re: "the Roberts Court has fallen in love with a new constitutional right"

This point of view completely obliterates an amusing, if shaky analysis of the court's purpose in this case. The right of the people to keep and bear arms is as old as the constitution itself. The writer's lack of knowledge of this very basic fact destroys all credibility.

Actually, the right of the people to keep and bear arms is as old as the bill of rights itself; the constitution is a little bit older. It's a tiny little distinction, but then tiny little distinctions are what keeps the Supreme Court occupied.

So if you want to complain about lack of knowledge of very basic facts, make sure you get them straight yourself.

nick591, you're wrong too. The right to keep and bear arms, like the rights to free speech, religion, etc. all predate the Constitution. The Constitution and the Bill of Rights merely codify and guarantee them.

I agree that to say that the judges found a new right in the constitution is to be dishonest. But that is Lithwick for you. I wonder if she has British heritage, because only Brits sneer in this fashion.

ckapsi-

I guess that sort of shows my point about plenty of nits to be picked...

I also agree with you about the fundamental rights predating the constitution. The problem being everyone having different ideas of what a fundamental right would be. I'm not a constitutional lawyer, but one once told me that effectively, if it's not in there, it isn't codified and guaranteed, and if it isn't codified and guaranteed, there's a case to be made that you don't got it. If I recall correctly from way back in school, that was a reason the bill of rights got put in in the first place, so they would be listed.

In any case, however this case turns out, there'll probably be some mighty displeased people on one side or the other.

Ah, no. You are sadly mistaken, geezer.

As Ms. Lithwick pointed out, there is not much precedent about how to interpret the 2nd Amendment. That pesky phrase about a "well-regulated militia," at the very least, legitimizes the question, "just what is the fundamental right here for non-militia citizens?" Contrary to your assertion, the Court has never answered that question.

We Court-watchers will be fascinated to see where the Court goes with this.

Right now I'm straining to anticipate what grounds they might use for striking down the DC law. I know they'd like to. But in the backs of their minds, as is always the case with lawyers, they're worried about the slippery slope. If they aren't careful, the next case will be about the right of citizens to mount machine guns on their pickup trucks.

Actually I think that if you pay the "excise tax" or get the "stamp" for a machine gun you can mount it where ever you want it.

Urgelt:

"just what is the fundamental right here for non-militia citizens?"

The militia includes all able-bodied men 17-45.

Urgelt:

As Ms. Lithwick pointed out, there is not much precedent about how to interpret the 2nd Amendment. Contrary to your assertion, the Court has never answered that question.

I think you are confusing the existence of a right with courts' decisions to apply, infringe, or ignore it.

Black people had an explicit consitutional right to vote in this country from 1865 to 1964. The fact that this right was ignored by courts and trampled on by state governments was an infringement of it, but that neither destroyed the de jure right nor rendered it any less valid. Nor was any "new right" created by the Civil Rights Act - the pre-existing right was recognized and enforced, the way Congress was supposed to have done a century earlier.

Urgelt:

That pesky phrase about a "well-regulated militia," at the very least, legitimizes the question, "just what is the fundamental right here for non-militia citizens?"

Since the militia is "the body of the people" and "consist[s] of now of the whole people, except a few public officers," I don't see how that question is relevant.

The more appropriate question would be whether exercise of the right is limited to weapons and practices that are of direct use in militia service, or to weapons and practices that are related in any way to militia service (as with Gura's argument that simply making the populace more generally familiar and proficient with firearms is so related), or whether the militia clause is an entirely distinct provision as Lithwick says Justice Kennedy indicated?

"That pesky phrase about a "well-regulated militia," at the very least, legitimizes the question, "just what is the fundamental right here for non-militia citizens?" "

It does nothing of the sort. Just because you have no idea what an ablative absolute is does not mean that your question is in any way legitimate. The phrase about a well regulated militia is in NO WAY a condition on the right, it is merely a justification. Just because the court MAY go somewhere else with their decision does not make them right either. The only difference between you and them is that their belief is binding. That does not mean that they are infallible gods who have never incorrectly read the constitution before.