ORIGINAL: quiksilver

http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf

John - I just read 150+ pages last night of the Heller case, as well as each respective dissent- and honest to god, this stuff is mind-blowing.It's unbelievable how tight this case really was.

[align=left]The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."[/align]
Let me start off by saying that there is nothing more frustrating than hearing gun advocates - egregiously misuse the terms "right," "freedom," "carry," and "gun" from a constitutional perspective. These terms are far from being absolutes.

Justice Scalia prefaces the entire opinion by reiterating that the "right" to keep a weapon is not absolute, and is subject to whatever necessary limitations (i.e. mentally ill or criminals). Likewise, these "rights" stop at the school door or in certain buildings or when certain conditions present.

9 of the greatest legal minds in the Union. 5 votes required.

As many of you know, the crux of this case turns on the meaning of "keep and bear," but not in the context of 2008. Instead, the heart of the matter centers around the original framers' intent for those particular words. We wind the clocks back to the late 1700's and try to putHumpty Dumpty back together again.

The Petitioners proffered a very strong argument, alleging that the definition of "keep and bear" is relegated strictly to militia service.
The Respondents alleged that the definition of "keep and bear" extendsbeyond militia serviceto personal protection.

Simple, right? Hardly.

We can all agree that the framers carefully chose their words... The language of every sentence was carefully calculated, and parsed withaneye into the future.

The Petitioners hung their hat on two arguments:

First, they pointed out that two states (Pennsylvania and Vermont) specifically had express language inserted in their respective "Declarations of Rights" that provided for the right tobear arms for"self-defense" and "hunting." Such language was conspicuously and intentionally absent from the Second Amendment, as we know it. This is the only time that "hunting" arises in the context of the second amendment. Personally, I agree with Justice Stevens' dissent, and find this to be a defining material omission.

Secondly, during the ratification process, there was significant tension among the colonies to retain the right to raise a State-Army as a check-and-balance on the Federal Government. A federal army posed a direct threat to state sovereignty. There is voluminous support for this, and it is largely undisputed.

The Respondents were able to construct an argument, citing Blackstonian principles and old English law dating back 17th century Protestants, whereby the terms "keep and bear" were used not only in a military context, but also for personal protection. The majority followed. Through portions of the opinion, it feels as though Scalia is grasping at straws, trying to forge a valid argument where none realistically exists. Other times, he cites persuasive authority and several uses of the term in a non-military context.

Both sides tabled very strong arguments, but at the end of the day, we were trying to add a subtextual interpretation where no facial language existed.

I'm a strict constitutional constructionist, and am keenly aware that the U.S. Constitution was modeled with English and existing state legal principles in mind. Being cognizant of this, I can't help but note the framers' intentional variance from the PA and VT Declarations of Rights. I can't help but believe in my heart that the framers were simply paying homage to state sovereignty, and offering a built-in check against the Federal Government.

I don't think you could find an impartial adjudicator who would disagree that the 2nd Amendment guarantees a right to maintain a citizen militia. However, when you're vacating the plain language of the Amendment, by implying that they meant to create some type of contructive right to self-defense, it just never sits well. From a constructionists' perspective, this decision, in its mode of execution,leaves a lot to be desired. I feel that the framers bent over backwards to AVOID using the words "self-defense" and here we are, 200+ years later, putting words in their mouth.

5-4. Game over. Razor tight.