How important is Heller?


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RPCVYemen
November 20, 2008, 01:13 PM
When I read Scalia's opinion, it made me very nervous. I saw a lot of people jumping up and down on our side, so I assumed that I must have read the decision incorrectly.

Here's an article from the "Legal Times" where a conservative/libertarian law prof expressed my misgivings:

In short, Heller potentially leaves a lot of room for legislators
and lower courts to eviscerate the individual Second
Amendment right that the Supreme Court has recognized.

http://www.law.gmu.edu/assets/files/faculty/Somin_7_28_08.pdf

There is no doubt that a was better than a loss in Heller, but when I read the actual decision, it seemed like a very narrow win.

Mike

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General Geoff
November 20, 2008, 01:40 PM
The only reason Heller was a narrow win was because the decision was 5-4.

The ruling itself is extremely important, and is not at all a narrow win. The ruling merely addressed precisely the issue that was brought before it: Whether the D.C. handgun ban violated the Second Amendment guarantee against infringement on the peoples' right to keep and bear arms. And they ruled that it did.

Scalia went on to suppose that any arms in common use would also be protected, and that machine guns, being particularly suitable for use in a militia capacity, may also be protected. But these were just suppositions, as machine guns were not within the scope of the case.

Geezer Glide
November 20, 2008, 01:44 PM
Very.

ArmedBear
November 20, 2008, 01:45 PM
Heller is not a slam dunk for gun rights.

However, it provides a basis for all sorts of lawsuits, especially at the Federal level.

That could be very important as we will have an administration with an anti-gun President (Joyce Foundation board member), and anti-gun VP (author of the Clinton ban), an anti-gun AG (probably no more anti-gun than Bush's AG), and an anti-RKBA DHS head (Napolitano vetoed "Katrina protections" in Arizona, when even anti-gun California passed a "Katrina protection" law).

PT92
November 20, 2008, 01:50 PM
It's as important as the Second Amendment itself. Out all of the things I worry most about with Obama is his ability to appoint Liberal Justices to the SC ,of whom, will overturn Heller no doubt. I think this exceeds the more than likely coming AWB II by far (not to diminish this in any way).

It's imperative, as others have mentioned, that we join together with the NRA and other SA supporters to fight the upcoming onslaught soon to be brought on by the Left.

-Happy Holidays

jakemccoy
November 20, 2008, 02:21 PM
I first read the opinion immediately after it came out. Scalia's opinion made me extremely nervous. Without input from others, I wrote my thoughts on the case and about the case's weaknesses. About 95% of gun owners on forum sights told me that the case is totally awesome and that I needed to be thankful, etc. I truly do hope I'm wrong and that the 95% are right.

RPCVYemen
November 20, 2008, 02:39 PM
Scalia's opinion made me extremely nervous. Without input from others, I wrote my thoughts on the case and about the case's weaknesses. About 95% of gun owners on forum sights told me that the case is totally awesome and that I needed to be thankful, etc. I truly do hope I'm wrong and that the 95% are right.

My feelings exactly.

Mike

zminer
November 20, 2008, 02:44 PM
The specific question the case was asking was, "can a city ban an entire class of firearms because it feels that it has a compelling safety interest in doing so?" The decision says no, because (addressing the larger point) people have the individual right to bear arms, not just in the context of a militia. On the other hand, it affirms that licensing schemes are legal as long as they are not "arbitrary and capricious." Even Heller himself said he felt that would be fine. He just wanted to have the ability to have an operational handgun in his house to be able to protect himself.

It isn't a decision which was meant to overturn things like bans on automatic weapons, or preclude future AWBs. That wasn't what it was meant to do, and it would almost certainly have been overreaching for the justices to have tried to turn it into that.

As for it being overturned in the near future ... it seems really unlikely. Plessy v. Ferguson ("separate but equal" schools are okay) was adjudicated in 1896 and wasn't overturned until Brown v. Board of Education in 1954, and that was related to an issue which had created very strong, divisive currents within the nation - much more so, I would argue, than the debate over firearms.

