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October 1, 2009

What state and local issues will be litigated the most if (when?) Heller is incorporated?

As suggested in prior posts, the smart money in the wake of the Supreme Court's grant of cert in McDonald is that the Justices will extend its Hellerruling and find Second Amendment rights are fully applicable to states and localities.  Thus, I am already thinking about and wondering what kinds of state and local gun regulations will quickly become litigation hot-spots once the Second Amendment is incorporated. 

This new piece from the Christian Science Monitor, which is headlined "Arizona allows guns in bars. Should any place be off-limits?", reinforces my sense that there are going to be big battles over what are "sensitive places" where gun possession can be banned.  Here is a snippet from the piece:

Arizona will be the 41st state to let bar patrons pack heat (only if they’re not drinking alcohol, however). Meanwhile, the list of places where gun owners can bring their weapons is growing, as the gun lobby increases pressure on statehouses and Congress to broaden Second Amendment rights. “The trend over the last 20 years is more freedom in most states for individuals to carry guns,” says Robert Cottrol, a law professor at George Washington University in Washington.

The issue took on even greater importance Wednesday when the US Supreme Court announced it will hear arguments as to whether a Chicago handgun ban violates the Second Amendment right to bear arms.  The case could have implications for all local gun restrictions, which have been a central tenet of gun control....

In Arkansas, state Rep. Beverly Pyle proposed allowing guns inside places of worship earlier this year. It seems as though the state’s ban will stand, but the issue is percolating. Ken Pagano, a pastor in Kentucky, in June sponsored a bring-your-guns-to-church day. “God and guns were part of the foundation of this country,” Mr. Pagano told The New York Times.

Going forward, gun owners hope to make sure that no place will be off-limits. “My guess is that too that the extent that there are restricted spaces, there will be a movement to push against that,” Professor Cottrol says.

Some related Second Amendment posts:

October 1, 2009 at 09:24 AM | Permalink


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Here in Michigan, likely statutes to be affected would be those punishing someone for being a felon in possession of a firearm, a 5-year felony; possessing a firearm in the commission of another felony, a 2-year, mandatory, determinate, sentence, served consecutively to, and before, the sentence for the underlying crime; and carrying a concealed weapon, another 5-year felony. Especially this is so in arguable self-defense cases, where the defendant can now win acquittal on the underlying substantive charge, and yet still be convicted both of the use of the firearm in the commission of the (acquitted) felony, and of being a felon in possession of a firearm.

Posted by: Greg Jones | Oct 1, 2009 10:50:02 AM

What would Jesus pack?

Posted by: 123 | Oct 1, 2009 12:21:12 PM

The more interesting question is how the conservatives (Scalia, Alito, Roberts, Thomas)will explain the incorporation of the 2nd Amendment when there is precedent to the contrary. How will they be able to claim "original intent" is what they are all about, but then expand rights to gun owners when on at least three occasion the Court has said specifically that the 2nd amendment ONLY apllies to the federal government.

If they incorporate the 2nd amendment aren't they being "activist judges?" If the People want to incorporate the 2nd Amendment they can amend, why should judges grant this right?

Anyway, the hypocracy of the conservatives is soon to be clear. They won't expand any rights to those accussed of crime (note on the same day the took a 6th circuit case grantining of habeas in a jury selection case Smith v. Berghuis)but feel free to expand the constittuion for the things they support.

Many of us wish they would be consistent, but apparently only gun owners are worthy of their discretion.

Posted by: Michael Hadley, Esq. | Oct 1, 2009 2:20:45 PM

Mr. Hadley,

The only SCOTUS case law regarding incorporation of the 2d amendment predates the modern incorporation doctrine. So, stare decisis will play a small role in the upcoming case, and it will be relatively simple to incorporate the 2d amendment to the states.

The amendment that you seek that would incorporate the 2d amendment to the States- it was done in 1860's.

Lastly, are you familiar with Scalia and Thomas' jurisprudence regarding the right to a jury trial (ie, Apprendi)? If they are being "activist judges" on the 2d amendment, that has already been done in Heller. The incorporation of the second amendment hardly seems activist when Heller called the right to bear arms a fundamental right.

Posted by: Carl | Oct 1, 2009 2:47:28 PM

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