Supreme Court Overturns Gun Ban

[Pangloss]

The US Supreme Court ruled 5-4 today overturning an outright gun ban that appeared to be in violation of the 2nd Amendment.

 

http://www.cbsnews.com/stories/2010/06/28/eveningnews/main6627913.shtml

 

Perhaps the most interesting thing about this decision, which was somewhat expected following a similar decision last year that only affected Washington, D.C., is that the vote was 5-4. Since a decision the other way would have resulted in immediate bans in many cities, it seems that a single individual just determined the outcome of the gun ownership issue in this country.

 

Justice Breyer's dissent is an interesting walk through the history of the founding father's opinions and their applicability to hand gun ownership. While I happen to not agree with him on this issue, I think he makes a good case.

 

http://www.leagle.com/unsecure/page.htm?shortname=insco20100628007t

 

If nothing else, this case seems to emphasize the point that there are no laws or constitutions that are so perfectly written that they cannot be interpreted to mean whatever the interpreter wants them to mean. Ultimately everything is up for debate, everything is subject to interpretation.

 

What do you all think?

[Mr Skeptic]

I've previously said the same thing about reinterpreting laws, in the thread about gay marriage. Reinterpreting the old laws to modernize them may be convenient, but ultimately makes the laws meaningless. The Constitution has a built-in mechanism to change it; that is how changes should be made.

[ParanoiA]

If nothing else, this case seems to emphasize the point that there are no laws or constitutions that are so perfectly written that they cannot be interpreted to mean whatever the interpreter wants them to mean. Ultimately everything is up for debate, everything is subject to interpretation.

 

Well, that is if you believe in the living, dynamic-meaning-to-be-applied-flexibly document.

 

But if you roll with the Originalists, and I don't mean Kagan's "we're all Originalists" fairytale, you stick to the text and the meaning of the words when they were written. It's not perfect either, but it's loyal to the integrity of law. Breyer and others go down the precarious path of 'original intent' and attempt to use history and writings and such to psychoanalyze legal intents. And while some measure of these things have value, even to the Originalist, details are always where the disputes are and key conclusions are made.

 

Breyer almost stumbles on it himself:

 

The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority's historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.

 

Worse yet, history that isn't disputed, yet is misunderstood.

 

What they wrote in the law is what they damn well intended, not what they thought about or discussed before or after, but what they actually wrote down and voted on. Again, I'm proud of this decision.

[rogerxd45]

i am VERY pleased to hear the the SCOTUS has overturned an out right ban on handguns in certain areas

 

think of it this way if you were going to rob a group of people and you had a gun.

would you choose the area that no one has means to defend themselves?

 

or the group that some of the people might have guns to protect themselves?

 

 

why are there shootings as schools or gun-free malls? because criminals know no-one will be armed?

 

criminals dont care about the law (thats what makes them criminals)

 

so if you institute a gun ban, only the law abiding people will turn in their guns....so only the criminals will have them (which by law you make everyone with a handgun a criminal)

 

if a person is selling drugs and carries out murders really cares about a handgun ban?

NO!!

 

if i were a armed robber i would rob the store/mall whatever that i knew had a a bunch of unarmed people inside

vs.

a place the people are legally allowed to bring guns into.

 

the risk of death or injury is much higher for the criminal in the place that law abiding people carry guns

[Pangloss]

Well, that is if you believe in the living, dynamic-meaning-to-be-applied-flexibly document.

 

Actually what I mean is that even originalism requires a great deal of interpretation. In fact the belief in gun ownership as a constitutional right absolutely demands a specific interpretation of words that are demonstrably, objectively vague.

 

So who really is telling the fairy tale? Both extremes, as usual. I see it as no different from the economic divide between neo-Keynesians and Marketers, pushing and pulling away at each other but essentially fighting over the same middle ground.

[ParanoiA]

Actually what I mean is that even originalism requires a great deal of interpretation. In fact the belief in gun ownership as a constitutional right absolutely demands a specific interpretation of words that are demonstrably, objectively vague.

 

So who really is telling the fairy tale? Both extremes, as usual. I see it as no different from the economic divide between neo-Keynesians and Marketers, pushing and pulling away at each other but essentially fighting over the same middle ground.

