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FUMARE

Law, culture, and Catholicism...up in smoke!

Thursday, June 26, 2008

Supreme Court Upholds Second Amendment Right

Today, the Supreme Court issued its ruling in the Second Amendment handgun ban case, District of Columbia v. Heller. The decision was 5-4, striking down the handgun ban as being in violation of the Second Amendment. Scalia wrote the majority opinion, with Roberts, Alito, Thomas, and Kennedy joining. Stevens and Breyer each wrote dissents, with Ginsburg and Souter joining the dissenters. The opinion is here. At first glance, Scalia's opinion has an interesting and very thorough parsing of the language of the Second Amendment.

At the very end of the majority opinion, Scalia has the following statement:
We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
This is in contrast to Kennedy's child rape opinion from yesterday. Yesterday, Kennedy banned the death penalty for child rapists based on policy considerations; today, Scalia acknowledges that some might think a handgun ban is a good idea based on policy considerations, but that imposition of this ban "is not the role of this Court." Can you guess who is acting like a judge and who isn't?

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