Monthly Archives: June 2010

Stevens, exposed

In reading (ex-) Justice Stevens’ dissent in McDonald, I found myself almost dumbfounded by a particular passage. In a footnote on page 43 of his opinion, Stevens casually mentions the following:

In my view, the Court badly misconstrued the Second Amendment in linking it to the value of personal self-defense above and beyond the functioning of the state militias; as enacted, the Second Amendment was concerned with tyrants and invaders, and paradigmatically with the federal military, not with criminals and intruders.

(Emphasis mine)

And yet, in spite of his opinion — here recorded in writing for the ages (search for “tyranny”) — that the Second Amendment was intended to preserve access to arms in case of domestic tyranny, Stevens votes to allow the same governments he admits the framers were concerned with turning tyrannical to ban them. That says it all, really.

Alan Gura, I love you

Alan Gura, on the subject of his latest victory:

The Second Amendment is itself a reasonable, common-sense gun law – it provides powerful security for a fundamental individual right. Governments contemplating gun regulations out of legitimate concern for public safety may occasionally be reminded of their limits by courts, but good faith actors should find today’s decision no more troubling than any other precedent effectuating basic constitutional limitations. On the other hand, politicians approaching gun regulation as a means of continuing their disagreement with the Constitution’s enumerated policy choice on the subject will discover that doing so carries a price taxpayers do not wish to spend – and ultimately achieves nothing.

Dumbest thing written by a Supreme Court Justice of the day

From Breyer’s dissent in McDonald (page 13):

Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic?

Emphasis mine. Apparently he thinks that “semi-automatic” is a subjective term, much like “post-modernism”. Maybe it could mean anything!

Hint for Breyer: a gun is semi-automatic when you pull the trigger and one bullet is fired and one shell casing is ejected, and then when you pull the trigger again, another bullet is fired and another shell casing is ejected.

Honestly. It’s like asking when a car has a manual transmission or when a phone is cordless. That one so ignorant of even basic terminology considers himself qualified to make judgements on this subject is risible in the extreme.

We did it. We got it.

We won. Not through Privileges Or Immunities, but Due Process is pretty damn good. Reading it now.

It looks to me like we got strict scrutiny, too. On page 39 of Alito’s opinion:

Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62– 63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy, supra, at 10–11 (internal quotation marks omitted).


As we have noted, while [Justice Breyer’s] opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. See supra, at 38–39. “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, supra, at ___ (slip op., at 62–63).

Update 2:
Gotta love Scalia’s typical pithiness:

JUSTICE STEVENS moves on to the “most basic” con­straint on subjectivity his theory offers: that he would “esche[w] attempts to provide any all-purpose, top-down, totalizing theory of ‘liberty.’” Post, at 22. The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either.


The next constraint JUSTICE STEVENS suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful conse­quences? Attempting to give the concept more precision, JUSTICE STEVENS explains that “sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution.” Ibid. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case JUSTICE STEVENS cites in support, see ibid., Casey, 505 U. S., at 849, dispels any illusion that he has a meaningful form of judicial modesty in mind.


In any event, the demise of watered-down incorporation, see ante, at 17– 19, means that we no longer subdivide Bill of Rights guarantees into their theoretical components, only some of which apply to the States. The First Amendment freedom of speech is incorporated—not the freedom to speak on Fridays, or to speak about philosophy.

He’s right, that does look fun

Oleg Volk just posted an awesome video on the new Kel-Tec PMR-30, a semiautomatic handgun with a 30-round magazine. If there’s one thing you could certainly never say about Kel-Tec, it’s that they just re-use old designs. I mean, 30 rounds of .22 magnum in a super-light, full-size auto-pistol? Wow.


Cliffs notes: anywhere but New York, New Jersey, Maryland, California, or Illinois

I just discovered the coolest site on the internet for disaffected libertarians trapped in illiberal nanny states. It lets you weight what laws and policies you find most important and it’ll calculate your ideal state. Too cool!

Here are my weightings.

Not so sure what the message is

…but the video sure is awesome:

Maybe they’re trying to push their service in lieu of guns? But let me tell you, I don’t think many looking to abduct a child would want to get near anyone related to those badasses!