Second Amendment Prediction
A Second Amendment case will be heard by the Supreme Court in the next few years, and it will confirm an individual right. However, the ruling will be so narrow that it will not override state interest claims. It will not require a strict scrutiny standard, but rather an intermediate one. And it will certainly not overturn “assault weapon” bans, open the door for viable challenges to permitting schemes, or declare registration mandates, background checks, and similar prior restraints unconstitutional infringements.
In short, we will achieve a “status quo,” where the vast majority of “existing gun laws” are deemed enforceable and prosecutable, rather than repealable.
I’m not sure how affirmation of an individual right could not lead to successful challenges of various gun control measures. I would think such a ruling would open the door to repealing things like the DC gun ban, Chicago and New York’s heinous laws, and California’s and Massachusetts’ arbitrary laws regarding safety features.
That said, I’m sure some lawyers would be able to misconstrue it.
January 15th, 2006 at 3:27 pm
Oh please please please. My only fear is that it will be ruled the other way. After Kelo I have less faith that I did before in SCOTUS. I know the face of the court will be very different due to Alito and Roberts but still I’m nervous.
I am with you, if the court declares it an individual right, then all of the “gun control” laws will be up for challenge. I know you can’t yell fire in a theater but possibly you can carry a gun in one?
January 15th, 2006 at 8:42 pm
I, too, am somewhat afeared of SCOTUS getting involved. After all, laws come and go, as we saw last September with the sunset of the “assault weapons ban.” But if the Supreme Court rules against us, then game over. After all, the the last few weeks have taught us that Supreme Court decisions must NEVER be reconsidered, lest we get outside the mainstream.
January 15th, 2006 at 9:04 pm
I’m not sure David’s theory is even internally consistent. If the court rules that the Second Amendment means anything at all, I can’t see how the gun bans in DC and Chicago, or the de facto ban in NY, can pass muster under any standard. And if an intermediate standard is applied, as David suggests it will be, then proving a Second Amendment violation should be roughly as easy as proving an Equal Protection violation by sex – not as easy as proving one by race, but not prohibitively difficult, either.
In any event, good cases usually come in baby steps. Brown v. Board of Education (ending the “separate but equal” doctrine) didn’t arise in a vacuum; it followed a series of narrow, idiosyncratic cases in which individual school districts were ordered to end their segregation programs because they were separate and not equal. Only after a pattern of separate but not equal cases were out there, was the court finally ready to go the final step and end the odious doctrine once and for all.
Similarly, getting the courts to recognize that there is a constitutional amendment lodged in there between Amendments I and III is the first step. Don’t worry that the court won’t go far enough on the first round. Just worry over whether whatever they do will be in the right direction.
January 15th, 2006 at 9:48 pm
Any perceived “rights” belonging to an individual are negotiable, subject to regulation, and restriction by needs and powers of any subset of the state. (See: Nude dancing..kind of permitted, sometimes, but political speech subject to restriction, ie Campaign Finance, “free speech” zones, permits to assemble, secret regulations and terrorist laws, et, et.)
The second amendment is on it’s way out, along with the rest of the Bill of Rights.
Want more? Ask any conservative whether driving is a right or a privilege. They almost always launch into a defense of the complex and revenue enhancing State restrictions on the privilege of driving…like its a GOOD thing.
Every canary is as dead as a doornail.
January 15th, 2006 at 11:51 pm
You have to wonder how it’s come to pass that no 2A case has recently made it’s way to the SCOTUS that’s of substantial import. I’ve heard it theorized that the NRA is worried that the court may well rule the wrong way…
January 15th, 2006 at 11:53 pm
Sebastion, I’d say you’re correct regarding the NRA’s fears. I’ve heard that said before.
January 16th, 2006 at 4:21 am
If SCOTUS does take on a 2A case, it will have to confont the asinine Miller decision, which — sort of — affirmed the individual reading but only for mlitary weapons (and even that they got wrong, apparently never having heard of a “trench sweeper”). The Court would have to throw it out and start fresh, like Dred Scott, or waffle and back-pedal like a duck in a hurricane.
What I’ve heard of the NRA’s fears is that someone might push something that is too far out even for 2A individual-rights believers, and set us back instead of progressing. I think they specifically referenced a case in California about eighteen months ago as an example.
January 16th, 2006 at 3:13 pm
I started to leave a comment, but realized it was turning into a blog post, so that’s want I did at http://tenring.blogspot.com/2006/01/individual-rights-vs-reasonable.html.
Basically, SCOTUS can agree that there is an individual right to own firearms, but they will likely allow “reasonable restrictions” to that right. Gun owners and gun banners will argue at length what those restrictions might be. So, we may be looking at staus quo no matter what courts decide.
January 19th, 2006 at 8:15 pm
Firearms and the Surpreme Court
David Codrea is pessimistic about the outcome of a Supreme Court firearms case, even if it is technically an individual-rights decision; SaysUncle questions how the Supreme Court could avoid ruling certain outright bans unconstitutional while issuing…
January 20th, 2006 at 9:38 am
[…] Here, I talked about mine. TriggerFinger tackles the issue: We’re likely to see one of the two cases in the DC circuit at present before the Supreme Court. That will likely result in a ruling that proclaims an individual right. The question is how strong the decision would be; there’s little question that a correct legal reading of the Constitution forbids the DC laws, though there’s always the question of whether the Justices will vote in accordance with the obvious. […]