Look how easy it is to limit Heller

[Phatty]

The quote below is from a 3rd Circuit opinion that was released a few weeks ago on April 27 (United States v. Ross). Look how easily that appellate court pigeon-holes Heller.

Ross next argues that 18 U.S.C. § 922(o), which prohibits the possession of machine guns, is unconstitutional after District of Columbia v. Heller, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Ross appears to misunderstand Heller. Heller was concerned with a statute that prohibited all possession of handguns by the public. Id. at 2788. The Heller majority focused on the history of gun possession as a means of self-defense, finding that the textual elements of the Second Amendment "guarantee the individual right to possess and carry weapons in case of confrontation." Id. at 2797. In doing so, the Court was careful to state that it did "not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation." Id. at 2799 (emphasis in original). In a further attempt to limit the effect of Heller to the right of law-abiding citizens to possess handguns for self-defense, the Court also cautioned that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill" and noted the "historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Id. at 2816-17. Nothing in Heller supports Ross's challenge to the constitutionality of a statute criminalizing the possession of a machine gun.

Despite the fact that Heller declared the right to keep and bear arms a fundemental right, this appellate court brushes off the challenge to the machine gun ban without a hint of analysis by simply distinguishing Heller as only pertaining to the right to possess handguns for self-defense.

 

[Dr. Tad Hussein Winslow]

Of course. A few of us loudly proclaimed when it came out, that Heller was 95% defeat, and only 5% victory. It's so severely limited by the vague and ambiguous exception of 'dangerous and unusual weapons', that it's really no protection AT ALL, in the long run. Eventually, all guns except maybe a single shot .22, will be considered 'dangerous and unusual'.

 

[Yo Mama]

Yeah, Heller only allowed a guy named Dick Heller to own a handgun. It was pretty clear no machine guns, and was very vague what other laws are or are not allowed.

This is why NRA didn't want the case to be heard even. Your damned if you do, and damned if you don't.

 

[Yellowfin]

This is what happens when people go out of order of things. Heller was only the FIRST STEP. There's no less than 5 steps needed to take down the '86 ban. That dipstick just set up bad precedent against later legitimate efforts to strike 922(o) by jumping ahead of the process.

 

[Phatty]

That dipstick just set up bad precedent against later legitimate efforts to strike 922(o) by jumping ahead of the process.

Well, if I was facing a felony charge like that guy I think I would fight it with every possible legal argument and not just "take one for the team" in order to keep from setting bad precedent.

That being said, it does stink for the rest of us.

 

[Phatty]

This is why NRA didn't want the case to be heard even.

I was unaware of this fact. I always believed (and still do) that Heller was the perfect case to establish that the 2A protects an individual's RTKBA. My only issue with Heller was the way that Scalia gutted the opinion by tossing in the limiting language that was completely unnecessary dicta.

Seriously, did the libs in Roe v. Wade gratuitously toss a statement in the opinion like "nothing in this opinion should be taken to mean that states can't still do this, or do that, or do this, blah blah blah to pregnant women"

 

[legaleagle_45]

I was unaware of this fact. I always believed (and still do) that Heller was the perfect case to establish that the 2A protects an individual's RTKBA.

The reason the NRA tried to block Heller from being heard by SCOTUS was, at the time they were erecting those roadblocks, O'Connor was still on the bench. The NRA did not trust her and were afraid that the case would be lost in front of SCOTUS. They tried several approaches. The first involved trying to consolidate the case with another one they had instituted, which could have been decided on grounds other than the 2nd Amendment. When that failed, they tried to push through a law in the US Congress which would have preempted the DC gun laws and would have rendered Heller moot. This last effort failed primarily as a result of a revolt by the rank and file NRA members who wished to see Heller proceed.

Following the replacement of O'Connor with Alito and the appointment of Roberts as chief justice, NRA opposition completely faded away and they became one of the strongest supporters of the Heller case. However, the real credit for pursuing the case all the way, goes to the Cato Institute.

