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Scalia's write-up

Shoobee

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http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

After reading Scalia's write-up of the USSC decision in Heller vs DC, I got several impressions about the viewpoints of the justices in this case on this topic of the 2nd Amendment.

The first obvious thing is that the 5 of them in the majority on this opinion believe that everyone deserves to keep and bear within their homes a handgun of their choice for self defense, under their interpretation of the 2nd Amendment. The other 4 in the minority however, all from NYC, do not hold this to be true.

The next obvious thing is that Scalia believes the states have the right to make whatever rules governing open carrying or concealed carrying that they want. He seems to hold states' rights in high esteem, with regard to carrying in public, outside of the home.

Third is that this ruling obviously applies specifically to handguns, and it sheds little light on the courts views of long guns, other than to state that sawed off shotguns are not considered protected by the 2nd Amendment.

This is the most current legal interpretation of the 2nd Amendment that we have on this Earth. It is relevant because the Roberts' court is the constitutionally designated authority.

You can read Scalia's majority view in about half an hour, about 50 pages. I would not worry about the two minority dissents, they seem flawed and only present the NYC viewpoint, that all guns are bad and that cities and states and the district may make whatever rules they want in ignoring the 2nd Amendment.

After reading Scalia's opinion, I would be interested to hear anyone else's impressions of it, from careful reading.
 
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Citizen

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SNIP This is the most current legal interpretation of the 2nd Amendment that we have on this Earth. It is relevant because the Roberts' court is the constitutionally designated authority.

Small side comment: There is nothing in Article III that designates SCOTUS as the authority to judge our rights. In fact, in the absence of a delegated power, that particular power is reserved to the states by the 10th Amendment.

For some time, perhaps even into the 1850s, it was believed that a state could refuse to allow a federal law to be enforced if it felt that law violated the constitution. See The Principles of Ninety-eight (1798), and northern nullification of federal fugitive slave laws for a few examples.

We even had a few states refuse to enforce the national ID card laws a few years back.

The federal courts necessarily need to have some say in the matter because they have to be able to decide whether to take cases or not and the outcome of those cases. Otherwise, all cases involving rights would be out of their jurisdiction. But, there is no reason whatever to believe SCOTUS is the constitutional authority. Doing so plays right into the hands of the fedgov, leaving them the final arbiters of the very rules designed to hold government in check.

Dr. Thomas Woods uses contracts as an example. What would happen if a contract provided that only one side got to interpret the contract language?

He asks another question, too. Would you ever sign a contract where the other party was granted sole power to interpret the terms of the contract? Do you suppose the Founders did when they wrote and ratified the constitution?
 
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skidmark

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Scalia should have done his job precisely as it is supposed to be done - addressing the precise question put forth and provided an answer that as narrowly as possible resolved (in his mind and judicial opinion) that precise question - and no more.

If all of the Justices did that, it would not be difficult to undestand that questions about OC or CC outside the home are still unresolved and that neither Heller[/i} nor MacDonald have addressed anything beyond having a working gun in the home.

Scalia may soon have the opportunity to revisit his notion that the States can do anything they please about gun laws outside the home. He may find that he needs to eat a bit of crow.

stay safe.
 

OC for ME

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The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
This decision does address, in a round about manner, long guns (pages 55 thru 57 of the majority opinion. The question before the court was not about long guns.
 

carolina guy

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Small side comment: There is nothing in Article III that designates SCOTUS as the authority to judge our rights. In fact, in the absence of a delegated power, that particular power is reserved to the states by the 10th Amendment.

For some time, perhaps even into the 1850s, it was believed that a state could refuse to allow a federal law to be enforced if it felt that law violated the constitution. See The Principles of Ninety-eight (1798), and northern nullification of federal fugitive slave laws for a few examples.

We even had a few states refuse to enforce the national ID card laws a few years back.

