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June 15, 2008

The politics and practicalities of a post-Heller Second Amendment world

With two weeks to go in the Supreme Court term, the media and pundits are starting to gear up for what it might mean politically if (when?) the Justices hold in Heller that the Second Amendment protects an individual right to keep an bear arms.  For example, this ABC News piece discusses how a leading gun control group views the state of the gun wars, with the headline "Gun Control Group Braces for Court Loss: 'We've Lost the Battle on What the 2nd Amendment Means,' Brady Campaign Head Says."  Similarly, this Los Angeles Times article looks at matters from the NRA perspective, with the headline "NRA's political clout is waning: With 2nd Amendment rights expanded and Democrats reluctant to tackle the issue, gun control isn't the GOP weapon it used to be; The rifle group, in essence, is a victim of its own success."

Though I am not qualified to make bold predictions about the political landscape after the expected ruling in Heller, I expect that there will be unexpected legal (and political?) twists if (when?) federal defendants start aggressively asserting Second Amendment claims after Heller.  As I have highlighted in a number of prior posts (linked below), if the Heller ruling has some significant "self-defense" dicta, the types of persons asserting Second Amendment rights in federal courts may create headaches for politicians of all stripes concerning their approaches to gun issues.

June 15, 2008 at 12:03 PM | Permalink


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I notice that your posts on this topic (which are great, as always) refer consistently to the impact the Heller decision may have on federal prohibitions on gun possession by felons. The implication seems to be that state prohibitions may be exempt from application of the 2nd Amendment analysis that is predicted in Heller. Is this a correct inference? And is it based on case law limiting the scope of the 2nd Amendment at the state level (much as the Grand Jury requirement in the Constitution doesn't have application at the state level)?

Posted by: Ryan S | Jun 15, 2008 1:08:21 PM

There is the incorporation issue AND the fact that, to my knowledge, relatively few state gun restrictions are as extreme or as punitive as some federal gun laws.

Posted by: Doug B. | Jun 15, 2008 2:47:45 PM

NC law is just as broad and punitive as federal, with a blanket prohibition and with Poss by Felon triggering habitual felon enhancement. I tried a Felon in Possession case last week and preserved both Second amendment and Ninth amendment claims. The def was charged with having 11 antique shotguns and rifles in a gun cabinet in his bedroom, one of them almost 100 years old. They were the family gun collection, going back to great grandfathers' shotgun. They were brought to the defendant's house by his mother several years ago for storage because she was afraid her husband, who has Alzheimer's would shoot himself. I claimed a ninth amendment right to store the family heirloom weapons.
bruce cunningham

Posted by: | Jun 16, 2008 7:25:48 AM

Good point Bruce (and good arguing as well, I especially like the 9th Amendment argument since judges and the general public often forget that it exists) - some of the state firearms laws are pretty restrictive. Virginia has a blanket lifetime ban on felons - while not as draconian on sentences, simple possession of a firearm by a felon gets 3 years mandatory minimum in prison if a non-violent felony (such as simple possession of a controlled substance (other than marijuana) or grand larceny) or 5 years mandatory minimum for a violent felony conviction (of course, the maximum is also 5 years, so its very advisable for a defendant to fight the charges and demand a jury trial since there is no risk involved). I do not believe that when people get their right to vote restored in Virginia that it includes restoration of the right to possess firearms (would have to check on that).

Obviously it is folly to attempt to predict what will happen with a Supreme Court decision (did anyone predict in 1973 that Roe v. Wade would be the best thing to ever happen to the religious right?). My somewhat bold prediction is that the gun rights crew after getting their victory to preserve their rights to bear arms are suddenly going to be way more receptive to gun control legislation - especially when it comes to keeping guns out of the hands of felons (or people declared mentally ill) and criminals. Thus, as far as criminal law is concerned, I do not expect much to change. I do think (and I think this will be a very strong argument for persons with non-violent felonies on their record) that courts may (and legislatures should regardless of what the Supreme Court says about the 2nd Amendment) find a Second Amednment violation that persons with felony records do not have a realistic opportunity to restore their rights to possess firearms - however, I do not think that the 2nd Amednment will provide much help for persons found to have firearms in their possession after a felony conviction.

Posted by: Zack | Jun 16, 2008 10:04:25 AM

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