The New Second Amendment: A Bark Worse Than Its Right

In June, 2008, the U.S. Supreme Court issued a landmark ruling on the Second Amendment right to bear arms, D.C. v. Heller. For over 70 years, the federal courts had read that amendment to protect only a state's right to organize militias, like the National Guard. In a long-awaited victory for the gun rights movement, the Court reversed course and held that the Second Amendment protected an individual's right to own guns for personal self-defense.

So far, the victory hasn't turned out exactly as the gun rights folks had hoped.

As many legal scholars predicted, the Supeme Court's decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.

Since Heller, its Gun Control 60, Individual Right 0.

Before the Supreme Court's decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning.

About the only real change from Heller is that gun owners have to pay higher legal fees to find out they lose.

The basis for most of these lower court rulings upholding gun control is a paragraph near the end of the Supreme Court's decision that, at the time, seemed like a throwaway. The Supreme Court wrote that "nothing in our opinion should be taken 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 on the commercial sale of arms."

What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories.

"I would have preferred that that not have been there," says Robert Levy about this laundry list of Second Amendment exceptions. Levy, executive director of the CATO Institute, which funded the Heller litigation, believes that paragraph in Scalia's opinion "created more confusion than light."

But to a die-hard gun rights advocate, the problem is exactly the opposite: the paragraph shed too much light. It revealed that the Supreme Court believes that almost all gun control measures on the books today are perfectly lawful--a message that hasn't been lost on the lower courts.

Hardliners in the gun rights community cannot help but be disappointed with their long-awaited triumph.

Comments

[twogunmojo]

lets see...what did obama say.."i am not coming for your guns"...an­d what 2 major cities have had dramatic setbacks in their anti-gun stance...n­ola was forced to return all the guns they confiscated illegally during katrina...­and san francisco was forced to repeal its ban and pay all attorneys fees...and how many other cities are rushing to repeal or restructure their bans before they are sued...did you fail to mention these setbacks on purpose or was that a simple omission of the truth....

[PavePusher]

"what did obama say..'i am not coming for your guns'..."

And we all know that politicians never lie. Never, ever. "I did not have sex with that woman." Just the first whopper that springs to mind. "I am not a crook." I got hundreds..­.



"nola was forced to return all the guns they confiscated illegally during katrina...­"

Nope, only the ones they didn't hide or end up in the confiscators homes. Most of the remaining had rusted to unusable, unidentifiable junk, and most of the citizens have problems proving ownership due to having lost receipts, copies of wills, etc. (you know, "big storm"....­)


"and how many other cities are rushing to repeal or restructure their bans before they are sued"

As it should have been all along. I wonder if they could still be sued for damages by people who were not allowed means to protect themselves.

[nolabels]

Mission Accomplished!!!

[jackbutler5555]

The Founding Fathers knew how to write. The First Amendment says, Congress shall make no law.... The Second Amendment could have also said, Congress shall make no law. But it didn't, indicating the Founders didn't want to grant an all-encompassing right, as it wished to grant regarding freedom of expression, etc.

I personally think laws should permit gun ownership, but that's not what the Second Amendment says.

Nevertheless, it really isn't about what the writers of the Constitution wanted. It's about what the majority of the Supreme Court wants now.

[glockman]

You have grossly misread the Constitution to suit your needs. Sorry, but it doesn't work that way.

[mike102]

"The right of THE PEOPLE" to keep and bear arms shall not be infringed. I don't see anything about the right of the militia.

The RKBA already existed in this country (since 1607) when the Constitution was written. The militia is cited as the reason for providing a constitutional guarantee that this right will not be infringed upon.

Keeping that in mind, reread the 2nd Amendment. SCOTUS upheld 2A as written. Finally.

[berrycooda]

Doesn't the amendment state that you have a right to defend yourself.

we lock our doors...pu­t alarms in the house...an­d still aren't always safe when we get in
our cars (depending where we live) because of car-jackin­gs...robbe­ries...and drive by shootings.

How do we defend ourselves against these criminals who could care less if they have a right to
own a weapon or not because they steal one and don't register it anyway.

