The Washington post published a fascinating article about the many 2nd Amendment cases lining up for the Supreme Court.
A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court.
They’ve been on a losing streak in the lower courts.
Please leave a comment.
Heller-McDonald were an incredibly hollow victory.
ReplyDeleteFirst off, the decision is incredibly narrow as I point out. It is far more favourable to those who want to regulate gun ownership than those who want to see firearms deregulated.
DC did not become Vermont, but went back to its pre-1976 law with some updates for pistol ownership. Some victory.
The problem with the "individual right" interpretation is that it is pure bullshit. It neglects not only the "prefaratory clause", but the Militia clauses of the US Constitution.
As such, it does not stand legal and historic scrutiny.
Alas, I don't see reason taking hold anytime soon since the "individual right" interpretation gets more press than the Civic right.
Three years is a relatively short amount of time for cases to move forward. The split between 2-3 circuits now exist. SCOTUS doesn't have to take a case but I think it likely sooner rather than later. We should see clarification from the courts within the next 2 years.
ReplyDeleteThe problem with the "individual right" interpretation is that it is pure bullshit. It neglects not only the "prefaratory clause", but the Militia clauses of the US Constitution.
Not to be overly snark about the losing opinion but you ought to stop bringing up old arguments that have been settled. They remind me of Justice Holmes and his dissenting opinion with regards to Gitlow v. New York. Your side keeps insisting its right while everyone else has moved on to the next stage. So while I appreciate the history, you need new valid arguments
Maybe you should donate some time to the VPC as they need your arguments to keep 'winning.'
DC did not become Vermont, but went back to its pre-1976 law with some updates for pistol ownership. Some victory.
I'm sure you're aware Palmer v DC has been reassigned due to a year long stall. Really there are a host of cases to point out on the move. Reading the briefs are interesting if you've got some time. Your side is finally getting the hint and not rehashing void arguments. They've lately been a little smarter with a few decent points.
Not snarky at all, You are obviously unaware of Justice Stevens' dissenting opinion in Heller.
ReplyDeleteAs I said, further scrutiny of the individual right interpretation will prove it is legally and historically false.
You are obviously unaware of Justice Stevens' dissenting opinion in Heller.
ReplyDeleteActually I did read the dissents as it was Steven's last bit of writing before retirement. Breyers read like a long list of rambling comments and questions. Steven's dissent was coherent but seemed to repeat much of what had already been put to rest in Heller. It really ignored the rebirth of the Constitution once the 14th was ratified. Relying on Cruikshank, Presser or Miller was a mistake in my opinion. He would have been better off politely recognizing (Heller) but making the distinction that the 2A is a right best left regulated in keeping with state and local wishes (under rational basis). As you must know, just about anything can be justified under 'rational basis' for the 'public good.' Might have pulled Kennedy into the fold since unlike 1st amendment freedoms, there is inherent risk of injury with 2A.
With regards to the Alito's majority opinion, I wasn't too happy with the methodology used for incorporation. Was surprised with Scalia who generally is a slave to precedent and hates due process. I thought it a travesty that Slaughterhouse wasn't overturned (Thomas). A reinvigorated P&I clause would potentially have been a powerful tool for gay rights (gay marriage) among a host of other items. As you know, cases in law often build from the tools of precedent. Had McDonald reinvigorated the P&I clause of the 14th, going from A to D would already have had B and/or C in place. It would be less of a leap than say using the tools of due process. Shame the left couldn't have seen the forest through the trees and joined Thomas on that one.
I do agree with you that McDonald is only the opening to what will take a long time to hash out. I remind advocates on both sides that poor policy might just be Constitutional in the same way good public policy might end up being unconstitutional. One side will not win all of it; in the end some balance will be reached.
Put to rest in Heller?
ReplyDeleteReally? I believe Heller stirred up the pot from what had been a 70 year settled view that the Second Amendment related to the Federal Powers under article I, Section 8, clause 16--in particular congress's power to ARM the militia.
Do you deny that this power exists?
It won't take much time for the Second Amendment to hash out that it has been subject to serious revisionism and pseudoscholarship.
The problem is that the pseudoscholars have been like good magicians and directing people's attention to the wrong place while they deceive them.
"Section 8, clause 16--in particular congress's power to ARM the militia.
ReplyDeleteDo you deny that this power exists?
I don't deny the power exists. Congress still has the power to arm the militia; now the military or national guard if you will. Always has. But that's separate from the freedoms protected under the Bill of Rights added later.
Anyway, this whole notion of 'collective rights,' as in just arming the militia runs contrary to the thinking of the framers. Its an idea that they couldn’t even fathom. They based their ideas of governance via Locke. Under Locke, rights were only about individuals. There's a credibility gap your not bridging as far as I can see.
