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February 26, 2009
Deafening silence from the gun rights crowd about Hayes
With the Supreme Court's Hayes gun possession decision now a few days old, I cannot help but note that none of the prominent gun rights groups or pundits have said boo about the decision. Whenever there is talk of a new or expanded gun control effort, I can typically count on seeing comments (usually critical) from prominent gun groups like the National Rifle Association or Second Amendment Foundationor from prominent legal bloggers/pundits like David Kopel and Glenn Reynolds at Instapundit and other folks at The Volokh Conspiracy and at Pajamas Media. Yet, I am still awaiting a single word from any of these folks on the Supreme Court's work in Hayes.
I am not especially surprised that prominent gun rights activists are disinclined to support domestic abuser like Randy Hayes even when he is being federal prosecuted simply for having a rifle in his home. Nevertheless, I find it notable and telling that, while many traditional First Amendment advocates will vocally defend the speech rights of neo-Nazis, none of the traditional Second Amendment advocates will defend the gun rights of a misdemeanant. And the conspicuous silence on the Hayes case shows that gun advocates would like to just completely avoid talking about any of the hard political and legal questions raised by the Heller decision.
Other recent posts on the Hayes decision:
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- One notable expression of concern about Hayes and gun rights
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
February 26, 2009 at 10:15 AM | Permalink
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Well, I've got a post on this scheduled for later today, but I don't really see this as much of a gun-rights case. You could argue -- and I probably would argue -- that now that Heller has treated arms-bearing as an individual right, courts should read statutes that would limit that narrowly, and there's some lower-court authority for that in other contexts (e.g., the Adam Walsh Act). But I'm not terribly surprised that the Supreme Court isn't doing it here. Brannon Denning and I have an article coming out in Hastings that will address these issues, and I'm sure we'll talk about Hayes there.
Posted by: Glenn Reynolds | Feb 26, 2009 12:30:33 PM
Thanks for the update, Glenn. I look forward to seeing your thoughts on Hayes, especially because I see Hayes as a case about the authority of the federal government to broadly and permanently revoke gun rights --- by criminalizing mere gun possession in the home --- to anyone (and everyone?) that the feds deem undeserving of these rights.
Posted by: Doug B. | Feb 26, 2009 12:57:51 PM
Here in North Carolina we are still waiting on a decision from Britt V. State. Where his gun rights were restored for a number of years and then taken away by the general assembly.
Posted by: Tarheel | Feb 26, 2009 12:59:12 PM
Glenn. And that's the real rub here. It's easy to see this case as a domestic abuser case or any other pony you wish to ride. And like most SC cases it can be sliced and diced a hundred different ways depending on what ax one has to grind. But I think DB is right that there is a real second amendment issue in this case. It is arguably not the most prominent issue, but to just stick ones head in the sand and say that its better not to deal with it is wrong.
My own opinion is that silence by many so-called gun rights advocates on cases like Hayes doesn't reflect an estimation of the legal merits of the cases; it reflects an estimation of the political ramifications of taking a stance. Namely, that it's better to have a narrow second amendment right than be painted in the press as coo-coo crook defenders.
Posted by: Daniel | Feb 26, 2009 2:34:56 PM
"It is arguably not the most prominent issue"
In _Hayes_, it wasn't an issue at all. Period. Full stop. It wasn't raised, briefed, or argued. In the same way that the Summum case yesterday wasn't about the Establishment Clause, but rather the Free Speech Clause issue that was raised and argued by the parties.
Don't worry, the _Heller_ v. misdemeanor crime of domestic violence issue is percolating up through the lower courts as we type.
Posted by: JDB | Feb 26, 2009 3:39:24 PM
"In _Hayes_, it wasn't an issue at all. Period. Full stop. It wasn't raised, briefed, or argued."
And you still don't get the point. Sometimes it's the dog that doesn't bark that has the most revealing information to offer.
Posted by: Daniel | Feb 26, 2009 6:56:25 PM
But in Summum, didn't the justices discuss the fact that the Establishment Clause was clearly in play, even though they would not address it given the posture/presentation of the case? I think Doug's point is not that the Court didn't sua sponte rely on Heller to dictate the result in Hayes, but that no one even *mentioned* it, or the Second Amendment, as potentially relevant.
Maybe they were just showing admirable judicial restraint in discussing only what was strictly necessary to resolve the (statutory-interpretation) question presented, but given how much extraneous yakking they do in other cases, it does seem a bit odd.
Posted by: Dog Not Barking | Feb 27, 2009 9:44:47 AM
I just find it a little odd that Doug (and others) are so upset with the Court for not addressing an issue that wasn't there, given that in _Heller_ itself, Scalia's opinion did just that, with nasty consequences. The dicta on the (unargued and not in dispute) issue of whether_Heller_ kills off things like felon in possession laws is what is being used over and over in the lower courts to reject _Heller_ claims actually being made now in 922(g) cases. Isn't it better for the Court to deal with the matter at hand and not go off half-assed on a tangent that should be fully litigated in the future?
Posted by: JDB | Feb 27, 2009 4:31:34 PM