The Federalist Society

Debate Comments

[John Sciortino]

What I don't get is Justice Kennedy. How could he sign on in total in Heller, which is such an expressly originalist opinion, yet decide the child rape case based on present "national consensus?" I would have thought that he would have concurred separately in the Heller result.

[Robert P. Firriolo]

The majority did not explicitly adopt a standard of review, but we know it is NOT strict scrutiny. See the majority opinion at p. 56, n.27: "JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny.... Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms."

Because the majority believed that the DC law would pass rational review, and yet still struck it down, the Second Amendment standard of review cannot be rational review. It must be at least intermediate scrutiny, and more likely, strict scrutiny.

Moreover, the majority explicitly states that rational review "could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms." Thus, there is no doubt that federal courts will be required to apply heightened review of gun laws, which will require governments to justify them by trying to prove, at least, important governmental interests that are furthered by substantially related means (for intermediate scrutiny), if not that the laws are narrowly tailored to achieve a compelling government interest using the least restrictive means (strict scrutiny).

Given the court's strong equation of the right to keep and bear arms with other fundamental rights afforded strict scrutiny, there is a strong case to be made that strict scrutiny is the appropriate standard of review for the Second Amendment.

[Robert P. Firriolo]

Correction to my prior comment: The first sentence should have read "The majority did not explicitly adopt a standard of review, but we know it is NOT rational review." Please substitute before posting, if possible.

[Rob Natelson]

I was struck by the narrowness of the Heller victory. The majority was only 5-4, as you note the standard of review was left undecided, and the Court preemptively (and, I think, without hearing argument beforehand) validated certain kinds of gun bans, such as those in schools. The latter will disappoint some activists, who maintain that recent campus shootings might not have happened if students were allowed legitimately to carry weapons.

[Josef J]

This was a grand day for the Republic of these United States, individual rights, freedoms and our Constitution. We should all cherish this landmark decision. Though the attacks will undoubtedly continue on the Second Amendment, we should be comforted in knowing that the Second Amendment is confidently ensconced and ready for assault. The Justices courage, judicial and historical analysis in affirming The United States Court of Appeals for The District of Columbia’s decision should be applauded!

[Theodore Hasse]

How major is the incorporation issue now? It would seem that armed with Heller (pardon the pun), the next step for gun rights advocates will be to seek to get the Supreme Court to rule that the Second Amendment should be incorporated to the states through the Fourteenth Amendment. Wouldn't this be the next area where litigation will be focused and where other questions raised by Heller may be answered?


Prof Bogus wrote:
On a different topic, I read Justice Scalia’s opinion with both great interest and trepidation to see whether he embraced insurrectionist theory, that is, the argument that the Founders adopted the Second Amendment as a check against governmental tyranny. What’s more repugnant to constitutional democracy and the rule of law – not to mention traditional conservatism – than the idea that the people should be armed to potentially go to war with their own government?

Hmm, let's see. Who was the first President of the United States? George Washington. And how did he rise to prominence? Would it, by chance, be because he successfully led the American Colonies in their military insurrection against their own government? Yes, I believe that was it.

Any government can become a tyranny. A government with a monopoly on force is even more likely to become a tyranny. Our founders understood that.

[Chris Casper]

What's more repugnant than people going to war against their own government? Um, how about living under a tyrannical government?

[A J Libby]

Supreme Blunder

The supreme court5 is caught in an inescapable blunder caused by it's own misinterpretion of Wm Rawle's 1825 treatise, which the court cited as supportive of their individual right to keep bear arms ruling.
Wm Rawle in 1825-1829 explicitly called the individual right to keep & bear arms clause a COROLLARY to the militia clause.
Webster's 1828 dictionary calls a corollary a 'consequent' or a 'conclusion' or an 'inference' from something which preceded it.
Justice Scalia ruled that the individual rkba clause was the 'operative clause' and that it codified a 'pre-existing right'.
Wm Rawle contradicts Justice Scalia, when Rawle clearly contended that the rkba clause was a CONSEQUENT to the militia clause - thus rkba could NOT have been 'pre-existing' according to Rawle.
Can a consequent precede what came before it? That is what the supreme court5 would have us believe.

webster's 1828 dictionary: COROLLARY: 1. A conclusion or CONSEQUENCE drawn from premises, or from what is advanced or demonstrated.
(2). A corollary is an INFERENCE from a preceding proposition.

Justice Scalia citing: In 1825, Wm Rawle, a prominent lawyer who had been a member of the Pennsylvania Assy that ratified the Bill of Rights, published an influential treatise, which analyzed [2ndA] as follows: "The first principle is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . ."The COROLLARY, from the first position is, that the right of the people to keep and bear arms shall not be infringed."

What Justice Scalia ruled: .. the 'militia' reference in the first part of the amendment simply 'announces the purpose for which the right was codified: to prevent elimination of the militia.' ... he added that this 'prefatory statement of purpose' should not be interpreted to limit the meaning of what is called the operative clause 'the [rkba] shall not be infringed.' Instead, Justice Scalia said, the operative clause 'codified a PRE-EXISTING right' of individual gun ownership for private use.

