June 26, 2008


Individual Gun Rights Protected, Top U.S. Court Says (Greg Stohr, June 26, 2008, Bloomberg)

``The enshrinement of constitutional rights necessarily takes certain policy choices off the table,'' Justice Antonin Scalia wrote for the majority. ``These include the absolute prohibition of handguns held and used for self-defense in the home.''

Scalia said the ruling doesn't cast doubt on concealed weapons bans or laws barring handgun possession by convicted felons and the mentally ill. Still, the decision may make gun restrictions in Chicago, New York City and other cities more vulnerable to legal challenges.

The court divided along now-familiar grounds, with Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Anthony Kennedy joining Scalia. Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented, and Stevens read from his dissent on the bench.

...as befits the only explicitly limited Right.

Posted by Orrin Judd at June 26, 2008 9:50 AM

Funny that the last remaining part of the real Nixonland, not the imagined conservative Nixonland of Mr Epstein, happens to be the leader of the anti-conservative reactionary wing of the court...

Posted by: Peter at June 26, 2008 10:41 AM

"the only explictly limited Right"

I'm not at all sure what this is supposed to mean, but of course the 2nd Amendment "right" is fundamentally different from the 1st Amendment rights in particular. Those quotation marks are not meant to denigrate anything, but to point out that the 1st Amendment involves natural rights that all humans have everywhere but the 2nd Amendment is specifically to ensure against the gov't overstepping itself and violating the liberty of the people (as is the right to vote). Imagine, purely hypothetically, that all gun manufacturers shut themselves down completely voluntariy so that guns were unavailable--no ones rights would be violated in that case. There's no corresponding analogy for the 1st Amendment rights.

Posted by: b at June 26, 2008 10:53 AM

Except that the weapons that would be needed to "ensure against the gov't overstepping itself and violating the liberty of the people", are the ones that can be banned - automatic weapons. The Taliban and the Iraqis have full auto AK-47's, artillery, mortars, RPG's, etc; and they can't defeat the US army. We are not going to be able to do it with semi-auto, bolt action and lever rifles.

Posted by: Brandon at June 26, 2008 12:42 PM

Actually, the opinion make it clear that the right is not explicitly limited; the preamble phrase is explanatory only and in no way limits the operative phrase.

Posted by: tjw at June 26, 2008 1:01 PM

"Expressly limited"--See whether the opinion of the Court even suggests that the prefatory words of the Second Amendment amount to larguage of limitation. Some ofus must face up to having been as wrong as Obama on this issue. As Nelson from The Simpsons would put it, "HA-HA."

Posted by: Lou Gots at June 26, 2008 1:02 PM

Brandon: You're 100% right, of course, but that's still the reason the 2nd Amendment was in there. Lots of people live in Congressional districts that are not just practically noncompetitive due to gerrrymandering, but are literally noncompetitive since one party often doesn't even bother to run a candidate. That doesn't change the fact that the vote is intended to give people leverage over gov't through the ballot box.

Posted by: b at June 26, 2008 1:20 PM

Yet the majority limited the Right in a way no other has been. Imagine a free speech case saying that a state could limit your right to conceal a speech on your person. They read the Right as explicitly limited.

Posted by: oj at June 26, 2008 1:49 PM

We could do it with flintlocks. The Taliban's problem is marginality, not weaponry. If a majority of Afghans just picked up rocks and sticks we'd leave.

Posted by: oj at June 26, 2008 1:52 PM

If you don't choose to speak your 1st Amendment rights aren't being violated. All of the amendments are just to limit the Federal government, If any were natural rights they'd not need to be delineated.

Posted by: oj at June 26, 2008 1:55 PM

oj: Seriously, dude, you need to clarify who you're responding to when threads get longer than a few comments. Otherwise there's zero chance that your uber-pithy comments will make any sense, compared to the 10% chance we normally have...

Posted by: b at June 26, 2008 2:03 PM

I like the way Orrin insists that people provide a name on their comments and then refuses to address them by that name.

Posted by: Bryan at June 26, 2008 2:08 PM

pith·y –adjective: of, like, or abounding in pith.

pith -noun: to destroy the spinal cord or brain of.

Yeah, that sounds like a like a good description of some of OJ's comments.

Posted by: Brandon at June 26, 2008 2:34 PM

The First Amendment is limited by the courts.

Posted by: Benny at June 26, 2008 3:00 PM

Here it is; go get it: http://www.law.cornell.edu/supct/html/07-290.ZS.html

Nothing beats the smell of napalm in the morning.

Listen: the history of the debate on this issue is the history of bald-faced, no-sex-with-Monica, shameless lies. To this very day, the gun-grabbers are sputtering that the Miller case stood for the collective right model, which, as the opinion of the Court notes, it clearly did not.

The fact that so many people who knew better, who knew how to read an appellate opinon, repeated the lie again and again is a great disgrace. It means that truth and professional standards meant less than nothing to all those charletans.

We need to take a long look at what the right to keep and bear arms has meant back in the early history of the nation, and what it still means today. It meant then and means now that the right of self defense is not conditioned uopon the approval of lo Stato. In the old days it meant that civil society was not dependent upon the government for protection from domestic insurrection and from the merciless savage tribes, and it means the same today.

Contrast this with Britian, where not only are the citizens disarmed, but are threatened with criminal prosecution if they should ever defend themselves against a criminal. With us if you must defend yourself, you may defend yourself, whether or not the state approves of the "root cause" of the violence directed against you.

Posted by: Lou Gots at June 26, 2008 5:11 PM


Posted by: oj at June 26, 2008 6:17 PM

Why? Refer to Hobbes' conception of the social contract. We grant certain power to the state in exchange for protection, for "law and order." If the state cannot or will not provide what is its purpose for existing, we are absolved of its claim upon our submission.

The idea of the United States Constitution goes Hobbes one better. We have granted only limited power to the state, and have kept the right to self-defense and therefore to the means of self-defense in our own hands. It never comes to Hobbes' breakdown, because the state never had the European-style monopoly on the use and means of force.

Let us consider why it is that the party of "change," those who, like Catiline, lust after new things, wishes to deny civil society the means of self-defense. Wouldn't we suppose that all those "power to the people" types might favor the right to keep and bear arms?

Not at all. It is not freedom, they want, but slavery with themselves as the masters. The Right to keep and bear arms is a great bulwark against the state using the criminal classes as its tool to crush out our freedoms.

Just harken back to how the carefully orchestrated "urban unrest" of the 60's and 70's was wielded as a tool to increase the role of government, to set up whole realms of so-called "entitlements." The last thing the statists want to hear is that we do not need them, in the last analysis, to protect ourslves from their "socially friendly elements" That's why.

Posted by: Lou Gots at June 26, 2008 7:52 PM

To the contrary, we regularly call upon the state (which is just ourselves) to put down those claiming the "right" of armed defense--the Klan, militias, etc. Indeed, the American right to keep and bear is so that we may defend the Staste from individuals, rather than vice versa. It is precisely for this reason that guns can be permitted to individuals.

Posted by: oj at June 27, 2008 6:42 AM
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