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主题:【原创】美国宪法读书笔记 -- 唵啊吽

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家园 考古偶得,补充一下此案判决

上wiki查了一下,这个案子08年6月26日判了,高法的裁决是维护了联邦上诉法院的裁决,判哥伦比亚特区1975年枪支管制法违宪。

District of Columbia v. Heller

高法的判决依据是:

* that the operative clause of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed"—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny, based on the bare meaning of the words, the usage of "the people" elsewhere in the Constitution, and historical materials on the clause's original public meaning;

* that the prefatory clause, which announces a purpose of a "well regulated Militia, being necessary to the security of a free State", comports with the meaning of the operative clause and refers to a well-trained citizen militia, which "comprised all males physically capable of acting in concert for the common defense", as being necessary to the security of a free polity;

* that historical materials support this interpretation, including "analogous arms-bearing rights in state constitutions" at the time, the drafting history of the Second Amendment, and interpretation of the Second Amendment "by scholars, courts, and legislators" through the late nineteenth century; and

* that none of the Supreme Court's precedents forecloses the Court's interpretation, specifically United States v. Cruikshank (1875), Presser v. Illinois (1886), nor United States v. Miller (1939).

法庭意见由Scalia法官执笔,John G. Roberts Jr. 大法官和Anthony M. Kennedy, Clarence Thomas, Samuel A. Alito Jr.法官附议。

John Paul Stevens法官持异议,基于如下理由:

that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional.

最后他总结说:

"The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."

Stevens法官的反对意见有David Souter, Ruth Bader Ginsburg, 和Stephen Breyer法官附议。

wiki该页称此案是美国历史上高法首次作出关于第二修正案(持枪权)究竟是个人权利还是国民警卫队的集体权利的明确裁决,具有划时代意义。

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