Thursday, January 15, 2009

Holder: Heller Means Exactly Dick.

For all those "pragmatists" who whooped and hollered about Heller, Eric Holder said today it is no big deal. You're still going to get an AWB and federal seizure of control over all private transfers -- and it is all cool under Heller.

From the Empty Wheel blog:

Coburn: Heller. I believe SCOTUS got it right. Tell me where you sit today and with that thought what you would do with that.

Holder: Post-Heller the options we have in terms of regulating firearms has been narrowed. It has not been eliminated, but reasonable restrictions are still possible. The Heller decision has to be factored in now. I don't think we should turn away from discussions about who has guns and how they should be used. I think that we're in a different world.

Coburn: Do you agree that outside of sporting use there's a right to own a gun?

Holder: [a little surprised by the question] Post-Heller definitely. I agree with Obama closing gun show loophole, banning sale of cop-killer bullets. Those are the things we need to focus on.

Coburn: As AG will you make a commitment to defending Heller?

Holder: Sure.

Coburn: Would you also do so if SCOTUS granted Cert for a case revisiting Heller.

Holder: I'm a lawyer who follows stare decisis. Ultimate arbiter has said what 2nd Amendment says. Heller is a significant opinion.

Coburn: Assault weapons? Whether or not you think that ban ought to be re-regulated.

Holder: I think making the assault weapons ban permanent would be permitted under Heller.

OK. Are we clear? Heller means exactly dick.

(Would someone better connected than I post this on I'm curious to know what THEY think of it.)


Anonymous said...

Heller's ALWAYS meant exactly dick!

Anyone who's read the opinion of majority can see the double-speak and the "out" the powers that be can choose to use at any time they desire, hopeful optimism not withstanding.

The fact is that the legal "line" is going to be pushed behind us again. What was it Holder said? "...making the AWB permanent would be permissible under Heller."

This time,when Congress passes it and the new President signs it, you'll be given an ultimatum.

And make no mistake, if your choice (as it should be) is to not give in to the ultimatum, then you'll have to fight for your right. That means somebody will bleed. There will be NO legal remedy for you to pursue! All you'll have is an opportunity to comply or face the consequences.

There's no gray area here, folks. Time to get your head on straight.

CorbinKale said...

I have sent letters to my leaders, including the incoming administration. I have reminded them of their Oath, and informed them that I will not comply with unconstitutional laws that further infringe on our rights. Also, I informed them that if they send armed men to my home to force compliance, imprison or kill me, I will defend myself and the Constitution, in accordance with MY Oath. If I survive the assault, I will then be at war, and will take that war to those domestic enemies of the Constitution, who ordered the assault.

I can't be much plainer than that. There is no war until they start one. I have been called a fool for being so candid, but my honor demands that I give them fair warning. I take solace in the fact that if everyone sent a similar letter, attacks on the Constitution would cease. That is proof enough that I am doing the right thing.

I have my game face on. I won't wait to be disarmed before I decide to resist. We are all doomed to die. I choose to die free.

Anonymous said...

L. Neil Smith says in an email to Vanderboegh:

"OK. Are we clear? Heller means exactly dick."

Dick-minus, actually, as I've been saying since the day of the
decision, since it established this "reasonable regulation" nonsense.

This, of course., from the same lot of infallible sages who gave us the Dred Scott decision and ruled in the 1890s that the 13th Amendment doesn't outlaw military conscription --- which, according to historian Jeffrey Hummell is precisely what it was very carefully written to do.


Anonymous said...

Gee, I remember saying that very thing the day the decision was published.

Heller was not a win for us. It was a road map for the disarmers.

Anonymous said...

I've been saying it all along: Heller was focusing-grouping for The Authorities. It simply showed them their ways around and through their problem.

Anonymous said...

In the Heller decision, the majority of the justices ruled that you have an individual right to have your individual right infringed. The minority decided you have a collective right to have your right infringed.
Outstanding jurisprudence. Just outstanding.
4 traitors and 5 morons.

Kurt '45superman' Hofmann said...

In the Heller decision, the majority of the justices ruled that you have an individual right to have your individual right infringed. The minority decided you have a collective right to have your right infringed.
Outstanding jurisprudence. Just outstanding.
4 traitors and 5 morons.

I have to steal that. Best summary I've seen.

Johnny said...

In "Heller," Scalia bent-over backwards to explain why "US vs Miller" was too 2nd Amendment for modern sensibilities. OTOH, why complain about "Heller?" The 2nd was DOA anyhow, like most of the rest of the BoR. Amendment 4 hello? Nope, "The War on (Some) Drugs" killed that long ago, let alone the "Global War On Terror" (tho maybe the IRS got there first of all).

