The Gun Issue Is Back in the Supreme Court: What Does It Mean?
It is no surprise that the Supreme Court has decided to hear the so far unsuccessful constitutional challenge to the Chicago handgun ban. The Court's ruling last year in District of Columbia v. Heller, discovering a new Second Amendment right to personal gun possession unrelated to militia service, determined that D.C., and by implication Congress, could not ban handguns consistent with the Second Amendment. However, because D.C. is a unique federal district, Heller did not address the so-called "incorporation issue" -- whether the Second Amendment applies to states and localities through the operation of the 14th Amendment. That issue is squarely presented in the Chicago case.
Now that the other Second Amendment shoe has dropped, what are the potential repercussions? It is hard to stay calm whenever this Supreme Court -- still with a conservative majority -- gets its hands on a gun case. But there may be less here than first meets the eye. Although the Chicago case involves interesting constitutional issues, even if Chicago loses, such a ruling is unlikely to prove a serious threat to state and local gun regulation across-the-board.
First, the Chicago case, like the D.C. case, involves a handgun ban. Even before Heller, only a handful of cities, and no states, had such laws on the books. After Heller, only two Illinois cities -- Chicago and Oak Park -- retain their handgun bans. Even if the Chicago law is struck down, such a ruling would not necessarily jeopardize strict gun regulation falling short of a handgun ban.
Second, the right declared in Heller is narrow in scope -- the right to have handguns in the home for self-defense. If the Supreme Court holds that the Second Amendment now applies to states and localities, only that narrow right will be extended. Of course, the pro-gun ideologues will try to convince the courts in other cases to expand the narrow Heller right. In fact, Alan Gura, the same lawyer who brought both the Heller and the Chicago cases, has filed a new lawsuit in D.C. challenging the City's restrictions on carrying guns outside the home. But the Chicago case itself will not establish a broader right.
Third, and most important, the Heller opinion itself erects an important bulwark against the successful use of the Second Amendment to strike down other state and local gun regulations. I am referring here to the extraordinary discussion by the Court of other gun laws not even at issue in the Heller case. The Court wrote, "Like most rights, the right secured by the Second Amendment is not unlimited." Indeed, said the Heller majority, "nothing in our opinion should be taken to cast doubt" on a wide range of gun control laws, which the Court said remain "presumptively lawful" even under the newly-declared right.
Those "presumptively lawful" categories under Heller include laws imposing conditions on the commercial sale of guns, bans on dangerous and unusual weapons, bans on carrying concealed weapons, laws forbidding firearms in sensitive places, laws to regulate gun storage to prevent accidents, laws prohibiting gun possession by felons and the mentally ill, etc. The Court even made it clear that these measures were listed "only as examples" and the list "does not purport to be exhaustive."
Sure enough, this Heller language has served to protect a remarkable variety of federal gun restrictions challenged since Heller, including bans on gun possession by felons, domestic violence misdemeanants, and persons under restraining orders, bans on sawed-off shotguns and machine guns, laws restricting guns in school zones, post offices, and other public property, and others. Even if the Heller right is extended to the states, the Supreme Court's own words in Heller are likely to be the death knell for challenges to gun laws that regulate guns, but do not ban guns commonly owned for self-defense.
There is no question that innocent Americans are losing their lives, and suffering debilitating injuries, on a daily basis because our nation has failed to enact strong and sensible gun laws. The problem, however, is not the Heller decision. Nor is it likely to be whatever the Supreme Court decides in the Chicago case.
The problem is not constitutional. It is political. Too many spineless politicians cower in fear of the gun lobby and shut their eyes and ears to the suffering in their own communities from the easy access to guns by dangerous people. On guns, it is our political leaders, not the Constitution, standing in the way of lifesaving reforms.
For more information, see Dennis Henigan's new book, Lethal Logic: Exploding the Myths that Paralyze American Gun Policy.
Gun Lobby and Government Tyranny
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"There is no question that innocent Americans are losing their lives, and suffering debilitating injuries, on a daily basis because our nation has failed to enact strong and sensible gun laws."
