Life After Heller! A lot is going on!

[Rich-D]

REASON MAGAZINE
Brian Doherty | May 5, 2009

• With the help of the National Rifle Association (NRA), Heller plaintiff Dick Heller is challenging the way D.C. has redesigned its gun control laws post-Heller. As the NRA explained in a press release, “Under the current D.C. law, prospective gun owners are required to pass a written test graded at the sole discretion of the Metropolitan Police Department. They must also have vision better or equal to that required to get a driver’s license (even for those who just want to possess a collector’s item), submit employment history for the past five years and surrender all handguns for ballistics testing, among other restrictions.” Heller and the NRA think those limitations on a recognized constitutional right should not stand.

• The Seventh Circuit Court of Appeals will be hearing in late May a set of legal challenges to various Chicago area gun restrictions that amount to a total restriction on handgun possession and use in the home. Both victorious Heller lawyer Alan Gura and the NRA are involved, with various earlier cases having been combined on appeal on the court’s order.

• Tracey Hanson, one of the original six plaintiffs in what ended up as the Heller case, has reunited with Gura in March to sue D.C. over the fact that the city's narrow roster of approved guns barred her from registering her own handgun because of its color.

• The Second Amendment Foundation and other plaintiffs filed in late April a suit in California challenging that state’s arbitrary list of “approved” guns—a list manufacturers have to pay a fee to appear on. As the press release announcing the suit stated, quoting attorney Alan Gura, “A handgun protected by the Second Amendment does not need to appear on any government-approved list and cannot be banned because a manufacturer does not pay a special annual fee.”

With the precedents of Heller and Nordyke, and with various unreasonable gun rights restrictions under skilled legal fire, the future of Second Amendment jurisprudence is brighter than it has been in living memory. Justice Souter’s retirement doesn’t change the gun rights balance of power at the Supreme Court—he was a Heller dissenter, and undoubtedly whoever replaces him would have been as well.

But because Heller very explicitly set limits on how far the Court's gun rights thinking would go (and indeed the Nordyke court relied on that limiting language to uphold Alameda’s gun possession restrictions), some believed it was going to be a complete dud. It is possible that gun jurisprudence will stay stuck in a very narrow groove, with courts deciding across the board that if a law doesn’t clearly and directly and entirely prevent someone from defending themselves in their home with a common weapon then the Second Amendment has been properly honored. But it seems far more probable that Heller will end up reshaping the landscape of American liberty.


Full Article: http://reason.com/news/show/133331.html


Rich

[denton]

Heller not important? Sounds like denial and wishful thinking by the antis.

Gura is winning at every turn.

Nordyke gives us incorporation of 2A against the states, and Gura lost no time whatever in filing his suits to end both California's at-whim concealed carry permit system and the state approved firearm system. I expect a win in both of those, especially since the 9th Circuit went out of its way to overturn its previous decision protecting the concealed carry provision.

7th Circuit has the Chicago case, also filed by Gura.

We will probably get one or more solid Supreme Court cases out of the present actions.

First, affirm the individual right within the home.
Second, get the right incorporated against the states.
Third, get the benefit of strict scrutiny for laws restricting RKBA.
Fourth, expand the Heller possession right beyond the home.

We have the first, and are well on our way to the second. If we can get to the fourth level, then a great many silly laws will go away.

Compared with other legal precedent, this is moving at warp speed and with great momentum.

[Old Fashioned]

No offense to any of the lawyers but it seems that we have to go through a complicated and convoluted procedure to arrive at a conclusion that was only common sense to start with.

[Frank]

No offense to any of the lawyers but it seems that we have to go through a complicated and convoluted procedure to arrive at a conclusion that was only common sense to start with.The problem is that, although it's common sense to you, and perhaps the rest of us on this board and down at our shooting clud, there are a lot of people for whom it's not common sense at all. There are a lot of people who believe that it's common sense to keep weapons out of the hands of ordinary folks and to read the 2nd Amendment in a way that promotes that end.

