S. Ct. Cert Grant re 2d Amdt Incorporation Issue

[Nelson Lund]

The /Presser/ holding is obviously not dicta. The courts would not have 
a particularly hard time distinguishing between an armed military parade 
and carrying a weapon for personal self defense. In any event, the 
/Heller/ opinion says nothing to suggest that they are 
indistinguishable. So I continue to disagree with the proposition that 
"Scalia seemed to go out of his way to limit the effective right in 
Heller to the privacy of one's home."

Nelson Lund


Miller, Darrell (mille2di) wrote:
>
> I don't know about that.  Here is a quote from Justice Scalia in Heller:
>
>  
>
> */Presser v. Illinois,/ 
> <http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1886180071> 
> 116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886) 
> <http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1886180071>**, 
> held that the right to keep and bear arms was not violated by a law 
> that forbade "bodies of men to associate together as military 
> organizations, or to drill or parade with arms in cities and towns 
> unless authorized by law."  **/Id.,/ 
> <http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1886180071> 
> at 264-265, 6 S.Ct. 580. 
> <http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=708&FindType=Y&SerialNum=1886180071>** 
>   This does not refute the individual-rights interpretation of the 
> Amendment; no one supporting that interpretation has contended that 
> States may not ban such groups.*
>
>  
>
> You could say this is dicta as well, but it seems to suggest a court 
> wary about allowing the 2d Amendment to be used to authorize private 
> militia organizations.
>
>  
>
> The million dollar question, of course, is how to draw a 
> constitutional difference between a private militia organization, an 
> armed vigilance committee, an armed neighborhood watch patrol, a group 
> of inner-city youths walking home from school with guns, and a man out 
> for a stroll with his 2 armed friends.
>
>  
>
> Darrell
>
>  
>
>  
>
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Nelson Lund
> *Sent:* Friday, October 02, 2009 10:57 AM
> *To:* Sanford Levinson
> *Cc:* Rosenthal, Lawrence; conlawprof at lists.ucla.edu
> *Subject:* Re: S. Ct. Cert Grant re 2d Amdt Incorporation Issue
>
>  
>
> I don't believe this is correct. Although Scalia included some highly 
> questionable dicta about carrying concealed weapons in public, the 
> opinion is conspicuously silent as to whether there is a 
> constitutional right to carry weapons openly in public.
>
> Nelson Lund
>
> Sanford Levinson wrote:
>
> . . . Scalia seemed to go out of his way to limit the effective right in Heller to the privacy of one's home. . . .
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20091002/b767d851/attachment.htm>