Supreme Court Victory!

WE WON BIG!

A review of the Supreme Court Decision

Now that we've had time to digest more detail from the Heller Supreme Court case we can say it was a much bigger win than we originally thought.

First, what you've heard and read in the media is mostly crap. The media's spin on it has, to date, indicated the court ignored "long standing" precedent or made a "radical departure" from previous courts. Some media outlets were claiming this decision was "Judicial activism at its worst." None of this is true or correct.

Perhaps worst of all, is the concerted effort to convince Americans with a "not much has changed" attitude. For certain, the media has been hyping the fact that "we can still regulate guns" or the Supreme Court "says the type of common-sense gun laws we've had are constitutional." That's so much bovine scatology.

Let's start with what the court did decide. You'll see that there are some interesting wins for patriots and gun owners. Here are the highlights;

• Second Amendment guarantees an individual right.
• The 2nd is an "enumerated constitutional right" and should be receive the same scrutiny used for other enumerated rights.
• The right is not connected with militia membership.
• Expansive view of "arms".
• An implied right to carry openly.
• Incorporation is much more likely than not.
• Possession of "arms" which are "in common use" (M-16's not considered in common use – yet.
• The court admits it did not attempt to clarify the entire scope of the rights guaranteed.

In the majority decision by Justice Scalia, he does an artful job of defining the meaning of every part of the 2nd Amendment. What are arms? Who is the militia? What does "to keep and bear" mean? He also dives into the history of the right, extending from England into the colonies and into a new American nation. He builds one argument upon another to show the right was understood to belong to the individual, whether or not he was a member of the militia.

The right is well defined as an individual right which means it belongs to every man, woman and child.

Secondly, the court recognized the Second Amendment as one of the enumerated constitutional rights in the Bill of Rights. The court said the D.C. ban would fail "under any of the standards of scrutiny that we have applied to enumerated constitutional rights…." From this, we learn the court can use the same tough standards on gun laws as it does with laws restricting freedom of speech or the right to privacy.

This is a major part of the big win. If the court holds government restrictions up to "strict scrutiny," very many gun laws will likely be overturned. Even a lesser standard called intermediate scrutiny may well overturn a large number of gun laws, especially those designed to make purchase or ownership burdensome for the citizen.

Addressing those who claim the "arms" protected would only be muskets or flintlocks, Scalia shreds that notion with comparisons to the 1st and 4th Amendments then says the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Before you whip out that order form for an M-60 machine gun, let's go a bit further. The court accepted the definition of "militia arms" from the 1939 Miller case, to wit "arms which are in common use at the time". Right now, the court is willing to say that arms in common use are most handguns, shotguns, bolt, pump, lever and semi-automatic rifles of the type you could purchase in a large gunshop. The court also says that weapons which are "unusual and dangerous" are not protected.

At this moment, the court will need more convincing that an M-16 or M-60 is "in common use" (or could be if it weren't for legal restrictions now in play). Further, they would want to see that it was relevant to both a militia purpose as well as some civilian purpose (which could give rise to a new form of competition - machinegun matches!). Likewise, the court would need serious convincing that sawed off shotguns or weapons firing explosive projectiles were somehow necessary.

All of us would be celebrating much harder, except for one small fly in the ointment. This fly is named "incorporation". Right now, the 2nd Amendment only limits Congress, not the states. Right now, Illinois could pass a complete prohibition on all handguns and do it "constitutionally" because the 2nd Amendment does not (yet) apply to that state.

Confused? Don't worry. This decision comes from an 1875 Supreme Court case called United States v. Cruikshank (92 U. S. 542). The case involved racism, murder and other crimes. In overturning the indictments of the whites charged with killing blacks, the court held, among other things, that the Bill of Rights did not apply to the States and specifically the Second Amendment does not by its own force apply to anyone other than the Federal Government.

It would take the passage of the 14th Amendment to correct this situation and apply the Bill of Rights to the states. Over the years, the court has embraced "selective incorporation". Rather than settle the matter all at once, the court has "incorporated" only those rights which have been challenged, such as the 1st, 4th and 5th Amendments. The 2nd Amendment has never been said to apply to the states.

For this to happen, a state or local law has to be challenged as violating the 2nd Amendment. The court can then decide if the 2nd Amendment is of such fundamental importance to the rights of individuals that it deserves protection from State laws. The challenge for this is already underway with the lawsuit against Chicago's gun ban, by the NRA, Illinois Rifle & Pistol Association and the Second Amendment Foundation.

This decision has opened the door to establishing the full scope of our rights under the Second Amendment. We will see quite a few lawsuits challenging gun laws in the next few years. Laws that don't put people at risk of serious jail time will be challenged first, such as one-gun-a-month laws. Those with large fines or jail time usually require someone to be charged with the crime first. Few "law abiding" gun owners want to be the test-case and for good reason. Who wants to be in jail while their appeal slowly grinds along?