I don't think that amendment is referring to war. Thank God I have never been in a war
(just a few battlesat home) but if it comes to kill or being killed, I'm sure most people will shoot
if they have a chance to use a gun..

Sad to say, but this is not the safe world it used to be. And even sadder, if we all carried a gun,
it will soon be back to the days of the "old west" because there wouldn't be enough police to
keep up with all the hot-tempered and scared people who will use them.

It all comes down to common sense (which a lot of people don't have) so we need rules for the
right to bear arms so the animals won't go gunning for the people instead os the opposite.

[JudgeMoonbox]

"It all comes down to common sense (which a lot of people don't have) so we need rules for the
right to bear arms so the animals won't go gunning for the people instead os the opposite."

I have a question, berrycuda. In what percentage of gun crimes does the criminal have an unsuperable element of surprise? That is to say, how often would a targetted victim have time--let alone the aim--to draw a gun without being shot first?

Also, wouldn't the absolutist interpretation of the Second Amendment give the criminals the same right to purchase guns as law abiding citizens? I know the NRA dogma, "If guns are outlawed, only outlaws would have guns." Does berrycuda want to say the opposite is also true, that if someone's ability to get a gun is interfered with by the law, that means the person has no criminal intention? To say that is true is to say that incarceration and deterrence have no effect at least regarding gun laws; but why would that be true only of gun laws? I say there are people out there with bad intent, but who can't act on them because the gun laws, at least to a limited extent, work.

In that respect, berrycuda's talk of "common sense" is mere dismissiveness. He can't defend it, he just wants to deter us from asking.

[Vickster]

The people who have bad intentions buy their guns from the black market.

[benEzra]

We have rules. Strict ones.

Civilian (NFA Title 1) guns in the United States are limited to non-automatic, non-sound-­suppressed small arms under .51 caliber that meet certain barrel length and overall length requirements, plus larger-bore shotguns and some over-.50 hunting rifles allowed by waiver.

The use of firearms is very strictly constrained by laws pertaining to the use of force. A quick overview of the conditions under which you may lawfully defend yourself with a firearm may be found here:

http://journals.democraticunderground.com/benEzra/30

Scroll down to "Self Defense Law 101".

[glockman]

Although with a tax stamp and boat load of money, you can own class III weapons. I have an MP-A3 myself.

[texfly]

Actually, the Second Amendment right to bear arms is not to protect oneself from individuals, it is to protect oneself against an oppressive goverment.

[the addick]

Good thinking. Put a few(?) more gun felony criminals on the street to help you sleep easier. Sounds like NRA logic.

[mike102]

If you knew anything about the NRA, other than the anti NRA pablum that organizations like the Brady Campaign feed to everyone, you would know that the NRA, and almost all gun owners, have always called for more severe punushment for violent criminals.

In response, the typical anti-gun spokesperson will then start whining about "prison overcrowding", as if that's a more important issue than keeping violent offender off the street.

You want to blame violent crime on someone, blame it on a lax judiciary, and stop trying to pin it on inanimate objects.

[mtflyer]

A multitude of fascinating comments on this-some that are sensible and some that are nonsensical. The bottom line is clear-a minority of loudmouth irresponsible fools are making things harder for the rest of us who are law-abiding gunowners. The second amendment was designed for citizens to protect their homes and families not to embark on campaigns against their neighbors over race, religion, etc. The laws need to be tightened up on those who commit ANY acts of violence regardless of whether a gun was used or not. I believe the original law of "an eye for an eye..." serves best. To hell with locking up murderers, etc. at taxpayers expense and letting innocent people suffer because "there is no money to help them". Put the money where it will do the most good. I am a liberal in some respects, but NOT in this case. The gutless "do-gooders and whiners" to quote some right-wing sources have accomplished nothing by doing away with capital punishment and time at hard labor in many states. They have just put more law-abiding citizens at risk. Those of us at risk will dowhatever is necessary to protect family and home since the law enforcement agencies are in many cases not allowed to do their duty to serve and protect (even themselves).

