Meet Your Second Amendment: D.C. v. Heller Decided (Updated)

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15 Responses

  1. MannyJ says:

    Get used to police breaking down even more doors with even more unnecessary force and even less warning. They’ll argue, and most judges will accept, that if people have a right, the police have to assume they’ll exercise it, and it’s not fair to require the police to put themselves in more danger than they have to, so we should now treat EVERYONE under suspicion the way we already treat crack-house residents.

    Admittedly, they were 90% there already.

  2. RAH says:


    You mention the open language on arms for knives, pepper spray and tasers. Since they said arms is mutable then that can apply to any future weapons used by a single person. This can be used to challenge numerous states laws that restrict the carry of knives and civilian possesion of tasers. Plus any defensive armor is allowed. Many states like Maryland tried to prohibit people the use of body armor.

    Unusual and dangerous is not necessary full auto weapons it could be interpreted to grenade launchers and that type of unusual civilian arms. Machine guns are common and used in this country by police and those who pay the tax and get the permits.

  3. Alan says:

    IANAL, but I don’t see the door shut on overturning the post-86 MG ban in the Heller opinion. We’re may be stuck with registration of some kind, but the 86 ban makes no sense in light of Heller, especially when pre-86 NFA weapons ARE legal for civilians to own.

    If a machine gun was made and registered before the 86 ban, it is legal for me to own, but if it was made after the ban it’s illegal. Not to mention the $200 NFA tax, the sole purpose of which was to price machine guns out of the market for regular people in 1934.

    Talk about arbitrary and capricious!

  4. Jack Burton says:

    Many states that allow CCW still think they have the power to ban the legal carrying of guns within a church. Maybe we can now see the dismissal of that claim to power. Here’s a layman’s thoughts about it.

  5. MarkJ says:

    Just an idle question: in what ways, if any, might today’s decision affect Canadians?

    I can’t help but think that many Canadians are now saying to themselves, “If Americans now have a clearly established individual right to own and bear arms, why can’t we as well?”

  6. rosignol says:

    I doubt this will have much impact north of the border, although I expect more than a few Canadians are looking at our 1st Amendment and wishing they had one of their own.

  7. JVDeLong says:

    I think you are too optimistic in saying: “The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table.”

    Stare decisis is a conservative virtue — given an Obama-named Supreme Court, all conservative decisions, especially the close ones, are subject to revisiting.

  8. JVDeLong says:

    I think you are too optimistic in saying: “The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table.”

    Stare decisis is a conservative virtue — given an Obama-named Supreme Court, all conservative decisions, especially the close ones, are subject to revisiting.

  9. Brett Bellmore says:

    Yes, stare decisis only works one way, an Obama court would overturn Heller in an instant.

    It’s quite fortunate that the two most elderly Justices were both in the minority; Running the actuarial calculations, Obama will likely get to replace one, quite possibly two, of the minority Justices, but probably will not get a crack at the majority seats.

    Though accidents do happen. As do court packing schemes, which there is already talk of.

    Man, if the Democrats get Heller overturned by packing the court, I’m moving overseas; I have a kid on the way, and don’t want to raise him in the middle of a civil war!

  10. Bart DePalma says:

    The Court noted when describing Cruikshank on page 47 that the decision only held that the Bill of Rights including the Second Amendment “by its own force” did not apply to the States and later in footnote 23 further noted that Cruikshank “did not engage in the sort of 14th Amendment required by our later cases.” In fact, Cruikshank and Presser did not address 14th Amendment incorporation at all as noted in Miller.

