The Heller Decision

One of the most anticipated Supreme Court decisions of the year is in the case of District of Columbia v. Heller. This decision involves the critical question of whether or not the Second Amendment confers an individual right to keep and bear arms.

In a ruling handed down only moments ago, the justices affirmed the decision of a lower court holding that the Second Amendment does confer an individual right to keep and bar arms, striking down a Washington, DC law that virtually forbade the legal ownership of firearms -- and which required that those which were permitted be stored disassembled.

The decision, which was 5-4, was written by Justice Scalia. The usual liberal foursome (Stevens, Souter, Ginsberg, Breyer) dissented against the clear language of the Constitution -- and actually argue that there is no Constitutional right to possess (much less use) a weapon to defend oneself.

Some interesting notes:

1. How Appealing notes that Scalia cites no fewer than THREE law review articles written by noted legal blogger Professor Eugene Volokh. Congratulations, sir! Lot's of great analysis from Volokh and his co-bloggers at his blawg, too.

2. AP notes that the decision goes even further in protecting Second Amendment rights than proposed by the Bush Administration.

3. This quote from the majority is troubling:

On the question of the Second Amendment’s application to the States: “23 With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”

Hmmm... a selective incorporation question. Could it be that the decision would have gone the other way if the law had been enacted by a state rather than the District of Columbia government, which is merely a creation of Congress? Eugene Volokh suggests that is not the case, noting that Cruikshank was later partially overturned as taking too restrictive a view on selective incorporation (with regard to the First Amendment) and that the other nineteenth century cases may therefore be similarly flawed as precedent because of their reliance on Cruikshank, which is seen by many as a monumentally bad decision.

4. Hube notes that at least one news source declared this to be "a narrow, 5-4 ruling". Oddly enough, "narrow" was not used by the same paper to describe yesterday's 5-4 ruling in favor of child rapists.

5. Confederate Yankee notes that there is already a call to assassinate Justice Scalia in a comment by lefty gay blogger David Eherenstein over at Crooks and Liars.

As of 10:46 am Central time, no other commenter has objected. I've emailed the FBI and Secret Service about the matter -- hope David has fun in federal prison.

6. John McCain notes that Barack Obama refused to sign on to a bipartisan amicus brief supporting the Second Amendment. That makes Obama's efforts to distance himself from last year's campaign statement on the issue a bit hard to believe -- unless you are an Obama true believer to begin with.

OTHERS BLOGGING: Michelle Malkin, Hot Air, Ace (twice), Urban Grounds, Dirt From Texas, Big Lizards, Hillbilly White Trash, Megan McArdle, JoshuaPundit, Wold Howling

Posted by: Greg at 06:15 AM | No Comments | Add Comment
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