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What Happens If the SCOTUS Recognizes Individual Gun Rights:Not Much Says Lefty NR

Discussion in 'Legal' started by Winchester 73, Mar 21, 2008.

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  1. Winchester 73

    Winchester 73 member

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    There Will Be Guns
    by Benjamin Wittes
    What happens if the Supreme Court recognizes individual gun rights? Not much.
    Post Date Friday, March 21, 2008

    http://www.tnr.com/politics/story.html?id=63611d39-9661-44b7-b55c-4e9563189d7f

    One thing seemed clear from Tuesday's Supreme Court oral arguments in District of Columbia v. Heller: The justices are poised to recognize that the Second Amendment confers on individual Americans the right to own guns. The court's conservatives--save Justice Clarence Thomas, who maintained his customary silence at arguments--evinced little doubt of this proposition. And even Justice Stephen Breyer seemed open to the possibility that the amendment's right to "keep and bear arms" isn't just about militias--though he's inclined to uphold the D.C. handgun ban anyway. After more than two centuries of judicial negligence and intellectual head-scratching, the Second Amendment seems preponderantly likely to mean something. All of which makes Heller a kind of watershed in the making.

    Or maybe not.

    For something else became clear at oral argument--something that actually has been coming into focus since a lower court tossed out Washington's handgun ban and the briefs began winding their way to the justices: Any right to keep and bear arms that the court recognizes is not going to do all that much. Specifically, it won't preclude the sort of reasonable regulation of firearms ownership that makes up most existing gun control laws.

    So what will this landmark decision actually change?

    Undeniably, a decision recognizing an individual right to gun ownership will put a limit on how far gun control can go. Those who dream of a gun-free society will have to dream of ratifying a new constitutional amendment; they will no longer be able to ignore that embarrassing provision of the Bill of Rights that they have, for so long, been able to argue does not mean what it so plainly seems to say. A decision recognizing the Second Amendment as an individual right will also force authorities at all layers of government to justify before the courts the benefits of crime control and public safety measures that restrict guns against a countervailing interest. And the courts will have to balance the safety benefits against a recognized right that citizens will, citing a Supreme Court opinion, claim is being impinged.

    But a disarmed America was always a fantasy. Policymakers do not make a habit of pushing the constitutional lines in making gun policy. The major restraints holding them back are political, not judicial, and a revived Second Amendment won't change that.

    Americans have this notion of the courts as the guarantors of the Bill of Rights. But in the case of gun rights, this has never been true. The Supreme Court has no history of enforcing the Second Amendment. Despite the prevalence of guns in American society, a vibrant gun trade, a lot of gun crime, and routine prosecutions of those crimes over decades, the court has developed nothing remotely resembling a developed Second Amendment jurisprudence. We still argue about the text and history of the amendment because, with the exception of a cryptic 1939 opinion, there's essentially no case law interpreting it.

    Yet gun rights have not shriveled. To the contrary, they have fared remarkably well in the absence of judicial enforcement. Outside of Washington, D.C., Americans are allowed to own handguns; in many places, the law permits them to carry them concealed. Yes, restrictions exist. But the impact of 200 years of judicial negligence has not been the atrophying of the right to own weapons. For most non-criminal Americans, packing heat remains an option, albeit one subject to modest government regulation. In fact, if the Supreme Court goes the route implied by this week's oral argument, the justices would largely be codifying and ratifying what is already a national norm that they had little to do with shaping.

    Gun rights have remained a part of our national consciousness--and operative law--because of political pressure from an engaged constituency willing to fight for them legislatively and at the ballot box. The strength of the gun lobby made Second Amendment rights untouchable politically even when the judicial climate seemed most tolerant of gun control. The lesson is that once the people internalize a right as fundamental, it's hard to take it away, even if the courts ignore the issue. The history of gun rights in American should encourage, say, abortion rights activists who fear judicial abandonment.

    But the irony of the gun owners' success is that any new judicial solicitude for the Second Amendment has limited capacity to give them more than they have already taken for themselves through the democratic process. For all but the hardest-core gun lovers, prudence and public safety ultimately limit libertarianism--and the justices don't seem inclined to dive off a cliff and read the amendment so as to permit individual ownership of upper-end military hardware. That seemed almost as clear at arguments as the court's direction on the question of whether the Second Amendment protects an individual right. A lawyer for those challenging the ban acknowledged, for example, that "of course" background checks for firearms purchases would be constitutional. Justice Antonin Scalia told Solicitor General Paul Clement, "I don't see why" the federal government would "have a problem" sustaining its ban on machine guns if D.C.'s handgun ban fell. All sides appeared comfortable with the idea that criminals would not receive protection from the amendment. Outside of Washington D.C., in other words, a revitalized Second Amendment would largely forbid what nobody was seriously contemplating anyway: bans on common weapons for the recreational and self-protective uses of law-abiding people.

    But inside of Washington--my hometown and a city with a strong local consensus in favor of its handgun ban--Heller's impact could be big. It remains to be seen whether the Supreme Court will immediately doom the D.C. law or whether it will, as Clement has urged, touch off a new round of litigation over whether the ban constitutes a reasonable regulation of whatever individual right the justices recognize. Sooner or later, however, the D.C. handgun ban seems likely to fall. And if and when that happens, it will be a big change of policy for the city--and an unpopular one.

