The George Washington Law Review, Issue 80:3 (April 2012)

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7 Responses

  1. Brett Bellmore says:

    From Justice Breyer’s Triumph in the Third
    Battle over the Second Amendment

    Examining the decisions made so far, this Article argues that the third phase of the fight over the right to keep
    and bear arms is moving toward an unusual result. The lower court decisions reflect the pragmatic sentiments of Justice Breyer’s dissenting opinions in Heller and McDonald. Frustrated by the predominantly historical approach and
    the puzzling categorizations suggested by Justice Scalia and the other members of the Heller and McDonald majorities, the lower courts have focused on contemporary public policy interests and applied a form of intermediate scrutiny that is highly deferential to legislative determinations and leads to all but the most drastic restrictions on guns being upheld.”

    This is not at all startling, and was in fact anticipated by the 2nd amendment’s defenders. While it might seem a little odd that Bull Connor comes dressed this time in judges’ robes, all the lower courts are doing is continuing their practice during most of the 20th century.

    Any comparison of Miller, for instance, to the lower court decisions nominally implementing it, will reveal the same kind of animus towards this liberty. A substantial portion of the judiciary do not like this right, and have no intention of seeing it effectively protected.

    If Obama does not get a chance to replace one of the Heller majority, I expect that the lower courts will eventually be forced into line. But it will be kicking and screaming, as they really do NOT like this right.

  2. Joe says:

    The result is not “unusual” in the least.

    When the federal courts first recognize rights, it does so slowly. The 1A is still not secured to its true outer limits, Justice Douglas himself accepted obscenity bans as late as the early 1950s.

    Heller and McDonald was ruled a few years ago. Putting aside that the 2A by its very nature implies certain limits and for years had a federalism component that allows local discretion, what else do we expect? Everything at once?

    Brett’s “2A defenders” think Heller — which specifically allows various categories of regulation or pretty much implies that — doesn’t go far enough. They think it itself shows “animus.” Justice Clarence Thomas is too weak here.

    Since the justices in the Heller majority don’t protect the liberty in question enough, I don’t think much “kicking and screaming” will be forthcoming on the judges end. If any will be present, it will be elsewhere.

  3. Brett Bellmore says:

    “They think it itself shows “animus.””

    Not animus, precisely, on the part of the majority. Just a reluctance to undo the damage their predecessors enabled by spending seven decades refusing all 2nd amendment cases.

    Well, at least they weren’t, when pressed, willing to land the final blow, after decades of letting the lower courts administer the death of a thousand cuts. It will take a future Court to start rolling the infringements back.

  4. Joe says:

    Brett has spoke harshly about Heller before but now he is being a bit more careful. So be it. Anyways, yes, the USSC is not going to decide everything at once, just as it didn’t decide everything at once after years of ignoring the 1A etc.

    The USSC dealt with gun cases in various instances over the years. Printz v. U.S., e.g., was treated as a 10A case, but it really was a gun case. Back in 1971, the USSC read a federal gun statute narrowly (U.S. v. Bass) and in the process protected 2A interests. Quite a few federal cases involved felons or guns Heller deemed not covered. Of course, state courts repeatedly protected gun rights under state constitutions.

    Brett wants the USSC to overturn clear Heller dicta. It will take more than Obama not appointing another Breyer to get there, especially when CJ Roberts on down say such regulations are acceptable.

  5. Brett Bellmore says:

    “The USSC dealt with gun cases in various instances over the years.”

    Yes, they took cases which *could* have been argued and decided on Second amendment grounds. But weren’t. But, between Miller and Heller, it took not one case where the principles raised the 2nd amendment as an issue. (Amicus raised it. Amicus got ignored.) Not one. To raise the 2nd amendment as an issue was to guarantee the Court would refuse cert.

    A whole generation were born and died of old age while the Court refused to consider this issue.

    The lower courts were considering it, yes. As I said, they were delivering the death of a thousand cuts to the amendment.

    That’s why the Heller case was considered madness by the NRA’s litigation team: It was thought that actually bringing the challenge as a 2nd amendment case would guarantee the Court would refuse to hear it. That it was better to get gun control laws struck down on other basis, rather than upheld because you mentioned the 2nd amendment in your brief.

    And, indeed, had the circuit court not ruled to uphold the 2nd in Parker v. District of Columbia, the high Court might very well have refused the case. But they were confronted with a case where refusal would be tantamount to ruling to uphold, something they’d never faced before. The game was up, they had to decide what they were going to do.

    And they fell one vote short of razor blading the 2nd amendment out of the Bill of Rights.

    Based on statements by the members of the Heller/McDonald minority, if one of the majority in those cases gets replaced by Obama, they’ll probably take the first available test case, and reverse Heller.

    And all hell will break loose.

  6. Joe says:

    Since the basic interests of the right were protected in some ways, and in fact just looking at the 2A is actually wrong since the right goes beyond it, said generation was still covered in various ways. Putting aside state courts.

    Heller was a unique case. It was a federal law, right in the backyard of the justices, that was a broad ban. Other than Quicili v. Morton Grove, I don’t know of such a law decided upon in the federal courts. Most states (not all) would not pass such a broad law. Most of the cases involved felons, certain types of guns (just like certain types of speech, like obscenity, is not covered by the 1A) etc.

    [in fact, a local law is not the easiest case under the 2A, which was especially concerned with doing just that -- not having Congress invade the right of local people to regulate in this area]

    Many liberals (including liberal law professors) support Heller. It allows many regulations. For instance, it is far from clear concealed carry is illegitimate under it. So, this “probable” business is akin to those who thought Obama was this big threat to 2A rights while they actually expanded under his administration.

  7. Joe says:

    [When I said "decided upon," I don't mean the USSC refusing cert., but actual cases brought and argued in the lower federal courts; I did a search of such cases before and you have a bunch of cases involving felons, a few involving "assault weapons" etc. In fact, even Miller wasn't a ban. It was a tax case.]