Thursday, June 26, 2008

Woke Up This Morning . . . Got Yourself a Gun!

UPDATE #3:  Today's (Friday) NYT Op-Ed hits the nail on the head.  The Supreme Court decision is a step backwards in a country that already watches thousands die needlessly because of guns: 

Thirty-thousand Americans are killed by guns every year — on the job, walking to school, at the shopping mall. The Supreme Court on Thursday all but ensured that even more Americans will die senselessly with its wrongheaded and dangerous ruling striking down key parts of the District of Columbia’s gun-control law.
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This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life. 
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In this month’s case recognizing the habeas corpus rights of the detainees at Guantánamo Bay, Cuba, Justice Scalia wrote in dissent that the decision “will almost certainly cause more Americans to be killed.” Those words apply with far more force to his opinion in this District of Columbia case.
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Scalia to teh District: You from the hood (DC), I hope ya . . . GOT YOURSELF A GUN! [Analysis of the opinion - below].  

In case you didn't figure it out from the video, the SCOTUS issued its first ruling on 2nd amendment issues in over 30 years, striking down the DC gun ban.  We think - along with four dissenting justices - this was a colossal mistake.  A bad interpretation of the 2nd amendment and, worse, bad policy for the people who live and work and travel in DC, as well as all Americans a future efforts at stricter gun control that this nation desperately needs are sure to be stymied by the decision.  We're busy today, more to come later. . . .

UPDATE #1:  Here is the text of the opinion (.pdf courtesy of SCOTUSblog.  One controlling question is to what extent does the prefatory clause of the second amendment limit the operative clause. The amendment reads: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Justice Scalia's take:

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. The Amendment could be re- 
phrased, “Because a well regulated Militia is necessary to 
the security of a free State, the right of the people to keep 
and bear Arms shall not be infringed.” See J. Tiffany, A 
Treatise on Government and Constitutional Law §585, 
p. 394 (1867); Brief for Professors of Linguistics and Eng- 
lish as Amici Curiae 3 (hereinafter Linguists’ Brief). 
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 state- 
ment of purpose . . . 

Logic demands that there be a link between the stated 
purpose and the command . . . But apart from that 
clarifying function, a prefatory clause does not limit or 
expand the scope of the operative clause. [Footnotes omitted]

We find Justice Steven's DISSENT to be much more rational on this point:

The parallels between the Second Amendment and
these state declarations, and the Second Amendment’s
omission of any statement of purpose related to the right
to use firearms for hunting or personal self-defense, is
especially striking in light of the fact that the Declarations
of Rights of Pennsylvania and Vermont did expressly
protect such civilian uses at the time. Article XIII of
Pennsylvania’s 1776 Declaration of Rights announced that
“the people have a right to bear arms for the defence of
themselves and the state,” 1 Schwartz 266 (emphasis
added); §43 of the Declaration assured that “the inhabi-
tants of this state shall have the liberty to fowl and hunt
in seasonable times on the lands they hold, and on all
other lands therein not inclosed,” id., at 274. And Article
XV of the 1777 Vermont Declaration of Rights guaranteed
“[t]hat the people have a right to bear arms for the defence
of themselves and the State.” Id., at 324 (emphasis added).

The contrast between those two declarations and the
Second Amendment reinforces the clear statement of
purpose announced in the Amendment’s preamble. 

It confirms that the Framers’ single-minded focus in 
crafting the constitutional guarantee “to keep and bear arms” 
was on military uses of firearms, which they viewed in the 
context of service in state militias.

The preamble thus both sets forth the object of the
Amendment and informs the meaning of the remainder of
its text.
Such text should not be treated as mere surplu-
sage, for “[i]t cannot be presumed that any clause in the
constitution is intended to be without effect.” Marbury v.
Madison, 1 Cranch 137, 174 (1803).
[Footnotes omitted]

It's another classic Steven's dissent, attacking the problem, more or less, from an orginalist perspective.  It summarizes our views quite well.


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