When Will The Second Amendment Become A Right of All Citizens?_Gun News Daily ^ | March 15, 2008 | Ralph Weller
The Constitution of the United States granted certain but limited powers to the newly formed federal government. Shortly thereafter, the first Congress introduced the Bill of Rights, the first ten amendments to the Constitution. The intent of the Bill of Rights was to specifically state what rights the federal government could not infringe, restrict or abridge. It is important to note that states were not forced to comply with the Bill of Rights. These were not rights granted to all people of the United States, but merely restricted the federal government from infringing upon them. After all, the thought of the day was that states wouldn't restrict these rights, but an overzealous federal government might. When the federal government was formed in 1789 it was weak by design, and the founders wanted to keep it that way.
The relationship between the federal government and the states changed upon conclusion of the civil war in 1865, which was fought over states' rights, primarily slavery. It became the most significant amendment to the Constitution since creation of the Bill of Rights, and changed the face of our federal government forever.
The 14th Amendment was ratified and in part says: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The 14th Amendment ended slavery once and for all, but it only set the stage for states to comply with the Bill of Rights. Preceding the 14th Amendment were 13 others that existed prior to the 14th being ratified. It required, from a legal standpoint, that the other 13 amendments be "incorporated" into the 14th by the court system and be recognized as rights that everyone enjoyed as a citizen or legal resident.
As history has proven, no significant Second Amendment challenges were presented to the Supreme Court for interpretation and incorporation into the 14th Amendment. States continued to create gun laws as well as the federal government without consideration as to whether Second Amendment rights were being violated. The most significant in recent years was the 1994 "assault weapon" ban, which expired in 2004. The law essentially banned the sale of certain, but not all, semi-automatic rifles and shotguns, only those semi-autos that looked like military-issue firearms. If it looked like a hunting rifle, it was not banned.
Gun control and anti-gun proponents have argued for years that the Second Amendment was ruled upon by the Supreme Court in the 1939 Miller case. Both sides claim the Miller case makes their point. However, when both sides of the gun control argument can claim victory in the Miller case, yet gun rights continue to be infringed at the state and federal level, Miller had no teeth in favor of either party.
In essence, the Miller case died with a whimper that day in court and was allowed to just go away. The Miller case was a non-starter the day it arrived in court and has gone down as nothing but a footnote in Supreme Court cases. That doesn't mean it is completely irrelevant as it relates to Heller, but for the court to draw constitutional conclusions one way or the other from the Miller ruling would be a stretch.
This now leaves us with the Heller case. Will the Supreme Court incorporate the Second Amendment as it relates to the 14th Amendment? Washington D.C. is not a state but a district under control of Congress. Most experts feel the court will not take the step of incorporation into the 14th Amendment. It is expected that this ruling will affect only Washington D.C. It will require another Supreme Court case that incorporates the Second Amendment into the 14th Amendment. However, interpretation of the Second Amendment in Heller may provide the legal wedge necessary to launch other cases to achieve incorporation.
This brings us to the term "strict scrutiny." The term strict scrutiny is exactly as it implies. It means that laws can be created, but they must be scrutinized to make sure they do not exceed the limits of a narrowly defined court ruling. Laws must be "narrowly tailored" and the government must have a compelling interest in restricting a constitutional right. In terms of the Heller case, every civil rights attorney in favor of overturning the gun ban are hoping the court will apply strict scrutiny to its ruling in favor of an individual right. That will easily pave the way to challenge other gun laws nationwide that do not meet the strict scrutiny standard defined by the court.
A recent example of strict scrutiny has occurred within the past month. A federal judge in San Francisco ordered Wikileaks.org to be taken off the internet because of a lawsuit filed by a Swiss bank over documents published on Wikileaks that showed the names of people pumping money into very private Swiss bank accounts and possibly through a Cayman Islands owned branch. Less than a week later on Friday, Feb 29, 2008, the judge reversed his decision citing First Amendment concerns.
The problem with his original ruling was rather than ordering the documents that were directly related to the case removed from the site, he ordered the entire website be taken off the internet. In other words, he did not narrowly tailor his ruling. He shut down access to all documents unrelated to the lawsuit and most likely violated First Amendment rights of free speech. This federal judge simply went too far and was heavily criticized for his excessive restrictions. It would be like ordering NBC News off the air because of an injunction filed by a company over one news article it wanted to keep off the air.