The federal courts necessarily need to have some say in the matter because they have to be able to decide whether to take cases or not and the outcome of those cases. Otherwise, all cases involving rights would be out of their jurisdiction. But, there is no reason whatever to believe SCOTUS is the constitutional authority. Doing so plays right into the hands of the fedgov, leaving them the final arbiters of the very rules designed to hold government in check.

Dr. Thomas Woods uses contracts as an example. What would happen if a contract provided that only one side got to interpret the contract language?

He asks another question, too. Would you ever sign a contract where the other party was granted sole power to interpret the terms of the contract? Do you suppose the Founders did when they wrote and ratified the constitution?

The Federal courts (SCOTUS included) being the final arbiters of what is and is not Constitutional is a clear conflict of interest.

I believe that the majority of the founders believed that the Citizens and the States would know enough and be self-possessed enough to either ignore or resist Unconstitutional actions by government actors.
 

Shoobee

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Small side comment: There is nothing in Article III that designates SCOTUS as the authority to judge our rights. In fact, in the absence of a delegated power, that particular power is reserved to the states by the 10th Amendment.

For some time, perhaps even into the 1850s, it was believed that a state could refuse to allow a federal law to be enforced if it felt that law violated the constitution. See The Principles of Ninety-eight (1798), and northern nullification of federal fugitive slave laws for a few examples.

We even had a few states refuse to enforce the national ID card laws a few years back.

The federal courts necessarily need to have some say in the matter because they have to be able to decide whether to take cases or not and the outcome of those cases. Otherwise, all cases involving rights would be out of their jurisdiction. But, there is no reason whatever to believe SCOTUS is the constitutional authority. Doing so plays right into the hands of the fedgov, leaving them the final arbiters of the very rules designed to hold government in check.

Dr. Thomas Woods uses contracts as an example. What would happen if a contract provided that only one side got to interpret the contract language?

He asks another question, too. Would you ever sign a contract where the other party was granted sole power to interpret the terms of the contract? Do you suppose the Founders did when they wrote and ratified the constitution?

I honestly do not see how you can justifiably say "There is nothing in Article III that designates SCOTUS as the authority to judge our rights ...".

Article 3 specifically begins with "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish ..." and "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties ...".

That's as plain as English gets as to the USSC (you call it SCOTUS, a popular but not formal citation) having final say over the Constitution and all statutes.
 

Shoobee

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The Federal courts (SCOTUS included) being the final arbiters of what is and is not Constitutional is a clear conflict of interest.

I believe that the majority of the founders believed that the Citizens and the States would know enough and be self-possessed enough to either ignore or resist Unconstitutional actions by government actors.

Whether you yourself "ignor" unconstitutional statutes or sue in court to have them set aside, either way, the USSC is going to be dragged into it eventually. Congress and the various state legislatures and the DC have learned that they can temporarily implement unconsitutional law anytime they want, and that it takes a long time and a lot of funding to have their unconstitutional statutes replealed.
 
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Shoobee

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This decision does address, in a round about manner, long guns (pages 55 thru 57 of the majority opinion. The question before the court was not about long guns.

Yes Scalia mentions long guns, but only in passing, and only to raise the awareness. But he limits the remedy to DC and Heller as Heller asked, to be issued his handgun possession permit, for his home.
 
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Shoobee

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...Scalia may soon have the opportunity to revisit his notion that the States can do anything they please about gun laws outside the home. He may find that he needs to eat a bit of crow...

That would take a CCW or OC case to be brought before the USSC. Although in his written opinion, Scalia grants the states the power to regulate CCW or OC as they see fit. Therefore it is unlikely that the USSC would even grant certiorari to a CCW or OC case, as long as the lower appeals court held that states may do as they please.

This case (Heller) gives us a lot of insight into the current views of the USSC justices. 4 of them (the minority) are plainly stupid and anti-gun. 5 of them (the majority) believe in the right to keep handguns in the home, probably also long guns in the home as well, although the case and the discussion are mostly about handguns.

