Bush v. Gore Meets the Second Amendment

There are some striking similarities between the Heller decision and Bush v. Gore. In both cases, the Court articulates a "new" right to be recognized by the Courts: a right to bear arms in Heller and a right to have votes tabulated equally in Bush v. Gore. Yet in both decisions, the Court makes clear that this right is not likely to be something that results in the invalidation of many laws -- or perhaps even any laws other than the ones directly at issue in the case.

In Bush v. Gore, the Court warned that nothing in the opinion was meant to call into question the many difficult, technical issues of vote tabulation and the many different laws on the books for how to count votes. As a result, the opinion was severely criticized by many for being like a railroad ticket good for this train only. Indeed, in the wake of Bush v. Gore, the equal vote tabulation principle has all but died. As law professor Rick Hasen has shown in an excellent article forthcoming in the Stanford Law Journal, the Court has not cited Bush v. Gore since the decision came down and the lower courts have refused to closely scrutinize vote tabulation laws, even when those laws effectively give excess voting power to some individuals.

In Heller, the majority says that the decision is not meant "to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Sounds like the Court is once again trying to avoid the obvious implications of its broad statement of the right to bear arms. Indeed, the Court does not provide any more indication of what laws might be undermined by the newly recognized right other than to say that a handgun ban and a dissembled long gun requirement are invalid. Don't be surprised if the lower courts refuse to invalidate many other gun laws, citing the quoted statement above. If so, Heller would be the high-water mark for the individual right to bear arms -- and we'll be writing articles years from now about the birth and sudden death of a strong Second Amendment right to bear arms.

Comments

[laocoon]

Bush v Gore I believe states in the majority opinion that it has no precedential value. Whenever an appellate court says that I translate "we are not following the law and we know it" That is one of the main things that keeps an appellate court honest. If we do it in this case we allow a lower court to use it again later. Exactly the way the law is supposed to be built.

[JoshSN]

By US law, every adult male under 60(?() is already in the militia.

[heavyrunner]

Gore v Bush was decided including the votes of judges appointed by Bush's father. Neither you nor I could count on that. If a judge appointed by your father was hearing a case where you were one of the parties they would have to recuse themselves.

Nearly every judge appointed by a Republican President since Reagan took office is a right wing idealogue and should be impeached for being part of a criminal conspiracy to subvert the Constitution and rightfully enacted laws of the United States.

The Republican Party should be disbanded using the RICO laws that were instituted to reign in organized crime. The Republican Party is nothing more than a crime syndicate.

George W. Bush should be prosecuted for 1st degree murder.

[abluevoice]

I hope you are right.

[BinBaldwin]

Florida Courts had no legal right to dismiss the Florida legislature decisions

[BinBaldwin]

Gore should have asked for ALL the Votes to be recounted as Sec of State Harris requsted., He took her to court . Gore was Dishonest.

[OkieMon]

the one state law that the SC conveniently deemed constitutional was the fla law requiring validation of all the votes in too short a time to count all the votes.

[zann]

People ought to have training before getting guns. Safety, maintenance, aim, and social perspective. Since the 2nd ammendment says militia, they ought to have militia training too. In case we're invaded by the British, or space aliens.

[torrrep]

Actually most states require safety training. I don't have a problem with that. How can we have militia training when we're not allowed to carry our guns in public?

[smokepole]

The fact is that the 2nd has been seen as an individual right for a long time and that view has not been challenged until the last 30 years. Most of the evidence does point to an individual right. English common law, state constitutions, state supreme courts, and most writings at the time all thought it was a individual right, while militia use was a secondary benefit. Militias were to be comprised of able-bodied males aged 18-40, why then was it legal for women to purchase and carry a gun if she could not vote let alone not serve in a militia? The last 30 years has seen enormous erosion attacks on the 2nd Amendment which makes attacks on the other amendments pale in comparison. For a pre-existing right and a natural right for self defense that should not be infringed, has undergone much infringement that would not be tolerated for the rest of the Bill of Rights.

[markie1111]

ralph nader, see what you have wrought.

[sufi66]

There were many other third party candidates on the ballot in Florida. Let's blame them too. In fact, let's blame half the voters in the USA who twice put Bush into the presidency. And, while we are at it, let's blame all those who voted for Reagan twice and Bush 1. How about the people who don't read about the issues or chose not to vote at all---almost 50% of the country?

