Has Heller changed anything?

[Glenn E. Meyer]

Interesting article in the NY Times this morning:

http://www.nytimes.com/2009/03/17/us/17bar.html?_r=2&hp

pointing to this abstract:

http://papers.ssrn.com/sol3/papers.c...ct-id=1359225#

The gist is that Heller really hasn't unleashed a wave of suits or fundamental changes in most places. Also, that the seemingly progun originalist Scalia really took a modern view of gun rights.

[maestro pistolero]

I saw that. I want them to just go on believing that until incorporation bites them in the arse.
IMO, The real test isn't about felons who are disqualified already. It' about having the ability and right to protect one's self and one's community, whether or not in the home.

[Evan Thomas]

Thanks for posting this, Glenn. I missed it this morning: funny how it didn't make it into the little email digest the Times sends out...

Aside from the really-small-splash aspect, and the point about Justice Scalia's, position being less "originalist" than he'd perhaps like to make out, I thought this was the most interesting bit:

"The consensus among most legal scholars is that incorporation of the Second Amendment is likely."

News to me, anyway.

Have you emailed Mr. Winkler yet to ask for a copy of his paper? Sounds like a fun read...

[Tom Servo]

So, because the Heller decision hasn't wiped out every gun-control law in the eight months since the ink dried, it won't do any good?

Any gains we get during this administration will be difficult at best, but Heller remains the 800lb gorilla in the living room. Those who would be inclined to pass, say, another AWB, will think twice if they know it has to be weighed against a recent and well-publicized Supreme Court decision.

Heller also helped in that it brought the whole issue to the forefront of the American consciousness. You'd be really surprised how many people never considered the issue of the 2nd Amendment one way or the other until this case started making headlines.

Future cases will be weighed against Heller, and it will lead to victories. You just have to remember that change is slow, and in the current political climate, slow means glacial.

[zukiphile]

Winkler's thesis was the subject of a prior thread here. On examination it turns out that the gun 'bans" being upheld post Heller involve possession by felons and other legally disabled individuals, in other words individuals who no one reading and agreeing with the Heller decision thought would gain any rights under Heller.

Winkler's thesis is a strawman, and his assessments of Heller's and Scalia's weaknesses shed more light on his own constitutional instincts than the quality of Heller or Scalia's judicial philosophy.

But to the question "Has Heller changed anything?", the proper answer might be "not much yet".

Civil rights litigation continued for decades after Rosa Parks prevailed in court. We don't expect great and dramatic change through our legal system. A principled understanding of the amendment has been provided and will be part of the developing landscape of laws over time unless a later court decides it shouldn't be.

[Wildalaska]

Its made gun ownership mainstream again by shutting up the loons on both sides.

WildjustlikeitusedtobeAlaska ™

[Tennessee Gentleman]

The main thing Heller did IMO was to kill the "collective right" fantasy of the antigun coalition. Winkler makes a good point in that Scalia's view is modern in it's reasoning.

The antis argued that the RKBA was tied to service in the militia. Since the militia is long since dead, the antis reasoned that this would give the government the right to restrict guns in any way they choose to. Since their was no individual RKBA then unless one could show a "militia" purpose then the issue was moot and since the militia was dead it would always be so.

Scalia changed that and decoupled the prefactory clause form the operative and made the modern call that individual citizens have a RKBA for personal protection unrelated to service in the militia.

Now, any proposed gun control legislation like the AWB must now submit to scrutiny concerning that individual right. Before, it could be dismissed by simply saying "no relation to service in the militia". That is huge.

Will it change much? In some cases I think not. No machineguns and grenade launchers for the masses or no gun free zones but no outright bans either. The antis will still try other means but they can no longer say "Well, you get your guns when the militia is formed up". Scalia got rid of that rubric and I am glad he did.

[maestro pistolero]

Scalia changed that and decoupled the prefactory clause form the operative and made the modern call that individual citizens have a RKBA for personal protection unrelated to service in the militia.

Here's what he said:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause.

(emphasis added)

There is plenty of room for ambiguity here. My read is that he didn't say it WAS detached, he said it may be objected that banning useful military weapons WOULD effectively detach it, and that the individual right would withstand detachment.

[Tennessee Gentleman]

Here is something else he said too:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home...But the fact that modern developments have limited
the degree of fit between the prefatory clause and the protected right

That is the key and the decoupling I spoke of.

Originally Posted by maestro pistolero

that banning useful military weapons WOULD effectively detach it,

Which we have pretty much done in modern times through heavy restrictions so I would argue the detachment has happened.

[zukiphile]

Winkler makes a good point in that Scalia's view is modern in it's reasoning.

Modern as opposed to traditional?

There is no constitutional tradition of confusing the preface with the operative language of the amendment. There is a tradition within opponents of a proper reading of the amendment of using the preface as a limitation on the stated right.

That Winkler considers Scalia's correct reading of english to be distinctly modern only discloses the error Winkler considered to be the norm -- it is not primarily a comment about Scalia.


