Bill of Rights or Bill of Goods?:
By JAMES TARANTO
June 26, 2008
"The [Supreme] Court would have us believe that over 200 years ago, the
Framers made a choice to limit the tools available to elected officials
wishing to regulate civilian uses of weapons," Justice John Paul Stevens
writes in a brave dissent in District of Columbia v. Heller, the
just-decided case striking down the federal district's near-total ban on
firearms.
Stevens is right. Who are they trying to kid? And yet a razor-thin
majority of the deeply divided justices expect the American people to
swallow this hoax. Supporters of this so-called right to keep and bear
arms claim that it dates to 1791. (That faux precision is a nice
touch--not 1790 or 1795 but 1791.) A bunch of dead white males are
supposed to have gotten together and assembled something called a "bill
of rights." The more extreme exponents of this view claim that the
so-called bill limits the tools available to elected officials not just
with regard to firearms but a whole host of other things: "freedom of
religion," "freedom of speech," "cruel and unusual punishment," etc., etc.
Reuters has their number. "Although an individual now has a
constitutional right to own guns, that new right is not unlimited, wrote
[Justice Antonin] Scalia, a hunter," the news service reports today.
Justice Stevens is 88, and he is generally considered old. If this right
really dated back 217 years, Reuters could not describe it as new.
Scalia engages in a lot of fancy-pants wordplay in order to conceal his
hoax. For example:
In any event, the meaning of "bear arms" that petitioners and
Justice Stevens propose is not even the (sometimes) idiomatic meaning.
Rather, they manufacture a hybrid definition, whereby "bear arms"
connotes the actual carrying of arms (and therefore is not really an
idiom) but only in the service of an organized militia. No dictionary
has ever adopted that definition, and we have been apprised of no source
that indicates that it carried that meaning at the time of the founding.
But it is easy to see why petitioners and the dissent are driven to the
hybrid definition. Giving "bear Arms" its idiomatic meaning would cause
the protected right to consist of the right to be a soldier or to wage
war--an absurdity that no commentator has ever endorsed. . . . Worse
still, the phrase "keep and bear Arms" would be incoherent. The word
"Arms" would have two different meanings at once: "weapons" (as the
object of "keep") and (as the object of "bear") one-half of an idiom. It
would be rather like saying "He filled and kicked the bucket" to mean
"He filled the bucket and died." Grotesque.
Yet constructions like this allow us to point out that Justice Scalia
created out of whole cloth a new constitutional and pandered to the
extreme right. You can see why they make him uncomfortable.
Scalia also faulted Justice Stephen Breyer for taking account of the
practical implications of this so-called constitutional right:
He criticizes us for declining to establish a level of scrutiny for
evaluating Second Amendment restrictions. He proposes, explicitly at
least, none of the traditionally expressed levels (strict scrutiny,
intermediate scrutiny, rational basis), but rather a judge-empowering
"interest-balancing inquiry" that "asks whether the statute burdens a
protected interest in a way or to an extent that is out of proportion to
the statute's salutary effects upon other important governmental
interests." . . .. After an exhaustive discussion of the arguments for
and against gun control, Justice Breyer arrives at his interest-balanced
answer: because handgun violence is a problem, because the law is
limited to an urban area, and because there were somewhat similar
restrictions in the founding period (a false proposition that we have
already discussed), the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right whose core
protection has been subjected to a freestanding "interest-balancing"
approach. The very enumeration of the right takes out of the hands of
government--even the Third Branch of Government--the power to decide on
a case-by-case basis whether the right is really worth insisting upon. A
constitutional guarantee subject to future judges' assessments of its
usefulness is no constitutional guarantee at all.
Here is what Breyer had to say in his dissent:
The argument about method, however, is by far the less important
argument surrounding today's decision. Far more important are the
unfortunate consequences that today's decision is likely to spawn. Not
least of these, as I have said, is the fact that the decision threatens
to throw into doubt the constitutionality of gun laws throughout the
United States. I can find no sound legal basis for launching the courts
on so formidable and potentially dangerous a mission. In my view, there
simply is no untouchable constitutional right guaranteed by the Second
Amendment to keep loaded handguns in the house in crime-ridden urban areas.
Surely everyone can agree that as a practical matter, Breyer has the
better of the argument. After all, Heller was decided only a few hours
ago, and already the District of Columbia has declared a "crime emergency."
(Two additional items about Heller are currently available at
http://online.wsj.com/article/best_of_the_web_today.html, beginning with
the third item on the page.)
---
From The Firearms Coalition:
We won! Mostly.
The Supreme Court concluded today that the Second Amendment does
indeed protect an individual right to arms and that the DC handgun ban
and requirement that all guns be rendered inoperable within the home,
were violations of that protection and must be changed. Specifically,
the Court ordered that the District of Columbia must allow Richard
Heller to register a handgun and be issued a permit to carry it about
within the confines of his home in a functional condition for purposes
of self-defense.