Scalia hints that since sawed off shotguns presumably have no militia value (an error on his part, since USMC officers in Viet Nam routinely sawed off shotguns and used them slung in addition to their own 45ACPs to fight the NVA), it begs the question as to whether civilians should also be allowed fully auto assault rifles in addition to other long guns. And that is the fascinating part.
 
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carolina guy

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I honestly do not see how you can justifiably say "There is nothing in Article III that designates SCOTUS as the authority to judge our rights ...".

Article 3 specifically begins with "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish ..." and "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties ...".

That's as plain as English gets as to the USSC (you call it SCOTUS, a popular but not formal citation) having final say over the Constitution and all statutes.

The point of the "conflict of interest" is that the Federal court judges are appointed for life by Congress, and the same Congress sets the rules of how (and what) the courts will hear.

Further, as you quoted: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties ..."

This ONLY gives the courts jurisdiction over cases that are already Constitutional. Where does it say that the courts have the right of review over legislation?
 

Citizen

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I honestly do not see how you can justifiably say "There is nothing in Article III that designates SCOTUS as the authority to judge our rights ...".

Article 3 specifically begins with "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish ..." and "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties ...".

That's as plain as English gets as to the USSC (you call it SCOTUS, a popular but not formal citation) having final say over the Constitution and all statutes.

A few angles to this.

The word the is a definite article, implying there is no other. When the earlier poster said SCOTUS is the constitutional authority, he strongly implies there is no other or that SCOTUS is senior.

Two, you have to reach implied powers to give SCOTUS the power to decide rights. There is certainly no express power in Article III.

Three, there is the contract angle I mentioned. Who is dumb enough to sign a contract that lets only the other side interpret the contract provisions? Certainly not the Founders.

Four, for years and years it was understood by the ratifying generation and a few later generations that state legislatures could decide fedgov powers, nullifying violations of the constitution.

Also, the whole concept of judicial review and Marbury v Madison comes into play. That controversy has been simmering ever since that case. You have to understand that deciding rights was not much done by judicial review in English history. For example, you can read the entire English history of the 5th Amendment right against self-incrimination in English history. No cases where the right is the appealed question before the court. Part of this is that the men and women who were arguing for a particular right were being tried by the high courts, not appealing to the high court. Those high courts were not reviewing appeals, they were trying those people. So, when a right was asserted, the court just ignored it or not and got on with the case. I believe another aspect of this is that rights were on an upswing--people were expanding and obtaining more rights. Meaning, the government in the form of the courts and Parliament was already against rights and the people were fighting to win them. Why bother to appeal to the courts when you knew the courts were already against rights. Take all this with a grain of salt. I am by no means a legal historian. I am just going on what I have read and drawing conclusions therefrom. But, I believe this is why judicial review, especially with regard to rights, is controversial. It wasn't included in the general understanding of what courts did when they exercised their judicial powers.
 

OC4me

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Ummm, where in the Heller Decision (or the McDonald Decision) did it say that the States may regulate open carry?

Please cite, thanks!

Other Heller tidbits:

1) All 9 justices agreed that the Second Amendment protected an 'Individual' right. It was a 5 to 4 split as to whether or not the District of Columbia regulations being challenged passed Constitutional muster.

2) Nowhere in the majority opinion did the Heller Court state that (quote) reasonable regulations (unquote) were ok.

3) The definition and meaning of virtually every word in the preparatory and operative clause of the Second Amendment was carefully researched and explained in Heller. Dozens of Amicus briefs were filed by many groups arguing the exact legal meaning of "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms". However, not a single analysis of what 'shall not be infringed' (the closing clause) was ever attempted. To my knowledge no judge in any court (before or since) has ever bothered to discuss the meaning of the words 'shall not be infringed' . . . the phrase has been utterly ignored in any discussion of scrutiny. The pro-gun attorney's are guilty of this too, what gives? "Shall not be infringed" is truly the figurative elephant in the court room. Kind of makes us common folks want to scream when we read legal briefs discussing Second Amendment issues.
 