Let's not get sidetracked into a debate about whether they're right or we're right. We pretty much know the reasons we think we're right. And the Court in Heller pretty much supported our thinking. But the point is that we had a dispute, and we use a legal system for resolving disputes. So while it would have been nice it the anti-gun crowd had listened to our reason, the fact is that they didn't (and are unlikely to in the future).

So we resort to our legal system. It's not perfect, but it's what we have and the way things work. It's not going to change any time soon. And if you were going to change things, how would you do it and to what?

Any legal system is basically a commonly accepted method for resolving disputes without a breach of the peace. It is an integrated system for deciding if someone is guilty of a crime, for deciding and overseeing the division of property upon someone's death, for awarding damages to persons injured by the legal fault of another, for promoting the integrity and certainty of commercial transactions, for controlling the conduct of government, etc. It is a system that deals with a staggering number of different types of matters and issues and that seeks to resolve questions according to a generally internally consistent logic.

Our legal system is built on the foundation of the Common Law of England (with a dose of Roman based Civil Law in the Western States formally under Spanish or French hegemony for some matters, principally those relating to marital property). Thus our legal system today is the product of something like 500 years of evolution.

How do you undo a system with that sort of history, and how do you begin to fashion out of whole cloth something to put in its place?

[Carole-K]

The problem is that, although it's common sense to you, and perhaps the rest of us on this board and down at our shooting clud, there are a lot of people for whom it's not common sense at all. There are a lot of people who believe that it's common sense to keep weapons out of the hands of ordinary folks and to read the 2nd Amendment in a way that promotes that end.

I agree with Frank. Common sense, like beauty, is a very subjective matter.

I had a very rational and calm discussion with an acquaintance who is anti-gun. She cannot imagine why I feel it is necessary to be armed. She believes her approach to the issue, "keep guns out of the hands of everyone and that way no one can possibly get shot" is common sense. Obviously, I think that is common non-sense.

There has to be a manner of resolving issues when two parties with drastically different ideas of "common sense" reach an impasse and as Frank said so eloquently, the courts are that manner of resolution. It may not be perfect but it is far far better than what many countries have.

[Old Fashioned]

Frank, I agree with what you are saying. I realize that the other side feels that their viewpoint makes sense and that our legal system is the only way to resolve the differences. It's a shame that it has to come to that but there is no alternative.

[Patriotic]

I am a firm believer that there are only two reasons to carry a concealed weapon, one is for protection and the other to commit a crime. We have laws that cover the commission of a crime. We don’t need to criminalize a person who wishes to protect themselves.

[Levant]

Greetings from a new member.

My worry with Heller is exactly what is going now. Washington D.C. is having their way with the Supreme Court and, short of armed troops in the city to enforce the ruling - as was done in Alabama, it is clear that the city has no intention of actually complying with the Supreme Court. And who would have to send the troops in to enforce the ruling? Barack Obama. And he's not going to do that.

*Sigh*.. Somehow, I think we'd have been better off with Hillary.

[EvenStephen]

"*Sigh*.. Somehow, I think we'd have been better off with Hillary."

I never thought I'd say it but I have to agree!

[Patriotic]

I realize there has been a debate over states right versus federal law since the very inception of our country and the Constitution. The Constitution being the law of the land, so to speak. It would seem to follow that the Constitution would be supreme. In the case of Heller, the SC ruled the 2nd Amendment to the Constitution guaranteed an individual right to bear arms and this right was not to be infringed. The SC went on to say an individual had a right to self-defense and have a firearm in his/her home for self-defense. Yet in states like NY, it is a class “A” felony to have a firearm in your home to defend yourself. I should qualify this by saying to possess an “un-registered” firearm in your home is a felony. This would appear to be infringement of your Constitutional right. The process in NYS to own a handgun is first to apply for a permit to purchase a firearm. This permit may or may not be granted since NYS is a “may issue” state. When and if you are granted the permit to purchase a handgun, you must purchase it from a NYS dealer. This precludes receiving a handgun as a gift or purchasing from an out of state source. Following the purchase of the handgun you must apply for a permit to own the handgun and have that approved before you can pickup the handgun from the dealer. There is a paradox in this procedure in that technically you cannot transport the handgun you purchased from the dealer to your home unless you have a permit to carry a handgun. The permit to carry a handgun is the most difficult to get and requires you to appear before a judge to justify why you need to do so. The entire process takes about two years and is very expensive. Dare I say infringement of your rights? It would appear to me that NYS is in violation of the Constitution.

