Saturday, January 3, 2009

The New Second Amendment

The Huffington Post published an article about the results of the Supreme Court's decision last June.

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.

Is that right? How could this not be a major victory for the gun folks?

The article goes on to explain that since June, lower courts have upheld existing gun laws no fewer than 60 times. Felons still cannot own guns legally, nor can the mentally incompetent or the wife-beaters.

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.

According to Adam Winkler, author of the HuffPo piece, the reason none of these restrictions have been lifted is because Judge Scalia included the following statement in his decision.

"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."

So aside from allowing citizens of the District of Columbia to own guns for personal protection, like in many other places, has this ruling changed anything? Do law abiding gun owners want the restrictions relaxed that have always prevented felons from owning guns? Was it hoped that this ruling would trickle down to the lower courts and effect changes in the laws prohibiting guns in schools and government buildings?

What's your opinion?


  1. if you want a good analysis of gun rights victories, mike, the huffandpuff post is the last place you should go looking for it.

    (i'm not about to forgive that site for giving a soapbox to antivaccinationists, pseudoscientists and all manner of quacks. they're no friends of leftists, in my opinion. progressives in general end up tarred with the brush of anti-intellectual woo because of sites like the huffington post, and i dislike the smell of that tar.)

    felons and the insane still cannot own guns, no. but when did us gunnies ever want them to? Heller was not about overthrowing those bans; Gura argued at length and with eloquence for keeping them, and several more, when he spoke to the supreme court. Scalia preserved them explicitly when he wrote the majority opinion, and noone was surprised in the least to see those bans remain with us. pretending that overthrowing them was ever the goal is disingenuous and deceitful on the huffpo's behalf.

    what has changed is absolutely huge: outright bans are now recognized as unconstitutional. individual citizens with clean criminal records now must be allowed (on the federal level) to own firearms, and self-defense was specifically noted in the decision as a good enough reason to own guns. that did not use to be the case, before Heller. now it is, and it's looking like it will soon be incorporated against the states, too.

    the people did not, previously, use to have the legal right to keep arms. now they do. once this has been forced down mayor daley's throat too (so that no state can violate this right, either), we can go on to the meaning of "bear arms"; sometime in the next twenty or thirty years, i suspect that may mean nationwide shall-issue concealed carry. the practical obstacles to that are already mostly gone, which means it's legal low-hanging fruit. thing i'm becoming interested in is the means of incorporating the Heller decision against the states. Alan Gura is going down a seldom-used legal path in the suit against Chicago. the technicalities hinge on which bits of the fourteenth amendment to interpret how, and the risks in my opinion are huge. but if he succeeds, the gains for civil rights in general could be enormous; a long-standing legal doctrine that the bill of rights doesn't really apply to the states at all, only to the federal government, could be overturned.

    i would welcome that outcome, myself. how about you?

  2. Well according to my readings of the Heller Verdict there is a LOT of bad gun laws that can be repealed. This certainly doesn't touch things like Machine guns, and the standard list of prohibited persons (Tho I will argue one point with Nomen, is that all Felonies are not equal in my book. I'm fine with rapists, murderers, habitual drunk drivers, drug dealers, barroom brawlers, and other violent and anti-social types to be barred from owning guns, They've been convicted of due process to be a danger, and while I also think such people should be locked up or killed as taking guns away from them doesn't make them any safer to have around...logistically that's a nightmare, so I'll cave on the above. Now what about tax cheats, people who have committed purgery, somebody with one too many unpaid parking tickets, somebody with too many MP3 or Copyrighted movies on their iPod...hell it used to be a felony to own two or more sex toys in Texas (maybe Bob or Tom can chime in on that law...IIRC it was repealed in the late 90s...still there are people banned from owning guns for the rest of their lives because of a dildo!)...I think these non-violent, and dubiously anti-social people pose no more physical danger to you or myself than the general population at large, and I see the Felony angle to be a fun little loophole for gun bans. Make being born a felony, and gun ownership is no longer a problem to those who want total control over a population.)

    Still Machine guns and other NFA guns

    were described in the ruling as "Firearms not in common use", and this interpretation does use a heavy dose of circular logic. NFA firearms WERE in common use by the general population until they were heavily restricted 70+ years ago...then effectively banned from anything anybody could call "Common Use" 20+ years ago. According to the Heller Verdict, the passing of the National Firearms Act in 1934 was itself a violation of the US Constitution in itself, as it was onerous restrictions on firearms in common use.

    Still that's part of the war, but not part of this particular battle.

    Certainly Nomen is correct that once places like Chicago or San Francisco have their bans removed by a high-court verdict (Many of them are already backpedaling and removing the bans so a ruling can't be made) that should strike down ALL blanket gun bans...also it will be a good footing for attack against bans on traditional arms branded as "Assault Weapons" by people considerably LESS knowledgeable about firearms than even you, Mike. Or guns improperly branded as "Saturday Night Specials" (A term itself that is of controversial meaning) or "Junk Guns" (that are anything but).

