Supreme Court
Second Amendment
Home
Corporations
Inheritance
Rights in Public Schools
Reagan Fascism vs the Warren Court
Roberts emerges as another Rehnquist
Second Amendment
Exclusionary Rule
Hudson vs MI, a Summary of the Exclusionary Rule
The Fifth Amendment
Right of Privacy
The Death Penalty
Contact Me

Is there an individual right to bear arms?
District of Columbia vs Heller on 26 June 2008
 
McDonald vs Chicago on 24 June 2010

jimmoranheller.gif

I agree to disagree.  I would argue from a different view.  The question in Heller turns on whether the Founders intended to acknowledge a rigth to bear arms to individuals.  Because the entire Bill of Rights gives these rights to the States OR to the People, as mentioned in the Ninth and Tenth, then the Second must also give the rights to the States in the milita and to the individuals who make up the militia.  Once Scalia establishes a right for individuals to bear arms, it all follows.  Stevens is left with arguing for militia only, a difficult task which does not answer the evidence that the right also goes to the individuals.  Collective rights cannot separate from individual rights in the First, Fourth, Ninth, and Tenth.  At the time of the Consititution, the common-law was prevalent on the frontier.  Surely the Founders did not mean for the federal government to infringe on those who could not serve in the militia.  My guess is that they wanted to balance individual and state rights against the federal government.  Had the Founders meant to limit the right to bear arms to the militia, they would have placed the right in the body of the Constitution, rather than in the Bill of Rights.
My notes:
The district bans handguns, except for one-year licenses, which requires residents to keep firearms unarmed.
Scalia+Thomas, Kennedy, Roberts, and Alito
The Second protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such a self-defense within the home.
The prefatory clause announces a purpose, but does not limit or expand the scope of the operative clause.
The clause denies Congress power to abridge the right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved.  This interpretation shows in state constitutions at the time.
Drafting history, later interpretations, and former cases follow the right to bear arms.
The Second right is not unlimited.  Heller does not challenge the licensing requirement.
 
Stevens+Souter, Ginsburg, & Breyer, dissent
That the Second protects an individual right does not tell us anything about the scope of the right.
US vs Miller (1939): no indication that the Framers intended to enshrine the common-law right of self-defense in the Constitution.
The "people" in the First, Fourth, & Ninth are collective, not individual rights; therefore, the Second is also.
The Fourth describes a right against governmental interference to protect a purely individual interest.
To keep and bear arms
Court does not read the right to posess arms for "lawful, private purposes"  Parker vs District of Columbia (2007)
Court limits protection to the right "to posess and carry weapons in case of confrontation". 
 
McDonald vs Chicago  2010
The Second Amendment as defined in Heller applies against the states as well, and the incorporation is complete.
Alito+Scalia, Kennedy, Thomas, and Roberts
Alito uses the very same evolving standards as other incorporations, and activist gesture.  Somehow the militia evolved into self-defense!  The Court ignores the right of state militias, which cannot be placed against the states themselves!  It also ignores federalism in which local authorites know which laws work best in their district.  Could it be had Sandra Day O Connor stayed on the Court, there would have been a lack of a vote for this activism?
 
Alito uses the Seventh Circuit's following of the Slaughterhouse Cases (1873) and the privileges and immunities clause of the Fourteenth as faulty.  The Court uses the due process clause.  Thomas does not, and he wants to overrule the Slaughterhouse cases, perhaps to revise all the incorporation cases!
Alito tests self-defense as part of ordered liberty and deeply rooted (an old test from the last century over incorporation of rights against the states).  The Fourteenth goes beyond antidiscrimination in its effect and intent.
 
Scalia allows incorporation as the best method of passing through the due process clause of the Fourteenth.  Like Felix Frankfurter, Scalia tries to cloak his personal bias behind rhetoric.
 
Thomas actually agrees with the dissent that this case is substantive due process, so he finds self-defense as a right essential to the preservation of liberty, apart from the Slaughterhouse cases, and as a privilege and immunity.
 
Stevens dissents and tries to narrow incorporation to the due process clause as part of due process (such as the rights of defendants in criminal cases).  For him, all due processes have substantive interests.  Furthermore, the states have the right to regulate arms as part of their police powers.  Colonial governments also regulated arms. 
 
Breyer+Ginsburg and Sotomayor
Incorporation of self-defense does not further any other objectives.  Unlike the other rights, it is not a necessary part of the democratic process, does not portect individuals from majorities, not protect from unfair seizure of property.
 
My take: Having an arm in the home should be under the right of privacy!  Therefore, states would have to show a greater interest in regulating arms in the home, versus in public. 
 

Enter supporting content here

supremecourt1967.jpg

My favorite Supreme Court from 1967, going the same way as above:
Chief Justice Earl Warren in center
Hugo Black to his right. (1937)
William O Douglas to his left (1939)
John Marshall Harlan right of Black (1955)
Willaim Brennan left of Douglas (1956)
Potter Stewart (1958)
Byron White (1962)
Abe Fortas (1965)
Thurgood Marshall (1967)
Although I'd prefer Arthur Goldberg instead of Fortas.