To the degree opponents of a grammatical reading had a tradition within law school faculty and other ideological opponents of the 2d Am., I would not count on a mere SCOTUS decision foreclosing the use of any argument, including but not limited to misuse of the preface. Stare decisis is not something that will stand in the way of any court determined to reach a result directly contrary to a predecessor court. On a different issue, the SCOTUS overruled the result in Bowers v. Hardwick less than two decades after reaching that decision.

No victory is permanent.

[maestro pistolero]

Is it de-coupling, or was the right ever inextricably tied to the prefatory clause?

Scalia is saying that, the first clause merely announces a purpose, and that the right was never solely dependent on the stated purpose.

[Tennessee Gentleman]

Originally Posted by maestro pistolero

Is it de-coupling, or was the right ever inextricably tied to the prefatory clause?

It is decoupling. Here is a quote from U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976)

In Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971), this court held, in a case challenging the constitutionality of 18 U.S.C. App. § 1202(a)(1):
Since the Second Amendment right "to keep and bear Arms" applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

This was the con law prior to Heller and if you read what the Brady's still say that is what the law should be. RKBA tied solely to service in the militia. Since the militia is defunct QED no RKBA. Now their view is defunct.

Originally Posted by maestro pistolero

Scalia is saying that, the first clause merely announces a purpose, and that the right was never solely dependent on the stated purpose.

Right, for the first time in our nation's history had the SCOTUS said such. That is why it is so huge.

[zukiphile]

The conclusory statement in Stevens should prompt a reader to examine whether the citation to Miller was accurate.

We turn now to the consideration of whether Congress has the
power to prohibit the possession of a firearm by a convicted felon.
Since the Second Amendment right "to keep and bear Arms" applies
only to the right of the State to maintain a militia and not to the
individual's right to bear arms, there can be no serious claim to
any express constitutional right of an individual to possess a
firearm. United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816,
83 L.Ed. 1206. Stevens asserts, however, that Congress is without
constitutional power to deny him this privilege. We hold that
Congress has this authority under the commerce clause.

http://www.cs.cmu.edu/afs/cs.cmu.edu...evens_v_us.txt

The court in Miller actually wrote.

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

http://caselaw.lp.findlaw.com/script...=307&invol=174

The decision in Miller was not that the 2d Am. only applied to the right of a state, but that the case should be remanded for lack of evidence necessary to resoive the question before the court, namely whether Miller's short barrelled shotgun was part of ordinary equipment or could contribute to the common defense. The court in Miller could not have held that the 2d Am. is a right of the state, since it remanded the case of an individual defendant for evidence rather than merely holding that the right didn't apply to individuals.

Tenngent does make a valid point in seeing the implicit constitutional tradition in Miller as relating the right to possess to "some reasonable relationship to the preservation or efficiency" of the Militia, since that is the test they suggest. This does not equate to coupling the right to service in the militia, but it isn't as straightforward as Scalia's and Gura's grammatical analysis.

[Eghad]

This was from last year....

The town of Wilmette, Illinois had a handgun ban on their books for almost 20 years. You may remember the town for its outrageous prosecution of Hale DeMar--the man in Wilmette who was forced to use a handgun to defend himself and his family against a convicted criminal who had broken into his home for the second time in as many nights.

Well, in the wake of last month's historic Supreme Court decision protecting an individual right to possess firearms, village trustees in the northern Chicago suburb recently voted unanimously to repeal the egregious ban and strike it from the books.

http://www.nraila.org/legislation/read.aspx?id=4103


also

Fairfax, VA- Today, the Village of Morton Grove agreed to a stipulated dismissal of a National Rifle Association lawsuit challenging the village’s gun ban. A new town ordinance recognizes the right to private handgun ownership, bringing an end to NRA’s lawsuit against the village. Morton Grove completely dismissed its ordinance banning handguns and agreed to not replace it with any direct regulation other than to adopt existing state laws.

http://www.nraila.org/News/Read/News....aspx?ID=11471

Evanston to drop gun ban

http://evanstonnow.com/government/bi...o-drop-gun-ban

These are hard economic times and a lot of these towns dont have the $$$ to take on the NRA.

The national press isnt going to cover these stories so search for your self and see who has come in line with the Heller decision instead of facing legal action.

[Bartholomew Roberts]

I think the author is either deliberately downplaying Heller or doesn't have a good grasp of where Heller is on the continuum of Supreme Courts civil rights litigation. There was a long, long way between Brown v. Board of Education and actual equal opportunity. If we were to look at only the first year, we might well think Brown was insubstantial.

From my read of the abstract, while the author hits Scalia for lack of originalism, he correctly understands that the opinion itself is a work of compromise and that the non-originalism parts were designed to preserve many of the current federal laws and get those five votes. The whole point of the non-originalism is to flush the loser cases like the ones the author is counting in his survey. It was also probably necessary in order to get five votes.

I think over time, this decision is going to have much more impact than Professor Levinson gives it credit for. It really is a great blend of originalist interpretation of the Constitution combined with the practical necessity of getting votes/having the decision enforced by the other two branches.