The gun control decision

(Note: Court overturns gun ban. Scroll down for more)

I can’t remember, frankly, the last time the country waited around, knowing a landmark Supreme Court decision was about to be handed down, but that’s what we’re doing today with the Supreme Court set to rule on DC vs. Heller at 9.

These are the words being examined:

“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.”

This is, of course, the Second Amendment to the Constitution and if you’ve followed the gun control debate at all over the last few decades, you know that the debate has centered around what exactly the Founding Fathers meant when they wrote it, especially in the context of today’s society.

Everybody has had an opinion. Today, only one will matter, when it rules on the District of Columbia gun ban.

But what will it matter? Lyle Denniston, who writes the ScotusWiki notes:


It is a somewhat curious fact of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

We, like everyone else, will be watching the ScotusBlog (if you can’t get through, try here)

MPR’s Midday will host a show on the decison at 11. I’ll be live-blogging that as well as throwing around a generous supply of links to the the various analysis that will, no doubt, popup on Planet internet.

9:03 – In unrelated case, the court overturns the millionaire’s amendment in campaign finance laws. It allowed candidates going up against self-funded bigwigs to raise more money than campaign finance laws allow. Good news for the Daytons and Ciresis of the world. (Here’s the decision on that case.)

9:12 – As expected, Supreme Court overturns the DC gun ban. I’m steeling myself for a day of bad writing (“Court shoots down gun ban.”). Interesting that the court watches nailed the prediction that it would be overturned. They had calculated based on who wrote other non-related decisions in cases released the last couple of days, that Justice Scalia was writing the opinion. Justice Scalia did, in fact, write the opinion.

9:18 What’s your reaction? Take the survey and discuss it in the comments section.


9:23 – Here’s the PDF version of the decision. The last time the court tested the limits of the 2nd amendment? 1939.

9:24 – Gun store owner on CNN: “It restores my faith in the system.”

9:27 – From Scalia’s opinion on the wording of the 2nd Amendment:


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 rephrased,

“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.”

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia,

being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may

cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.”

9:31 Gun control proponents have said the 2nd Amendment refers only to gun ownership by “a militia.” Scalia says (and this is the “money quote”):


Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

So this ends the debate, right?

9:35 I’ll post Justice Stevens’ dissent as soon as I have it, but regardless of your view on the decision — or his philosophy — you have to love Justice Scalia’s writing ability. He smacks down Stevens’ dissent, calling one of his arguments “bizarre.”

9:42 – My mistake: the dissent is attached to Scalia’s ruling in the pdf link mentioned above.

9:46The Brady Campaign for gun control’s Paul Helmke spins: “the court limited the extreme, saying you can’t have a widespread ban on guns,” while preserving the right to have targeted bans.

9:50 ScotusBlog’s Lyle Denniston on this point:


Justice Scalia’s opinion stressed that the Court was not casting doubt on long-standing bans on carrying a concealed gun or on gun possession by felons or the mentally retarded, on laws barring guns from schools or government buildings, and laws putting conditions on gun sales.

9:56 – Postgame analysis (lawyer version) from the Daily Writ blog.


Opinions are straight 5-4, one majority and two dissent. No concurring, partials. I’m surprised to see that happen. In a term where we’ve seen a remarkably low rate of 5-4 standard ideological splits, this clear delineation resonates loudly enough that I can hear it a thousand miles away.

10:00 – The first “predictably stupid and cliche headline award” (I know this because I predicted it upstream) goes to….. the McClatchey Newspaper Group. (Narrowly beating the blog, Flopping Aces)

10:39 Blog reaction. Mitch Berg at Shot in the Dark:


This is not the end of the war over the Second Amendment, of course. It’s not a complete victory; licensing at the end of the day is conceptually scarcely less odious or abuse-prone than a ban (as we’ve found out in Saint Paul this past year). The orcs still control much; many cities (or at least their governing elites) still pay lumpen, unthinking fealty to the notion that a disarmed, docile citizenry is a safe one.