 

[Phatty]

legaleagle,

Thanks for the background. I can definitely see how the NRA would be nervous about O'Connor. If she had been on the court during Heller, my guess is that she would have been an anti-gun vote.

 

[kludge]

My only issue with Heller was the way that Scalia gutted the opinion by tossing in the limiting language that was completely unnecessary dicta.

My though has always been that this language was included to get vote #5. Without this language, it would have gone the other way IMO.

 

[ManBearPig]

Dr. Tad, you can't classify something as "dangerous & unusual" if it is "in common use for lawful purposes". D.C. tried to play that game by saying only revolvers could be registered. What happened? They got slapped like a redheaded stepchild because semi-automatic handguns are very much "in common use".

If they try to say semi-automatic rifles are "dangerous & unusual", even though it's very clear they are "in common use for lawful purposes", they'll lose the arguement very quickly. Especially now. God knows how many more AKs & ARs are in law-abiding hands because of the nationwide gun surge.

 

[Phatty]

My though has always been that this language was included to get vote #5. Without this language, it would have gone the other way IMO.

You may be right, and we probably will never know the truth. But, I find it very hard to wrap my mind around the fact that a Supreme Court justice could alter their decision about whether or not the 2A protects an individual right based on the inclusion of dicta at the end of the case. I just can't buy that argument. If one of the other justices in the majority really wanted that language they could have simply written a concurring opinion that included it.

My honest opinion is that the language was all Scalia. If you review the oral argument transcript you will see that he offers up some of the same ideas during oral argument that he included in the majority opinion dicta. People seem to think that maybe Kennedy was on the fence and that he had to be placated. But again, if you review the oral argument transcripts, Kennedy appeared to be a stronger 2A supporter than Scalia.

 

[Buck Snort]

Phatty, you simply have not been paying attention. Heller DID NOT free up any right to own mg's. To say this decision "pigeon holed" Heller is a gross distortion of the facts. Granted, Heller is not give us everything we could've asked for but please remember, never before in the history of the country has the SCOTUS ruled the Second Amendment to the U.S. Constitution is an invividual right and not a collective one. THAT is a big step forward and to argue that not getting a right to own mg's constitutes "pigeon holeing" Heller is just pure out and out malarkey of the first rank.

 

[Phatty]

Buck Snort,

I have been paying extremely close attention. In fact, I have read at least twenty-five federal court decisions post-Heller to get a feel for how the courts are interpreting that case. So far, I have only found one case that analyzed the 2A issue in a fashion that one would expect a court to handle a fundamental right. ALL others quickly distinguished Heller by limiting it to the specific facts at issue there (total ban on handgun possession for self-defense in DC) or by simply relying on the limitation statements made by Scalia at the end.

Please show me another example where the Supreme Court has declared a fundamental right for the first time in a case and 99% of the subsequent lower court decisions in the next several years limited that right to the specific facts of the case.

By the way, I didn't really take too much issue with the 3rd Circuit's final conclusion that the 2A does not protect machine guns (although I disagree with that conclusion). My big beef with the opinion was the fact that they brushed off the analysis so quickly and effortlessly. Seriously, it took them six whole sentences to come to the conclusion that bans on machine gun possession do not infringe our fundamental 2A rights. Debates on that issue span hundreds of posts here, and there are a lot of arguments back and forth. The courts are NOT treating the 2A seriously as a constitutional right.

Do yourself a favor and start reading all of these federal court cases that are interpreting Heller and you will see that there is an alarming trend emerging that Heller only applies to statutes that equate to a total ban on the possession of handguns in a person's home for self-defense.

 

[Kind of Blued]

I'm still trying to figure out the "common use" Catch 22. Machine guns cost as much as a car. Of course, they're not in common use...

Also, barring "dangerous weapons" seems exceedingly stupid... We're talking about guns, right? When does a gun cease to become "dangerous"?

If you'll excuse me, I'm going to drive my mobile car to buy some opaque cover garments...

 

[gyp_c2]

well...