The Supreme Court doesn't like to reverse itself because it gives the impression that - exactly as some people here are saying - law isn't settled, it's just what 5 justices think at any given time. So, I don't think it's going to get overturned. Will there be other cases about firearms brought to the Court now that a standard has been established? Maybe. But the Conservative wing of the Court isn't going anywhere. Roberts is 53, Scalia is 72, Thomas is 60 and Alito is 58. Kennedy, the other person who voted for Heller, is 72, In Supreme Court terms, these people are spring chickens. (Keep in mind, Stevens is 88 and still serving.)

5knives
November 20, 2008, 02:46 PM
Afraid my opinion is much like jakemccoy's above.

I've been told by some pretty savvy lawyers that Heller allows DC residents to keep firearms in their home, and uses the 2A as the reason, and does'nt mean much outside the federal property of D.C.


It does open the door for similar lawsuits in the various states where municipalities have total bans, but was not written broadly enough to do anything else.

Don't pretend to know the reality, but that's what I've been told.

Regards,
:)

6_gunner
November 20, 2008, 03:06 PM
I believe that it was very important. However, it's impact should be measured by the crippling blow from which it saved us rather than by the comparatively little progress which it has brought us.

If they would have ruled against us, it would have been disastrous. It would have marked the beginning of the end for civilian firearms ownership. It would have completely removed the Constitutional argument against gun control.

The Heller victory marks a major step in the right direction, but we still have a long way to go. Heller reduces the danger of total bans or confiscations, but it leaves the door open to other infringements such as "safety" regulations, excessive taxation, licensing, and registration.

We still have a difficult fight ahead of us, but Heller affords us hope for victory.

scrat
November 20, 2008, 03:15 PM
Having watched the Heller case and read ever bit that i could. Its scary. Some of the supreme court justices themselves were questioning guns. Seems as though we cant stop with education at lower levels. From the president down we need to ensure that as americans we know and understand what the second amendment is. I am glad we won that case however there are many many more cases that need to be won. As a gun owner it is not just a right it is a responsibility to make sure we educate, practice, vote and stand up for our rights.

mljdeckard
November 20, 2008, 03:26 PM
I'm very much with zminer. It asked and answered a very distinct question, whether or not the Second Amendment protects the right of individuals to keep and bear arms. We were smart to keep it narrow, the other side was stupid to push it this far.

Heller itself is not meant to shake the earth. It is meant to be used to force a change of policy in those who tried to convince we had no RKBA. It will be the basis for twenty years of challenges and re-interpretations. It isn't the end, it's the beginning.

I don't like the fact that 4/5 justices didn't agree with it, but at the same time, part of me says they dissented because they knew it would pass and they wanted to get the dissenting opinion published. Of the dissenting opinions I recall directly, only Stevens actually said he didn't think it was an individual right. Others didn't like the grey area it opened, in particular the 'common use' idea, for precisely the same reasons we DO like it:

"The Breyer dissent also objected to the "common use" distinction used by the majority to distinguish handguns from machineguns: "But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun...There is no basis for believing that the Framers intended such circular reasoning."[37] (Other commentators have agreed with Breyer's criticism, but argued that the Court therefore erred in not overturning current machinegun restrictions.[38][39])"

Stevens also grumbled about Stare Decisis, basically being unwilling to overturn Miller out of the principal that standing decisions should remain umnmoved without compelling reasoning. (Ignoring that Miller was an incomplete ruling on an ex-parte hearing, and that there were recently conflicting rulings in lower courts which needed resolution.)

But the above posters have posted some very important things. Look at the time between Plessy v ferguson and Brown v The Board, Miller and Heller, and tell me how you possibly think Barack Obama can pack the Supreme Court when the two justices most likely to retire are liberal, get the RIGHT case up past all the LOWER courts within his presidency, AND get a favorable ruling? This takes DECADES, not a few years.

Frank Ettin
November 20, 2008, 03:29 PM
...it affirms that licensing schemes are legal as long as they are not "arbitrary and capricious." ...
And this is simply existing law. the courts have permitted, for a long time, limited regulation of Constitutionally protected rights subject to strict standards.