11:00 Is this decision the Democratic version of same-sex marriage w.r.t. campaigns? National Review Online blog says it could put the makeup of the Supreme Court in play as a campaign issue.


I expect a lot of discussion about judicial nominations on the trail in coming days, considering that four of the justices ruled that a state cannot sentence a child rapist to the death penalty, but that state can deny almost all of its citizens the right to own a gun. And when asked for his model justices, Obama listed three of those four…

Analysis – Live-blogging Midday

Gues is Mark Tushnet: professor of constitutional law, Harvard University Law School. Author of “Out of Range: Why the Constitution Can’t End the Battle Over Guns.”

Listen here — Ask question here

11:13 Gary: Is this clear cut or murky?

A: It’s easy to understand in the whole. A ban on guns in the home is unconstitutional. Murkier is what other kinds of regulations might be unconstitutional. The ban on felons possessing guns is constitutional, the court said, but it didn’t say why.

11:15 Q: Are licensing laws still permitted? A: Yes.

11:20 Observation. The writing of Scalia in the decision seems to be in the English language. Much of the analysis seems to be in another language.

11:24 Q: Does today’s ruling affect ban on sawed-off shotguns and the like?

A: No, what the court said is the 2nd amendment is about ownership of “ordinary weapons,” (the kinds of things people could reasonably expect to use for self-defense i the home.)

11:25 – President of Million Moms in Duluth says radio ads will start Monday. Asks about background check laws standing up to scrutiny.

A: Probably, yes. Scalia refers to “law-abiding ordinary citizens.” That’s to capture the idea that some people shouldn’t own guns. Predicts background checks laws would be upheld, but they’ll be challenged.

End of professor’s segment. Next up is David Lillehaug, the former U.S. attorney in Minnesota who has been active in trying to overturn Minnesota’s concealed carry legislation.

11:30 I see a question in the ask-a-question queue (which may or may not make the air) asking whether the ruling will provide any impetus for DC statehood. This relates to an earlier note above that the DC law is at the Supreme Court because it’s a federal territory.

11:34 Lillehaug: “A dramatic upheaval in the law.” Says it wasn’t until a case in 2001 that the notion of an individual right in the 2nd amendment was the issue.

11:37 Why is this a federal issue and not a state issue? The Bill of Rights was a limit on the federal government, rather than the states, Lillehaug says. Says it’s an open issue whether the ruling on individual rights will be considered extending to the states.

11:43 Asks whether the ruling means you have the right to carry a gun down the street? Lillehaug says the question is now open. Says the interesting part of the Minnesota concealed carry law is that it overrode personal property rights.

11:50 Q: Do people have the right to protect themselves regardless of the Constitution?

A: Scalia pulls no punches on this in his decision (link to it is upstream). Yes. Dissenters say, “that’s not what the 2nd Amendment is about.”

“A well regulated Militia, (note comma) being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Scalia says it’s simply a preamble giving a reason for the right. Dissenters say you can’t separate the first clause from the second clause, that it was the purpose of the Founding Fathers not to take arms away from the militia.

Lillehaug: The other question is what is meant by “people.” Is it a collective or an individual? Does it include felons?

11:54 Lillehaug acknowledges he owns a gun.

11:55 Online question on whether this ruling affects recreatinal shooting.

A: Nothing in the court’s opinion that says any kind of law restricting firearms for recreation would be constitutional or unconstitutional.

12:34 – Online poll holding with 70% of respondents agreeing with the Supreme Court decision.

12:35 – Candidates react. McCain gives it a thumbs up. Obama with a fist thump down… or up…or sideways. Read the statement and see if you can tell.

12:42 – Supreme Court trivia. Today’s gun ruling ends the U.S. Supreme Court term. I’m trying to find out if Clarence Thomas finished the term without asking a question, extending his streak. Links appreciated to bcollins@mpr.org.

