Read the Heller Opinion

Read the Heller Opinion

This is a discussion on Read the Heller Opinion within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Over and over I read arguments and theories about the contours of rights that the second amendment protects. If you do want to engage in ...

Page 1 of 2 12 LastLast
Results 1 to 15 of 21
Like Tree19Likes

Thread: Read the Heller Opinion

  1. #1
    VIP Member
    Array PEF's Avatar
    Join Date
    Aug 2011
    Location
    Georgia
    Posts
    3,898

    Read the Heller Opinion

    Over and over I read arguments and theories about the contours of rights that the second amendment protects. If you do want to engage in serious debate outside of this forum - with people you can actually see :) - I suggest you read the Heller opinion - at least the opinion written by Scalia. You can skip the dissent unless you want really ugly details.

    It is available here: http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

    Scalia is an originalist, which means he tries to interpret the Constitution with the Framer's intent in mind. He is also a very clear writer, and the opinion, although of moderate length, is very easy to read and understand.

    This a very informative opinion, as it addresses the clauses of the amendment, the rights it protects, and the limitations (peripherally, at least) to which those rights are subject. The next time an anti comes at you with specious arguments about the Framers' intent, etc., you can shoot those arguments down with authority after reading this. Also, and perhaps more importantly, you will be aware of some of the limits on the arguments you can make - which means you'll know what you can say without looking like a Constitutional fool.

    Don't go to Wikipedia first! That's cheating, and you'll learn a lot more by reading the opinion.

    Okay, I'll get off my high horse.

    (There will be a quiz on Monday.)
    -PEF, a Framer with a Steelie...
    ~~~~~~~~~~~~~~~~~~~~~~
    1. All guns are always loaded.
    2. Never let the muzzle cover anything you are not willing to destroy.
    3. Keep your finger off the trigger until your sights are on the target.
    4. Be sure of your target and what is beyond it.


  2. #2
    VIP Member Array Ghost1958's Avatar
    Join Date
    Dec 2012
    Location
    Kentucky
    Posts
    6,220
    Good reading and thanks for posting this.. however it assumes one believes that local state federal government or courts have the authority to limit or regulate a Constitutional right that plainly states they do not.
    ksholder, ccw9mm, Tzadik and 1 others like this.
    " It is sad governments are chief'ed by the double tongues." quote Ten Bears Movie Outlaw Josie Wales

  3. #3
    VIP Member Array Eagleks's Avatar
    Join Date
    May 2008
    Location
    Kansas
    Posts
    7,839
    see sig line .
    ANGLICO likes this.
    I don't make jokes. I just watch the government and report the facts. --- Will Rogers ---
    Chief Justice John Roberts : "I don't see how you can read Heller and not take away from it the notion that the Second Amendment...was extremely important to the framers in their view of what liberty meant."

  4. #4
    VIP Member
    Array OldVet's Avatar
    Join Date
    Nov 2009
    Location
    S. Florida, north of the Miami mess, south of the Mouse trap
    Posts
    16,900
    All that to say this:

    "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what isnot debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.We affirm the judgment of the Court of Appeals."

    A good but long read that I had to skim through. Very analytical in its disection of 2A, confirming what gun owners have claimed all along.
    gtfoxy, rugergunner and ANGLICO like this.
    Retired USAF E-8. Lighten up and enjoy life because:
    Paranoia strikes deep, into your heart it will creep. It starts when you're always afraid... "For What It's Worth" Buffalo Springfield

  5. #5
    VIP Member Array Sig 210's Avatar
    Join Date
    Oct 2006
    Location
    Southwestern OK
    Posts
    2,017
    IMO: Good as it was, Heller was not a resounding affirmation of our Second Amendment rights. Four justices watered down the their position in order to get a fifth justice on board.

    Justice Antonin Scalia wrote:

    "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any , weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues ... The majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."
    Hopyard likes this.

  6. #6
    VIP Member
    Array PEF's Avatar
    Join Date
    Aug 2011
    Location
    Georgia
    Posts
    3,898
    Some can disagree with the contours outlined in the opinion, I certainly won't debate that. But the opinion does provide an historical and contextual analysis of the 2A, which I often find lacking in arguments.
    Sig 210 likes this.
    -PEF, a Framer with a Steelie...
    ~~~~~~~~~~~~~~~~~~~~~~
    1. All guns are always loaded.
    2. Never let the muzzle cover anything you are not willing to destroy.
    3. Keep your finger off the trigger until your sights are on the target.
    4. Be sure of your target and what is beyond it.

