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Conjecture: Heller was 5-4 meaning 5 justices said 2nd protects individual RKBA and 4 justices say [View All]

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jody Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Jun-27-08 02:07 PM
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Conjecture: Heller was 5-4 meaning 5 justices said 2nd protects individual RKBA and 4 justices say
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9th Amendment protects individual RKBA.

JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
The parallels between the Second Amendment and these state declarations, and the Second Amendments omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvanias 1776 Declaration of Rights announced that the people have a right to bear arms for the defence of themselves and the state, 1 Schwartz 266 (emphasis added); 43 of the Declaration assured that the inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed, id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed {t}hat the people have a right to bear arms for the defence of themselves and the State. Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendments preamble. It confirms that the Framers single-minded focus in crafting the constitutional guarantee to keep and bear arms was on military uses of firearms, which they viewed in the context of service in state militias.


By recognizing that PA and VT declared the individual right to keep and bear arms for self-defense, the 5-4 vote on Heller can be interpreted as 5 justices believe RKBA is protected by the enumerated Second Amendment and the other 4 justices believe RKBA is an un-enumerated right protected by the Ninth Amendment.

That is a logical conclusion because when the four justices accept the PA and VT constitutions and their declarations of rights, they also accept the first statements, e.g. PA (1776) "That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." and "That the people have a right to bear arms for the defence of themselves and the state;.

As an inalienable right, it is impossible for PA and VT citizens to have given away their individual RKBA when they ratified the Constitution or Bill of Rights.

Viewed that way, the Heller decision both majority and dissent agree that the Constitution requires government to protect individual RKBA either as an enumerated right with the Second Amendment or as an un-enumerated right covered by the Ninth Amendment.
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