2A - Individual or Collective - and then what?

[absolut_beethoven]

I'm just curious from all our legal and knowledgeable members here - so what happens if the USSC rules that 2A is an individual right?

More specifically, what happens to all those decisions handed down by our activist judges on the 9th circuit et al, whose reasoning hinged on the 2A being a collective right and not an individual one?

Do they automatically become null and void, or does each one need to be challenged on an individual basis?

Thanks in advance for help on this.

 

[Cyclimus]

As I understand SC decisions, once a precedent is set, then each unconstitutional law can be challenged against the new legal precedent. Only specific laws struck down by the SC have been officially ruled upon.

 

[Sam Adams]

If the Court affirms the Circuit Court decision, then Heller and ONLY Heller won the case. DC's laws at issue would be unconstitutional. Period.

Of course, with that precedent, a whole host of federal laws are at risk of being similarly unconstitutional (since DC is a federal enclave, under the jurisdiction of Congress...which LETS DC have a city council, a mayor and limited home rule). Primary among those laws at risk IMHO is Title 18, Section 922(o), which is the 1986 machine gun ban. But it is still good law until successfully challenged.

I have a very strong feeling that if this case turns out well for us, someone out there (maybe even Gura, the lead attorney on Heller) will very shortly thereafter be filing a case against Chicago - which has a similar-to-DC handgun ban. That will be THE incorporation case of the decade (at least). "Incorporation" being the application any of the Bill of Rights against the states and their subsidiary governments, based on the text of the 14th Amendment. The 2nd hasn't been incorporated against the states for very good reason - the 2nd hasn't yet been ruled to be an enforceable part of the Constitution for individuals. Heller should change that.

Me, I'd like to see a case brought against the BATFE for failing to issue a tax stamp for an M4 or M16. 922(o) must go down - it is simply intolerable that this illegal federal law has completely distorted the market for full autos, and has simultaneously made permanent a large discrepancy in power between the militia and the regular armed forces.

 

[Ratzinger_p38]

someone out there (maybe even Gura, the lead attorney on Heller) will very shortly thereafter be filing a case against Chicago - which has a similar-to-DC handgun ban.

No, IIRC that would be unenforceable right away.(I think, being that it is almost identical to DC's) After the SCOTUS case Lawrence v. Texas, all state sodomy laws became unenforceable, even though Texas was the loser.

I think I am correct, but feel free to correct me if I am not.

 

[jlbraun]

After the SCOTUS case Lawrence v. Texas, all state sodomy laws became unenforceable,

Lawrence vs. Texas is completely different than Heller. A Heller win will not affect the Chicago ban in the least. Another case is needed, and Gura himself has said that a Chicago case is on deck.

 

[absolut_beethoven]

If the Court affirms the Circuit Court decision, then Heller and ONLY Heller won the case. DC's laws at issue would be unconstitutional. Period.

Thanks for your informative response.

Yes, I understand what you're saying, but my question is not so much about the ban itself, because as you mentioned other cities will need to be challenged individually, my question is more specifically related to the USSC clarifying once and for all in their decision - as they appear to have done in rewriting the original questions - that RKBA is an individual right.

Logically, to me anyway, that other laws that hinge specifically on it being a collective right would now be null and void, as Ratzinger_P38 mentioned with Texas sodomy laws.

And of course, as Sam Adams pointed out that many other laws, not only necessarily outright bans like Chicago and NYC, will also be open to attack if we get a really good unambiguious decision.

 

[absolut_beethoven]

jlbraun, good to hear that Chicago is lined up next.

I wonder if they can also take on Daley and his clowns at the same time too.

Thanks guys for taking the time to clarify things for me.

 

[ctdonath]

Ratz brings up a good tangent: gun laws aside, what other laws would fall? Stewart lost his homemade machinegun case because Raich - a drug case - failed. Roe v. Wade's "privacy" basis* could be used to justify Heller - the feds have no business regulating what was construed as an unprohibitable private activity, even though it typically occurs outside the home at a location advertising such services which use tools made for that purpose ... so keeping a handgun (or M4?) at home for private home defense isn't any business of the feds either (a suggestion has been raised this may very well be a point made by at least one SCOTUS judge). What other "governmental interest" regulations may fall if RKBA is deemed formally individual, and used as a template? In contrast, if "collective right" is declared for RKBA, what else (like Roe v. Wade) could be overturned as a private activity nonetheless "reasonably" subjected to state/community/social interest?

(* - I mention that with NO interest in getting into a debate about that case, only to extrapolate its reasoning to something else.)

 

[ctdonath]

To the original question:
I gather some laws will simply fold up because the enforcing government will realize that they simply will not stand up in court under such a verdict. Some will continue to enforce those laws anyway, pushing the issue until someone finally pushes back.

Do notice that many briefs, including Heller's, take pains to claim that few laws will actually be changed, that "reasonable regulation" will apply and the laws will stand. There are, in fact, few outright prohibitions involved: 922(o) is the only other real federal prohibition I can think of (gun related), and few other jurisdictions outright ban classes of weapons (even NYC allows handguns when you jump thru all the many hoops).

Fewer laws may be affected than you hope.

 

[General Geoff]

I gather some laws will simply fold up because the enforcing government will realize that they simply will not stand up in court under such a verdict.

Doubt it. I think any government (be it federal, state or local) that has enacted unconstitutional gun bans will fight, tooth & nail, kicking and screaming until they're finally ordered by a court of law to stop enforcing said defunct ban(s). Kinda like what D.C. is doing now.

I honestly wouldn't put it past D.C. (or Chicago if their ban gets declared unconstitutional) to continue enforcing the law despite the court ruling.

 

[Ergosphere]

What's next? How about incorporation under the 14th Amendment? That would be required in order to prevent infringement by state or local laws in the few states that don't guarantee the RKBA in their state constitution. Also, Heller addresses the right to keep arms, but it does not consider the right to bear arms. That will require yet another case.