The other Second Amendment shoe has been dropped by the Supreme Court. What does it mean for the future of gun control?
Two years ago, the Supreme Court, in District of Columbia v. Heller, struck down the District of Columbia's handgun ban and ruled, for the first time in our history, that the Second Amendment guarantees the right to have a gun in the home for self-defense. The Heller ruling, however, applied only to D.C. as a federal enclave and, impliedly, to Congress. Within hours of that ruling, a lawsuit was filed in Chicago challenging Chicago's similar handgun ban and raising the question whether the Heller right applies as a constraint on state and local gun laws through the Due Process Clause of the Fourteenth Amendment.
We now have the ruling that virtually all observers expected. In McDonald v. Chicago, the Court ruled the new Second Amendment right recognized in Heller applicable as a constraint on state and local gun laws. The 5-4 decision, sounding the death knell for Chicago's handgun ban, tracks precisely the vote in Heller. The McDonald dissents, filed by justices Stevens and Breyer, are brimming with renewed hostility toward the Heller ruling, including a fascinating discussion in the Breyer dissent of the blistering attack by professional historians on Heller's butchering of history in the name of "originalism."
Given that several states (and a few cities) have gun laws far stronger than federal law (which remains anemically weak, despite the Brady Law), does McDonald lay the groundwork for the unraveling of important state and local gun restrictions? If the gun lobby thinks so, it is likely to be sorely disappointed.
As an indicator of the real world implications of McDonald, the key passage in Justice Alito's opinion says this: "It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.'" Alito then reprises the remarkable language in Heller, offering assurances of the continued validity of several broad categories of gun laws (including laws regulating the sale of guns, laws banning guns in sensitive places, laws banning concealed weapons, among others) and adds: "We repeat those assurances here."
The Heller assurances have functioned to create "safe harbors" for the federal gun laws challenged in the wake of that decision. Time after time, the lower federal courts have upheld existing laws that arguably fit within, or are analogous to, the categories of "presumptively legal" gun laws cited in Heller. Now that the Court in McDonald has restated the importance of the Heller categories, they are likely to function as "safe harbors" for state and local gun laws as well.
Of course, there will be, as Justice Stevens predicts, an "avalanche" of legal challenges to gun laws in the wake of McDonald, some by the gun lobby, but most by criminal defendants seeking to overturn indictments and convictions for violating those laws. It is unfortunate that taxpayers will end up bearing the burden of defending against these challenges to entirely reasonable gun laws. Fortunately, however, McDonald provides no reason to believe that the laws themselves will be in jeopardy. Yes, there will be pitched courtroom battles in the states with the strongest gun laws, but with the lives of countless Americans at stake, they will be battles that must be fought.
So far, the oddest reaction to the McDonald decision is from the NRA's Wayne LaPierre. Far from the purely celebratory statements he made after Heller, yesterday LaPierre himself conceded that the "constitutional victory" in McDonald could end up eventually as a "practical defeat". Indeed, LaPierre has already put together his "enemies list" of those to blame for such a defeat, including "activist judges, defiant city councils, or cynical politicians." Is he preparing his membership for the disappointments to come, as all manner of state and local gun laws are upheld and elected officials are emboldened to enact even tougher laws?
LaPierre may also be contemplating the future of the gun debate now that handgun bans are "off the table," in the words of the Heller majority opinion. How long will the NRA's leadership be able to argue, with anything approaching a straight face, that the Second Amendment precludes gun regulations like background checks, limits on large-volume sales, safe storage requirements, assault weapon bans, owner licensing, and registration of gun sales, when both Heller and McDonald read like legal briefs for the constitutionality of those laws? And, more importantly, how long will the NRA's leadership be successful in using its legendary scare tactics to convince gun owners to oppose every gun regulation as a step down the "slippery slope" to a gun ban, when Heller and McDonald have taken gun bans "off the table"?
Viewing Heller and McDonald from LaPierre's vantage point, an old expression comes to mind: Be careful what you wish for. It could come true.