...It does open the door for similar lawsuits in the various states where municipalities have total bans, but was not written broadly enough to do anything else....
It really could not have been written more broadly. The Justices had to stick to the case before them, and the case actually presented a very narrow issue.

jakemccoy
November 20, 2008, 03:38 PM
Look at the time between Plessy v ferguson and Brown v The Board, Miller and Heller, and tell me how you possibly think Barack Obama can pack the Supreme Court when the two justices most likely to retire are liberal, get the RIGHT case up past all the LOWER courts within his presidency, AND get a favorable ruling? This takes DECADES, not a few years.

You made some good points, but I'll have to disagree here. The relevant facts to revisit Heller could come tomorrow. Recall that the facts of Heller were manufactured, controlled. Heller the man is irrelevant. The case would be more accurately titled "Levy" because the case was primarily Robert A. Levy's brainchild. A similar think tank could manufacture relevant facts over the next year somewhere in this country. You can be sure that at least a few people in the Brady Camp understand the game now.

Also, the comparison to the overturn of Plessy is a statistical analysis involving one sample. Well, I guess we could add Roe. Anyway, the statistical analysis is not reliable because we don't have many samples, and those cases were not manufactured.

I will say that I don't think Heller will be overturned anytime soon. However, that's just a gut feeling. I won't try to apply some unrelated cases to try to prove my gut feeling.

zminer
November 20, 2008, 03:51 PM
EDITED to reflect changes in the post I replied to

jakemccoy
November 20, 2008, 04:00 PM
zminer, I had already completely changed my post above.

You guys are forgetting that the Heller facts were manufactured, controlled. Those other cases (Plessy, etc.) were not manufactured. They were natural forces of nature.

Mike OTDP
November 20, 2008, 04:06 PM
Heller is big, but it is only the first of at least three cases we need to win.

We also need to win a case on incorporation of the 2nd Amendment against the states. This is likely, but not yet a done deal.

The third (and quite possibly fourth, fifth, and sixth) are cases defining the limits of what is permissible. This is where a lot of damage could be done to us. In a Federal case, we would be in a position to select the venue - carefully choosing one that will be favorable to our cause, in order to establish precedent. This was the same trick used by the civil rights lawyers...bring the first cases in friendly courts, establish precedent, use the precedents to win in neutral courts...then use all the precedents together to win in hostile courts and/or SCOTUS.

zminer
November 20, 2008, 07:06 PM
You guys are forgetting that the Heller facts were manufactured, controlled. Those other cases (Plessy, etc.) were not manufactured. They were natural forces of nature.

Can you give examples of what you mean by this? (I'm not being flip - I am just not sure what you're saying.)

Friendly, Don't Fire!
November 20, 2008, 07:08 PM
Never heard of him/her.

I need to be in the loop a bit longer.

gbran
November 20, 2008, 08:14 PM
Our last AWB was a federal law, not a state law such as the permanent AWB in CA. The 2A does not have incorporation, so only applies to keep the feds at bay. Any new AWB will be post-Heller. Given Scalia's "common use" statement, I wonder if Heller would be a precedent in fighting off any new fed AWB?

jakemccoy
November 20, 2008, 10:23 PM
Can you give examples of what you mean by this?

My point is that Heller is the result of a laboratory experiment. Heller didn't just happen. Heller was one of many plaintiff candidates that happened to make it to the Supreme Court. Heller was planned meticulously. Thank God because the Second Amendment issue is too important to allow any old yahoo with a case to make it to the Supremes.

On the other hand, cases like Plessy, etc., were not planned. There was not some master attorney putting together the perfect fact pattern. The facts of Plessy just happened naturally. The facts of Brown just happened naturally. Then, attorneys filed law suits. Eventually, the cases ended up in the Supreme Court.

Do a Google search for Robert A. Levy, the mastermind of Heller. You can start here:

http://www.washingtonpost.com/wp-dyn/content/article/2007/03/17/AR2007031701055.html
http://www.youtube.com/watch?v=2JAUNoyL9fs

Heller II or a similar case could be in the manufacturing process right now for all we know. In contrast, the facts of Plessy and then Brown were natural. Comparing the possible overturning of Heller to the overturning of Plessy doesn't work because Heller was manufactured.

tpaw
November 20, 2008, 11:20 PM
When BHO appoints HIS judges to the Supreme Court, all this will change and swing back to the left, so don't get hung up on the Heller decision. It will soon be past history. I hope I'm wrong, but things don't look good for us, especially if we loose the right to filibuster.

mljdeckard
November 21, 2008, 01:08 AM
EXCEPT THAT, the justices he may replace soon are all liberal to begin with, which means, he won't change a thing by replacing them. It will take DECADES to line everything up to overturn Heller.

