The New Second Amendment: A Bark Worse Than Its Right

[clinotus]

From the Huffington Post's Opinion column

In June, 2008, the U.S. Supreme Court issued a landmark ruling on the Second Amendment right to bear arms, D.C. v. Heller. For over 70 years, the federal courts had read that amendment to protect only a state's right to organize militias, like the National Guard. In a long-awaited victory for the gun rights movement, the Court reversed course and held that the Second Amendment protected an individual's right to own guns for personal self-defense.

So far, the victory hasn't turned out exactly as the gun rights folks had hoped.

As many legal scholars predicted, the Supreme Court's decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.

Since Heller, its Gun Control: 60, Individual Right: 0.

Before the Supreme Court's decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning.

About the only real change from Heller is that gun owners have to pay higher legal fees to find out they lose.

The basis for most of these lower court rulings upholding gun control is a paragraph near the end of the Supreme Court's decision that, at the time, seemed like a throwaway. The Supreme Court wrote that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions on the commercial sale of arms."

What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories.

"I would have preferred that that not have been there," says Robert Levy about this laundry list of Second Amendment exceptions. Levy, executive director of the CATO Institute, which funded the Heller litigation, believes that paragraph in Scalia's opinion "created more confusion than light."

But to a die-hard gun rights advocate, the problem is exactly the opposite: the paragraph shed too much light. It revealed that the Supreme Court believes that almost all gun control measures on the books today are perfectly lawful -- a message that hasn't been lost on the lower courts.

Hardliners in the gun rights community cannot help but be disappointed with their long-awaited triumph.

A bit of followup to the hoopla.

 

[Palladin]

I'm still waiting to see what happens to the MA firearm storage law..

 

[terraformer]

Yeah, so some schulb who has no clue writes about a strawman of their own creation. Of course most of these failed, they were desperate attempts at get out of jail free cards. None of them will be taken far enough to matter. When the otherwise crime free individual is caught up, then it will go all the way and we can see what happens. Unfortunately, non-criminals getting arrested and willing to fight are few and far between.

 

[MaverickNH]

"About the only real change from Heller is that gun owners have to pay higher legal fees to find out they lose."

In the majority of these cases, the "gun owners" were, or course, lowlife, scumbag criminals whose lawyers were trying every trick in the book to get them off the hook on some of the many charges they faced. The Heller decision was not a "get out of jail free" card for "felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors", etc.

The attempt to make it sound like Joe Gunowner was now violating gun laws right and left is absurd - but in keeping with the anti-gunners' distortions of reality. They lost and lost bigtime. We won, even if we could have won more...

The author, Adam Winkler, is just a poor loser, going on and on in print, blogs and anywhere that will publish him on how the the SCOTUS bungled the decision. Like John Lott said, "I guess that I always wondered what the people who wrote the Second Amendment would have to have written if they really meant the phrase "shall not infringe."

And cripes, ~800 post on that article. After pages of rants and babble, I lose interest, even if there might be some useful stuff buried in there.

 

[toga]

Huffington Post is total garbage. They don't fact check their stories and write with a radical moonbat agenda 110% of the time. I consider myself socially liberal (plz don't hate me), and that place makes me want to puke.

 

[Bill Nance]

Heller is going to be like Roe vs Wade. It opens the door for more and more lawsuits challenging gun control laws as "unreasonable."

It's going to take time, but eventually a lot of the gun control crap is going to get overturned.

It's not what I'd like in terms of clear definitions, but it's a lot better than what we had before.

 

[sig shooter]

could somebody tell me how this law could be reversed by obama? My obamaniac father said that obama could not reverse the decision. I found out from fellow gun owners how it could but I cant remember. this man casts me off as an idiot anyways.

 

[Knuckle Dragger]

I'm still waiting to see what happens to the MA firearm storage law..

I don't believe that the Heller decision provides any basis for challenging the safe storage law in Mass. The DC law was very much gear toward ensuring whatever firearms DC residents might own would be inoperable and unavailable if needed. This was clearly the concern I understood from listening to oral arguments and reading the decision.

Mass law, on the other hand, is based more on the idea of preventing unauthorized access to a firearm. 'Authorized' access has always been okay. I can 'store' as many loaded firearms as I want in Mass providing I employ a locked container, trigger lock, etc. That would not be allowed under the DC law. In law and in practice, DC always made it clear that they never wanted anyone to use a gun for protection.

 

[Bill Nance]

could somebody tell me how this law could be reversed by obama? My obamaniac father said that obama could not reverse the decision. I found out from fellow gun owners how it could but I cant remember. this man casts me off as an idiot anyways.

A president cannot reverse a Supreme Court decision. Period.

Even if Scalia, Thomas and Alito resigned, and Obama packed the court with anti-gun justices, the chances of the supremes reversing a months-old decision is essentially nil.