For more information, see Dennis Henigan's Lethal Logic: Exploding the Myths that Paralyze American Gun Policy (Potomac Books 2009)
1. Is the NRA opposed to most gun regulation?
2. If so, does the Alito ruling constitute a setback?
3. Is it now logical for the NRA to focus on legislation rather than litigation?
4. Can it be said the Court ended once and for all the debate over whether there is an unfettered right to keep and bear arms?
2. No.
3. Depends on how many states and locals try to circumvent the ruling.
4. Who's claiming 'unfettered'?
2. Did not Alito declare that gun ownership could be regulated? Does not the NRA oppose "most" gun regulation?
3. The ruling doesn't need to be circumvented for lower levels of government to impose regulation.
4. Apparently, not you. Others describe the Second Amendment as preventing the "infringement" on the right to keep and bear arms. It appears the SCOTUS majority ruling allows for infringement.
thirdpower: Care to provide evidence for this latest claim?
jackbutler5555: I didn't make the statement. But I wouldn't sell the NRA short. The organization has done a good job selling its agenda. I can't name an organization which has done as well. They have supplied their supporters with meaty talking points. Their defensive tactics of the RKBA are quite detailed and intricate. In some states and Congressional Districts, you can't get elected if the NRA opposes you.
2) No. It's a big, big win politically, and in the hearts and minds of the American people. The collective model of the Second Amendment, which had never found favor with the mass of the people anyway, has been formally rejected. It is the individsual rights model which will now be taught in high school civics and undergraduate Con Law.
3) The NRA has never focused on litigation. It shall continue to advance gun rights as it always has, principally through the First Amendment rights of speech, press, assembly and petition.
4) The NRA has never taken such a position and does not do so now. Of course the subject matter of the Second Amendment is subject to reasonhable regulation, as is that of the First Amendment. The Justice Scalia's opinion of the Court in Heller, noe the law of the land, spells this out. Just as speech is regulated by laws on slander, obscenity and sedition, the RKBA is similarly regulated by various laws on who may be excluded from possessing weapons. The cases become important when anti-gun authorities attempt to ban guns in the guise of regulation..
"On some variants, probably.
Seems to me, JT, you have two options: You can say you were wrong for whatever reason you wish: ignorance, dishonesty, brain tumor. Or you can continue to pretend that its next to impossible to convert semi-autos and I'll keep swatting that back at you.
Your choice. I know neither option is particularly attractive but you wanted to play."
So obtuse and unintentionally funny it brought tears to my eyes when I read it. Lynn/Jade/Guy is the Gecko45 of the con-control movement. He has moved beyond mortal status to become legendary.
Not necessarily.
We may be talking about a 'con' who likes to think he controls other 'cons'.
"On some variants, probably."
Jade, on no variant of any firearm on our planet, will filing down the firing-pin do anything but render the gun inoperable. But please, feel free to offer linked (to something other than the VPC) evidence to the contrary.
Therein lies the method to Jade's madness. He is hoping to convince many owners of semi-auto rifles to shave down the firing pin, and thus render their 'asssault weapons', inoperable.
Ain't he slick?
The Second Amendment doesn't exactly read that way, does it? The wording of "Congress shall pass no law" was used by the framers to communicate prohibiting speech.
They could have written the Second Amendment the way I wrote it it. But they didn't. And therein lies the problem for those who oppose restriction on gun ownership.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
The framers were pithy. They didn't waste words.
So, if they wanted to communicate an unfettered right to keep and bear arms, they wouldn't have needed the introductory clause.
You obviously have been debating this a while. It's nice to discuss this with someone as prepared as you are.
But I'm still stuck on the reason for the introductory clause. You've provided me with the background, which I appreciate. But what is the function of mentioning militia, if all they wanted to do is confer an "uninfringed" right -- unless they really wanted to limit that right in some way?
Even the pro-gun majority of the Supreme Court state they wish to limit that right, do they not?
