How Scalia Botched Heller and Let the Left Undermine the 2nd Amendment

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  • GodFearinGunTotin

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    I remember at the time when I read this decision, ‘there’s lots of weasel words in here that seem prone for future problems.’ But there was so much celebration and hardly anyone else was concerned about them that I figured it was just me and my untrained brain misunderstanding what I was reading.

    The Heller decision turned out to be a bust. Aside from overturning a local handgun ban in the District of Columbia and providing the precedent to do the same in Chicago, it did nothing to advance gun rights nationwide. Rather, it provided gun-controllers with plenty of justification for equally restrictive legislation on a much larger scale. It is high time for the Supreme Court to issue a decision clearly and decisively upholding the plain language of the Second Amendment and to strike down the myriad laws "infringing" on the "right of the people to keep and bear arms."

    https://www.americanthinker.com/art...let_the_left_undermine_the_2nd_amendment.html
     

    Expat

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    It seemed like most of the intelligentsia saw it as a first step laying the groundwork for future broadening of gun rights. Scotus just didn't follow up in the way that most of our side were hoping.
     

    AmmoManAaron

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    The squishy language was necessary in order to get a majority opinion. Kennedy was the swing vote and was not willing to go any further. Scalia did what was necessary and personally I think he would have much preferred a more firm and sweeping opinion/ruling.
     

    GodFearinGunTotin

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    The squishy language was necessary in order to get a majority opinion. Kennedy was the swing vote and was not willing to go any further. Scalia did what was necessary and personally I think he would have much preferred a more firm and sweeping opinion/ruling.

    Maybe. But, and I’m going purely by faded memories here, I seem to remember Scalia quoted as saying things that were less than full throated pro-gun stuff in situations outside this decision.

    I liked Scalia. In a long line of progressive-style, penumbra seeking justices, he was most definitely a breath of fresh air.
     

    Sigblitz

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    We ... recognize another important limitation on the right to keep and carry arms. [The majority opinion in U.S. v. Miller] said ... that the sorts of weapons protected were those 'in common use at the time.' ... We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."

    What is the most common rifle? It's not unusual, and even a knife is dangerous.
     

    CampingJosh

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    The squishy language was necessary in order to get a majority opinion. Kennedy was the swing vote and was not willing to go any further. Scalia did what was necessary and personally I think he would have much preferred a more firm and sweeping opinion/ruling.

    SCOTUS also would prefer to make significant changes as three or four rulings across 10 years than as a single ruling. After Heller and McDonald, they stopped getting chances.

    The New York case that the city wants to be moot is what it is because anti-gun people don't want to give a chance for the court to take another step.

    One of the lawyers can probably say more on this.
     

    HoughMade

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    You live by originalism, you die by originalism. The RKBA, even at the time it was ratified was NEVER the complete absence of any law because the "Right" at issue was never viewed as completely open-ended. The question is what the founders believed about the "Right" at the time and what applicability does that have today as to the laws that some seek to enforce.
     

    Ark

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    Implying there was ANY combination of words the grabbers wouldn't weasel out from under, or simply ignore completely.
     

    GodFearinGunTotin

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    You live by originalism, you die by originalism. The RKBA, even at the time it was ratified was NEVER the complete absence of any law because the "Right" at issue was never viewed as completely open-ended. The question is what the founders believed about the "Right" at the time and what applicability does that have today as to the laws that some seek to enforce.

    Agreed. Originalism can be a two edged sword. Were there laws limiting the kinds and numbers of arms people could own/posses/use? I can easily imagine laws about where carry was allowed, how they were to be used (eg discharged in public), and maybe even the manner of carry. But were there any exceptions in the vein the gun grabbers are now trying to foist upon us. I’m thinking it would be nice just to get back to where we were in 1791.
     

    Twangbanger

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    Unfortunately, the 2A seems destined to be "friend-zoned" into the category of "balkanized rights" that apply in some states but not others. Which is really no different than we ever had. It will take some time for Trump's federal appointments to get in a position to expand Heller. If Biden wins and Ruth Buzzi Ginsberg retires, that window of opportunity will close.
     

    HoughMade

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    Agreed. Originalism can be a two edged sword. Were there laws limiting the kinds and numbers of arms people could own/posses/use? I can easily imagine laws about where carry was allowed, how they were to be used (eg discharged in public), and maybe even the manner of carry. But were there any exceptions in the vein the gun grabbers are now trying to foist upon us. I’m thinking it would be nice just to get back to where we were in 1791.

    I agree and I would have to do more research about what was going on at the time. To me, I think it's clear that the 2d Amendment protection applied to the same weapons that the military used. What I don't know is what kinds of other restrictions there may have been as to place and carry. I just don't know.

    The classic absurdist example of a limit on the RKBA is that when one is arrested and held in jail or imprisoned, you do not have a RKBA. I don't know anyone who disagrees, but that is an example where "shall not be infringed" is not as open-ended as some seem to argue. My remaining question is- are there any other limitations that were generally accepted as not a violation of the RKBA at the time of ratification? I would have to research, but what I do know is that "originalist" does not necessarily mean the absence of any and all laws.
     

    GodFearinGunTotin

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    I agree and I would have to do more research about what was going on at the time. To me, I think it's clear that the 2d Amendment protection applied to the same weapons that the military used. What I don't know is what kinds of other restrictions there may have been as to place and carry. I just don't know.

    The classic absurdist example of a limit on the RKBA is that when one is arrested and held in jail or imprisoned, you do not have a RKBA. I don't know anyone who disagrees, but that is an example where "shall not be infringed" is not as open-ended as some seem to argue. My remaining question is- are there any other limitations that were generally accepted as not a violation of the RKBA at the time of ratification? I would have to research, but what I do know is that "originalist" does not necessarily mean the absence of any and all laws.

    I do remember reading that at least at some point, citizens were required to own (and keep in good working order) a firearm and a certain minimum quantity of ammo/powder. (The original assault rifle and a government defined minimum ammo stockpile :D ). There are certainly libertarian arguments against that but it’s clear to me that current VA style prohibitions being pushed through were certainly not even on the founders’ radar.
     

    indykid

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    If I remember Heller correctly, like a jerk he said he was ok with reasonable restrictions. Once he opened that Pandora's Box, the hands of the justices were tied. If he and not agreed to that in his motion (or what ever the legal term) the judges could have made sweeping statements in our favor.
     
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