Results of Heller


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browneu
January 28, 2013, 09:40 PM
I'm into a discussion with an anti and he stated that the supreme court found that guns can be regulated in the Heller case.
I understood the Heller to vindicate the second amendment as an individual right.

Is he correct and what are the interpretations of the case?


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suemarkp
January 28, 2013, 11:35 PM
Yes, I think it was Scalia who said the government was within their rights to keep guns from felons and crazy people. It was more of a restriction on who instead of what. The Heller decision said guns in common use are what is protected. I'm not sure who "common use" was referring to -- the people, the police, the military, or what.

browneu
January 28, 2013, 11:51 PM
I see. So the limitation is more on who and instead of what.

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Artigas
January 29, 2013, 12:26 AM
Guns in common use are protected from law... but the guns in common use are the result of laws previously passed (NFA, GCA, etc.). Circular logic?

CLP
January 29, 2013, 12:27 AM
Yes, Heller said that the gov't can place reasonable restrictions on certain features on guns (eg. DC banned bottomloading handguns and is essentially limited to revolvers for handguns if I'm not mistaken). Heller was involved in a 2nd case because of DC's restrictions but the appeals court upheld it. You can wiki Heller and there's a link to a pdf of the actual SCOTUS transcript/opinions. The issue with mags and AR's is that banning them will have NO effect on gun related crime and only infringe on the rights of lawful citizens. But it's a carrot for the politicians that allows them to tell their flax seed munching constituents that they helped make a change. They need to solve the underlying problems.

Frank Ettin
January 29, 2013, 01:40 AM
I'm into a discussion with an anti and he stated that the supreme court found that guns can be regulated in the Heller case.
I understood the Heller to vindicate the second amendment as an individual right.

Is he correct and what are the interpretations of the case?...Here's how it all lays out:

In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.


There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far been the standard generally applied to regulation of a fundamental right enumerated in the Bill of Rights.


There are three prongs to the strict scrutiny test, as follows:


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


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


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).


The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.


Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.

Colonel
January 29, 2013, 06:58 AM
The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

So...wouldn't "getting and/or keeping the people disarmed" be just as much "an important government interest" as "getting and/or keeping the chickens disarmed" would be "an important Colonel Sanders interest"?

That must be why gun control is so popular in places like Darfur!

Sorry, Frank – not trying to step on your post, just pointing out a paradoxical problem with the whole thing.

Wasn't the primary purpose of the Second Amendment to protect the people from the government?

And if so, wouldn't disarming the people be the most "important interest of government" of them all?

Just food for thought... :evil:

Phatty
January 29, 2013, 11:13 AM
Frank explained the legal consequences of the Heller ruling, so I'll just explain the practical consequences in simple terms.

Before Heller, if you tried to challenge a gun law, the court would simply assert that you have no individual Second Amendment right and you would lose -- no questions asked.

After Heller, if you try to challenge a gun law, the court will recognize that you have an individual Second Amendment right but find that Heller specifically authorizes gun regulations so you lose.

One out of every 100 cases after Heller might break from the mold and find that a law violates the 2A, but for the most part, virtually every judge simply quotes the language from Heller that endorsed gun regulations to uphold whatever law is being challenged.

Lower court judges (with a very few exceptions) have been extremely hostile to the Heller ruling and have gone out of their way to construe it as narrowly as possible.

bushmaster1313
January 29, 2013, 01:32 PM
Reasonable regulation is allowed, just like any other civil right.

Even Alan Gura, the attorney who won Heller, concedes that the government can prohibit open carry or concealed carry, but not both.

IMHO, it would not violate the Constitution to have a law which said that it is illegal to have a real gun with an orange tip

browneu
January 29, 2013, 02:33 PM
Interesting, I didn't realize it could get so complex.

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bushmaster1313
January 29, 2013, 03:08 PM
Also, the Supreme Court in Miller had no trouble with a law that it was illegal to have a sawed off shotgun if you did not do the NFA paperwork.

mljdeckard
January 29, 2013, 03:10 PM
The reason we like it overall, even if some of the language gives us the willies, is that it took away the antis' biggest argument and gameplan against us, that the Second Amendment is not for citizens, it is for the national guard, or other such entity. In declaring that the rigle applies to INDIVIDUAL people, they can no longer say that people aren't allowed to have guns at all.

Frank Ettin
January 29, 2013, 03:23 PM
The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

So...wouldn't "getting and/or keeping the people disarmed" be just as much "an important government interest"...Didn't work in Heller or McDonald. It's not enough for government to say it's an important governmental interest. Government must be able to demonstrate it to the satisfaction of the court. And the courts have set a reasonably high bar. A court is going to see through the tautological argument that, essentially, depriving someone of a fundamental right protected under the Bill of Rights is an important governmental interest justifying depriving someone of a fundamental right protected under the Bill of Rights.

