5 ms·

DC v. Heller is a great opinion to read for us Constitutional Law nerds though. Scalia really put the historical scholarship work in on that one digging up all

DC v. Heller is a great opinion to read for us Constitutional Law nerds though. Scalia really put the historical scholarship work in on that one digging up all that 1776 history. It is a very long and detailed treatise. If you are a gun control fanatic, I could see where that one would rub you the wrong way, but it was a fantastic piece of legal scholarship.

ahelwer 4y ago
It was a whole lot of motivated speculation about how some people were thinking hundreds of years ago and how they would interpret contemporary weapons. It is indistinguishable from a reddit post with fancier words. Scalia would have been happy to hear you think it's a fantastic piece of legal scholarship, though - it was his job to dress up his opinions in that way. I quite enjoyed this account of it: https://www.fivefourpod.com/episodes/dc-v-heller/ https://www.fivefourpod.com/episodes/dc-v-heller/
- rayiner 4y ago
  By that logic, should we limit free speech rights because the framers didn’t contemplate the web?
rayiner 4y ago
Heller was also the product of a decade of scholarship by liberals like Larry Tribe and Akhil Amar. The dudes who had just overthrown their government with muskets they had lying around the farm really intended for firearms ownership to be a private right. Least surprising thing ever.
- tptacek 4y ago
  The opinion of the court in Heller seems pretty explicit about not establishing a private right for citizens to bear military weapons (just sweep the whole opinion for the word "military"; it comes up multiple times.)
  - rayiner 4y ago
    Military weapons weren’t at issue in Heller, and anything it says about them is dicta. My point is that the historical circumstances of militias armed with weapons they had lying around confirms Heller’s holding that the right conferred by the 2A is a private right.
    - kasey_junk 4y ago
      How does that square with all the various gun control regulations in effect during post revolution America?
      - DuskStar 4y ago
        The regulations that allowed for private warships and artillery? Those gun control regulations? If there are actual gun control regulations from the post-revolutionary period, I'm sure that they'll be used to defend NY's and CA's modern regulations soon.
        kasey_junk 4y ago
        I meant the ones that prevented black people from touching a gun. But we could also talk about the exceedingly common laws against public carry if you want: https://www.yalelawjournal.org/forum/firearm-regionalism-and-public-carry https://www.yalelawjournal.org/forum/firearm-regionalism-and...
    - tptacek 4y ago
      The entire definition of "arms" in Heller revolves around military vs. non-military use!
  - deleted 4y ago
    [deleted]
Maursault 4y ago
> Scalia really put the historical scholarship work in on that one I'm afraid not, and not by a mile. He based his decision on his unfounded and unsupportable belief that most Americans believed that self-defense was inclusive to the 2nd, based on nothing but what he thought, and he was wrong, because most Americans are not idiots, but even if he was right (which he definitely was not), the Supreme Court is not and not supposed to be a democratic institution swayed by the whims of alleged popular opinion. In considering the 2nd Amendment, the Framers debated self-defense and intentionally left it out of the Amendment. Scalia knew this, being a strict Constitutionalist, probably personally reviewed the minutes of the Constitutional Congresses where it is very clear the Framers did not want self-defense inclusive to the 2nd. They did not want an armed citizenry. The 2nd only concerns militia and tyranny. The proper exercise of the 2nd looks exactly like Black Panthers surrounding the Alameda County Courthouse in Oakland, California in 1968. It does not look anything like Florida (and elsewhere) Stand Your Ground nonsense, nor Texans shooting kids in the back. What Scalia did was criminal, bastardizing the 2nd, changing it from a selfless right to stand against tyranny into a selfish right to protect self and property. Self-defense is far more fundamental than the Bill of Rights and is superfluous there. If the right of self-defense comes from any document, it would be one far, far older than the Constitution. But it's really a natural right, older than writing, older than language. Self-defense transcends our species and is a right of all living things. The Bill of Rights does not give us rights we already have and have had since long before we even evolved into humans. And self-defense was completely skew and unrelated to the issues of DC v. Heller. That portion of DC v. Heller will be struck down, eventually, as soon as its challenged under a balanced court, because Scalia stepped way, way beyond the bounds of the mandate of the Supreme Court to interpret the Constitution, instead literally adding meaning that was never there before, sidestepping the legal methods of amending the Constitution aka 2/3rds majority of both houses of Congress or state legislatures. Scalia vandalized, gutted and diluted the 2nd Amendment. Prior to 2008, the 2nd was noble and great. After DC v Heller, it is worthless. DC v. Heller is just another assault on the Constitution, just like the suspensions of habeas and the 5th Amendment. Gun owners don't need the 2nd Amendment. Hunters never did. The 10th Amendment was always where (nearly all) gun owners' gun rights derived and still do, through legislation by the States, as the Framers intended, abiding by the first 3 words of the 2nd Amendment, put right up front to underscore their importance, and that every gun owner loves to ignore or lie about their clear and literal meaning. The 2nd limits itself and allows the 10th to legally cement what has become a dirty word: regulation. "Shall not be infringed" was placed last, making it less important than and subject to regulation. And commas are important, and it is easier to understand the 2nd removing the clauses between them: A well-regulated Militia shall not be infringed. The "right of the people to keep and bear Arms" is "a well-regulated Militia and necessary to the security of a free State." Before Heller, and after that portion is struck down when the Court is inevitably balanced again, no personal right to bear arms existed nor will exist, respectively, except what the States grant under the 10th Amendment.