  11. Dr Ruger says:

    Justice Stevens’ dissent is severely flawed and it is scary to think that one more dissenter would have effectively repealed the second amendment. Stevens’ premise is that the 2nd states that the ‘right’ extends to only bone fide miltia members to store the weapons of war within their homes to to engage in armed conflict on behalf of the state/federal government in defense of what those governments dictate. The absurdity of a ‘right not to be infringed’ declared in the Constitution to apply to service in a bone fide military organization is hard to comprehend. Why would the Framers need to guarantee the right of someone in a combat miltia the ‘right’ to be in a combat militia fighting? Does that then mean that you have a right to be in a militia if you so want that cannot be infringed? First let’s ask who was the militia? At the time it was ordinary, able citizens who voluntarily formed defensive units. They provided their own weapons. Yet Stevens equates them to State National Guards under the direction of the governor. Would this then mean that Guardsmen can ‘keep’ their weapons of war at their homes? Would this then include mortars, TOWs, Bradleys & M60-A2’s? Or, if it truly only applies to militias, then folks in the Michigan and other militias should have the right to keep & bear all manner of offensive & defensive weapons including Stingers, Tomahawks & MRVs. If only Guardsmen have the ‘right not to be infringed’ to store war weaponry at their homes and to fight in active combat for their country, what about the NAVY, ARMY, AF & Marines? What would these guardsman be allowed to fight for……perhaps only things that Justice Stevens sanctioned……perhaps a women’s right to choose (abortion on demand)? The militias could shoot abortion protesters. Maybe the ‘rights’ of the enemy combatants to go before a US judge? How about forced school busing? Or better yet, enforce the elimination of ‘hate speech’ and the implementation of the ‘fairness doctrine’. But Stevens does not have to worry about being patently ridiculous, he’s a Supreme Court Justice appointed for life so he can be as dumb as a box of hammers and we can’t do anything about it.

  12. Joey P. Child says:

    Mike, you state: “Thus machineguns can be excluded from constitutional protection, even though they were obviously ‘useful in warfare in 1939.'” and “As predicted, the Court expressly distinguished the federal ban on post-1986 machine guns, 18 U.S.C. 922(o), and the federal felon-in-possession ban, 18 U.S.C. 922(g)(1), indicating that both are safe from constitutional challenge.”

    I think you may have “overread” (tongue firmly in cheek) Heller on this point. Note that, when Justice Scalia lists the types of “long-standing” prohibitions that Heller should not be read to overturn on pp. 54-55 of the Court’s opinion, the automatic weapon ban is conspicuously absent.

    Moreover, understanding the Miller test as defined by Heller to be “whether the weapon currently (i.e., at the time of the challenge) is a weapon typically possessed and in common use by law-abiding citizens for lawful purposes,” it would be an absurdity for the Court to rule that automatic weapons do not meet this standard and therefore may be prohibited, when the reason that they cannot meet the standard (i.e., are not typically possessed and in common use) is the existing federal prohibition. That would be circular logic that any thoughtful observer should see through.

    I believe that the prohibition/severe restrictions on automatic weapon possession and use is subject to challenge under Heller. I know that a lot of law-abiding citizens who own guns, at least in part, for both of the two central reasons discussed in Heller–personal defense and defense against tyranny–would very much like to own automatic weapons, but are prevented from doing so under federal law.

  13. Brett Bellmore says:

    It would be circular logic, that’s true. But that’s not the sort of thing that stops the Supreme court. With 4 of the ‘Justices’ amounting to a fixed block willing to rule ANY degree of gun regulation, no matter how onerous, constitutional, all it takes is a 1 of 5 minority among the remaining Justices to endorse any particular infringement. I suspect it’s not going to be all that hard to persuade Kennedy to vote against the right to own machine guns.

  14. Sam Draper says:

    I agree that there is some ambiguity about M16s in the opinion. If they really are serious about an originalist reading of the amendment, historically laws prohibited the carrying of “dangerous and unusual weapons” but not the keeping of them. You could own anything you desired; you just could not necessarily carry it around town.

    I think it is interesting that the paragraph starts out talking about M16s, which realistically are not any more dangerous than most semi-automatic sporting rifles, and ends up talking about anti-tank and anti-aircraft weapons. As far as being dangerous, the M16 is basically identical to legal AR-15s or Min-14s; it does not make sense to lump it in the same category with Javeline or Stinger missiles.

  15. tatter says: