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January 2, 2009

What might 2009 have in store for . . . Second Amendment jurisprudence?

Due to the Supreme Court's remarkable work in Heller (and all of the pre- and post-ruling buzz), one could call 2008 the most eventful year for the Second Amendment since its ratification.  Yet, as regular readers know, I fear that, even with the bold work by the Justices in Heller, the story of the modern Second Amendment now still remains a tale full of sound and fury, signifying nothing.  Indeed, because the post-Heller jurisprudential landscape will begin to take shape over the next few months, I consider 2009 a make-or-break year for the Second Amendment.

Intriguingly, the Supreme Court has a Second Amendment sleeper case in Hayes, which concerns a federal prohibition on gun possession by those convicted of a misdemeanor crime of domestic violence.  Though the oral argument in Hayes did not mention the Second Amendment, I am hopeful that the Court's opinion will at least make note of Heller.  Similarly, though lower courts are now relying heavily on Heller dicta to reject Second Amendment claims, I am hopeful that at least a few lower court judges will soon have the courage to seriously work through the implications of the constitutional principles stressed in Heller.

Meanwhile, the Second Amendment may have gotten an unexpected shot in the arm as a result of Plaxico Burress unexpectedly shooting himself in the leg.  Few people — save perhaps NYC Mayor Bloomberg and those who like to root against the New York Giants — seem eager to demand that Plaxico serve a mandatory 3½ years in prison just for carrying a gun in NYC for self-protection.  Plax's lawyers may come to see (perhaps with the help of the NRA and other gun rights activists) that the strongest legal argument for avoiding this mandatory prison term may be rooted in the Second Amendment.

Some recent related Second Amendment posts:

January 2, 2009 at 10:12 AM | Permalink

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Plax's lawyers may come to see (perhaps with the help of the NRA and other gun rights activists) that the strongest legal argument for avoiding this mandatory prison term may be rooted in the Second Amendment.

Really? This seems inconsistent with your complaints about Heller. The New York gun laws don't make it practically impossible to get a permit, and Burress apparently didn't even bother to try. If the strongest argument he's got is a Second Amendment, then he should look for a lawyer who's got a lot of skill at plea negotiations.

As you've documented, the limiting language in the Heller majority (which is arguably dicta, but which is also remarkably clear and arguably relieves the lower courts of "seriously work[ing] through the implications of the constitutional principles stressed in Heller") seems to have had the effect of limiting Heller to its facts when it's raised in the lower courts.

Compare Heller to the abortion cases. Heller seems to hold that governments can't impose an undue burden on people's right to acquire guns for self-defense. The New York permit process doesn't seem to be unduly onerous, and as far as I know Burress didn't even try to get a permit. Are there any abortion cases holding that criminal sanctions for getting an illegal abortion make unconstitutional an otherwise permissible law restricting access to abortions?

Whether the conservatives like it or not, they seem to have entered Roe v. Wade territory with Heller, and the opinions following Roe that try to make sense of the standard established there (and in Casey) might be the best road map for future Second Amendment litigation.

Posted by: | Jan 2, 2009 11:27:52 AM

relative of defense: My brother-in- law has had a deffered convition of aggrivated assult from 94 that he finished probation on and another incident of the same nature that ran concurent which he finished probation. Since his last run in with the law( which was in self defense) he has turned his life around moved to Austin started working in construction and is now a business owner, long story short, there was a fire at his house that started in his garage setting off some scuba tank causing several expolisions. My sister-in-law collects guns and riffles, thinking some one was boming his house he got the 50 cal. and shot int he dirction of the gargage. Fire and Police dept got there, my sister - on-law was approched by a detecive that the fire dept needeed to search the house so she gave consent. Well now He's in Federal custudy being protriated as a gang member with ties to major gangs, it's being televised with NO truth to it. to Add insult to injury When the police arrived on scence my brother in law was struck by a police crusier and got sent to the hospital. he was giving a sedative there then released then questioned by police. Please keep in mind that the night of the fire was superbowl night (alcohol & sedatives dont mix well)
if someone has any advise or know of any president for exceptions to felon in possession please post or email me at [email protected] Thanks in advanced

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