The Court did not delve deeply into what restrictions would or
would not be acceptable under the Second Amendment though their order
that Heller be allowed to register a handgun and be issued a permit
clearly suggest that they consider such registration and permitting
acceptable limitations.
In his majority opinion, Justice Scalia also stated that
prohibiting felons and mental incompetents from firearms was clearly
constitutional and repeated the thoroughly specious argument that he
expressed during aural arguments to the effect that weapons which are
not, "in common use," are not included within the Second Amendment's
guarantees. He specifically gave the example of M-16 rifles being
common to military use, but uncommon to civilian possession - completely
ignoring the fact that the only reason M-16's are not commonly possessed
is that their sale to private citizens was extremely complicated and
cost prohibitive for the first twenty years of that arm's existence and
has been completely banned for the past twenty two years.
No doubt Scalia and his co-signers included this information -
which has absolutely no bearing on the case at hand - to assuage the
fears of the Solicitor General and others who have suggested that an
"individual right" decision would open a floodgate of assaults on
existing federal laws restricting machineguns and "destructive
devices." Regardless of the motive for the position, it is as totally
nonsensical as the ridiculous suggestions put forward in the two
minority opinions.
The length to which the dissenting Justices are willing to twist
history and contort language in attempts to justify their outrageous
positions is nothing less than staggering. The intellectual gymnastics
engaged in by the Justices in their efforts to support their idiotic,
fore drawn conclusions should seriously shake the faith of the most
trusting citizen. It is simply outrageous that men and women of
intellect and learning would take up a position and then selectively
sort through history for tiny threads of support for that position while
completely ignoring the full, rich tapestry which displays a clear
picture of an absolutely opposite position.
The intellectual dishonesty displayed by the dissenting Justices
- and to a much lesser degree by the majority - should be deeply
disturbing to every thinking American. These are not trivial matters
that are being dealt with by the Court. These are issues that reach
down to the basic founding principles of our republic. How can we
entrust matters of such great import to people who demonstrate a
willingness to contort history to their own personal beliefs and
philosophies rather than examining evidence and drawing rational
conclusions based on that evidence.
Today's decision by the Supreme Court makes two things abundantly
clear:
* Defenders of liberty and our Constitutional Republic face a long and
tedious battle to secure and defend our rights.
* It is absolutely critical that the next President, and every President
thereafter, is committed to appointing judges and justices who will
interpret law and the Constitution based on history and facts, not their
own agendas.
The courts have the potential to undermine and ultimately destroy
our nation and our way of life. It is incumbent upon all of us to
diligently work against the erosion that is eating away at the very
foundations of our society.
---
From GOA:
GOA Hits The Airwaves On Heller Decision
-- Now looks forward to challenging other gun control laws around the
country
Gun Owners of America E-Mail Alert
8001 Forbes Place, Suite 102, Springfield, VA 22151
Phone: 703-321-8585 / FAX: 703-321-8408
http://www.gunowners.org/
Friday, June 27, 2008
Yesterday was a historic day for the gun rights movement.
For starters, Gun Owners of America is pleased that the U.S. Supreme
Court, in the DC v. Heller opinion, struck down the handgun ban and
trigger lock requirement in the nation's capital.
As a result, GOA experts have spent the last two days using radio, TV
and print media to explain the Court's decision and its impact upon the
future of the gun debate in America.
GOA's amicus brief urged the Court not to use the Heller case as a
springboard to resolve the constitutionality of all of the nation's
firearms laws. In fact, the GOA brief was the only one making the
request not to rule on automatic weapons and other issues, upholding
judicial restraint.
GOA is pleased that the judges heeded our admonition to limit the
Court's holding to the case before it.
In so doing, the Court's decision -- in dissenting Justice Breyers words
-- "threatens to throw into doubt the constitutionality of gun laws
throughout the United States."
Notable gun banner, Dianne Feinstein, was equally upset, saying she was
"profoundly disappointed" in the Court decision.
The U.S. Supreme Court also followed GOA's urging and refused to do any
balancing of governmental powers and individual liberties -- it just
ruled the ban was prohibited by the text of the Second Amendment, saying
that its language elevates, above all other interests, the "right of
law-abiding, responsible citizens to use arms in defense of hearth and
home."
However, the Court stated its opinion should "not be taken to cast
doubt" on at least some prohibited persons' restrictions, gun free
school zones bans and dealer licensing requirements. This dicta implies
that, in the future, courts might go further than the Constitution
permits in upholding some gun restrictions.
Nevertheless, the Court's opinion directly conflicts with what
anti-rights advocates -- like those in the Brady Campaign -- have been
saying for years. So GOA welcomes the opportunity to continue our fight
for the people's right to keep and bear arms.
GOA is already preparing to wage constitutional challenges to a range of
laws -- federal, state and local -- that violate the Second Amendment
principles endorsed by the Court in yesterday's majority opinion.