In Heller, the court citing strict scrutiny might perhaps say the government must have a compelling interest to restrict firearms access to citizens but could restrict felons and those adjudicated as mentally deficient or mentally ill, which are current federal laws. It may stop there and go no further. Court cases will immediately be launched in lower federal courts challenging certain state laws based on the court ruling, with a goal to incorporate the Second into the 14th Amendment at the Supreme Court. If incorporated, states will then be required to limit their infringement on the Second Amendment based on the initial Heller ruling and subsequent Supreme Court rulings.
At the other end of the spectrum, the Supreme Court could get a case of weak-knees and loosely define when a local government can restrict Second Amendment rights using "rational basis review." The court might say that if it serves the best interest of public safety, a local government might then ban the ownership of firearms.
Essentially, it's opening Pandora's box for years of litigation asking the court to continually define what is "in the best interest of public safety" on a case-by-case basis.
That's not a good thing for anyone except lawyers and the justice system who will be guaranteed many healthy pay days with years, if not decades, of legal proceedings. Unfortunately, the victims of this type of ruling are otherwise law-abiding citizens who pay the price defending themselves from prosecution from an over-zealous legal system more than willing to test the limits of a weak Supreme Court ruling.
The court may fall in the middle with "intermediate scrutiny" restrictions such as registration of gun owners and their firearms and certain restrictions that may be in the best interest of the government and would require judicial review to make sure they haven't gone too far. Again, this is not a good thing due to the numerous court cases it will generate over many years to get further clarification.
There are other twists and turns the court could take. It would be shocking if the court ruled that the Second Amendment is not an individual right, but indeed the right of the state to arm a well-regulated militia. No one on the pro-gun side of this case is predicting such an outcome, though stranger things have happened.
And finally, the Supreme Court could be swayed by the Justice Department's Amicus Brief sending it back down to the lower court to sort the mess out allowing the D.C. gun ban to continue. That would mean at least another 3-5 years of lower court cases before it comes back to the Supreme Court again. Such a decision is essentially a statement by the court that they are simply not ready to deal with the Second Amendment for political or legal reasons.
Whatever the court's decision, it takes five justices out of the nine to obtain a ruling either in favor of or against the Second Amendment as an individual right. Most civil rights attorneys believe, at least those in favor of overturning the ban and including some anti-gun legal experts, that some sort of favorable Second Amendment ruling will come out of the Heller case. To what level is the major question. But, one thing is for certain regardless of the ruling, court cases will continue well beyond the Heller case.
Now, for some of you this article may be discouraging. A lot of folks thought this would be the "definitive" case that would unshackle gun owners from the bondage of onerous gun control laws. That is not the case by any stretch of the imagination. The court could get rambunctious and give us the pleasure of an activist type ruling, with incorporation and strict scrutiny applied, but that is unlikely.
Conservative justices it is believed, assuming a favorable 5-4 outcome, won't take it that far. That is no reason to be discouraged. Our foot is now in the door. What would have been discouraging is if the Supreme Court had denied the right of the Heller case to be heard in the first place.
This is the biggest test of constitutional rights in decades since the now famous Roe v. Wade abortion case in 1973. It is most certainly one of the biggest constitutional rights case to hit the Supreme Court in the last one-hundred years. This case has generated more amicus briefs by more organizations with more individual signatures, including the majority of Congress, easily putting it into one of the top ten cases in Supreme Court history. That's how big this is.
It is huge in its scope and interest. The court is being pushed very hard politically to make a favorable Second Amendment decision. It will be interesting to see if they have the fortitude to do it, or whether they will develop a case of indecision and turn the Second Amendment into a political football at the federal and state level.
The court will hear oral arguments Tuesday and a ruling is expected this summer. Getting the opportunity to witness the oral hearings live at the Supreme Court makes getting tickets to the super bowl look like child's play. Some of the most famous gun rights attorneys in the country, and probably hundreds of civil rights attorneys, plus the press from every major paper and news network will descend on the court only to listen to the proceedings on a speaker outside of the courtroom. Getting inside to watch will be limited to precious few people. But, the court has announced that it will release transcripts of the proceedings the same day, which is reserved only for those rare cases that have generated significant public interest. That will help to neutralize media bias and it sends a message to all of us that the court recognizes how historic this case is. We will post links to the oral arguments as they become available.
This is the kind of court case that comes around maybe once in a lifetime. Incorporating Second Amendment rights as it relates to the 14th Amendment will come from legal challenges generated at the state level by state firearms associations after the Heller ruling. One of those cases will achieve incorporation. If ever there was a time for each of us to become a part of history in the making, it is now. Our Second Amendment rights may finally be within reach providing good people like you support your state firearm associations by becoming a member, donating or both.