Stop with the paranoia.

 

[MaverickNH]

A president cannot reverse a Supreme Court decision. Period.

Even if Scalia, Thomas and Alito resigned, and Obama packed the court with anti-gun justices, the chances of the supremes reversing a months-old decision is essentially nil.

Stop with the paranoia.

Lower courts can, however, render the Heller decison operative or inoperative in their cases. Hence the Brady's/Dem's efforts at getting liberal judges appointed at all levels.

 

[sig shooter]

A president cannot reverse a Supreme Court decision. Period.

Even if Scalia, Thomas and Alito resigned, and Obama packed the court with anti-gun justices, the chances of the supremes reversing a months-old decision is essentially nil.

Stop with the paranoia.

Its not paranoia when you have a man in office who wants to take away your human rights.

 

[Jose]

could somebody tell me how this law could be reversed by obama? My obamaniac father said that obama could not reverse the decision. I found out from fellow gun owners how it could but I cant remember. this man casts me off as an idiot anyways.

You really, really need to do some serious reading to at least learn the fundamentals of how our system of government works, and to understand the role each of the three branches play in the creation, enactment, interpretation, implementation, and enforcement of law.

Because if you did, you would not ask this most basic of questions.

 

[sig shooter]

You really, really need to do some serious reading to at least learn the fundamentals of how our system of government works, and to understand the role each of the three branches play in the creation, enactment, interpretation, implementation, and enforcement of law.

Because if you did, you would not ask this most basic of questions.

I did not post to get flamed and if I did not care or want to learn more I would have not have had asked the question and gone on being ignorant of the fact. im sorry im not as smart as you.

P.S.thank you maverick for providing me with a straight answer.

 

[MassBites]

You really, really need to do some serious reading to at least learn the fundamentals of how our system of government works, and to understand the role each of the three branches play in the creation, enactment, interpretation, implementation, and enforcement of law.

Because if you did, you would not ask this most basic of questions.

Congratulations! So far, you've won the Condescension Award.

Perhaps you'd like to dazzle the readers with your in depth knowledge of how "our system of government works, and to understand the role each of the three branches play in the creation, enactment, interpretation, implementation, and enforcement of law".

Then you can go for the I Haven't Been Paying Attention To The Creeping Legislative Violation Of Our Constitutional UNALIENABLE RIGHT (not a privilege but a RIGHT) To Bear Arms Award.

I'll just sit back, crack a beer and while I wait to be dazzled. Oh and you can begin by elaborating on the concept of an activist judiciary.

 

[sig shooter]

you got that right massbites, Jose is a arrogant man.

 

[MassBites]

you got that right massbites, Jose is a arrogant man.

Hi Evan,

Well, I've always maintained that the only stupid question is the question that doesn't get asked. You asked. You deserved better than what you received.

Jose apparently never heard of Abraham Lincoln's adage: "Better to remain silent and be thought a fool than to speak out and remove all doubt."

 

[LKB3rd]

Many people pointed out right off the bat that this "victory" cemented into a Supreme Court decision the ability to impose "reasonable restrictions" on the second amendment. Basically "You have an individual right, as long as we say do you."

 

[sig shooter]

it really is bullshit, its not a right if they can take it away from you IMO and it should be unlimited. by "unlimited" I dont mean you have the right to go out killing or threating people ether.

 

[Bob P]

From the Huffington Post's Opinion column



A bit of followup to the hoopla.

More hoo hah along the lines of Brady Bunch's announcement re their polls saying 3/4 of Americans support gun laws. He's spining it just enough to suggest to the public that Heller is irrelevant - that there's nothing in Heller to prevent restrictive gun laws. The Brady 'poll', this blog - all efforts to indoctrinate the public in support of more gun restrictions. 'If most Americans want it...if the Supreme Court really didn't mean to remove restrictions...' All attempts to shape and mold public opinion.

 

[center442]

could somebody tell me how this law could be reversed by obama? My obamaniac father said that obama could not reverse the decision. I found out from fellow gun owners how it could but I cant remember. this man casts me off as an idiot anyways.

evan, Obama cannot do an outright reversal of the SC decision. I think the danger comes in the interpretation of what the decision means. Let's say that Congress passes a law banning all AR15 rifles. An anti-gun Congress (and judges) will argue that it's a reasonable restriction; after all, we can still own handguns, other rifles, and shotguns, right?

Will some people/groups be able to fight such a decision through the courts? Yes, but if the courts have been packed with judges who have an anti-gun agenda, guess what the outcome will be? You only have to look at Massachusetts as an example. Try to buy a new gun that the state hasn't "approved." The anti-gunners will argue that your 2nd amendment rights aren't being infringed since you can buy a bunch of other guns. Nice, huh?