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carolina guy

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I honestly do not see how you can justifiably say "There is nothing in Article III that designates SCOTUS as the authority to judge our rights ...".

Article 3 specifically begins with "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish ..." and "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties ...".

That's as plain as English gets as to the USSC (you call it SCOTUS, a popular but not formal citation) having final say over the Constitution and all statutes.

I have to side with Citizen on this... your quote talks about the judicial power of the United States...but you are neglecting a few things...

1) As noted by Citizen (more clearly than I was trying, IMO)... where is it said that the Supreme Court (or any of the Federal Courts) have the FINAL say on the Constitutionality of a law or government action? It is not stated plainly at all in Article 3.

2) The founders did not exactly feel that the courts would be the final opinion on the Constitution .. take a peek at the Federalist Papers #78 among others. We also have some of Jefferson's opinion on this:
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

3) Since I don't see in the the Article 3 anything that would indicate that the Federal Courts would have final "review" over legislation on the Federal or State level, I would politely suggest that the 10th Amendment "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." becomes operative pretty quickly.
 

carolina guy

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It would seem to me that the "way" that the "Constitutionality" of a law is actually "decided" is simply that a majority of opinion is formed and then the country follows that new "understanding" or opinion until that changes.

For example. a new "opinion" starts with a citizen being wronged and this citizen and/or his backers/supporters either petition the Courts, Legislature, Executives or "Public Opinion" for additional support. This continues until enough support is gathered that a majority of people follow this new opinion.
 

KYGlockster

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http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

After reading Scalia's write-up of the USSC decision in Heller vs DC, I got several impressions about the viewpoints of the justices in this case on this topic of the 2nd Amendment.

The first obvious thing is that the 5 of them in the majority on this opinion believe that everyone deserves to keep and bear within their homes a handgun of their choice for self defense, under their interpretation of the 2nd Amendment. The other 4 in the minority however, all from NYC, do not hold this to be true.

The next obvious thing is that Scalia believes the states have the right to make whatever rules governing open carrying or concealed carrying that they want. He seems to hold states' rights in high esteem, with regard to carrying in public, outside of the home.

Third is that this ruling obviously applies specifically to handguns, and it sheds little light on the courts views of long guns, other than to state that sawed off shotguns are not considered protected by the 2nd Amendment.

This is the most current legal interpretation of the 2nd Amendment that we have on this Earth. It is relevant because the Roberts' court is the constitutionally designated authority.

You can read Scalia's majority view in about half an hour, about 50 pages. I would not worry about the two minority dissents, they seem flawed and only present the NYC viewpoint, that all guns are bad and that cities and states and the district may make whatever rules they want in ignoring the 2nd Amendment.

After reading Scalia's opinion, I would be interested to hear anyone else's impressions of it, from careful reading.

It really makes me wonder how one could determine that a sawed-off shotgun is NOT protected by the Second Amendment, but a handgun is. A shotgun of 18" would probably be ruled protected, but one of 16" would not. This logic is repugnant to the Second Amendment, and its intent. We have a right to keep and bear arms, and it is absolute! I don't understand how the justices mistake "...shall not be infringed," for "The Second Amendment is not absolute." The Founders would laught in the Justices' faces for speaking with such idiocy.
 

KYGlockster

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Ummm, where in the Heller Decision (or the McDonald Decision) did it say that the States may regulate open carry?

Please cite, thanks!

Other Heller tidbits:

1) All 9 justices agreed that the Second Amendment protected an 'Individual' right. It was a 5 to 4 split as to whether or not the District of Columbia regulations being challenged passed Constitutional muster.

2) Nowhere in the majority opinion did the Heller Court state that (quote) reasonable regulations (unquote) were ok.

