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United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e. those in common use for lawful purposes. Pp. 47–54.
Holding 2.
Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56.
P. 22
In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.”
Pp. 49-54
A discussion of Justice Steven's analysis of Miller and others.
P. 55
Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
First, let me say that I have no legal education. What I write comes from a perspective of logic and a reasonable understanding of the English language, dangling participles excluded. Corrections and additions are always welcome.
Rational basis review is the lowest level of review. In other words, this standard is the most lax at considering whether or not a law is constitutional. The government must only show that the law is a rational action to a legitimate government concern.
Intermediate scrutiny is the next higher level. For a law to pass constitutional muster, it must substantially further an important government interest.
Strict scrutiny is many places referenced as the highest standard of review. Amongst other considerations, strict scrutiny applies to reviews of laws impacting fundamental rights. According to Wikipedia, the law:
First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections. Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored. Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.
This is the toughest standard to pass for a law to be considered constitutional.
And this is where we get to D.C. v. Heller. For obvious reasons, the D.C. government argued for a rational basis review. It was the standard most likely to provide them a positive outcome.
Holding 3 on page 2 of the decision quickly dispensed with the review standard argument by stating "Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster". D.C.'s argument was mute. [bold added]
But what of future Second Amendment challenges? This is where we get to footnote 27. It states:
JUSTICE BREYER correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 8. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e.g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. ___, ___ (2008) (slip op., at 9–10). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. 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. See United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments. . .”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.
Footnote 27 provides us a clue to the future. Any law, to pass a constitutional challenge on Second Amendment grounds, must pass a strict scrutiny test.
The Brady Bunch won't be announcing this part of the decision.
Update: After letting this post sit for a bit and reading Footnote 27 and Strict Scrutiny over at Say Uncle, I have realized that I jumped too far in conclusion. The more logical conclusion is that Second Amendment challenges will face scrutiny greater than rational basis review. At this point it could be intermediate scrutiny or strict scrutiny.
Repeal the 2nd Amendment - I had no idea the editorial board of the Chicago Tribune had more constitutional expertise than the majority of the Supreme court.
In the Heller decision, concealed carry is mentioned several times. Scalia references cases where a CC ban was upheld to constitutional challenges.
But what of open carry. On page 57 of the decision there are two references to state supreme courts overturning bans on open carry.
If we have a right to bear arms, which is seperate from keeping arms, and we can not conceal those weapons, do we have a right to open carry outside of 'sensitive locations'?
If we have a right to open carry in public, then our rights are expanded greatly outside of the home.
And what of those locations that require registration. If only residents are allowed to register, does the Constitution not protect those who travel?
1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller's holding that the sorts of weapons protected are those "in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
“Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.”
Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”
Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications,e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modernforms of earch, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflictwith another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.
Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.
Before we go any further, we must remember what our mamas taught us. Say "Thank you".
And so, to the team that concieved of, planned and executed Parker v. D.C., thank you. To the D.C. residents that were willing to put their name on the suit, thank you. To those that financed the suit, big and small, thank you.
Words can not adquately express the magnitude of the service that you have provided to the country.
Every American that lives and will live owes each and every one of you a debt that can never be repaid.
Today is a time to celebrate. After decades of being on the defensive and reminding the country that the Bill of Rights is about individual rights, the Supreme Court has defined the 'people' of the Second Amendment the same as the every other amendment.
And, after years of being told they support unconstitutional proposals, the Brady Campaign finally got slapped by the group that really counts - the Supreme Court. Instead of pausing to contemplate the real meanings in the ruling, the Brady Campaign is already declaring victory despite being at the birth of their largest defeat in history. Their acknowledged end desire is forever out of reach.
According to Paul Helmke, President of the Brady Campaign:
If the Supreme Court strikes down the D.C. gun ban, the Brady Campaign is hoping that it will reorient gun control groups around more limited measures that will be harder to cast as infringements of the Second Amendment. "The NRA [National Rifle Association] won't have this fear factor," Helmke said. Brady Campaign Attorney Dennis Henigan said there are multiple gun control measures that would not run afoul of a Supreme Court decision striking down the D.C. gun ban. "Universal background checks don't affect the right of self-defense in the home. Banning a super dangerous class of weapons, like assault weapons, also would not adversely affect the right of self-defense in the home," said Henigan. "Curbing large volume sales doesn't affect self-defense in the home."
In other words, Helmke wants the NRA to back off their fight against gun control because the NRA won't fear complete bans on firearms. Isn't that the cutest little thing.
Poor Paul is dillusional. On the day of our greatest victory, Paul wants gun rights supporters to drop our defenses and let Brady slap us around.
On the contrary, after decades of being on the defensive, the gun rights movement is finally on the offensive. Rather than letting gun grabbers run around the country pushing their agenda, we need to accelerate our efforts and keep poor Paul on the defensive.
Before the day is out, expect Brady to begin a new fund raising campaign.
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