Thursday, June 26, 2008

Politics: Heller AFFIRMED - w00t!

It was close (5-4) and divided strictly along ideological lines, but the end result is the same - the DC gun ban is dead.

Hipshot analysis - as most expected, the ruling basically preserves the status quo. I can tell Scalia had to water it down some to keep Kennedy onboard - a lot of restrictions are implicitly allowed by the majority, including licensing, background checks, felon-in-possession, etc. I'm really not fond of the tacit approval of licensing just to own a handgun, but again, the opinion lays down the 2nd as an individual right once and for all, and the actual controversy was not over the licensing of handguns, but the District's blanket refusal of the license - to go further would be perilous.

Another troubling part of the majority opinion was the "common use" standard Scalia expounded upon. Machineguns, I dare say, would be in common use (much like suppressors and short-barreled shotguns/rifles are fairly common now) if it wasn't for the '86 ban - I know several people who'd have one if all you needed was the tax stamp. But I suppose those arguments can be held for another day.

All in all, not a slam dunk, just one victory in a war. But man, it's better than 5-4 the other way.

EDIT: Oh come on, you knew this was coming:

EDIT: The NRA is apparently filing lawsuits challenging the bans in Chicago, NYC, and San Francisco. It looks like big city mayors are getting a taste of their own medicine.

EDIT: Man, VC went down like a chump after the decision - server overload. I guess that shows you just how many people were interested in the case.

EDIT: I know I've compared the fight over the Second Amendment to the fight over Roe v. Wade, but really, the closest analogue I can think of right now for Heller is Lawrence v. Texas, the 6-3 decision striking down Texas' prohibition on private homosexual conduct.

In that case, the standard of review was also fairly muddled (as it is in Heller - seemingly more than rational basis, but less than a strict scrutiny standard), and for similar reasons (I suspect Kennedy didn't want to legalize gay marriage in one fell swoop, just like he probably didn't want to kill 18 USC 922(o) here). Lawrence also harped on the special nature of the home and the individual, and it was the subject of much discussion all over the country.

Unlike Lawrence, today's decision is enigmatic on incorporation. Unlike Lawrence, people have most assuredly been prosecuted for violating the D.C. handgun ban. Unlike Lawrence, the right to keep and bear arms is enumerated in the Bill of Rights. And unlike Lawrence, the majority decision only received five votes. Five.


Here's a paragraph from the preamble to the Bill of Rights (emphasis mine):

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution...

Here's part of Stevens' dissent:

The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons...

Yes, Justice Stevens, yes they did. It says so right there. Holy schlamoly.


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