Snowflakes in Hell

I’m hoping this means we can finally start having a serious discussion about violence in Philadelphia.  It’s long overdue.

Hat Tip to Dave Hardy

Dale Carpenter takes on a rather odd notion that technology will make Heller obsolete. I think it is correct to note that the second amendment isn’t limited merely to firearms technology, but to many things as well.  In fact, I think the door is open for a Second Amendment challenge to many state and local laws that regulate or prohibit the carrying or possession of less-than-lethal weapons.

I am also doubtful that less-than-lethal weapons will supplant firearms, rather than merely supplementing them, which is how they are used in modern police work.  Anything that’s effective at disrupting a person’s physiology or central nervous system enough to stop them in their tracks is probably going to be very likely to kill that person.  Most critters, including humans, are tough to stop quickly without bringing them very close to death.

Anti-gun folks continue to pronounce that the sky is falling because of Heller.  I have to admit, it’s fun to watch.

Reporter Fran Wood manages to write a good article about Heller that is not full of hysterics and inaccuracies.  That’s more than I can say for The Chicago Tribune, the ACLU, and the Associated Press.

It’s good to see President Bush committed to nominating bureaucrats who are committed to preserving and sustaining individual liberty:

By a 5-4 vote last week, the nation’s highest court struck down the District of Columbia’s 32-year-old ban on handguns, the first major pronouncement on gun rights in history. It upheld the right for communities to license guns.

Mueller said communities will have to determine their own license programs. As a former Marine who served in Vietnam, he said “I tend to believe weapons harm people and more often than not they harm the people carrying them.”

With his grandchildren going to college, Mueller said he hopes “those campuses will be weapons free.”

Except they didn’t say communities could license guns.  In fact, The Court speicifcally said they do not address that.  Since Mr. Heller did not ask the court the overturn the licensing requirement, The Court did not do so.  I guess it’s too much to ask of CBS News to do a little research, rather than just repeating nonsense.

Hat tip to NRA-ILA

UPDATE: “I tend to believe weapons harm people and more often than not they harm the people carrying them.”  I anxiously await Mr. Muller’s memo that informs all FBI agents that they should cease and desist from carrying firearms.  Since it only endangers them, you know.

Scott Bach, who is President of the Association of New Jersey Rifle and Pistol Clubs, and an NRA Board member, has this to say about the Heller ruling:

That such a question was even the subject of controversy, or that there were dissenting Justices, is a sad testimony to the state of our nation. It is also a testimony to one of the worst hoaxes and frauds ever perpetrated by gun ban extremists: the phony claim that the phrase “right of the people” really means “right of only those people in state militia service” when firearms are involved.

There is no basis for such an assertion. Yet for years, those unable to legislate the Second Amendment away have shamelessly pursued a scheme to interpret it out of existence by convoluting its words and rewriting its history. They have actually argued, with a straight face, that one provision of the Bill of Rights doesn’t really apply to all Americans - just to some Americans.

Read the whole thing.  It’s sure to displease this particular hoaxster, since the The Court has no doubt put the brakes on his attempt to ban muskets.

Dave Kopel has an excellent article in the New York Sun.  Interesting factoid I didn’t know:

As a Monroe County court accurately observed in the 1994 case Citizens for a Safer Community v. City of Rochester, “The Courts of this State have concluded that the language of federal law interpreting the Second Amendment (which is identical in its language to Article 2, section 4 of the Civil Rights Law) should be used in interpreting the provisions of this state law.”

Some New York courts have interpreted the New York right to arms restrictively, but these decisions were explicitly based on misunderstanding of the same language in the Second Amendment. The cases treating the Civil Rights Law as almost meaningless are of dubious validity now that Heller has made is clear that “the right of the people to keep and bear arms” is a broad and important individual right.

So basically, the ruling in Heller reinterprets, under New York State case law, the meaning of their state right to keep and bear arms provision.  That doesn’t speak well for the future of the Sullivan Act.

The Chicago Tribune says we would repeal the second amendment.   I propose we repeal the first amendment, but only as it applies to the Chicago Tribune!  Piss on my rights, I piss on yours.  It’s a simple equation.  We have to respect each others rights, otherwise this grand 232 year old experiment is finished.  Think about it.

Hat tip to Keyboard and a .45

The Virginia Gun Owners Coalition, has a different take on Heller.   Let me take the chance to just throw this out there: these guys are a bunch of angry fucking idiots, and basically aren’t helping the cause one god damned bit. Got that?

