How important is Heller?

[RPCVYemen]

When I read Scalia's opinion, it made me very nervous. I saw a lot of people jumping up and down on our side, so I assumed that I must have read the decision incorrectly.

Here's an article from the "Legal Times" where a conservative/libertarian law prof expressed my misgivings:

In short, Heller potentially leaves a lot of room for legislators
and lower courts to eviscerate the individual Second
Amendment right that the Supreme Court has recognized.

http://www.law.gmu.edu/assets/files/faculty/Somin_7_28_08.pdf

There is no doubt that a was better than a loss in Heller, but when I read the actual decision, it seemed like a very narrow win.

Mike

 

[General Geoff]

The only reason Heller was a narrow win was because the decision was 5-4.

The ruling itself is extremely important, and is not at all a narrow win. The ruling merely addressed precisely the issue that was brought before it: Whether the D.C. handgun ban violated the Second Amendment guarantee against infringement on the peoples' right to keep and bear arms. And they ruled that it did.

Scalia went on to suppose that any arms in common use would also be protected, and that machine guns, being particularly suitable for use in a militia capacity, may also be protected. But these were just suppositions, as machine guns were not within the scope of the case.

 

[Geezer Glide]

Very.

 

[ArmedBear]

Heller is not a slam dunk for gun rights.

However, it provides a basis for all sorts of lawsuits, especially at the Federal level.

That could be very important as we will have an administration with an anti-gun President (Joyce Foundation board member), and anti-gun VP (author of the Clinton ban), an anti-gun AG (probably no more anti-gun than Bush's AG), and an anti-RKBA DHS head (Napolitano vetoed "Katrina protections" in Arizona, when even anti-gun California passed a "Katrina protection" law).

 

[PT92]

It's as important as the Second Amendment itself. Out all of the things I worry most about with Obama is his ability to appoint Liberal Justices to the SC ,of whom, will overturn Heller no doubt. I think this exceeds the more than likely coming AWB II by far (not to diminish this in any way).

It's imperative, as others have mentioned, that we join together with the NRA and other SA supporters to fight the upcoming onslaught soon to be brought on by the Left.

-Happy Holidays

 

[jakemccoy]

I first read the opinion immediately after it came out. Scalia's opinion made me extremely nervous. Without input from others, I wrote my thoughts on the case and about the case's weaknesses. About 95% of gun owners on forum sights told me that the case is totally awesome and that I needed to be thankful, etc. I truly do hope I'm wrong and that the 95% are right.

 

[RPCVYemen]

Scalia's opinion made me extremely nervous. Without input from others, I wrote my thoughts on the case and about the case's weaknesses. About 95% of gun owners on forum sights told me that the case is totally awesome and that I needed to be thankful, etc. I truly do hope I'm wrong and that the 95% are right.

My feelings exactly.

Mike

 

[zminer]

The specific question the case was asking was, "can a city ban an entire class of firearms because it feels that it has a compelling safety interest in doing so?" The decision says no, because (addressing the larger point) people have the individual right to bear arms, not just in the context of a militia. On the other hand, it affirms that licensing schemes are legal as long as they are not "arbitrary and capricious." Even Heller himself said he felt that would be fine. He just wanted to have the ability to have an operational handgun in his house to be able to protect himself.

It isn't a decision which was meant to overturn things like bans on automatic weapons, or preclude future AWBs. That wasn't what it was meant to do, and it would almost certainly have been overreaching for the justices to have tried to turn it into that.

As for it being overturned in the near future ... it seems really unlikely. Plessy v. Ferguson ("separate but equal" schools are okay) was adjudicated in 1896 and wasn't overturned until Brown v. Board of Education in 1954, and that was related to an issue which had created very strong, divisive currents within the nation - much more so, I would argue, than the debate over firearms.

The Supreme Court doesn't like to reverse itself because it gives the impression that - exactly as some people here are saying - law isn't settled, it's just what 5 justices think at any given time. So, I don't think it's going to get overturned. Will there be other cases about firearms brought to the Court now that a standard has been established? Maybe. But the Conservative wing of the Court isn't going anywhere. Roberts is 53, Scalia is 72, Thomas is 60 and Alito is 58. Kennedy, the other person who voted for Heller, is 72, In Supreme Court terms, these people are spring chickens. (Keep in mind, Stevens is 88 and still serving.)

