Second amendment decisions.


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Randall53
December 12, 2012, 10:53 PM
I've got a question about the 2 Supreme Court decisions regarding Washington, D.C. And Chicago and future decisions if they ever occur.

We here all the time that if a S-C negative decision can be made in the near future regarding firearms, that our rights to firearms will be gone forever. Well, my question is this. How can that be true if a new decision can be made to over ride the two victories I spoke of above? How would a new negative decision be "forever" if the two victories above can ba reversed? This does not make sense to me at all. We here of precedents that were set over a hundred years ago that guarantee a right. Here we are told the precedents set in D. C. and Chicago could be eliminated.

Somebody please explain this to me.

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Delmar
December 12, 2012, 11:06 PM
reinterpretation of the law

TurtlePhish
December 12, 2012, 11:44 PM
Yes, reinterpretation. The current interpretation is a positive for the Second Amendment. However, if a case with the same sort of decision comes up again and the SC decides the other way, that new decision is now precedent/case law.

MachIVshooter
December 12, 2012, 11:51 PM
They are unlikely to revisit RKBA in the near future. The Justices know that if they flip flop rulings every few years, the high court becomes wholly irrelevant, and the justices would be seen as just another capricious, self-serving group of politicians.

cl4de6
December 12, 2012, 11:53 PM
Reversing Heller/McDonald would probably trigger a push for a 28th Amendment, which would clarify the 2nd without that nasty comma.

bushmaster1313
December 13, 2012, 12:00 AM
If one of the five current pro-RTKBA Justices is replaced by an anti-RTKBA Justice and Heller or McDonald is overturned, the odds of getting in our lifetimes five Justices who would uphold the RTKBA are very small.

Reversing Heller/McDonald would probably trigger a push for a 28th Amendment, which would clarify the 2nd without that nasty comma.

Text of the proposed 28th Amendment:

The 2nd Amendment means what it says.

Randall53
December 13, 2012, 11:36 AM
Well, thanks for the replies. I know this is a subject dear to our hearts, or should be if you love the shooting sports and its not, and I thought that after a S. C. decision was made it became the law of the land and a reversal of previous decisions would be impossible, or practically so, with so many references to decisions made many years ago often cited in later court cases. I can't remember it ever happening in my sixty years, but I know that doesn't mean It hasn't.

Then, I read in every issue of The American Rifleman about the dangers of losing all of our gun rights forever if Obama replaces the two justices that may soon retire with those sympathetic to gun control, or gun elimination crowds. Forever was the confusing part to me since for this to happen the past two decisions would have to be eliminated and if that could happen, why could the new decision that eliminated those decisions could never be subject to the same type of reversal. I've thought a lot about this and couldn't get a clear picture. I do understand better with the comment of how hard it would be to get a court back in place that would be pro gun and how long that would be which would probably be beyond my and many other American lifetimes since I'll be 60 in a few weeks.

The present court is obviously extremely partisan in their interpretations of every issue and decisions seem to be made with little effort to interpret anything with any thought to original intent but rather to their political views. Supposedly, the next four years may tell the tale since Obama may be able to appoint 2 more justices to the high court. He's already appointed 2 in his last term and we were lucky it was liberal for liberal exchanges. I read where Obama had required Justices Elena Kagan and Sonia Sotomayor to offer him their assurances of their commitments to support abortion rights before he nominated them to the high court. If he does get the same opportunity this next term I'm sure the requirement will be a commitment to eliminating gun rights. It's unfortunate that a president so intent on disarming the American people could possibly appoint FOUR FREAK'N justices. Sotomayor is only 58 and kagen is only 52, so they won't be going anywhere for a very long time due to lifetime appointments.

Both revealed a severe weakness to the lifetime appointment system in my opinion due to their poor character, and willingness to outright LIE to get the job by showing a total disregard to the rights of Americans when both lied when asked their beliefs regarding Second Amendment questions and the Washington DC decision by stating that they were "settled law" during confirmation hearings, yet both then voted against gun rights in the Chicago ruling.

I know that we have the best system of government presently in existence and probably would be perfect IF you could get past the weakest link, which is human nature and the inability of humans to set their feelings and beliefs aside in making any form of decisions and suppress the desire to conform everyone to their point of view.