 

No, it's not the same at all. Textual Originalism makes far fewer assumptions so that the interpretation is not open enough to mix and match and create convenient meanings. It's only open enough to stretch or pull meaning, through the application of the textual language, and that's it. When you invite history, and psychoanalysis - both of which are not all-verifiable, all-knowable resources AND may have squat to do with a given law in the first place - that's when you gain the ability to flex the language however you want.

 

If all I have is a sentence, and the time it was written, then I can apply meaning to that sentence without too much assumption at all. Difficult to construct whole new principles and ignoring old ones with that kind of adherence to written word.

 

If I take that same sentence, and the time it was written, and the debatable historical record, and written letters and publications around that time, then I can pretty much make believe whatever I want under the guise of "original intent". And I don't have to mean it maliciously either.

 

Further, Breyer even goes so far as to say that the implications of the interpretation effect interpretation itself - I provided proof and reason behind this position of his in my SCOTUS Interpretation thread that died pretty much at birth. That's straight up legislative action. He has his reasons for this, and like you, I do find his arguments interesting. Ultimately I think he's wrong, but he's no idiot.

[Pangloss]

So... essentially your argument is that originalists don't interpret the language as much? Okay, I guess I could see that.

 

But I don't think most originalists (at least in the general population) are actually concerned about accurate interpretation of the Constitution as an academic legal point. I think they're mainly conservatives who seek plausible objectivity for their ideological preferences.

[ParanoiA]

So... essentially your argument is that originalists don't interpret the language as much? Okay, I guess I could see that.

 

But I don't think most originalists (at least in the general population) are actually concerned about accurate interpretation of the Constitution as an academic legal point. I think they're mainly conservatives who seek plausible objectivity for their ideological preferences.

 

Ooh, yes I would agree with that. In fact, that's partly why I was excited about my apparently uber-boring thread on Constitutional Interpretation. To me, that conversation/debate between Breyer and Scalia put the convervative/liberal shallow ideology to the bottom of the waste basket.

 

These men interpret the way they do for valid philosophical reasons that have nothing to do with narrow political think tanks that group and label these men. I agree, in that it all smacks of yet more "confirmation bias" for conservatives, or retroactive intellectualism.

 

Rush's show yesterday is a perfect example. He says, numerous times, that a right to abortion is not in the constitution. Yet, he would be the first to point out that only part of our rights are enumerated, and that those rights that are not enumerated and yet not expressly prohibited, do exist - they are left to the people, or the states.

 

Conservatives put originalism on a pedestal when it suites them. And then think around it when it doesn't. Scalia doesn't do this. And to Breyer's credit, he is consistent in his application as well.

 

At this point I have far more respect for justices than any politician or party.

[Genecks]

Yeah, but in a big city like Chicago?

Where am I goona find a range? huh?

And if I found one? It's goona be chrawdid (crowded).

It's goona cost me. And I dun like dat. No, sir...

 

Maybe I'll just shoot out in the street. Yeah, that'll do it.

Lot's of cement around.

 

First time I shot a pistol? I broke the thing that was holding the target.

I had to pay $10 USD. lmfao.

[ParanoiA]

Yeah, but in a big city like Chicago?

Where am I goona find a range? huh?

And if I found one? It's goona be chrawdid (crowded).

It's goona cost me. And I dun like dat. No, sir...

 

Maybe I'll just shoot out in the street. Yeah, that'll do it.

Lot's of cement around.

 

First time I shot a pistol? I broke the thing that was holding the target.

I had to pay $10 USD. lmfao.

 

My wife and I paid 13 dollars for about an hour in a lane, and went through about 10 targets. If they charge much more than that, then yer gittin' ripped off there buddy.

[Pangloss]

Conservatives put originalism on a pedestal when it suites them. And then think around it when it doesn't. Scalia doesn't do this. And to Breyer's credit, he is consistent in his application as well.

 

At this point I have far more respect for justices than any politician or party.

 

Great point. And given society's rapid movement down a path to ideological separation, we're fortunate to have such people in the Court.

 

That goes right down to details, too -- Breyer does talk about how this decision will affect the lives (and deaths) of real people, but that's not a bleeding-heart plea to forget the law and end suffering, it's an intelligent argument that simply interprets the law differently from the majority. That's respectable and desirable.