LTE: Heller decision explained

LTE: Heller decision

It should be interesting to see the ‘but, but…’ letters to come in the coming days; you can read the decision for yourself at

Cornell Heller decision

28 thoughts on “LTE: Heller decision explained

  1. I understand the Heller decision. And keeping arms for self-defense, with reasonable restrictions on automatic or RPG’s, etc., was the gist. I have no problem with owning arms in general, with certain limitations and respect for public safety. I do accept the right to self-defense as an extension of the right to life, liberty and the pursuit of happiness.

    Yet, I find a flaw in the decision despite the mighty and lofty credentials in legal knowledge that far outweighs mine.

    It may be that the grammatical explanation serves the purpose for this decision.

    Still, the original reason of the importance of a militia to the security of the free state Is no longer valid. We have a standing army to protect against foes foreign and domestic. Invasion and insurrection were the two biggest threats to our nascent nation.

    “Slavery is important to the security of our economy, so the owning of slaves shall not be infringed.”

    That was the essential provision in secessionist declarations.

    Slavery is no longer important to the economy, but should we revisit the right to own slaves? True, we outlawed slavery for a lot of reasons other than strictly economic. But in the 2nd Amendment and my example, the reasons for the rights were rendered obsolete.

    Food is always essential as is commerce today was well as centuries ago. The prefatory statement still makes sense in your example.

    The one in the 2nd doesn’t. The problem is the blanket, unrestricted interpretation of the wording in the operative clause. We already accept that felons and the insane lose that right. Or that certain classes of weapons are restricted to the military. Yet, when we try to update laws to reflect modern realities of weaponry and dense populations, the political resistance goes beyond reasonable.

    IMHO

    Liked by 2 people

    1. Slavery was outlawed by passing the 13th Amendment.

      The Heller decision was a compromise, and some infringements were allowed for good reason, and others simply to get Kennedy on board.

      Certainly limiting where firearms can be carried is allowed of their is good cause. Prisons, courts and insane asylums, for example, are places where the carrier might be overwhelmed allowing the weapon to fall into the wrong hands.

      Public buildings where there are only government officials would not be a valid limit unless you assert that our elected officials are criminals or insane.

      Heller also allows for limits on “dangerous or unusual” weapons. But all firearms are dangerous to the intended target, so those cannot be what Heller refers to. I think that limit would apply to weapons that might harm those not the intended target, like land mines, spring guns, and indirect artillery where the person using that arm cannot assure that innocents are not unduly endangered.

      I think SCOTUS is going to have to be more specific on what that phrase means, and with Kennedy gone it should be easy to get it right.

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  2. The “but but” letters came first. And they were all well written, well conceived letters (as this one was) concerning the rights guaranteed by the 2A. However, with no actual militias needed today, it makes one wonder if maybe the 2A should be revisited from time to time. Like the Voting Rights Act, until recently decimated by SCOTUS, which was basically reauthorized by Congress every 5 years or so.

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          1. I know, you bring that up every time. There were a lot of extenuating circumstances in those nations that we don’t have.

            If we have to rely on a 2nd Amendment “solution” to our problems with government, we are all toast. It would just be pockets of insurgents killing each other for a few years or more. At best it would be like the Spanish Civil War with 3 or 4 factions devolving into a dictatorship after the slaughter gets ridiculous. At worst, we would be like Afghanistan and keep killing each other for decades to come.

            Much better to keep the First Amendment strong without interference from the likes of Trump. In addition, keeping the right to vote open and with minimal interference so that the people feel they have a stake in their government.

            Liked by 1 person

          2. 2nd Amendment solutions are already protecting your other rights.

            The value of the2nd Amendment in preventing government lawlessness lies in deterrence. Just knowing that if they go past their authority there will be consequences inhibits their lusts for power.

            As long as that deterrent remains credible, it will never need to be exercised.

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          3. That is truly a unicorn. If we have insurrections to oppose what some consider oppressive governance, it will be a civil war among squabbling groups.

            Such will tear at the fabric of our nation until a dictator actually steps in when Americans are fed up.

            Liked by 1 person

      1. I don’t disagree that it is the law of the land. I do disagree with SCOTUS justices who claim to know what the founders intended when it was written. Not one of us was there. And anyone one can interpret their beliefs into what it means today. It doesn’t mean it is accurate. The Bible is a good example of that.

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        1. It’s true that we weren’t there, but the records of the debates, contemporary writings of the delegates and the contemporary state constitutions remain available.

          Again, read Scalia’s decision and you will find plenty of evidence of what was meant when the 2nd Amendment was ratified.

