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January 15, 2008

Thoughtful analysis of the realities of Second Amendment litigation

Over at the Balkinization, Jack Balkin has this very effective post titled "Explaining The Bush Administration's Tepid Support For Gun Rights."  The post does a great job explaining why the Bush Administration, as I noted here, is now taking something of a blunderbuss approach (pun intended) before the Supreme Court in Heller when suggesting limits on the reach of an individual-oriented Second Amendment right.  Here is how the post concludes:

[O]nce the Supreme Court recognizes an individual right in Heller, the future of federal gun regulations will be in the hands of the federal courts.  But because the federal judiciary tends to be composed of elites similar to those in the Republican establishment, one might predict that, at least in the short run, a Republican-controlled judiciary will not be significantly more radical in its conclusions than the Bush Justice Department is today.  (And of course, Democratic appointees will probably be less so)....

Does this mean that Heller will be only a symbolic victory?  Not at all.  It means only that the public fight over gun rights will have entered a new phase, one in which both major political parties will have to readjust their rhetoric.

As we focus on these important Second Amendment litigation reality issues, I think it is especially important to consider who will be bringing Second Amendment claims after Heller.  The Second Amendment might have some legs if the "pro-gun bar" (which I suppose I am a part of) can find some very sympathetic plaintiffs to bring strategic follow-up litigation after Heller — folks like Gary Don Holt who simply wants to be able to use a gun to go hunting 20 years after a minor pot conviction.  But, if the Second Amendment is mostly brought up by defendants in criminal cases, I suspect the lower federal courts (regardless of their party affiliation) will devise a number of novel doctrines to limit the Second Amendment's reach.

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January 15, 2008 at 04:39 PM | Permalink

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Comments

They say a liberal is one who hasn't been mugged yet. The fear mongering over crime, mostly from the Right, weakened many of the Bill of Rights, one after another, and now one of their most cherished might take a hit. Conservatives for all intents and purposes mugged liberals and hit them over the head with fear. That's not to say crime isn't or never was something to take seriously or that there never was nothing to fear. It is only to say the fear mongering and exaggeration as a platform may backfire.

Evidently, the historical definition of militia does not support an individual right to bear arms. You can search many of the historical documents at Google books, and I've not found one that in context supports an individual, rather than a government controlled militia, right to arms.

For some reason, when The People are afraid, they are afraid of guns. Imagine that.

Posted by: George | Jan 15, 2008 6:33:12 PM

I'm thinking that one of the District's arguments regarding handguns versus long guns may be way more important than people realize. That is that while most of the reasons cited for an individual right to own guns apply to long guns (shot guns, rifles, and the like), they do not apply or do not apply as strongly to hand gun possession. The Court and later courts may well recognize a difference between hunting rifles and shot guns - and handguns - namely, that hunting rifles and shotguns have other uses other than "protection" (of course, one can reasonably argue that a visible shotgun or rifle provides much better protection than an invisible handgun) and to commit crimes.

I think the argument for individual possession of rifles and other longguns is way stronger than allowing private possession of handguns. People who wish to prevent their homes using firearms can still do so with long guns and hunting will be protected. However, I am not convinced that even assuming argumendo that a private right exists under the Second Amendment that it would include private possession of "offesnive weapons" and I think that the government could make an argument that handguns qualify as a primarily offensive weapon.

Obviously hunting creates the most sympathetic argument - and I think one could also reasonably argue that weapons primarily used for hunting could be protected by the Constitution. I suspect that courts will start to make distinctions among types of firearms - defensive and hunting weapons (while one can commit crimes using long guns they are much less common because they cannot be concealed) are likely to receive the highest amount of protection (but still be subject to some limits). Handguns likely will receive a lesser amount of protection. With machine guns and the like, still essentially prohibited.

Posted by: Zack | Jan 22, 2008 1:11:46 PM

AS a gun collector, I do not see the reasoning behind a BAN on sale of new production machine guns to civilians. If ANYTHING is a "militia" weapon, the new crop of real "assault rifles" and submachine guns are. AS to "hunting" being a constitutionally protected "right", get real. If this were true, then hunting LICENSES, granted by states would be UNCONSTITUTIONAL. Hunting is not protected. ARMS for self protection ARE protected. And the hype between "offensive" and "defensive" arms is specious. HAND GRENADES are "offensive" or "defensive", but a shotgun, rifle or handgun can be equally used in either capacity.

Posted by: Fiftycal | Feb 7, 2008 12:06:51 AM

The Second Amendment has nothing whatsoever to do with hunting. It has everything to do with the protection of liberty but ensuring that the body of the people are armed and cannot be easily subdued. The Fourteenth Amendment and the Reconstruction Era have extended this right to personal self defense.

If the Second Amendment protects hunting, then Roe v. Wade protects the right of men to have an abortion.

Posted by: Kevin P. | Feb 7, 2008 8:53:31 AM

The fear mongering over crime, mostly from the Right, weakened many of the Bill of Rights, one after another, and now one of their most cherished might take a hit.

This is a most amusing claim. It is gun control advocates (largely, but not exclusively on the Left) who have used the fear of crime for decades to advance a program of disarming law-abiding adults.

Evidently, the historical definition of militia does not support an individual right to bear arms. You can search many of the historical documents at Google books, and I've not found one that in context supports an individual, rather than a government controlled militia, right to arms.

The Second Amendment protects a "right of the people" not a "right of the militia." Since you think that examining historical documents at Google books is going to prove your case, consider these examples from James Wilson, Associate Justice of the U.S. Supreme Court, principal author of the 1790 Pennsylvania Constitution, and a member of the Philadelphia Convention:

Homicide is enjoined, when it is necessary for the defence of one's person or house. With regard to the first, it is the great natural law of self-preservation, which, as we have seen,3 cannot be repealed, or superseded, or suspended by any human institution.

This law, however, is expressly recognized in the constitution of Pennsylvania.4 " The right of the citizens to bear arms in the defence of themselves shall not be questioned." This is one of our many renewals of the Saxon regulations. " They were bound," says Mr. Selden, "to keep arms for the preservation of the kingdom,
and of their own persons." 5

There are a number of examples in in this paper by Professor Joe Olson and myself that will be appearing shortly in Georgetown Journal of Law & Public Policy.

Posted by: Clayton E. Cramer | Feb 7, 2008 12:29:13 PM

Violation of justice has a negative impact on the psyche of the person generating exclusion, disrespect for the law and officials. Therefore, the restoration of the rights of victims of miscarriages of justice is a means of prevention of illegal acts in the future.Thank you

Posted by: kamagra | Nov 16, 2010 1:30:58 PM

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