You are considering only alleged costs and not weighing them against benefits. See also evidence about the effectiveness of gun control, below.
"sensible gun laws"
Your favored policies do not become correct just because you arbitrarily assert that they are "sensible". Cite evidence that they provide a net benefit.
"Too many spineless politicians cower in fear of the gun lobby"
The usual attempt to assert that gun ownership is only supported by an extremist, minority special interest lobby, when it is actually supported by a large majority of americans:
http://www.gallup.com/poll/123596/In-U.S.-Record-Low-Support-Stricter-Gun-Laws.aspx
"There is all kinds of evidence that gun control works."
Not according to exhaustive reviews of the data by the National Academy of Sciences and the CDC:
http://www.amazon.com/Firearms-Violence-Committee-Law-Justice/dp/0309091241/ref=sr_1_1?ie=UTF8&s=books&qid=1254941527&sr=8-1
http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5214a2.htm
Read these and weep, then accept that other people have the right to behave in ways that you do not approve of, even though they live in the same country as you do.
Let us pray. And welcome TP.
Actually we are only measuring part of the costs. There are costs which cannot be accurately measured such as the effects on a family that loses a father or mother to gun violence. We can measure direct healthcare costs but we can't accurately ascertain the indirect economic costs in terms of lost productivity or increased security and the like.
OTOH, what are the benefits? I suppose one could make the argument that the gun industry provides jobs and there those who make a living promoting guns.
I'm unclear as to why TP keeps producing that gallup poll; remember, he is saying gun laws should be decreased. It seems his constituency remains mired in single digit land.
Additionally, TP doesn't cite the polls that show overwhelming support for gun registration and assault weapons laws--both of which I'm certain he objects to.
TP believes his cites say gun control doesn't work. To the contrary, they both assert that it must be studied more--again, this is something TP does not want.
And moldyrocks keeps forgetting the high costs of the complete civilian disarmament she demands
Sorry JadeGold. Just because you regularly try to hide yourself under numerous sockpuppets doesn't mean that everyone does.
Try again.
Sorry Jade. Try again.
How many people live in Chicago?
My posts sure do earn much response, considering that my opinions are wrong and irrelevant. I wonder why I get this near-obsessive responding. But if you really want to, you can follow me wherever I go, like ducks in a row. Not sure why you keep choosing that option, but it's up to you.
As someone who's not a lawyer, I don't pretend to understand all the issues Heller brought up, as I've often said before. As I play fair in my reading, I'll admit I read a Harvard Law Review article that said Stevens's reliance on previous decisions in his Heller dissent was inconsistent and not germane.
However, I don't remember anywhere in my last post saying anything about a collective right, yet a collective right post appears, seemingly in answer. Not quite sure what that has to do with the interesting point that Heller may well enable MORE gun control rather than less:
"The Court wrote, "Like most rights, the right secured by the Second Amendment is not unlimited." Indeed, said the Heller majority, "nothing in our opinion should be taken to cast doubt" on a wide range of gun control laws, which the Court said remain "presumptively lawful" even under the newly-declared right."
It's nice to know that even a one-vote, bitterly divisive, new-precedent-setting majority decision makes these points.
tell us professor...if the court rules against the plantiff how will that change the way the constitution of the state of tn. is applied in regard to ccw...or guns in bars.....
Usually the gun ban supporters use the collective right argument to try to get around the independent clause of the 2nd Amendment--"the right of the people to keep and bear arms shall not be infringed". The only way you will get to your goal of complete civilian disarmament is to repeal the 2nd amendment--the jurisprudence is not there to get to your goal by way of the courts
SewaneeLeftist wrote: "However, I don't remember anywhere in my last post saying anything about a collective right, yet a collective right post appears, seemingly in answer. "
If you do not know what the collective rights theory is, it is impossible to understand the debate concerning the 2nd amendment.
FYI, there are several varying arguments and theories which are asserted within the collective rights model. The can generally be described as follows:
1.) The "pure" collective right thesis. This theory asserts that 2nd is solely a right of the state which protects the state militia from federal hanky panky. This thesis was refuted by all 9 Justices in Heller and has been thereby relegated to the dustbin of legal history.
