So I’ve just finished reading Scalia’s opinion in D.C. v. Heller (my apologies to my current employer), and I think my punt analysis was close to the mark. Yes, the D.C. gun ban went the way of the buffalo, based on a sophisticated analysis of the role of guns in society.
The decision states that the weight of historical research supports the position that the right of law abiding citizens to secure their other rights through force of arms is guaranteed by the Constitution. The D.C. gun ban failed because it included “the absolute prohibition of handguns held and used for self-defense in the home.” (Being churlish for a moment, I wonder what will happen if the citizens of the District decide to use their new found gun right to secure their right to vote?)
Other than that finding however, (which I grant is significant) not a whole heck of a lot seems to change in terms of the regulation of firearms under the police powers granted to the state. The decision expressly notes that “like most rights, the right secured by the Second Amendment is not unlimited.” It goes on to note that
nothing in our opinion should 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.
and
we think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.
So Big Show’s dream of rocking himself to sleep while cuddling an AK-47 are probably not right around the corner. Keep hope alive buddy!
It seems to me that this has just opened up the court system to another 30 years of regulations and lawsuits, trying to flesh out the boundries of what constitutes appropriate regulation outside of a complete ban. Finger printing? Registration? Licensing requirements? If none of these prevent a law abiding citizen from using a firearm in a lawfully contemplated manner (e.g. home defense), is that a problem?
As I mentioned before, I’m sure this will be hotly debated, so have at it.
I know that Dr. Bombay is working on a piece about the Court’s ruling in the child rape death penalty case, Kennedy v. Louisiana, which you can read here, but I wanted to get out ahead of him before his communist propaganda saps and impurifies all of our precious bodily fluids. (Ed Note: bodily fluids reference.)
The Supreme Court in this case basically stated that five Justices of the Supreme Court are better at determining the will of the people of the United States than Congress and the state legislatures are. This is the kind of judicial activism that makes people disgusted with the judicial branch.
I have a real problem with the the legal arguments behind this opinion. Kennedy’s reasoning seems tautological - no one has been executed for these crimes in 40 years, and only six states have enacted child rape capital punishment laws. He uses these facts as a means of justifying the argument that society has decided child rape should not be punished by the death penalty. This is a ridiculous conclusion, given that it was the Court’s jurisprudence that was the reason behind the amount of time since the last execution, and the Court’s dicta in Coker v. Georgia, 433 U.S. 584 (1977) that suggested that the death penalty for any crime not involving the death of the victim would probably not pass constitution muster, made states hesitant to go through the long process of creating a child rape death penalty law - why go through the process if the Court will likely strike the laws down anyway?
Determining whether society’s morals have evolved on capital punishment is not a role for the Court. It certainly shouldn’t be a part of any Constitutional anaylsis framework. It’s a question for Congress and the state legislatures. The Supreme Court here substituted their own morality for the views of the American people. They have now made it effectively impossible to impose the death penalty for any cases that don’t involve the death of the victim. That is a decision that should have been made by the elected representatives of the people themselves, not the Court.
So tomorrow, the Supreme Court is expected to issue its findings in D.C. v. Heller, the first substantive review of Second Amendment rights in over 70 years. Legal nerds that we are, we’re more than a little curious as to what the Court is going to conclude. While the decision will no doubt be endlessly debated here over the next couples of days, I’m going to make a prediction right now.
They punt.
I figure the D.C. gun ban is toast. I’m also guessing that since the Supremes realize that the total elimination of any sort of gun regulation would be highly problematic, they are going to figure some weasel out of it. The decision will include some sort of grand pronouncement about the Second Amendment representing and individual right, and some sort of nebulous statement as to how that doesn’t preclude the state from regulating everything. This (of course) will continue to be endlessly litigated. One important caveat. Scalia is expected to write the opinion, so who knows? He may mandate that every citizen car a broadsword.
Please note that if they do toss any regulation, we’ll be raffling off the Official Fight the Hypo Stinger Missile starting Friday.
A tip of the hat to The Commissioner, who brought to my attention that today the Supreme Court, got one right. Specifically, they declined to hear without comment Major League Baseball’s appeal of a November ruling from the 8th Circuit stating that the 1st Amendment trumped baseball’s right to rob us.
From 1994 through the end of 2004, C.B.C. Distribution and Marketing Inc. (which runs this website) had a license from MLB to run a fantasy site. Following the expiration of the Collective Bargaining Agreement in 2005, the Player’s Association licensed to a shadowy organization called Major League Baseball Advanced Media, L.P. the exclusive right to use the player’s likenesses and stats “for exploitation via all interactive media.” Continue reading ‘CKBL 1, MLB 0.’
Justice Scalia’s recently did his best Kimbo Slice impression on Justice Stevens in his concurence in Baze v. Rees, applying a torrent of blows that takes the entire myth of civility on the High Court and chucks it out the window. As a follow-up to our previous discussion regarding the effect of judges on the development of law and social policy, friend of the Hypo and CUA alumni Mojo challenged my manhood by asking me to defend Stevens from Scalia. (He was encouraged by the Sherpa who loves a good brawl). This school yard fight took place in the comments of another post, and I’ve relocated the proceedings here. Continue reading ‘Scalia’s Got a Steel Chair!’
Dr. Bombay is convinced that I’m going to walk in one day and, much to his delight, burn my Right Wing Conspiracy Membership Card in front of our Torts class. That’s not about to happen, but several beliefs of my conservative brethren do give me pause.
Since BigShow has joined in the fray here at Fight The Hypo and since the Supreme Court is in the middle of considering its first Second Amendment case in decades I thought I’d begin the painful process of revealing my drift from certain tenets of modern conservative orthodoxy (to the extent one can “confess” to something pseudonymously anyway).
Let me start with a gross generalization… why is it that the very people who support limits on First Amendment rights oppose limits on Second Amendment rights? It’s as if some say, “No, you can’t burn that flag, but here’s an AK-47 to protect yourself and, in the meantime, hunt some deer.”
Say what? Hopefully we’ll hear from our Second Amendment friends on this, but hear me out…
Continue reading ‘Why Is The Second Amendment Different Than The First?’
