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June 4, 2009

NRA quickly petitions SCOTUS for Second Amendment incorporation

As detailed in this post at SCOTUSblog, only one day "after losing a major test case in an appeals court on the scope of the Second Amendment, the National Rifle Association — the nation’s leading advocate of personal gun rights — asked the Supreme Court on Wednesday to apply the Amendment to state, county and city government laws that seek to regulate firearms."  The NRA's cert. petition can be accessed at this link (via The Volokh Conspiracy), and here are a few notable snippets:

The First, Second, and Fourth Amendments all refer to “the right of the people” to do certain things or be free from certain governmental restraints.  The Second Amendment has a purpose clause clarifying that exercise of the right makes possible a well regulated militia, which is “necessary to the security of a free state.”

There is a strong presumption that an explicitly-guaranteed substantive right is fundamental....

Heller held as a matter of law that “the inherent right of self-defense has been central to the Second Amendment right.” 128 S. Ct. at 2817.  The right to have arms allows one to protect life itself, and the Second Amendment declares its purpose to be “the security of a free state.”...

“A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” Duncan, 391 U.S. at 155-56.  The Second Amendment also prevents oppression: “when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Heller, 128 S. Ct. at 2801....

The Second Amendment does not represent an inferior right which a court may subjectively relegate as beneath the usual rules of incorporation.  “To view a particular provision of the Bill of Rights with disfavor inevitably results in a constricted application of it.  This is to disrespect the Constitution.” Ullmann v. United States, 350 U.S. 422, 428-29 (1956).  No constitutional right is “less ‘fundamental’ than” others, and “we know of no principled basis on which to create a hierarchy of constitutional values . . . .”  Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982).

I am pleased to see the NRA move so quickly and aggressively to encourage the Supreme Court to take up and resolve whether the Second Amendment applies to the states.  But all this strong language in the cert petition makes my again annoyed and troubled that the NRA and other Second Amendment fans have been so slow and passive in response to post-Heller rulings that have rejected gun rights for nearly everyone ever convicted of a crime.

Obviously, one does not completely and permanently lost all their First or Fourth Amendment rights, or their rights to a jury trial, just because one is convicted of any felony or the wrong type of misdemeanor.  But, since Heller, courts have regularly upheld federal gun possession convictions for all felons and certain misdemeanants.  And, to my knowledge, neither the NRA nor other Second Amendment groups have expressed one bit of concern about these developments. 

The NRA in this cert petition asserts that the "Second Amendment does not represent an inferior right." But the NRA's own unwillingness to raise concerns about the denial of this right to those who are politically unpopular (i.e., those convicted of any crime, even non-violent crimes) reveals to me that even the NRA and other gun groups feel compelled to concede that the Second Amendment is an inferior right to other rights protected by the Constitution.

Some related Second Amendment posts:

June 4, 2009 at 07:20 AM | Permalink

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Comments

DB writes: "But the NRA's own unwillingness to raise concerns about the denial of this right to those who are politically unpopular (i.e., those convicted of any crime, even non-violent crimes) reveals to me that even the NRA and other gun groups feel compelled to concede that the Second Amendment is an inferior right to other rights protected by the Constitution."

For the past 100 years or so at least, it has been treated as an inferior right, and I doubt that the people behind the recent Second Amendment litigation would hesitate to concede that they're starting from that point. I suspect that an honest NRA response to your "annoyed and troubled" point would be either or both of the following: (1) one step at a time--before Heller the 2d Amendment wasn't even recognized as an individual right; if the gun rights activists move too quickly they may lose it all; or (2) the NRA's mission is primarily firearms safety and education; it isn't an association of constitutional law theorists, and gun rights for convicted criminals is both (a) low on its list of priorities and (b) not going to stand in the way of achieving its higher-priority objectives.