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          1. And you will find just as many judicial pros who disagree with Scalia. It doesn’t make either side right or wrong. But it still comes down to WHO is doing the interpreting. I again refer you to the Holy Bible and it’s thousands of interpretations.

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          2. I am not the one saying he is wrong. And I never claimed to. I DID say that not everyone agrees with Scalia’s opinion. And it is just that an OPINION. And other justices disagreed. As do other judges at lower levels. It may be a well written opinion, but you might be surprised if an actual Founding Father who was involved in the writing of the Bill of Rights disagrees with him. But we can’t know that. We CAN specualte.

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    1. The right to vote is critical to the security of a free state, but the current thinking among conservatives is that the right to vote must be restricted in a fashion long beyond the right to bear arms.

      Now they are looking to control who, when, where, how and if citizens can cast a ballot. Many of the laws and regs are based on minority control, vis a vis North Carolina’s overturned laws. Or Wisconsin’s efforts at eliminating all but 5 polling places in Milwaukee.

      Liked by 1 person

        1. Seeing as numerous states allow mail in voting without INVESTIGATED fraud found, it is unfathomable that this is even a question. The fraud argument is a smokescreen to stand against it because if allowed, “You would never see another Republican elected again.”

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        2. Baloney. Look at NC’s efforts to target the voting rights of the minorities with “surgical precision”. Or other states that were given carte blanche by the SCOTUS when they squashed portions of the voting rights act.

          This is not off topic. It is the conservative view among many Republicans that unrestricted weapons are more important than the right to vote. Or the free press for that matter.

          Liked by 1 person

          1. Ah, but it does.

            The value of rights enumerated in the Constitution are only as good as the willingness of the government to enforce them.

            Also, the relative value of the rights is not questionable. They either are rights or they are not.

            So my contention is the 2nd Amendment maybe important, but it is not anymore so than all the others.

            Yet, if we attack one, how long would it be before we attack the others.

            Self-incrimination next?

            Liked by 1 person

          2. It is NOT about controlling something that is so limited in its existence that it requires no controls. It is about controlling who has the right to vote and to not have that right infringed upon. However, if your right to own a firearm directly effects my right to vote through intimidation or other covert actions, then there is a problem.

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  3. Very well written. It has been explained over and over that the individual right to bear arms and a militia are separate from each other but some people just can’t take the obvious for an answer.

    Liked by 1 person

    1. If it were so obvious, it would not have taken a Supreme Court decision with a couple of hundred majority and dissenting opinion pages of writs to say so.

      But then, I am just another average American.

      Liked by 1 person

      1. It is that obvious, we just have some justices that see the Constitution as what they think it should be instead of what it clearly is.

        They were appointed at a time when there were enough votes in the Senate to confirm activists who simply don’t care what the law is.

        Liked by 1 person

        1. For 2 1/4 centuries, we have had a Court that has issued opinions about the law and the Constitution.

          The reason? Simply put, law is a matter of interpretation when it comes to court, particularly the higher levels.

          Your opinion of decisions is colored by your Libertarian understanding of the way things should be. Nothing wrong with that.

          Assuming that the dissenters in decisions you agree with just don’t care about the law is a judgement call that I would call your opinion and not reality.

          If the law were so clear cut we would never need judges. But we know that is not the case in almost any nation in the world…or any civilization for that matter.

          I play golf. The Rules of Golf have been around for hundreds of years. They were codified at some point. Then revised here and there to deal with modern realities.

          The Rules are a pamphlet with 34 rules and subsections. It is about 1/4” thick, and a 3”x4” in size and slips into the golf bag or back pocket easily.

          The Decisions on the Rules of Golf is a thick book, hundreds of pages long.

          Why? For the same reason we have courts to interpret the law and the Constitution. The rules are clear, like the Constitution you might say. But we know that neither is perfect nor clear.

          Liked by 1 person

        2. …”we just have some justices that see the Constitution as what they think it should be instead of what it clearly is.”

          As long as they agree with YOUR interpretation they are fine. But as soon as they disagree they are activist judges with an agenda. The same comment could be made about the justices that you agree with. They are activists with a penchant for thinking they can interpret shit from 230 years ago.\

          The majority of them were also confirmed when it took 60 Senators for confirmation. Now it only takes 51. Yes, I know that Reid put that in place but that was to overcome the obstruction based strictly on politics, for federal appointees not on SCOTUS. Now it is for ALL Federal appointees. I was not pleased when Reid did it, but I understood the reasoning behind it. McConnell’s play to ensure Obama would be a one-term POTUS. (FAIL!!!) was the true cause behind all of this.

          And NO, the Federalist Society is NOT the end all be all on jurists.

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