Gun Rights Preserved by One Vote

by Ryan on June 26, 2008

in Culture,Election 2008,Judicial Watch,Politics

The Supreme Court has obviously been a little bipolar lately… who am I kidding?  Justice Kennedy wants to be the powerful/swing justice on the court as he voted today with the Four Good Justices to uphold the Second Amendment

It was a Scalia v. Stevens battle, with Scalia happily on the winning side. 

Justice Antonin Scalia wrote a lucid and detailed opinion for the majority (pdf – start on page four for Scalia’s view) where he addresses the original intent of the Founder’s views on individual gun ownership, referring to Jefferson, Madison and others in his opinion.  It’s cited full of British and American history as to the meaning of the Founder’s intentions, SCOTUS precedent, and the DC law itself.  It is a breath of fresh air.

The buzz out there is not that SCOTUS actually upheld the Constitution (which lately is pretty amazing), but that four justices saw no need to uphold over 216 years of precedent on the principle of individual gun rights!  If this is an indication of where things are going on this court, 2008 will sadly be a critical election to decide the political nature of our supposedly non-political branch.

Pic is Archibald Willard’s painting “Spirit of ’76.”

{ 12 comments… read them below or add one }

Mike June 26, 2008 at 5:22 pm

Four Justices ignoring precedent is not what bothers me about the dissent. What bothers me is the simple fact that they simply ignore the clear language in the Constitution. Luckily for our Constitutional Republic, Justice Kennedy’s coin landed on heads today.


Chris June 26, 2008 at 5:47 pm

Dahlia Lithwick’s comments today summed up how the left views this decision. She said the decision “is fundamentally a very ideological one, it’s a very political one, it has a lot to do with your Libertarian notions about the constitutional protections that you’re afforded, and so I think at the end of the day what we’re seeing here with this very, very typical 5-4 split”
Famed leftist legal analyst Jeffrey Toobin fielded this question: “Specifically, Jeffrey, that’s really what it’s about, isn’t it, the Constitution trumping policy?” And his answer: “This is just a big, big event in American constitutional history because the Second Amendment has been a true mystery.

Their arrogance (and stupidity) is unbelievable, but not surprising.


Matt June 27, 2008 at 5:24 pm

I just wanted to reiterate that reading Scalia’s majority opinion is really worth the time. The opinion is both brilliantly written and witty. I especially enjoyed how Scalia compares Stevens’ illogical parsing of “keep and bear arms” to the phrase “he filled and kicked the bucket” as though it would be a perfectly reasonable way to say “he filled the bucket and died”


rightonoz June 27, 2008 at 5:29 pm

80 gun related deaths per day in the US according to BBC news


rightonoz June 27, 2008 at 5:45 pm

Hit send to soon

That’s the problem with a constitution that is not open to interpretation, takes no account of reality. I have to say personally I believe there is little need for a consitution in any country for this very reason.

Say what you like about crims having guns… Here, UK, NZ the crims tend to have guns, but there are almost no gun related deaths. Certainly no apparently normal people who get fired then come back and kill all their workmates. OK we have the record for the worst mass killing by a sole gunman, but 1 in 200 years…not too bad. That was certainly a case of an apparently normal person with ready access to semi automatic (ie not hunting) weapons flipping his lid and going on a rampage. Resulted in the banning of non-hunting type weapons and since that date there have been no further instances as opposed to probably around 10-15 in the US. It is also almost unheard of for anyone to be shot at during a robbery.

I used to work with guns, and had my own, for hunting. When there was no time for hunting, sold them and have never felt the need. OK there is the very slight chance that a crim could break into my house and attempt to rob or kill me. Statistics show that in many case you are likely to be killed the moment you try to go for a gun.

Now I’m not saying we don’t have violent crime in Australia, we do and some types seem to be on the increase.


Mike June 27, 2008 at 6:38 pm

That’s actually what I’ve been waiting for you to say Oz and wrong as you are, it is far more an honest a statement than American leftists would ever utter. I’m not speaking of the gun stats. Of course there are more incidents in the US, our population is so much higher. I’m talking about what you say about the Constitution.