Further to (1), the plaintiff in Heller was chosen very carefully--no criminal record, no indicia of "nuttiness," etc. Oftentimes when there's a movement to get new rights recognized, there's an internal debate about how quickly to move and whether and when principle should make concessions to practicality. Perhaps step 1 is getting explicit recognition from the Supreme Court that the Second Amendment protects an individual right, step 2 is incorporation against the states, and maybe step 3 (once the footing of the right is established) is to go more aggressively after the arguments about when, whether and how the right can be abridged or denied.

Given that most gun restrictions are imposed by state law, it seems to me that without incorporation, a great many of the people you're concerned about would reap no benefit from the broad reading of the Second Amendment that you seem to favor.

Posted by: anonymous | Jun 4, 2009 11:11:14 AM

All sound points, anonymous, except for your assertion that the very end that "Given that most gun restrictions are imposed by state law, it seems to me that without incorporation, a great many of the people you're concerned about would reap no benefit from the broad reading of the Second Amendment that you seem to favor." Though many states have various laws prohibiting felon gun use, I believe that the feds have the most burdensome and severe law in this regard.

More broadly, it is because I am a criminal/constitutional law theorist that I am often stressing the inconsistent way in which the NRA and other groups treat gun rights. I think your insights about the politics/practicalities are spot-on, but if you are unwilling to defend a constitutional/legal right for the politically unpopular, then I think this shows a lack of really, deep committment to the right but rather just want to tweak current policy.

Posted by: Doug B. | Jun 4, 2009 2:18:20 PM

Protection from criminals was always a dominant premise and it would be contradictory to change that position in the future. No, their fear of crime rhetoric is catching up to them.

The NRA was instrumental in California's Three Strikes law:

"With his poll results, Reynolds was able to receive a start-up fund of $40,000
from the National Rifle Association (NRA) and $50,000 from the California
Correctional Police Officer’s Association (CCPOA)(also known as the prison guard union)." link. (pdf)

Posted by: George | Jun 4, 2009 2:49:28 PM

Doug,

The SAF for one did file an amicus breif in Hayes, but as has been pointed out, the 2A issue was not preserved there. More to the point, these organizations do not have unlimited budgets. Far better to spend today's funds on cases you might win instead of both wasting money and setting precident that will make even modest gains harder to acheive in the future.

Look at other areas of law for example, such as government provided defense counsel. First there was no right at all to appointed counsel. Then there was a federal right, then a state right in capital cases and then a state right in all felony cases and then finally a state right in misdemeanor cases. If the focus had been on misdemeanor cases from the start we would still likely have no appointed counsel at all. (Note I'm not sure whether the federal provision went through a similar progression to the later state expansion.)

The 2A is also different from most of the provisions of the 4th, 5th, 6th and 8th amendments in that firearms are both a civil and criminal matter. Unlike the 1st amendment which also has civil and criminal sides the 2nd does not have a huge body of case law to work against and so for the time being any successful case upsets larger portions of what many view as settled law.

Posted by: Soronel Haetir | Jun 4, 2009 2:59:35 PM

I don't know whether to be astonished or merely bemused that the liberals, who are easily in the majority here, are now so enthralled with the guns right arguments that, before last June, they ridiculed as the product of a bunch of wacko, cowboy, troglodyte, wild west, Limbaugh-hugging conservatives. My how times do change!

At least they're still raising principled opposition to the VERY IDEA of trial by military commission for some of these terrorists.

What's that?

That one is overboard too, now that Obama has flipped?

As Roseanne Roseannadana said, "Never mind."

Posted by: Bill Otis | Jun 4, 2009 7:41:09 PM

Bill, I am not sure if you are trying to attack me, but I believe I have been pretty consistently "enthralled" with Second Amendment claims and all good arguments about rights against oppressive government power in the criminal justice system. If you are talking about me, please point to prior posts in which I supposedly "ridiculed" second amendment arguments?

Meanwhile, should liberals be astonished or merely bemused that folks who once railed against judicial activism are so eager (and praiseworthy) of activism by judges when it seems to serve their political interest? Supposedly conservative legal theorists should be figuring out how the deal with all the cracks in their unprincipled glass houses before throwing stones at liberals.