The Constitution of the United States granted certain but limited powers to the newly formed federal government. Shortly thereafter, the first Congress introduced the Bill of Rights, the first ten amendments to the Constitution. The intent of the Bill of Rights was to specifically state what rights the federal government could not infringe, restrict or abridge. It is important to note that states were not forced to comply with the Bill of Rights. These were not rights granted to all people of the United States, but merely restricted the federal government from infringing upon them. After all, the thought of the day was that states wouldn't restrict these rights, but an overzealous federal government might. When the federal government was formed in 1789 it was weak by design, and the founders wanted to keep it that way.
The relationship between the federal government and the states changed upon conclusion of the civil war in 1865, which was fought over states' rights, primarily slavery. It became the most significant amendment to the Constitution since creation of the Bill of Rights, and changed the face of our federal government forever.
The 14th Amendment was ratified and in part says: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The 14th Amendment ended slavery once and for all, but it only set the stage for states to comply with the Bill of Rights. Preceding the 14th Amendment were 13 others that existed prior to the 14th being ratified. It required, from a legal standpoint, that the other 13 amendments be "incorporated" into the 14th by the court system and be recognized as rights that everyone enjoyed as a citizen or legal resident.
As history has proven, no significant Second Amendment challenges were presented to the Supreme Court for interpretation and incorporation into the 14th Amendment. States continued to create gun laws as well as the federal government without consideration as to whether Second Amendment rights were being violated. The most significant in recent years was the 1994 "assault weapon" ban, which expired in 2004. The law essentially banned the sale of certain, but not all, semi-automatic rifles and shotguns, only those semi-autos that looked like military-issue firearms. If it looked like a hunting rifle, it was not banned.
Gun control and anti-gun proponents have argued for years that the Second Amendment was ruled upon by the Supreme Court in the 1939 Miller case. Both sides claim the Miller case makes their point. However, when both sides of the gun control argument can claim victory in the Miller case, yet gun rights continue to be infringed at the state and federal level, Miller had no teeth in favor of either party.
In essence, the Miller case died with a whimper that day in court and was allowed to just go away. The Miller case was a non-starter the day it arrived in court and has gone down as nothing but a footnote in Supreme Court cases. That doesn't mean it is completely irrelevant as it relates to Heller, but for the court to draw constitutional conclusions one way or the other from the Miller ruling would be a stretch.
This now leaves us with the Heller case. Will the Supreme Court incorporate the Second Amendment as it relates to the 14th Amendment? Washington D.C. is not a state but a district under control of Congress. Most experts feel the court will not take the step of incorporation into the 14th Amendment. It is expected that this ruling will affect only Washington D.C. It will require another Supreme Court case that incorporates the Second Amendment into the 14th Amendment. However, interpretation of the Second Amendment in Heller may provide the legal wedge necessary to launch other cases to achieve incorporation.
This brings us to the term "strict scrutiny." The term strict scrutiny is exactly as it implies. It means that laws can be created, but they must be scrutinized to make sure they do not exceed the limits of a narrowly defined court ruling. Laws must be "narrowly tailored" and the government must have a compelling interest in restricting a constitutional right. In terms of the Heller case, every civil rights attorney in favor of overturning the gun ban are hoping the court will apply strict scrutiny to its ruling in favor of an individual right. That will easily pave the way to challenge other gun laws nationwide that do not meet the strict scrutiny standard defined by the court.
A recent example of strict scrutiny has occurred within the past month. A federal judge in San Francisco ordered Wikileaks.org to be taken off the internet because of a lawsuit filed by a Swiss bank over documents published on Wikileaks that showed the names of people pumping money into very private Swiss bank accounts and possibly through a Cayman Islands owned branch. Less than a week later on Friday, Feb 29, 2008, the judge reversed his decision citing First Amendment concerns.
The problem with his original ruling was rather than ordering the documents that were directly related to the case removed from the site, he ordered the entire website be taken off the internet. In other words, he did not narrowly tailor his ruling. He shut down access to all documents unrelated to the lawsuit and most likely violated First Amendment rights of free speech. This federal judge simply went too far and was heavily criticized for his excessive restrictions. It would be like ordering NBC News off the air because of an injunction filed by a company over one news article it wanted to keep off the air.
