First the funny part... Breyer used several pages quoting a D.C. City Council report. I assume that the quotes are accurate, though I have not checked.
I had to laugh when on p.16 of Breyer's dissent he quoted the report: “due to the gun-control tragedies and horrors enumerated previously” Indeed! Years ago the report's creator, and now Breyer and his clerks missed this Freudian slip. On a serious note, it doesn't come as a surprise that before Heller, Justice Breyer fervently hoped that the Second Amendment would not be found to restrict any gun-control, including city handgun bans. In his dissent, he spends section after section, page after page, and paragraph after paragraph balancing interests of the City Council against the protected interest of the Second Amendment. He is careful not to skip any steps that have been used in the past to limit the scope of rights. Of course, at each step of the analysis, the right of the people to keep arms comes up short. In the end, I'm sure that he could use the same process to uphold any gun ban, anywhere, except for single-shot breech loading rifles and shotguns. And he'd proudly explain his progressiveness in allowing self-contained cartridges and not limiting the right to muzzle loaders. My following comment is not original (see Kozinski's dissent from denial of rehearing en banc of Silviera v Lockyer), but it worth keeping in mind as you read Breyer's dissent. If Justice Breyer used the same technique in balancing freedom of the press with an anti-pornography law, a whole industry would be in jeopardy. Surely, the purpose of the freedom of the press was not to publish pictures of people without clothes. Surely, a town council could provide some statistics to show their harm. And surely, there's no narrow tailoring of a ban on such pictures that would satisfy that councils interests. Breyer's analysis of the Second Amendment is as absurd as such a hypothetical analysis of the First Amendment. Sure, the right to keep arms is now recognized as an "individual right." Except if one judge in the majority leaves, that individual right will be infringed completely with "reasonable restrictions." --jcr _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