    Also laws like my own state that require permits and expensive applications and classes just to EXERCISE our 2nd Amendment rights. And while the Judges did leave the issue of conceal carry up to the local governments, I'd say there is more than enough groundwork to go against bans of OPEN carry of firearms.

    Still that doesn't get us to the REAL bottom line. This is the scary one. The US Supreme Court has ruled that the District of Columbia's ban on handguns is Unconstitutional, it's "safe storage" laws are Unconstitutional, and its bans on "Firearms in Common Use" is Unconstitutional, and that extensive and expensive permitting simply to own a firearm for the purpose of exercising your 2nd Amendment rights.

    I had a nice tiff here with a DC resident who appears to be selectively illiterate.

    Pointing out that currently in DC you CANNOT own Semi-Auto firearms (That would include Dick Heller's Colt 1911 pistol, one of the most popular and common handgun patterns in this country, my preferred conceal carry gun, and my wife's preferred sporting shotgun, as well as the AR-15 rifle which is well on it's way to becoming the most popular rifle platform in the nation, and certainly in "Common Use" for personal defense, hunting, and sport shooting.

    I also went to great lengths to point out that to buy some of the CHEAPEST handguns on the market a DC resident would have to part with $500-$700, and that does NOT include ammo, range time, cleaning supplies, storage options, or accessories. Some of my mid-range defensive guns would cost a DC resident well over $1000 just to bring the gun home. (note I'm talking about equipment priced between $100, and $600 in neighboring Virginia, and in a City where poor neighborhoods are hit HARDEST by violent crime)

    And these is still enugh confusing laws about "Safe Storage" (BTW People you Gun-Proof your Children, as it is impossible to Child-Proof your guns...My Sister's husband is a hunter, my sister is a hoplophobe. She has decided that since her Husband's guns are unloaded and locked up, her 4 kids are perfectly safe. As if a kid can't hunt-down a key, or even pick as simple lock.

    But having an irrational fear of guns she doesn't want to discuss them with me...or with anybody else. I have been teaching the 4 rules of gun safety to their boys, as well as their Father who was an anti-second amendment hunter/gun owner, until I pointed out some of his logical fallacies.)

    So DC is STILL in direct violation of the US Constitution, and a deeply Anti-Gun President is about to take Office (note Obama hails from Chicago that has near identical ownership laws as DC, and while he *lied* spoke his support of the Heller ruling, he has PRAISED (see? LIED) Chicago's identical gun laws.

    If this was the late 18th Century Obama would likely be executed by firing squad for this it's nothing.

    That's the meat of the Heller Decision.

  3. Actually, it was a felony to sell sex toys as sex toys and not as "novelties". The devices also could not mimic the appearance of human anatomy. That was recently overturned.

    A federal appeals court has overturned a statute outlawing sex toy sales in Texas, one of the last states - all in the South - to retain such a ban.

    The 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by as many as two years in jail, violated the right to privacy guaranteed by the 14th Amendment.

    Companies that own Dreamer's and Le Rouge Boutique, which sell the devices in its Austin stores, and the retail distributor Adam & Eve sued in federal court in Austin in 2004 over the constitutionality of the law. They appealed after a federal judge dismissed the suit and said the Constitution did not protect their right to publicly promote such devices.

    In its decision Tuesday, the appeals court cited Lawrence and Garner v. Texas, the U.S. Supreme Court's 2003 opinion that struck down bans on consensual sex between same-sex couples.

    Notice that the court found a right to privacy were none wasn't clearly spelled out....but too many courts haven't been able to clearly determine what the 2nd amendment meant. That is why Heller was so important.

    I did some research and can not find the number of felony crimes in America. From what I've read, no one knows because laws are being made all the time. I do know it is a felony crime to import crab in the wrong type of bag (paper vs. plastic).

    I think that criminals convicted of violent felony crimes should be either in jail or have their rights restored...all of their rights. I know I'm on the fringe on this issue but to me it is very simple: If you can't trust a person with a weapon, they shouldn't be in society.
    Felons are allowed to drive a 2,000 pound weapon (a car) but not possess a firearm. That doesn't make sense to me.

    I think Heller is an interim step in that direction and keeping felons from possessing firearms until we can reform the justice system makes sense. But eventual we need to get serious about the consequences to violent crimes.

