Congrats to Eugene on being the first cite in the ruling!

Here's the link to the opinion from SCOTUSblog.

SCOTUSblog has the opinion here (pdf link).

A quick skim of the opinion revealed that Scalia cited Eugene's The Commonplace Second Amendment on page 6 when pointing out that prefatory statements of purpose exist in state constitution individual rights provisions from that era.

Favorite passage so far, although I'm not sure it's very fair:

Giving “bear Arms” its idiomatic meaning
would cause the protected right to consist of the right
to be a soldier or to wage war—an absurdity that no
commentator has ever endorsed. See L. Levy, Origins of
the Bill of Rights 135 (1999). 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.

What a relief.

35 years ago, who could've imagined we'd come this far?

A quick skim of the opinion revealed that Scalia cited Eugene's The Commonplace Second Amendment on page 6 when pointing out that prefatory statements of purpose exist in state constitution individual rights provisions from that era.

I was just about to make note of that as well. Congratulations Eugene!

Does anyone have a link to the dissents?

tia

dts

Blatant judicial activism - the unelected elites of the SC once again impose their policy determinations over the will of the people and strike down carefully crafted legislation approved by the people

Here's the quote on incorporation (or not):

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

So what does that mean? Goldstein at SCOTUSblog feels is "strongly suggests" the right is incorporated.

One wonders how this will affect New York State, where the handgun licensing laws forbid the mere possession of a handgun anywhere at all, even in the home, without a concealed carry license, which license requires an onerous procedure including four personal references and a minimum waiting period of six months.

I find it difficult to believe that observation of the just-issued SCOTUS ruling would be consistent with making mere handgun possession subject to a popularity test and a very long waiting period. I suppose it'll be interesting to see what happens with a challenge to those laws, assuming that the decision has indeed been incorporated into the States, as seems implied but not explicitly stated.

Kennedy, gets 1 out of 3 or 4 correct this term.

And Souter *a republican appointee* consistently wrong all the time.

If Bush I hadn't been such a loser with the appointment of Souter, the country might have actually stood a chance. At least until Bush II came to finish wrecking the Reagan revolution that his father tried to but failed at destroying.

Says the "Dog"

I believe I did see the "incorporation" aspect mentioned in Scalia's opinion, and that he said that it was not incorporated.
From ScotusBlog:
"In a footnote, Scalia said that the issue of “incorporating” the Second into the Fourteenth Amendment, thus applying it to the states, was “a question not presented by this case.” But the footnote said decisions in 1886 and 1894 had reaffirmed that the Amendment “applies only to the Federal Government.”
Also, it appears that the Court avoided touching banning and regulation of concealed carry, the means by which most people see to defend themselves in "confrontations" outside the home. My read is that they specifically left alone all such restrictions.
That, along with the suggestion that somehow the "arms" description no longer means arms suitable for the defense of the state, threw a chill on my hopes for something helpful in a larger way.

The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (2008), blogged about here, cited at 39.

Thanks RichC, I missed the maybe incorporation phrase.

Also, does anyone else have a feeling that the paragraphs used to exclude me from a right to own an M-4 rifle (lawful arms) will cause the liberals to ban any arms that expels a projectile unless used for approved hunting sports?

FantasiaWHT,

I'd answer that the 2nd Amendment and the 8th Amendment are simply different. The 8th specifically speaks to "unusual" punishment, which requires an evaluation of frequency. Unless we're going to abandon proportionality entirely as something which is to be addressed by the 8th, I see a role for national consensus to play. The 2nd Amendment, by contrast, is declarative. The only purely subjective term is "arms", and national consensus probably has a role to play in determining what an "arm" is.

It does, however, worry me that the Court left open the licensing issue. Also, with no holding on incorporation, it at least leaves open the possibility of state bans.

The right fits all the tests for incorporation, but they don't want to deal with it today, nor was it part of the question at hand.

The decision was surprisingly weak. Didn't find anything wrong with licensing and registration, even for things only kept in one's home, as long as the licensing wasn't done capriciously. Specifically noted that there was no problem with bans on guns that are not "in common use", even if the lack of common use was due to otherwise unconstitutional laws staying unchallenged. OK'd bans on 'school grounds' or similar basis, which we all know can mean an effective ban for most of the population of the United States under things like the Obama plan.

Justice Breyer said:

"In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

That isn't interpreting the Constitution, that is reading policy preferences into the Constitution. Plus, it is clear Justice Breyer doesn't live in a crime-ridden area. If he did, he would know that it is there where a loaded handgun in the home is most needed.

I attempted to read the Breyer dissent, but the 1st couple pages were so intellectually dishonest it made me sick.

