Some points from the recent SCOTUS ruling

This morning, I'm noting a lot of ill informed .or perhaps just informed by misunderstanding of the text. opinions and statements regarding the historic Heller ruling on the scope and applicability of the 2nd amendment. This of course is unsurprising when many people of varying levels of knowledge about law, history, and firearms have just a short time to digest a 90 page majority opinion and another 70 pages of dissents and cites. In the table below, I've selected out the critical passages, and highlighted some of those I consider most instructive or important. Briefly, I need to specifically address some points:

1. Incorporation: Scalia makes it clear in his majority opinion that the second amendment is a fundamental right, that must be treated the same as other fundamental rights such as the first amendment. He specifically notes it in respect to the 14th amendment NUMEROUS times. This decision will be applied universally within the domain of the court, and should be considered controlling upon the states (this is clarified in the later references by the way).

2. Universality: This decision applies to all within the jurisdiction of the court. Excepting prohibited persons (and there is a clear definition under federal law of who those persons are by the way), all individuals under the jurisdiction of U.S. law, have the right to keep and bear arms.

3. Scrutiny: Again, this issue is clear. Though in the opinion itself Scalia does not explicitly state that second amendment issues should be reviewed with strict scrutiny, this is made clear in the text by equating the 2nd amendment with the first, 4th, 14th etc. Further, Scalia explicitly dismisses Stevens call for a "balance of interests" standard of medium scrutiny. This is in effect strict scrutiny, with certain well defined exceptions (such as for felons, the insane, and weapons of mass destruction).

4. Class III (machine guns and other): This one is mixed. Although the majority expresses that some restrictions are permissible, it also explicitly denies outright bans. It is clear that weapons that are in the common usage and available to citizens, are protected. That includes machine guns (machine guns are not illegal for the general public to own, they are just very expensive and tightly restricted). Although Scalia points out that Miller said it was OK to ban short barreled shotguns, he also noted that the decision is flawed, because it only took judicial notice of what was presented to the court, and the original apellant (Miller, though technically he was the respondent for the appeal to the supremes) never presented a case (he died before the date set for arguments, and his attorney didn't bother to show up).

Based on my reading, I would say that the current law prohibiting the new manufacture of machine guns for civilian sale after May of 1986 (actually that's not what it says, but that is how the ATF chose to interpret it) is out; after some long and difficult litigation. However, the door is open for other laws restricting such weapons, fi properly written to pass constitutional scrutiny.

This of course applies to other weapon types specifically targeted for bans; for example the requirement that all weapons imported into the United States have a "sporting purpose", and that certain shotguns are considered "destructive devices" simply by arbitrary features; are also disallowed (again with the caveat that new laws could be written to pass a constitutional standard).

5. Scope: I think it is clear, though it will require significant litigation to hash out details; that no outright ban on any type of weapon (including machine guns as currently construed), excepting weapons of mass destruction, can stand muster. This means that all state "Assault weapons bans" will be struck down. eventually; along with magazine capacity bans, hollowpoint bullet bans etc. (though likely the ban on "armor piercing" handgun ammunition will continue).

I also think it is clear that there is significant room for licensing programs, and standards (including standards for weapons features and functionality)to be set, so long as the requirements for licensing are not discriminatory, arbitrary, capricious, or onerous. Of course, again, that is going to require years of litigation to define better.

I do think that clearly this means the end of Chicago gun laws, and most likely the radical reformation of laws in Massachusetts, New York, California, Hawaii, and New Jersey. I should note that this does not mean universal "shall issue" concealed carry, but it almost certainly DOES mean that all states which allow concealed carry must allow it on a "shall issue" basis; using those standards as a guideline. Unless someone is a prohibited person, as spelled out under law since 1968, you MUST license them (presuming licensing exists).

Additionally, I believe this actually DOES set a requirement for lawful OPEN carry throughout the country; in that self defense is a recognized lawful, and traditional purpose of the bearing of arms.