This is a triumphant day.  A key argument of the anti-gunners, which is that the second amendment does not protect any right is now history.  The Court has left the door open for other battles.

Also, I have to ponder about the dichotimty of criticizing the National Rifle Assocation for trying to derail the case in the first place, and then criticizing them for the result.  Pick one or the other guys, or I’m just going to conclude you’re just out to piss on everything, and I’m fucking tired of it.

And whether they want to admit it or not, if it weren’t for the election of George W. Bush, we would not have any victory here.  We’d now be facing the second amendment being effectively gone.  George W. Bush, who endorsed renewing the assault weapons ban upon his election.  George W. Bush, who’s solicitor general argued against us.  George W. Bush, who nominated Maximum Mike Suillivan to be head of ATF, and has stood by him throughout everything.  This goes to show how history can act through imperfect men.  Because when it came down to what’s really important, Bush was good enough.  Really two Bushes were good enough if you consider Clarence Thomas.

That’s what a lot of gun rights activists fail to understand, and fail to appreciate, and why I’m suggesting we elect another imperfect candidate to succeeed George W. Bush, in the form of John McCain, because we simply can’t afford Barack Hussein Obama appointing the next several justices.  We know that Obama will nominate justices who would be willing to overturn Heller.  That’s not even a debate; he will do it.

So bitch and moan things didn’t go 100% your way.  I’m tired of being angry.  It’s time to cut that crap out and make a difference.

Let’s defeat some stereotypes about the backgrounds the kind of people who support gun rights come from.

• Our Heller opinion writer, Justice Scalia, is the son of Italian immigrants.  Born in Trenton, New Jersey and raised in New York City, and graduated from a Roman Catholic High School.  Graduated summa cum laude from Georgetown, and went on to Harvard Law School.  He was nominated to The Court by Ronald Reagan.
• Joining in the opinion is fellow Italian-American, Justice Alito, who was also born in Trenton, New Jersey, and raised in Hamilton Township, just outside of Trenton.  He attended Princeton University, and Yale Law school.  He is a Roman Catholic.  He was nominated to The Court by George W. Bush.
• Justice Kennedy comes to us from the number one Brady ranked state of California.  He attended Stanford University, with his law degree coming from Harvard.  He is also, along with our previous two justices, a Roman Catholic.  He was nominated to the Ninth Circuit Court of Appeals by Gerald Ford, who also nominated Justice Stevens to the Supreme Court.  He was nominated to the Supreme Court by Ronald Reagan.
• Justice Thomas is from Georgia.  In addition to being an African-American, he is also a Roman Catholic.  He attended the College of the Holy Cross in Worcester, Massachuetts, and helped found the Black Student Union at that school.  He went on to Yale Law school.  He was put on the Supreme Court to fill the vacancy left by Thurgood Marshall b George H.W. Bush.
• Chief Justice Roberts was born in Buffalo, New York.  He is Czech on his maternal side, and his father was an executive with Bethlehem Steel.  The Roberts family grew up in Indiana.  He attended a Catholic boarding school in LaPorte, Indiana, and attended Harvard College, and eventually went on to Harvard Law.  After serving as Deputy Soliciter General in the first Bush Administration, he was appinted by the same administration to the D.C. court of appeals, and finally the Chief Justice by the second Bush Adminsitration.   He is a Roman Catholic.

The backgrounds of these men are as varied as one can imagine, except for the fact that they are all Roman Catholic.  Alito and Scalia have chewed much of the same ground I have.  I live ten minutes away from Trenton, and grew up not far from here.  This is the last place you’d imagine that two out of the give majority justices would be from, but there you go.

I gave Bitter a hard time for drinking her champagne out of a beer glass, but when we celebrate, we celebrate big.

You will notice that we are using founding father glassware, if you zoom in to the full picture.  My glass is a Thomas Jefferson’s Monticello snifter, and Bitter’s is a James Madison beer glass.  I think both gentlemen would be proud that we have not completely forgotten them, and the instrument they created.

In addition to the drinks, Bitter prepared a lovely Italian dinner, in honor of Justice Scalia, complete with cannollis.  I honor Justice Kennedy merely by being Irish.  For Chief Justice Roberts, the last new shooter I took to the range was a Roberts.  And for Justice Alito, well, he’s another Italian! I’m still trying to figure out how I honor Justice Thomas.