To contribute to these efforts, you can go to
http://www.gunowners.com/dogfund.htm and make a tax deductible
contribution to the Defend Our Guns (DOG) Fund. Contributing to this
DOG Fund will allow our committed and courageous legal team to make
Justice Breyer's fears a reality.
Gun Owners Foundation wants to lay the groundwork for the next battle in
the Second Amendment war between those of us who love liberty and those
who would allow the government to disarm us as the first step to our own
enslavement.
You contribution to the DOG Fund is tax deductible, and it will go a
long way towards helping us preserve our Second Amendment rights -- not
only for ourselves, but for our children as well.
---
From AzCDL:
The pressure YOU applied to the House and Senate was successful - and
just in the nick of time. We expect the Legislature to end this year's
session tonight.
HB 2389, the AzCDL-requested bill that clarifies that it is permissible
to carry a weapon, with or without a CCW permit, visibly or concealed,
anywhere within a means of transportation, excluding public transit, was
sent to the Governor a short time ago.
This was a real nail-biter. HB 2389 had passed both the House and
Senate, but, because of amendments added in the Senate, it needed to go
through a conference committee where the differences could be worked
out. The House had assigned conferees, but not the Senate. Thanks to
the pressure YOU put on the Senate Leadership last week, Senate
conferees were finally assigned, a meeting was held, the differences
ironed out, and HB 2389 passed out of committee. Over the last two
days, again thanks to your letters and calls, HB 2389 passed the final
votes in both the House and Senate, and was sent to the Governor's desk.
It is VERY important to contact the Governor, and urge her to sign HB
2389 into law. You can use your own message, or you can use the sample
message below. Her email address is
[email protected]. You can also fax a
letter to her at 602-542-1381.
Or you can mail it to her at the following address:
The Honorable Janet Napolitano
Governor of Arizona
1700 West Washington
Phoenix, Arizona 85007
You can also call her office, toll free, at 1-800-253-0883.
Following the sample letter are instructions on how to post your
comments on the Governor's website.
Subject: Please sign HB 2389
Governor Napolitano:
The Arizona Citizens Defense League (AzCDL) has informed me that
important legislation, HB 2389, is awaiting your signature. I urge you
to sign HB 2389 into law.
HB 2389 would make changes to ARS 13-3102 regarding carrying a concealed
weapon in a vehicle. Current law (ARS 13-3102.F) states that, without a
concealed weapons (CCW) permit, it is permissible to carry a weapon or
weapons "in a case, holster, scabbard, pack or luggage that is carried
within a means of transportation or within a storage compartment, map
pocket, trunk or glove compartment of a means of transportation."
Unfortunately, in 1994 an Arizona Appellate court decision (State v.
Adams, 189 Ariz. 235, 941 P.2d) determined that "within a means of
transportation" meant it must be obvious under ordinary observation to
someone outside the vehicle that there is a weapon inside the vehicle.
This created conflicts interpreting the statute. As a result:
� Wearing a holstered firearm within a vehicle = concealed carry,
requiring a CCW permit. But, that same holstered firearm in a map
pocket, trunk or glove compartment, equally accessible by a vehicle's
occupants, does not require a CCW permit.
� Possessing a concealed weapons permit and being armed may put
other occupants in the vehicle, who do not possess a CCW permit, at risk
of arrest because of their proximity to your firearm. Yet, if that same
weapon were in a map pocket, trunk or glove compartment accessible by
all the vehicle's occupants, no crime is committed.
The proposed language clarifies that it permissible to carry a weapon,
visibly or concealed, anywhere within a means of transportation,
excluding public transit. Much like the states of New Mexico (NMSA
30-7-2) and Texas (TX Penal Code Title 10, Chapter 46.02), it would be
legal for any law abiding citizen to carry anywhere inside a vehicle
without the need of a permit, just like it currently is inside their own
home or business, eliminating the confusing hodgepodge of lawful and
unlawful places currently listed in statute. This would benefit both
law enforcement and the law-abiding, making the law clear and rational,
not subject to confusing roadside interpretations.
Again, I urge you to support sound public policy, and sign HB 2389 into law.
Sincerely,
Your Name
Street Address
City, AZ zip-code
telephone number
You can go to the Governor's website,
http://azgovernor.gov/Contact.asp,
where you will find a fill-in-the-blanks form to register your opinion.
For "subject", scroll down and select "Legislation." For "topic", fill
in "HB 2389."
You can add your own polite message urging her to sign HB 2389 in the
"message/comment" area, or you can use the sample message above.
Stay tuned! Information on this and other bills can be found at the
AzCDL website:
http://www.azcdl.org/html/legislation.html
These alerts are a project of the Arizona Citizens Defense League
(AzCDL), an all volunteer, non-profit, non-partisan grassroots
organization. Join today!
AzCDL - Protecting Your Freedom
http://www.azcdl.org/html/join_us_.html
Copyright � 2008 Arizona Citizens Defense League, Inc., all rights
reserved.
--
Stephen P. Wenger, KE7QBY
Firearm safety - It's a matter
for education, not legislation.
http://www.spw-duf.info
