Thursday, June 26, 2008

Heller v DC: We Won! -- sort of

By now you are probably aware that the Supreme Court of the United States (SCOTUS) has, on the last day of the 2008 session, rendered a decision on Heller v DC.

The short version is, we won. SCOTUS has ruled that the 2nd Amendment is an 'individual right', which supports their decision that the restrictions of firearms possession by the District of Columbia is an unconstitutional burden on the rights of the individual, and must be struck down.

The 157-page decision is available on the SCOTUS BLOG website here. I have converted the PDF file to a MS-WORD document, which you may download here. Unfortunately, the software (Able2Extract) is an imperfect tool, so you may be disappointed that some of the verbiage is illegible. However, it permits slightly more ability for the reader to copy and manipulate/paste the text, so I provide it as a courtesy. The file size, at 350KB, is about twice that of the original PDF (175KB).

I've only read the first dozen pages; I have a lot of reading to do so I can't provide you with a detailed analysis at the moment. I suspect that a lot of other folks are going to perform that service for you, so the best I can do at the moment is to give you my initial impressions based on secondary and tertiary sources.

Those sources include radio discussions, ABC, Michael Bane (both his blog and DRTV), Kim, the SCOTUS BLOG, Yahoo!, and Xavier.

One link (from Xavier) provides early comments from Illinois Junior Senator Barack Hussein Obama, who in a video interview states that the 2nd Amendment defines an "individual right" to own a firearm, and also "... that right can be limited by sensible, reasonable gun laws." [emphasis added]

Reasonable Restrictions

I think we will see a lot of new gun-control laws hustled through state legislatures and city councils in the immediate future. These laws will focus on 'reasonable restrictions".

For example, the city of Chicago is even now talking about "Registration" and "Licensing" and 'mandatory training to make sure the gun-owner understands the city's gun laws'. (The single-quotes here indicate that this is a paraphrase.)

The District of Columbia is already talking about limiting handgun possession to "one gun only", which barely skirts the limits of the SCOTUS decision ... but, apparently falls well within the context upon which the decision is necessarily based.

The SCOTUS consideration is not based upon the wide platform of ".. the right to keep and bear arms shall not be infringed", you see. It is based upon the platform of current DC gun laws: no handguns allowed, any legal firearm must be kept unloaded and either disassembled or rendered inoperable by means of a gun lock device.

SCOTUS only says that you can't keep people (non-felons, adults, not insane) from owning a handgun, and you can't render it inoperable to the point where it is not immediately available for self defense in the home.

The decision does not state, or imply, that you can possess a firearm outside the home. It does not state that you can have multiple firearms. It does not state that the municipality (etc.) cannot mandate registration and licensing procedures. It does not state that ... well, there are a lot of scenarios which are not even yet envisioned.

What it DOES state is that Richard Heller was precluded from having a handgun in his home for the purpose of self defense. Chicago District laws forbid owning an unregistered firearm. Chicago District laws forbid registration of a handgun. That two-pronged legislative restriction absolutely violated Richard Heller (and anyone else in a similar situation) from keeping a handgun for home defense.

That is the essential consequence of the SCOTUS decision.

But wait, there's more!

Another result of the deliberations is that the 2nd amendment is acknowledged to be an "individual right", as are all other rights in the Bill of Rights. The court was careful to make this point, and that is A Good Thing.

The court also careful to limit its decision (as stated earlier) to the situation defined by Heller; very few 'other' situations are addressed.

For example, the egregious 1930-something Miller decision was cited, and upheld. Why was it 'egregious'? The case involved a sawed-off shotgun which was deemed by the district(?) court to not be covered by the 2nd amendment in that it was 'not appropriate to the military', ignoring the fact that 'trench guns' (sawed off shotguns) had been used by the U.S. Army during WWI. Miller, the defendant, did not attend the trial, nor did a lawyer representing him. The U.S. Government attorneys presented the only arguments. Without a dissenting argument (which may have presented the "Trench-Gun" defense), the judge could only rule on the evidence presented, resulting in a decision which only represented a single side of the question.

Because the scope of the question did not include MILLER, SCOTUS apparently determined that this earlier decision could not be questioned. I have no idea why it was mentioned in the Assenting Opinion, but it is there.

I have heard (on the Lars Larson radio show) ... but have not yet found evidence to support it, that the question of whether the 2nd amendment represents an individual right was accepted unanimously (9-0) by SCOTUS.

However, the basic question of Heller was only accepted 5-4 ... whether the DC laws were unconstitutional.

There is, and will continue to be in the immediate future, much discussion about why 4 of the 9 judges declined to accept the Heller defense. When we have read the Dissenting Opinion, we will certainly have a better understanding of this. Early reports (especially the Rush Linbaugh radio show) made much of this.

I think ... knee-jerk reaction here; not a studied, reasoned evaluation of the available information ... that we must consider this a battle won. We have not won the war against gun control, and while the battle was important, it does not necessarily mean that we have won complete acknowledgment of the rights affirmed by the 2nd amendment.

The opposition (I'm tempted to speak in terms of 'satanically inspired groups who would keep us submissive under their thumb', but that would be just wrong in so many ways), are determined to infringe upon our rights. They have not yielded an inch. They will not yield, and we can expect to be assailed by ever more subtle infringement.

They can't keep you from owning a gun ... but they can keep you from owning more than one gun. They can keep you from owning an unregistered gun, and registration is the first step to confiscation under whatever laws they can imagine: "Unsafe guns", "Unregistered guns", "Unlicensed guns", and laws which make it difficult, if not impossible, to register or license guns, or to meet draconian standards of safety.

They can add taxes, restrictions and other financial burdens on guns and ammunition. I'm specifically referring to "Microstamping" requirements on guns and "Encoded Ammunition", both of which would provide minimal advantage to the the espoused intent to "make it easier for police to solve gun crimes" but which, in actuality, only impose unbearable financial burdens of firearms ownership and usage based upon unproven technology.

They can add so many administrative requirements to the purchase, ownership, storage and use of both handguns and ammunition that the average honest citizen is unable to jump through the arbitrary hoops. Do not allow yourself to assume that there are limits to their perfidy; remember, 90% of legislators at the local, state and federal level are lawyers.

Only yesterday, a state legislator and Defense Attorney stated that in defense of a child rapist who faced the death penalty he would "rip apart" child rape victims on the witness stand. How much objectivity can we expect from a profession which cultivates this minimal level of morality?

It grieves me to send such negative expectation, but at this time it is all too easy to become complaisant, and assume that we have no further need to defend our 2nd amendment rights.

The battle is over.

The war has just begun

Even though we have waited over 20 years to fight this battle; no matter how difficult it has been; the next battle will be much, much more difficult. And the outcome is far from guaranteed.

Believe it.

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