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View Full Version : Since Heller, its Gun Control: 60, Individual Right: 0


Big Don
January 22, 2009, 04:02 PM
Who among us thought the little "throwaway paragraph" would create so many problems? I'm willing to bet that a goodly number of the 60 cases really shouldn't have been brought in the first place but it still doesn't look good.

Adam Winkler
Professor at UCLA School of Law
Posted January 2, 2009 | 11:19 AM (EST)
http://www.huffingtonpost.com/adam-winkler/the-new-second-amendment_b_154783.html
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 Supreme 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.

Playboypenguin
January 22, 2009, 04:11 PM
Actually, it is turning out exactly the way many members of this forum predicted. Many of us cautioned against seeing Heller as some sort of absolute victory. The judgement clearly expressed that, even though it is an individual right, it is still subject to reasonable government restriction.

Many warned that trying to take this decision and run haphazard with it would result in more setbacks than victories.

All challenges to gun restrictions still need to be careful planned and thoughtfully examined before implementation. "We want to because we can" arguments will still result in more of a backlash than they will anything positive.

zukiphile
January 22, 2009, 04:19 PM
The courts have upheld every one of these laws.

I wouldn't have imagined after reading Heller that anyone should think it would require the right be extended to felons. I don't know personally anyone who argued that it would. I don't believe that showing Heller to have been cited by 60 random criminal defendants who then lost is evidence that heller itself is some sort of general disappointment.

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."

***

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 ...


The author over-reaches here. The paragraph reveals that the court reached none of those issues.

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

Does anyone concur with this author's conclusion? He seems to have tried terribly hard to manufacture a disappointment.

Socrates
January 22, 2009, 06:32 PM
I'd like to see where he got his cases, probably L.A.

Consider the source.

Isn't that a spoof website on news, making stuff up?

vranasaurus
January 22, 2009, 07:04 PM
The decision really didn't hash out what the standard will be when determining whether or not laws violate the second amendment.

That is yet to be determined.

Some issues yet to be decided:

Does it apply to the states? (As long as the right case come up this should be a win for us)

Is gun registration and gun owner licensing constitutional?

Is prohibiting misdemeanants from owning firearms consitutional?

What type of conditions can the state place on ownership of firearms? At what point does it become excessive or burdensome?

What constitutes a dangerous or unusual firearm that the government can ban?

Until several appelate courts weigh in these things really won't get decided.

Big Don
January 22, 2009, 07:05 PM
Socrates, I think you're thinking of the "Onion", which does an excellent job of spoofing the news.
Arianna Huffington started off as a supposed Conservative and then ran off of the rails, veering decidedly Left.

IZinterrogator
January 22, 2009, 09:29 PM
Arianna Huffington started off as a supposed Conservative and then ran off of the rails, veering decidedly Left. Remember, she was a California conservative. That's like being the skinny kid at fat camp; you're still fat, but not in comparison to your campmates. I should know, I grew up there. And I left as fast as I could.

JustDreadful
January 22, 2009, 10:38 PM
That's like being the skinny kid at fat camp; you're still fat, but not in comparison to your campmates. I should know, I grew up there.

But are you still fat?:)

raimius
January 23, 2009, 12:39 AM
How many of these 60 cases were meaningful defenses of the 2nd Amendment, rather than some guy grasping for straws to get out of a conviction?

B. Lahey
January 23, 2009, 12:54 AM
Garbage gets tossed everyday, it's meaningless.

As far as I know the new Gura (Heller's lawyer) case is still chugging along.

Bartholomew Roberts
January 23, 2009, 06:47 AM
First of all, the author has been selective in his choice of cases - for example, me says "60-0" but manages to omit the case where a federal law was overturned by a federal magistrate because the Second Amendment was a fundamental liberty interest? Of course lower courts see all kinds of BS attempts by guys who need to be in jail and are desperately trying to avoid that, so it doesn't surprise me that the majority of cases do not further the Second Amendment. The problem we have had in the past (i.e. Miller) is that criminals draw a lot more firearm related charges than good guys do and so loser cases often get to define a lot of the law. Rather than being a detriment, that throwaway clause is serving the important purpose of letting lower court justices flush those cases. Notice that many of the important Second Amendment cases - Nordyke, Chicago, Heller 2 etc. are chugging right along.

He also takes these lower court decisions in the wake of Heller and then uses these to decide what the Supreme Court was saying in Heller? I wonder how that analysis would look in the wake of say... Brown v. Board of Education? I'm guessing the Professor would be rightly disgusted with that analysis in that scenario because then the bias would be obvious.

Randy Barrett actually did a nice law review article on just this subject recently (see the post here titled "Scholarly Analysis of Heller") To me this looks more like an attempt to influence lower courts than a scholarly piece.

Mike Irwin
January 23, 2009, 07:05 AM
Notice also that several municipalities, most notably Morton's Grove (or Morton Grove), which banned handguns nearly 30 years ago, abandoned its no handguns in town stance when faced with potential Heller lawsuits.

I belive Williamette has done the same.

TEDDY
January 23, 2009, 04:34 PM
Just what cases was he refering to and in what time.a 1850s case could be one or a jim crow gun ban or the 1939 case.there hasnot been 60 cases since heller,but a number of cities have lost like SF.and chicago is going to lose.and look where hes from UCLA.:rolleyes: :confused: :eek: :D

Tom Servo
January 23, 2009, 09:50 PM
I'd also be curious to see what 60 cases the author mentions.

The lack of significant forward progress doesn't alarm me in the least. It'll take time for the ripples to travel in the pond, and setting precedent will be an ongoing process.

The biggest thing is that Heller happened before the current administration took office. Gun control is no longer the slam-dunk that it was in 1993; anything this administration tries to pass will be weighed against Heller. This means:

It's gonna be costly,
It's gonna be tied up in the courts for awhile, and
It could backfire and create more pro-gun precedents.

Hopefully, that'll make them think twice before trying to pass anything.

So, it's not a step forward (yet), but I think it'll keep us from losing ground any time soon.

Musketeer
January 26, 2009, 09:23 AM
Poorly thought out lawsuits which ignored what Heller actually said while trying to use it to support their cases got thrown out...

Wow, who would have thought of that?

Did any of those lawyers actually read Heller before trying to use it?

Heller was a HUGE win for the Pro 2A crowd but it must be understood and it must be used PROPERLY. Grabbing Heller and running into a court to claim that a felon should be able to own a gun will clearly crash and burn. The same can be said about the requirement for registration or licensing in some jurisdictions.

What CAN be attacked after incorporation is tackled are things like the hundreds of dollars you need to spend to get permission from NY State to own a handgun. You cannot attach a gov't bill to exercising a right. It is the same as a poll tax.

Settle incorporation first. Then build precedent case by case.