Spin from the anti-gunners
I think these people are on drugs:
The Parker/Heller cases were a devastating defeat for gun rights ideologies [in part because those decisions affirmed that a wide range of gun control regulation is both constitutional and permissible and because they refused to adopt a strict scrutiny standard for future regulations].
Ya know, they do, however, sound a bit like some pro-gunnies who like to say Heller accomplished nothing.
May 19th, 2009 at 9:40 am
Ya know, they do, however, sound a bit like some pro-gunnies who like to say Heller accomplished nothing.
It seems to me that the Ninth Circuit Court of Appeals has proved that position wrong through their incorporation ruling in Nordyke. Maybe it’s not enough, or not as much as we’d like, but it damn sure ain’t nothing.
May 19th, 2009 at 12:28 pm
The article linked is a gross misrepresentation of what Heller actually contains.
But you knew that already because it was written by the anti-rights group Coalition to Stop Gun Violence.
Just to reiterate, Heller was ONLY concerned with the right to keep a handgun in one’s home. It was a very narrow question before the court. The decision says this about the level of scrutiny required in this case:
“Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,(27) banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.”
Footnote (27) reads:
“Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carolene Products Co., 304 U. S. 144 , n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments…”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”
In other words, the law is the law, and the law is the 2nd Amendment, not whatever Justice Breyer wants it to be.
Later in the decision, addressing the Breyer dissent, the decision reads:
“Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. 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. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would notapply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
In other words, self defense is an inalienble human right guaranteed in the 2nd Amendment, whose purpose it to secure that right for individuals against the government.
There is NOTHING ELSE in the Heller decision about levels of scrutiny, and the questions of legality for licensing and regulation by DC of firearms ownership, beyond keeping one in one’s home, were not addressed in this case either.
May 19th, 2009 at 12:35 pm
Hey, does the CSGV have a zero comments policy or is that my imagination? I’d never been to their site before and was unaware that Reasoned Discourse was illegitimate there.
May 20th, 2009 at 4:37 am
What amazes me about the gun control debate is not that we are winning, but that it is taking us so long to win. The CSGV article is a case in point.
Most of the article is nothing more than a regurgitation of an email sent from the “Potowmack Institute”. But this supposed institute is nothing more than an one man show for the benefit of it’s trollish denizen.
That guy haunted internet discussion groups for years with his hard-core anti-gun and anti-2nd Amendment zealotry. I guess he finally took it to the next level with his ridiculous “Potowmack Institute.” See this…
http://www.thehighroad.org/archive/index.php/t-148887.html
But really now, what’s the difference between that anti-gun troll and Josh Sugarman of the VPC? Nothing really except that Josh is bankrolled by the billion dollar Joyce Foundation.
So this is really what it all boils down to — millions of American gun owners vs a scattering of lone fanatic anti-gunners. It’s shocking how much damage those fanatics have managed to inflict on American politics.
Some day, someone will right a book on the gun control movement and expose to the light of public consciousness the lowly people who are the back bone of the anti-gun crusade. It’s a book long overdue.