Gun rights case: Supreme Court rules on second amendment

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/28/AR2010062802134_pf.html

Gun rights case: Supreme Court rules on second amendment

By Robert Barnes
Washington Post Staff Writer
Monday, June 28, 2010; 2:40 PM

The Supreme Court ruled for the first time Monday that the Second Amendment provides all Americans a fundamental right to bear arms, a long-sought victory for gun rights advocates who have chafed at federal, state and local efforts to restrict gun ownership.

The court was considering a restrictive handgun law in Chicago and one of its suburbs that was similar to the District law that it ruled against in 2008. The 5 to 4 decision does not strike any other gun control measures currently in place, but it provides a legal basis for challenges across the country where gun owners think that government has been too restrictive.

"It is clear that the Framers . . . counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty," Justice Samuel A. Alito Jr. wrote for the conservatives on the court.

The victory might be more symbolic than substantive, at least initially. Few cities have laws as restrictive as those in Chicago and Washington.

Alito said government can restrict gun ownership in certain instances but did not elaborate on what those would be. That will be determined in future litigation.

Alito said the court had made clear in its 2008 decision that it was not casting doubt on such long-standing measures as keeping felons and the mentally ill from possessing guns or keeping guns out of "sensitive places" such as schools and government buildings.

"We repeat those assurances here," Alito wrote. "Despite municipal respondents' doomsday proclamations, [the decision] does not imperil every law regulating firearms."

The decision came on the final day of the term and at a time of great change for the court. Justice John Paul Stevens sat at the mahogany bench for the last time, and will end more than 34 years on the court when his retirement becomes official Tuesday. Confirmation hearings for Solicitor General Elena Kagan, President Obama's choice to replace Stevens, were scheduled to begin Monday afternoon.

And Justice Ruth Bader Ginsburg, 77, was with the court despite the death of her husband of 56 years, Martin D. Ginsburg, on Sunday.

Besides the decision in McDonald v. Chicago, the court completed its work by issuing opinions in its final cases of the term:

-- It ruled that the Public Company Accounting Oversight Board, an independent board set up by the 2002 Sarbanes-Oxley Act in the aftermath of the huge corporate failures of Enron, WorldCom and others, is unconstitutional. The board was designed to provide much tougher regulation of the auditing of public companies than under previous regimes, but the court said that because it was insulated from direct control of the president, it violated the separation of powers.

It also said, however, that the problem could be corrected by allowing the Securities and Exchange Commission, which oversees the board and is more accountable to the president, to remove the board's members at will.

The case is Free Enterprise Fund v. Public Company Accounting Oversight Board.

-- By a vote of 5 to 4, the justices said that a public university does not have to recognize a student religious group that wants to exclude gays and others who do not share its core beliefs. The University of California's Hastings College of the Law said its anti-discrimination policy required officially recognized student groups to include all who wanted to join. The Christian Legal Society argued that being forced to include those who did not share its beliefs violated constitutional protections of freedom of association and exercise of religion.

The majority included the court's liberal wing plus Justice Anthony M. Kennedy.

The case is Christian Legal Society v. Martinez.

-- The court rejected a claim from inventors who wanted to have their business method patented. A majority of the court said such a claim would be possible in some cases, but not in this one, where a patent was sought for a strategy for hedging risk in buying energy.

The case is Bilski v. Kappos.

The guns case was the logical sequel to the court's 5 to 4 decision in District of Columbia v. Heller. That decision established for the first time that the Second Amendment's "right to keep and bear arms" referred to an individual right, not one related to military service. But the decision that there is a right to keep a gun in one's home did not extend beyond the federal government and its enclaves such as Washington.

Gun rights activists immediately filed suit against the handgun restrictions in Chicago and the suburb of Oak Park.

"Today marks a great moment in American history," said Wayne LaPierre, executive vice president of the National Rifle Association, in a statement. "This is a landmark decision. It is a vindication for the great majority of American citizens who have always believed the Second Amendment was an individual right and freedom worth defending."

The court's decision means that the enigmatically worded Second Amendment -- "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" -- identifies an individual right to gun ownership, like the freedom of speech, that cannot be unduly restricted by Congress, state laws or city ordinances.

Also voting in the majority were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Justice Stephen G. Breyer objected to the majority decision, and read his dissent from the bench. He disagreed with the majority that it is a fundamental right, and said the court was restricting state and local efforts from designing gun control laws that fit their particular circumstances, and turning over all decisions to federal judges. Joining him with dissenting votes were John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor. Stevens wrote his own dissent and did not join Breyer's.

"Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a nation whose constitution foresees democratic decision-making, is it so fundamental a matter as to require taking that power from the people?" Breyer wrote. "What is it here that the people did not know? What is it that a judge knows better?"

 

Score one for the Constitution!

Breyer's statement that people should NOT have fundamental rights, even when enumerated in the Bill of Rights, is scary.

EDIT: added NOT so my meaning is clear.

 

Morse v Frederick doesn't limit free speech. Neither does Bethel School District v. Fraser. No more than limiting the saying of pornographic things in the work environment.

It'd be a much different story if it were the police arresting people on arbitrary street corners for saying whatever...

 

You know, I can't see in the Constitution where it says, "the people don't have the right to bear arms." With a predicate or not.

However, it does say this:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

And when it says "Congress shall pass no law" it means the states, too.

 

Fixed it for ya.

barfo

 

Where the govt. is going to take away a Right, it better have a very compelling interest, or it should not be allowed.

It's clear the govt. has a compelling interest to keep people from nuking bears.

They have no compelling interest to deprive people of their Bill of Rights rights, though.

 

I don't see the compelling interest. It's nobody's business if I want to nuke a bear or three. Freedom, baby.

barfo

 

Is it bad that I'm much more interested in the decision regarding the PCAOB than I am in the whole gun thing?

 

A nuke is a WMD, a handgun is not.

 

I don't see where the constitution says anything about wmds.

barfo

 

What's your take on the opinion?

 

http://en.wikipedia.org/wiki/Strict_scrutiny

 

That's just an excuse to do stuff contrary to the constitution. Anyone who believes in the constitution would reject that nonsense.

barfo

 

It is in the constitution. Equal protection clause.

In Roe, the state could not prove compelling interest to save the lives of all those babies vs. the right to privacy of the mother.

 

http://etext.virginia.edu/jefferson/quotations/jeff1500.htm#Arms

In a nation governed by the people themselves, the possession of arms to defend their nation against usurpers within and without was deemed absolutely necessary. This right is protected by the 2nd Amendment to the Constitution. A gun was an everyday implement in early American society, and Jefferson recommended its use. "A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun, therefore, be the constant companion of your walks." --Thomas Jefferson to Peter Carr, 1785. ME 5:85, Papers 8:407