June 26, 2008

"It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."

Writes Justice Scalia, for the majority, in the D.C. guns case, accoring to David Stout's report in the NYT [UPDATE: The link no longer goes to the David Stout article, which I can't find on line at all anymore!]
Justice Antonin Scalia, writing for the majority in the landmark 5-to-4 decision, said the Constitution does not allow “the absolute prohibition of handguns held and used for self-defense in the home.”...

But the court held that the individual right to possess a gun “for traditionally lawful purposes, such as self-defense within the home” is not unlimited....

The ruling does not mean, for instance, that laws against carrying concealed weapons are to be swept aside. Furthermore, Justice Scalia wrote, “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.”...

“The amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second clause,” wrote Justice Scalia. “The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”

Not at all, Justice Stevens countered, asserting that the majority “stakes its holding on a strained and unpersuasive reading of the amendment’s text.”
Stout informs us that Scalia "clearly takes pride in his writing as well as his reasoning" and in the same sentence writes that he applied "adjectives like 'frivolous' and 'bizarre'" to the dissenting opinion.

I wonder what "adjectives like 'frivolous' and 'bizarre'" Scalia used. Empty-headed? Featherbrained? flighty? Frothy? Giddy? Harebrained? Lighthearted? Scatterbrained? Silly? Gaga? Birdbrained? Dizzy? Cranky? Curious? Eccentric? Erratic? Freakish? Idiosyncratic? Odd? Outlandish? Peculiar? Quaint? Queer? Quirky? Singular? Strange? Unnatural? Unusual? Weird? Kooky? Screwball?

Oh... you mean he actually used the words "frivolous" and "bizarre"? I see.

Well, then I wonder how Stout knows Scalia "clearly takes pride in his writing as well as his reasoning." Did the use of the words "frivolous" and "bizarre" somehow imply that pride or is the evidence elsewhere and we're just supposed to know it? (Or do you just not want to plug his book?)

Oh, no! Reading Stout (and Liptak) today, I'm nagged by the question What would Greenhouse have written? Would Linda Greenhouse have inserted commentary about Scalia pride?
Not to be outdone, Justice Stevens called the majority’s interpretation of the Second Amendment “overwrought and novel” and said it “calls to mind the parable of the six blind men and the elephant”...
Would Linda Greenhouse have imputed that competitive motivation to Stevens's choice of words? Stout's writing has something of the problem that plagued Jeffrey Toobin's book "The Nine." For narrative effect, the Court is portrayed as a psychodrama. [UPDATE: Since my link now goes to the Linda Greenhouse report, you can read it and answer my question! The answer is: No.]

***

Stout tells us how McCain and Obama reacted to the case:
“I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense,” Mr. McCain said in a statement, which contained a reminder that his Democratic nominee, Senator Barack Obama of Illinois, refused to join him in signing an amicus brief in support of overturning the district’s law.

Indeed, Mr. Obama’s view, expressed in a statement, was more nuanced than Mr. McCain’s.
More nuanced!
“I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures,” Mr. Obama said, predicting that the ruling would provide needed guidance for lawmakers.
Is that nuance or the same point Scalia acknowledged, that the rights don't preclude regulation? What I think is telling in Obama's statement is the mismatch between concern about "crime-ravaged communities" and "violence" on the one hand and, on the other, the desire for "safety measures."

44 comments:

Ron said...

Scalia would have written "CooCoo for Cocoa Puff", but that would prompted a copyrights test...

six blind men and an elephant? Would Greenhouse start all commentary on decisions related to religion with "there was a nun, a priest, and a rabbi in a boat..."?

Not just psychodrama but schtick as well!

D-Day said...

He also used "grotesque"

montana urban legend said...

Scalia says that the weapons protected were those "'in common use at the time'". I would take this to mean that it protects the ownership of musket-loaded firearms. But if he disagrees then it's going to be interesting to see how he validates the ownership of the sort of personal firearms we'll be able to invent in the future merely because they might happen to become popular choices.

At some point he (or someone else) is going to have to disconnect popularity (during any period of time after 1850) from acceptability.

D-Day said...