If states have the right to selectively interpret and follow the US Constitution then what would prevent them from lets say not honoring any portion of federal law. We know that is not the case because the SC ruled restricting or banning abortion is illegal and also states must follow treaties signed by the federal government, so why is it so difficult to enforce or incorporate the Heller decision of the SC upon the states?

[LeftCoastConservative]

One very shocking thing I learned studying 2nd Amendment issues is that some parts of the Bill of Rights do not actually apply to state law. Most people I have spoken to about this are absolutely shocked to find out that the Constitution may not in actual fact be the supreme law of the land. Such is the case with the 2nd Amendment in most of the United States even today, post-Heller.

All that you have written will be true, once the 2nd Amendment is incorporated to the states. This process is on-going, with the 9th Circuit deciding in favor of incorporation in the Nordyke case, but with the 7th Circuit seemingly likely to decide against incorporation in the McDonald case. The resulting split among the circuit courts will accelerate the question of incorporation to the Supreme Court of the United States.

Only after incorporation of the 2nd Amendment can the New York gun licensing law be challenged, which I would expect the day after incorporation in New York State. I also think that given a post-Heller interpretation that the licensing law in New York may be found unconstitutional. For guidance on how the New York law might be treated in the courts, keep an eye on Hanson v. District of Columbia, in which the new D.C. registration law is being challenged.

[Frank]

...The Constitution being the law of the land, so to speak. It would seem to follow that the Constitution would be supreme....Well, the Constitution does provide that it's the supreme law of the land:

"....This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding...." (Article VI)

BUT ---

In the early 19th century, the Supreme Court ruled that the Bill of Rights did not apply to the states. It applied only to the federal government. However, in the late 19th century, well after the adoption of the 14th Amendment, the Supreme Court began to apply the Bill of Rights in a piecemeal fashion to the states through the 14th Amendment. This process is known as "incorporation" -- selected rights enumerated in the Bill of Rights have been "incorporated" into the 14th Amendment and thus applied to the states.

Some provisions of the 1st Amendment were not applied to the states until the 1930s and 1940s. Many procedural protections available to criminal defendants in federal court under the Bill of Rights were not available to defendants in state courts until the 1960s. Some enumerated rights, like the 5th Amendment right to indictment by grand jury, and the 7th Amendment right to a jury trial in civil cases, have not been found applicable to the states.

So since Heller, the next order of RKBA business has been to obtain a court decision making the 2nd Amendment applicable to the states. We've just gotten that from the 9th Circuit Court of Appeals. So far it's law only in that Circuit. The case is being discussed on the board here: http://www.gun-politics.org/showthread.php?t=125 .

...In the case of Heller, the SC ruled the 2nd Amendment to the Constitution guaranteed an individual right to bear arms and this right was not to be infringed... In Heller, the Supreme Court ruled that the 2nd Amendment described an individual right and on that basis threw out a particular District of Columbia law. The ruling that the 2nd Amendment states an individual right is enormously significant, because it sounds the death knell of the now officially discredited collective rights theory. But courts decide cases, so Heller, as every court decision, directly applied to the particular case at issue. It does not directly affect other gun control laws.

The core holding in Heller, i. e., that the 2nd Amendment states an individual right, can now be the basis for challenging various state gun control laws. But there are a number issues that will need to be dealt with.

