Constitutional Law

Skimming Heller decision for key points

30-31: shoots down argument 2A was just meant to allow states to arm militia if feds neglected it. That was addressed by separate state proposals for a BoR, which were rejected by First Congress. "Justice Stevens flatly misreads the historical record.' Yep, this is a Scalia opinion.

48 n. 23. Scalia is no friend to 14th Amendment incorporation, but in this fn., referring to Cruikshank, he noted incorp. isn't presented here, but Cruikshank *also* said first amendment wasn't incorporated, and did not use modern 14th Amendment analysis. He's keeping the door open.

49-50. US v. Miller dealt only with the type of arms that may be possessed: everybody knew the two bank robbers involved were not engaged in a militia exercise. Steven's view is "wrongheaded." Miller flawed, only one side briefed or argued, gov't brief cursory. Cites Miller language that militia were expected to appear with "arms in common use at the time."

53 n. 25. Writes off Lewis v. US. dictum. Wouldn't have hinged major constitutional call in a footnote of dictum where 2A wasn't at issue in case.

54 Limits. Shouldn't read ruling to abolish felon on possession, or carrying in sensitive places like schools and govt buildings, or ordinary restrictions on commerece. Common law allowed restrictions on unusual and deadly weapons. Arms in common use is the key. Fn.26 refers to these as presumptively lawful.

56: "the inherent right of self-defense has been central to the second amendment right."

56: Standard of review: ban on entire class of weapons that are overwhelming the choice for self defense violates any standard of review, hence no need to choose. (Inference: strict scrutiny applies to such a ban).

56 n. 27. Standard of review. Rational basis shd only apply where rationality is part of the constitutional restriction; isn't the case with an enumerated right. Citing Carolene Products. Cites first amendment alongside second.

57: Accepts argument made in women's brief that people without upper body strength need a handgun, and it can be pointed at burglar while one dials 911.

62: lights into Breyer's dissent for proposing simple balancing test. No other enumerated right's core protection is tested this way. The balance was struck by Americans when they adopted the 2A.

Full post as published by Of Arms and the Law on June 26, 2008 (boomark / email).