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How Important is What's in the Opinion ?

Discussion in 'Freedom and Liberty' started by BigO01, Jun 27, 2008.

  1. BigO01

    BigO01 Monkey+++ Founding Member

    Not being a scum sucking lawyer I have no idea just how much this protects us from "Infringement" of our rights but if you get farther into the opinion you'll find this quote by Scalia ,

    Which clearly addresses the Shall Not be infringed section .

    Also find that to fight a ban of so called "Assault Weapons" this quote from page 46 may be of help

    Just my opinion here but I think when it comes to future challenges especially if made on the basis of Infringement of our Rights the litmus test will be if the law is overly excessive .

    For instance licensing even like ILL's FOID cards will be ruled OK if there isn't some unreasonable prolonged time span between applying and being given an answer . For instance they may get a week or two but can't sit on it for a month or more without giving the applicant an answer .

    I think with so much mention of the "Militia" and suitable arms a Challenge for any semiauto bans will be coming fairly soon .

    It sounds like any total bans are going to be tossed out with the possible exception of weapons like the 50 Barret .

    Also considering what a burden things like the "Micro stamping" crap places on a person should they need their weapon repaired and a new part made with the stamping they will get kicked when challenged .

    It sounds like any of the brainstorms like "Smart guns" and mandatory locks built in will also get the Federal boot when the time comes .

  2. ghrit

    ghrit Ambulatory anachronism Administrator Founding Member

    Not a lawyer either, but I have to admire the scholarship that goes into becoming a SCOTUS judge, and particularly what went into the background on the Heller opinion.

    A couple things stand out in the opinion. First is the historical study (and I'm surprised the Federalist Papers didn't get a mention) and the second was the linguistic analysis. Taken together they show what we have known, that possession of a gun for self defense and food gathering is a right predating the Constitution, and is merely affirmed in Article II. Stripped of all of the rest, what Heller does is strike down the handgun bans in DC, and only that (tho' the precedent will be applied nationally.) Taken a step further, it appears to require "shall issue" permits if permits are required at all.

    Now things get interesting. Common military weapons include full auto, and Heller says that the intent of the IInd is that private ownership of common military weapons is OK, if I read it right --. You can bet your fingerprints that will get a test in the courts.

    Testing of other legalities is coming too. Like what hoops will be required to register weapons in jurisdictions requiring registration? I'd guess that will be Brady's next point of attack, but the primary aim of complete confiscation is no longer (by Heller) viable without another amendment to the Constitution that cancels the 2nd.

    Heller settled only one of many open questions, but oh boy, this is legally important. Precedent is everything in law, and this sets one, big time.
  3. thepatriot1976

    thepatriot1976 Resigned Membership

    Sorry guys I tried to just take the article but it brought the whole damn page. I tried to edit it but every time it goes to edit the box just turns grey!

    Wait ghrit fixed it below me!

    Thank you brother!
  4. ghrit

    ghrit Ambulatory anachronism Administrator Founding Member

    OK Pat, I've copy/pasted the guts and deleted your original insertion and dupe.