One is incorporation, as discussed above. The other is that it is settled Constitutional Law that Constitutionally protected rights are still subject to limited regulation. At this stage we really don't know what sort of regulation Heller (or really, the Second Amendment) would allow.

There is, however, a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible. Regulations of a Constitutionally protected, fundamental right, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:

[1] The regulation must be justified by a compelling governmental interest; and

[2] The law or policy must be narrowly tailored to achieve that goal or interest; and

[3] The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).

But we will have to wait for actual cases to see (1) if the courts apply this test; and (2) how. Even assuming eventual incorporation of the 2n Amendment against the states, no doubt much existing law, both state and federal, will survive challenge. I doubt that we'll see background checks go away. But hopefully we'll see ultimately successful challenges of various "may issue" or otherwise burdensome licensing laws.

This is only the beginning.

[KCShooter]

Frank, excellent clarifications.

It's nice to have a lawyer around.



(I can't believe I just said that)

[Frank]

Frank, excellent clarifications.

It's nice to have a lawyer around.

(I can't believe I just said that)

Just take two aspirin, sit back and close your eyes for a few minutes. It'll pass. :D :D

[kenhwind]

It's nice to have a lawyer around.
Especially a gun owning counselor.

[EvenStephen]

Frank, if you challenge a state law wouldn't the case be Frank vs State of California and, since the state is a party, wouldn't that automatically be heard in a federal court? And if so, wouldn't a federal court have to uphold the 2A?

[Frank]

Frank, if you challenge a state law wouldn't the case be Frank vs State of California and, since the state is a party, wouldn't that automatically be heard in a federal court? And if so, wouldn't a federal court have to uphold the 2A?
Well the exact name of the case could be a variety of things, depending on the exact nature of the complaint. For example, it could be Frank v. Smith (in his official capacity as sheriff of Iamlost County) or Frank v. Jones (in his official capacity as attorney general of the State of Confusion). But, again depending on exactly how I frame the case, I could probably bring it in either state or federal court. Which I chose would be a matter of tactics, and I'd probably prefer federal court.

In either case, the court would have to follow Heller regarding the question of whether the 2nd Amendment describes an individual or a collective right and other relevant issues decided by Heller. There would still be the question of whether the 2nd Amendment applies to states (which has for now been decided in the affirmative for California and other states in the 9th Circuit). There would also be the question of whether the particular gun control law I was challenging fell within the scope of permissible regulation of a Constitutionally protected right (see post #12).

So yes, the court (state or federal) would have to uphold the 2nd Amendment consistent with Heller, but that doesn't guarantee me victory.

[Patriotic]

Frank, Thank you for your reply. It does bring up some observations though. In the case of Roe vs. Wade, I realize not a gun control issue, the SC ruled against states placing laws against abortion. The SC upheld a woman’s right to her body and thus could not be criminalized or restricted from having an abortion. With the 2A the SC ruled the right to keep and bear arms as an individual right much like a woman’s right to her body. I don’t see how these two rulings differ, one being incorporated against all the states and another not.

Forgive me for sounding stupid on the matter, I am not a lawyer but I fail to see how the three prong test you mention could defend the actions of a state such as NY. What would be a compelling governmental interest for NY to have the strict gun laws they have? Surely it isn’t to prevent crime or gun violence because their laws have not done so. The narrowly tailored test only addresses law abiding citizens with no criminal record. The only compelling government interest I can see is fear of an uprising by the citizens of the state against a tyrannical government.

