Chad Perrin: SOB

26 June 2008

RKBA Upheld by SCOTUS: I won’t move to Montana yet.

Filed under: Liberty — apotheon @ 10:02

The Supreme Court of the United States has ruled in a 5-4 decision that the 2nd Amendment guarantees a personal, individual right to keep and bear arms. It seems that at least some of the Supreme Court Justices have some rudimentary reading comprehension skills. I have to wonder if the rest of ’em just skipped too many class sessions in their high school and college English courses.

The Great State of Montana filed an amicus brief with the Supreme Court with regard to the DC v. Heller case, pointing out that the state’s contract with the Union that made it a state in the first place would be materially violated, and thus rendered null and void, if the Supreme Court ruled that there was no individual right to keep and bear arms. In other words, without any act of secession on the part of Montana, it would no longer be a member State of the Union — it would, in fact, have been a case of the United States effectively expelling Montana from the Union via breach of contract.

Considering many of the legislative and executive actions in the federal government in recent years have increasingly encroached upon, and violated, Constitutional protections of individual rights in the US, I was beginning to think I would have to move out of the country in the near future. If the DC v. Heller case went badly and the Boumediene et al. v. Bush case went badly in the Supreme Court, I was ready to pack my bags and move to Montana — thus ensuring (one hopes Montana legislators wouldn’t vote to rejoin the Union immediately) that I would no longer live on US soil. Even if the US invaded the Independent Republic of Montana at that point, I’d still rather die defending a more-free nation than die on my knees as a complacent sheep being led to the slaughter in a United States that no longer recognized much of the 1st Amendment, anything meaningful in the 2nd Amendment, or any effective protections from the 4th or 6th-10th Amendments, and that so badly abused clauses of the 5th Amendment and eliminated the power of the courts to hear petitions for and issue Writs of Habeas Corpus. Whether other parts of the Bill of Rights are still (nominally?) intact is up for debate, of course.

Well, in the last month we’ve seen both the Constitution provision for Writs of Habeas Corpus and the 2nd Amendment upheld (barely) by the Supreme Court. Is there still life in that old dream of liberty? Might we still have a hope of claiming ownership of the title “Land of the Free”? It looks like there may be a dim light at the end of the tunnel after all — and, really, I don’t much enjoy packing up all my belongings and moving. Not only is it expensive, but it’s a tremendous hassle, too.

I still might move to Montana some day. Gotta love a state whose governor described the state’s reaction to federal pressure to adopt the mandates of the Real ID Act as “Tell ’em to go to hell.”

I wonder what effect this ruling will have on California gun laws — or, for that matter, Denver’s “home rule” exemption to open carry rights guaranteed by Colorado’s State Constitution.

I already know what this means for Washington, DC: it means that we should expect to see violent crime rates in the Murder Capital of the US start dropping.


  1. Excellent!

    Comment by SterlingCamden — 26 June 2008 @ 10:05

  2. This ruling should definitely pave the way for outright gun bans, like those in San Francisco and Chicago, to be struck down. I think the NRA already plans to file suit in those cities to get their laws overturned.

    It’s a fairly narrow ruling, however. I don’t see it affecting bans on open carry, or licensing requirements. It probably won’t change bans on certain types of firearms such as assault rifles, either.

    It’s still a big win. The interesting thing about this case is that no matter how SCOTUS ruled, it would have represented a huge shift in the scope of the Second Amendment: if they had reversed the lower court, it would have meant the end of RKBA as an individual right, allowing states and cities to embark on a massive dearming of the citizenry; but upholding the lower court would affirm that the Second guaranteed an individual right, something that has been hotly debated for decades. Fortunately the court chose the latter and (I think) correct interpretation.

    Comment by Brian Martinez — 26 June 2008 @ 10:57

  3. It’s a fairly narrow ruling, however. I don’t see it affecting bans on open carry, or licensing requirements.

    You’re right about it being a fairly narrow ruling — but I’m not quite familiar enough with the “Home Rule” exception for Denver to know whether it was predicated upon some kind of assumption about whether there’s an individual RKBA.

    edit: It also may be interpreted by lower courts to allow carry (though “open” is, well, open to interpretation in this case) in “non-sensitive” areas. At minimum, that would indicate that states must have a shall-issue policy for licensed carry, if not even more permissive policies. I guess we’ll have to wait and see.

    It probably won’t change bans on certain types of firearms such as assault rifles, either.

    Actually, in combination with US v. Miller, the result is that a lower court would need to either ignore the Supreme Court’s rulings or find in favor of an individual right to keep and bear militia weapons — including “assault weapons” and machine guns. Miller basically stated that, insofar as there is an individual RKBA protected by the 2nd Amendment, it protects the ownership of military weapons. That was the basis for allowing the absent defendant to be convicted of a crime for keeping and bearing a sawed-off shotgun, which the SCOTUS decided had no militia purpose.

    Fortunately the court chose the latter and (I think) correct interpretation.

    I’ve got some pretty strong arguments in favor of that being the correct interpretation, which I’ll compose into something readable in the near future. Maybe tomorrow . . . ? They relate to the phrasing and punctuation of the 2nd Amendment, US v. Miller, and other matters.

    Comment by apotheon — 26 June 2008 @ 11:15

  4. FWIW, here’s what Jacob Sullum over at reason‘s blog has to say about individual regulations:

    The Court explicitly says that laws prohibiting concealed carry, banning gun possession by “felons and the mentally ill,” barring firearms from “sensitive places” such as schools and government buildings, and regulating the sale of firearms are consistent with the Second Amendment. It also suggests that banning “unusual and dangerous weapons,” as opposed to weapons in common use for lawful purposes, is permissible. Whether that means, say, bazookas or guns arbitrarily designated as “assault weapons” is one of many details that will have to be worked out by the courts.

    Comment by Brian Martinez — 26 June 2008 @ 12:30

  5. This ruling is disatrous. There are 140 pages of ifs, ands, and buts to cite all the limitations which can be levied at the discretions of the governments. They have made it possible to make it so difficult to get a permit that maybe you will never get a gun. Our ancestors did not fight in order to give our rights away which they sorely won in snowy fields. They also fought a tyrant which had banned guns from being imported and who had limited the sale of guns. We have the right “without infringement” and this is 140 pages of infringements. Dont you all be fools! You can only bear and buy guns at their descretion !!! it is no longer your right !!!

    Comment by susan — 27 June 2008 @ 07:58

  6. (Mostly) Preaching to the choir, sister. (:

    Comment by Joseph A Nagy Jr — 27 June 2008 @ 12:23

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