    With a nod to thepatriot1976 for the find --

    The Supreme Court ruling

    IN A 5-4 VOTE, a sharply divided Supreme Court ruled Thursday that the Constitution protects an individual's right to bear arms, while leaving room for governments to regulate gun ownership. The ruling repudiates the long-held notion that the right to bear arms is strictly linked to militia service. Instead, the court concluded that it's an individual right untethered to military or government necessity. This will make it easier for gun-rights advocates to resist new regulations and overturn existing laws.
    The U.S. Supreme Court's landmark ruling Thursday establishing a citizen's right to keep a gun at home prompted quick responses from Washington state advocates on both sides of the debate.
    And it turns out they agree on one thing: many, many more court battles are ahead.
    Now the litigation here — as elsewhere in the country — is likely to shift to more nuanced, but still critical, questions:
    Can guns be banned on public property, as Seattle Mayor Greg Nickels recently ordered? Can you openly carry a pistol on a downtown Seattle street? Is the state's ban on sawed-off shotguns and other types of guns constitutional?
    The 5-4 ruling, written by Justice Antonin Scalia, clipped the extreme ends off the debate. An outright ban on handguns was found to be unconstitutional, but Scalia's opinion defended government's authority to enact "reasonable restrictions" on gun possession.
    The definition of "reasonable" is likely to fuel further argument, but it was a joyful day for gun-rights advocates such as Dave Workman, of Bellevue, who is the senior editor of the magazine Gun Week.
    "This is probably the biggest story I'm going to write in my lifetime," he said. "This is not just a win for gun-rights guys. This is a win for all civil rights."
    Still, in Washington the immediate effects of the ruling are limited. With an estimated million gun owners in the state, many state laws are already rooted in a Western, libertarian philosophy about firearms.
    And the state constitution has a more forceful protection of the right for "the individual citizen to bear arms in defense of himself" than the Second Amendment of the U.S. Constitution. The state Attorney General's Office on Thursday said a review of existing laws found none that appears to be in conflict with the high court's ruling.
    But the ruling has emboldened gun-rights advocates' protests of a pending ban on handguns in city of Seattle buildings, parks and community centers. Nickels signed an executive order last month; the ban is likely to be posted in July, the mayor said.
    "The central part of the court's decision was that a jurisdiction cannot totally ban handguns, but they recognize there is a need for common-sense gun laws," Nickels said.
    "I think, in fact, it clarifies the fact that we do have ability to enact reasonable restrictions on guns in public property."
    The mayor may be right, said Andrew Siegel, a professor of constitutional law at Seattle University. But the Supreme Court did not set a legal test to define "reasonable."
    "If you think about it in terms of the First Amendment, we've had 100 years of complicated tests for [defining] free speech," Siegel said. " We're going to start that process with the Second Amendment."
    Among the issues likely to be tested here is the "open carry" of firearms. A gun owner must get a concealed-weapons permit — 235,000 Washingtonians have one — and pass a background check to hide a gun inside clothing. It is legal to wear firearms openly in Washington. But a state law outlaws showing a weapon in a way that "warrants alarm" in others.
    Buoyed by the high-court ruling, gun-rights groups are likely to test that law in the Legislature, Workman said.
    "This is the top half of the first inning," he said. "Now we're going to follow and see where the gun-rights battle really goes."
    Meanwhile, Kristen Comer, executive director of the gun-control group Washington Ceasefire, said the ruling was no surprise. But her group thinks it could actually help their efforts by ensuring the right to private ownership of guns.
    Now gun-rights groups can't argue that reasonable gun control will lead to a "slippery slope" to total gun bans, she said.
    "Gun restrictions are not a backdoor way to ban all guns in society," she said.
    "And that is never what we intended. But when we advocate for policy restrictions, that's where we're accused of heading. That argument is now gone."
    Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com

    Copyright © 2008 The Seattle Times Company
  5. monkeyman

    monkeyman Monkey+++ Moderator Emeritus Founding Member

    Hey G, "affirmed in Article II." I think you meant AMENDMENT II, I dont have my copy at hand at the moment so dont recall exactly what Article II adresses but that would be toward the top of the main body. I know, just a typo but had to be a smart arse. lol

    Like Ghrit said, all the decission DIRECTLY dose is remove the DC gun ban BUT what is most IMPORTANT about it is that it sets precident and the precident in the opinion is far more wide reaching. Any other gun law may now be challenged and the lower courts can have the decision brought up as precident that would supercede any other. If the law can be shown to go out of bounds of this opinion (majority opinion since the minority opinion is just the mistaken ideas that were disproven) then must be struck down.

    It places much more limits on lisencing and registration and elimenates any sweping bans so these thing may now be challenged and have support to be struck down.

    So what in the opinion while it wont apply to anyone but folks in DC at this point, is what is ALL important since it becomes the litmus test to be able to challenge all other laws and prevent new ones from being passed.
  6. ghrit

    ghrit Ambulatory anachronism Administrator Founding Member

    Yup. OOPS. [booze]
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