[Frank]

...The SC upheld a woman’s right to her body and thus could not be criminalized or restricted from having an abortion. With the 2A the SC ruled the right to keep and bear arms as an individual right much like a woman’s right to her body. I don’t see how these two rulings differ, one being incorporated against all the states and another not.... Well first, Roe v Wade was basically a straight up 14th Amendment case. The 14th Amendment is addressed to the states. The 2nd Amendment is part of the Bill of Rights which has been held to not apply to the states. Therefore the 2nd Amendment can't be used against the states until it is specifically made applicable to the states under the 14th Amendment. (And the ruling in Roe v Wade was more complicated than a woman owning her body. The Court said, essentially, that the state did not have a compelling interest in prohibiting or limiting abortion during the first two trimesters. The Court left open the possibility of a state regulating abortion during the third trimester.)

Forgive me for sounding stupid on the matter, I am not a lawyer but I fail to see how the three prong test you mention could defend the actions of a state such as NY.... I don't immediately see how either. But they will probably come up with something. And the point is that they get a chance to take their shot at it.

[Patriotic]

Frank, I would think the 2A would have bearing within the 14A context of Section 1, defining citizenship of those born or naturalized US Citizens as being citizens of both the state and the country. As such citizens of the state, it would seem, would have the same protection of privileges and immunities as US citizens under the Bill of Rights and for a state to abridge these rights would be un-Constitutional.

I realize there is a “due process of law” clause in the 14A but wouldn’t that mean there would have to be some compelling cause unique to the state where by they would or could enact a law abridging a Constitutional right? In other words, is a law in existence to prevent a crime or is it to punish a crime if it is committed; could a citizen be guilty of a crime for ownership of a firearm (a right under the 2A) even if they used it in a lawful manner?

The states did ratify the US Constitution which I would take means agreement with the document and accepting it as the Law of the Land.

[EvenStephen]

In other words, is a law in existence to prevent a crime or is it to punish a crime if it is committed; could a citizen be guilty of a crime for ownership of a firearm (a right under the 2A) even if they used it in a lawful manner?

If the existence of a law prevented crime, we wouldn't have police, criminal courts or jails so I guess it's to punish offenders.

[Frank]

...I would think the 2A would have bearing within the 14A context of Section 1, defining citizenship of those born or naturalized US Citizens as being citizens of both the state and the country. As such citizens of the state, it would seem, would have the same protection of privileges and immunities as US citizens under the Bill of Rights... That plus the due process clause in the 14th Amendment are, in loose terms, the bases for incorporation; but they don't result in incorporation until a court says so.

But one of the problems is that in an 1873 case, United States v. Chruikshank, the Supreme Court ruled that the 2nd Amendment did not apply to states; and Chruikshank came after the adoption of the 14th Amendment. The 9th Circuit in recently finding incorporation distinguished Chruikshank, i. e, concluded that the facts and bases for the decision in Chruikshank (it relied on one portion of the 14th Amendment) weren't applicable in the Nordyke case before it; and incorporation was thus found based on other provision of the 14th Amendment.

However, just yesterday, the 7th Circuit declined to find incorporation, ruling in effect that Cruikshank was controlling precedent. There is now a conflict between Circuits, laying a foundation for the Supreme Court to accept the case and settle the matter. The Supreme Court could overrule Chrukshank.

...there is a “due process of law” clause in the 14A but wouldn’t that mean there would have to be some compelling cause unique to the state where by they would or could enact a law abridging a Constitutional right?... Uniqueness is not a factor. See the description of the three point test above.

Good examples of permissible regulation of a Constitutionally protected right can be found in the realm of the 1st Amendment rights of free speech and assembly. There are all sorts of laws prohibiting loud music in residential neighborhoods, requiring permits for parades or public assemblies, or requiring regulatory review and approval of certain types of advertising (e. g., solicitations of offers to buy securities). All such laws abridge the freedom of speech and/or assembly; and laws of such nature have been found Constitutional.

...The states did ratify the US Constitution which I would take means agreement with the document and accepting it as the Law of the Land. And it is, but there will always be questions of what it means and how it applies in specific situations. The devil is in the details.