  7. #7
    VIP Member
    Array Hopyard's Avatar
    Join Date
    Jun 2006
    Location
    Disappeared
    Posts
    11,721
    Quote Originally Posted by Sig 210 View Post
    IMO: Good as it was, Heller was not a resounding affirmation of our Second Amendment rights. Four justices watered down the their position in order to get a fifth justice on board.

    Justice Antonin Scalia wrote:
    "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any , weapon whatsoever in any manner whatsoever and for whatever purpose:"

    This is the absolute key phrase in the decision.

    The implications from this are probably not acceptable to many here. It means there is a distinction between an infringement
    and a regulation.
    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
    Andrew Jackson

  8. #8
    Distinguished Member Array noway2's Avatar
    Join Date
    Jul 2011
    Location
    North Carolina
    Posts
    1,905
    Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
    So here is one big question: from the discussion that was running rampant several months ago, and Big O's proclamation of an desiring a renewal of an AWB, would an AR 15, which is arguably the most commonly possessed rifle by civilians and police in modern times, be protected? By the same token, NFA items, though allowed, wouldn't seem to be anywhere near as "in common use".

    It seems to me that the focus on the allowable restrictions has more to do with where and how weapons may be carried, and what subsets of the population may be excluded from "the people", e.g. felons, than what types of weapons may be restricted.

  9. #9
    VIP Member
    Array PEF's Avatar
    Join Date
    Aug 2011
    Location
    Georgia
    Posts
    3,898
    Quote Originally Posted by noway2 View Post
    So here is one big question: from the discussion that was running rampant several months ago, and Big O's proclamation of an desiring a renewal of an AWB, would an AR 15, which is arguably the most commonly possessed rifle by civilians and police in modern times, be protected? By the same token, NFA items, though allowed, wouldn't seem to be anywhere near as "in common use".

    It seems to me that the focus on the allowable restrictions has more to do with where and how weapons may be carried, and what subsets of the population may be excluded from "the people", e.g. felons, than what types of weapons may be restricted.
    Well, that's for the next court to decide - that particular issue wasn't before the court.

    But there have always been regulations - look at the first amendment. For speech, there are time, place and manner restrictions; fighting words; obscenity; defamation; etc. As for religion, there are certain practices that cannot be done lawfully.

    But here at least the SCOTUS recognized the protection of an individual right. The limits have not yet been clearly defined (apart from, of course, fighter jets, nuclear weapons, tanks, etc.).
    Last edited by PEF; May 12th, 2013 at 12:11 AM. Reason: was --> wasn't
    -PEF, a Framer with a Steelie...
    ~~~~~~~~~~~~~~~~~~~~~~
    1. All guns are always loaded.
    2. Never let the muzzle cover anything you are not willing to destroy.
    3. Keep your finger off the trigger until your sights are on the target.
    4. Be sure of your target and what is beyond it.

  10. #10
    VIP Member Array mcp1810's Avatar
    Join Date
    Jan 2007
    Location
    Texas
    Posts
    5,006
    Quote Originally Posted by Sig 210 View Post
    IMO: Good as it was, Heller was not a resounding affirmation of our Second Amendment rights. Four justices watered down the their position in order to get a fifth justice on board.

    Justice Antonin Scalia wrote:
    But if we look closely at what Scalia wrote we can see that the prohibitions were on the carrying of concealed weapons. So one could argue that while the opinion continues to require permits or licenses for concealed carry it could be inerpreted as saying that open carry is not to be restriced. Imagine, anyone being able to OC in NYC or Chicago and Bloomie and Emanuel can't do a thing about it!
    Pistology likes this.
    Infowars- Proving David Hannum right on a daily basis

  11. #11
    Senior Member
    Array GraySkies's Avatar
    Join Date
    Sep 2012
    Location
    Western Washington
    Posts
    621
    Quote Originally Posted by Hopyard View Post
    "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any , weapon whatsoever in any manner whatsoever and for whatever purpose:" This is the absolute key phrase in the decision.
    We can talk about licensing, and NICS checks, and lots of other stuff that perhaps amounts to regulation without infringement. I don't find some regulation objectionable. but I think it will take more future court tinkering to determine where that line is between regulation and infringement. Heller is just a start to that analysis.

    I consider this the key phrase:

    "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation."

    As far as I'm concerned, this decision should make every state a SHALL ISSUE state. Whatever other hoops there are to jump through, arbitrary and capricious "may issue" laws should all be getting challenged in court by those who have been denied under them.
    PEF likes this.
    "Freedom and discipline have come to be regarded as mutually exclusive, when in fact freedom is not at all the opposite, but the final reward of discipline" - Elisabeth Elliot

    "While they are saying, “Peace and safety!” then destruction will come upon them suddenly" 1Thess 5:3

  12. #12
    VIP Member
    Array Hopyard's Avatar
    Join Date
    Jun 2006
    Location
    Disappeared
    Posts
    11,721
    Quote Originally Posted by GraySkies View Post
    We can talk about licensing, and NICS checks, and lots of other stuff that perhaps amounts to regulation without infringement. I don't find some regulation objectionable. but I think it will take more future court tinkering to determine where that line is between regulation and infringement. Heller is just a start to that analysis.

