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Misunderstanding Heller


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Many make the claim that Heller only protects possession of handguns within the home. However, this is an erroneous reading of Heller's main holding:

 

Held:

1. The Second Amendment protects an individual right to possess a

firearm unconnected with service in a militia, and to use that arm for

traditionally lawful purposes, such as self-defense within the home.

Pp. 2–53.

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Was it McDonald that said "most notably in the home" or was it Heller? Neither one of them, from what I've read on my own, ever excluded anything outside the home.

 

The main holding in McDonald was that Heller applies to the States in addition to the Federal Govt. So Heller's holding binds IL and Chicago.

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I believe that Heller truly only answers the question of possession of a firearm, and does not discuss transportation or carrying of that firearm. The question asked in that case was “possession within a home” and that was the question answered. I have hope that the S.C. will take a case to rule on carrying of a firearm, but that was not the intent of Heller, IMO. Heller doesn’t exclude anything outside the home, but doesn’t rule on that use either.
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The phrase "...such as self-defence within the home" certainly does answer the queston posed, but in my very humble opinion if they meant that to apply only to the home they would have used tighter wording. At the very least I believe they said this Second Amendment right is much broader than the question at hand and, even if we don't define all "traditionally lawful purposes" here, possession in the home is but one example.

 

Just my two cents.

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David,

Are you saying that the key phrase in that commentary from SCOTUS is "such as"?

 

 

"such as self-defense within the home" is simply an example of a "traditionally lawful purpose", not a limiting factor. Anybody that reads it any other way certainly didn't have Mrs. Meehan for freshman English and sit through a semester of her "sentence diagramming and parsing" classes.

 

It could just as easily been written like so:

 

Held:

1. The Second Amendment protects an individual right to possess a

firearm unconnected with service in a militia, and to use that arm for

traditionally lawful purposes. One example of that type of use would be

self-defense within the home.

But, it wasn't, so we'll live with what we got!!

 

UAB

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It is clearly worded not to preclude a much more expansive view, but what it actually said was pretty limited, despite substantial hints of more to come.

 

 

 

 

Unless one makes the argument that "traditionally lawful purposes"does not include self-defense the holding is much broader than just possession or within the home.

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It is clearly worded not to preclude a much more expansive view, but what it actually said was pretty limited, despite substantial hints of more to come.

 

 

 

 

Unless one makes the argument that "traditionally lawful purposes"does not include self-defense the holding is much broader than just possession or within the home.

 

I am inclined to agree that self defense is indeed a traditionally lawful use of arms, but the decision never spoke to self defense outside of one's home directly, but it left a lot of hints about it and all of those hints point that way.

 

I always found it interesting that they chose to use the phrase "traditionally lawful purposes". That is a pretty expansive thing. One might argue that all kinds of things are protected by the second amendment based on this. Things like:

 

hunting

shooting

collecting

gun smithing

ammunition manufacturing

 

The list could go on a long way.

 

I would love to see hunting become a protected right just to aggravate the PETA types even though I do not hunt.

 

One might be able to make a very convincing argument that machine gun ownership was traditionally lawful until fairly recently, and there was actually some moderately favorable commentary in the Heller decision that spoke to this point.

 

One might even make a very solid argument that "castle doctrine" and "stand your ground" might well be covered as well.

 

I would also point out that it was traditionally lawful to carry firearms within 1000 foot of a school.

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I am inclined to agree that self defense is indeed a traditionally lawful use of arms, but the decision never spoke to self defense outside of one's home directly, but it left a lot of hints about it and all of those hints point that way.

 

c. Meaning of the Operative Clause.

Putting all of these textual elements together, we find that they guarantee

the individual right to possess and carry weapons in case of confrontation.

 

That is direct, much more than a hint. The phrase "carry weapons in case of confrontation" can only mean outside of the home. "Possess" refers to inside the home. Those are the ordinary and obvious meanings of the words.

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I am inclined to agree that self defense is indeed a traditionally lawful use of arms, but the decision never spoke to self defense outside of one's home directly, but it left a lot of hints about it and all of those hints point that way.

 

c. Meaning of the Operative Clause.

Putting all of these textual elements together, we find that they guarantee

the individual right to possess and carry weapons in case of confrontation.

 

That is direct, much more than a hint. The phrase "carry weapons in case of confrontation" can only mean outside of the home. "Possess" refers to inside the home. Those are the ordinary and obvious meanings of the words.

 

Not part of the holding though.

 

We will get there eventually.

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It is well established that the holdings of a Supreme Court decision reach "not only the

result but also those portions of the opinion necessary to that result." Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 67 (1996). Thus, a statement that "explains the court's rationale . . . is part

of the holding." United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998). The operative

consideration is whether the statement "could have been deleted without seriously impairing the

analytical foundations of the holding." Sarnoff v. Am. Home Prods. Corp., 798 F.2d 1075, 1084

(7th Cir. 1986). The Court's conclusion that the right to "bear Arms" is the right to "carry

weapons in case of confrontation" was essential to its resolution of Heller – and accordingly, it is

part of Heller's holding.

Might as well just let an attorney explain it. In this case two - Attorneys Jensen and Sigale quoted from today's motion in Moore.

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With conceal carry in most of the states at the time of the decision I would think it does cover more then then home. I bear my firearms when outside the home, which is what the 2A says. I don't have to retreat to the home to bear.
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