[d90king]

Just catching up here.... Thanks for some great input Frank, we are fortunate to have you around to assist in breaking it down in a simple manner. :appld:

[Aguila Blanca]

Good examples of permissible regulation of a Constitutionally protected right can be found in the realm of the 1st Amendment rights of free speech and assembly. There are all sorts of laws prohibiting loud music in residential neighborhoods, requiring permits for parades or public assemblies, or requiring regulatory review and approval of certain types of advertising (e. g., solicitations of offers to buy securities). All such laws abridge the freedom of speech and/or assembly; and laws of such nature have been found Constitutional.
Frank, that's a good example, but I respectfully suggest that, at the same time, it is a red herring. In the strictest sense, it is not parallel with the 2nd Amendment. The 1st Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; ...

Somewhat similarly, the 4th Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ...
In the 1st, the amendment specifically constrains the Congress -- meaning the Congress of the United States. The 2nd Amendment does not mention the Congress.

I also mentioned the 4th Amendment because the 4th Amendment uses the word "unreasonable" in constraining searches and seizures. If the government (at whatever level or levels are subject to the amendment) are constrained from enacting UNreasonable searches and seizures, then pretty much by definition "reasonable" searches and seizures are allowed. That leaves it up to the legislature(s) and the courts to decide what's reasonable and what's unreasonable.

The 2nd Amendment does not say that the right of the People to keep and bear arms shall not be "unreasonably" infringed. It says the right shall not be infringed. I am not a lawyer, but the fact that the 4th Amendment demonstrates the authors knew how to use the word "unreasonable" when and where they wanted to tells me that, very plainly, they did NOT intend for the RKBA to be subject to "reasonable" regulation. Regulation is infringement. This is where I think Mr. Justice Scalia sold us out in his majority opinion on Heller. Plainly, in my not-so-humble layman's opinion, I think one of the greater minds on the current SCOTUS was just flat out wrong.

[Frank]

First, the "Congress" reference is a dead issue. The Supreme Court already ruled in 1833 that the entire Bill of Rights constrains only the federal government. By now the 1st Amendment has generally been incorporated, while that process is just getting under way for the 2nd Amendment.

Second, the 1st Amendment prohibits "abridgment", which is really quite similar in meaning to "infringe." Webster's Online Dictionary, for example defines "abridge" thusly: "1 a archaic : deprive b: to reduce in scope"; and "infringe" thusly: "2 obsolete : defeat, frustrate".

Third, some of the abridgments of the freedom of speech I've mentioned do indeed come from Congress. Under federal law, the labeling of prescription drugs requires the prior approval of the FDA, and certain solicitations of offers for the purchase of securities require the prior approval of the SEC. These are clearly abridgments of the freedom of speech by Act of Congress. They are also prior restrains. But nonetheless they survive Constitutional challenge by satisfying the "compelling interest" test.

[kenhwind]

Life after Heller may not gey better:
http://www.investors.com/NewsAndAnalysis/Article.aspx?id=478705

[d90king]

Life after Heller may not gey better:
http://www.investors.com/NewsAndAnalysis/Article.aspx?id=478705
Do you think her position would be different than her predecessor?

[Frank]

Do you think her position would be different than her predecessor? I don't think her position of 2nd Amendment issues will be different from her predecessor's. But there are some other reasons (e. g., her avowed judicial activism) why she's an especially worrisome choice.

[d90king]

I don't think her position of 2nd Amendment issues will be different from her predecessor's. But there are some other reasons (e. g., her avowed judicial activism) why she's an especially worrisome choice.
No question about it, to say the least. But on firearms I don't see a huge variance. Part of me still isn't sure that she wasn't thrown out as a sacrificial lamb, based on some of her comments that are public record... But she sure is sounding like a shoe in based on her ethnicity...

If memory serves me she decided with the state on "regulatory" matters...

[kenhwind]

Do you think her position would be different than her predecessor?
Well I'm not sure here, but the notion that because she is Latino and a Women trumps here actual qualifications is very disturbing.
She could be purple and from Mars and I woud not care.