2.) The "sophisticated" collective rights thesis. Essentially what this thesis asserts is that the 2nd protects an individual right for a purely collective purpose and that the right is thus limited in scope to the intended purpose. Within this category there are three subcategories:
Continued....
"If you do not know what the collective rights theory is, it is impossible to understand the debate concerning the 2nd amendment. "
Nope.
The debate is far more nuanced than legalbeagle's bumpersticker analysis.
Continued....
(a) The "restricted sophisticated" collective rights thesis, which holds that only active members of the well regulated militia have such right and the right only applies to the actual weapon used by said active militia member in performance of their militia duties.
(b) The "modified restricted sophisticated" collective rights thesis which slightly expands subcategory (a) by including persons who intend to join the well regulated militia and covers arms they use to train for that purpose.
(c) The "expanded sophisticated" collective rights thesis which holds that it is an individual right of all individuals for the the sole purpose of providing protection for the well regulated militia. This thesis holds that the "keep" right is absolute and that all persons may "keep" weapons for the purpose of using same in the well regulated militia. They then assert that the "bear" right is exclusively military in nature and relates solely to using the weapon within the confines of a well regulated militia. Under this thesis, the DC handgun ban would be ruled unconstituional, but the provisions which required all firearms to be unloaded and disassembled within the home would not have been unconstituional.
Interesting argument, and I hope that he's right that the new, fabricated rules of Heller will actually lead to greater gun control. I didn't see how this could work, and just thought that Mr. Henigan was putting the best face on it, but it turns out that a number of legal scholars think this, too -- that out of a bad decision, some good laws that control guns can come. Oh, the irony.
Many other articles make the same point, but the one at the link Henigan gives is one of the most succinct:
"Heller is more likely to be accepted as legitimate precisely because Scalia’s opinion departed from the original meaning of the Second Amendment. Moreover, this celebrated landmark decision has had almost no effect on the constitutionality of gun control. To date, the federal courts have yet to invalidate a single gun control law for violating the Second Amendment right to bear arms, despite scores of cases. While some laws are sure to be invalidated in time, the new Second Amendment’s bark is far worse than its right. The greatest irony is that Heller’s logical flaws and inconsistencies improve the decision, making it more likely to endure and helping to cement a reasonable, not radical, right to bear arms."
In terms of laws violating the right to bear arms not being overturned--give it a couple of years--especially the first cases are working their way through the DC courts
If the Supreme Court decides McDonald v. Chicago in favor of the plaintiff, our country will be a bit different.
For a preview, see:
http://notionscapital.wordpress.com/2009/10/08/the-armed-american/
sorry--crime is worse in the areas that have the gun control/bans you support
Wrong.
There is all kinds of evidence that gun control works. Australia is a major shining irrefutable example of gun control working in dramatic fashion.
Mr Licht--is there a valid reason why you are still making the same outdated arguments that were presented and REJECTED in Heller?
I agree with the author. This will have no effect. It’s not worth getting worked up over. Move along.
I’m tired of playing this reactionary game where a statist control proponent makes an emotional appeal based on misdirection or anecdotal “evidence” and we spend time refuting their ridiculous claims with actual facts and logic.
Let me make this clear:
First, empirical evidence clearly demonstrates that gun control laws have no positive effect on violent crime and in many cases actually result in an increase in crime rates.
Second, even if gun control laws did reduce violent crime, the measure of safety gained would not be worth the measure of liberty and personal responsibility lost. The purpose of gun control has nothing to do with guns and everything to do with control.
Third, the Second Amendment to the Constitution is not a privilege granted to some certain people by the government, it is an affirmation of natural rights that exist outside of governmental control, just like the rights to free speech, to worship freely, to be free from unreasonable search and seizure and so on. Government did not grant the right and therefore cannot revoke it.
In other words, if you do not own a gun your liberty is threatened.
And the extension of this logic proves that guns threaten liberty by denying liberty to those that are less well armed.
