Supreme Court Got it Wrong on Heller

Heller belt (courtesy thehellershop.com)

When the Supreme Court handed down the Heller decision affirming the Second Amendment as an individual right that trumps any and all local or state laws, I called it a Pyrrhic victory. The problem: Justice Antonin Scalia’s declaration that, “Like most rights, the right secured by the Second Amendment is not unlimited” and “nothing . . . should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Responding to letters kvetching about the Wall Street Journal article “The Progressive Gun-Control Charade,” commentator Paul Cooper sets them straight on Scalia’s misinterpretation of the Second Amendment . . .

Antonin Scalia is wrong on both the Constitution and his interpretation of it. The Second Amendment does not “secure” any right. It places a specific, and absolute, restriction on the power of government to infringe upon that right. These may sound like the same thing, but they are not. The right to keep and bear arms may or may not be absolute, but the denial to both the state and federal government of any authority to infringe on that right is indeed absolute. We failed as a nation when we accepted the idea that “shall not be infringed” actually means “may be infringed under certain circumstances.”

comments

  1. avatar Mack Bolan says:

    Indeed unalienable rights are above the law. They have been surrendered because of a misguided morality against killing those who try to strip them from the individual.

  2. avatar schernobyl says:

    The constitution a bulwark against government tyranny not a rights granting piece of paper.

  3. avatar LarryinTX says:

    As a nation, maybe. But I, personally, never agreed to that.

  4. avatar Joe R. says:

    The Constitution is how we all get along. It is how we say to each other that we will not become what we worked to overcome in 1776. The second amendment was only an insurance policy. Our founding fathers didn’t want to enumerate our rights because it immediately imposes ‘limits’ (What should only be dealt with using deductive reasoning [THE ANSWER IS “X”], you are reduced to the parsed bs of inductive reasoning [BECAUSE ALL THESE THINGS ARE LIKE THIS, AND THEY EQUAL “X, AND THIS IS LIKE MOSTLY LIKE THEM, THEN IT ALSO EQUALS “X”]). They didn’t want to, BUT THEY DID SO WITH THE CAVEAT THAT THEIR RESONING WAS THAT FUTURE A_ _ HOLES WOULD PULL THIS KIND OF SH_T.

    The second amendment is there so that I can overthrow current and future kings. And, you’re wasting too much of my time bringing it up in argument.

  5. avatar Stoopid says:

    The coming civil war will fix all of this, one way or the other.

    1. avatar Noah says:

      There won’t be any civil war. And to think (or hope) there is one is completely asinine.

      1. avatar WhatAJoke says:

        Civil war or some type of collapse is coming. Thinking otherwise is foolish vs history.

        1. avatar AdamTA1 says:

          If it comes to that then we should all be ashamed for we will have squandered the gift the founding fathers gave us.

      2. avatar JSJ says:

        Civil war? There won’t even be much of a protest.
        Just as when the feds OK’d “free speech zone” cages, shredded our 4th and 5th amendment rights under the guise of fighting terrorism and began fondling grandma at the airport for no good purpose, the vast majority will do……absolutely nothing.

        1. avatar Peggy says:

          Oh how I wish I could find some fault with your comment but I can’t. Sadly, I have to agree.

    2. avatar Cliff H says:

      THE “Civil War” was not – in fact it was more correctly “The War Between the States.”

      Additionally, a civil war presumes two sides of approximately equal military power fighting for control fo the territory. As it seems unlikely the anti-2A crowd are ready, willing, and tooled up enough to fight people who already have and know how to use guns, and equally unlikely that a significant portion of the military or police forces would willingly participate in the attempts of the government to abrogate their oath to protect the Constitution, an actual civil war is highly unlikely.

      More likely would be the eventual willingness of certain states to band together and form a separate nation based on their adherence to the Constitution and recognizing that the current government and states that support that Progressive totalitarian tyranny have themselves actually seceded from the nation they purport to be a part of.

      At that point there may or may not be another War Between the States, but I suspect it would go badly for the secessionists.

  6. avatar Jonathan - Houston says:

    What he calls Scalia’s misinterpretation of the Constitution, I call Scalia’s recognition of reality and acknowledgement of what compromises in wording were necessary to obtain a majority.

