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July 05, 2008
Thoughts on Heller

Between real work and the post Heller rush, I've been distracted but I did want to post some of my thoughts on the Heller decision.

First, the length, depth, and breadth of Scalia's majority argument to explain that the Second Amendment protects an individual right to own and carry arms is going to be key moving forward. He is very dismissive of the opposition's attempt to find the word organized in the term Militia. I do wish Scalia would have pointed out that the militia includes (and probably was mainly referring to) unorganized militia which has become all able bodied adults (when it used to be all able bodied white males at the founding.) It's pretty clear to me that Scalia is personally unhappy with Ginsburg's decision not to join the majority. I join him in that thought as I had predicted that Ginsburg would side with the actual majority opinion.

The other item that really stood out was the length of argument spent on bearing arms. I realize that many would claim this is bearing arms only in the home based on the facts of the case but much of the opinion doesn't seem so limited.

As expected, machine guns are not protected by not being arms in common use at this time. As a good friend of mine pointed out that means that firearms law is going to be a lot like obscenity law now and turn a bit on "community standards" ala Miller v. California.

Scalia also expounded a bit on incorporation - a topic upon which I'll have more in a subsequent post.

The dissents are interesting for the fact that they are really hard to decode beyond, "well, we don't like this individual right." Note that all 4 dissenters believe that the Second Amendment protects some sort of individual right. I've told folks to cite this as a 9-0 decision that the Second Amendment protects and individual right and 5-4 on whether the DC ban violates it.

Also, this was a lot closer of a decision than it should have been. That said it has two key effects. It is exactly the win that our side was looking for - short of hope that we might get even more. Those in favor of civil rights are going to be able to use this decision to roll back senseless gun laws very effectively. Second, it probably hurt the Democrat's chances of taking the White House to some extent as a 6-3 decision would have allowed a lot of folks in the middle to more easily vote for Obama.

Finally, I want to point out how confusing the rhetoric around this issue actually is and make a couple of long term predictions. This article from the Philadelphia Daily News looks at first like it is anti-gun, but then it goes directly to a point I had been considering for quite a while. The real long term effect of the end of the anti-gun crusade is for politicians to now have to actually focus on the real causes of crime and violence. Speaking of the end of the anti-gun crusade, now that the ultimate goal of banning all guns is off the table, I expect funding for the anti-gun groups to start to contract and thus some of the smaller groups to close up shop as those groups who advocate restricting a constitutional right consolidate.

Update: I forgot to mention this article in Capitol Weekly where I got a couple of sound bites in.

Posted by hoffmang | July 05, 2008 04:14 PM


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