It's sort of like Henry Ford many years ago saying: "You can buy a Ford in any color you want, as long as it's black." Adults do this all the time to children. "Now, Evan, do you want broccoli or corn with your supper?" You give the child the appearance of choice, but you predetermine the choice.

To the anti-gunners, we are the children.

 

[FunYun]

Its not paranoia when you have a man in office who wants to take away your human rights.

Being worried about something thats not possible is the definition of paranoia.

The POTUS cant do anything about USSC decisions. His only influence is picking the judges.

 

[pdm]

The POTUS cant do anything about USSC decisions. His only influence is picking the judges.

And complete control over Executive Branch regulations. Don't over look the "always think forfeiture" guys.

 

[MassBites]

Being worried about something thats not possible is the definition of paranoia.

The POTUS cant do anything about USSC decisions. His only influence is picking the judges.

Posted by Center442:

"...Will some people/groups be able to fight such a decision through the courts? Yes, but if the courts have been packed with judges who have an anti-gun agenda, guess what the outcome will be? You only have to look at Massachusetts as an example. Try to buy a new gun that the state hasn't "approved." The anti-gunners will argue that your 2nd amendment rights aren't being infringed since you can buy a bunch of other guns. Nice, huh?..."

Bingo!
What you're describing is an activist judiciary who, instead of interpreting the laws made by the legislative branch of government, begins instead to make them.

The Usurper will stack that Supreme Court with ultra-left judges who don't give two sheets about our Founding Father's intent to separate the three branches of government.

We're talking about a guy who doesn't give two sheets about the Constitutional law barring non naturalized citizens from assuming the presidency. We're talking about a man breaking Constitutional law. We're talking about a criminal here.

Who here thinks that the Usurper isn't going to appoint like-minded judges who themselves have no problem side-stepping the three divisions of government. If you do, you've taken the red pill and elected to stay in Wonderland.

In the Federalist Papers (Federalist # 78, 1788) Alexander Hamilton wrote: "The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."


Given that the Usurper (I will not ever refer to him as anything but) has already demonstrated his total contempt for "our" Constitutional laws, in that he intends to assume the presidency in violation of Article II, Section 1, what makes anyone think that their unalienable Constitutional RIGHTS will be respected by that man and the corrupt thugs he intends to bring to Washington?

Our Constitution is in danger, our liberties are in danger, and that means We The People are in danger. People can either swallow the red pill and live in La La Land until all their rights are gone, or they can open their eyes, read what this Usurper has stated he intends to do, then get off the fence and fight back!

 

[Bill Nance]

Lower courts can, however, render the Heller decison operative or inoperative in their cases. Hence the Brady's/Dem's efforts at getting liberal judges appointed at all levels.

First, "liberal" does not mean anti-gun. Nor does it mean much else by the way, it's just become an epithet for anyone who disagrees with the lunatic fringe right-wing.

If you mean anti-gun, then say anti-gun. Because I know plenty of people who would describe themselves as liberals who are also avid gun enthusiasts.

Second, a lower court can make whatever ruling they want to, it's still appealable and if it's in direct conflict with an existing supreme court decision, it's going to have the ruling overturned.

We've been losing our gun rights incrementally for decades. What Heller does is give us some momentum to reverse that process, also incrementally.

 

[Bill Nance]

Posted by Center442:



Bingo!
What you're describing is an activist judiciary who, instead of interpreting the laws made by the legislative branch of government, begins instead to make them.

The Usurper will stack that Supreme Court with ultra-left judges who don't give two sheets about our Founding Father's intent to separate the three branches of government.

We're talking about a guy who doesn't give two sheets about the Constitutional law barring non naturalized citizens from assuming the presidency. We're talking about a man breaking Constitutional law. We're talking about a criminal here.

Who here thinks that the Usurper isn't going to appoint like-minded judges who themselves have no problem side-stepping the three divisions of government. If you do, you've taken the red pill and elected to stay in Wonderland.

In the Federalist Papers (Federalist # 78, 1788) Alexander Hamilton wrote: "The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."


Given that the Usurper (I will not ever refer to him as anything but) has already demonstrated his total contempt for "our" Constitutional laws, in that he intends to assume the presidency in violation of Article II, Section 1, what makes anyone think that their unalienable Constitutional RIGHTS will be respected by that man and the corrupt thugs he intends to bring to Washington?

Our Constitution is in danger, our liberties are in danger, and that means We The People are in danger. People can either swallow the red pill and live in La La Land until all their rights are gone, or they can open their eyes, read what this Usurper has stated he intends to do, then get off the fence and fight back!

Careful, I think the black helicopters are circling your house. Best to stay in that bunker.

 

[reks]

First, "liberal" does not mean anti-gun. Nor does it mean much else by the way, it's just become an epithet for anyone who disagrees with the lunatic fringe right-wing.

If you mean anti-gun, then say anti-gun. Because I know plenty of people who would describe themselves as liberals who are also avid gun enthusiasts.