...After Heller, if you try to challenge a gun law, the court will recognize that you have an individual Second Amendment right but find that Heller specifically authorizes gun regulations so you lose...Which is why a thoughtful and measured litigation strategy is so important.

We have over 70 RKBA lawsuits pending in various stages in federal courts around the country. We're trying to lay a foundation of useful precedent and to get some good cases in front of the Supreme Court.

While we've had some disappointing decisions come down, we also gotten some good decision at the District Court and Circuit Court level. And we have some solid historical and legal scholarship behind us.

However, the reality is that many existing restrictions on the RKBA will most likely survive judicial challenge.

Colonel
January 29, 2013, 03:31 PM
Also, the Supreme Court in Miller had no trouble with a law that it was illegal to have a sawed off shotgun if you did not do the NFA paperwork.

Not quite.

As I understand it, in Miller's original trial, the lower court threw out the case after Miller's lawyer argued that the part of NFA prohibiting a sawed-off shotgun without a license violated the 2A. The judge agreed and threw out the case.

Miller then disappeared and the government appealed the case to the Supreme Court.

When SCOTUS heard the case, Miller's lawyer wasn't there, so the Court heard only the prosecution's side of the case.

The Supreme Court held, in effect, that the Second Amendment protects militia-type arms, and that in the absence of any evidence in the record about whether a sawed-off shotgun was a militia-type arm, the Court said that it didn't hold the NFA to be violative of the Second Amendment and sent the case back to the federal district court to determine whether a sawed-off shotgun had militia use.

In the meantime, Miller, who was a government informant snitch, had been murdered, and the only reason the case survived was because he had a co-defendant.

So all the Miller case really did was say that:
a) the 2A protects militia-type arms, and
b) without any evidence that a sawed-off shotgun has militia use, we're throwing it back to the lower court to answer that question.

Phatty
January 29, 2013, 03:33 PM
Which is why a thoughtful and measured litigation strategy is so important.
I completely agree. The problem, of course, is trying to explain that strategy to a criminal defendant charged with breaking a gun law. Those defendants will assert whatever legal arguments they can make to try to avoid a conviction. I can't really blame them; I'd do the same thing in their shoes. But it sets the movement as a whole back because you end up with weak arguments made by public defenders in front of hostile courts with unsympathetic facts.

For example, the optimal strategy for challenging the federal ban on possession of guns by felons would have been to find a guy convicted of a nonviolent felony 40 years ago when he was a teenager who has been a model citizen ever since. Instead, we ended up with a never-ending stream of gangbangers/drug dealers with long criminal records who were charged with possession of a gun by a felon and tried to get their convictions tossed by claiming that the law was unconstitional under Heller. The courts reviewing those cases didn't think twice about rejecting that argument. Bad facts create bad law.

pendennis
January 29, 2013, 09:53 PM
Not quite.

As I understand it, in Miller's original trial, the lower court threw out the case after Miller's lawyer argued that the part of NFA prohibiting a sawed-off shotgun without a license violated the 2A. The judge agreed and threw out the case.

Miller then disappeared and the government appealed the case to the Supreme Court.

When SCOTUS heard the case, Miller's lawyer wasn't there, so the Court heard only the prosecution's side of the case.

The Supreme Court held, in effect, that the Second Amendment protects militia-type arms, and that in the absence of any evidence in the record about whether a sawed-off shotgun was a militia-type arm, the Court said that it didn't hold the NFA to be violative of the Second Amendment and sent the case back to the federal district court to determine whether a sawed-off shotgun had militia use.

In the meantime, Miller, who was a government informant snitch, had been murdered, and the only reason the case survived was because he had a co-defendant.

So all the Miller case really did was say that:
a) the 2A protects militia-type arms, and
b) without any evidence that a sawed-off shotgun has militia use, we're throwing it back to the lower court to answer that question.
I thought that part of the rub in Miller, was that Miller's codefendant, Layton, made a plea bargain, and got probation. So the original charges were never adjudicated through trial. Also, weren't there some procedural issues with the appeal to the Supreme Court?

At any rate, it always seemed that Miller was not a good case, since it was so riddled with problems and unanswered questions; and the legal opinions seemed to have had so much weight in the "militia" argument.

joeschmoe
January 29, 2013, 11:11 PM
To answer the OP question; No. That is not what Heller ruled. Heller was the striking down of a total gun ban in DC. They also ruled that the 2nd protected a right to arms, unrelated to it's Militia connection.
The important ruling in Heller is they ruled that the right to arms is a "Fundamental Right", similar to other fundamental rights like speech, religion, trial, etc.
While it's true that no right is unlimited, some restrictions can be allowed, fundamental rights have the highest level of protection and what's called "strict scrutiny" test of any restrictions.