 

[5knives]

Afraid my opinion is much like jakemccoy's above.

I've been told by some pretty savvy lawyers that Heller allows DC residents to keep firearms in their home, and uses the 2A as the reason, and does'nt mean much outside the federal property of D.C.


It does open the door for similar lawsuits in the various states where municipalities have total bans, but was not written broadly enough to do anything else.

Don't pretend to know the reality, but that's what I've been told.

Regards,

 

[6_gunner]

I believe that it was very important. However, it's impact should be measured by the crippling blow from which it saved us rather than by the comparatively little progress which it has brought us.

If they would have ruled against us, it would have been disastrous. It would have marked the beginning of the end for civilian firearms ownership. It would have completely removed the Constitutional argument against gun control.

The Heller victory marks a major step in the right direction, but we still have a long way to go. Heller reduces the danger of total bans or confiscations, but it leaves the door open to other infringements such as "safety" regulations, excessive taxation, licensing, and registration.

We still have a difficult fight ahead of us, but Heller affords us hope for victory.

 

[scrat]

Having watched the Heller case and read ever bit that i could. Its scary. Some of the supreme court justices themselves were questioning guns. Seems as though we cant stop with education at lower levels. From the president down we need to ensure that as americans we know and understand what the second amendment is. I am glad we won that case however there are many many more cases that need to be won. As a gun owner it is not just a right it is a responsibility to make sure we educate, practice, vote and stand up for our rights.

 

[mljdeckard]

I'm very much with zminer. It asked and answered a very distinct question, whether or not the Second Amendment protects the right of individuals to keep and bear arms. We were smart to keep it narrow, the other side was stupid to push it this far.

Heller itself is not meant to shake the earth. It is meant to be used to force a change of policy in those who tried to convince we had no RKBA. It will be the basis for twenty years of challenges and re-interpretations. It isn't the end, it's the beginning.

I don't like the fact that 4/5 justices didn't agree with it, but at the same time, part of me says they dissented because they knew it would pass and they wanted to get the dissenting opinion published. Of the dissenting opinions I recall directly, only Stevens actually said he didn't think it was an individual right. Others didn't like the grey area it opened, in particular the 'common use' idea, for precisely the same reasons we DO like it:

"The Breyer dissent also objected to the "common use" distinction used by the majority to distinguish handguns from machineguns: "But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun...There is no basis for believing that the Framers intended such circular reasoning."[37] (Other commentators have agreed with Breyer's criticism, but argued that the Court therefore erred in not overturning current machinegun restrictions.[38][39])"

Stevens also grumbled about Stare Decisis, basically being unwilling to overturn Miller out of the principal that standing decisions should remain umnmoved without compelling reasoning. (Ignoring that Miller was an incomplete ruling on an ex-parte hearing, and that there were recently conflicting rulings in lower courts which needed resolution.)

But the above posters have posted some very important things. Look at the time between Plessy v ferguson and Brown v The Board, Miller and Heller, and tell me how you possibly think Barack Obama can pack the Supreme Court when the two justices most likely to retire are liberal, get the RIGHT case up past all the LOWER courts within his presidency, AND get a favorable ruling? This takes DECADES, not a few years.

 

[Frank Ettin]

...it affirms that licensing schemes are legal as long as they are not "arbitrary and capricious." ...

And this is simply existing law. the courts have permitted, for a long time, limited regulation of Constitutionally protected rights subject to strict standards.

...It does open the door for similar lawsuits in the various states where municipalities have total bans, but was not written broadly enough to do anything else....

It really could not have been written more broadly. The Justices had to stick to the case before them, and the case actually presented a very narrow issue.

 

[jakemccoy]

Look at the time between Plessy v ferguson and Brown v The Board, Miller and Heller, and tell me how you possibly think Barack Obama can pack the Supreme Court when the two justices most likely to retire are liberal, get the RIGHT case up past all the LOWER courts within his presidency, AND get a favorable ruling? This takes DECADES, not a few years.

You made some good points, but I'll have to disagree here. The relevant facts to revisit Heller could come tomorrow. Recall that the facts of Heller were manufactured, controlled. Heller the man is irrelevant. The case would be more accurately titled "Levy" because the case was primarily Robert A. Levy's brainchild. A similar think tank could manufacture relevant facts over the next year somewhere in this country. You can be sure that at least a few people in the Brady Camp understand the game now.