    Do you want something of something, or all of nothing? When that something moves the ball many yards downfield in our favor, I’ll take it. Pyrrhic victory is a gross overstatement in this instance.

    He thinks the ruling locked in place state province to infringe. Well, infringement to some degree was already here and it’s here to stay. You will never, ever, get pure libertarian, unfettered firearms freedom without establishing (one way or another) a new, independent political entity. Once you do that, though, expect the new government to backpedal quickly.

    Even the Framers did that. Five minutes after ratification, and here came the Alien and Sedition Acts. That vaunted 2A? It and the rest of the BoR were not incorporated against the states. In fact, that was specifically rejected by the Framers. Decades of SC cases would reaffirm this, before decades more (a century) would start to reverse it. Even the 2A wasn’t incorporated against the states until post-Heller in MacDonald.

    I’m not saying Heller was perfect. I’ve already characterized it as a compromise. I am saying, that its enormously good and definitely opens up far more doors than it might close.

  7. avatar Ralph says:

    Justice Antonin Scalia’s declaration that, “Like most rights, the right secured by the Second Amendment is not unlimited” and “nothing . . . should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

    I have it on unimpeachable authority that the cited language was put in at the insistence of Justice Kennedy, who was the deciding vote. Also, the reason that SCOTUS hasn’t taken any further 2A cases is that nobody, not the left or the right, trusts Kennedy.

  8. avatar geoffb5 says:

    But when one reads not only the Ninth Amendment itself but about why it was written—to make it clear that the rights we “retain” when we establish government are far more numerous than could ever be enumerated in a constitution—then it becomes clear that the discovery and protection of those rights cannot be left to the very political majorities against which they are most likely being invoked in a legal action before a court. Indeed, if Whelan were right—that we enjoy only those rights that are expressly stated in the Bill of Rights—then prior to the ratification of the Bill of Rights, two years after the ratification of the Constitution, we enjoyed almost no rights against congressional majorities—save for those few mentioned in the original document.

    http://www.cato.org/blog/what-should-presidential-candidates-say-about-judges

  9. avatar James Lee says:

    We are born with rights as human beings, laws only serve to take some of them away as a collective action by the people via the legislature. We are born with the right to murder people when we feel like it, but the right was taken away and i dont see anything wrong with that. In the case of the 2nd Amendment, it clears states what it means in plain text – shall not be infringed. We are born with the right to own any devices that give us an edge in a fight against the govt, or criminals as per interpreted by Heller case, like GAU8, AH64D, F22 and nukes. It’s a clear constitutional prohibition on any law that restricts that right. 2A right is meant to be unlimited. Yes. It’s just that we lost so much in our legal fights and that made it a limited right, because of “social utility tradeoffs”. While there is nothing wrong with “social utility tradeoffs” in itself, I think we’ve made way too much compromises that the current state of restriction on the right to keep and bear arms has become suffocating. To me the only things I’m not comfortable with civillian ownership are WMDs. But I may change my mind. As for individual firearms, jeez, tell the antis, “no one has the right to tell me how i defend my life and freedom. When seconds count, cops are minutes away. Guns don’t defeat the formation of a tyrannical govt by firing at them. They do it by making other options appear cheaper to the govt”. End of debate.

    1. avatar Cliff H says:

      “…take some of them away as a collective action by the people via the legislature.”

      A natural right CANNOT be taken away. The government can only hope to suppress or otherwise make onerous your ability to exercise that right, in the hopes that many of their subjects will voluntarily decide not to oppose them.

      Even in prisons and concentration/re-education camps the detainees make every possible effort to thwart the authorities in their attempts to restrict natural rights. Every prison has a cabinet full of improvised weapons manufactured by the prisoners for either criminal purposes or just personal self-defense.

    2. avatar Rambeast says:

      “To me the only things I’m not comfortable with civillian ownership are WMDs.”

      Think about it. How many “civilians” could afford one? Maybe crew served weapons, vehicles…but an ICBM, a battleship, weaponized biological agent? Highly unlikely. The only entities that purchase these things and never deploy them are governments. It’s not their money, and they’re never going to be held accountable.

      1. avatar Stuki Moi says:

        Bioagents would likely be dirt cheap absent strict bans on futzing with and trading in them. And, again barring universal bans; Larry Ellison could easily afford enough warheads to mess up the wind patterns around his Americas’ Cup competitors.

