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August 15, 2011

When and how will (or should) SCOTUS next address Second Amendment rights?

The question in the title of this post is prompted by this new article from today's Washington Post, which is headlined "Cases lining up to ask Supreme Court to clarify Second Amendment rights." Here is how the piece starts:

A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court.  They’ve been on a losing streak in the lower courts.

The activists found the holy grail in 2008 when the Supreme Court’s 5 to 4 decision in District of Columbia v. Heller said the Second Amendment guaranteed an individual right to own a firearm unconnected to military service.  The court followed it up with McDonald v. Chicago two years later, holding that the amendment applies not just to gun control laws passed by Congress but to local and state laws as well.

The decisions were seen as a green light to challenge gun restrictions across the country, and the lawsuits have come raining down — more than two a week, according to the anti-gun Brady Center to Prevent Gun Violence.  But it is the Brady Center that is crowing about the results.

“Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence,” the center said in a report optimistically titled “Hollow Victory?”

Even those challenging gun restrictions acknowledge that the courts have been unwilling to expand upon the basic right that most people agree Heller bestowed: the ability to keep a handgun in one’s home for self-defense purposes.

The subsequent rulings “clearly highlight the struggles lower courts are having after receiving the Supreme Court’s guidance in Heller and McDonald,” said Antigone Peyton, an Alexandria lawyer.  “They’re afraid to be out front on the law.” As Maryland’s highest court, the Court of Appeals, put it: “If the Supreme Court . . .meant its holding to extend beyond home possession, it will need to say so more plainly.”

August 15, 2011 at 08:10 PM | Permalink

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I think the main problem is that, judging from what I see here, so many of the suits are brought by criminals seeking restoration of their gun "rights." They have had the problem of running into the infamous, but obviously carefully considered, Heller dictum.

If and when suits are brought by citizens in the Heller mold -- i.e., by persons without a criminal record -- then my guess is the Brady Campaign won't be doing so much crowing.

Posted by: Bill Otis | Aug 15, 2011 10:19:39 PM

actualy bill BOTH sides are full of it. considering the ONLY reason that document was WRITTEN was EVERYONE here had a gun and was able to run the british off and that amendment was if yoiu read the history of the time...placed in there as a RESTRICTION ON THE STATE! not the individual ANY restriction is an UNCONSTUITIIONAL ILLEGAL ACTION!

Posted by: rodsmith | Aug 16, 2011 1:36:44 AM

I think the next case is going to concern bearing, whether concealed or open. There are cases from the 1800s that said open carry must be allowed that have never been overruled, but the courts seem extremely reluctant to acknowledge that history.

Given how SCOTUS dredged something completely new out of the text of the 2A I have no idea how they will rule on such a matter.

Posted by: Soronel Haetir | Aug 16, 2011 9:00:34 AM

rodsmith --

A person convicted of multiple armed robberies would not have been permitted to own a gun at the time of the Founding and isn't going to be permitted to own one now. Won't happen, and shouldn't.

The colonists had no way to "un-elect" King George, but we have a perfectly good way to un-elect Dear Leader 15 months from now. Judging from his most recent ratings (39% approval vs. 54% disapproval), that's what's going to happen. I never heard of a President's getting re-elected when his approval was in the 30's.

So be of good cheer. We don't need guns. We have democracy.

Posted by: Bill Otis | Aug 16, 2011 9:07:43 AM

hmm

"A person convicted of multiple armed robberies would not have been permitted to own a gun at the time of the Founding and isn't going to be permitted to own one now."

bull shit! considering this was one of their dumping grounds for their ciminals that statement has to be one of more idiotic you have ever used!

Just WHO was going to do the PERMITTING? there was no opressive body of regulations and police to enforce them! IF you WANTED TO EAT...you had a GUN! wake up bill and join the rest of us in reality!

Posted by: rodsmith | Aug 16, 2011 12:49:18 PM

let me amplify a little

"A person convicted of multiple armed robberies would not have been permitted to own a gun at the time of the Founding and isn't going to be permitted to own one now."

assuming they managed to survive their capture and trial and finished their court ordered sentence...once they walked out the door they would have had any weapon they had at the time returned since it would also have been REQUIRED to feed themself as well as for those not in one of the few large cities needed for protection from both the native animinal life as well as the native indians!

of course back then the odds of managing to LIVE long enough to comitt multiple armed robberies would be very very very low! since back then of course EVERYONE had a gun and KNEW HOW and WHEN to USE IT!

Posted by: rodsmith | Aug 16, 2011 12:52:44 PM

"A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court. They’ve been on a losing streak in the lower courts."

Most of the cases have been attempts to extend Heller to a place where the Heller opinion itself, albeit in dictum, expressly said it should not be extended. "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings...."

Why is it "funny" that lower courts refuse to do what the Supreme Court expressly said should not be done? Why did anyone expect a contrary result?

Posted by: Kent Scheidegger | Aug 16, 2011 2:27:28 PM

"The colonists had no way to "un-elect" King George, but we have a perfectly good way to un-elect Dear Leader 15 months from now. Judging from his most recent ratings (39% approval vs. 54% disapproval), that's what's going to happen. I never heard of a President's getting re-elected when his approval was in the 30's. So be of good cheer. We don't need guns. We have democracy.'

Bill, that's right! And when Rick Perry becomes our President we'll be able to carry guns just like they did in the old West. No one's going to mess with me. Start practicing your draw!!!

Posted by: anon 15 | Aug 16, 2011 3:12:18 PM

anon 15 --

I'm 100% for gun rights for non-criminals, and believe Heller was correctly decided. But I doubt I'll be practicing my draw. I have some of the cultural heritage (although not necessarily the political outlook) of your basic country club Republican. Guns are not my thing. Words are my thing.

Posted by: Bill Otis | Aug 16, 2011 3:43:08 PM

BTW, the general rule for sentencing of felonies at the time of the founding was (1) all felonies were capital; but (2) first offenders were eligible for a form of mercy known as "benefit of clergy" unless the particular felony had that benefit removed by statute.

Robbery had benefit of clergy removed by a statute under William and Mary, and repeat offenders would never have been eligible in any case. So, no, a repeat armed robber could not own a gun. He would be dead.

Posted by: Kent Scheidegger | Aug 16, 2011 3:58:34 PM

Kent --

Thanks for the needed history lesson. I kinda thought armed robbery would be a capital offense in colonial times, but I didn't want to say anything since I wasn't sure.

Posted by: Bill Otis | Aug 16, 2011 5:02:28 PM

nice but of course we were NOT talking about capital crimes. we were talking about felonies....that anyone during the time of the founding of this country would have had their right to feed themselfs and their families with a gun or defend themselves from the native animals and indians after being relased from jail for ANY reason. 90% of the crap we now call felonies didnt' even exist at that time. since under the modern system a felony conviction for a BAD CHECK get's you the same LIFETIME weapons ban someone who used a machine gun on a crowd gets! same with any of the 10,000 felonies on the books that have no real VICTIMS! simply govt created criminal stupidity!

Posted by: rodsmith | Aug 17, 2011 10:01:26 AM

plus of couse your doddging the main issue! the second amendment was NOT put in place to restrict weapons from the citizens...IT was in FACT put in place to RESTRICT the GOVT! power to force the citizens to give up their guns JUST IN CASE the experiment that was the constituion FAILED and the govt got TOO BIG FOR IT'S BRITCHES! and tried to take over and become just another monarchy!

which of course it has!

Posted by: rodsmith | Aug 17, 2011 10:03:34 AM

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