In Heller, the court citing strict scrutiny might perhaps say the government must have a compelling interest to restrict firearms access to citizens but could restrict felons and those adjudicated as mentally deficient or mentally ill, which are current federal laws. It may stop there and go no further. Court cases will immediately be launched in lower federal courts challenging certain state laws based on the court ruling, with a goal to incorporate the Second into the 14th Amendment at the Supreme Court. If incorporated, states will then be required to limit their infringement on the Second Amendment based on the initial Heller ruling and subsequent Supreme Court rulings.
At the other end of the spectrum, the Supreme Court could get a case of weak-knees and loosely define when a local government can restrict Second Amendment rights using "rational basis review." The court might say that if it serves the best interest of public safety, a local government might then ban the ownership of firearms.
Essentially, it's opening Pandora's box for years of litigation asking the court to continually define what is "in the best interest of public safety" on a case-by-case basis.
That's not a good thing for anyone except lawyers and the justice system who will be guaranteed many healthy pay days with years, if not decades, of legal proceedings. Unfortunately, the victims of this type of ruling are otherwise law-abiding citizens who pay the price defending themselves from prosecution from an over-zealous legal system more than willing to test the limits of a weak Supreme Court ruling.
The court may fall in the middle with "intermediate scrutiny" restrictions such as registration of gun owners and their firearms and certain restrictions that may be in the best interest of the government and would require judicial review to make sure they haven't gone too far. Again, this is not a good thing due to the numerous court cases it will generate over many years to get further clarification.
There are other twists and turns the court could take. It would be shocking if the court ruled that the Second Amendment is not an individual right, but indeed the right of the state to arm a well-regulated militia. No one on the pro-gun side of this case is predicting such an outcome, though stranger things have happened.
And finally, the Supreme Court could be swayed by the Justice Department's Amicus Brief sending it back down to the lower court to sort the mess out allowing the D.C. gun ban to continue. That would mean at least another 3-5 years of lower court cases before it comes back to the Supreme Court again. Such a decision is essentially a statement by the court that they are simply not ready to deal with the Second Amendment for political or legal reasons.
Whatever the court's decision, it takes five justices out of the nine to obtain a ruling either in favor of or against the Second Amendment as an individual right. Most civil rights attorneys believe, at least those in favor of overturning the ban and including some anti-gun legal experts, that some sort of favorable Second Amendment ruling will come out of the Heller case. To what level is the major question. But, one thing is for certain regardless of the ruling, court cases will continue well beyond the Heller case.
Now, for some of you this article may be discouraging. A lot of folks thought this would be the "definitive" case that would unshackle gun owners from the bondage of onerous gun control laws. That is not the case by any stretch of the imagination. The court could get rambunctious and give us the pleasure of an activist type ruling, with incorporation and strict scrutiny applied, but that is unlikely.
Conservative justices it is believed, assuming a favorable 5-4 outcome, won't take it that far. That is no reason to be discouraged. Our foot is now in the door. What would have been discouraging is if the Supreme Court had denied the right of the Heller case to be heard in the first place.
This is the biggest test of constitutional rights in decades since the now famous Roe v. Wade abortion case in 1973. It is most certainly one of the biggest constitutional rights case to hit the Supreme Court in the last one-hundred years. This case has generated more amicus briefs by more organizations with more individual signatures, including the majority of Congress, easily putting it into one of the top ten cases in Supreme Court history. That's how big this is.
It is huge in its scope and interest. The court is being pushed very hard politically to make a favorable Second Amendment decision. It will be interesting to see if they have the fortitude to do it, or whether they will develop a case of indecision and turn the Second Amendment into a political football at the federal and state level.
The court will hear oral arguments Tuesday and a ruling is expected this summer. Getting the opportunity to witness the oral hearings live at the Supreme Court makes getting tickets to the super bowl look like child's play. Some of the most famous gun rights attorneys in the country, and probably hundreds of civil rights attorneys, plus the press from every major paper and news network will descend on the court only to listen to the proceedings on a speaker outside of the courtroom. Getting inside to watch will be limited to precious few people. But, the court has announced that it will release transcripts of the proceedings the same day, which is reserved only for those rare cases that have generated significant public interest. That will help to neutralize media bias and it sends a message to all of us that the court recognizes how historic this case is. We will post links to the oral arguments as they become available.
This is the kind of court case that comes around maybe once in a lifetime. Incorporating Second Amendment rights as it relates to the 14th Amendment will come from legal challenges generated at the state level by state firearms associations after the Heller ruling. One of those cases will achieve incorporation. If ever there was a time for each of us to become a part of history in the making, it is now. Our Second Amendment rights may finally be within reach providing good people like you support your state firearm associations by becoming a member, donating or both.
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