There are some rather decent arguments being moved forward on the gun control side. Perhaps you might consider reading some of those briefs. Some make rather compelling arguments.
Frankly, if the strategy is simply to rely on the Article I, Miller etc, I don't see many wins on finding a rational balance point.
Your hope may just end up being eternal.
Three years is not a lot of time. Let's see what happens when some of these many cases are looked at by the Supremes.
ReplyDeleteMeantime, you pro-gun guys better pray for the health of those 5.
Meantime, you pro-gun guys better pray for the health of those 5.
ReplyDeleteThat seems to be pretty much what it comes down to with you guys. Hard to change direction once 3-4 more cases are rolled out. Ever try and stop dominos once they gather speed? I'm still waiting for a number of bad cases to be overturned. Some from the 19th century. The courts generally limit previous precedent; rarely are they overturned as the potential for an avalanche of new cases is great.
Ginsburg seems to be the next probable Justice to retire. While I expect the President to handily win in the next election, its certainly too early to predict the Senate and Congress. Senate confirmation of an anti might not be as easy as you hope.
Anonymous said...
ReplyDelete"Meantime, you pro-gun guys better pray for the health of those 5.
That seems to be pretty much what it comes down to with you guys. Hard to change direction once 3-4 more cases are rolled out. Ever try and stop dominos once they gather speed? I'm still waiting for a number of bad cases to be overturned. Some from the 19th century. The courts generally limit previous precedent; rarely are they overturned as the potential for an avalanche of new cases is great."
I think you are forgetting all of the decades of case wins in favor of slavery, then later segregation, which were subsequently overturned.
While Roe v. Wade looks to endure; good outcome, quesionable arrival to the decision, but enduring.
Then, Anon wrote:
"Ginsburg seems to be the next probable Justice to retire. While I expect the President to handily win in the next election, its certainly too early to predict the Senate and Congress. Senate confirmation of an anti might not be as easy as you hope."
I'm betting that Ginzburg holds on without retiring until at least the results of the next election are in.
As to the races in the congressional elections generally, and the senate specifically, you seem to drastically underestimate the buyer's remorse over the elections of conservatives last time around. The disapproval of Congress is unusually high, but the disapproval of the Right by the electorate is markedly stronger than for the center and left.
I fully expect the same problems which are promoting the current far-from-mainstream right wing candidates for the presidential nomination to be popular will similarly afflict the candidates for other branches of government, both state and federal.
The right dug themselves into a pretty deep hole with their culture war agenda in Congress and their fiscal and economic failures since winning in 2010. While their hope appears to be to sink Obama, it is more likely they will sink themselves - and (pardon the pun) rightly so. They are a massive and decisive 'fail', on all counts.
As the lunatic fringe affiliations of the 'top tier' become better known, like the groups which were behind Rick Perry's stupid 'Response' prayer lunacy - wisely rejected by every other governor, and so far as I can tell, every other member of Congress and the Senate, his candidacy will tank.
I just don't see a majority of the mainstream, not even Republicans believing stupid stuff like, the statue of liberty is an idol, or Oprah Winfrey is the whore of Babylon (some of Perry's buddies also claim that about Roman Catholicism), or that gays were responsible for the holocaust, or
that gays and/or abortion were responsible for the 9/11 tragedies, or who advocate for insurrection and the overthrow of the government. I think my persona favorite for horrendous statement was that all immigrants should be required to renounce their religion of choice and become Christians as a condition of becoming U.S. citizens (or even legal immigrants).
Perry, Bachmann, and the other candidates, have actively supported and sought the support of a ripe old bunch of crazies, ugly hateful people who say outrageous things. Those things make great sound bytes for campaign ads.
The right has gone right off the deep end; they can't win, won't win - but won't nominate anyone who isn't etreme crazy right wing nuts either.
There is a very comprehensive list, regretably long, here:
http://penigma.blogspot.com/2011/08/2012-elections-hate-and-extremism-of.html
The problem is that Heller-McDonald was throwing a bone to the Koch Brothers, not the gun lobby.
ReplyDeleteIn case you are really ignorant, Anon, the people who bankrolled Heller-McDonald was not the Gun Lobby, but the Cato Institute who really aren't terribly interested in "gun rights".
Or the Constitution for that matter.
Scalia and Alito already have gone too far out on a limb with this novel interpretation of the Second Amendment.
Add in that it is incredibly limited in its scope. In case you missed it or are too stupid to have figured out what happened–here is the Heller-McDonald language:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, 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 and qualifications on the commercial sale of arms. Heller at 54-5
Which has as a footnote (26):
We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
Better yet:
But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64
From McDonald:
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.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “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.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40
The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?