Isn't the debate today really about to what extent the right to keep and bear arms can be regulated -- with one side saying not much regulation and the other side saying we need more? If that's the case, then infringement -- or regulation -- is what the preponderance of legal scholars must support, do they not? If so, it would then be just a question of degree.
Even more important than the law is the social impact of these rulings. The 2nd now takes its rightful place along with other enshrined rights of the constitution where it belongs. That means that children will HAVE to be taught in school that gun ownership is so important that it is a fundamental right of our country. Liberal teachers are going to choke on that!!!!! But what can they say?
Liberals will no longer be able to assert that the individual right is imaginary, and that guns are an anachronism of the past clung to by rednecks and gun nuts.
Legitimacy! Your biggest enemy.
While I may agree with you, I do not see that happening. None of the anti-gunners on this blog seem to have gotten past the 'collective right' thing, so I don't see teachers getting past it. I think the best we can hope for is for teachers to stop treating and discussing guns as a sentient being, posessed by evil, and stop having kids supended for even uttering the word 'gun'.
However, somebody better start teaching firearms safety in the schools, for damned shure.
Selling guns makes money. Nobody cares about the people getting killed. Did anyone in America care that we killed 100,000+ Iraqis over WMD's that didn't exist? It doesn't even make the news.
I saw nothing but baseless assertions.
He actually believes a "practical gun ban" will pass Constitutional muster.
Poor poor Dennis.
You guys were on the wrong side on this one. Time to move on with your life and get used to your countrymen excersising their rights.
I got a head-start in the early 1990s. I decided years ago that unilateral disarmament seems noble and pure, but that it is a losing proposition for liberals and the left, and that given the rise of hateful anti-liberal, anti-secular rhetoric, I wasn't going to let any wingnut have too much advantage over me.
Now, I don't care as much about left or right as commitment to the preservation of representative civil society and pluralism, the rule of law, and community cooperation. Being an armed citizen does not undermine those principles, but rather can be in the service of them.
Another issue is intimidation. If I get into a verbal dispute with an armed person, I may be intimidated, even if the person does not threaten. There may be nothing to be done about this. Of course, if the armed person makes any threatening gesture, for example, putting his hand on the pistol grip in a threatening way (it has happened to me), that may well be considered assault under current law.
They are refutable. You just don't like the fact that the correlations are being made by paid advocacy groups using incomparable and selectively chosen data.
Chicago’s Proposed New Gun Ordinance: Only 1 handgun allowed , Gun Registry, Ban on Gun Stores
Keep tilting at windmills. And:
She said that limiting Chicago residents to one handgun would pass constitutional muster. Nowhere has the court determined that “a person is entitled to more than one handgun,” she said. “And one handgun is sufficient for self defense.”
Grasping at the straws. And this pretty much guarantees McDonald part 2.
http://www.saysuncle.com/2010/06/30/chicago-post-mcdonald/
... and to establish certain other conditions on gun ownership."
... and to establish certain other conditions on gun ownership." "
Care to provide a source for that quote?
Be very specific, I'll check it out.
What part of it do you think you can fool me about? More importantly, what part of it do you think I don't KNOW about?
Go ahead. Grill me.Maybe there's something that escaped me.
Well it's been 2 years and counting since Heller. Tell me Henigan, what new laws has the Brady Bunch been able to get passed? What victories can they claim as a result of the "practical defeat"?
In reality their attempt to call this and the Heller case a practical defeat is just an attempt to hide what it really is, an actual defeat for Henigan and his gun banning ilk.
It's like Henigan said in his article. Now what will be the rallying cry for the NRA?
What Henigan doesn't understand is that there is still plenty of issues that the NRA can fight for. Registration is a big one. I'm sure there will be others that pop up as time goes on like taxes and restrictions.
Give it to Barney Fife.
He needs it. I don't. I've squeezed my index finger -- on a trigger, no less -- and guess what?
It ain't that manly.