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Upon Reflection . . .

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. Brett Bellmore says:

    Hopefully not any more than the President’s belief in local option for civil liberties has influenced them. I think he blew any chance of having influence over the majority, save in a negative way, when he decided to attack them to their faces at an earlier State of the Union address.

  2. Shag from Brookline says:

    Translating Brett: “President Obama is too, too uppity.” Perhaps Brett expected Obama to continue to turn the other cheek as the GOP in Congress attached him beginning day one of his first term. (Sen. McConnell’s goal of making sure that Obama is a one-term President has been extended to making sure that Obama is only a two-term President, thus prepared to fend off a possible use of Article V to change this.) It turns out that Obama has a couple more cheeks, which may turn.

  3. Brett Bellmore says:

    Shag, you’ve got about the reading comprehension of “Brett” that I do of Urdu. The President has said he thinks the civil liberty of gun ownership should be subject to local option. This isn’t “upity”, it is merely despicable, demonstrative of the usual mendacity of gun controlers who find they must pretend to support a Bill of Rights they actually despise, but whose ‘support’ does not extend to it actually having any legal force.

    This President has little influence over the majority on the Court, and I am glad of this, we’d be less free if he had is way.

  4. Joe says:

    The link by Brett says that Obama (editor alert: it misspells his first name) in Feb. 2008 disagreed with the dissent in Heller given he believed “there is an individual right to bear arms” while agreeing with the majority that the idea that “local jurisdictions can’t initiate gun safety laws to deal with gang bangers and random shootings on the street isn’t born out by our Constitution.” He did disagree on the USSC on a specific regulation though Heller/McDonald opens a range of “local options” in this area. How this balances out is unclear.

    As to the SOTU, the President has an obligation to discuss the state of the union & to propose particular legislation that might be useful for it. In this respect, after the USSC unnecessarily re-heard the CU and timed its opinion right near the State of the Union, the President commented on an important national issue involving national legislation. As other Presidents did, he disagreed with the SU on something in the process. This time, some justice felt a need to make a funny face.

    As to the OP, the President’s statement is a reflection of the spirit of the times and in this fashion it will in a small fashion influence the final opinion, given constitutional rights and principles are influenced by such things. See, e.g., Lawrence v. Texas.

  5. kurt says:

    @ Brett,
    But, the President signed into law (his first term), allowing firearms to be legally carried in National Parks, thus expanding the range of gun owners, not controlling them. How does this square with what you say about gun controllers. Seems like your position is similar to the NRA and their ilk; they like to ignore the facts and rely instead on fear.

  6. Shag from Brookline says:

    Brett’s problem isn’t with Urdu. Rather, Brett cannot undo the problems of angry white voters (per Sen. Lindsey Graham, Cracker So. Car.) with the changing demographics.

    Also, Brett”s reference to ” … the civil liberty of gun ownership … ” ignores that SCOTUS in both Heller (2008) and McDonald (2010), each 5-4, focused, in each actual decision, on the individual right to keep and bear handguns in the home, with majority dicta in each case regarding potential areas of limitations on Second Amendment rights in arenas other than the home. There are several recent Court of Appeals decisions in conflict regarding carrying in public, i.e., outside the home. Obama has not proposed limitations on the actual decisions in either Heller or McDonald.

    Brett has demonstrated at this and other blogs that he is a Second Amendment absolutist. SCOTUS has yet to agree on this. (I wonder if Brett shares Rush Limbaugh’s recent rant about what if John Lewis had a gun in Selma, he may not have gotten beat up; or with the Black Panthers who carried openly in the CA legislature back in the 1960s. Or that slavery might have been resolved well before the Civil War if the slaves had Second Amendment rights.)