JRL: that was my problem exactly. I read Scalia's devastating opinion, and then I wanted to see what the dissents were, and couldn't get through them. Utterly dishonest.

I see Scalia is cool with throwing machine gun owners to the wolves, as I expected. "Common use", indeed: What protection is a right, if the very fact that the government has been violating it for a period creates facts on the ground that can be used as an excuse to continue violating it? The NFA is the only reason military arms AREN'T in common use...

The 1986 Ban totally bans those arms.

I didn't notice the incorporation footnote until too late. Wishful thinking, perhaps. I must echo the consensus, which is that this is a quite narrow win for pro-liberty forces, with incorporation punted to another day.

I'll also remark that it's interesting in a traffic-accident way to see how intellectually dishonest were the pro-tyranny arguments by Justices Stevens and Breyer in the dissents, and how sharp were the criticisms by Scalia. This is without a doubt a deeply divided decision along clearly ideological lines. One side wants to ban guns no matter how they must lie and distort and otherwise simply ignore reality, and the other side is clear and truthful and very cautious about taking back this little slice of lost liberty one baby step at a time.

I second Brett Bellmore's 10:28 post. And Scalia seems to be contradicting himself a bit:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939. We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)).

It's my understanding that even artillery like cannons and such were held privately at the time, including for use on ships. Would Scalia be "startled" to discover a right to privately own artillery?

Why wouldn't a militiaman bring a privately owned machinegun to muster if militaries of the day are using it? Surely, in an opinion that recognizes the "hold government in check" function of the 2nd Amendment, the SC has to recognize that necessitates private ownership of this intermediary class of weapons--between personal handgun and large scale artillery/munitions--if that purpose is to be retained. Or does Scalia think armed resistance to illegal government must always be done at a disadvantage?

Scalia thinks the NFA has been on the books a long while, and he's highly reluctant to overturn longstanding federal laws, no matter how unconstitutional they are. That was my chief concern with this case, that Scalia would weigh the Constitution on one hand, and a lot of laws that stand to be overturned on the other, and decide that the Constitution would lose.

Fortunately, he decided it only partially loses.

Oops, danged line breaks in the PDF messed up my quote above.

Also one addition: while I think Scalia incorrectly ignores rights for owners of machine guns etc, I would generally agree there could be regulation of carrying these arms in public. But I certainly don't want the courts deciding individual distinctions, saying we can't carry machine guns but we can carry handguns, or revolvers can be carried but not semi-automatics.

Like some other commenters, I'm worried this ruling could be applied strictly to possession at home, and it would be a Very Bad Thing(tm) if states started applying Miller to restrict CC licensees to carrying only very limited firepower.

Am I the only person here who started reading this and thought that Scalia originally drafted this as a dissent?

Pendulum, I would argue that they both are similar enough in that the issue is the interpretation of a specific phrase - "Cruel and unusual" vs. "keep and bear arms". If public consensus is good enough to define one of them, why isn't it good enough to define both?

My favorite passage so far:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). (Slip opinion at p 18.)

ZING to the linguist profs and their academically hubristic brief!

The Unbeliever,
If you're right that weapons useful in war are those protected, might it be unconstitutional to ban AK-47s and constitutional to ban handguns?

Now that would be ironic.

This being 5-4 shows how important it is to stop Obama and any other Democratic presidential wannabe for the forseeable future.

Testing, testing, 1 2 3.

One more little bit of support for what I said above: Scalia's citation of contemporaneous legal treatises does contain a quote about the 2nd Am. being a bar on the states as well.

Just a few days ago many on this blog were talking about the likeliness of a 9-0 decision on the invidividual rights argument. After all, the history and legal logic was so overwhelmingly compelling.

This 5-4 decision, strictly on ideological grounds, indicates how little Supreme Court members care for principles of law compared to their beloved policy preferences.

FOolish, no doubt, to have ever thought otherwise.

The joint article by historian Clayton E. Cramer and Hamline University Professor Joseph E. Olson cited by Justice Scalia is out. I received my copy yesterday.

The citation is: Clayton E. Cramer and Joseph Edward Olson, "What Did "Bear Arms" Mean in the Second Amendment?", 6 Georgetown Journal of Law &Public Policy 511 (Summer 2008). It is cited [in its forthcoming version] by Justice Scalia on page 15 of the Supreme Court's opinion.

In addition, majority opinion footnotes 7 and 9 refer to a number of items that first appear in print in the Cramer/Olson article. And, on page 38, the opinion cites Johnson v. Tompkins (CC Pa. 1833), a case that the Cramer/Olson paper first brought into the RKBA discussion.

They have another article on -- "Pistols and Public Safety in the Early Republic" -- coming out in the next issue of the Willamette Law Review as well.

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