My good friend, Professor Michael O’Shea, is speaking to the feddies at Bama today. So, if you live in t-town (or nearby), please try to attend the event. You won’t regret it. O’Shea is quite the second-amendment guru.

Where’s Andrew Sullivan when you need him?

Hey Andy, here’s a real Christianist for you.*

*For an excellent rejoinder to MM’s screed, please see this post by Jeff Martin over at What’s Wrong with the World. Dale Price and Cranky Con are also on the case.

As usual, Quin is spot on.

Governor Huckabee gives his thoughts on the Supreme Court’s decision in Heller over at The Next Right and at RedState.

For those of you who don’t have the time or inclination to read Heller, here is a summary of Justice Scalia’s majority opinion (with much of the specific rejoinders to the dissenters omitted):

-”The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose.”

-”Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose.” (more…)

I am still working my way through the majority opinion (I like reading footnotes), but I can already tell y’all this much: Scalia’s majority opinion is one of the worst judicial a*s whippings I have ever had the pleasure of reading. Nino smacks Stevens around like a red-headed stepchild. I almost feel sorry for the poor soul.*

Almost.  

In short, Scalia’s majority opinion in Heller is originalism at its finest.

(Cue weeping and gnashing of teeth by Publius and Morning’s Minion-who doesn’t even pretend to care about the Court correctly interpreting the Constitution)

I’ll have more soon.

*Scalia gets in a few digs at Breyer as well, but Stevens bears the brunt of Nino’s scorn in this opinion.

Update: O.k., I’ve finished reading Heller. There are a few weak spots in Scalia’s majority opinion, which I will discuss in due course. But all in all, Nino did an outstanding job of explaining and defending the original meaning of the Second Amendment. And fwiw, my guess is these weak spots have Justice Kennedy’s penumbra-stained finger prints all over them.

Now, I need to go and bill some hours for my employer. I’ll try to post more detailed thoughts/analysis on Heller this evening.

I thought my papist hommies would get a kick out of this passage from Scalia’s majority opinion in Heller:

The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., c. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist . . . shall or may have or keep in his House . . . any Arms . . . ”); 1 Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar).

Here is the opinion. I’ll highlight some of the choice passages soon.

From the syllabus:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home . . . .

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

(more…)

SCOTUS Blog is on the case.

Live Blogging Update: The decision will be released in the next minute or so (9:59 a.m.).

While we are waiting, the first decision has been handed down:

The Court has released the opinion in Davis v. Federal Election Commission (07-320), on whether the so-called “Millionaire’s Amendment” to campaign finance laws, which relaxes campaign finance limits for opponents of congressional candidates spending more than $350,000 of their own money, violates either the First or Fifth Amendments. The ruling below, which upheld the law, is reversed and remanded.  

JusticeAlito wrote the opinion. Justice Stevens dissented in part, joined by Justices Souter, Ginsburg and Breyer . . . .

Two more decisions to go, and Heller will be last (of course).

O.k., the second opinion has now come down. If you want details on it, go to the SCOTUS blog. It sounds really boring, and I don’t want to waste any space here discussing it. ;)

Finally, Heller. And the decision is . . . . that the D.C. Circuit’s opinion striking down D.C. gun ban has been affirmed. Hooray! Justice Scalia, as expected, wrote the majority opinion.  Here are the details:

The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.  

 

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg. We will provide a link to the decision as soon as it is available.

Tom Goldstein -  Second  Amendment protects an individual right to possess a firearm.

Tom Goldstein notes that “[i]t is striking that the decision is not clouded by ambiguity created by separate opinions. One opinion on each side.” He then corrected himself, noting “[a]pologies - there is a second dissenting opinion, but only one majority - no plurality and no concurrences.”

O.k., now let’s have a link to the opinion. 

Professor Mike O’Shea has some interesting thoughts on what to expect from a Scalia-penned majority decision in Heller. Here’s a taste:

I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.

 Be sure to read the entire post. It’s extremely well done.

Oh my:

Tom Goldstein -  The only opinion remaining from the March sitting is Heller.   The only Justice without a majority opinion from that sitting is Justice Scalia.

I am as giddy as a school girl.

Professor Michael O’Shea gives us this excellent preview of Heller.

Be sure to read Professor Michael O’Shea’s excellent op-ed piece in today’s Daily Oklahoman. Here’s a taste:

The justices should reject the District of Columbia’s argument that the Second Amendment does not protect individual Americans against gun bans, but merely allows them to use arms at the government’s discretion if they participate in a state-regulated militia organization. The other parts of the Bill of Rights, such as its free speech clause and its protection against unreasonable searches, protect individual liberties against government interference. The Second Amendment should be treated no differently.

