Scalia realises that Heller decision was a mistake

upon encounter with open carry idiot:

Oh, Dear

Another loss for "gun rights" as "intermediate scrutiny" is applied and long standing prohibitions are considered constitutional from the latest Heller decision:

Nevertheless, based upon the record as it stands, we cannot be certain whether these weapons are commonly used or are useful specifically for self-defense or hunting and therefore whether the prohibitions of certain semi-automatic rifles and magazines holding more than ten rounds meaningfully affect the right to keep and bear arms. We need not resolve that question, however, because even assuming they do impinge upon the right protected by the Second Amendment, we think intermediate scrutiny is the appropriate standard of review and the prohibitions survive that standard.

b. Intermediate scrutiny is appropriate

 As we did in evaluating the constitutionality of certain of the registration requirements, we determine the appropriate standard of review by assessing how severely the prohibitions burden the Second Amendment right. Unlike the law held unconstitutional in Heller, the laws at issue here do not prohibit the possession of "the quintessential self-defense weapon," to wit, [*45] the handgun. 554 U.S. at 629. Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non-automatic long gun. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 185 (1995) (revolvers and semi-automatic pistols are together used almost 80% of the time in incidents of self-defense with a gun); Dep't of Treasury, Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles 38 (1998) (semi-automatic assault rifles studied are "not generally recognized as particularly suitable for or readily adaptable to sporting purposes"). Although we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right. As the District points out, the plaintiffs present hardly any evidence that semi-automatic rifles and magazines holding more than ten rounds are well-suited to or preferred for the purpose of self-defense or sport.

I guess it helps to have Cato running the show rather than the NRA if you want to see unconstitutional changes made to the Constitution.

Heller II

This is really fascinating.

Gun owners in Washington told a federal appeals court that the city’s firearm registration process and a ban on some assault rifles violate their constitutional rights. 

The lawyer for Dick Heller, the plaintiff in a U.S. Supreme Court case in 2008 that expanded Second Amendment rights, argued to the three-judge panel today that the District of Columbia’s regulations are so burdensome that gun owners are deprived of their constitutional rights. The rules are inconsistent with high court rulings, including Heller’s earlier case, he said.

One fascinating part is that the case being argued now was originally raised just 12 days after the big victory in Heller vs. D.C. That would have been before they even know how restrictive the registration practice would be.

Washington requires residents who want to keep a gun at home to be fingerprinted and photographed by police, provide a five-year work history, and note their intended use of the weapon. Residents must register every firearm they own every three years. Applicants must allow police to run ballistic tests on each gun they register. Firearms defined by the city as assault weapons and magazines that hold more than 10 bullets are banned. 

I was wondering when does the restrictive part come in. To me there's nothing objectionable about this. All these measures will contribute towards minimizing the gun flow to criminals.

Once again the pro-gun crowd refuses to be inconvenienced, even for the greater good.

What's your opinion?  Was filing this lawsuit immediately after the first case was decided an indication of planned incrementalism?  Isn't that what they always accuse the gun control folks of doing?

Please leave a comment. 

The New Second Amendment

The Huffington Post published an article about the results of the Supreme Court's decision last June.

In June, 2008, the U.S. Supreme Court issued a landmark ruling on the Second Amendment right to bear arms, D.C. v. Heller. For over 70 years, the federal courts had read that amendment to protect only a state's right to organize militias, like the National Guard. In a long-awaited victory for the gun rights movement, the Court reversed course and held that the Second Amendment protected an individual's right to own guns for personal self-defense.

So far, the victory hasn't turned out exactly as the gun rights folks had hoped.

Is that right? How could this not be a major victory for the gun folks?

The article goes on to explain that since June, lower courts have upheld existing gun laws no fewer than 60 times. Felons still cannot own guns legally, nor can the mentally incompetent or the wife-beaters.

The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.

According to Adam Winkler, author of the HuffPo piece, the reason none of these restrictions have been lifted is because Judge Scalia included the following statement in his decision.

"nothing in our opinion should 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 on the commercial sale of arms."

So aside from allowing citizens of the District of Columbia to own guns for personal protection, like in many other places, has this ruling changed anything? Do law abiding gun owners want the restrictions relaxed that have always prevented felons from owning guns? Was it hoped that this ruling would trickle down to the lower courts and effect changes in the laws prohibiting guns in schools and government buildings?

What's your opinion?