Anonymous said...

I believe that Heller + Holder = we are Dicked...

Time to decide folks - slavery or freedom. There is no other choice - prepare accordingly.

Anonymous said...

That's what my gunny friends and I were afraid of; Heller was lipstick on a pig. On the surface, it looked like a win for freedom. But the 'decision' actually gives the anti's a legal excuse to divide and conquer with regulation designed to directly infringe and harass. And that's exactly what they intend to do.

If you haven't made a decision on where you stand with regard to infringement and confiscation, the time is drawing nearer to the knock on the door and you won't have time to hem and haw. So make your choice now as to; enemy of the constitution or keeper of the constitution. Its one or the other, there is no inbetween.


Anonymous said...

Yes, those of us with eyes to see knew that Heller was a trojan horse - it pays lip service only to original intent while completely gutting the real purpose of the Second Amendment - preserving the military power of the people. Scalia gutted Miller's holding on military utility, which when combined with an individual rights reading, would have meant protecting the individual right to own weapons of military utility.

Heller allows nearly any infringement on gun ownership, including outright banning of all military pattern semi-autos.

What is "in common use"? Whatever the judges say. What are "lawful purposes"? Again, whatever the judges say.


Anonymous said...


If I may,

I think I know their position.

On a thread whose subject was the Brad Krause/open carry on private property and the LEO's guns drawn/handcuffed response, I asked rhetorically what side the LEO's who post on are on.

The thread was killed for "cop bashing". only seeks to cover their rear end to extract more money from advertisers and pimply faced, trash mouth tatoo "warriors" who still live at home with their parents. They care not about liberty.

Anonymous said...

Johnny said...

In "Heller," Scalia bent-over backwards to explain why "US vs Miller" was too 2nd Amendment for modern sensibilities.


He did not, and Miller did not. Miller defined what arms the protection of which is protected by the 2nd Amendment, i.e. arms in common use contemporarily that are serviceable as military/militia weapons (i.e. military pattern firearms, SPECIFICALLY). Scalia so states in 1. a) of the HOLDING, not merely in the dicta.

I read a lot of fringe pessimism here in Comments based upon a complete misreading of Scalia's words. While it's true that he held, writing for the majority, that there can be certain "reasonable regulations" on RKBA, to wit, in prisons, by certified loonies, felons and unsupervised minors, this hardly a) defies "reasonablity" or b) materially infringes the right. (I do agree, however, that his inclusion of the prohibition of carry in schools as a constitutional regulation of RKBA is incorrect, and that the policy is monumentally stupid, as well. But would anyone here deny that carrying into a prison would be completely idiotic, and that a prohibition of same is a legitimate exercise of "compelling state interest"?)

Based upon 1. a) alone, a semiauto ban based upon military characteristics (or any other, for that matter) will be held unconstitutional. Black-letter.

Anonymous said...


Johnny said...

In "Heller," Scalia bent-over backwards to explain why "US vs Miller" was too 2nd Amendment for modern sensibilities.

Posted by Anonymous -


1. a) should read 1. f)


Johnny said...

"1. (f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U.S. 542, 553, nor Presser v. Illinois, 116 U.S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54."

See also, 2.:

"... Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56."

On page 53, Scalia says, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Scalia says, "We therefore read Miller to say" because it's plainly not what Miller said:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.
United States v. Miller, 307 U.S. 174 (1939)"

It seems to me Miller said the Court hadn't been shown any proof that a sawed-off shotgun was of utility to the militia. That is a whole different ballgame. Particularly since the "at this time" could refer either, or both, to the fact that the Court hadn't been shown a sawed-off shotgun was a militia weapon or that in our present day sawed-off shotguns are used as breaching and CQB weapons by regular army soldiers. So, even if the US Army didn't maintain any stocks of sawed-off shotguns then they certainly do now.

And then there's this from Scalia:

"It may be objected that if weapons that are the most useful in military service - M-16 rifles and the like - may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of militiary service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory and the protected right cannot change our interpretation of the right."

Maybe your comprehension of English is faulty but it seems crystal clear to me that Scalia is having his cake and eating it here, amongst the verbiage and completely irrelevant (and wrong) analysis of modern warfare.

All it takes after Heller is for the government to start declaring sundry items "dangerous and unusual weapons not suitable for militia use" and, given that the M-16 has been deemed outside 2nd Amendment protection, it should be plainly obvious to anyone that post Heller this means anything except certain types of handgun kept in the home for self defence and that the possession and use of even such a "protected" item may be hedged around with pretty much whatever "reasonable regulations" are deemed to constitute delineating "lawful purpose."