[THINKB4USPEAK]

You're coming across as direct and articulate in this matter, and I can appreciate this. I think we see eye-to eye in this. The death sentence is not a deterent to murder? Well, it assures the killer will not be free to kill again after some political backroom deal for a commuted sentence or pardon, for obscure political purpose. Not saying that our "justice system" is perfect. Is it better that ten guilty men go free than one innocent man perish? That's a hard question, ain't it?

[JudgeMoonbox]

"The death sentence is not a deterent to murder? Well, it assures the killer will not be free to kill again ..." The question isn't whether the death penalty is A deterrent. The question is whether the death penalty is a necessary and sufficient net deterrent.

There are people out there who are less afraid of dying than they are of spending their remaining days behind bars. Is that number less than those who 1) are only deterred by the threat of execution, or 2) cannot be held outside of death row?

"...after some political backroom deal for a commuted sentence or pardon, for obscure political purpose."

What's so "obscure" or "political" about money and state's evidence? I don't have the statistics, but I'm certain that most of these deals you hear about involve either the prosecutors not having the resources to bring the case to trial, or the defendant being willing to testify against others. And by the way, these deals happen more often on "death eligible" cases because those trials are much more expensive what with all the expert testimony and having to summmon 3 times as many jurors.

[THINKB4USPEAK]

(1) The United States owes it's existence to firepower, first against the British, then against the out-gunned Native Americans, the French, Spanish, Mexicans, Japanese, Germans... Britain wasn't going to allow independence due to rude language or obscene gestures. Whatever the founding fathers verbal intentions were, they weren't worrried about getting bloody.
(2)Guns don't kill; people kill. I suspect most anti-gun individuals are afraid of the weapons. They should learn something before judging. Take a safety course and fire a round or two before deciding.I have met people who "don't like guns", and have never fired or even held one.
(3) It's better to have a gun and not need it than to need a gun and not have it. Like it or not, these are dangerous times. When gangbangers, career criminals and terrorist groups, foreign and domestic lay down their arms, I'll consider it.
(4) What's this BS - exemptions for "hunters"? So killing an unarmed animal for "sport" is OK, but defending yourself from human predators is not? When "hunters" level the field by using antlers for deer, clawed gloves for bear, I will call hunting a sport.

[omegis13]

Me personally, I still call hunting and fishing a way of putting food on the table. I put ownership and use of firearms in the same category as ownership and use of condoms. "I'd rather have one and not need it than need it and not have one".

[THINKB4USPEAK]

I mean no offense to those who hunt to eat. That's a survival tool as old as ... well, probably, life itself. I was refering to those who hunt for the kill alone, bragging about the challenge of taking out the vicious and sneaky doe at 100 yards with only a 30/30 and a scope. I myself have had and used guns since I was about eight years old.(It's a Tennessee thing.) My dad and uncles taught me to respect, but not fear, these powerful tools, and how to safely use them. As to condoms, I'd most rather need one and have it.

[musselmanm]

Would the right to bear arms include compound bows, cross bows, swords, machettes and land mines, handgrenades, flame throwers,spears, hammers, axes? Just wondering, will these be the new driveby weapons? Will women go back to the old coathanger version of abortion if Roe v Wade is overturned?

[Kahni]

Unfortunately, that would easily be one scenario. Fortunately, the farther-out gunners on these posts are probably just blowing off steam here because they cannot actually persuade those in actual control of the options.

[geaaronson]

The two premises are not incompatible.
Individuals have the right to bear arms.
The government has the right to restrict that right.
That is essentially what the Surpreme Court has ruled.
And believe it or not, it is the dual, seemingly contradictory dictums, that is the same situation for each of the constitutional rights enumerated in the US Constitution. That is why we have a Surpreme Court; to rule when there is a conflict in rights.
Does a convicted felon have the right to bear arms.
No.
Does a law abiding citizen have that right.
Yes.
Do I have freedom of speech.
Yes.
Do I have the right to malign another poster on this message thread.
No. That´s libel. Freedom of speech does not allow me to spread false claims against another´s character.
very simple folks from the NRA. Get it right.