    I suspect the change won't be hugely consequential in practical terms. Crime will neither spike (as gun control advocates fear) nor plummet (as the gun rights crowd hopes) as a result. Washington's streets are already awash in firearms, and it's hard to believe the introduction of a comparatively small number of highly regulated weapons among those residents without criminal records will measurably impact the number of murders in either direction.

    The big change, rather, is a spiritual one. Washington has been the American jurisdiction most willing to dream of a gun-free society. For Washington, a Second Amendment that means something would end an existing experiment. It would impose a national norm on a dissenting local political culture. I'd be more sentimental about the end of that experiment if its results over three decades had been more encouraging. Still, whenever a right goes from a norm to a matter of actionable law--something the courts make sure "shall not be infringed"--it does so at some cost to popular sovereignty, a cost that Washington residents seem fated in this instance to bear.

    Benjamin Wittes is a Fellow and Research Director in Public Law at the Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.
     
  2. yokel

    yokel Member

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    Indeed, many District citizens may have to be dragged into the new relatively non-authoritarian order kicking and screaming.:D
     
  3. takhtakaal

    takhtakaal Member

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    We do? Perhaps among the country club set, yes. I'd like to think that the Second Amendment is what guarantees the rest of the BOR.
     
  4. MechAg94

    MechAg94 Member

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    I think when it really comes down to it, most gun owners are hoping to get a ruling that helps put limits on gun control efforts. We are sort of dreaming that we might get a ground breaking ruling that will help open up other laws to judicial review, but I am not sure how realistic that really is. We'll see. I don't think most of us are expecting to gain a whole lot.
     
  5. gbran

    gbran Member

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    I don't expect we'll get everything we want out of this upcoming ruling and some may even be very disapointed. I am optimistic however, that at a minimum we may have the individual versus the collective issue resolved. If so, this will set the stage to allow future tests of the meaning of infringement. So, I hope we end up at least at a turning point.

    There is one other issue that seems obvious to me; At the heart of Heller is the prohibition of functional firearms in the home. I doubt our forefathers restriced our RKBA to the home....... free speech certainly wasn't restricted to the home and our ancesters didn't lose their RKBA when they left their homes on their horses.
     
  6. Winchester 73

    Winchester 73 member

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    Excellent point and it goes right to the heart of the most salient feature of the Second Amendment,"shall not be infringed".
    It's maddening that such clear language has to be debated at all.
    But the last 75 years of Socialism(thank you so much,FDR)has brought us to such an impasse that we have to sweat out a SP Court decision for 3 months on words in the BOR that for so long were accepted on this simple principle:they mean what they say.
     
  7. RNB65

    RNB65 Member

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    I find it a hopeful and refreshing sign that even the leftists (at least some of them) are starting to admit that the Founding Fathers' meaning is clear and obviously refers to an individual right and not a collective right. Heller is but one battle in the never ending war over the RKBA. But if nothing else, hopefully the Heller ruling will put the collective right/militia argument to rest forever more.
    -
     
  8. Snapping Twig

    Snapping Twig Member

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    Just like the babies they are, the left sees the writing on the wall and in an effort to rise above it, they say, "it doesn't matter".

    (if it didn't matter, they wouldn't be fighting)

    I call B.S.! If the SCOTUS finds for individual rights, a whole lot of things are going to change, and for the better!

    Bank on it.
     
  9. Robert Hairless

    Robert Hairless Member

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    Can someone explain what the second sentence means? The Second Amendment acknowledges the right and uses the words "shall not be infringed." So the right to keep and bear arms is not a "norm" in any sense of that word as I understand it.

    And the rest of that sentence seems to lament the ability of the District to do whatever its City Council wants without review by the courts. Is he saying that what I would call "tyranny" he would call "popular sovereignty"?

    Now back to the first sentence. It seems to say that thirty years of the District's gun control has failed. If so, why does he want it to continue? This logic--as much of it as I understand--seems irrational to me.
     
  10. Zoogster

    Zoogster Member

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  11. Titan6

    Titan6 member

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    Curious. The author takes almost a "moderate" libertarian view.

    I must be pretty hard-core. I think he has it all backwards. The public safety is more threatened by the ban.

    Exactly, end the "democratic" experiment and restore the Republic.

    It is as though he understands it but there is a piece missing somewhere.
     
  12. bg

    bg Member

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    When you find out, let me know..
    I don't know why this the 2nd Amendment is going through
    all this. All one has to do is look at the Militia Act of 1792/
    May 8th...
    Yes I know I cherry picked it, but it is there in black and white..
    From here.
    http://www.constitution.org/mil/mil_act_1792.htm
     
  13. Standing Wolf

    Standing Wolf Member in memoriam

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    Leftist extremists' dreams are America's nightmares.
     
  14. rdhood

    rdhood Member

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    Wishful thinking. Just wait till we start exploring the "SHALL NOT BE INFRINGED" part of that 2nd.