Still, I go by the dictum, "If it happens it must be true." And it's plain to me that once Holder gets going I'll be the one laughing and pointing and saying, "I told you so."

Anonymous said...

Johnny -

1. f) concludes with the statement, "United States v. Miller, 307 U.S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes."

SCOTUS isn't a trier of facts, but the final arbiter of the law.

It is inarguable that military pattern semiautos are now, and have been for decades, in common use for lawful purposes, i.e., they meet the criteria set forth in Miller, and a challenge to a semiauto ban will introduce this fact.

If the AWB is reinstated and challenged, it will fail on this point, which is a holding, not dicta. Dicta informs, but holdings rule.

With all due respect, my English comprehension skills are quite adequate, and abundant "verbiage" in dicta notwithstanding, 1. f) holds that arms commonly borne by the public are those the bearing of which is protected.

Johnny said...

Anonymous you are making a leap of logic about what the holding says, in fact what it says can only be determined by examining the dicta.

"...but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes."

It would certainly be a piece of absurd circular logic to suggest that holding defined "militia use" as a "lawful purpose" when you are defining what is lawful for militia use by reference to "lawful purpose."

In no useful way did the holding define what "common use" was ("common use for sporting purposes" perhaps?) nor, except in the vaguest terms, did it state what "lawful purposes" meant - other than the dicta broadly suggesting that most existing Federal gun laws were probably OK.

Once a new AWB has declared a bunch of things "especially dangerous" they will not be "in common use" and therefore they will be "unsuitable for the militia."

Like I said, the proof of the pudding will be in the eating. We'll soon see who's right.

Anonymous said...

Johnny -

A reinstated AWB will bring a court challenge, and the fact that military pattern semiauto firearms are in common lawful use by the people, and have been for a century, will be introduced and stipulated. Heller has cited Miller vis a vis protected arms (which held that those in "common use at the time" must also have "some reasonable relationship to the preservation or efficiency of a well regulated militia" - i.e., semiauto military pattern guns, precisely). My prediction is that the law will fail at the circuit level, and be appealed by the government. It will fail at the appellate level also, and the government will appeal. SCOTUS will deny cert, having already visited the issue, and Holder will have effectively been told to go pound sand.

Johnny said...

OK, Anonymous you've suckered me in, I'll give it one more go. Admittedly I think what Scalia came up with is pretty clever.

What he's done is negated the Second Amendment. How? By separating "common use" and "lawful purpose" from anything to do with the Second Amendment. Surely you can see that?

What the Second protects, according to Scalia, is what has "lawful purpose" and is in "common use" - two terms which the courts can now define without reference to the Second Amendment and the Militia because those two terms are now what defines what the Second Amendment means. It's genius when you think about it, IMHO.

Here's why what you're saying clearly makes no sense. If it weren't for, firstly the transfer tax shenanigans and then the ban on registering new full-autos for transfer, then full auto standard military M-16 and M-4 would be as common as AR15 and M-4gery are now. I can't believe I'd have to convince anyone here that people would buy an M-16 rather than an AR15... even if they were never going to switch it to full-auto. In fact, M-16 would surely be cheaper than AR15 since there would only be milspec parts to worry about and they'd be entirely commodity items. There's certainly no plausible reason why it should be significantly more expensive drill an extra hole in the receiver. Plainly, "common use" is about what's lawful, not "common use" defining what's lawful.

So Scalia has effectively neutered the 2A. What is in common use is determined largely by legislation (in the particular case of firearms in the present day anyway) and legislation hinges on "lawful purpose." I've already pointed out that Militia use can not be a factor in what defines "lawful purpose" - see above, they've defined what can be used by the Militia in terms of its "common use" and "lawful purpose." Now, here's something that seems obvious to me and ought to be to you - the fact that something is in common use doesn't prevent it from being declared unlawful. This is a matter of fact, just think about it. In fact, the reverse is often true for weapons! So the "common use" is a statement of facts that holds only at any given instance that a court decides in particular. And you seems to me you're agreeing with Scalia that the "common use" here is not by the military but by civilians. So what you're saying is that what civilians can have is what is deemed suitable for "lawful purposes" and which you've just agreed has nothing to do with the Militia. (See what I mean by clever? - that "common use" actually means nothing much at all, in fact only what a court says it means.) So, claiming gang-bangers are running riot with "assault rifles" gets you an AWB, since "lawful purpose" is defined by the law. Doh! - there goes your AR15, it's not "in common use" if they've declared it unlawful. Get it yet?