[piperflyer]

Dear Adam,

Your article is a barrel of laughs.

[youngat80]

We have laws that control many things in everyday life. For example, we need a license to drive a car, the car itself must be licensed and in order to obtain those licenses we must show proof of insurance. The restaurant that serves our dinner is strictly controlled, including the temperature at which the meat is cooked.
So why all the fuss when intelligent, practical Americans want to control access to assault weapons that have only the ability to kill people?

[youngat80]

Sorry, in the last line I meant to use capacity instead of ability.

[THINKB4USPEAK]

Capacity depends on the size of the clip or magazine. Ability presupposes the ability of the weapon to act for itself. Perhaps you're thinking of "function".

[Ohio9]

So called "assault weapons" are just as good for self defense. The use of a gun depends on the intent and skill of the user, not the gun itself. Guns don't put curses on people that cause them to become criminals.

Anyway, we only license people to drive on public roads. You don't need a license to drive on your own property. Thus, you should just need a license to carry a gun in public (which 46 of the 48 CCW states already do require), not for keeping a gun in your own house.

So this issue is pretty much already resolved.

[benEzra]

"So why all the fuss when intelligent, practical Americans want to control access to assault weapons that have only the ability to kill people?"

I'm afraid you've been rather misled.

"Assault weapon" is gun-ban-lobby-speak for the most popular NON-automatic target rifles and defensive carbines in U.S. homes. It refers to small- and intermedia­te-caliber­, non-automatic civilian guns with modern styling, NOT military automatic weapons.

THAT is why you get pushback---because you are talking about outlawing the most popular rifles in America. Considerably more Americans lawfully own "assault weapons," as defined by H.R.1022, than hunt.

FWIW, as for the "can only kill people" business, only 3% of U.S. murders involve any type of rifle, despite their popularity. Twice as many Americans are murdered annually using shoes and bare hands as using all rifles put together, including so-called "assault weapons".

Don't take my word for it:

http://www.fbi.gov/ucr/cius2007/data/table_20.html
http://www.fbi.gov/ucr/cius2006/data/table_20.html
http://www.fbi.gov/ucr/05cius/data/table_20.html

Compare the "Rifles" column to the others. Rifles of any appearance are not a crime problem in the USA and never have been.

[Explorer]

"So why all the fuss when intelligent, practical Americans want to control access to assault weapons that have only the ability to kill people?"

Sounds like a line out of the Brady play book, but the bug is this phrase "assualt weapon" is a emotionally based phrase which has NO creditable background! The so-called assualt weapon ban Mr. Klinton railroaded thru attacked firearms which someone thought looked mean, and the net result, as proven in BATF reports, was the ban had NO impact on crime! Yet this same pot of smelly stuff is promoted by His Highness Obama as a miracle cure.
Senator Feinstein admitted she would violate the Constitution during an interview on 60Minutes by using troops to go door to door to illegally confinscate guns, yet few were concerned about the use of troops illegally against citizens. What is the next propsed use of troops against citizens?
Then the Senator got indignant when the industry made the exact changes she legislated! When was the last time a Senator got up set of folks following a law she pushed?
No, the issue is not reasonable controls, we have tons of those already; this issue is banning guns. Senator Schumer admitted the assualt weapon ban as the "camel's nose under the tent' when it past, Obama has openly supported bannign handguns..­..the list is long. This issue is private possession and the ability to defend oneself!

[glockman]

Because driving is not an inalienable right that is part of man's inherent freedom. Now, isn't that easy to understand?

[jsgaetano]

Just like their "victory" in getting GWB selected, the far right is finding out the SCOTUS pandering to them still can't change the fact that America is, at heart, a liberal country.

Reality must be a real bummer for them.

[benEzra]

Ummm...

REALITY is that gun ownership crosses the entire political spectrum.

http://i10.tinypic.com/6gxnsk7.jpg

I'm a centrist to center left independent (depending on whether you define "left" based primarily on economic or social issues) and a regular on Democratic Underground. This is my rifle:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=271x1177

Saying all Dems and indies are anti-gun is like saying all Dems and indies are atheists. Flatly untrue.

