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	<title>Washington Hotlist &#187; public policy</title>
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		<title>Heller Opens the Door For Extra-Judicial Authority?</title>
		<link>http://www.washingtonhotlist.com/heller-opens-the-door-for-extra-judicial-authority/</link>
		<comments>http://www.washingtonhotlist.com/heller-opens-the-door-for-extra-judicial-authority/#comments</comments>
		<pubDate>Fri, 27 Jun 2008 17:15:51 +0000</pubDate>
		<dc:creator>Aaron Brazell</dc:creator>
				<category><![CDATA[Civil Liberties]]></category>
		<category><![CDATA[Second Amendment]]></category>
		<category><![CDATA[U.S. Constitution]]></category>
		<category><![CDATA[U.S. Supreme Court]]></category>
		<category><![CDATA[constitution]]></category>
		<category><![CDATA[district of columbia v. heller]]></category>
		<category><![CDATA[guns]]></category>
		<category><![CDATA[public policy]]></category>

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		<description><![CDATA[<p>Yesterday, the Second Amendment was preserved. At least it was somewhat preserved. The Supreme Court decided in District of Columbia v. Heller (PDF) that it was the right of individuals to &#8220;keep and bear arms&#8221; individually. SCOTUS had never decided on this aspect of the Second Amendment and I think it&#8217;s safe to say that [...]]]></description>
			<content:encoded><![CDATA[<p>Yesterday, the Second Amendment was preserved. At least it was somewhat preserved. The Supreme Court decided in <em>District of Columbia v. Heller</em> (<a href="http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf">PDF</a>) that it was the right of individuals to &#8220;keep and bear arms&#8221; individually. SCOTUS had never decided on this aspect of the Second Amendment and I think it&#8217;s safe to say that precedent was set.</p>
<p>Adam Liptak at <a href="http://www.nytimes.com/2008/06/27/washington/27guns.html?_r=1&amp;hp=&amp;adxnnl=1&amp;oref=slogin&amp;adxnnlx=1214585992-u2IFsyymU/q1C4YtpjjU7Q">New York Times</a> indicates that potential lawsuits will follow challenging gun laws in other cities but notes the caveat that the Court decided on a law in the District of Columbia making the decision applicable to federal law only and not necessarily state and local law.</p>
<p>What is interesting to me about the decision is not the gun aspect of this law. Somewhat of a pragmatic realist and a natural cynic, I see the decision (which I commend) as fraught with the possibility of other problems.</p>
<blockquote><p>We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many <em>amici</em> who believe that prohibition of handgun ownership is a solution.  The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see <em>supra</em>, at 54â€“55, and n. 26.  But the enshrinement of constitutional rights necessarily takes certain policy choices off the table.  These include the absolute prohibition of handguns held and used for self-defense in the home.  Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.  That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.</p></blockquote>
<p>The decision, in essence says that no public policy may supersede that which is established in Constitutional law, a thesis that is somewhat vague. And therein lies our problem. By setting this precedent, we have to ask, &#8220;Hasn&#8217;t this always been the case? Haven&#8217;t we relied on the courts to tell us if a law passed by the legislature and signed by the executive branch was Constitutional or not? What is the Court saying here?&#8221;</p>
<p>My feeling is that this decision sets up extra-Constitutional authority to the Judiciary to <em>also</em> have to sign a bill into law. Congress passes. Thee Court rubber-stamps. The President signs.</p>
<p>This is not what our forefathers had in mind when they established a system of checks and balances.</p>
<p>Some might think I&#8217;m smoking crack. I just generally believe that where there is smoke, there is fire.</p>
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