SCOTUS' "Heller" gun rights fraud

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Rach3
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SCOTUS' "Heller" gun rights fraud

Post by Rach3 » Sat May 28, 2022 5:46 pm

Some admittedly long sections from the Heller case I admittedly selected of interest to my own views , but I thought even more convincing now, in fact chilling, as one would think even the Heller majority would be appalled at what the Heller decision has wrought and how our society has continued its swift descent into lawless abyss.The Heller majority’s new “ gun right “ has not only spawned and encouraged gun proliferation , but the absolutist “right of self-defense” the Heller majority claimed to have found in the 2nd Amendment has proven worthless and powerless to defend any of us , let alone our children. Shame on all who think otherwise. Unfortunately, wishy-washy Roberts , and gun nuts Alito and Thomas were on Heller and now have been joined by 3 other nuts. The entire majority opinion and dissents here , https://www.supremecourt.gov/opinions/07pdf/07-290.pdf , for you to double check my admitted venting:

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunt­ing and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question….

The Second Amendment was adopted to protect the right of the people of each of the several States to main­ tain a well-regulated militia. It was a response to con­cerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limit­ ing any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution…

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Sustaining an in­ dictment under the Act, this Court held that, “n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable rela­ tionship to the preservation or efficiency of a well regu­ lated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instru­ ment.” Miller, 307 U. S., at 178. The view of the Amend­ ment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption…

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there.No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demon­ strates that its Framers rejected proposals that would have broadened its coverage to include such uses…

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amend­ ment was intended to limit the power of Congress to regu­ late civilian uses of weapons.Our discussion in Lewis was brief but significant. Upholding a con­ viction for receipt of a firearm by a felon, we wrote: “These legislative restrictions on the use of firearms are neither based upon constitution­ ally suspect criteria, nor do they entrench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preser­ vation or efficiency of a well regulated militia’).” 445 U. S., at 65, n. 8….

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dra­ matic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be re­ opened in every case, and one could not lay one’s own

In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.

Indeed, not a word in the constitutional text even ar­ guably supports the Court’s overwrought and novel de­ scription of the Second Amendment as “elevat[ing] above all other interests” “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 63….

The Court concludes its opinion by declaring that it is
not the proper role of this Court to change the meaning of rights “enshrine[d]” in the Constitution. Ante, at 64. But the right the Court announces was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. The majority’s exegesis has utterly failed to establish that as a matter of text or his­ tory, “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” is “elevate[d] above all other interests” by the Second Amendment. Ante, at 64.Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for pri­ vate purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.” Ante, at 64. Given the presumption that most citizens are law abiding, and the reality that the need to defend one­ self may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to beknocked off the table….

I do not know whether today’s decision will increase the
labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.
The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. 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 weap­ ons, 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. Absent compel­ ling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.For these reasons, I respectfully dissent.


Justice Breyer dissenting:

The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by JUSTICE STEVENS—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th- century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.

The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are— whether they do or do not include an independent interestin self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unrea- sonable or inappropriate in Second Amendment terms. This the majority cannot do…


The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws—a question that respon-dent and his amici do not convincingly answer…Further, suppose that respondent’s amici are right when they say that householders’ possession of loaded handguns help to frighten away intruders. On that assumption, one must still ask whether that benefit is worth the potential death-related cost. And that is a question without a directly provable answer.Finally, consider the claim of respondent’s amici thathandgun bans cannot work; there are simply too many illegal guns already in existence for a ban on legal guns to make a difference. In a word, they claim that, given the urban sea of pre-existing legal guns, criminals can readily find arms regardless. Nonetheless, a legislature might respond, we want to make an effort to try to dry up that urban sea, drop by drop. And none of the studies can show that effort is not worthwhile…Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the pri- mary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a “Militia,” says nothing of “self-defense…”

Further, any self-defense interest at the time of the Framing could not have focused exclusively upon urban- crime related dangers….

It is similarly “treacherous” to reason from the fact that colonial legislatures did not enact certain kinds of legislation an unalterable constitutional limitation on the power of a modern legislature cannot do so. The question should not be whether a modern restriction on a right to self-defense duplicates a past one, but whether that restriction, when compared with restrictions originally thought possible, enjoys a similarly strong justification. At a minimum that similarly strong justification is what the District’s modern law, compared with Boston’s colonial law, reveals.I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order…“Putting all of [the Second Amendment’s] textual elements together,” the majority says, “we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” Ante, at 19. Then, three pages later, it says that “we do not read the Second Amendment to permit citizens to carry arms for any sort of confrontation.” Ante, at 22. Yet, with one critical exception, it does not explain which confrontations count. It simply leaves that question unanswered.