Some reading on the conservative roots of U.S. gun control, before the classist and racist effort to limit self-defense to wealthy, politically connected WASPS got painted as a "leftist" issue:

http://journals.democraticunderground.com/benEzra/2
http://journals.democraticunderground.com/benEzra/3

And yes, the Brady Campaign is run by repubs.

[nolabels]

Good points. I am a "crazy lefty" and I have to say that I love guns. I just think the rules regarding their ownership and use should be incredibly strict, especially in crowded urban areas.

[jsgaetano]

Nobody said being a Democrat was anti-gun. Get off your soapbox.

My point was that all these radical far right lunatics who wanted prisoners to own guns or w/e are, once again, disappointed in their own victories.­.. because reality itself is against them.

They thought their failed ideology and their golden boy GWB were going to usher in a guilded age... but all the Goopers are capable of serving up is a steaming pile of failure.

[FreelanceMinion]

Yeah, I have to say HA HA HA to the gun nuts. Heller essentially UPHELD RESTRICTIONS on guns, and only overturned wholesale prohibition of all private gun ownership. You can quibble about what you would have liked to have seen more or less of, but its the perfect example of what a Supreme Court decision should be--a smackdown of both extremes and a call to govern in compromise.

[Ohio9]

Dude, that's all the gun rights advocates expected the Heller case to do. The Heller case was about overturning D. C.'s hadngun ban and establishing once and for all that there is an indisputable individual right to bear arms. No other issue was involved. At the end of the case, both results were acheived.

In other words, it was a huge victory. There is no amount of spinning you can do to make it be something else. There is nothing more amusing than seeing someone trying to make the Heller case look like a triumph for gun control. You lost. Get over it! Or at least get past the denial phase.

[LiberalIncarnate]

You aren't very educated or well-informed are you?

The focus of this blog was on the last paragraph of the Supreme Court's Ruling, not what it did to D.C.'s city regulation. Don't you get that?

I am frankly neutral on guns. I could careless if conservatives want to shoot each other. By all means!

But, please, get a freaking education!

[Toonadude]

Has the Heller decision been interpreted to guarantee the right of high U.S. government officials to get drunk and shoot their quail hunting buddies without fear of being held accountable?

[bigbingtheory]

That would be left up to the States! Yee Haw!
;^}

[BlackJAC]

Weell, there's nothing in the Constitution that explicitly says they can't...

[Berettasskeeter]

Who would you be speaking of? Cheney? As the evidence showed, he wasn't drunk! He, and his hunting buddies, had had, as I recall, one or two drinks with lunch. A full-grown man is not drunk after two drinks. Further, the incident was proven not to be a felony, and a misdemeanor only if authorities chose to charge him, which they did not. Not all misdemeanors must be charged, as evidenced by the fact that not all speeders get ticketed, nor do jay-walkers, both of which can be classified as misdemeanors, if authorities choose to charge.
Your hatred overshadowed your ability to think before speaking!
Semper fi

[Toonadude]

Please post the results here of the blood alcohol or brethalyzer "evidence" from the "investiga­tion." I must have missed it.

[JuergenHartl]

A first thought:
The US is a country with the laxest gun laws in the civilized world.
The US is a country with the most homicides, and gun violations in the civilized world!
What do you make of this?

second thought:
What everybody REALLY forgets is : What time the founders wrote that amendment!
Is it not time to upgrade the constitution and all amendments? Constitution 2.0!

[HisXLNC]

Actually, I believe there are 3-4 other first world nations that have stricter gun laws than the US and have even more gun related homicides. I know Mexico is one of them.

[Vickster]

I've heard Romania is another one.

There are also countries with more liberal gun laws than the US who have very few gun-related homicides.

[JudgeMoonbox]

Would Mexico have so many gun crimes if US laws, particularly drug laws, weren't almost DESIGNED to be ineffective? Our "War on Drugs" puts far too much emphasis on busting dealers and far too little on getting addicts into treatment.

