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Archive for June 26th, 2008


Posted by iusbvision on June 26, 2008

UPDATED: See Below

You have a constitutional right to own a handgun. Handgun bans are now unconstitutional.**

AND laws requiring trigger locks or other devices and methods so that such weapons may not be readily used for self defense are also unconstitutional.**

** In principal – Since the suit was brought in the District of Columbia the matter of incorporating the Second Amendment to the states was not before the court. As a rule the court only deals with the question directly in front of it, “Are gun bans in federal districts such as D.C. constitutional.” A lawsuit from one of the states that have a gun ban will have to follow to incorporate this to the states. It is reasonable to assume that lower courts who respect president will follow suit with this ruling, but since it was not in one of the states judges in circuits outside of D.C. may act in such a way as to kick the decision upstairs. Many circuits such as the Ninth openly buck president and keep the Supreme Court busy with reversing them.  – Chuck Norton


The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg. We will provide a link to the decision as soon as it is available.

More updates soon, but in short the Supreme Court has reversed decades of rulings in which the lower courts deliberately misinterpreted the Second Amendment in order to keep guns out of the hands of black Americans. Note: the Miller case in 1939 did not rule that citizens did not have a right to keep and bear arms, the court ruled that citizens have the right to own military infantry small arms, the government made the case that short barrelled shotguns have no military value and thus are not covered by the Second Amendment. Miller died before the Supreme Court heard arguments on the case so his side could not give a proper representation. The military uses short barreled shotguns as infantry weapons to this day. The current short barreled military shotgun is the Mossburg 590 (update: my interpretation of the Miller decision is parroted by Juctice Scalia below).

The usual suspects who treat each court session as their yearly constitutional convention dissented in the case.

The full decision is here:

Chuck Norton


Here is a summary of the decision:


1. The Second Amendment protects an individual right to possess a

firearm unconnected with service in a militia, and to use that arm for

traditionally lawful purposes, such as self-defense within the home.

Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but

does not limit or expand the scope of the second part, the operative

clause. The operative clause’s text and history demonstrate that it

connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation

capable of acting in concert for the common defense. The Antifederalists

feared that the Federal Government would disarm the people in

order to disable this citizens’ militia, enabling a politicized standing

army or a select militia to rule. The response was to deny Congress

power to abridge the ancient right of individuals to keep and bear

arms, so that the ideal of a citizens’ militia would be preserved.

Pp. 22–28.

(c) The Court’s interpretation is confirmed by analogous arms bearing

rights in state constitutions that preceded and immediately

followed the Second Amendment. Pp. 28–30.

(d) The Second Amendment’s drafting history, while of dubious

interpretive worth, reveals three state Second Amendment proposals

that unequivocally referred to an individual right to bear arms.

Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts

and legislators, from immediately after its ratification through the

late 19th century also supports the Court’s conclusion. Pp. 32–47.

(f) None of the Court’s precedents forecloses the Court’s interpretation.

Neither United States v. Cruikshank, 92 U. S. 542, 553, nor

Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights

interpretation. United States v. Miller, 307 U. S. 174, does not

limit the right to keep and bear arms to militia purposes, but rather

limits the type of weapon to which the right applies to those used by

the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

In reading the decision Scalia posts point by point refutation of the dissenting justices in the footnotes at the bottom of almost every page. Scalia sources every detail of his logic, reasoning and history. This is perhaps one of the most scholarly, well documented and unassailable decisions in court history.

Scalia delivers sourced definitions of each word in the Second Amendment and also quotes each Supreme Court decision in the past that defined such terms, such as these exerpts from  the decision:

What is more, in all six other provisions of the Constitution

that mention “the people,” the term unambiguously

refers to all members of the political community, not an

unspecified subset. As we said in United States v. Verdugo-

Urquidez, 494 U. S. 259, 265 (1990):


From our review of founding-era sources, we conclude

that this natural meaning was also the meaning that

“bear arms” had in the 18th century. In numerous instances,

“bear arms” was unambiguously used to refer to

the carrying of weapons outside of an organized militia.

