My article on the possible future impact of District of Columbia v. Heller came out in the Legal Times today. It can be found here (free registration unfortunately required). [UPDATE: The article can be accessed here without registration].
Here's a brief excerpt:
The Supreme Court may have endorsed an individual right under the Second Amendment to bear arms. But the District of Columbia certainly isn’t leaping to implement that right.
After its defeat in District of Columbia v. Heller (2008), the D.C. Council responded by adopting new gun-control regulations that are only marginally less restrictive than the ones invalidated in Heller. Undoubtedly, the new regulations—and similar ones in other jurisdictions—will be challenged in court. It is the outcome of these future cases that will determine whether Heller has any truly significant impact.
History shows that mere judicial recognition of a right doesn’t guarantee that the right will get meaningful protection. It is especially unlikely if the right is supported by jurists on only one side of the political spectrum. Judicially recognized rights also can get short shrift if the Supreme Court defines their scope narrowly.
To the delight of some and the distress of others, both these factors may limit the impact of the newly recognized individual right to bear arms.
The article builds on points I made in this series of posts. For another article outlining the highly restrictive nature of the new post-Heller DC gun regulations, see this piece by Jacob Sullum.
Related Posts (on one page):
- My Legal Times article on Heller and the Enforcement of Rights by the Courts:
- Reason Symposium on Heller:
- Lessons for Gun Rights Supporters from the Property Rights Experience, Part II - A Narrowly Defined Right May Not be Much Better than No Right at All:
- Lessons For Gun Rights Supporters From the Property Rights Experience I - The Importance of Ideological Divisions on the Court:
What victory?
I guess government can disobey Supreme Court decisions and the Constitution, "in the best interest of the public" in the District of Columbia. Well, except for if one desires their illegally absconded with tax money back. No wait, the IRS ignores those precedents as well. (Pollock vs Farmer's Loan and Trust Co., Brushaber vs Union Pacific R.R. Co. and Stanton vs Baltic Mining Co)
Washingtone D.C., a lawless land. "The Bad, the Worse, and the Stupid." In a theater near you.
I guess only the lowly serfs, I'm sorry, citizens, have to obey laws. Funny how that works out, huh?
Why is this not an issue? Oh, I forgot, the
highly-contested "surge controversy" and the acceptance, I mean, whatever the heck it was Berlin speach by B.O. are far bigger news. Vote "NONE OF THE ABOVE IN '08"
There are so many differences between Kelo and Heller that I'm not sure your thesis holds. These include:
Stronger popular support pre decision. Before Heller the right to acquire, own and carry firearms has shifted two presidential elections and control of both houses. Before Heller it was polling at something like 75% individual right with north of 50% enough or too much gun control already.
There was actually no Supreme Court precedent against the individual right. Why was Miller in SCOTUS (without showing up I might add) if he had no standing.
Only 10 states have the state constitutional or jurisprudential environment to even allow many of the supposed blessed controls. 40+ state have shall issue carry laws. You can't pass stricter gun controls and get Supreme Court review in most states because a)the legislature would be punished next election, and b)the state courts would invalidate it.
Now you're left to the not so free 10 states. There, you now run up against the real problems that the Second Amendment creates for the first. There is a large group of the supposed liberal judges that see that once the 2A is an individual right, then any argument used to narrow it without specific differentiation with speech or assembly is an actual threat to 1st or 4th amendment jurisprudence. If you only pick off 20% of the liberal herd on that issue, you've widened the conservative majority. That may not be true in SCOTUS, but out here in the 9th Circuit you're likely to be surprised by Rheinhardt, Gould and Oscanlan for example.
I'll agree with the bottom line that now is the time to do everything possible to extend and consolidate the Heller win, but from my perspective the only limit on that is federal court calendar speed.
The final and maybe simplest point. Heller was a win for individual rights and Kelo was not...
-Gene
Actually, at least equally large majorities oppose econ development takings. See the survey data compiled in my article on the subject.
Only 10 states have the state constitutional or jurisprudential environment to even allow many of the supposed blessed controls. 40+ state have shall issue carry laws. You can't pass stricter gun controls and get Supreme Court review in most states because a)the legislature would be punished next election, and b)the state courts would invalidate it.
Many states also forbid or restrict economic development takings, though admittedly not as many as have shall issue laws. We'll see about whether legislators will get punished for enacting new stricter laws. They have mostly gotten away with it in the case of property rights, despite massive public opposition to Kelo.
Now you're left to the not so free 10 states. There, you now run up against the real problems that the Second Amendment creates for the first. There is a large group of the supposed liberal judges that see that once the 2A is an individual right, then any argument used to narrow it without specific differentiation with speech or assembly is an actual threat to 1st or 4th amendment jurisprudence. If you only pick off 20% of the liberal herd on that issue, you've widened the conservative majority. That may not be true in SCOTUS, but out here in the 9th Circuit you're likely to be surprised by Rheinhardt, Gould and Oscanlan for example.
The same could be said of 5th Amendment property rights (which everyone, including the liberal justices, recognized as individual rights). Yet liberal judges are perfectly willing to interpret property rights extremely narrowly, despite any possible danger that this might undermine 1st Amendment rights and the like.
The final and maybe simplest point. Heller was a win for individual rights and Kelo was not...
I don't deny this. However, Heller merely took gun rights to the point where property rights under the Public Use Clause were even before Kelo: the right is recognized, but interpreted so narrowly that its recognition might not make much difference.
And how are you going to differentiate it, anyway? If DC's absurd definition of a machine gun stands, the law could with equal ease define a vote or a speech as a firearm (they're all dangerous, y'know).
It is these lawful guns Scalia argues cannot be banned. BUT if handguns were to be made unlawful, then it would seem someone could argue they cannot be possessed at home, and cannot be brought to militia duty.
DISCLAIMER: I am not a advocate of gun bans or usage for self-defense.
Excuse me, "RIGHT" to self defense; Doesn't the nature of a "right" preclude requiring you to prove you need to exercise it? Not saying they wouldn't try that, but if the Court is really going to treat this as a "right", such attempts should be shot down rather decisively.
I guess that's what it really comes down to: The Court has said it's a right, now we have to see if they're going to [i]treat[/i] it like a right.
Your cite to your paper misses my point. The individual rights interpretation of the 2A was polling in supermajority land before Heller was even decided. As your paper correctly points out, the Kelo decision was often the first time average Americans found out they could lose their home to economic takings. I can assure you that a majority of Americans have known that they could lose their rights to own a gun since 1775.
Additionally, there is a question of how fundamental these questions are. I hate the Kelo decision as much as you do, but the truth of the matter is that those takings do still require compensation to the property owner. Yes that process sucks, but it doesn't rise to the same level of political threat that disarmament does. People compensated for their property do not a shooting war make - even if the taking is still unjust.
I just wish the pro property side could have succeeded at taking Souter's farm. It's so much less invasive than tar and feathering ever were.
-Gene
Widespread disgust with the NRA led to the formation of organizations such as the Virginia Citizens Defense League, which is much more vigorous and successful in grass-roots defense of the Second Amendment than the NRA ever was.