...it really wasn't about assault weapons, machine guns or other dangerous devices labeled as such by the ATF terms...
It was about a ban on handguns...You already know that if you read Heller...
The current admin will be a tough sell on changing the current registration scheme...
There are lots of battles to fight...choose wisely...

 

[mljdeckard]

The vague language of Heller is why we must proactively define ourselves, rather than let the opposition define us. The fact that the AR is the most popular rifle in America is a good step. It is difficult to say that it is not in 'general use'.

 

[Frank Ettin]

First, Heller is limited by the issues presented in that case. As it was it was still a huge win because it was the first clear statement that the 2nd Amendment described an individual, rather than a collective, right.

Second, as David Kople wrote in this article (http://newledger.com/2009/03/gun-rights-and-the-constitution-was-heller-insignificant/ ):

"It’s true that...federal courts have rejected lots of Second Amendment claims brought by convicted felons, and by persons convicted of domestic violence, or by persons wishing to possess machine guns. This is no surprise,... thirty-one state Attorneys General filed an amicus brief on behalf of Mr. Heller, and they ...foresaw no possibility that gun bans for convicted criminals or machine gun bans would be endangered by a Second Amendment victory.

"Of course criminal defense lawyers often have to grasp at straws to defend their clients, so it’s not surprising that there have been plenty of post-Heller cases in which defense lawyers have raised near-hopeless Second Amendment claims. It’s hardly news that these cases have been losers."

Third, the reality is that not every regulation of a Constitutionally protected right is unconstitutional.

It is very well settled in Constitutional law that Constitutionally protected rights may be subject to limited regulation. There is a significant body of cases defining the standard that would apply to determine if a regulation of a Constitutionally protected right is permissible. Regulations of a Constitutionally protected, fundamental right, for example, which has generally included those rights enumerated in the Bill of Rights, are subject to a test usually referred to as "strict scrutiny." There are three prongs to this test, as follows:

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

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

[3] 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).

So it's very unlikely that laws prohibiting the possession of firearms by certain disqualified persons, like convicted felons, or quite a few other gun controls will just be tossed out.

 

[Autolycus]

Lets all thank that blowhard Reagan for the 86 ban.

 

[P.O.2010]

Where it all falls down

"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.
Pp. 54–56."

This is why even if we get incorporation on a national level, laws like the ones in California, New York, New Jersey and Massachussetts will not be struck down. Almost every law on the books can be read to comport with the text seen above. The only substantive change that I could maybe see occurring is that laws prohibiting open carry would be struck down since prohibitions on the concealed carry were mentioned as acceptable but open carry was not mentioned. And that's still a big maybe. Heller could have been worse but as it still left much to be desired.

 

[yokel]

We must understand and accept that a fair amount of judges, magistrates and other adjudicators, who form the core of a judiciary detest the Second Amendment and detest the people who seek to exercise their rights under the Second Amendment.

If they had their druthers, even that handgun in your nightstand, or that shotgun in the corner would be verboten.

Accordingly, they will do their damnedest to abridge and alter your right to keep and bear arms even if they can't completely disarm you.

 

[Yellowfin]

Such people should be removed from their positions and their profession.

 

[Frank Ettin]

Such people should be removed from their positions and their profession.

Go for it. Let us know how you make out.

 

[Cold_B]

"Machine guns cost as much as a car. Of course, they're not in common use..."

One could also point out that every machine gun that legally exists currently for civilians is in use. It can't get any more common than 100%.

 

[mgkdrgn]

Yeah, Heller only allowed a guy named Dick Heller to own a handgun. It was pretty clear no machine guns.....

And even what he -could- own had to be a revolver, as DC "defined" any gun that automatically loaded a round from a magazine a "machine gun". IE, DC refused to register his .45acp.

 

[ilbob]

Heller did not decide anything about machine guns.

Only that Dick Heller in DC had a right to keep a handgun at home in a condition where it was usable for self defense.

Construing anything else out of it is guesswork.