Which - hey! Is in the link you posted as a synonym for bizarre:

2. Conceived or done with no reference to reality or common sense: antic, fantastic, fantastical, far-fetched, grotesque.

From the opinion (via SCOTUSblog):
“Worse still, the phrase ‘keep and bear Arms’ would be incoherent. The word ‘Arms’ would have two different meanings at once: ‘weapons’ (as the object of ‘keep’) and (as the object of ‘bear’) one-half of an idiom. It would be rather like saying ‘He filled and kicked the bucket’ to mean ‘He filled the bucket and died.’ Grotesque.” (13)

I only remembered that because I have been trying to come up with a way to use Scalia's phrasing for "he filled the bucket and died" in general conversation.

Smilin' Jack said...

I wonder what "adjectives like 'frivolous' and 'bizarre'" Scalia used.

What's the problem here? I think the use of "like" as a synonym for "such as" is pretty well established.

Clint said...

Love him or hate him, the man can definitely write.

Kevin said...

Note well: Obama declines to endorse any use of firearms for self-defense, hoping that this will go unnoticed in talking about "... law-abiding gun-owners, hunters, and sportsmen." This is very characteristic lip service from the gun control faction.

The Second Amendment has nothing to do with hunting or sporting.

dbp said...

for montana urban legand's delectation:

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 modern
forms of search, 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.

Original Mike said...

David Stout appears to conflate the phrase "any weapon whatsoever" with "handgun". And I'm sure he knows it.

montana urban legend said...

That's nice, dbp. But his reasoning says that as long as they're popular forms of personal protection at the time the case is brought, that's the way to construe the 2nd amendment. I know the concept of such a thing as "a future" is quite abstract to many people, but can you honestly say that this shouldn't lead to a scenario whereby legislatures race to ban personal firearms before they manage to become too popular? And might not such arms, despite how popular they might become, be legitimately deemed to fall into the category of "dangerous" as did the exceptions he cited from Miller?

The Drill SGT said...

Your link now points to a Greenhouse article.

She makes this statement that has me giggling: Senator Obama, who like Senator McCain has been on record as supporting the individual-rights view, said the ruling would “provide much-needed guidance to local jurisdictions across the country.”

The fact is that Obama has been on all three or four sides of the issue.

- back in the 90's he was on reocrd wanting to ban the manufacture, sale or possession of handguns.

- back last year, his spokeman said he thought the DC ban was Constitutional. He of course being a 10 year Con Law Prof

- later he back-pedlaed, but refused to sign the brief supoporting Heller in the Case. Unlike McCain who did sign the brief.

- now he says he is for gun rights, yet, when he is asked about his preferred models for justices, he picks Breyer, Souter and Ginsburg, the folks that he says get it wrong on Guns and wrong on GITMO this month.

and of course he voted against Alito and Roberts, and has said disparaging things about Scalia and Thomas.

so its clear that he's again pandering and flopping...

Roadkill said...

The 2nd amendment preserves the right to keep and bear arms for 4 proposes: 1) Self Defense, 2) Hunting and recreation (like markmanship competitions), 3) Defense of the Homeland against foreign invasion, and 4) Defense against tyrannical domestic government.

We quibble about the first three purposes, but the 4th is perhaps the most important reason to maintain the constitutional right to arms.

We are a country borne of politial rebellion and suspicious powerful and/or oppressive government. Like Jefferson said, "I hold it that a little rebellion, now and then, is a good thing, and as
necessary in the political
world as storms are in the physical. ... It is medicine necessary for the sound
health of government." --
Thomas Jefferson to James Madison, Jan. 30, 1787.

While I do not advocate for revolution or armed rebellion, it is well that the people retain the means to effect such resistance, for should "a long train of abuses and usurpations ... reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security." (Decl of Ind).

"The doorway to all our freedoms is framed with muskets" (apocryphal)

Revenant said...

What's the problem here? I think the use of "like" as a synonym for "such as" is pretty well established.

Yes, but that still implies the existence of (usually numerous) other examples. You don't say "Z such as X and Y" when X and Y are the only examples of Z present; that's bad writing. For example, if you say "Fred was convicted of multiple crimes, such as trespassing and gun possession", you strongly imply that he was convicted of crimes beyond the two you mentioned. When the number of items is small, you either list them all or give a single example.

montana urban legend said...