American leftists in reality share your view about the need for a Constitution. It’s just that they pretend otherwise. That document has guaranteed that our country has protected more of our God-given rights than any other country in the history of the world. Because of that document, we can worship as we please. We are free to speak our minds. We can have a little website like this. We can protect ourselves with guns from criminals who would do awful things. Our government’s searches must be reasonable. Our trials must be fair. Finally, no one person or branch is given absolute power. It is a system so inefficient that no dictator can take it over.

We have problems but our Constitution is the bedrock that protects our liberty and allows us to use our God-given rights and abilities to do the great things we have done. We take a back seat to no one.


rightonoz June 27, 2008 at 10:34 pm

Per head of population, the US is far higher than UK, Oz or NZ on the gun stats. I would expect Oz to be closer given both countries had a ‘frontier mentality’.

On consitution, we enjoy all the protections you do, and possibly more (???) due to our laws and precedence. Those rights have been protected even from the left wing govenments we have had to suffer from time to time.We have the complete freedom of speech that you espouse, as do all Westminster governed countries, We have freedom of religion (and in addition have the right to declare kooks who try to found a religion for profit or other weird excuses as not being so (NZ recognised Scientology as a cult, not a religion).

Here in Oz we also say we take a back seat to no-one, but do have the advantage that we can ban certain types of advertising in the public good (no cigarette advertising allowed, no Porn pay TV, we do not allow certain types of porn to be sold in the two states that do allow porn sales, such as degrading or violent, that are allowed under US free speech. We can also limit certain weapons, certain hate speech.

Some would say your Supreme’s allowed the weakening of the very guarantee’s you say the consitution protects, in the wire taps and detention without trial in the US of terror suspects (all but one or two have been shown not to be involved in terror).

For us and the UK the Magna Carta (suspiciously like a constitution ?)and the hundreds of years of precedence that follow guarantee. Anyone who is of good character can still get a licence to own a gun, but pistols.. unless there is a very good reason, no-go, assault weapons are not allowed.If I have a legal gun licence, I to have the right to defend myself IF I HAVE GOOD REASON TO BELIEVE MY LIFE OR THOSE OF INNOCENT PEOPLE PRESENT ARE IN IMMEDIATE DANGER, and because of my background probably far more likely to sucessfully do so than 98% of the population, however the reality remains that more often than not the posession of a gun makes you or your family more likely to be a victim or it. (a few years ago now but I believe at least one US study has pressed that point)

I’m not trying to insult you guys, just seems from an outsiders point of view, that sometimes the constitution gets in the way of sensible government. I do concede that given the Dem’s leanings, at least a Supreme Court that focusses on the constitution could reign in some of their more stupid policies.

My view on constitutions is that as long as there is a vigourous and free society with a populace that will fight to the last breath to protect freedom, it’s just another piece of paper, and that’s no left wing point of view! – I hope that wasn’t what you were suggesting Mike…

That said, you’ve got a constitution… That’s what makes us different (but the same)


Mike June 28, 2008 at 10:14 am

Oz, the fact that you have types of advertising bans based on public policy concerns shows that your country does not have guaranteed liberty in this area. Every ill-conceived restriction on liberty will have a policy justification, and those restrictions will be based nothing more on the whims of those with a power. If precedent is what protects your liberty, then that is no guarnatee at all because it can be changed on a whim.

Our Constitution has been a guarantee of our liberty and yes sensible government. We are the freest country in the world. We are the most prosperous. We have the strongest military. We have one of the strongest nations in terms of faith precisely because our rights our protected by a Constitution.

You keep saying we don’t have precedent. Read any one of our Supreme Court opinions and you’ll see your assertion is demonstrably false. Our precedent is based on the Constitution though. As bad as our Court has been, the Constitution at least prevents them from going as far as they would like to. If your liberties are protected by precedent alone, and Plessey v. Ferguson, a case you cited earlier was just that, prtecedent, then I hate to tell you this, but you are nowhere near as free as you think you are.

By the way, under Australian law, are you free enough to express your displeasure with your government by not showing up to vote? Our First Amendment protects that right.


Mike June 28, 2008 at 10:19 am

“Some would say your Supreme’s allowed the weakening of the very guarantee’s you say the consitution protects, in the wire taps and detention without trial in the US of terror suspects (all but one or two have been shown not to be involved in terror).”