Posted by: Doug B. | Jun 5, 2009 10:31:06 AM

Doug -- If I wanted to dispute what you say, or have said, I would take you on by name. As you know, I'm not what you'd call a shrinking violet.

I actually don't know what your views of the Second Amendment have been over the years. I do know that liberals as a group have historically supported strong gun control measures; have taken a dim and narrow view of the Second Amendment; and have (as I said, and you don't dispute) ridiculed the opposition as a bunch of shoot-'em-up cowboys. If this forum is any indication, liberals have walked away from their former ridicule of the "gun rights" crowd as if it never existed, which it most certainly did. This is at the same time that one of their favorite charges against the opposition is the outraged cry of "HYPOCRISY!!!"

Ha!

"Meanwhile, should liberals be astonished or merely bemused that folks who once railed against judicial activism are so eager (and praiseworthy) of activism by judges when it seems to serve their political interest?"

They should be happy, mindful that imitation is the sincerest form of flattery.

"Supposedly conservative legal theorists should be figuring out how the deal with all the cracks in their unprincipled glass houses before throwing stones at liberals."

Wrongo. Bad thinking can and should get criticized even if those doing the criticizing have done some bad thinking of their own. The alternative is that unattainable perfection of thought becomes a precondition to pointing out error. I cannot imagine anything that error would love more.

Posted by: Bill Otis | Jun 5, 2009 5:53:26 PM

The Supreme Court said itself in Heller that that decision did not interfere with the prohibition of felons having weapons. That would leave it as a somewhat settled question.

On the question of non-violent criminals not having weapons, the valid reason to leave it so would be because of plea bargains. To often violent crimes are prosecuted as lesser crimes, sometimes a felony becomes a misdemeanor, others a violent charge becomes a non-violent charge. Since plea bargains are such a large part of our legal system it is fitting and reasonable for lesser crimes to also carry the restrictions.

The right to bear weapons by the individual is directly related to the right of the individual to self-defense. A society that does not allow its citizens to be safe is burdensome and useless. Criminals having weapons could very well burden the safety of the citizens as well, negating the whole purpose of the second amendment.

How many legal weapons are involved in crimes? Very few as I recall, though I cannot remember the exact statistics.

Posted by: wmb | Jun 6, 2009 12:46:38 AM

wmb -- You make some good points. I would add that the felon-in-possession rule is easy to avoid: Don't be a felon. This is not all that hard to do, since over 90% of the population does it. And the small minority who decline to refrain from felonious acts might look to their own behavior first, before blaming everybody else.

Posted by: Bill Otis | Jun 6, 2009 7:53:25 AM

I have posted comments of my upcoming suit on other articles. In response to the brilliant comment about simply "not being a felon", I would like to say that it is better to actually solve inconsistencies in law than to dismiss with prejudice. I defended myself against the same attacker twice. The first time, I called the police and made a report. The second time, he came back with two accomplices and I critically wounded him. I was convicted, despite his confessions of premeditation in court.

Who do I blame? Not myself, I blame my attorney on the case. Your attitude is deplorable. It not only solves nothing, but is ripe with laziness and apathy. Perhaps someday you will find yourself in a predicament and find out how ridiculously easy it is to become a felon in this country; the country with the largest prison population in the world.

Posted by: V | Oct 25, 2009 9:23:00 PM

@Bill Otis
I served my time. I am not living here in the freeworld with you.
I pay all my taxes, and I don't break laws. I don't want you or anyone else to be harmed in any way ever.
But I want to carry a gun. I want to be able to do what you imagine the police can do: Prevent harm coming to me or my family or others. The police not only cannot prevent crime, they never even try.
My God given right to protect myself and my family shouldn't be curtailed by a nanny state.
The very fact that I DON'T have any guns nor carry any proves that I have turned from the dark side and want to live as a law abiding citizen.
Your (and people like you) argument that we felons are all scary monsters who have huge arsenals of illegal guns and are just waiting to shoot honest citizens with these guns is silly at best.

Posted by: Robert Hale | Apr 30, 2010 5:36:57 PM

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