While the preface of the Second Amendment recognizes the value of a “well-regulated militia,” the way the amendment serves that goal is by preventing individuals from being disarmed by their government. It affirms a “right of the people” that descends from the 17th century English right to arms, which included a right to keep firearms for self-defense. In fact, during the drafting of the Bill of Rights, the Senate specifically considered a proposal to narrow the Second Amendment to a right to bear arms only “for the common defense” — precisely the District’s position in Heller. The Senate rejected that proposal.

Thus, while gun-rights supporters agree that the right to arms is subject to traditional kinds of reasonable regulation (such as bans on weapons possession by convicted felons), the Supreme Court can serve the cause of constitutional liberty by holding that draconian laws like D.C.’s, which effectively disarm all citizens, are beyond the power of the federal government.

Dearest Publius:

While it is true that the “colonial era has passed,” the colonial Constitution is still with us. You may recall that “we the people” entered into a compact of sorts vis-a-vis this Constitution, and agreed to certain terms. We also recognized certain natural rights “retained” by the people, some of which were enumerated. One of those rights was to right to “bear arms.” And while I understand that you and others like to think that there is a case to be made for viewing the Second Amendment as a collective-based right (i.e., that the people only have the right to own guns as members of a militia), no legal scholar worth his salt really believes that to be the case. Heck, even Larry Tribe has conceded the obvious. But why take his word for it. Let’s see what Justice Joseph Story has to say on the matter, shall we?:

The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

If you’re really interested in delving into the original understanding of the Second Amendment, you can, of course, read the D.C. Circuit Court’s marvelous majority opinion in Heller (or the corresponding Supreme Court briefs), but I think you and I both know how the evidence stacks up.

But as you concede, this really isn’t about law; it’s about policy.

You also use your post to make a broader point:

And that leads to one of my broader criticisms of American conservatism — from the Progressive era on through to today. Certain strands of American conservative thought have never quite come to terms with the realities of modern life — and more specifically, with the shift to industrialization and urbanization. The failure to look at modernity squarely in the face is particularly evident in law, but extends to non-legal contexts as well.

To repeat, the broader point is that several strands of conservative jurisprudence seem to assume a world that doesn’t exist anymore. Specifically, they assume a world where urbanization and industrialization hasn’t happened.

Your point, of course, leads me to my broader criticism of penumbra lovers. The legal left has never come to terms with the fact that we have a Constitution that has a static meaning; one that is fixed in time except to the extent that meaning is changed by way of a constitutional amendment. It may very well be that “modernity” requires us to rethink some constitutional provisions, perhaps even the Second Amendment. And that is exactly why the framers/founders provided us with a little thing I like to call “Article V.”  

You see Publius, I don’t have a problem with your opposition to the original meaning of the Second Amendment on policy grounds. That’s cool by me. We can still drink bourbon together, and discuss how wrongheaded your worldview is on just about everything. No. What troubles me is that you and other liberals believe that the policy goals you desire can and should be accomplished in a countermajoritarian fashion (i.e., by judicial fiat).

I also find it interesting that when my liberals friends are confronted with a constitutional provision they don’t approve of on policy grounds, like say the Second Amendment, they all of the sudden become enchanted with federalism, and start singing “it takes different strokes to rule the world.” But you see, every so often, dear Publius, that ol’ incorporation doctrine can come back to bite you in the arse.

One other thought before I conclude. Let’s say, for the sake of a Supreme Court Fantasy League, that Publius is right, and that the collective-right view of the Second Amendment is indeed plausible. Let’s also say that this is the understanding of the amendment adopted by the Supreme Court in Heller. Then what?

Does this mean that I and other citizens have a constitutional right to form a militia like those that existed during the colonial age? One independent of the State hierarchy or its control? Because if that’s the case, then I am definitely down with that. I strongly suspect, however, that this understanding of the Second Amendment would also be frowned upon by our liberal friends. ”Times are different. Ignore the text of the Constitution. Blah. Blah. Blah.”

But surely our liberal friends are not suggesting that the Second Amendment is superfluous. But if not, then what rights do they believe the Second Amendment affords Americans?    

[Cue crickets chirping]

*Oh, and fwiw Publius, I do agree with you that the HBO series on John Adams is most excellent.

Update: Publius responds in an update to his original post. In a nutshell, he sticks to his belief that there remains “a indeterminacy problem” with the Second Amendment. I respectfully dissent from this viewpoint. When one considers the text, history, and structure of the Second Amendment, there can be no question but that the amendment was meant to recognize and protect an individual right to bear arms.

Oh, and Publius, I am still waiting for your response to my question as to the impact/application of a collective-right interpretation of the Second Amendment. What would this mean for Americans as a practical matter? I know how keen you are on consequences, so I am curious as to how one would be able to exercise his Second Amendment rights if those rights were collective, rather than individually held. Would such an interpretation permit Americans to form local militia groups that operate independently from the federal or state governments? I am just curious whether you and other legal liberals are taking the “ink blot” approach to the Second Amendment. 

Update II: Klerk weighs in over at COA Review.

Jan Crawford Greenburg has the highlights here.

Kowalski has the details in a post over at RedState.