Unluckily for roadkill, they did settle on its restriction to personal protection that you could carry. Which, for the time being, effectively rules out current forms of atomic weaponry - arguably one of the most effective ways to decide the outcome of an armed conflict.

Revenant said...

but can you honestly say that this shouldn't lead to a scenario whereby legislatures race to ban personal firearms before they manage to become too popular?

Given that personal firearms have long since *become* popular, the answer to that question is obviously "no". You would need a time machine if you wanted to pass laws "before they manage to become too popular".

montana urban legend said...

Read the ruling revenant. Not all forms of personal firearms are protected. Also read the comment posted. It makes reference to incredibly complicated ideas, like "the future".

Revenant said...

Unluckily for roadkill, they did settle on its restriction to personal protection that you could carry. Which, for the time being, effectively rules out current forms of atomic weaponry - arguably one of the most effective ways to decide the outcome of an armed conflict.

Which explains why the United States has won every war it has fought since 1945. Oh wait.

Nuclear weapons are not "one of the most effective ways" to decide most conflicts. They are one of the most effective ways to destroy cities or kill huge numbers of civilians. That helps win a conflict if you aren't interested in capturing the city in question and don't care how many of its inhabitants you kill. For glaringly obvious reasons, that isn't the case in most wars -- especially the civil conflicts the second amendment was concerned with. You can't fight a domestic insurgency by nuking your own cities.

That is also why nobody -- aside from the gun control crowd -- pretends the second amendment covers nuclear weapons. They don't help with any legitimate personal use of force.

Revenant said...
This comment has been removed by the author.
Revenant said...

Read the ruling revenant. Not all forms of personal firearms are protected.

All the ones which aren't already banned at the national level are. The ruling mentioned that "dangerous and usual weapons" which are not typically used for defense or recreation might still be banned. That leaves shotguns , revolvers, and all rifles other than the fully-automatic variety protected, as all of those are typically used for home defense and recreation and none are unusual or dangerous. The weapons which could legitimately be restricted would be things like fully automatic or burst-fire weapons, flamethrowers, rocket launchers, et al.

It makes reference to incredibly complicated ideas, like "the future".

Yes, as in "after the present" -- the present being when all of the non-automatic personal firearms are already widely popular.

Revenant said...

Oh, it also leaves semi-automatic handguns protected -- left that one off the list.

Methadras said...

I don't respect this decision at all only because it was 5 to 4 in favor. It should have been 9 - 0.

montana urban legend said...

I love it! The "gun control crowd" is a glaring exception to... "nobody". When will people learn not to take issues that are in no way popularly resolved and pretend the other side represents a lunatic fringe? I agree that the ruling is largely sound - with some obviously glaring flaws (that only the likes of revenant seem to misunderstand) - but with the degree of self-glorification from voices like methadras we could just end up seeing a re-energized push for just going ahead and repealing 2nd amendment. I wouldn't want that, but in no way would I be so dismissive of the concerns of police, that work outside of municipalities and states that take a wild-west posture to law enforcement, and who fear a return to being as outgunned as they were before.

Kirk Parker said...

Rev,

"You don't say 'Z such as X and Y' when X and Y are the only examples of Z present"

Uhh, you do if you want to exaggerate the importance of the Z (and hope nobody notices).

montana urban legend (now there's an appropriate name!):

Sorry, but police opposition to widespread firearm ownership is pretty much restricted to the upper echelon/political appointee level; the rank and file is mostly for it.

montana urban legend said...

Kirk, should I be surprised that the rank-and-file is for it? I mean, I wouldn't be surprised if the rank-and-file at McDonalds favor buffet-style dining. I wouldn't be surprised if the rank-and-file at the local carwash favor just renting you a soapy rag with a bucket to use on your car yourself. But as long as the police are getting paid I see no reason to disfavor their doing the very job that contracting out personal and collective security entails.

Revenant said...

I love it! The "gun control crowd" is a glaring exception to... "nobody".