They all agreed that the Second Amendment did indeed protect an individual right, but four of them believed the restrictions in D.C. were Constitutional? Seems they don't know much about individual rights or the terminology that developed the amendments that protect those rights.
 

KYGlockster

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The point of the "conflict of interest" is that the Federal court judges are appointed for life by Congress, and the same Congress sets the rules of how (and what) the courts will hear.

Further, as you quoted: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties ..."

This ONLY gives the courts jurisdiction over cases that are already Constitutional. Where does it say that the courts have the right of review over legislation?

The Justices are appointed by the Chief Executive (President) and confirmed by the Senate. All Federal judges must be confirmed by the Senate after being appointed by the President. The appointments do not come by way of congress.

Article 3 of the United States Constitution gives the Federal courts the right to review legislation. In order to understand this you must understand what "judicial power" means.
 

OC4me

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It really makes me wonder how one could determine that a sawed-off shotgun is NOT protected by the Second Amendment, but a handgun is. A shotgun of 18" would probably be ruled protected, but one of 16" would not. This logic is repugnant to the Second Amendment, and its intent. We have a right to keep and bear arms, and it is absolute! I don't understand how the justices mistake "...shall not be infringed," for "The Second Amendment is not absolute." The Founders would laugh in the Justices' faces for speaking with such idiocy.

Ummm, where in the Miller Decision did it say that a sawed-off shotgun was NOT protected by the Second Amendment?

Cite please ;-)

The Miller Decision actually held "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

In other words, the holding was that defendants need to provide evidence that a weapon had a reasonable relationship to militia use in order to make a Second Amendment claim.

The 'absence of any evidence' was because there was no evidence presented to the court. This was because the Defendant's attorney did not show up to argue the case. The Supreme Court remanded the case back down to the federal district court for "further proceedings", which never took place because the Defendant, Miller, was by that time deceased and the other defendant made a plea bargain leaving nobody to pursue the issue.

Virtually all judges looking at Miller get the holding wrong in this respect, including Scalia himself I might add. It is not because they are stupid, it is because an honest reading of Miller leads to the horrifying (to them) conclusion that fully-automatic machine guns would be protected by the Second Amendment.
 
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carolina guy

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The Justices are appointed by the Chief Executive (President) and confirmed by the Senate. All Federal judges must be confirmed by the Senate after being appointed by the President. The appointments do not come by way of congress.

Article 3 of the United States Constitution gives the Federal courts the right to review legislation. In order to understand this you must understand what "judicial power" means.

The Senate is part of Congress...and yes, they confirm appointments made by the President. And if we believe that ONLY the Federal Courts have the ability to determine if State actions are Unconstitutional, please tell me how this is not a conflict of interest?

No...you need to cite where in Article 3 the ability to review legislation for its Constitutionality is explicitly stated. Please feel free to re-read the above. :) The concept of "judicial review" is --at best-- an implied power that was introduced by the Supreme Court...no chance of a power grab there? The only thing giving it continued traction is that people have accepted this lessening of States Rights mostly through ignorance.


The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

This does not say review and invalidation...nor does it say anything about the States.

Now, if someone wanted to state that the Supreme Court (and its lesser courts) is just one of many vehicles of determining the Constitutionality of a law or government action, then yes, I will agree. Are they the only one, or the final say...NO!!!
 
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Aknazer

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They all agreed that the Second Amendment did indeed protect an individual right, but four of them believed the restrictions in D.C. were Constitutional? Seems they don't know much about individual rights or the terminology that developed the amendments that protect those rights.

The issue with D.C. has been that it isn't a state and so some argue that it gets special treatment and doesn't fully fall under the Constitution (at least not when it's convient for it to not and when they think they can get away with it such as with guns). After all, as a non-state it doesn't ratify new amendments, nor can the 10A apply to it since it isn't a state. Seems like they want to try and treat it as a territory so that they can get more "freedom" to do what they want (and by "freedom" i mean politicians getting more power to ignore peoples rights when it suits them).
 
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