        Not saying any of that excuses governments banning WMDs. But the world would almost certainly be a very different place if anyone and everyone could play with them unencumbered.

        On another note, it does seem that the only way to control traditional WMDs, is for governments to create and unleash the most potent WMDs of all: Progressivism and the attendant indoctrination support belief that government is some sort of useful institution. So I guess the cure may in fact be worse than the disease after all.

        1. avatar 16V says:

          Bioagents are cheap as dirt, and are being engineered on people’s kitchen tables. Do try to catch up to the last few years.

          Gene-splicing/manipulation is a table-top hobby.

  10. avatar RandallOfLegend says:

    Heller is cited in every single recent law that prohibits gun ownership. The real question is rather it did more harm than good.

    1. avatar Ralph says:

      Heller is cited in every single recent law that prohibits gun ownership.

      Heller is cited in every single recent case that supports gun ownership. For example, without it, there wouldn’t be gun rights in Chicago.

      The reason that it’s cited in recent anti-gun cases (not laws) is that it is the controlling case and anti-gun judges have to fake obedience to the law while they disobey it.

    2. avatar binder says:

      Dude, citing Heller is nothing look at this total BS

      “It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone” 18 U.S.C. § 922(q)(2)(A)

      With that formula they can ban ANYTHING they want, just change the last 4 words.

  11. avatar Jay in Florida says:

    Who says I accept that definition??
    I most certainly dont.
    I see an absolute right to not be infringed upon as written period.
    That the rest dont agree with me. Oh well.
    I guess I have to live with it for the time being.
    Or until they come aknocking at my door………….

  12. avatar McCann says:

    Oh good the guy baffled by passive voice and entrapment is here to regail us with his thoughts on substantive due process.

  13. avatar Louis Marschalko says:

    Nunn v. State is a stronger exposition of the fundamental right.

  14. avatar Gregolas says:

    Reading Stephen Halbrook’s “The Founders’ Second Amendment” will show that the founders did not allow felons or the mentally ill to possess firearms. That said, I agree that the 2d Amendment merely affirms a God given, natural right to arms for self defense.

  15. avatar Coldeadhands says:

    The prospect of a civil war may seem far fetched to some. The fact is, there is an on going war, an undeclared war, on the Constitution. We are already engaged in a civil war.

  16. avatar Former Water Walker says:

    +1 Ralph and Jonathan. When I get to heaven all will be perfect-until then I live in an imperfect and flawed world. Hey I live in Illinois-I’m not faulting Scalia…I do think a revolution of sorts is coming. Millions of us don’t care for the ruling class…

  17. avatar Paul says:

    To me, the Second Amendment is like freedom of movement, or any other basic right. It’s mine to enjoy as long as I do not abuse it.

    In other words, my right to walk down the street and go where I like shall not be infringed, unless I should become unhinged to the point whereby being allowed to roam free I become a clear and present danger to myself or others. At that point, I would expect both my Second Amendment rights and my freedom of movement to be heavily restricted.

    However, once that clear and present danger had passed, I would expect both sets of rights to be fully restored. And if I never demonstrate that sort of behavior in the first place, I should expect to be able to go anywhere I want, and possess just about any firearm or accessory that I can afford.

    1. avatar Model 31 says:

      How do you feel about the 13th, 15th and 19th amendments?

  18. avatar Marc says:

    Human beings are flawed creatures. As a result, so are their laws. As example, I give you the 18th and 21st amendments.

  19. avatar rick says:

    So does this mean when I go to New Jersey or Maryland and they say I cant have my firearm that they are infringing on my 2nd amendment rights?

  20. avatar DerryM says:

    The phrasing, “the right of the people” specifies that this right existed before the Constitution and would exist despitethe Constitution, and “shall not be infringed” once the Constitution is/was ratified by either the Federal or any State Government. I would challenge Paul Cooper’s remark “The right to keep and bear arms may or may not be absolute…” because this phrasing by the Founders implies an absolute right.
    I do not think the word “infringed” provides leeway to enact any controls or regulations, but the exclusion of convicted criminals and the “mentally ill” is a troublesome conundrum.

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