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Old July 22, 2010, 09:01 AM   #96
Aguila Blanca
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Join Date: September 25, 2008
Location: CONUS
Posts: 6,191
Quote:
I think we need to be aware of the differences between Heller and McDonald.

In Heller, the core right was the Right to Keep Arms for Self Defense (in the home). In McDonald, it was held that the Right to Keep and Bear Arms is Fundamental (and thus incorporated as against the States).

This distinction is critical when addressing the lower courts.
Yes ... and no.

In Heller, the question raised by the lawsuit was whether or not the right discussed in and (supposedly) guaranteed by the 2nd Amendment was an individual right or a collective (and militia-related/dependent) right. The part about "keeping" and "in the home for personal defense" was only the specific background for qualifying the plaintiffs.

There is only ONE right in the 2nd Amendment, and this was discussed in Scalia's Heller ruling as well as in Alito's McDonald ruling. It is a single right to both keep AND BEAR arms. They are, by the language of the Amendment itself, inseparable. Once the SCOTUS affirmed that the "keep" part is an individual right and that it applies to the states, they automatically affirmed the "bear" part. Alito's decision is perhaps more detailed on this point, but Scali's decision understood and recognized this, as well.

Thus, in Heller, the holding was NOT that "the core right was the Right to Keep Arms for Self Defense (in the home)." The holding in Heller was that the core right in the 2nd Amendment is an individual right not dependent on membership in a militia.
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