Winchester 73
member
A little pun in the title by the professor.
By Adam Winkler
http://www.nydailynews.com/opinions/2008/04/28/2008-04-28_public_safety_in_supreme_danger.html
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.
By Adam Winkler
http://www.nydailynews.com/opinions/2008/04/28/2008-04-28_public_safety_in_supreme_danger.html
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.