SayUncle talks about how DC is digging its own grave.  To my mind, it’s not necessarily a gift to us that they are being obstinate, but a problem.  NRA needs to push Congress to set The District’s gun laws for them, and preempt city council from regulating firearms entirely.  We don’t want to be in a situation where we have a constant back and forth in the courts until eventually DC comes up with a regulation The Court will accept.  The next step should be going after the incorporation angle, using bans and regulations that are similar to Washington D.C.

Four justices of the Supreme Court of the United States were completely willing to read out part of the Bill of Rights because they don’t like the result that comes from it.  We can seek comfort that we got a five vote majority, but it’s a little close for my comfort.  Come this fall, we must do absolutely everything humanly possible to ensure that Barack Obama is defeated, or watch future courts retreat from the Heller ruling faster than you can shake a stick.  While Justice Stevens and Ginsburg are likely retirees under an Obama administration, it can’t be ruled out that Justice Scalia, or Kennedy, who are both getting up there in age, won’t end up leaving the court, or dying.  We absolutely must not allow Obama to win, or that could undo all of this.

The gun control movement will not take Heller lying down.  They are not going to crawl off into a corner and die.  This changes the game we’re playing, but it doesn’t end it.

The Court did not much address the issue of machine guns, but the “common use” test that it prescribes will be problematic.  However, I think The Court has set itself up for an intellectual bind.  Machine guns are not in common use, but that’s entirely because of the 1986 prohibition on new registrations preceded by 18 years of heavy regulations inder GCA 68, and decades of regulation prior to that under the National Firearms Act.  In short, machine guns fail the common use test because government regulations and prohibitions make them uncommon.   I think this is an argument that could be raised later that could possibly ease restrictions.

I think there’s ample language in the opinion to argue that the second amendment is incorporated against the states, and that will be the next step.   Chicago, New York, and I think, even Massachusetts and New Jersey’s licensing restrictions can be construed to meet the standard of “arbitrary and capricious.”  In fact, I would view this somewhat similar to “seperate but equal”  In that the Civil Rights movement was later able to argue that seperate can never be equal.   I think one could perhaps argue that licensing, or having to get the government’s permission, can always be subject to arbitrary and capricious standards.

On the “bearing” of arms, I think The Court leaves open the possibility, and perhaps even suggests the possibility that the state must allow some form of carrying arms for self-defense.  This would presumably mean openly carrying of arms being legal everywhere, with states still free to regulate wearing of weapons.  But I would argue that perhaps the states can regulate concealed firearms, they may not outright prohibit them, since, given changes in society since the 19th century, that amounts to the destruction of the right.

My opinion, having read Justice Scalia’s opinion on this case, is that Heller is better than I had hoped for.  I think this lays effective groundwork for taking this issue forward, and the lower courts are going to have a difficult time skirting around it.

I think The Court has argued that the state must permit some form of bearing arms for the purposes of self-defense.  Or at the least has left the possibility open for the future.  It seems that regulating concealed carry will be permitted.

I think the Heller opinion leaves the door wide open for incorporation, as far as I can tell.  I’m still reading.

Here’s some limitations prsented from the opinion:

Like most rights, the Second Amendment right is not unlimited.  It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Interesting.  Perhaps The Court will be willing to entertain open carry being constitutionally protected, while concealed carry remains something that may be licensed by the state.  But can it be outright prohibited?   Doesn’t seem to get into that.

The Supreme Court has ruled in the case of DC vs. Heller that DC’s ordinances are a violation of the Second Amendment.  This is a momentous occasion.  Let the celebrations begin.

While we may not follow our constitution to the letter, at the very least, the Bill of Rights means something, no matter how much the gun haters wish it didn’t.

Long Live the Bill of Rights! Long live the Second Amendment, the individual right of Americans to keep and bear arms.  The Brady Campaign, VPC, CeaseFire PA, and others, can get down and kiss our collective asses for ever trying to con Americans into believing it was only a collective right.

Mr. Gura, Mr. Levy, and many others who’s life’s work brought this to fruition, we don’t just owe you a drink, we owe you a whole damned liquor store.

Unless Chief Justice Roberts is pulling our leg, today will be the day.  Stay tuned for details.  Don’t bite your nails down too far.

UPDATE: The Court will begin releasing opinions at 10.  In the mean time, Scotusblog has some interesting polls on their live blog coverage here.

UPDATE: This will be a momentous day for gun owners, no matter what the decision.  From here on out, things will be different.  This is the biggest day for those who care about the second amendment, probably ever.