Nader is a symptom of our disease, not the disease itself.

[sufi66]

"Originalist" interpretation is an illusion. It is an excuse, bought almost completely by the media, to bully the unwilling. The surprise is that the authoritarians of the right felt a need to justify (via a bogus theory) their abuse of power. They don't really have the courage of their convictions; they need to hide behind the skirts of pseudo-theory.

[NoMoFearNoMoHate]

the Founders would crap, piss an puke themselves silly... and probably LTAO at the utter ridiculousness that we are worried what they thought more than 200 years ago about how to govern ourselves. THIS is the decline of America. When we stop using our good sense and judgment to govern ourselves after 200 years of being a reasonably free people it is obvious that this experiment in democracy, capitalism and freedom has been a complete and total failure.

[mlambert890]

Complete and total failure eh? And yet here you sit, posting your negative opinion from an amazing accomplishment of technology (the computer) onto an even more amazing accomplishment (the internet) from a place that I will assume is nice and comfy cozy (I doubt you took a pause from fighting starvation and disease to make your post)

So really... At the end of the day... How full of crap are you? Or do you now want to make the lunatic fantasy argument that we would have all of this and EVEN BETTER if the USA just had never existed? Such idiocy. Why cant people just learn how to be critical AND thoughtful without spiraling off the edge into hyperbolic insanity?

[meanguy]

pseudo-theory, my arse...the framers clearly spelled out that the right to keep and bear arms is an individual right-it's only the collectivists on the far left who lack the ability to understand that.

[contrariandy]

An honest Originalist interpretation would unanimously have found that the 2nd amendment established the right of states to have their own armories and militia. HIstory tells us that state armories were what the argument leading to the 2nd was about. An honest Originalist interpretation would not have invented a new "individual right" based on the 2nd Amendment. Originalist, myass! This was another Extreme Court political decision by activist, ideologue judges, not a historically-based decision. They could have found some support for individual gun rights in the Constitution on the basis on privacy rights along with a woman's right to choose.

[babylonandon]

The thing you fail to grasp about the whole "militia" thing is that the Founders understood from personal experience that under certain circumstances it becomes necessary for a large order of like minded-individuals to come together in the face of governmental oppression, arm themselves for war, and kill said government.

They assumed that this body of like-minded person's would naturally come to dominate one or more state governments and those states would have the right to avail themselves of rebelling against the central oppressive government.

That was how this country was founded and why they were adamant about insuring that everyone that wished to do so has a gun with which to fight with. The implied threat of civil war was supposed to keep the governmnet honest (balance of powers - people verses gov't).

They never assumed both that the Federal government would so dominate the states nor that people as a whole would become so truly disinterested in politics. We've become ignorant sheeple and that is why all of these problems have come to pass.

[cowboyjerkface]

How do you know this? Are you saying that you and you alone are more qualified to determine what was on the minds of our fore fathers than anyone else?

[flanardiente]

I'm liberal enough to have voted for Benjamin Spock once, and Scalia's "brilliance" is one of the great myths of our time, but I have to say I agree with the ruling. Prohibitions do not work. If they did, marijuana would be as hard to find as yellowcake. Plus, Americans have historically loved their guns and they're not about to give them up. As far as being our defense against a tyrannical government, though, look how well that worked out at Wounded Knee, Ruby Ridge, Waco. As far as the gun nuts of the NRA go, they remind me of the anti-abortion crowd that screams for fetal rights but loses all interest once the child is born. How do we keep guns out of the hands of criminals and crazies? It would be nice to hear from some responsible gun-owners on this.

[sufi66]

But if a prohibition saves a life somewhere then it's worth trying. It's hard to prove a negative, but we do know the human cost of unlimited gun ownership. Ask Jim Brady, former right winger and Reagan lover. One never imagines a tragedy happening to a loved one, but an ounce of prevention may lessen the odds. It's better than doing nothing, I would argue.

[meanguy]

if you have the courage of your convictions, then the framers provided a remedy...it's called 'amending the constitution...