TRue--too bad Henigan, Helmke, SL, Blackjac et al refuse to admit it
An armed society is a polite society, Part I:
http://www.boston.com/news/local/massachusetts/articles/2009/10/06/shooting_follows_neighbors_tiff_over_leaves/
"A Randolph man shot his neighbor in the stomach after the two quarreled about dumping leaves, police said.
Christopher Leonard pleaded not guilty yesterday to armed assault with intent to murder. The 38-year-old was released on $25,000 cash bail following his arraignment in Quincy District Court, according to a spokesman for Norfolk District Attorney William R. Keating.
Leonard and his neighbor, John Rota, were bickering about a property dispute at about 10 p.m. Friday, police said. Leonard allegedly told Rota he would like to dump leaves on Rota’s lawn, according to police."
When are you going to learn that anecdotes are not worth squat?
greenrocks--anecdotes don't prove anything
Hey, look! Jade's here with his "Anecdote of the Day!"
A sad story, Jade, proving exactly what?
Old SF MJT
So what you’re saying is that people to terrible things to each other, sometimes for tragically incomprehensible reasons?
Shocking.
Do you propose that if guns were gone, people would magically start being nice to each other? They weren’t nice to each other before guns were invented and they aren’t nice to each other in countries where only criminals have guns.
It’s interesting that all leftists bring to this debate are facile, emotional arguments and historically incorrect diversions. This discussion is supposed to be about the Constitutionality of applying federal gun laws to the states after the Supreme Court determined that the Second Amendment, like the other first eight amendments, is specifically intended to apply to individuals. The very idea that the government would have a right at all, let alone to enumerate it in the Bill of Rights is flat out preposterous. Every other individual right is incorporated and the right to bear arms will be shortly, too. In the extremely unlikely event that it is not, that means states’ rights exceed federal powers in this arena and they will have to give up NFA regulations, ’68 GCA, and ’86 FOPA. There is no good scenario for the Brady Bunch. They are truly backed into a corner and no matter how this is decided, they will lose.
The hundred thousand people shot each year are the losers.
the right to bear arms shall not be infringed
what is it about that statement that these people don,t understand
if you out law gun,s poison is going to make a real come back
I my self don,t like that Idea !!
we have had gun,s since gun,s were invented
people have been doing other people in since way be fore gun,s
Gun,s don,t hurt any one
IT IS PEOPLE WHO HURT OTHER PEOPLE
now if you take a look at our own history regarding law enforcement
you would be shock as I was to learn how things have changed in less then 100 years
murder was a max of 6 years when you were released you were given a sound horse and a good rifle
and sent on your way !! your so called debit to society was paid
the crime did not keep you from honest work in those days now it follows you for a life time making
it some time,s impossible to live an honest life
To gain some insight for the answer, get on line and talk to someone who fought in WW2 or in Poland during WW2, or a survivor of Hitlers extermination, ask them what commodity was in short supply during their fights with Germany. Ask the survivors of Hitlers deathcamps what commodity they wished they had that the Germans had. Ask any of the people from the countries that Hitler over-ran what commoditys were it short supply that caused their downfall....ask any US soldier involved in fighting at this present time what commoditys they rely on the most to protect them.
I believe that you will find the answer guns and most importantly, bulletts, ammo, rounds.....shells. If you look at what is being limited in American it is ammo, if ammo is limited or does not exist, then guns are useless, you will find that you are limited on the quantity of ammo that you can purchase over the counter and also note, there is a lot of fighting going on about gun rights, what about ammo rights. The goverment is the fox in the hen house....looking for the chickens.
Ammo is part of the firearm system so the RKBA extends to cover ammo as well.
This case is going to drive the so-called Originalists on the Court crazy. If they find the law invalide on the basis of finding that the second amendment applies to the states through the fourteenth amendment, they are essentially using the same logic as the court in Roe v. Wade. If they find that the law is valid, the tick off the far-right gun right crowd. I just love it!
Roe vs Wade was NOT decided on an 'originalist' basis.
