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Public Safety in Supreme Danger,Says UCLA Law Professor

Discussion in 'Legal' started by Winchester 73, Apr 28, 2008.

  1. Winchester 73

    Winchester 73 member

    A little pun in the title by the professor.

    By Adam Winkler


    Monday, April 28th 2008, 4:00 AM

    The future of gun control is at stake in the U.S. Supreme Court this spring. The court will rule on a case involving the basic Second Amendment right to bear arms - and what it decides just might throw gun laws across the country into total disarray.

    In the current case, involving a challenge to Washington's strict ban on handguns, legal experts predict the court will - for the first time - explicitly declare that the Second Amendment protects the "individual right" to own firearms for private purposes, such as self-defense or hunting. The other option, that the court says the right to bear arms is reserved for official militias, is a near impossibility.

    But settling that question will only raise a bigger one: Assuming there is an individual right to bear arms, what restrictions on guns are constitutional?

    The court will then have essentially two options: 1) hold that the arms right is subject to reasonable regulation; or 2) hold that the arms right triggers "strict scrutiny," meaning that government can only limit the right in the rarest and most compelling of circumstances.

    If the court chooses the second route, heaven help us.

    Strict judicial scrutiny would mean the end to a wide range of common, legitimate gun safety laws that Americans nationwide rely on to preserve public safety and protect children. These include bans on carrying concealed firearms; bans on assault rifles; trigger lock requirements; bans on guns in government buildings and schools; bans on possession by felons; and perhaps even basic licensing laws.

    Under strict scrutiny, every last gun control law - including the laws that New York City has enforced so effectively and aggressively to drive violent crime to record lows - will be presumed to be unconstitutional.

    That's not all. Tens of thousands of criminals are now serving sentences for serious gun offenses. All will suddenly be entitled to reopen their cases to argue that those gun laws violate the Second Amendment. Imagine the havoc.

    The danger was put in sharp relief at last month's oral argument on the case. The lawyer challenging D.C.'s gun laws argued that, under strict scrutiny, cities and states cannot ban a whole category of firearms, such as handguns. When pressed by the justices how that reasoning would apply to bans on another category of firearms, such as machine guns, the lawyer had no good answer.

    If the court makes the wrong choice, next thing you know someone will sue claiming the Second Amendment guarantees the right to walk down Fifth Ave. with a bazooka and a stash of grenades.

    The court can easily avoid these hazards by recognizing that the right to bear arms is subject to reasonable restrictions. Under this more relaxed standard, cities like New York would have much more leeway to enact measures limiting dangerous firearms.

    The "reasonable restriction" standard is already well established in the law. Forty-two states guarantee an individual right in their state constitutions and, under those provisions, courts routinely uphold reasonable public safety laws regulating guns.

    No, cities and states should not be allowed to completely disarm their citizens nor impose arbitrary and irrational burdens that serve no public purpose. But so long as law-abiding citizens have reasonable access to firearms for self-defense, lawmakers should be able to experiment with gun control laws in order to limit gang violence, reduce accidental deaths and avoid mass murders in schools.

    Even the Bush administration realizes this is the sensible course. Bush's solicitor general - who argued against the D.C. gun ban on behalf of the federal government - submitted a brief to the court endorsing the principle that the arms right was subject to reasonable restriction, which put him in hot water with far-right elements within the administration.

    If the court rules that the Second Amendment protects an individual right, the justices must make clear that reasonable regulations remain constitutionally permissible. Anything else is likely to be devastating for public safety.

    Winkler is a professor of constitutional law at UCLA Law School.
  2. PTK

    PTK Well-Known Member

    I didn't need to read further to know what kind of article this is. Putting things like individual right in quotations is a giveaway for a rather infantile mind when it comes to freedom and personal responsibility.
  3. ArmedBear

    ArmedBear Well-Known Member

    Fortunately, there is a better-known professor at UCLA, and one who concentrates on Bill of Rights issues, who is one of our best allies.
  4. Rumble

    Rumble Well-Known Member

    And there it is!
  5. Dick1911

    Dick1911 Well-Known Member

    History has proven Mr. Winkler so wrong :mad:

    It just boggles my mind that these people have any credibility at all. :banghead:
  6. romma

    romma Well-Known Member

    Okay Mr Proffessor, let's let all are rights become collective so that they are doled out by the government...