UPDATE: The Court releases cases apparently according to seniority, so we’ll be dead last is Scalia is indeed the writer the Heller opinion.

UPDATE: I’m as giddy as a school girl.

UPDATE: Squirming in my seat here.

UPDATE: The case of Heller v. District of Columbia is AFFIRMED!

UPDATE: Scalia wrote the majority opinion.  Ginsburg, Stevens, Souter and Breyer dissented.  This case fell along ideological grounds, with the liberals dissenting.

UPDATE: Apparently there are two dissenting opinions.  This is a 5-4 ruling.  Closer than I would have liked, but a win, nontheless.

UPDATE: I will get the opinion, and read it, and give you my take as soon as I have time.

Clearly this person is an expert in constitutional law, all the modern scholarship that provides powerful evidence that he’s wrong be damned.  I should also note that Justice Scalia has to get four other justices to agree with him in order for his opinion to be the majority opinion.  Dave Hardy, who is a real expert in these matters, talks about possible methods of interpretation in Heller here.

Bryan Miller shares his thoughts on Heller:

Know what? I’d consider [a ruling favoring Heller] a victory for public safety, for common sense and for the gun violence prevention community. Why? It would remove the debate about guns and gun violence from the static and useless 2nd amendment arena and put it squarely in the ‘reasonableness’ arena, unencumbered by the 2nd amendment argument that the gun industy and lobby and chicken-hearted legislators and pols hide behind. I’m totally comfortable placing debates and decisions about gun legislation and laws in that arena, where the issue of public safety will be supreme.

I hate to break it to Bryan, but this isn’t going to end the debate.  It’s just going to alter it, and whether he wants to admit it or not, this shifts the debate considerably in our favor.  Yes, the gun issue will end up settling in an area where neither side is entirely happy, but if the second amendment is treated as an individual right, it going to be the gun control movement that’s most unhappy.  Most rights are not subject to a “reasonableness” test, but to strict scrutiny, and even if The Court adopts an intermediate level of scrutiny, the burden is still on gun control advocates, not those of us who claim our liberty.

As has been stated before, if prohibition is off the table, there’s a good chance many of the supporters in the gun control movement, who hate guns and want to see them banned outright, are going to give up on the issue.

Again, we play the waiting game.

UPDATE: The Court is releasing opinions.

UPDATE: The Court just vacated the punative damages in the Exxon Valdez incident. “In Exxon, the judgment is vacated and remanded.   The Court divided depending on the issues.   The Court divided equally on whether maritime law permits punitives for the acts of agents (Alito not participating).   The Court deemed the punitives excessive based on maritime common law, holding the punitives should be equal to the compensatories.”

UPDATE: Kennedy v. Louisiana, the Court reversed and remanded a low courts upholding the death penalty for child rape. “The Kennedy v. LA decision holds that the death penalty for child rape is unconstitutional if the defendants’ acts were not intended to cause death.”

UPDATE: Interesting cases today, but I want Heller, dammit!

UPDATE: At least one more decision is coming.

UPDATE: Last opinion coming now.

UPDATE: Last case involved tribal law.  Damned Indians!  This must be revenge for us stealing their land.   No Heller today.

This is all just speculation, but interesting.  First from Dave Hardy, who says that it’s good news if Scalia writes the opinion, as appears likley.  Second is from Bitter, and third the Volokh Conspiracy, here and here.

Smart people have said today is going to be the day.  I’m going to be a contrarian and suggest that they will put it off until later in the week.  Stay tuned for updates as The Court starts releasing opinions.

UPDATE: Not today folks.  Chief Justice Roberts, you are such a tease.  From SCOTUSBlog: “The only opinion remaining from the March sitting is Heller.   The only Justice without a majority opinion from that sitting is Justice Scalia.”

There’s a good chance it could be today.  Stay tuned for details.

UPDATE: The Court will begin announcing opinions at 10AM today.  This is the next to the last day in the session when opinions will be announced.  Monday the 23rd will be the last day.

UPDATE: The court has begun to release opinions.  One announced so far, and is not Heller.

UPDATE: Bitter hopes it’s released Monday, so she has time to work on something she’s doing related to Heller.  I’m hoping for today, because I have a meeting on Monday at the time the Supreme Court is releasing decisions.

UPDATE: Three opinions so far.  No Heller.

UPDATE: Not today.  Sorry folks.

UPDATE: There’s Monday, but also the possibility of Wednesday or Tuesday of next week.