Prince Yamato
November 21, 2008, 02:55 AM
They can't ban handguns. That's a big win. It's one less ban we have to fight off. We don't have to worry about handgun bans, so we can spend time buying AWs instead. Once we fight off the AW ban, we go for the big enchilada... machine guns.

zminer
November 21, 2008, 01:44 PM
Once we fight off the AW ban, we go for the big enchilada... machine guns

Heh, I think that getting machine guns un-banned is about as likely as having Barack Obama replace the retiring Justice Stevens with Judge Judy. But maybe that's just me. :)

But, on-topic, I think you're right - with the Heller decision, there has been a definitive statement that classes of firearms cannot be banned, and since handguns are the most likely targets of that, they're safe from outright bans. Now, restrictions are another matter ... but, they always have been another matter. In the end, though, a noxious type of gun law has been found unconstitutional. That's what the outcome of the case was supposed to be, and that's what it was.

tpaw
November 21, 2008, 02:24 PM
It will take DECADES to line everything up to overturn Heller.

Not if it becomes a hot topic in the house. Too much attention is being draw to handguns, especially due to the more frequent shootings on school campuses.

Zoogster
November 21, 2008, 02:42 PM
Heller is not important alone, because the terms in Heller are undefined. They can still be defined by either the antis or the pro-rights side in court.

"Reasonable restrictions" means whatever is deemed reasonable. Gun control in the UK is 'reasonable' to the population there.
In fact Heller gave credibility to firearm restrictions in ways that are unprecedented by acknowledging restrictions and prohibitions as unchallenged by the ruling.

Miller even raised the challenge that prohibitions on military arms, the type useful for any militia purposes was illegal. The court itself essentialy made that argument. That the only reason they ruled against Miller (who was dead and nobody argued on his behalf) was nobody could present evidence that a short barreled shotgun was a suitable military arm.
If it had been a full auto machinegun in question the court's logic would have ruled it was illegal to ban.


So Heller has legitimized gun restrictions that are so severe as to be defacto bans.
At the same time it has acknowledged the military purpose of arms protected by the constitution, and so opened the door to challenges against such arms.


Heller basicly just undid most protections (which were already being ignored) as well as left the legality of new restrictions undefined.
A blank piece of paper, that is still to be determined in the lower courts.

Arguably that is a defeat for us as gun owners. We already had our rights, supposedly protected by the constitution. Antis already claim they are not trying to ban all guns, just impose new endless "reasonable restrictions". Restrictions on type of firearms, types of actions, types of cosmetic appearances, taxes to save the children, taxes on every round to pay some expenses, waiting periods, increased waiting periods, licensing, registration, fees, etc etc
Every time they are successful the percentage of new gun owners goes down.
Which is the whole point, to price the cost, and the time consuming hassle out of the willing reach of a larger and larger segment of society.
The fewer gun owners, the weaker the opposition to additional legislation.



So Heller is not really a win. It is only a win in that it says an absolute ban is illegal. Yet it does not outlaw a NYC style ban, which is not itself a ban, just a licensing process most normal people cannot pass. Yet unless someone is actualy responded to, and turned down, they do not have standing to sue.

Further Heller legitimized licensing and registration. It in fact ordered that DC allow Heller to register his firearms.
We all know registration leads to various forms of confiscation and emboldened restrictions, as it has in most other nations.


So most of the things that could be positives in Heller are yet to be defined. They can be defined for or against us.
Most of the negative things that already existed, have simply been ruled to actualy be constitutional.

So Heller could end up being more of a loss than a win.
Registration, waiting periods, fines, licensing, permanent denial of the right for legal offenses, the NFA, Hughes Amendments etc have all been ruled constitutional by Heller.