7:21 p.m. – Aaron Brown at Minnesota Brown declares the rule a victory for Dems:


What this means is that the federal and state governments can no longer pass gun laws that don’t meet this new Constitutional standard. This further means that Republicans can no longer accuse Democrats of seeking — in the open or in secret — new laws to restrict gun ownership as a way to drum up votes from rural people. The Second Amendment is now defined quite clearly. Barack Obama, when pushed on his negative rating from the National Rifle Association, can (and should) say that legal gun ownership is an established right, we need to keep guns out of the hands of criminals and focus on reducing violent crime in our cities. Political analyst Taegan Goddard says this Supreme Court decision takes gun control out of the national debate.

Which leaves voters to ask other questions. Whose got the best ideas for the economy? Who’s got the most effective foreign policy for the 21st century. Who’s going to fix my damn road?

These are all Democratic issues, or at least they should be, so today is a big victory for rural Democrats.

  • http://www.trailblz.com brian hanf

    “9:03 – In unrelated case, the court overturns the millionaire’s amendment in campaign finance laws. It allowed candidates going up against self-funded bigwigs to raise more money than campaign finance laws allow. Good news for the Daytons and Ciresis of the world. (Here’s the decision on that case.)”

    Great another 3 weeks of programing to take out all the code I put in 3 years ago and updated 3 times already this year!

  • http://n466pg.blogspot.com Daveg

    Justice Stevens’ dissent:

    the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

    Doesn’t that kind of miss the point about what the Constitution is intended to do by a pretty wide mark? Isn’t the Constitution intended to do exactly what Stevens laments, which is to protect the Citizen from an overbearing Government?

    I absolutely believe that the Framers intended specifically to limit the “tools” available to the goverment to control our lives, and I’m happy that they did.

  • brian

    “So this ends the debate, right?”

    Since it was 5-4, it could only end the debate until the composition of the court changes.

    Although I generally think gun control is a good thing and that we’d all be better off with fewer guns in this country, after some thought I’m not sure I disagree with this interpretation of the Constitution.

    This section makes me feel better:

    “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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 and qualifications on the commercial sale of arms.”

  • http://www.skyseastone.net/jvstin/ Paul

    Per your twitter…some more chatter.

    I think if you take the a priori assumption that the second amendment gives an intrinsic right to bear arms, period, then this is indeed the right decision for the court to make.

    It’s not a decision I like (I bluntly think that we need less firearms in this country) but it seems, at a first read, sound.

  • http://www.trailblz.com brian hanf

    Wow read about 20 pages of the decision (DC gun ban), boy can Scalia write. His ‘put downs’ of Justice Stevens in particular are sometimes witty and relevant – I will admit that some seem pointed and just outright mean.

    I have read about 4-5 decisions in my life time so not some kind of expert.

    Very impressed with the research and thoughtfulness to the decision, not just right versus left like the media (as the right wing calls it, drive by media) would lead us to believe.

  • Bob Collins

    Brian: I couldn’t agree more. As I was reading the opinion and dissent, I couldn’t help thinking that 99% of the people who’ll debate this issue from now on, likely will not have read the decision.

    Which is too bad because textbooks aren’t written anywhere near as direct — and understandable — as a good Supreme Court decisio (good in terms of well written)

  • SM

    In a law that Wyoming had on the books until recently it was against the law to carry an unloaded gun in public. The thinking was that everyone would know you were “locked and loaded” so there would be no fooling around.

    I’m surprised Scalia and Roberts stopped short of requiring everyone to carry a loaded handgun at all times with the safety off; what unusual self-restraint on their part. Perhaps this will come with the next ruling. Thank goodness there are still four justices with common sense.

  • http://www.trailblz.com brian hanf

    Bob – thanks, and i agree about the 99% having not read the actual. I wish I had more time to read more and discuss more.

    The second is a good example of Alexander Hamilton’s quote about constitution and against bill of rights: “Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.” but in the reverse, why in todays world we need the admendments….