    Question is, are they still called rights at this point?
  7. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

    Well there is a principled stand for you... I recognize that the Second Amendment is an individual right; but why should we bother protecting it like the other rights in the Bill of Rights? Let's just jump straight to ignoring it...
  8. Rokyudai

    Rokyudai Well-Known Member

    oh-no-he didn't....

    ...and don't forget walking down fifth avenue with a bazooka. yup...that's my plan.
  9. ArmedBear

    ArmedBear Well-Known Member


    War is Peace
    Freedom is Slavery
    Ignorance is Strength
  10. -v-

    -v- Well-Known Member

    "legitimate gun safety laws ... include bans on carrying concealed firearms; bans on assault rifles; trigger lock requirements;"

    I stopped reading beyond this point. Another example of the ivory tower elite refusing to understand the actual, real needs of the common citizen, and preferring to look at the world through heavily rose-tinted glasses. I guess with them being so red, you can't really see the blood on the streets from the violence that is caused by giving the advantage to the criminal....
  11. ArmedBear

    ArmedBear Well-Known Member

    The thing is...

    If something is a RIGHT, then the presumed results of having that right DON'T MATTER to public policy. It's a right.

    Sure, if our country's courts enforce the constitutionally-protected freedom of religion, some people's kids will go off and join cults. But that's just tough ****. The right is far more important than our governments ability to "control" religions, and the unintended consequences of doing so are far too dire. Simply being able to point to cases where this freedom has led people to joining cults does not change the nature of the right.
  12. Henry Bowman

    Henry Bowman Senior Member

    I guarantee that the same sort of doom and gloom opinion pieces were written when the Supremes were considering Brown v. Board of Education.
  13. Standing Wolf

    Standing Wolf Member in memoriam

    Wrong. He's more a professor of un-constitional law.
  14. Punkermonkey

    Punkermonkey Well-Known Member

    If the Supremes interpreter- "...the right of the people to keep and bear arms...." to mean an individual right, would they then not have to interpreter "....shall not be infringed." as to hold all laws to strict scrutiny?

    Am I off track with this?
  15. ArmedBear

    ArmedBear Well-Known Member

    Well, public schools HAVE gone to **** since then, now, haven't they?;)

    If it were as socially acceptable to deny the importance of African-Americans having any rights at all, as it is socially acceptable to deny the right to self-defense, we'd be reading editorials about how we really should go back to segregated schools. As it stands, we only hear that sort of thing from the pastor, friend and mentor of our first serious black candidate for President, who was a Con Law instructor for 10 years... (Obviously I don't support segregation; I'm just struck by the contrast, and by how quickly those who supposedly teach about the Constitution will fall back on harebrained policy dogma, as soon as an enumerated right is not "politically correct".)
  16. gbran

    gbran Well-Known Member

    If SCOTUS rules that the individual does have a RKBA, the next logical question is when and where does that right exist. Surely our forefathers didn't confer or affirm that right to only exist in our homes. And they surely didn't intend that we lose the right when we got on our horse or into our buggies to go across town.

    Here in CA (barring a few exceptions), you cannot travel with a handgun in your vehicle without a ccw, unless it is unloaded and locked up, at which point it is no longer a functioning handgun, kinda like a DC gun-ban on wheels.
  17. MechAg94

    MechAg94 Well-Known Member

    And not a single one of those laws does a dang thing to really and directly increase public safety as criminals who really want a gun will get one and take it anywhere they please.

    I honestly think things like felons banned from owning guns would be upheld even in the strict scrutiny case he mentions as they have shown they are a danger to society (in the case of many felonies at least). A way to regain rights might be obtained though.
    (Maybe that is just me stuck in the status quo :) )
  18. divemedic

    divemedic Well-Known Member

    Why is doing that any more of a problem than a person carrying a handgun, or even a hunting knife? As long as they are not hurting anyone, or threatening anyone with it, what is the problem?
  19. ArmedBear

    ArmedBear Well-Known Member

    BTW this statement is pure demagoguery. A UCLA professor should be embarrassed to write this. In fact, if it involved almost anything besides the right to keep and bear arms, he would be embarrassed by his colleagues for writing it.
  20. doc2rn

    doc2rn Well-Known Member

    He is afraid we will be able to carry on campus soon, that is why he said it is for the sake of the kids.

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