Comments on: Another step on Second Amendment appeal

By: David.Huberman

David.Huberman — Tue, 29 May 2007 17:31:34 +0000

I hate to sound like a pretend-member of the SG’s office, but is this case a “good vehicle” for a broad Second Amendment look by SCOTUS? There are no “states’ rights” questions in this case (because it’s all about the District). Is there precedent for SCOTUS taking a DC-only law and using an appeal of it as the basis for reviewing a states’ rights question?

By: Joe Paulson

Joe Paulson — Tue, 29 May 2007 03:10:50 +0000

I think parts of the first two comments are true. I reckon the Supremes would want to avoid this sort of thing. OTOH, as a matter involving a federal enclave, it is actually more than responsibility (see also federal trials) than many other things. Also, I seriously think the ruling — somewhat unnecessarily actually — misapplied U.S. v. Miller.

Anyway, thanks for the update.

By: Dennis Bedard

Dennis Bedard — Mon, 28 May 2007 11:51:45 +0000

I have to disagree with Mr. Berlove. Single issue interest groups such as the NRA, abortions rights organizations, and the like become stronger when they lose before the Supreme Court. If the Supreme Court reverses the DC Circuit, that will anger the NRA’s membership. They will intensify their lobbying efforts and push for new members. The argument will be that since the court has abandoned us, we must do more to convince state legislatures to restrict gun control. Remember, the religious right in this country has its genesis not in any legislative defeats but in court rulings during the past fifty years restricting public displays of religious symbols and creating a constitutional right to abortion. Losing before the court on a “hot button” issue sends an incendiary message to the faithful: we were robbed by a bunch of elitist lawyers who have contempt for our values. It is a powerful message outside of urban areas in America. If the court upholds the DC Circuit, as I believe it will, the NRA will respond with a self congragulatory “I told you so” but warn its members that the right is not absolute and that heavy lifting still needs to be done. Mr. Berlove is correct in that the court will never accord 2nd Amendment rights the same protection it does 1st Amendment rights or should it. The protection would be akin to that of the 4th Amendment. And keep in mind that the legislative battles the NRA has fought over the past forty years have been over regulation and not confiscation. The DC legislation is an aberration. The court’s action, one way or the other, will not affect the type of peripheral regualation that the NRA sees as a threat to its membership. The NRA, contrary to media stereotypes, is not an organization whose leadership is some reactionary group of zealots. Members of the NRA are well educated and intense in their beliefs. They see gun control efforts as more than simple mechanical tinkering; they view it as an affront to their culture and deeply held beliefs. The leadership reflects this view completely and has harnessed the zeal as a message to politicians that is as democratic as one can be: you either vote the way we want or our members will show up on election day in your district and vote you out of office.

By: Jacob Berlove

Jacob Berlove — Fri, 25 May 2007 22:59:31 +0000

I think a cert grant would be a lose-lose situation for gun rights advocates. The individual rights interpetation has had remarkable success on the ground in the absence of court enforcement. Because the virtual unanimity in the lower federal courts has kept SCOTUS from addressing the issue head on, gun rights advocates have been able to convince the public in the vast majority of state and local jurisdictions that the second amendment guarantees an individual right to bare arms and thus scuttle most gun control legislation, without having to fight an uphill battle to convince the public to enact laws on the basis of a constitutional interpetation explicitly rejected by the Supreme Court.
I don’t think that the situation can improve much in the aggregate for the gun-rights side. While it is already known that Roberts, Scalia, and Thomas support an individual-rights interpetation, the other justices’ positions are unknown, and a ruling rejecting an individual rights interpetation would probably result in, within a decade, a landscape with far more gun control legislation then seen now. Gun rights advocates would be almost entirely deprived of what had heretofore been the strongest weapon in their arsenal, the second amendment argument, which would be almost impossible to be effective aginst a public accustomed to hearing from legislatures not to worry about bill XYZ said to endanger civil liberties, because legislation of the sort has “already been upheld by the Supreme Court”, as if legislatures have no role in protecting civil liberties beyond the outer constitutional limits.
Even in the event that SCOTUS upholds the DC circuit’s judgement, and subsequently incorporates the second amendment against the states a term later, gun rights advocates still lose. There is no chance on earth that the Supreme Court is going to enforce the second amendment anywhere nearly as aggressively as it has enforced the first, and all sorts of regulations will ultimately be held to pass muster when the Supreme Court delineates its tests. Although states and local jurisdictions with restrictive gun laws will be forced to amend or enforce them in a manner consistent with supreme court doctrine, the national aggregate effect will be much less gun rights, since most jurisdictions already have quite liberal gun laws and will be unlikely to go any further once the courts start controlling the parameter of the right. Furthermore, over a gradual period of time, protections that go beyond what the Supreme Court requires are likely to disappear, much as interpetations of state constitutional rights have now largely been confined to match the federal ones. (E.g. the Michigan Supreme Court’s “Block of Four” voting nearly two-thirds of a century after Michigan adopted the exclusionary rule to add a “good faith exception”). It seems to me that the any marginal gain of gun rights in gun-control states would be more than offset by a corresponding stagnation, and ultimate reversal, of the gun-rights trend in the more than 40 states that allow concealled carry, and would ultimately result in most jurisdictions offering no more protection than the Supreme Court mandated minimum. So a strategy of getting the Supreme Court involved in this arena seems penny wise and pound foolish.