[djkrlsn]

Are prohibitions worth it if they cost more lives than they save--in states that have shall issue concealed carry--crime goes down, if guns are banned , violence goes up

[Bladernr1001]

DC has one of the highest crime rates and murder rates in the nation. The gun ban was a complete failure. Scalia and the majority made the right call. And no, they did not make anything up. Most anyone you ask to read the 2nd amendment interpretes that the citizens ahve a right to bear arms. This is not rocket science.

[MsLiz]

Most anyone you ask to read the 2nd Amendment doesn't have a clue about how jurisprudence works. If you don't understand, try to define the phrase "actual malice" as it relates to defamation cases.

Good lawyers and judges are the rocket scientists of their profession. Scalia is GED level. He is no more qualified to make law than he is to build a rocket.

[gcalknet]

Justice Scalia would be the first to point out to you that he is not on SCOTUS to make law, but to interpret it. Sadly, over the last 70 years, the liberals have twisted the Constitution into a pretzel, in an attempt to win in court, that they have been unable to achieve by voting. The problem is we continually have attempts to turn political arguments into legal ones. Roe v. Wade, Dred Scott, Miranda, etc., are all examples of judicial legislation, and none are appropiate for court decision. The Florida Supreme Court violated a specific constitutional provision, and SCOTUS had to step in, as it was appropiate. Sadly, it was necessary to resort to "equal protection' to achieve the correct result. And the citizens of Louisiana have a right to execute child rapists.

[susangg]

The second amendment is not "new." It is over 200 years old. It is written in language that could not be clearer, and it applies to individuals just as much as the 4th or the 5th or the 6th amendments do. That is what the Supreme Court held. The only thing that is "new," is that, inexplicably, the Supreme Court has never before ruled on this issue. Now they have.
I rarely agree with Scalia about anything, but he got this one right. The Washington DC handgun ban could not stand because, being a "ban" rather than a reasonable "regulation," it conflicted with a constitutional right specifically enshrined in the Bill of Rights. As the decision states, DC is free to adopt reasonable regulations on gun ownership, such as background checks, waiting periods, etc. that do not "regulate" gun ownership so stringently as to make it impossible for citizens to exercise their 2nd amendment rights. What that is will have to be resolved on a case by case basis.

[MsLiz]

"It is written in language that could not be clearer, and it applies to individuals"

That is a ludicrous statement. You overlook the number of different viewpoints expressed in amicus briefs submitted to the Supreme Court. Non-lawyers just don't have a clue about how the law works, and over-simplify it.

A well written decision would reduce the need to decide each possible law on a case by case basis.

[susangg]

Oh really? "Non-lawyer," huh? Well, Ms. brain trust: I practiced law for 32 years. In real courtrooms, with real juries and real clients, criminal defense, civil rights litigation, whistleblower litigation, etc.
Yes, I am aware that there are "different viewpoints." They are simply wrong. The 2nd amendment applies to citizens. Get over it. The supreme court has spoken. And what they said left plenty of room for reasonable regulation of gun purchase and ownership.
I am one Democrat who believes that the sooner the Democratic Party establishment acknowledges the 2nd amendment, the better of we'll all be. After all, Democrats have no trouble with the other nine ,whereas Republicans love the 2nd amendment, but do not seem to think much of the rest of the Bill of Rights..which is why I'm a Democrat.
Separate and apart from the 2nd amendment issue: I just don't believe that the public is "safer" when law abiding citizens are disarmed. And it may be a truism, but its a true one: When owning a gun is a crime, only criminals will own guns. Does that make you feel safer? The "research" supporting gun control has holes you can drive a truck through. Its just not persuasive.
It would also help if more Democrats read the history of the gun control movement. It originally was begun for the specific purpose of making sure newly freed African Americans were disarmed. Its roots are in racism.

[Leatherhelmet]

A new right? You mean like granting habeas corpus to terrorists?

[CyrusBeaucephus]

So you actually have some proof that they are terrorists!! WOW!! Stop the presses--the troll has an important announcement to make---

[StinkyPete]

Actually you mean 'detainees'. their status as 'enemy combatants" or even 'terrorists' remains undetermined.

[torrrep]

And we have the right as provided by the Geneva Conventions to hold these detainees until after the fighting stops.