    Folks, this case was just laying a cornerstone. It will have no immediate affect. Instead, affects will ripple throughout the next hundred years.

    The 2nd precludes THAT dream. Keep on dreaming.
     
  15. IllHunter

    IllHunter Member

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    Have they voted on it?

    Where's the vote tally, have the residents of D.C. had a referendum?

    I don't live there, I don't know where the author gets this opinion, is there a poll? Any shred of support for his contention that D.C. residents, on the whole, are predisposed to a babysitter mentality and are happy that only criminals and cops (perhaps those are interchangeable to some extent) have guns.:D
     
  16. RDak

    RDak Member

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    How the author can conclude the SCOTUS ruling for an individual right will not have much of an affect on gun rights, etc., is one of the most ridiculous statements I have ever heard in my life.

    I'm rendered speechless reading such a stupid statement! :confused:
     
  17. Kentak

    Kentak Member

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    Idealists here won't agree, but this guy has it right. This isn't a constitutional/legal fight, but a political one. Has been for a long, long time. It will continue to be, regardless of the Heller decision. If you believe that some future SCOTUS will make some sweeping decision that will remove all "infringement" and return us to some ideal that never was, you are not operating in the real world. That's just the way it is.

    K

     
  18. Jamie C.

    Jamie C. Member

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    Y'know, until we actually hear what the Supreme Court rules, there's no more validity to claiming "the government can still regulate firearms as they see fit" than there is claiming "We're gonna get to own unregulated fully-automatic weapons again".

    Both sides are gonna spend the next 90 days or so running off at the yap, when the fact is they'd be better off just shutting up and waiting to see what's ruled and what happens.

    But I suppose that just wouldn't be any fun at all... :rolleyes:



    J.C.
     
  19. RDak

    RDak Member

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    Kentak: A SCOTUS ruling for individual rights will prevent the anti-gunners from ever again arguing the collective right theory. Something the courts and anti-gunners have determined the 2nd Amendment provides MANY times in the past to support anti-gun legislation.

    It will remove the very foundation their primary argument is based upon (i.e., that the 2nd Amendment is a collective right, not an individual right).

    It is the single most important interpretation of the 2nd Amendment that we will have ever seen IMHO.

    It is of monumental significance to have the SCOTUS rule for an individual right.
     
  20. Kentak

    Kentak Member

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    Suppose the Heller ruling is for an individual right and that the DC handgun ban went too far. What do you think will change, other than DC will have to make some changes in its gun laws? The court certainly won't abandon the notion of "reasonable restriction." In fact, the ruling will probably enshrine it. Do you think the ruling would prevent a new, even broader AWB? Granted, it would help the political argument against it, but it wouldn't be prevented by any ruling in this case.

    K
     
  21. Kentak

    Kentak Member

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    RDak,

    My point is that an individual right has already been internalized by the majority of American people. Don't get me wrong, the individual right victory will be great--but shouldn't be cause to think we can relax the political fight for one moment.

    K
     
  22. RDak

    RDak Member

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    Yes, I think the ruling will go a long way in preventing a future AWB. The need for any future AWB will have to show that there is a compelling reason for its enactment.

    I think the Court could very well rule for strict scrutiny, or heightened scrutiny, which would make "reasonable restrictions" harder to impose. (So, I disagree with your assumptions that the Court will "enshrine" reasonable restriction in the context you appear to opine.)

    Also, law abiding DC residents will then be able to own firearms. Something they have been unable to do for over 30 years.

    Edit: I AGREE with you.... never stop being vigilant and always realize the anti-gunners will NEVER stop.
     
  23. jdc1244

    jdc1244 Member

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    The author of the article is not saying anything new, as noted in this thread and gun discussion venues elsewhere. If the lower court’s decision is upheld then it will confirm that the RKBA is an individual right and the banning of firearms as unconstitutional – that would indeed be significant.

    But it will have no effect on other restrictions and regulations.

    The ‘three day wait’ here in Florida, for example, will not be effected. One could make the argument that a Constitutional right delayed is a right denied, but that would be argued in a separate case made easier with a positive Heller ruling.
     
  24. RDak

    RDak Member

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    JDC wrote, in part:

    "One could make the argument that a Constitutional right delayed is a right denied, but that would be argued in a separate case made easier with a positive Heller ruling."

    To me, that represents a HUGE change in the way we pro-gunners have had to deal with the anti-gun movement.

    It "changes the flow of the river" so to speak. To me, that is a monumental change.
     
  25. Kentak

    Kentak Member

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    RDak,

    Yes, I *hope* your optimistic view will prevail. We are on the same side, after all.

    I just read this comment by anti-gun scholar Carl Bogus, referenced on another active thread here. Bogus says,

    Again, this is my point as well. The individual right ruling won't--by itself--lead to sweeping overturning of gun control laws (there certainly could be some, maybe in CA), but will help the *political* fight, which Bogus, I think, astutely recognizes.

    Edited to add: No one should think that we can just relax the fight and smugly *assume* the courts will strike down any new restrictions the antis will still try to enact, or that we can relax our strict scrutiny of political candidates.

    K
     
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