MachIVshooter
December 13, 2012, 11:54 AM
Then, I read in every issue of The American Rifleman about the dangers of losing all of our gun rights forever if Obama replaces the two justices that may soon retire with those sympathetic to gun control, or gun elimination crowds. Forever was the confusing part to me since for this to happen the past two decisions would have to be eliminated and if that could happen, why could the new decision that eliminated those decisions could never be subject to the same type of reversal.

It's called fear mongering, and it's one of the NRA's favorite tactics to generate funds via new memberships and donations.

This is not to say that 2 new liberal justices won't be a scary thing, but please remember that we don't just have 9 judges sitting around a table saying "what law shall we reinterpret today?"; It has to be a case, it almost always has to have gone through lower courts, and it has to be deemed worthy by the supreme court before they hear it and rule on it.

HoosierQ
December 13, 2012, 12:01 PM
They are unlikely to revisit RKBA in the near future. The Justices know that if they flip flop rulings every few years, the high court becomes wholly irrelevant, and the justices would be seen as just another capricious, self-serving group of politicians.
This is key. Basically we have the Second Amendment, and we have two pro RKBA Supreme Court decisions under our belts here. Any future reinterpretation will pretty much have to build upon prior decisions...such as Heller and McDonald.

In contrast, look at Roe v Wade (just for a look at how the supreme court works). Lots and lots of people hate that and what it means. Presidents, Senators. Frankly only a relatively few people actually like it. However it stands. Each state has seen fit to make laws that fit within its scope. But it stands and the court has yet to hear a case that would change it. That is one case with absolutely no Bill of Rights Amendment behind it...and it stands in the face of some rather ferocious opposition.

Back to RKBA. Gun control is favored by relatively few people really. Politicians on both sides of the aisle are pro-gun...plenty of otherwise just downright liberal politicians get A's from the NRA...and boatloads of garden variety Democrats. There is a Bill of Rights Amendment in place, and two...not one, two...Supreme Court decisions in place. That is a lot to overturn...in my opinion, too much to overturn.

Now what it isn't is enough is to actually prevent any sort of future decision that might be considered to support "gun control". Some state might pass a law that requires all handgun owners have a permit. If that made it all the way to the Supreme Court might uphold a state's right to do something like that...or they might find it unconstitutional. But that would not overturn Heller or McDonald as long as the state actually did issue permits to those who applied for them and they put no unconstitutional restrictions on them.

So there might be "pro gun control" decisions made in future. We won't see the "anti gun control" decisions overturned.

Sam1911
December 13, 2012, 12:40 PM
I thought that after a S. C. decision was made it became the law of the land and a reversal of previous decisions would be impossible, or practically so, with so many references to decisions made many years ago often cited in later court cases. I can't remember it ever happening in my sixty years, but I know that doesn't mean It hasn't. It certainly isn't impossible, but a SCOTUS decision is seriously heavy precedent. Look up the phrase stare decisis.

Having said that, not every case involving the 2nd Amendment that ever will be tried has been tried, and it is always possible that the Court could choose to hear yet another serious challenge and choose to interpret the previous decisions more strictly or loosely than we'd like, or (yes, it is possible) even reverse them.

The idea though, that "as soon as 2 anti judges get appointed our RKBA is GONE!!11!1!" is a gross overstatement and misunderstanding. If nothing else, the court doesn't get to simply decide to say "hey, we want to rule on purple widget rights today..." A specific case dealing with an issue has to percolate through the legal system from the lowest levels -- be decided and appealed through the various state and district courts -- until SCOTUS even gets the chance to decide if they will rule on it. (Which they can simply refuse to do.)

That takes 10 years at an almost absolute minimum.

Randall53
December 13, 2012, 12:42 PM
Thanks to all who replied. I now have a much clearer picture. I gotta say I love this forum. I read much more than I post, but I'm always amazed at the knowledge this place contains!!

sawdeanz
December 13, 2012, 12:45 PM
Thanks hoosier for bringing some rationality and sence, sometimes I'm afraid that fear mongering on the pro-gun side makes us look crazy.

BSA1
December 13, 2012, 01:11 PM
When reading the Supreme Court decisions it is also important to read the disenting Justices opinions. The Court decision are also broad and leave much for the States and Lower Courts to flesh out.