The facts keep escaping you Oz. The Fourth Amendment does not require a warrant for wiretaps. In addition, every time we find out someone did nothing to deserve to be in Club Gitmo, that person has been released. And there are far more than “one or two” people in Club Gitmo were caught trying to kill our soldiers on a battlefield.

You are reading some pretty anti-American sources over there. So anti-American in fact that they are also anti-factual.


Mike June 28, 2008 at 10:28 am

I should have put this all in one comment, but oh well. This one is also for Oz. You’re demonstrating the fallacy of studies by your very comments. By comparing violent crime stats in the UK, Australia, and the US, you are omitting alot of relevant information. Take Switzerland for example, they have even more universal gun ownership than the US, yet their violent crime rates are lower than the UK and Australia. Perhaps the UK and Australia should follow Switzerland and have universal gun ownership?

I’m not going to go into the depth required for a PHD-level dissertation but their are a number of variables, some more relevant in some countries than other that have be factored in. What’s wise policy for Australia may or may not be what is wise policy for the US. What is wise in Switzerland may or may not be wise in the UK. The US made its decision that crime exists and that people should be free to defend themselves. That’s our Constitution. Four Supreme Court Justice need to learn how to read.


Sal June 28, 2008 at 11:30 am


I think you are missing the point of what we are saying in our various posts on the Supreme Court and the Constitution. Our system of government is set up in such a way that policy decisions are to be made by the people in the various states, and where policy involves specific areas of common interest, the federal government. People democratically elect their leaders, and those leaders should be allowed to vote policy preferences. If the policy doesn’t fit your specific views, then you vote in new leaders. The Constitution supplies the framework for this, and also provides some limitations on what those various governments can do. For example, a government cannot say that a specific religion is a state religion or cannot practice their faith (from the first Amendment). The Supreme Court’s role is to look at laws when there is a dispute, and refer back to the laws passed and the Constitution, to see if the law violates the text of the constitution.

What most of us on this site, and U.S. Conservatives in general, object to, is the fact that these nine unelected lawyers (known as Justices) now have taken the power to basically read their own opinions into the constitution. We may have a debate on whether violent child rapists should be subject to capital punishment or not. We debate it, convince others to vote for politicians who support our view, and elect them to enact our preferences in policy. Enter the supreme court — who finds that the putting to death of a child rapist is not allowed by the constitution, yet there is no where where that is written or even implied.

You talk about evolving standards of decency — a true statement. But should not those evolving standards be determined by the people of a democratic republic, and not by nine appointed judges? In the child rapist case, the justices found that they didn’t like the law, so they overturned it. No basis in precidence, no basis in the Constitution, just the opinion of five unelected judges.

On the gun case, that right is enshrined fairly clearly in the constitution. By setting the precidence of limiting the right of the people to bear arms would then start the slippery slope to where free speech, freedom of the prese, etc. could be next.

If the people of the U.S. did decide that the right to keep and bear arms was no longer required, or that the death penalty should be universally prohibited, there is a recourse. THe elected members of the U.S. congress have a right to propose amendments to the constitution, and have them ratified by the people. If that happened, we might question the policy wisdom of some of these decisions, but not the outcome. Here, we are dealing with a branch of government that has exceeded their mandate and grabbed power that should not be theirs, effectively moving our democracy towards a 9-member autocracy. That is what we object to most from the current composition of the court. Five members of the court currently consider themselves to be the ultimate arbitors of what is right and wrong, the “philosopher-kings” of our society, while four members recognize their role and rule on what the constituion actually says when reviewing laws. One of the five “philosopher-kings”, however, fancies himself a power-broker, and sometimes votes the correct way, but usually for the wrong reason.

I hope this clears things up a bit for you Oz. I could comment on the falicy of your gun arguments (most of the gun-related deaths in the U.S. occur in states that have forceful gun-control laws, etc.) but I will save that for another day.


rightonoz June 29, 2008 at 5:52 pm

Well, didn’t I get put in my place :-)

I could argue the case on the advertising etc, but we’ll leave it. Suffice to say, I can say whatever I wish about the government, other groups within society etc as long as I do not incite hatred or violence.

I can show my displeasure by spoiling my ballot. I actually don’t agree with compulsory voting and would change that one in an instant.


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