Also, the comparison to the overturn of Plessy is a statistical analysis involving one sample. Well, I guess we could add Roe. Anyway, the statistical analysis is not reliable because we don't have many samples, and those cases were not manufactured.

I will say that I don't think Heller will be overturned anytime soon. However, that's just a gut feeling. I won't try to apply some unrelated cases to try to prove my gut feeling.

 

[zminer]

EDITED to reflect changes in the post I replied to

 

[jakemccoy]

zminer, I had already completely changed my post above.

You guys are forgetting that the Heller facts were manufactured, controlled. Those other cases (Plessy, etc.) were not manufactured. They were natural forces of nature.

 

[Mike OTDP]

Heller is big, but it is only the first of at least three cases we need to win.

We also need to win a case on incorporation of the 2nd Amendment against the states. This is likely, but not yet a done deal.

The third (and quite possibly fourth, fifth, and sixth) are cases defining the limits of what is permissible. This is where a lot of damage could be done to us. In a Federal case, we would be in a position to select the venue - carefully choosing one that will be favorable to our cause, in order to establish precedent. This was the same trick used by the civil rights lawyers...bring the first cases in friendly courts, establish precedent, use the precedents to win in neutral courts...then use all the precedents together to win in hostile courts and/or SCOTUS.

 

[zminer]

You guys are forgetting that the Heller facts were manufactured, controlled. Those other cases (Plessy, etc.) were not manufactured. They were natural forces of nature.

Can you give examples of what you mean by this? (I'm not being flip - I am just not sure what you're saying.)

 

[BADUNAME37]

Never heard of him/her.

I need to be in the loop a bit longer.

 

[gbran]

Heller impact on new AWB?

Our last AWB was a federal law, not a state law such as the permanent AWB in CA. The 2A does not have incorporation, so only applies to keep the feds at bay. Any new AWB will be post-Heller. Given Scalia's "common use" statement, I wonder if Heller would be a precedent in fighting off any new fed AWB?

 

[jakemccoy]

Can you give examples of what you mean by this?

My point is that Heller is the result of a laboratory experiment. Heller didn't just happen. Heller was one of many plaintiff candidates that happened to make it to the Supreme Court. Heller was planned meticulously. Thank God because the Second Amendment issue is too important to allow any old yahoo with a case to make it to the Supremes.

On the other hand, cases like Plessy, etc., were not planned. There was not some master attorney putting together the perfect fact pattern. The facts of Plessy just happened naturally. The facts of Brown just happened naturally. Then, attorneys filed law suits. Eventually, the cases ended up in the Supreme Court.

Do a Google search for Robert A. Levy, the mastermind of Heller. You can start here:

http://www.washingtonpost.com/wp-dyn/content/article/2007/03/17/AR2007031701055.html
http://www.youtube.com/watch?v=2JAUNoyL9fs

Heller II or a similar case could be in the manufacturing process right now for all we know. In contrast, the facts of Plessy and then Brown were natural. Comparing the possible overturning of Heller to the overturning of Plessy doesn't work because Heller was manufactured.

 

[tpaw]

When BHO appoints HIS judges to the Supreme Court, all this will change and swing back to the left, so don't get hung up on the Heller decision. It will soon be past history. I hope I'm wrong, but things don't look good for us, especially if we loose the right to filibuster.

 

[mljdeckard]

EXCEPT THAT, the justices he may replace soon are all liberal to begin with, which means, he won't change a thing by replacing them. It will take DECADES to line everything up to overturn Heller.

 

[Prince Yamato]

They can't ban handguns. That's a big win. It's one less ban we have to fight off. We don't have to worry about handgun bans, so we can spend time buying AWs instead. Once we fight off the AW ban, we go for the big enchilada... machine guns.

 

[zminer]

Once we fight off the AW ban, we go for the big enchilada... machine guns

Heh, I think that getting machine guns un-banned is about as likely as having Barack Obama replace the retiring Justice Stevens with Judge Judy. But maybe that's just me.

But, on-topic, I think you're right - with the Heller decision, there has been a definitive statement that classes of firearms cannot be banned, and since handguns are the most likely targets of that, they're safe from outright bans. Now, restrictions are another matter ... but, they always have been another matter. In the end, though, a noxious type of gun law has been found unconstitutional. That's what the outcome of the case was supposed to be, and that's what it was.