A carefull reading of the Constitution and related American State Papers (the Federlist Papers etc) will reveal NO MENTION of a right to privacy (ergo a right to abortion).
The "right to privacy" was created out of whole cloth by an activist court.
The RIGHT TO KEEP AND BEAR ARMS however cannot be missed if one READS the Constitution.
It is an "originalist" idea. The ORIGINAL dead white guys that put it IN THE CONSTITION were Madison, Jefferson, etc., etc.
"If they find that the law is valid, the tick off the far-right gun right crowd."
It isn't just the far right they will tick off. Over 70% of the US believes that the Second affirms an individual right. A lot of the left own firearms and believe the right should be incorporated.
dnpvd51 I'm a Fan of dnpvd51 I'm a fan of this user 3 fans permalink
I happen to be a healthy male and I only fear some wimpy coward with a gun.
And I don't think a grizzly would want to mess with me if I had a good stick and I would have good chances against it with a baseball bat.
And I live in the city anyway and do not run into too many grizzlies....
-------------------------------------------------------------------------------------------------------------------------------
the aboriginals of america believed the bear was created to keep man in check....because simply put....a bear considers you food....and you would not have a chance against a 1500 pound kodiak...travelers to alaska are encouraged to enjoy the outdoors...fishing and hiking...but when a bear shows up you are advised to leave the area as quickly as possible lest you become lunch....look up "timothy treadwell"...i will wager you opinion of your chance with bears will change.....
So why does a healthy male need a gun to defend himself against other men?
And from my research on the internet, a baseball bat provides chances of defense against a bear. If it is coming at you and you land a blow square in the head that bear will most likely back off.
"So why does a healthy male need a gun to defend himself against other men?"
Because everyone's strength, speed, skill, etc are different. I am a healthy male, trained in CWC by the military, am a cop, and humble enough to realize that although I can 'take' most men, an MMA fighter is going to probably be able to do some serious damage to me, maybe even kill me, with his bare hands.
"And from my research on the internet, a baseball bat provides chances of defense against a bear. If it is coming at you and you land a blow square in the head that bear will most likely back off."
Please, do us a favor and stay in the city and just read about bears or visit them at the zoo. A person uses a bat against a bear only if they have nothing better to use. And they are not likely to deter anything but a curious bear. An angry bear will not be detered.
Firearms come in handy for self defense--especially if outnumbered, there are other people being protected, or the victim is smaller/weaker than the attacker or is disabled. Also, by your logic--why do LEOs have guns
Second Attempt:
Yeah, man! That ball bat thing worked out really well for the Petit family, too! Didn’t it?
You just go on with your bad-a$$ self there, hard-core!
Old SF MJT
I suggest the justices get rid of security at the court and defend themselves with their own sidearms.
I wonder how safe they would feel?
Hey I'll be the first to admit that if every place in the nation had the level of security that protects the Supreme Court, no one would need to carry a gun.
But that's not how it works in the real world. You can't expect every street corner and 7/11 to become a secure zone covered by alarms, checkpoints, and armed guards. Nor would that be particularly pleasant, unless your idea of an idea nation is akin to downtown Bagdad.
typo correction: "Ideal nation", not idea
Notwithstanding the fact that they'll do it every chance they get, no government has the right to make you the automatic loser if you're attacked by multiple assailants, a bigger/stronger/younger assailant, or any assailant with a weapon (when you have none).
It's a civil rights issue and it's good that it's finally being recognized as such.
Dear tyrannical politicians: I'm sorry for the jitters that armed citizens give you, but it's part of life in a country that alleges to be free.
'nuff said.
Do you really believe that your assailant will give you a chance to clear leather? If so, I've got a ski chalet in Egypt I'd like to sell you.
You'd be surprised. Action is faster tha reaction.
The fact that tens of thousands of people defend themselves with guns on a yearly basis seems to contradict that claim.
A firearm is the best tool for self defense in the world. That's reality. Live with it.