Scalia could be correct that the militia clause was a statement to prevent elimination of the militia, but if so, according to Wm Rawle, the individual rkba clause was then a CONSEQUENT to that statement, & as a consequent it must have a concrete link to preserve the militia for it's existence, rkba cannot have been a 'pre-existing right'. .... IE: "the militia must be preserved,, consequently the people have a right to keep & bear arms, since by law, they are obligatory members of the militia".
.. (and since there is no obligatory militia today, the 2ndA is actually defunct & obsolete & inapplicable since rawle's 'consequent' pertained to a wrm, but convincing self important americans of this is futile. Would the founding fathers have granted individual rkba merely on the 'hopes' that people would join a militia? as scalia would apply to the 'unorg'd militia' for the national gd today? an unorganized militia is no more a well reg'd militia than loose bricks & lumber are a house)

Justice Scalia has fallen into the 'Wm Rawle Trap' whereby he overlooks the meaning of 'corollary' and jumps to the misguided conclusion that Rawle is supporting the individual rights theory when he was not. Rawle clearly stated the opposite of what Scalia tries to spindoctor.
(The supreme court5 also misinterpreted it's other interpretations of Wm Rawle).
Wm Rawle was a true constitutional scholar of the era, he wrote 'A Constitutional View of the United States', parts of which are required reading to graduate west point today.

[A J Libby]

TedCruz wrote: What Justice Scalia explained was that, at the time of the Founding, the right to keep and bear arms was understood to mean that individuals had a right to possess the arms in common possession at the time, which they could be expected to provide if and when they found themselves called up to the militia.

.. wm rawle refers to rkba as a corollary, a consequent, to the wrm clause, while you & scalia have reverse engineered it to mean that rkba was dominant & militia service subordinate, in opposition to rawle. Reconcile your belief with what wm rawle wrote. Remember that Scalia cited Wm Rawle as being supportive of his ruling.

TedCruz wrote: .. at a minimum, the horrific crime and murder rates in DC over the past several decades (all with the ban in effect) surely do not inspire confidence. Every other State and every other large city in the country (except perhaps Chicago) allows considerably more freedom for its citizens to own guns, and yet Washington is sadly among the most dangerous cities in America.

.. the other 'most dangerous cities' in america, from morgan quitno, 2005: #1 pro gun StLouis (gee, right after enabling shall issue ccw ~jun2005, vaults right up to number one, more guns, more lies) .. #2 Flint Mi (michigan progun now with siccw?) .. #3 Birmingham Al (progun in 2005) .. #4 DC, nations capitol, full of intrigue & constant flux, . #5 Philly in very pro gun pennsy ... #6 Dallas Tx, how bout them cowboys? ... #7 Nashville TN, very pro gun ... #8 Charlotte NC, progun or leans gun .. #9 Columbus Ohio, pro gun in 2005, anyone disagree? ... #10 Houston Tx, how bout them astros?
.. by my reckoning, of the top ten large cities (>500k, of which there are about 35), only DC has serious guncontrol, the rest, sadly, range from VERY pro gun, to progun, or at least 'leans gun'.
.. furthermore, when we take the 25 highest violent crime cities with pops >75,000 (of which about 350), DC ranked 19th in 2005, with 10 to 12 progun cities ranking higher (depending on michigan view). Pro gun Richmond Va, DC's sister city, ranked 15th, more dangerous than DC..
.. don't we just hate it when writers cherry pick & ignore the stink in their own backyard?
.. link to safest 25 cities & most dangerous 25, note that 14 of the safest 25 are in guncontrol states, while 14 - 16 pf the most dangerous cities are in progun states.
.. then note further down under 'metro areas', that of the 25 most dangerous metro areas, only 4 could be considered guncontrol in 2005, the others are progun with maybe 3 or 4 neutralish. The safest 25 metro areas break close between progun & guncontrol, neutralish wisconsin making it near a push.

DC, a capitol city with no death penalty surrounded by two states which have the death penalty, not a few bodies have been dumped in DC or victims driven in & executed there to avoid DP if caught, no other city >50k that I know of is in this singular situation. Inflates DC murder rate slightly.

[A J Libby]

Ted Cruz wrote: As George Mason observed, "Who are the Militia? They consist now of the whole people." It is only based on the anachronistic view from today that the dissent can focus on the "select militia," an organized professional subset of the militia at the time of the Founding (the people as a whole).

.. The militia did not consist of 'the whole people', it consisted of white males between 17 & 45, surely a small subset of 'the whole people'.... accd'g to the 1790 census, white males 17 to 45 comprised approximately 18% of the total american population (~half women, ~20% slaves, rest younger or older, plus ~50,000 free blacks eligible for militia I suppose, but blacks rare in militia back then). Do you really think George Mason was including other than white males? Mason's platitude sounds nice today to promote harmony, but was anything but, back then.
.. George Washington was a firm believer in the 'select militia' concept, which Washington developed as he came out of the revwar after having experienced the general ineptness of the citizens' militias during the war, deserting often during battle, often taking his muskets with them, or not even showing up when supposed to, GW thought them more a drain on supply & resource than they were worth. Soon later militia duty became a purchasable commodity.
.. the 'select militia' eventually did catch on circa 1903, today it's known as the national guard, the 'organized professional subset of the militia'.

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