Yes, because the whole "second amendment supporters think there should be no restrictions on weapons ownership" argument is a straw man. Pretty much nobody thinks that. "You want people to own their own nukes?" is one of those idiotic questions that gun grabbers can be counted on to offer up whenever the second amendment is discussed.

we could just end up seeing a re-energized push for just going ahead and repealing 2nd amendment.

A person would have to be pretty damned stupid to think that three-quarters of the states are going to vote to repeal the second amendment. But if the gun control lobby wants to spend its time on an impossible task I'm certainly not going to discourage them from doing so.

I wouldn't want that, but in no way would I be so dismissive of the concerns of police, that work outside of municipalities and states that take a wild-west posture to law enforcement, and who fear a return to being as outgunned as they were before.

Heh. The one time someone tried breaking into my house the cops showed up two hours late. Any policeman worried about the effects of letting me own a gun is cordially invited to suck my dick.

Revenant said...

I mean, I wouldn't be surprised if the rank-and-file at McDonalds favor buffet-style dining. I wouldn't be surprised if the rank-and-file at the local carwash favor just renting you a soapy rag with a bucket to use on your car yourself.

"Cops support second amendment rights because they're lazy" definitely qualifies as the dippiest thing I've seen someone write this week, and I've read all of Trumpit's posts.

montana urban legend said...

So in other words, you don't have a way to refute even your own straw man - just like you have no way to refute basically everything else with which you take issue.

montana urban legend said...

It's good to know that while you don't have an argument, you do have a dick. Nice substitute! And sort of appropriate, given the topic of conversation.

Ann Althouse said...

"D-Day said..."He also used "grotesque."

But he didn't apply it to the dissenting opinion.

Fen said...

I really don't care what SCOTUS does with the 2nd. I'm keeping my firearms. End of story.

Fen said...

They might as well insist I register my thoughts and attend a mandatory hate-speech class before exercising my right to free speech.

I would tell them to go pound sand.

Fen said...

http://armsandthelaw.com/archives/2008/06/stevens_dissent.php

To Stevens: "You keep using that word, I don't think it means what you think it means"

Palladian said...

"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

Federalist № 84

Kirk Parker said...

montana urban legend,

Sorry, I don't follow your 9:19 PM response at all.

Let me try again, paraphrasing.

You said, "The police fear a return to being outgunned" [and thus oppose actually honoring our constitutional gun rights.]

I objected, "It's not THE Police that favor restrictive gun control, it's only upper management that do so. Rank-and-file officers one the street actually favor this decision by a significant margin."

Could you please retry your response to that? Thanks!

Kirk Parker said...

Montana,

Sorry, that's not even an urban legend any more: neither the police nor the courts think that they have accepted a contract for your personal security, so I highly recommend you don't assume there is one.

Michael said...

montana urban legend: ...I wouldn't want that, but in no way would I be so dismissive of the concerns of police, that work outside of municipalities and states that take a wild-west posture to law enforcement, and who fear a return to being as outgunned as they were before.

As they were before?

Some data points for you.

In 2004, the total number of full-time
sworn officers in the United States was 836,787. (source)

On May 31, 2008, the total number of American armed forces personnel was 1,417,157. (source)

In 2006, an estimated 10.7 million hunters pursued big game, such as deer and elk. (source) And that's not counting the tens of millions of gun-owners who don't hunt.

They are already vastly outnumbered and out gunned, which is something lefties should really take into account before entertaining their door-to-door gun-grabbing wet dreams.

knoxwhirled said...

Terrifying home invasion burglaries are not rare events in England. Overall, Great Britain has a higher violent crime rate than the United States, and a higher burglary rate. Significantly, only about one-eighth of American burglaries take place while the victim is home, whereas over half of all British burglaries do.

One reason that British burglars are so much bolder than their American cousins is that only about 4% of British homes legally possess a gun, whereas about half of American homes do.


http://www.msnbc.msn.com/id/6662217/#041207

Fen said...

only about one-eighth of American burglaries take place while the victim is home, whereas over half of all British burglaries do.

Referred to as "hot robberies" in the UK, where the perps rob your home at gunpoint and then help themselves to your wife and daughter.

corporate law drudge said...