  • ray

    Asked this on the question list but will repeat it here, the majority today is labeled as the law and order group, they have ruled in the confrontation clause cases this term and previously, as well as in the sentencing guidelines cases in ways that are not consistent with this label, as this court moves into the future where do they seem to be headed?

  • http://n466pg.blogspot.com Daveg

    Thank goodness there are still five justices that remember why we have a Constitution in the first place.

    Remember, these decisions may not always go the way you want them to; you may someday find that rights you thought to be inalienable and truths that you believed to be self-evident have been taken away from you by five unelected judges.

  • http://www.shotinthedark.info MBerg

    Q: Are licensing laws still permitted? A: Yes.

    I’m at work, ergo haven’t been able to read the opinions yet (rest assured, I will).

    But as I see it so far, it works out like this:

    1. The Second Amendment is an individual right.

    2. All the technicalities – makes, models, calibers, operating systems, registrations, databases, exceptions, local sensitivities, what have you – are to be worked out in the legislatures, Congress, and lower courts.

    From my perspective, as long as we’ve got #1, we can hash out #2 sooner or later.

    Oh, Lillehaug is being (I’ll be charitable) myopic; legally, the issue started to turn in 1991, when Sanford Levinson published “The Embarassing Second Amendment” in the Yale Law Review. The article (read it!) laid the intellectual groundwork for the legal turnaround that climaxed today. It also started turning in 1987, when Florida passed its’ “shall issue” concealed carry law…

    …and the sky didn’t fall.

    Yes. I’m happy today.

  • Heather

    As a recovering English teacher, I have to confess an appreciation for Scalia’s emphasis on grammar, but as a transplant from the DC area (hi, Bob!), I can’t stop thinking about a t-shirt that was popular BEFORE that city’s ban went into effect. Big picture of a handgun pointed at you, with the caption, “DC, See It Like a Native”.

  • http://www.skyseastone.net/jvstin/ Paul

    @dave:

    “Remember, these decisions may not always go the way you want them to; you may someday find that rights you thought to be inalienable and truths that you believed to be self-evident have been taken away from you by five unelected judges.”

    No offense, but I take offense at the phrase “five unelected judges”. It is at best a distortion, and at worst a willful misreading of the structure and role of our government.

    Are these judges still “unelected” if they make decisions that you agree with? Or are they only “unelected” if they “take your rights away”?

  • Mary

    Maybe someone already said this in fancier language, but whether or not there’s a ban on guns, people who probably shouldn’t have one will find a way to get one. (It’s the same thing with drugs)

    So why not allow everyone to have one, and either we’ll all protect ourselves, or blast each other to bits.

  • Mary

    As a follow up comment, I fully support resolving all conflicts with a dance-off.

    It’s all around more beneficial than a bullet wound.

  • http://www.shotinthedark.info Mitch Berg

    It’s all around more beneficial than a bullet wound.

    Much as I love to dance, I’m a much better shot, thanks.

  • http://n466pg.blogspot.com Daveg

    Five is an arbitrary number fitting the context of the discussion at hand.

    They’re all unelected no matter how I feel about any given decision, and at the risk of offending you further, they’re all unaccountable as well. That is why they weren’t given the responsibility to legislate, although they seem hell-bent on taking that responsibility on by themselves.

  • brian

    “They’re all unelected no matter how I feel about any given decision, and at the risk of offending you further, they’re all unaccountable as well.”

    I see being unaccountable as the Supreme court’s purpose. They are there to keep the other two branches from doing things that are wrong even though the majority want them. If we could kick them out whenever they did something we didn’t like, what would their purpose be?

    “That is why they weren’t given the responsibility to legislate, although they seem hell-bent on taking that responsibility on by themselves.”

    What examples are there of the courts legislating? That accusation is thrown around all the time and I just don’t see it.

  • Scott

    I was expecting a larger majority personally. I have just started reading the opinions having spent the last 24 hours doing a happy dance. I think I will go buy an AR-15 and another 1911 to celebrate and do my part to ensure my preferred firearms remain in common use.