ahelwer 4y ago

It was a whole lot of motivated speculation about how some people were thinking hundreds of years ago and how they would interpret contemporary weapons. It is indistinguishable from a reddit post with fancier words. Scalia would have been happy to hear you think it's a fantastic piece of legal scholarship, though - it was his job to dress up his opinions in that way. I quite enjoyed this account of it: https://www.fivefourpod.com/episodes/dc-v-heller/ https://www.fivefourpod.com/episodes/dc-v-heller/

rayiner 4y ago
By that logic, should we limit free speech rights because the framers didn’t contemplate the web?

rayiner 4y ago

Heller was also the product of a decade of scholarship by liberals like Larry Tribe and Akhil Amar. The dudes who had just overthrown their government with muskets they had lying around the farm really intended for firearms ownership to be a private right. Least surprising thing ever.

tptacek 4y ago
The opinion of the court in Heller seems pretty explicit about not establishing a private right for citizens to bear military weapons (just sweep the whole opinion for the word "military"; it comes up multiple times.)
- rayiner 4y ago
  Military weapons weren’t at issue in Heller, and anything it says about them is dicta. My point is that the historical circumstances of militias armed with weapons they had lying around confirms Heller’s holding that the right conferred by the 2A is a private right.
  - kasey_junk 4y ago
    How does that square with all the various gun control regulations in effect during post revolution America?
    - DuskStar 4y ago
      The regulations that allowed for private warships and artillery? Those gun control regulations? If there are actual gun control regulations from the post-revolutionary period, I'm sure that they'll be used to defend NY's and CA's modern regulations soon.
      - kasey_junk 4y ago
        I meant the ones that prevented black people from touching a gun. But we could also talk about the exceedingly common laws against public carry if you want: https://www.yalelawjournal.org/forum/firearm-regionalism-and-public-carry https://www.yalelawjournal.org/forum/firearm-regionalism-and...
  - tptacek 4y ago
    The entire definition of "arms" in Heller revolves around military vs. non-military use!
- deleted 4y ago
  [deleted]

Maursault 4y ago

> Scalia really put the historical scholarship work in on that one I'm afraid not, and not by a mile. He based his decision on his unfounded and unsupportable belief that most Americans believed that self-defense was inclusive to the 2nd, based on nothing but what he thought, and he was wrong, because most Americans are not idiots, but even if he was right (which he definitely was not), the Supreme Court is not and not supposed to be a democratic institution swayed by the whims of alleged popular opinion. In considering the 2nd Amendment, the Framers debated self-defense and intentionally left it out of the Amendment. Scalia knew this, being a strict Constitutionalist, probably personally reviewed the minutes of the Constitutional Congresses where it is very clear the Framers did not want self-defense inclusive to the 2nd. They did not want an armed citizenry. The 2nd only concerns militia and tyranny. The proper exercise of the 2nd looks exactly like Black Panthers surrounding the Alameda County Courthouse in Oakland, California in 1968. It does not look anything like Florida (and elsewhere) Stand Your Ground nonsense, nor Texans shooting kids in the back. What Scalia did was criminal, bastardizing the 2nd, changing it from a selfless right to stand against tyranny into a selfish right to protect self and property. Self-defense is far more fundamental than the Bill of Rights and is superfluous there. If the right of self-defense comes from any document, it would be one far, far older than the Constitution. But it's really a natural right, older than writing, older than language. Self-defense transcends our species and is a right of all living things. The Bill of Rights does not give us rights we already have and have had since long before we even evolved into humans. And self-defense was completely skew and unrelated to the issues of DC v. Heller. That portion of DC v. Heller will be struck down, eventually, as soon as its challenged under a balanced court, because Scalia stepped way, way beyond the bounds of the mandate of the Supreme Court to interpret the Constitution, instead literally adding meaning that was never there before, sidestepping the legal methods of amending the Constitution aka 2/3rds majority of both houses of Congress or state legislatures. Scalia vandalized, gutted and diluted the 2nd Amendment. Prior to 2008, the 2nd was noble and great. After DC v Heller, it is worthless. DC v. Heller is just another assault on the Constitution, just like the suspensions of habeas and the 5th Amendment. Gun owners don't need the 2nd Amendment. Hunters never did. The 10th Amendment was always where (nearly all) gun owners' gun rights derived and still do, through legislation by the States, as the Framers intended, abiding by the first 3 words of the 2nd Amendment, put right up front to underscore their importance, and that every gun owner loves to ignore or lie about their clear and literal meaning. The 2nd limits itself and allows the 10th to legally cement what has become a dirty word: regulation. "Shall not be infringed" was placed last, making it less important than and subject to regulation. And commas are important, and it is easier to understand the 2nd removing the clauses between them: A well-regulated Militia shall not be infringed. The "right of the people to keep and bear Arms" is "a well-regulated Militia and necessary to the security of a free State." Before Heller, and after that portion is struck down when the Court is inevitably balanced again, no personal right to bear arms existed nor will exist, respectively, except what the States grant under the 10th Amendment.