... disdainful adjectives, including but not in any way limiting the generality of the foregoing, "frivolous" and "bizarre."

There!

montana urban legend said...

Michael, just because you might love guns for the purpose of hunting and other rural activities, doesn't mean that the population of the major cities in question do. Breyer's dissent referred extensively to historical records documenting colonial-era bans on weapons within the cities of Boston, Philadelphia and New York. I mean, I realize that people who need so much property to live on, sprawl to make their economies less efficient, and space away from immediate neighbors to crawl up into might not understand that the needs of urban and exurban residents may actually, you know, differ from each other, but even Scalia seemed to recognize that they do. And hence his contention that he takes the problems of gun violence - (which is more acutely an urban phenomenon) - seriously. But perhaps you don't.

No wet dreams needed in your "door-to-door gun-grabbing" hyperbole, no matter how much you might identify with the phrasing. Large cities are doing a good job trying to crack down on illicit ownership - let's remember that Scalia recognized not only restrictions of place but on people - as well as incentives such as buy-back programs, and no resident of these cities seems to resent the way such efforts are leading to less guns "on the street" as opposed to just lying around in the home of whatever impeccably responsible person you assume everyone possessing a gun at the moment must somehow be.

Kirk, you don't like the response, then you clarify your objection to it. Every operation I know of is part of some type of a hierarchy - even some that make do with less of one, such as matrix organizations/firms or those that utilize a much less authoritative management style. However, the fact that the interests of management or supervisors tend to differ from those who immediately report to them, is clearly the norm. I get the impression that your response is a way to glorify and romanticize police officers - in which case, bravo, very nice, I respect what they do too. But if you want to stretch that response and extrapolate it into some sort of moral superiority complex to project onto them, that somehow transforms them into superhumans who are above the concerns of the immediate exigencies of their own line of work, then I can see why you won't attempt a coherent objection. And let's not even address the fact that not every cop, by virtue of what they do, represents a paragon of moral virtue. Many lie, steal, you name it. You want to idolize them as a class of people, that's fine. I merely want them to recognize that I appreciate the fact that because of them, there are many dangerous things that I don't have to do as often. And I pay their salaries with my taxes. And I'm courteous to them. I help them when they need it. That should be enough for anyone without some other type of unnecessary cross to bear on their behalf. But you don't get to assert that their department chiefs are just politically-motivated hacks, while the rank-and-file are only motivated by concerns that are never anything but saintly, pure and 100% logical. That's a ridiculous dichotomy that I won't entertain.

Of course, if I misunderstood you on that score, then feel free to retry your own response. And make sure to make it a substantive one, if you wouldn't mind.

Getting back to matters that go beyond indignation and the like, I never said that they protect a sense of personal security in and of itself. Their assignment to protecting their jurisdiction's collective security is what greatly enhances personal security - particularly in an urban setting. Unless I have a particular problem at the moment to report to them, then the personal security benefits reaped are indirect, but they're there. Last I checked, my feeling personally threatened by a crime about to occur and affect me personally doesn't obviate their requirement to respond to it as well as they do.

blake said...

Nuclear weapons are not "one of the most effective ways" to decide most conflicts.

Well, I suppose that's what they call one o' them thar de facto thingies.

Nukes could be the most effective in terms of time spent (not necessarily in terms of damage), but most seem reluctant to use them.

On topic, they seem problematic for home defense, or even as a defense against tyranny.

Kirk Parker said...

m.u.l.,

OK, you've convinced me--I'm no longer interested in trying to converse with you. Enjoy your internal dialog...

montana urban legend said...

You're welcome, Kirk. Anytime.

montana urban legend said...

Nukes are certainly problematic forms of weaponry on many scores, Blake. And I think the reluctance to use them nowadays has to do with the fact that no conflict seems to replicate the conditions of mid-1945, which were especially ripe for the use of atomic weaponry. But it's not their mere destructive power alone that makes them less useful for insurgencies, etc. It's the problems of fall-out, radiation, and the fact that using them is largely a way to demonstrate one's technological superiority/prowess.

But I think a good MOAB, or something similar but more destructive, would do just fine. Depending on where you want to set it off and how much infrastructure you'd like to spare.