Believe me, they went through this kind of tortured logic to take guns away from us Brits, I can assure because I've studied the subject for 20 years.

I'd even go further in my criticism. I think the Heller judgment was completely wrong because the Second Amendment isn't about having a pistol for self-defence. When they were writing the 2A it would have been bizarre in the extreme to imagine you couldn't have a pistol to defend yourself in your home. That is clear from contemporaneous English law. I don't think the 2nd protects the right to personal self-defence at all (except for the fact that the 2A being based self-defence it means it requires the right to self-defence to be recognised for the 2A to exist, in fact Scalia and I manage to agree on that as I reiterate below). I think the 2nd means what it actually says in plain English - that a citizen is entitled to have a machine-gun and grenade launcher in case, in extremis, he needs to join up with other citizens and resist a government - foreign or domestic. That doesn't mean he can wander the streets with them in terrorem populi but clearly he can go out and practise with them in case of that fateful day.

I do agree with Scalia that English common law recognises a right to armed self-defence - it plainly does... or did until very recently, depending how exactly you view the law (English common law in England is dying a painful death thanks the European Union). But that is only relevant to the 2A in that the 2A has its basis in the existence of that right.

The Supremes had to make the 2A mean something though or else simply declare the Constitution to be the sham it actually is, so I guess they decided a pistol in the house for self-defence was the lesser evil.

Anonymous said...

Johnny -

You are truly a skeptic, which is a good thing.

You may be right, but I don't think so.

Given what I know about how the courts treat holdings v. dicta, I believe that what I projected will take place, with one caveat - if two appellate jurisdictions diametrically oppose each other on this issue, SCOTUS will have little choice but to grant cert. If they all behave themselves and follow the holding as they are supposed to, SCOTUS will deny.

Again, I think that any attempted end-run around Miller vis-à-vis the definition (albeit by negative implication) of "arms in common use at the time...bearing some reasonable relationship to the...effectiveness of a well-regulated milita" will fail on its face because of its dubious transparency. And I disagree that Scalia redefined what "lawful use" means - he cited the Miller definition in the holding. It cannot be argued with a straight face that military pattern semiautos have not been commonly in "lawful use" by the people for nearly a century, quite apart from any militia application, but possess precisely the characteristics conducive to lend their use to one.

I pray that I am right, and that you are wrong. I believe that you probably pray the same.

Johnny said...

Anonymous I'm not a skeptic, I'm a realist. Sadly, I know I'm right and that praying won't make the difference - it's a matter of the facts which are there, plain for all to see. It is, after all, reasonable to assume that Holder and President Obama know what they're talking about when they talk of a renewed AWB. And I've laid out their logic for you. I feel it's appropriate to point out - yet again - that Scalia used brilliant legal reasoning precisely to negate the point you make.

The only praying that I'd consider appropriate at this juncture is of the praise the Lord and pass the ammunition variety.

Anonymous said...

Johnny -

You insist that dicta defines holdings. Well, yes, and NO.

Dicta inform as to the reason the holdings are what they are, but they do not supplant the language of the holdings themselves.

The plain holding in Heller includes the definition of protected rights in Miller. I won't go over that again, because you already know what that definition is. Where you are misguided is in your belief that wandering dicta carries the same weight as a holding. They do NOT.

The holding is the holding, and the dicta are the dicta.

The holding is, paraphrased - The 2nd Amendment to the Constitution guarantees an individual right to keep and bear arms ("arms" as defined by U.S. v. Miller) in the home for self defense.

The next step is the thrust of a case through the judicial maze concerning a) incorporation, b) "bearing" arms outside the home, and c) what regulations are permitted pursuant to "compelling state interest". Additionally, the Court must elucidate the test regarding the "balance" of this right. Since it is a basic fundamental enumerated right, at bottom, the guarantor of liberty, the Court has no choice but to apply the "strict scrutiny" test.

We are OK. So far. And, we will be, absent any Lincolnesque rape of the Constitution.

But, you know what will ensue if that happens.

And, so do THEY.

Which, I guess, is the real point.

Johnny said...

Anonymous I could agree that what you say is correct in theory. I am talking about what happens in practice according to my observation.

I concede my research has been largely on British and Commonwealth Law and that the American Supreme Court system may work differently. However, I sincerely doubt that - I'm confident you'll ultimately realize it's yet another example of the difference between theory and practice.

If theory did indeed translate directly into the material world we wouldn't need engineers - or lawyers.

Anonymous said...

Anonymous said...

Johnny -

You insist that dicta defines holdings. Well, yes, and NO.


Yes. This.