The most prominent examples are those most relevant to

the Second Amendment: Nine state constitutional provisions

written in the 18th century or the first two decades

of the 19th, which enshrined a right of citizens to “bear

arms in defense of themselves and the state” or “bear arms

in defense of himself and the state.” 8 It is clear from those

formulations that “bear arms” did not refer only to carry-ing

a weapon in an organized military unit. Justice James

Wilson interpreted the Pennsylvania Constitution’s arms bearing

right, for example, as a recognition of the natural

right of defense “of one’s person or house”—what he called

the law of “self preservation.” 2 Collected Works of James

Wilson1142, and n. x (K. Hall & M. Hall eds. 2007) (citing

Pa.Const., Art. IX, §21 (1790)); see also T. Walker, Introduction

to American Law 198 (1837) (“Thus the right of

self-defence [is] guaranteed by the [Ohio] constitution”);

see also id., at 157 (equating Second Amendment with

that provision of the Ohio Constitution). That was also

the interpretation of those state constitutional provisions

adopted by pre-Civil War state courts.9 These provisions

demonstrate—again, in the most analogous linguistic

context—that “bear arms” was not limited to the carrying

of arms in a militia.

And even if “keep and bear Arms” were a

unitary phrase, we find no evidence that it bore a military

meaning. Although the phrase was not at all common

(which would be unusual for a term of art), we have found

instances of its use with a clearly nonmilitary connotation.

In a 1780 debate in the House of Lords, for example, Lord

Richmond described an order to disarm private citizens

(not militia members) as “a violation of the constitutional

right of Protestant subjects to keep and bear arms for

their own defense.” 49 The London Magazine or Gentleman’s

Monthly Intelligencer 467 (1780). In response,

another member of Parliament referred to “the right of

bearing arms for personal defence,” making clear that no

special military meaning for “keep and bear arms” was

intended in the discussion. Id., at 467–468.

c. Meaning of the Operative Clause. Putting all of

these textual elements together, we find that they guarantee

the individual right to possess and carry weapons in

case of confrontation. This meaning is strongly confirmed

by the historical background of the Second Amendment.

We look to this because it has always been widely understood

that the Second Amendment, like the First and

Fourth Amendments, codified a pre-existing right. The

very text of the Second Amendment implicitly recognizes

the pre-existence of the right and declares only that it

“shall not be infringed.” As we said in United States v.

Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right

granted by the Constitution. Neither is it in any manner

dependent upon that instrument for its existence. The

Second amendment declares that it shall not be infringed

. . . .”

Laws against body armor may also be unconstitutional as body armor is included in the definition of arms in the decision:

The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771);



The founders made it as crystal clear that the Second Amendment is an individual right just as the First Amendment is. The fact that the court affirmed the right to bear arms should not be news. The news is that four justices on the court sought to take that right away form us. It speaks volumes about how important getting good justices on the court is.


Four justices saught to declare the second amendment extinct. They saught to amend the Bill of Rights away at the bench. If that doesn’t explain what these people have in mind for this country I don’t know what else does.

Limbaugh is quite right, five justices is all that stands in the way between freedom and tyranny in this country. Sometimes they choose freedom, sometimes they choose tyranny, and sometimes they just abide the law in its context when it was created, but for today, at least the reset button is still intact.





Exerpt from Justice 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,

and to authorize this Court to use the common-law

process of case-by-case judicial lawmaking to define the

contours of acceptable gun control policy.

This statement is stunning. Any first semester civics student, American history student, or first year law student knows that the Bill of Rights has one purpose – to chain and restrict the power of the government. The Bill of Rights was created and implemented to help gain the support of the Anti-federalists.  Its purpose as a matter of history and law could not be more clear or established.


Planet Earth to Justice Stevens– the Bill of Rights and indeed the Second Amendment was precisely created to limit the ability of elected officials, or anyone in the government, to restict the civilian’s right to keep and bear arms. Just as the First Amendment was created to limit elected officials (or unelected for that matter) ability to restrict the freedom of speech and conscience of the people, just as the Eighth Amendment was created to limit elected officials from imposing cruel and unusual punishments. The restriction of bearing arms has been the pretext for nearly every great tyranny in history. The British declaration of rights that previously enumerated a right to keep and bear arms was made in direct response to previous abuses by the government and that is why it was a predecessor to our own Bill of Rights and Second Amendment. “The  right to keep and bear arns shall not be infringed.”


Stevens just ruled with the majority YESTERDAY in Kennedy vs. Louisiana that the Eighth Amendment limited the Louisiana State Legislature from imposing the death penalty for child rape. It is amazing how his entire interpreting view of the Constitution can change in a day. This is exactly the type of situational ethics that would be tyrants use in their reasoning.



WSJ – Leftist Justices In Denial of History and the Law

Supreme Court Binds Second Amendment to States



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