On Tue, May 31, 2011 at 04:21:02AM -0500, Greg Jacobs wrote: > http://www.auctionarms.com/news/article/20110527-District-Court-Finds-No-Constitutional-Right-to-Conceal-Carry.cfm > > http://joshblackman.com/blog/?p=7002 > > Call me dense, but I think I agree with this.....and that frightens > me!!!! I hate agreeing with such things!!!! Please correct me!
Actually . . . something that often gets lost in the process of adopting
our individual perspectives on cases like this is the fact that this was
not (as far as I'm aware) the final decision of the case; it was a
decision aimed at a motion for summary judgment. All that means is that
they're going to have to actually fight it out in court, rather than have
the case decided without the complete process of presenting evidence and
arguments in a lengthy court proceeding. For the most part, the core
rationale for this decision on the motion for summary judgment does not
strike me as entirely unreasable.
The judge's bias *does* show through, however, and gives me little or no
hope for a reasonable decision in the long run. This statement in
particular is troubling:
The Supreme Court does explain that the historical inference of the
word "bear" should be interpreted to mean that there is a right to
carry "upon the person or in the clothing or in a pocket" a "weapon
for a particular purpose – confrontation." Id. at 584-85. However,
Heller's ultimate holding is not the Court's interpretation of the
historical significance of the Second Amendment's language. To the
contrary, the Court, both in Heller, and subsequently in McDonald,
took pain-staking effort to clearly enumerate that the scope of
Heller extends only to the right to keep a firearm in the home for
self-defense purposes.
In essence, the judge claims that because the Heller and McDonald
decisions made some effort to limit the scope of their judgments,
*nothing* in those cases applies anywhere else unless it provides
justification for this judge to reject the plaintiffs' arguments.
Having actually read the Heller decision (though it has been a while; I'm
working from memory), my impression of its applicability is that there
are specific statements that were made with clear intent to be applied
generally because they were the basis for the Heller judgment, while
there are others that are not the basis, but rather a part of, that
judgment and should only be taken as pertaining to the specific
circumstances of Heller (sui generis). One of the latter is the judgment
that, if Heller's request for license to keep a gun in the home is to be
denied, it must be denied based on criteria consistent with the Supreme
Court's interpretation of the Second Amendment, and not denied
arbitrarily because the DC authorities do not want to issue him a permit.
One of the former, however, is the above-quoted statement about the
applicable meaning of the word "bear" in the context of the Second
Amendment. One cannot, after all, reasonably claim that a point of
principle that justifies a particular judgment of the proper
interpretation of the Constitution is sui generis; it is a point of
*principle*, after all.
I'm not a judge, however, nor even a lawyer, nor am I filthy rich, so I'm
not in a position to influence this proceeding. C'est la vie.
I'm somewhat put off by this judge's lack of care and accuracy in use of
the English language, however. He uses "infer" where "imply" is the
correct term, and misuses "enumerate" -- both errors appearing in that
one excerpt above. Other problems arise elsewhere. I suppose a tenuous
grasp on the technical application of terms might be indicative of a
greater difficulty that might account for the judge's apparent difficulty
in reading comprehension where the Heller decision is concerned.
(I have not read the entire McDonald decision, so I don't have much
commentary to offer on that as it might apply to Yolo.)
--
Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ]
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