    I consider this the key phrase:

    "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation."

    As far as I'm concerned, this decision should make every state a SHALL ISSUE state. Whatever other hoops there are to jump through, arbitrary and capricious "may issue" laws should all be getting challenged in court by those who have been denied under them.
    Responding to part in bold: There are only two governmental bodies which have the ability to determine the line.
    Courts and ELECTED legislatures. Congress could and should create a 2A protection act which spells out the boundaries.
    At least they'd come from a representative body, and still be subject to court challenge. If the Supremes do it,
    they are effectively legislating. Personally, I think Congress would write a better bill defining the boundaries of 2A for non-military non-leo than the courts will, in their chaotic fashion as cases arise.
    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
    Andrew Jackson

  13. #13
    VIP Member
    Array Pistology's Avatar
    Join Date
    Apr 2008
    Location
    South Coast LA Cty
    Posts
    2,124
    Quote Originally Posted by Hopyard View Post
    Responding to part in bold: There are only two governmental bodies which have the ability to determine the line.
    Courts and ELECTED legislatures. Congress could and should create a 2A protection act which spells out the boundaries.
    At least they'd come from a representative body, and still be subject to court challenge. If the Supremes do it,
    they are effectively legislating. Personally, I think Congress would write a better bill defining the boundaries of 2A for non-military non-leo than the courts will, in their chaotic fashion as cases arise.
    The courts may have no choice but to effectively legislate as our congress hasn't the taste for substantial constitutional protection. Still, the courts are rejecting hearing and moving at a snail's pace on this. At least Heller and McDonald are good springboards. I mean springboards for us 2A defenders as well as legislators. It is on us to know the facts, as the OP rightly and appropriately points out and to hold our legislators' feet to the fire.
    Americans understood the right of self-preservation as permitting a citizen to repel force by force
    when the intervention of society... may be too late to prevent an injury.
    -Blackstone’s Commentaries 145–146, n. 42 (1803) in District of Columbia v. Heller, 554 U.S. 570 (2008)

  14. #14
    Senior Member Array rugergunner's Avatar
    Join Date
    Dec 2012
    Location
    Indiana
    Posts
    735
    Quote Originally Posted by OldVet View Post
    All that to say this:

    "Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what isnot debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.We affirm the judgment of the Court of Appeals."

    A good but long read that I had to skim through. Very analytical in its disection of 2A, confirming what gun owners have claimed all along.
    I agree. That is about what I thought.
    I would rather die on my feet, than to live on my knees.

  15. #15
    VIP Member
    Array Hopyard's Avatar
    Join Date
    Jun 2006
    Location
    Disappeared
    Posts
    11,721
    Quote Originally Posted by Pistology View Post
    The courts may have no choice but to effectively legislate as our congress hasn't the taste for substantial constitutional protection. Still, the courts are rejecting hearing and moving at a snail's pace on this. At least Heller and McDonald are good springboards. I mean springboards for us 2A defenders as well as legislators. It is on us to know the facts, as the OP rightly and appropriately points out and to hold our legislators' feet to the fire.
    Responding to the part in bold--- unlike the courts, Congress can be pressured and influenced. There are a variety of issues
    on which there could be a meeting of minds. The courts on the other hand make their decision and that's that.

    My opinion only, I think the courts have less backbone for upholding 2A than Congress does. Our history and even the specific
    wording of Heller demonstrate this.
    I think the courts will be just fine with NY's new law for example.

    Congress however could declare it an infringement of 2A to have mag capacity limits below some
    number Congress chooses. That would prevent each state from willy nilly picking its own; 10 here, 7 there, 5 someplace else, 20 in yet another state. The courts can't do that kind of fine tuning and even if they did, they'd be rightly accused of
    legislating from the bench.

    Notwithstanding a great deal of enthusiasm for Heller here, I've always been and remain very skeptical that it will have a
    real effect on what actually goes on in the states which are most abusive (ah, restrictive) of gun owner rights.
    If the Union is once severed, the line of separation will grow wider and wider, and the controversies which are now debated and settled in the halls of legislation will then be tried in fields of battle and determined by the sword.
    Andrew Jackson

Page 1 of 2 12 LastLast

Links

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •