The Perils of Scalia

[Charles Mosteller]

Originally Posted by Glenn E. Meyer

Heller as the wonderful solution:

http://www.nytimes.com/2013/04/16/us...case.html?_r=0

Also, my past optimistic view was evidence based at the time. That is a simple point. I wish I was wrong.

Well, what is it that you thought that the Heller case might be a wonderful solution for? School carry? It wasn't at issue in the case, so common sense dictates that the Court wasn't going to rule on it. Courts tend to rule narrowly, and particularly when constitutional issues are under consideration.

As far as this "evidence" that you refer to, how many right to keep and bear arms cases has the United States Supreme Court handed down opinions on, in the time since the Heller case was decided several years ago?

I know that there was the McDonald case, where the Court then utilized incorporated the right recognized in Heller. Again, school carry wasn't at issue, so it wasn't going to be resolved in a case where it's not even at issue.

My view on the Heller case is not that it is a wonderful solution to all attempts at gun control, but rather, that it was a positive development.

Since one legislature cannot bind the hands of a future legislature, future attempts to impose gun control will continue to be possible, no matter what the judiciary rules.

Originally Posted by Glenn E. Meyer

I currently see that I was perhaps incorrect. I thought that Obama would talk the ban talk but do nothing for political reasons. But I was wrong. He went full press on the issue. I thought that progun Democrats and most progun Republicans would hold the line (Toomey, Manchin - hey, being touted for President!). We will see about the House. Also, my optimism was based on the history of desegregation. In that case, the Federal government took Brown as a case to move against states. That certainly isn't the case here.

If you understand that analyses change based on evidence, you might move beyond rhetoric.

Oh, I am quite capable of comprehending that analysis can change over time, based upon evidence. However, how one chooses to present evidence, and what one chooses to characterize as evidence, can impact the process of analysis, itself.

Additionally, I am quite capable of moving beyond rhetoric, can certainly where what is at issue is my ability and/or willingness to analyze an issue. That said, the fact that I am able to move beyond rhetoric does not mean that I am compelled to agree with your conclusions. From my perspective, I believe that allowing one's own pessimism to color their analysis can lead to error in what is concluded.

Originally Posted by Glenn E. Meyer

I'm not seeing Heller or Mc as a magic wand.

I don't see it as a magic wand, either. On that, at least, we are in agreement, though perhaps for different reasons.

Originally Posted by Glenn E. Meyer

I'd bet that the only thing it will protect is the right to have a double barrel - with appropriate registration - when the dust settles. Rights to handguns and EBRs will be iffy.

I don't agree, but certainly, you're entitled to your opinion. Heller already protects more than a right to have a double-barreled shotgun, and McDonald already incorporates the Second Amendment right recognized in Heller.

Originally Posted by Glenn E. Meyer

State laws like the SAFE act will limit access to those and will the SCOTUS overturn. Place you bets on the wiley old bird. Note the NYTimes article does discuss the holes I pointed out as legitimizing such laws.

Lots of newspaper articles discuss lots of things. I take what I read in newspapers with a grain of salt, on any issue. On the finer points of constitutional interpretation by the United States Supreme Court, the New York Times is not where I, personally, would turn for guidance.

Originally Posted by Glenn E. Meyer

See what happens for other cases - Posner's decision? That will tell the tale rather than old wily bird praise.

Posner's recent opinion in Moore v. Madigan is yet another positive development. Is it a wonderful solution, in and of itself? No, although it did make many feel wonderful, after they read it (but not everyone, of course). Welcome to terra incognita!

Much of what you want to see explored remains unexplored territory for the United States Supreme Court. These things take time.

Even things that the Heller case did not call into question, could still be called into question.

If a right is not absolute, then it can be regulated. The right to keep and bear arms is not a right that is absolute in nature, and consequently, it can be regulated. The devil, as always, is in the details.

That said, if you believe that the right to carry in the school environment, whether on a college campus or some other school environment, then by all means, advocate on behalf of such. Do you have a list handy compiled of your core arguing points in support of school carry that I could read?

[Glenn E. Meyer]

Do I have list for you? Amusing. Feel free to compose my unauthorized biography as hobby.

[Tom Servo]

I don't agree, but certainly, you're entitled to your opinion. Heller already protects more than a right to have a double-barreled shotgun, and McDonald already incorporates the Second Amendment right recognized in Heller.

Yep, it protects the right to have a handgun in the home. At the moment, we come to a full stop right there.

That doesn't preclude bans based on capacity or type. It doesn't preclude limiting a household to a singular handgun. It doesn't preclude local bans on rifles or magazines. Nor has it done anything to roll back arbitrary "good cause" licensing schemes.

Seeing these problems persist, and seeing new ones created, can be cause for pessimism. The developments of the last four months, including this week's refusal of cert, don't help.

Heller and McDonald were good developments, and I hope they were the foot in the door. However, if our progress stops there, I do fear for the future.

[Jim March]

The Supremes may also be waiting to see what shakes out from the three carry cases from the 9th Circus - two from California, one from Hawaii.

[Charles Mosteller]

Originally Posted by Glenn E. Meyer

Do I have list for you? Amusing.

Actually, I was serious. I didn't know if perhaps you had condensed your core arguments and beliefs on the subject of school carry, down through the years. I was simply interested in reading them if you had. Sometimes, reading such material can be useful in giving spark to thoughts of my own, on various subject matter. I really haven't pondered school carry, at great length.

On a personal level, I certainly favor school carry. But, that's primarily due to the fact that I think that it would be good public policy. Accidents and violence will happen, no matter what, but as a general rule of thumb, I do not favor laws that seek to intentionally increase the vulnerability of the populace at large to the multitude of criminal elements that roam society.

Constitutionality doesn't hinge upon whether the law in question is good public policy or bad policy, though.

Originally Posted by Tom Servo

Yep, it protects the right to have a handgun in the home. At the moment, we come to a full stop right there.

I understand that reasoning, but whereas you might see it as us coming to a full stop, right there, I see it somewhat differently. From my perspective, Heller, far from being little more than a lurch and then we are brought to a grinding halt, I see it more as having put the ball into motion.

The Second Amendment refers - and protects - the right to bear arms. It doesn't mention handguns. The Supreme Court hasn't construed "arms" in the right to keep and bear arms to be limited to just and only handguns.

Originally Posted by Tom Servo

That doesn't preclude bans based on capacity or type. It doesn't preclude limiting a household to a singular handgun. It doesn't preclude local bans on rifles or magazines. Nor has it done anything to roll back arbitrary "good cause" licensing schemes.

Understood - but neither has it upheld the very bans of which you complain. No single case will be a panacea, for the very simple reason that it couldn't be.

As far as local bans are concerned, it's not as though incorporation against the States in McDonald shields local governments from that very same incorporation. There will always be local governments that enact all sorts of laws. It took a while for the First Amendment's broad nature to be fleshed out by our judiciary. Rome will not be built in a day for the Second Amendment, either.

Originally Posted by Tom Servo

Seeing these problems persist, and seeing new ones created, can be cause for pessimism. The developments of the last four months, including this week's refusal of cert, don't help.

Certiorari denied doesn't speak to the merits or the demerits of a give case. The anxiety and frustration that individuals feel, when certiorari is denied in a case that one might prefer the Court to take is not to be equated with constitutional frustration of a given right in question. So, that we, as individuals or even as groups sometimes find our patience to be a bit lacking, it is hardly cause for constitutional despair.

The Court ruled narrowly in Heller, but the overall wording of the entire opinion isn't narrow - not by a long shot.

Originally Posted by Tom Servo

Heller and McDonald were good developments, and I hope they were the foot in the door. However, if our progress stops there, I do fear for the future.

From my perspective, Heller and McDonald were more than just mere good developments. Federal judges at the circuit level now talk in their own Second Amendment jurisprudence about this new terra incognita. Terra incognita isn't the equivalent of a constitutional ant hill.

Heller, by its own account, was the Court's first in-depth examination of the Second Amendment. It took until the 21st century for this first in-depth examination to occur.

I believe that Scalia's opinion for the Court in Heller crafted a very solid foundation for Second Amendment jurisprudence going forward. Heller and McDonald were precedent-setting opinions. I regard them as such, anyway. They are not inconsequential in scope or nature or substance.

That many choose to try and water their significance down with a flood of pessimism doesn't alter their constitutional significance by so much as a single, solitary iota.

It is said that patience is a virtue. It's most needed, when it is most needed.

The right to keep and bear arms is not a right that is absolute in nature. So, with no case, under any realistic scenario, is perfection to be achieved. Short of a constitutional amendment to the United States Constitution, the right to keep and bear arms will never be construed by our judiciary to be absolute in nature.

Certainly, some issues present more favorable challenges than do others. But, that's just a fact of life, not a cause for despair.

What does pessimism gain one, anyway? Stress? Worry? Does it make one's prospects on the constitutional front better?

[Tom Servo]

The Supreme Court hasn't construed "arms" in the right to keep and bear arms to be limited to just and only handguns.

No, but the Heller and McDonald decisions were about handguns in the home. You're right that they didn't limit the right to that, but they did stop there. A politician or Justice can interpret that as applying only to handguns.