It is completely backwards to claim that "supreme court found that guns can be regulated" in Heller.

McDonald case later expanded this to include this fundamental right to all the states under the 14th Amendment, called incorporation.
In Miller, the court ruled that unusual weapons, not usefull for Militia use, can be regulated. Guns that are usefull Militia weapons can not be infringed because you are the Militia and you are expected to bring your own arms for Militia use or self defense.

natman
January 31, 2013, 03:49 PM
Let's take a look at what Heller actually says:

Held:
1. 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.



(f) None of the Court’s precedents forecloses the Court’s interpretation.
Neither United States v. Cruikshank, 92 U. S. 542, 553, nor
Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual rights
interpretation. United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes.

Here's the part that some choose to grossly misinterpret:

2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.

So the SC says that restrictions on concealed carry are OK, background checks are OK and the NFA is OK. It seems pretty clear what sort of regulations they are allowing.

OTOH, as a ban on an entire class of arms that have a clear militia purpose and are certainly in common use, an AWB would NOT be allowed:

The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this
prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.

This is all in the first three pages of Heller (http://www.supremecourt.gov/opinions/07pdf/07-290.pdf). All emphasis has been added.

Frank Ettin
January 31, 2013, 04:26 PM
...Here's the part that some choose to grossly misinterpret:

2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues. The Court’s opinion should not be taken to cast
doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or
laws imposing conditions and qualifications on the commercial sale of
arms. Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.

So the SC says that restrictions on concealed carry are OK, background checks are OK and the NFA is OK. It seems pretty clear what sort of regulations they are allowing.... Not necessarily. You're reading too much into that statement.

First, it's mere dicta, i. e., it's not necessary to the opinion. Second, these questions weren't before the Court, so the Court can not rule on them. The Court is merely (1) reinforcing the point that it's likely that some regulations of the rights described in the Second Amendment will be sustainable; and (2) emphasizing, correctly I think, that existing laws defining prohibited persons, or restricting the carrying or arms in certain places, or imposing qualifications on commerce in firearms are unlikely to be overturned.

Those various matters aren't settled, but some challenges are likely to have little to no chance of success.

natman
February 1, 2013, 03:37 PM
Not necessarily. You're reading too much into that statement.

First, it's mere dicta, i. e., it's not necessary to the opinion. Second, these questions weren't before the Court, so the Court can not rule on them. The Court is merely (1) reinforcing the point that it's likely that some regulations of the rights described in the Second Amendment will be sustainable; and (2) emphasizing, correctly I think, that existing laws defining prohibited persons, or restricting the carrying or arms in certain places, or imposing qualifications on commerce in firearms are unlikely to be overturned.

Those various matters aren't settled, but some challenges are likely to have little to no chance of success.

You're right, I didn't mean to imply that the issues were settled law, but it's clear which way the court is leaning on the issues mentioned.

The point I was going for is that it certainly is not a blanket blessing of any sort of regulation someone can dream up, even though that's exactly how some are spinning it. Grasping at straws and spinning them into a haystack is an art form with some people.

legaleagle_45
February 2, 2013, 01:46 PM
The most important fact to understand is that while some gun regulations are valid under Heller, that does not mean that any and all regulations are therefore valid. No right is absolute and courts have validated certain regulations under heightened scrutiny analysis. There have been several posts concerning levels of scrutiny but here is something in non legalese.

Strict scrutiny: The government has an extremely important reason for imposing the law and the law is restricted so that it only relates to that extremely important reasons

Heightened scrutiny: The government has a pretty important reason for imposing the law and it is so restricted so as to not unduly expand coverage beyond this important reason.

Rational Basis scrutiny: The governemnt can articulate a reason for the law which does not induce spontaneous laughter from judges sitting on the bench

Heller rejected Rational Basis scrutiny for the regulation of 2nd Amend rights, but left open the possible application of Strict scrutiny and/or Heightened scrutiny. The Circuit Courts seem to impose Heightened scrutiny more often than Strict scrutiny (perhaps because of their animus to gun rights). A more approriate analysis would be to impose strict scrutiny whenever their is an absolute bar on the exercise of the core right protected by the 2nd and impose Heightened scrutiny on laws which regulate the manner and means by which you may exercise the core right protected by the 2nd. ... IMHO

bushmaster1313
February 3, 2013, 11:06 PM
So all the Miller case really did was say that:
a) the 2A protects militia-type arms, and
b) without any evidence that a sawed-off shotgun has militia use, we're throwing it back to the lower court to answer that question.

Assuming this is true, I believe Miller will be cited and followed to allow NFA regulation of certain weapons.

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