  7. Shag from Brookline says:

    The Legal Theory Blog provides a link to Patrick J. Charles’ “The Second Amendment in Historiographical Crisis: Why the Supreme Court Must Reevaluate the Embarrassing ‘Standard Model’ Moving Forward.” I haven’t downloaded it as yet, as it runs 185 pages but I plan to do so. Both Charles and Prof. Eugene Volokh’s recent papers on the Second Amendment post-Heller have been cited – by majority/dissent in recent conflicting Court of Appeals decisions.

  8. Shag from Brookline says:

    The Legal History Blog in a post today links to Mark Anthony Frassetto’s “Firearms and Weapons Legislation up to the Early 20th Century.” Alas, this article runs 113 pages. My eyesight continues to improve but I have to defer reading this and Mr. Charles’ article referenced in #7 for the time being. Perhaps someone with younger eyes might do some yeoman work and read these articles to compare with the history provided by both the majority and the dissents in Heller and McDonald.

  9. Shag from Brookline says:

    The Legal Theory Blog provides a link to Lawrence Rosenthal and Adam Winkler’s “The Scope of Regulatory Authority Under the Second Amendment” to add to #s 7 and 8. The good news, for me, is that this paper is only nine (9) pages short. So perhaps I can provide some comments on it today and tomorrow.

    Meantime, has any volunteer stepped up as I suggested in #8? Do the “eyes” have it?

  10. Shag from Brookline says:

    Rosenthal and Winkler’s paper (#9), though short, provides quite a bit of detail. The paper was written after the Newtown, CT shootings and after the Obama Administration presented proposals for limited gun controls. The authors comment on the constitutionality of some of such proposals, applying the “wisdom” of Heller.

    The paper cites the 7th Circuit’s decision by a 3-judge panel in Moore v. Madigan. Tthe decision came down on December 11, 2012, a couple of days prior to the Newtown, CT shootings. Judge Posner wrote the majority decision, in his usual customary style, well reasoned. Judge Williams’ dissent was also well reasoned. Involved was an Illinois statute severely limiting the ability to carry a gun outside of the home. The majority declared the statute unconstitutional under Heller and McDonald, but gave Illinois 180 days to come up a new law that would not conflict with the Second Amendment. Judge Williams’ dissent was of the view that the statute did not violate the Second Amendment. Both the majority and the dissent referenced the Second Circuit’s decision by a 3-judge panel in Kachalshy v. County of Westchester. This decision issued November 27, 2012, unanimously, upholding a strict NY statute on carrying guns in public. There appears to be a conflict between these Circuits that just might reach the Supreme Court.

    Kachalsky was also cited in the Rosenthal and Winkler paper, which closes with this:

    “The Second Amendment leaves Congress and the state and local governments significant regulatory power, at least when they do not compromise the core right recognized in Heller and regulate with substantial justification. Indeed, in conducting this inquiry, there is a strong case to be made for judicial modesty. As one federal appellate tribunal put it: ‘This is serious business. We do not wish to be even minutely responsible for some unspeakable tragic act of mayhem because in the peace of our judicial chambers we miscalculate as to Second Amendment rights.’31″

    31. United States v. Masciandaro, 638 F. 3rd 458, 475 (4th Cir. 2011)

    Masciandaro was mostly unanimous by the 3-judge panel decision (Judge Niemeyer) issued on March 24, 2011, in upholding certain federal statutes prohibiting the carrying of guns on federal public lands even by someone licensed to carry by a state. [Subsequent to the event in the case, there was a change in the federal stature.] The quote in the closing of the Rosenthal and Winkler paper is from the opinion of Judge Wilkerson that was joined by Judge Duffy. Wilkinson stated that “In our view, it is unnecessary to explore in this case the question of whether and to what extent the Second Amendment right in Heller applies outside the home.”

    Both Posner and Wilkinson had been critical of the decision (as well as the dissents) in Heller. The Circuits are of course bound by the decisions in Heller and McDonald. But Justice Scalia’s pre-emption of the slippery slope in his dicta on certain types of limitations apparently do not serve as appropriate guidelines for some judges. So it looks like the Court will have to refine at least some of his dicta.