That has created a huge smuggling industry, and that industry has little to stop it from running guns on their return trips. It also imports the gangland territorialism that is responsible for so much of the current crime wave in Mexico--criminals who can't call the police on their predators turn to guns to enforce their territory.

[LiberalIncarnate]

Canada has pretty liberal gun laws, actually..­. and far fewer gun deaths. The problem is not the gun, but the culture. American culture is backward and paranoid.

[ANGEL53545]

NO, THERE IS PRICE FOR FREEDOM-EASY SOLVED EXECUTE ANYBODY WHO USES A GUN TO COMMIT A VIOLENT CRIME. WE STAY A CIVILIZED COUNTRY AND FREEDOMS PROTECTED.

[Explorer]

"The US is a country with the laxest gun laws in the civilized world.
The US is a country with the most homicides, and gun violations in the civilized world!"

Ya, and we don't have thought police - yet. Course hate speech laws are the first step.

Comparing our crime rates to other countries results in revealing facts such as Bagdad has a LOWER crime rate than Chicago!

Sorry, that bucket does not hold water (at least the open minded folks)

[studentoflaw]

wow, msn, you clearly have no conception of the legal system or how it works--the supreme court finding that executing the mentally ill is unconstitutional does, in fact, make executing the mentally ill illegal. same goes with any other constitutional ruling the supreme court comes to...there­'s a reason that anti-abortion activists have spent the past 30 years trying to overturn roe v. wade--because that ruling made it unconstitutional, and therefore illegal, for states to prohibit abortion wholesale. loving v. virginia made it illegal for states to criminalize interracial marriage. brown v. board of education likewise made segregation in public schools illegal. clearly, each of these decisions carried with them significant repercussions far past those for the individual parties involved.

[68Namvet]

How many of you "gun toters" have pointed a gun, pulled the trigger and killed a fellow human being? How many of you have looked into the haunting eyes of one of your victims? I have - thanks to Viet Nam. Nothing could ever induce me to go through that again. If you can kill somebody and feel no sorrow at what you have done - you're a truly sick bastard. And if you've killed and feel the sorrow I do - you'd understand the need never to own or use a gun again.

[youngat80]

Thank you for stating your perspective is such a forceful manner.
I wish those who are so adamantly opposed to gun control could accept that those of us who feel we need to keep assault weapons out of school zones are not 'crazies' or depriving anyone of their rights.

[Ohio9]

And I wish you could see that those of us who keep and carry firearms for self defense are not "crazies' and are not any threat to you. It's about choice. We are not forcing you to carry a gun. You should not forcibly try to prevent us from having one. Until you understand that, no progress will be made on this.

[Ohio9]

I hope I never have to go through the trauma of a self defense shooting, but I am prepared to do so. This is because it is better than being dead. If a shooting traumatizes you, you can get professional help for that. You can get no help from the grave.

[Kahni]

That also applies to the newspaper deliverer you shot because you panicked. There are far more accidental shooting deaths than self-defense ones (that is, court-proven self-defense; these days everyone claims self-defense).

[HisXLNC]

I reserve my sorrow for the innocent. I have no sorrow for criminals.

[omegis13]

I have personally been to the point of having to have drawn my firearm on another human being with my finger on trigger in defense of my life. A very, very upset drug dealing neighbor wanted me to have a conversation with his baseball bat. Thankfully for the both of us, he turned and ran when he saw that I was armed (it is a crime to shoot an attacker that is fleeing in my state). Had he continued his advance, I would not have hesitated in turning him into worm food, but I am very happy that I did not have to go down that road.

[glockman]

While I haven't killed anyone during the course of my duty, I have shot someone. And In all honesty, I was truly angry at the time the man didn't die. You see, he was trying to take me away from my family by shooting at me first. And at that point, I was the more important person in the equation. I felt no remorse or pity the man. I slept fine that day (it occurred during a midnight shift). And I know now I would do it again without hesitation.

What my sidearm afforded me that night was another night with my wife. And while I will never blame you for feeling the way you do, in fact, I'll thank you for your service and apologize for our country's behavior towards you, that is not the way many of us feel.