I don't like it, either, but sometimes that's the landscape.

From my perspective, Heller, far from being little more than a lurch and then we are brought to a grinding halt, I see it more as having put the ball into motion.

Two years ago, I'd have agreed. I still want to. I'm glad we have those decisions, and they are a bulwark. Notice how anti's have gone from "there is no right to own guns" to "I support the RKBA, but..."

Still, we may be at an impasse for the near future.

[Aguila Blanca]

Originally Posted by Tom Servo

Yep, it protects the right to have a handgun in the home. At the moment, we come to a full stop right there.

I disagree. I don't think we come to a full stop at "handgun in home."

The broader issue decided in Heller was the question of whether the 2A guarantees an individual right to [___] arms, or only a collective right nebulously linked to service in a militia that most people don't even know still exists (on paper, anyway). The answer was that it is an individual right. That alone is (IMHO) HUGE!

Beyond that, the "in the home" limitation is not much of a limitation, although I readily acknowledge that some lower courts are misinterpreting it and using it as a limit. Mr. Scalia's majority opinion did NOT in any way state that the 2A RKBA is limited to keeping a functional firearm in the home. The case before the court was about Washington's ban on functional firearms in the home, so that was necessarily a focal point in the discussion.

However, once you get beyond that, there is simply no escaping that the 2A does not discuss two separate, distinct rights: one a right to "keep" arms, and another, separate right to "bear" arms. The language is clear and straightforward: "The right [singular] of the People to keep and bear arms shall not be infringed."

All the dicta in both Heller and McDonald discuss "the" RKBA as a single right -- which, by the language of the 2A, it is.

What is up for discussion now is not whether or not we have a right to bear arms outside the home, but only the extent to which the states may regulate that right.

And McDonald wasn't really about handguns in the home. McDonald was about whether the 2A constrains only the Federal gobvernment, or if it also constrains the states and lower levels of government. And the answer was that it DOES apply to the states. That, again, is HUGE!

[Frank Ettin]

Originally Posted by Aguila Blanca

The broader issue decided in Heller was the question of whether the 2A guarantees an individual right...

Correct, and we should not be discounting that.

Heller and McDonald were watershed. Before Heller we were still fighting about whether the Second Amendment described an individual or collective right, and before McDonald we were saddled with Cruikshank and the Second Amendment not applying to the States. Those were threshold questions, and they've been answered in a manner favorable to our interests.

[SPEMack618]

This may be out of line, and possibly in the wrong forum, but would it behoove us, as the Pro-Second Amendment community, to wait before bringing courses before the Supreme Court.

I understand that cases work thier way through the lower level courts slowly as is, and we are worried about a change in the political landscape of SCOUTS, but would it help in anyway to take what the Army calls an Operational pause?

[Charles Mosteller]

Originally Posted by SPEMack618

This may be out of line, and possibly in the wrong forum, but would it behoove us, as the Pro-Second Amendment community, to wait before bringing courses before the Supreme Court.

I understand that cases work thier way through the lower level courts slowly as is, and we are worried about a change in the political landscape of SCOUTS, but would it help in anyway to take what the Army calls an Operational pause?

Your analogy to what the Army calls an operational pause is problematic, because the right to keep and bear arms is not an Army operation, and litigation in the courts is not a military operation. The analogy is one of apples being substituted for oranges.

Who would you propose be the one that refrains from defending their constitutionally protected right to keep and bear arms? What criteria do you use, to determine who should and who should not defend their rights in courts of law?

You refer to what you characterize as the Pro-Second Amendment community. The right to keep and bear arms is not a community right, but an individual right. Should the defense of individual rights be determined by, or left to the whims of, a select community, rather than by individuals whose rights are being violated at the individual level?

That the United States Supreme Court doesn't accept a particular case, or a thousand cases, for certiorari does not inhibit its ability to arrive at the right conclusion, in a given case that comes before it in the future.

It would seem to me that the thing that the Army calls courage would make for a better analogy - and for better chances to see the right to keep and bear arms fleshed out in jurisprudence, than the thing that the the Army calls operational pauses.

[Alizard]

We seemingly rejoiced over Heller. However, was it a definitive game changer?

YES!

The entire strategy of the gun grab was to establish in law that citizens do NOT have the right to own guns and that the 2A applies only to state militias or guard units. The gun grabbers got their teeth kicked in.

The proof is that the entire first Obama admin did not even go near the gun control issue. They know it's hopeless. The aurora/sandyhook incidents forced them to respond in some way, and it went nowhere. No new laws, no hope and Obama knows it.

[JimDandy]

When it's quoted on the Senate floor during debate, it certainly did something.