Yes, actually. A firearm is used by a private citizen to defend against a crime roughly two million times a year. The real world is not like a Hollywood movie where a man with a white hat stares, steely eyed down a dusty street at a man with a black hat. It may provide you mental comfort to think of a scenario in which a crazy gun nut has to “clear leather” before the bad guy gets him, but in the facts are, guns are used to defend people.
To Grizzly Adams below, I am truly impressed that you can fend off a grizzly with a “good stick,” but I am not capable of doing so. Further, I have a feeling that my wife, my mother, and my grandmother would be even less capable of using a stick against a bear, let alone a man with a gun. You see, guns have the ability to level the playing field when it comes to physical ability and they do not require physical strength to operate. It is good that you feel safe from bears. I wonder, though, how well that stick would fare against an assailant armed with a gun. Sticks are considered to be pretty short range weapons, after all.
In the end, a gun may is the only chance that the rest of us who are not ninjas have to defend themselves. If I fail, so be it, but at least I had a chance.
The anti gun crown is really an "anti self defense" group. They typically aren't inclined to, or capable of defending themselves from a violent attack so they seek to deny others the right and attempt to portray them as "gun nuts" or blood thirsty barbarians".
This past Sunday morning I went to the grocery store and was confronted by the woman who owned the liquor store three doors down who had run out while a gunman was robbing the store. She was on the phone to police while I stood between her and the entrance to the grocery store with my Glock .45 in my pocket. If the man had attempted to come down where we were I was prepared to stop him from coming into the grocery store and endangering people there. The police came and arrested the man and it all ended peacefully. Who in that store was not happy to have an armed citizen willing to prevent this guy from coming into the store or attacking someone in the parking lot?
Well said, that's what it is all about.
"The anti gun crown is really an "anti self defense" group. They typically aren't inclined to, or capable of defending themselves from a violent attack so they seek to deny others the right and attempt to portray them as "gun nuts" or blood thirsty barbarians".
That is so true, and the State of New Jersey is run by them. We can't even own pepper spray here.
It is not just self defense the Brady bunch has a problem with--it is the defense of innocent life
"The Court's ruling last year in District of Columbia v. Heller, discovering a new Second Amendment right to personal gun possession unrelated to militia service"
Road apples. That is a misrepresentation of judicial history.
"Although the Chicago case involves interesting constitutional issues, even if Chicago loses, such a ruling is unlikely to prove a serious threat to state and local gun regulation across-the-board. "
More or less correct since most state and local laws are not as extreme as Chicago's laws.
"Second, the right declared in Heller is narrow in scope -- the right to have handguns in the home for self-defense. "
Another misstatement. The right declared was broad. The application it was applied to was narrow.
As for ""presumptively lawful", that does not mean, as so many gun controllers want it to, that the laws in question will withstand judicial scrutiny. What it means is that the court was saying Heller does not automatically overturn these laws and that each law must be heard and evaluated on a case by case basis.
Well stated. It would be nice if there were a party which stood up for all of our constitutional rights, but both liberals and conservative want to pick and choose. The way it was stated in the original post is just a shade from trying to cry judicial activism. The two parties are truly bipartisan in their willingness to spin and fear monger in order to get what they want.
Go Third party. (l)ibertarian. They have a pretty large tent, ideologically speaking.
Poor Dennis. The Brady Bunch must have worked thru the 7 stages of loss, now they are at the resignation stage, but they are still pretending that losing in Heller (and next year in the Chicago case) that somehow the gun law environment hasn't (and won't) change.
I'd say citizens of DC and Chicago getting back their RIGHT to own guns is pretty significant.
Next up - cutting down the prohibitions on carrying them (note the 2A says to keep and BEAR arms) in DC, Chicago, and NY.
After that, ridiculous rules like FOID (Firearms Owners Identification Card - necessary in Ilinois in order to buy or OWN a gun). Question - anybody you know have to get a 'free speech card' before you can buy or publish a book or newspaper, or othewise exercise the RIGHT to free speech?
Yeah Dennis. Things aren't gonna change. We don't care if you insist on deceiving yourself.
I'm perfectly fine with the Brady Bunch thinking this won't change anything.
I think that the Brady Bunch is either misinformed or whistling Dixie
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