I am of minority opinion that Heller was not as big of gun victory as supporters crow about. The Court states in it's decision the it does not rule out the possibility that entire classes of firearms may be illegal to own. So the Court leaves itself open that it may consider a case banning let's say so-call "assault rifles".

HoosierQ
December 13, 2012, 01:59 PM
When reading the Supreme Court decisions it is also important to read the disenting Justices opinions. The Court decision are also broad and leave much for the States and Lower Courts to flesh out.

I am of minority opinion that Heller was not as big of gun victory as supporters crow about. The Court states in it's decision the it does not rule out the possibility that entire classes of firearms may be illegal to own. So the Court leaves itself open that it may consider a case banning let's say so-call "assault rifles".
I believe this is true enough. However I think it important to note that leaving options open is a far cry from actually doing same and, left open or not, they will be very averse to condradicting themselves. And by they I mean whomever we may find on the court in the decades to come. The Supreme Court, by nature, is going to be very wary of making a decision, or even hearing a case in the first place, where a very vague term like "assault weapon" is key. There would have to be a whole framework in place prior to hearing (or making a decicion on) such a case just to establish what the darn thing actually was. No framework, no case. A state or locality might limit the loaded capacity of firearms and such a case might or might not make it up that far. Well we have those all over the place already and nobody has managed to get a challenge to those limits up there.

I think we are most likely to see the court leave a fair amount of discretion to the states (short of outright bans which the court has ruled upon favorably for RKBA) and quite honestly, you may have to just move if the state you're in has gun laws that chap your behind. The court is not likely to be very interested in the fact that you can't have hollow points in NJ...they're not going to touch a case like that. Wanna shoot hollow points, you pretty much got 49 other states (give or take) where you're good. You don't wanna push a bullet button with a "tool", well we got 49 states where you don't have to. You want to carry a handgun under your shirt, we currently have 49 states with one degree or another of ability to do that legally, maybe 45 or so where it's rock solid. The court is not going to mess with these laws unless somebody is able to make a very solid case. Frankly such a case may involve more than the Second Amendment and speak perhaps to interstate commerce.

readyeddy
December 13, 2012, 02:05 PM
The court will follow it's prior decisions unless they believe a fundamental error was committed, in which event the court can over turn its prior decision. It's not as arbitrary as it sounds, but change can take place in the future.

Phatty
December 13, 2012, 03:39 PM
Even if nine bleeding heart liberals suddenly were appointed to the Supreme Court tomorrow, I don't think Heller will be reversed. But the main reason is because they wouldn't have to reverse that decision to achieve their desired result. Most lower courts interpreting Heller have interpreted that decision extremely narrowly.

In other words, Heller only stands for the rule that a total ban on the possession of a working handgun in a person's home is not permitted by the 2nd Amendment. That holding at the time it was issued only had practical effect in D.C. and Chicago, the only two locations in the United States with such a ban. In order for that question to be revisited by the Supreme Court, a state or local government would have to adopt such a ban again. That's not going to happen, so there won't be an occasion for even a liberal Supreme Court to revisit that particular holding.

Every other possible gun law that might come before the Supreme Court could still be invalidated without overruling Heller. They could simply interpret Heller narrowly and say, "but in this case 'x', and we do not believe the 2nd Amendment extends to that activity."

Long story short, in a worst-case scenario, Heller won't ever be overruled it will simply be narrowly interpreted into a meaningless blip in history.

Frank Ettin
December 13, 2012, 04:21 PM
Note that decisions like Heller and McDonald aren't the end of things. Both left any number of open issues, e. g., the level of scrutiny applicable to gun control laws. As Second Amendment litigation continue and other RKBA questions get to the Supreme Court, the Court will have opportunities to either narrow or expand the RKBA, or, as Phatty pointed out, let unsatisfactory lower court decisions stand.

Note also that four Justices can decide to grant a petition for certiorari for the Supreme Court to hear an appeal.

So on one hand, I doubt that we'll see any retreat from the core ruling of Heller and McDonald that the Second Amendment describes an individual right applicable also against the States through the 14th Amendment. But even starting there, there's a lot an antagonistic Supreme Court could do that we wouldn't like.

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