

"I believe Bob Barr could be trusted to appoint justices about which libertarians could be excited."

I don't because any judge Barr or any third-party President would appoint would never get a confirmation hearing.

"Personally, I don’t believe John McCain’s promise to do so holds much water."


"In the case of Supreme Court justices, ‘conservative’ is more to be understood to mean ‘strict constructionist,’ ‘originalist’ or ‘constitutionist’—someone who will aggressively adhere to the word and spirit of the constitution with a careful eye toward intent of the founders."

Not so. The original intent of the Founders was that A) Government exists by the consent of the governed, B) The rights of the people, including the right to give and revoke that consent, are superior to the powers of government, C) those powers at the federal level and limited, few, and enumerated, and D) the ultimate first and only duty of government is to protect the life, liberty, and property of each of the People. "Conservative" judges don't do that if their political views don't match any of the 4 above. Neither do "liberal" judges. That's why you get conservative judges voting against habeas corpus and liberals voting against the second amendment.

"Such a justice will seek to rule according to what the constitution says, rather than according to the spirit of the times or some other subjective standard."

Haven't seen that yet. The Constitution doesn't mention the Internet, either. Is that free speech (videos) or free press (blogs), free assembly (groups), or what? The "spirit of the times" you refer to is called the changing of society and if the Constitution is to remain intact, then it has to change with it. What has happened is that rather than amend it for these things, the legislative definition has expanded (easier to do) and has required more definitions and interpretations from the bench. That's the consequence of doing that way, for better or worse.

"Such a person will avoid legislating from the bench. (This is libertarianism by definition)"

_All_ rulings are legislating from the bench, because they either defer to Congress in their infinite (lack of) wisdom, or they have to define and clarify the terms that Congress doesn't put into the legislation that is needed for it to make sense and pass constitutional muster. That's what "in dicta" is all about. The difference is that when they rule the way one side doesn't like, that side calls the judges "activist" and "legislating from the bench" while the other side says they are exercising "judicial restraint" and "interpreting the Constitution." Then a ruling goes the other way and the choruses exchange messages...

"Mr. Roberts and Mr. Alito are precisely the kind of SC justices libertarians should enthusiastically support. The liberal justices like Kennedy, Souter, and Ginsburg regard the Constitution as a ‘living document’, which is code for ‘We’ll interpret it to mean anything we want.’"

Kennedy is no liberal. He is a moderate. And libertarians want neither conservative nor liberal judges. We want COMPETENT ones. Neither liberal nor conservative judges are competent as long as they put their political agenda above the law. Most rulings that happen should not defer to Congress. They should toss the laws and tell Congress, "please define terms better, because this law makes nonsense without them."

"As libertarians, this is exactly what we should strenuously oppose. The
D.C. vs Heller decision handed down Thursday is an excellent example. Three other justices joined Roberts and Alito in correctly finding that the Second Amendment does in fact protect an individual’s right to own a gun for protection."

You didn't read the holdings, did you? Read Section 2 where the Scalidiot does a Kelo on "shall not be infringed". Read Section 3 where he says that licensing is not an infringement as well.
See, where I explain this in more detail.

"As libertarians, we should applaud the five justices (four of whom are originalists) who got this one right! Freedom advances for a change! Long live the U.S. Constitution! May America again find her libertarian roots"

They got it only partially right. This is what happens when they legislate from the bench: "shall not be infringed" is now "may be infringed", just as they made "public use" become "public purpose" (Kelo), and "intra-state commerce" become "interstate commerce" (Raich).

Section 1 and part of Section 3 of the holdings in Heller was not a victory of judicial libertarianism. It was a classic case of Stopped Clock Syndrome. Section 2 and the other part of Section 3 prove that point.

Had this been a true Second Amendment victory, "shall not be infringed" would have been upheld instead of flipped.

The Mudslinger said...

UPDATE: As predicted, the DC cuty nazis are denying gun registrations in spite of the ruling, and are even impounding firearms and doing ballistic tests while the registration is "processeed" (and ultimately denied):

Source: Washington Post 7/16/08 (

District Gun Registration Starts Tomorrow
D.C. police will start the gun registration process at 7 a.m. tomorrow, when it opens an office at police headquarters at 300 Indiana Ave. NW.

It is the start of the 180-day amnesty period in which residents may register handguns they have had illegally, or guns from other states.

An officer from the gun unit will meet the applicant at the door and take temporary possession of the gun to ensure safety at headquarters.

Officers will tag the gun and run ballistics tests before returning it to the owner. Paperwork indicating that registration is in process will be provided.

About 14 days later, after an FBI background check, the gun will be officially registered.

And then there's this on Heller himself:

Source: Reason Hit & Run, 7/17/08 (

The other day I wondered whether the District of Columbia, which ostensibly is trying to comply with D.C. v. Heller, would impose such burdensome restrictions on gun ownership that it would end up back in court on the losing end of another Second Amendment lawsuit. It's worse than that: The district won't even let Dick Heller, whom you may recall as the plaintiff in the case that led the Supreme Court to overturn the D.C. handgun ban, register his handgun. As I feared, the district's position is that all handguns that accept magazines holding more than 12 rounds—meaning "all bottom-loading guns," according to a local news report—are prohibited under D.C.'s ridiculously broad "machine gun" ban. So even though Heller's pistol is a semiautomatic with a seven-round clip, it might as well be an Uzi as far as the district is concerned.

Heller deserves this for conceding on the licensing laws at argument, admittedly.

For the rest of the gunowners, if you get your gun back, immediately change the barrel. better yet, don't register it. by running ballistics on impounded guns, under teh claim of looking for matches for old crimes, they are also building a ballistics database. The downside is that if your gun is involved in a crime, even if you aren't (lost or stolen or borrowed), you become a suspect. Guilty until proven innocent, anyone?

Anonymous said...

I agree that the U.S. Supreme Court made a foolish ruling which cannot be allowed to stand.
We have to demonstrate against the total incompetence of the minority and majority Justices in this case.
Those people should be ashamed of themselves for coming up with a ruling which doesn't make any sense at all despite the fact that by making a twisted turn the 5 co-conspirators said that the Amendment grants an individual rights to posses firearms, something that we already knew without their misinterpretation.
But in order to please their political bosses through Scalia, they made sure that people shouldn't rejoice too much because, nothing really will chance,as millions of people remain prohibited anyway.
Where in hell the Second Amendment says that certain people should be excluded? Nowhere!
Yet, the Supreme Court has spoken but out there the tyranny isn't changed until we all get together and stop it once and for all.
15 years in jail for possessing a bullet or a firearm without committing any crime? Is this a Republic? It's time for a Revolution against oppression.