The majority does, however, point to one type of confron- tation that counts, for it describes the Amendment as “elevat[ing] above all other interests the right of law- abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 63. What is its basis for finding that to be the core of the Second Amendment right? The only historical sources identified by the major- ity that even appear to touch upon that specific matter consist of an 1866 newspaper editorial discussing the
Freedmen’s Bureau Act, see ante, at 43, two quotations from that 1866 Act’s legislative history, see ante, at 43–44, and a 1980 state court opinion saying that in colonial times the same were used to defend the home as to main- tain the militia, see ante, at 52. How can citations such as these support the far-reaching proposition that the Second Amendment’s primary concern is not its stated concern about the militia, but rather a right to keep loaded weap- ons at one’s bedside to shoot intruders?

Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The major- ity says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Ante, at 53. This definition conveniently ex- cludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” Ante, at 57; see also ante, at 54–55. But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine- gun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self- defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

At the same time the majority ignores a more important question: Given the purposes for which the Framers en- acted the Second Amendment, how should it be applied to modern-day circumstances that they could not have an- ticipated? Assume, for argument’s sake, that the Framers did intend the Amendment to offer a degree of self-defense protection. Does that mean that the Framers also in- tended to guarantee a right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick up a loaded gun on their parents’ bedside table? That they (who certainly showed concern for the risk of fire, see supra, at 5–7) would have lacked concern for the risk of accidental deaths or suicides that readily accessible loaded handguns in urban areas might bring? Unless we believe that they intended future generations to ignore such matters, answering questions such as the questions in this case requires judgment—judicial judgment exercised within a framework for constitutional analysis that guides that judgment and which makes its exercise transparent. One cannot answer those questions by combining incon- clusive historical research with judicial ipse dixit.

The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launch- ing the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.

( Rach3: The Heller majority claimed that since an armed State militia was OK under the 2nd Amend., and as militia members would then probably keep their guns at home to protect their homes, too, so 2nd provided that private right, too.What BS.At the time of the Framing , most militia weapons were kept at armories, especially in urban areas, not at home. Current active duty military members have weapons issued to them, they do not ( are not allowed to ) keep them at home.Same for members of current National Guards.The Heller majority also “reasoned “ that since people hunted at the time of the Framing, the 2nd must also protect hunting, ignoring that not all people then hunted, certainly not in urban areas, or even in rural areas, and certainly not now except for sport. Where in the 2nd is a right to gun sport protected , or gun sports given priority over other sports, like soccer ? Heller is pure, typical, alt.Right fraud. )

Rach3
Posts: 5877
Joined: Tue Apr 03, 2018 9:17 am

Re: SCOTUS' "Heller" gun rights fraud

Post by Rach3 » Sat May 28, 2022 7:38 pm

Louisiana Sen. Cassidy's "feral hogs" defense of AR-15's ( I kid you not ):

https://news.yahoo.com/sen-bill-cassidy ... soc_trk=ma

I rest my Heller case.

NO more Tabasco or Louisiana crayfish or anything.

maestrob
Posts: 15201
Joined: Tue Sep 16, 2008 11:30 am

Re: SCOTUS' "Heller" gun rights fraud

Post by maestrob » Sun May 29, 2022 7:46 am

Rach3 wrote:
Sat May 28, 2022 7:38 pm
Louisiana Sen. Cassidy's "feral hogs" defense of AR-15's ( I kid you not ):

https://news.yahoo.com/sen-bill-cassidy ... soc_trk=ma

I rest my Heller case.

NO more Tabasco or Louisiana crayfish or anything.
Thanks for such an in-depth post, Steve. I am overwhelmed by such blatantly slanted reasoning by judges who are simply tailoring their reasoning to justify their alt-Right POV. The dissenters have my support in toto with such commonsense thinking.

Statistics show that the safest areas in the USA are those with sensible restrictions on gun rights. I'm glad I live where I live.

A young man who made threats about shooting up a high school in Queens was arrested last night. I'll see if I can find details....

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