Heller decision..deeper analysis

2nd amendment scrutiny established in Heller.


Quote: The core issue of "judicial scrutiny" is now established -- better than we had dreamed -- in what will be known as Famous Footnote #27 (p56). Laws impinging on the Second Amendment can receive no lower level of review than any other "specific enumerated right" such as free speech, the guarantee against double jeopardy or the right to counsel (the Court's list of examples).

This is a tremendous win, and overlooked in all initial reviews I've seen. Attorney Mike Anthony was the first to spot it, way to go Mike. "Strict scrutiny," which many folks sought, is a term without formal definition that could prove problematic. I was hoping for a test of some sort and got more than I hoped for. By recognizing 2A as a "specific enumerated right" the majority ties 2A to the rigid standards and precedents of our most cherished rights. That's as strong as there is. Very clever indeed.
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Critics and anti-rights advocates are almost gleeful at the Court's acceptance of Mr. Heller's request for registration and a license to carry his gun in his own home, as long as the terms aren't arbitrary or capricious. Agreed this is a weak and unsavory intermediate step with potential for abuse, while on the way to greater freedom than D.C. currently has. It has a very dangerous potential for abuse that will be exploited. Antis will try to imply that registration and licensing are more than OK, they are the new standard. This is completely false:
-- It is not a national requirement, it's a response to a specific request.
-- Heller's request applies specifically to his case, at home, in D.C., to be acted upon by D.C. for its residents.

-- Because RKBA is now recognized as a "specific enumerated right" (a phrase you should start using), laws related to it will be subjected to stringent standards like those protecting freedom of speech, protection against double jeopardy or the right to counsel (among the most safeguarded rights we have).

-- Registration and a license to practice free speech would obviously never be permissible, so Mr. Heller's request should hold little sway, if any, outside the context of his "prayer" (the Court's word) for relief from the onerous disability he suffered as a D.C. resident. Anti-rights lawyers and legislators will try to argue otherwise, but the ammunition is piled high in the pro-rights arsenal. Our argument is compelling, do not yield. To wit again:

[MegaGlide]

To summarize, w00t!

[MrSurly]

Interesting analysis indeed. I read the article linked, as I have been reading RKBA articles prodigiously over the last week.

The pdf of the SCOTUS decision can be found HERE

The points that are in the favor of RKBA are many, including (perhaps preeminently) the one posted above. Other points never to be overlooked again:
1. the right is an Individual Right;
2. the right pre-existed 2A...the Constitution didn't create it, the Constitution limits what the state can do about it.
3. the right to bear includes function.
4. the right to bear includes self defense.
5. the right to bear includes the right to USE.
6. the right specifically INCLUDES HANDGUNS
7. the right is NOT limited to 18TH century arms.
8. the right is NOT UNLIMITED.

9. WE WON! but it will never be over, of course.

There are so many claims and arguments from the past that have been summarily decimated here that I couldn't list them all. ("only hunting guns are OK" comes to mind)
This is a fabulous ruling. Its not perfect but its far more empowering than I ever expected.

In reading the ruling I was struck by the extent to which Scalia took Stevens, Breyer, et al to task for their tortuous reading and their illogical conclusions. Rather than the purely clinical, pedantic, impersonal point/counterpoint that was expected, I was amused by what seemed somewhat personal attacks in reference to the arguments of the "petitioners". I got the idea that Scalia sort of biatch-slapped Stevens in a way, to wit:
"Some have made the argument, bordering on the frivolous,..."pg.8

"Stevens points to a study<the Linguistics amicus>"
Scalia then destroys the cited brief for its slanted selective reading of facts, calling it "irrelavent".pg.15

"Stevens uses the same excuse for..."<further linguistic analysis>
and Scalia states:"That analysis is faulty"and "is unknown this side of the looking glass"pg.15
Scalia shows the illogic of the argument by giving an example of its extended application...
He then characterizes the result thusly:"worthy of the mad hatter".pg.16
"Stevens thinks it significant that..."followed by: "other than that erroneous point,Stevens brought forth absolutely no evidence.."pg.31

"Steven thus relies on the proposition <snip> unsupported by any evidence.."

"Stevens' equating of <these two sources>"
"betrays a fundamental misunderstanding of a court's interpretive task."pg. 32

I thought the ALICE comments were especially delicious!


Yes, its a good day.

[BillyB]

Finally, some support for our rights as American citizens from the Supreme court! I don't think we would have gotten this decision if Al Gore or John Kerry had selected the past couple of SCOTUS appointees......

[MrSurly]

Billy, you're right about that. The guy that started all this (Levy) started it 5 or 6 years ago. Justices Roberts and Alito were not even on the court then! I'm not even sure (from interviews) that Levy had an interest in which way the court went....his interest seemed to be that he couldn't stand the 'grey area' and wanted it resolved. Heller wasn't even part of it then, he was selected by Levy from a pool of complainants. Its really a bit scary to look at the process and realize that it wasn't driven by a plaintiff but by an attorney. Especially when you learn more about the attorney. When he started this, I guess he was assuming that Bush would appoint conservatives to fill any vacancies, but damn...what a seeming crap shoot!
I wish people could see from this just how precarious our position is, vis a vis the SCOTUS, and consider that heavily when voting for POTUS!

[MrSurly]

Why didja bump this, Ricky? Because, dammit! Its IMPORTANT!
Everyone should consider (again) just how bloody important the make-up of the court is and how the make-up is controlled or how its lost for years and years. I'm hoping that the narrowness of this landmark case will help drive home the point. So, read it again.

Huge! I tell ya!!