The Firing Line Forums - View Single Post - Since Heller, its Gun Control: 60, Individual Right: 0

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.

January 23, 2009, 06:47 AM	#11
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	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.