So most of us gained nothing, unless you lived in DC or Chicago. Most of us did lose a lot. The question of whether many current restrictions, even restrictions only the most restrictive places even have implemented are legal was answered: Yes they are legal, if they are "Reasonable".
So many places reluctant to impose various requirements like registration can now proceed knowing licensing and registration is entirely constitutional.

Other terms in addition to "reasonable restriction" is anti gems like "unusual and dangerous".
Ray guns and phasers have been outlawed now before they are available. In all seriousness, the people have henceforth been forbidden from progressing with technology to new arms.
So if the military was to solve the powerplant issue and move on to portable rail guns, and various rays, they would be "unsusual and dangerous". They would also not be "in common use".



The "in common use" clause is really interesting. What comes first, the technology and use, or the ban that prevents common possession? Essentialy anything outlawed early is never in common use, and is unusual and dangerous.

The military is now using acoustic devices to make people nauseous and sick. Devices to disorient people and make them dizzy with radio waves through walls, so they cannot fight as well.
Devices like the Active Denial System which causes intense heat and pain with microwaves.
http://www.defense-update.com/products/a/ads.htm
There is lights designed to just make people sick:
http://www.foxnews.com/story/0,2933,292271,00.html
There is other light and sound weapons with a variety of effects.
Frequencies that damage or destroy most unshielded electronics can be used.
https://acc.dau.mil/CommunityBrowser.aspx?id=146923
I could go on and on about new, and old less known technology used as weapons.
Nevermind things still classified citizens will learn about as they are used against them and others.

Some of these technologies can also be altered to become lethal tools. Future weapons of sweeping lethal beams is a reality.
Ray guns are a future reality.
In a future where much of the government possesses such things, they would still be "unusual and dangerous" and not "in common use" for the average peasant.
Things are changing rapidly, yet Heller allows all of it to forever be banned from use by regular citizens.


So no, you are right to be concerned. Heller legitimized many anti gun positions, and anti gun methods. The few things that could be positive have yet to be defined in ways that are positive through court cases.
So the only "good things" are not yet defined, meaning they are not even "good things" yet. So we got a lot of bad, and a few undefined "good".
The only defined thing is a complete and total absolute ban on handguns is not legal. However a very difficult restrictive process that significantly discourges most of the population, has long waiting periods, loses the applications regularly, expensive fees, allows x type of guns, y capacity...
So even that is just barely a partial win even in the couple cities it impacts.

Cyborg
November 21, 2008, 02:50 PM
the justices he may replace soon are all liberal to begin with, which means, he won't change a thing by replacing them. It will take DECADES to line everything up to overturn Heller.
The justices who have been hanging on through the Bush years and whom Barama will get to replace are indeed liberal. But every fraking one of them is MORTAL. One wacko like a Sirhan, an Oswald or a James Earl Ray could create an opening that would swing the 5-4 vote spread to Barama and company's way of thinking. Two wackos could guarantee the sort of massive societal change the left has been seeking for decades. Were I Chief Justice Roberts and/or Justices Scalia, Thomas, and Alito I would be sleeping in kevlar jammies, in a kevlar and steel armored sleep chamber and, while keeping my travelling to the absolute minimum, would travel in a Striker. Or at least one of those armored Mercedes we read about. If CJ Roberts and one - I say again ONE - AJ happened to "pass away" the left could do as it pleased.

Oh and anyone who thinks that once the left has its own way the Congresscritters won't make changes to stack the deck even MORE in favor of themselves is welcome to contact me about leases on prime bottom land I am offering a scant 2 miles from beautiful downtown South Padre Island. Got a cousin who'll give you a sweet deal on some land a couple miles from Myrtle Beach. ;)

Zoogster
November 21, 2008, 03:24 PM
So as I was saying in my previous post, most of the terms that set limits on anti gun laws are undefined.
So nobody needs to ignore Heller to undo any of its positives and keep all its negatives. They just need to define the undefined terms in ways that suit anti-gun positions.

So in reality Heller made infringement unquestionably legal in numerous ways (while previously it was done, but known it could be ruled unconstiutional if challenged), without setting too many boundaries for anti gun people.

Heller could be turned into the largest anti-gun rights ruling ever through the defining of the vague terms.

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