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Old April 14, 2013, 11:41 AM   #60
Charles Mosteller
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Join Date: April 13, 2013
Posts: 10
Quote:
Originally Posted by Glenn E. Meyer
Thus, tell me how Scalia's words of wisdom have helped in the battle to allow one to protect against a school rampage? I really fail to see it.

Again, it will be an empirical question whether prose becomes actuality for gun rights. A 2nd Amend. challenge to carrying in schools seems already lost. Even in strong gun rights states, carry at schools is an iffy proposition.
To be certain, no Supreme Court opinion ever written are a proper and full substitute for courage, preparedness, and wisdom. The wisdom (or lack of wisdom) of a legislative act isn't open to judicial inquiry.

That said, Scalia was authoring a judicial opinion for the Court for a single, particular case - not a personal treatise covering the full range of his thoughts on all matters that the right to keep and bear arms could potentially touch or have relevance to.

Scalia full well knows that every case turns on its own facts. The facts of the Heller case did not deal with schools, generally, or with college campuses, just it didn't deal with many other things (whether those other things be the National Firearms Act, abortion, or jaywalking). Scalia's opinion in the Heller case was never intended to be a panacea, for the very simple reason that it couldn't be. That's just not how things work, and certainly not at the level of the Supreme Court of the United States.

Page # 1 of the opinion provides clarification on what is under consideration, for the sake of the opinion being rendered. I quote verbatim from the opening of the opinion:

"We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution."

Thus, in accordance with the concept of judicial restraint, other issues must await their day in the constitutional sun to be treated to in-depth scrutiny in binding opinion. It would be premature for Scalia to try and author an opinion on carrying arms on a college campus setting, in a case that had nothing, whatsoever, to do with schools.

Also, the Supreme Court doesn't just cast the equivalent of a net, in order to bring cases and controversies before it. It can pretty much pick and choose, where certiorari cases are concerned, but its menu is limited to what others bring to it. Criteria is used to weed out many cases from consideration.

That said, how have Scalia's "words of wisdom," as you described it, helped in the battle to allow one to protect against a school rampage?

Well, if you extract only a few words that he said out of the whole thing that he said, then you have already made the decision to blind yourself to the full potential of the opinion's eventual impact.

It would take some rather bizarre strain of judicial alchemy in order to transmogrify a case about prohibition on the possession of usable handguns in the home into a comprehensive victory for carrying arms on school campuses. Disappointment that emanates from the absence of such judicial alchemy being on display in the controlling opinion in the case serves what purpose? Blinding one's own self to the actual realities of a given case - to include judicial limitations on how far the Court may reach in a single opinion predicated upon a different subject matter, is hardly an indictment of the opinion rendered.

With regard to the passage from the Heller opinion that you quoted, Scalia engaged in what I previous described as the "art of ceding." He ceded on the particular (and very narrow) point that the right in question, what he characterized as the Second Amendment right (even though he knows that the actual right in question doesn't emanate or originate from the Second Amendment), in order to get that potential distraction out of the way.

In all fairness, Scalia doesn't believe that the right to keep and bear arms is an absolute, unlimited right. Does any sitting supreme court justice actually believe such?

When Scalia stated, "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," he's absolutely right. Think about what he actually said, in that particular sentence. He's not sanctioning, via the judicial power, the use of any weapon for any purpose. Whatever means whatever - it is a term that is all-encompassing. All-encompassing would include all sorts of crimes. he dealt with much, in a very tidy manner, in doing so. It allows him to be efficient and focused on what remains before him - the actual issue under consideration.

When he said, "For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues," one should resist the temptation to not read into what he has said, things that he has not said. He did not say, in that statement, for example, that the issue of concealed weapons prohibitions could not be visited or revisited another day. He also did not say that all of those existing prohibitions would ultimately or necessarily prevail, if they are challenged properly. Rather, in the space of a single paragraph, he is merely wasting little time expounding upon lots and lots of things that are not at issue in the case under consideration. That's in the interest of judicial economy, if nothing else.

Of course, you may well disfavor the final two sentences in that paragraph that you hold in disdain, and that you so lament over. So, let's ponder it a bit, also.

"The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. 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."

The reason that the Court's opinion in Heller, the opinion that Scalia authored, should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms, is for the very simple reason that the case at hand wasn't an inquiry into those other things. That the current case was ripe for consideration did not mean, therefore, that everything else under the proverbial sun was suddenly fair game for a big game safari hunt by the Article III court in session.

The final sentence, "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," was quite deliberate on Scalia's part, I believe. Again, all of this that I am writing is my opinion of one, just myself.

The point to focus on? Dangerous and unusual weapons.

The issue is not whether a given arm (weapon) is dangerous, and the issue is not whether a given arm is unusual. Dangerous and unusual is a category all its own. So, the fact that some (or even many) guns are designed to kill is largely irrelevant. The "in common use" selection by Scalia is intended, I believe, to serve as a foundational cornerstone to protect most weapons in use by the law abiding in the republic. Scalia is doing what is known as "cabining it off." By cabining them off, Scalia is laying the ground work to protect them - in future cases that come under consideration by the court.

Scalia is a smart old bird. He already full well knows that the absolute vast majority of guns do not fall under the specific category of being dangerous and unusual. You crave constitutional gold, and yet you bemoan Scalia for giving you constitutional rubies. Go figure.

To deal more fully with "school carry," the Court requires school carry cases to be brought before it. Not even Scalia can spin constitutional gold out of thin air. He's a gifted writer, to be certain, and I love his use of colorful prose, when he authors opinions. But, no supreme court justice is so gifted that they can spin constitutional gold out of the thin air of the judicial firmament.
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