  4. Thanks for the Info, Bob, I knew you wouldn't disappoint me!

    I'm partially with you on the line that "People who can't be trusted with guns shouldn't be in public without a custodian" line, but I see the logistics of it as an impossibility (Kinda like my personal declaration that Abortion is's murder, but a legal declaration of that would be impossible to enforce, and would likely kill lots of young healthy women from unregulated surgery)

    I certainly think most murderers and rapists, as well as child molesters (with the exception of certain statutory rape HS Senior gets caught sleeping with a HS Freshman...sorry that's teenage hi-jinks, not rape!) should be forever locked up or executed. But what about Jonny the Barroom brawler. He has a history of getting liquored up and picking fights, and at least one of said fights has knocked out enough teeth to be a felony. I can't see such behavior to be punished the same as murder (tho if he does it every weekend for six months straight, maybe) but he's proven himself to be violent and Impulsive...that's the kind of guy who shouldn't own a gun.

    In the end I see the penal system as an example to show those who have yet to commit a crime an example of what their life will be like if they don't fly-right.

    You can't bring back a murder victim...but you can stop a murderer from killing again by execution, and I personally think a speedy and just execution system will likely add some fear of a murder conviction to the general population that doesn't currently exist.

    I know a few of you might agree with me, and I know Nomen and Mike completely disagree with me.

  5. Now, I've sat still when you guys hijacked the blog and turned it into the hottest place on the internet to get gun information, but if it starts turning into a "sex toys" discussion, I'm afraid I'll have to put my foot down.

    It's an interesting discussion about which felons should get their rights back. What about sex-offenders, not the high-school date rape guys but the hard core pedophiles? If they've done their time and survived that, they might need personal protection carrying around a label like that. What do you think?

  6. Mike,

    Should a convicted felon who has served his/her time be allowed to peaceably gather with others?

    Be allowed to have freedom of the press, speech?

    If a person has served their time, the consequences of their actions have been met. Does someone who committed a particular type of crime have less of a need for self defense?

    Punish their misuse of the firearm, not the mere possession. Punish their continued or renewed transgressions, don't leave them helpless.

    Also, remember how many people are wrongly convicted each year. Perhaps some of the 'convicted' felons are actually innocent; I think very few are actually innocent but there is the possibility.

    Again, if a person can't be trusted in public with a weapon, they shouldn't be in public.

  7. In the end I see the penal system as an example to show those who have yet to commit a crime an example of what their life will be like if they don't fly-right.

    that seems like a very dangerous way to look at it, weerd. if that's really the logic to use here, then shouldn't the penal system include torture as well, just to scare a few more folks straight?

    in reality, of course, we know torture doesn't work, even as a disincentive to crime. after all, we used to do just that, torture prisoners to keep criminals from committing crimes; the dark ages were still pestered with crime of all sorts. let's not go there again.

  8. Some Grist for the Mills

  9. Thanks, Weer'd. "84%" what was it?, "84% of the gun's confiscated in crimes belonged to career criminals." Does that mean the 16% was law abiding gun owners who crossed over to the Dark Side? That's even better than I thought. I know it couldn't be that famous fraction of one percent that you guys kept talking about.

    Please explain. I'm sure you can.

  10. More likely means 16% had a gun stolen from a break-in or a family member who went rogue.

  11. Mike,

    Couldn't resist this one from FoxNews.

    It appears that not everyone will stop committing crimes if a firearm isn't available, this woman certainly didn't stop.

    Woman Charged With Murder in Burning of Sleeping Husband

    Tuesday, January 06, 2009

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    ADELAIDE, Australia — An Australian woman accused of setting her husband's genitals on fire because she thought he was having an affair has been charged with murder.

    Prosecutors said 44-year-old Rajini Narayan confessed to neighbors that she set her husband on fire on Dec. 8, 2008, after she saw him hug another woman.

    She was initially charged with endangering life and arson but the charges were upgraded to murder after her 47-year-old husband, Satish Narayan, died from his injuries last week.

    Prosecutor Lucy Boord said Narayan told neighbors she was a "jealous wife" but she hadn't meant to kill him when she doused the sleeping man's genitals with an alcohol-based solvent and then set him on fire.

    Boord quoted Narayan allegedly saying: "I just wanted to burn his penis so it belongs to me and no one else. ... I didn't mean this to happen."

    The husband jumped out of bed and knocked over the bottle of alcohol, causing the fire to spread and resulting in $711,000 of damage to their town house and an adjacent property, the Adelaide Advertiser reported.

    Narayan was remanded in custody for psychological assessment and will reappear in court Friday. She has been charged with murder, arson and three counts of endangering life, as the couple's three children were at home during the incident.

    We need to ban flammable substances and lighters/matches -- It's for the Children.

  12. This comment has been removed by the author.

  13. Bob S. --good point. Ban those flammable substances!

    Was this couple Islamic, judging by their names? Why would I not be surprised? These news stories are prejudicing me!! tsk tsk

    But then there was Lorena Bobbitt. She was from Equador...

    January 6, 2009 6:42 PM

  14. The moral of Bob's story--do not hug another woman!