Thursday, June 26

Heller: Constitution 1 Evolving Public Sentiment 0

In D.C. v. Heller the Supreme Court strongly defended the individual right of a citizen to hold and bear an
unlocked and loaded weapon in their home.

ScotusBlog has an amazing round up here.

The affirmation of such an obvious constitutional and necessary right is heartening. But even more is the plane to which this decision pulls the Supreme Court as a body and as a branch to its proper role and function.

For example, the decision did not base itself upon "society’s standards of decency" however noble they might be, but upon a "normal and ordinary" meaning of the Constitution as understood by ordinary citizens in the founding generation.

As Scalia says:

In interpreting this text, we are
guided by the principle that “[t]he Constitution was written to be
understood by the voters; its words and phrases were used in their
normal and ordinary as distinguished from technical meaning.” United
States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v.
Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an
idiomatic meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the founding
generation.

As importantly Scalia rejects the temptation of the judicial branch to establish some sort of legislative test that Supreme Court judges love to invent. Instead, Scalia says that judges should leave that to the legislature and simply give some examples to guide future cases as to what is Constitutional and what is not.

Finally, Scalia does not incorporate the 2nd Amendment into the 14th Amendment to apply to the states. He doesn't say that it can't but simply says that this case does not bring up the issue so the issue does not need to be addressed. Again, refeashing understanding of the proper role of the court.

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