And of course, this ruling does specifically allow for the restriction of carry of firearms in some ways, and some locations. As Scalia repeatedly says, no constitutionally protected rights are absolute (under the law).

Finally, any legislation that does not EXPLICITLY violate the above prohibitions, but would have the effect of doing so, is certainly disallowed. This means that standards for licensing, firearms design, dealer sale regulations etc. cannot be set so as to constitute an effective ban, or an onerous burden. Now we just need to spend the next 15 years suing to define what constitutes an onerous burden.

Summary of Impact: So you can't ban guns, or any particular types of guns; you can't keep anyone not a prohibited person from buying, owning, keeping, bearing, and using guns for all lawful purposes (including self defense); you can license and set standards for guns to be sold, and for persons to purchase, own, keep, and bear them; but those standards cannot be discriminatory, arbitrary, capricious, or onerous.

Oh and of course, that doesn't get into the halo effect this has on other cases dealing with fundamental rights issues (remember how many times they state that this is simply protecting a pre-existing right).

Source






South Dakota: No charges filed in shooting case: "The decision has been made by the Moody County State's Attorney not to file charges against Matthew Heinricy in connection with the death of Jason Clough on May 25, 2008 outside a rural Colman Residence. The facts of the case indicate a justifiable homicide as defined by State law, SDCL 22-16-34. The Moody County Grand Jury has also investigated the case and taken testimony and has decided not to issue any indictments in connection with the incident. Jason Clough had attempted unsuccessfully to force his way into the Heinricy home on May 25. From outside the house, he fired his shotgun twice at a door, once through the kitchen window at occupants of the house and had raised his shotgun at another window when Heinricy fired back from inside the house, killing Clough instantly. State law provides that homicide is justifiable if committed while resisting an attempt to commit murder, or, in other words, in defending oneself, or, when necessary to save his own life or others' lives, or avoid great bodily harm when attacked in his own home."


Minnesota: Shot-at meth addict is sentenced for St. Paul burglary: "As he stood awaiting sentencing Friday in Ramsey County District Court, Michael G. Spencer had become more than just a methamphetamine addict convicted of burglary. District Judge Michael Monahan told Spencer that he now was a poster boy for this week's U.S. Supreme Court ruling saying Americans had a right to own guns for self-defense. Spencer, who was sentenced to 34 months in prison, was arrested in April after he broke into a St. Paul home but then was subdued by a homeowner armed with a gun. The homeowner fired at him, and, although the bullet missed, Spencer, 31, feigned unconsciousness until police arrived, court records show. His attorney told the judge that Spencer had been a drug user for 14 years and that he was hopeful he could get treatment to turn his life around."


Neighbors with gun nab rapist: "A 20-year-old man is accused of breaking into a Gary home, holding a knife to three children inside and then raping their 16-year-old baby sitter. Cornelius Hines, of Gary, was lying naked, with a pair of socks on his feet and a rag on his head when Gary police arrived, Lake County Criminal Court records state. The teen had just given the two young girls and little boy she was baby-sitting some cookies and tea Saturday when a man, later identified as Hines, came out of the master bedroom holding a knife in his right hand, police said. He told the three children to stand against the wall, adding he would kill them if they said anything, court records state. Hines then grabbed the teen by the arm and pulled her into the bedroom, threatening to kill her if she didn't do what he said, court records state. One of the children ran next door to the neighbor's house and told them what happened. Someone knocked on the bedroom window while Hines and the teen were inside and then knocked on the front door. Hines let the teen go, and she opened the door, records state. The man at the door gave her a shirt to cover herself. Police said Hines entered through a back window into the home. Hines told police he went to the house to visit a friend, saw the teen in the bedroom and asked what she was doing. He said he started to take off his shorts and a knife fell out of his pocket, which scared her, police said. Hines said the kids heard the teen scream and then some "dudes" came in and one had a gun, records state."