There is a left and a right in this country.
The platform of the left is anti-gun.
The platform of the right is pro-gun rights.

Not every leftist is anti-gun and not every rightist is pro-gun. Nevertheless, it is "liberal" to be anti-gun and "conservative" to be pro-gun.

Furthermore, I can think of no public official that was ever elected as a member of the anti-gun or pro-gun party. If you want more gun rights, you can attempt to persuade dems, but more often that not, it means electing republicans. And in a place like MA, where you think you might try to find pro-gun dems, you can't find many and you're actually disgusted to find that a lot of republicans get failing grades from the NRA.

 

[GrendelKhan]

I think some people are dreaming. How is it possible that some people can think that the decision by a conservative court (compared to how it will be after Obama), which stated that "shall not be infringed" = "reasonable restrictions", means that said decision can only mean good things for gun owners? Call me paranoid if you want, but I'm QUITE worried about what Heller opens up to the Brady-Bunch, and the SPECIFICS of how it will work itself out, one way or the other - which is (I believe) what Evan was asking about.

Pompous non-answers and name-calling only divide us. Looking back from the future, Heller may or may not be seen as a victory for us, I do not know. I don't think you, the reader, do either. We need to be bringing people to our side, not arguing with each other.

We ARE under attack. Many people, and a very organized movement, are desperate to take our 2A rights away, and are being quite successful at it. There is nothing paranoid about that.

Both Obama's campaign website and the Democratic platform from this election stated clearly that they intend to reinstate the "assault-weapons" ban. Obama and people he has chosen to lead have voted for some things that most here might find intensely burdensome.

"Reasonable restrictions" might equal "assault-weapon ban". "Reasonable restrictions" might equal a ban on all semi-autos. And certain (most) ammo. And... and... and...

The inability to understand how "reasonable restrictions" might be interpreted by lower courts, or future courts, the president-elect, and the next Congress, to mean that you can't own (or afford to own) anything resembling the kind of gun you want is, I believe, naive.

One does not keep one's rights by worrying if one is perceived to be paranoid. One keeps one's rights by worrying about worst case futures, and preparing for them.

The fight is far from over.

 

[LKB3rd]

/applause @ Grendelkhan
I'll modify what I believe they changed the second amendment to:
"You have an individual right to own whatever we say is reasonable." Look at what they have done already, without a Supreme Court decision saying that they can ignore the clear, plain language of "shall not be infringed."
It would have been a lot worse if they had said that it was a collective right, only if you join the military (which would have changed it to be diametrically opposed to its original intention), but It didn't give us anything that the 2nd amendment hasn't already done, and now it allows for "reasonable restrictions" instead of "shall not be infringed."

 

[MassBites]

Bingo!
What you're describing is an activist judiciary who, instead of interpreting the laws made by the legislative branch of government, begins instead to make them.

The Usurper will stack that Supreme Court with ultra-left judges who don't give two sheets about our Founding Father's intent to separate the three branches of government.

We're talking about a guy who doesn't give two sheets about the Constitutional law barring non naturalized citizens from assuming the presidency. We're talking about a man breaking Constitutional law. We're talking about a criminal here.

Who here thinks that the Usurper isn't going to appoint like-minded judges who themselves have no problem side-stepping the three divisions of government. If you do, you've taken the red pill and elected to stay in Wonderland.

In the Federalist Papers (Federalist # 78, 1788) Alexander Hamilton wrote: "The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."


Given that the Usurper (I will not ever refer to him as anything but) has already demonstrated his total contempt for "our" Constitutional laws, in that he intends to assume the presidency in violation of Article II, Section 1, what makes anyone think that their unalienable Constitutional RIGHTS will be respected by that man and the corrupt thugs he intends to bring to Washington?

Our Constitution is in danger, our liberties are in danger, and that means We The People are in danger. People can either swallow the red pill and live in La La Land until all their rights are gone, or they can open their eyes, read what this Usurper has stated he intends to do, then get off the fence and fight back!

Careful, I think the black helicopters are circling your house. Best to stay in that bunker.

Typical. .

You have nothing of substance to add, not one effort put toward a cogent debate in opposition to what I wrote above, and like the many liberals that I have come to know..and not love, you default to the tired liberal tactic of implying that anyone who hasn't gone to the tent revival for a refreshing cup of cool-aid is...how did you put it to MaverickNH...a "lunatic" of the "fringe right-wing" and is seeing "black helicopters" from their "bunker." What's next in your lexicon of liberal "gotcha's?" Will you be calling me a racist too?

For your information, Sparky. Those black helicopters? They are flown by members of the United States Armed Forces and as the wife of a retired Navy veteran who spent the last 15 years of his career humping with "his" Marines as their Doc, and who flew in plenty of helicopters on SAR missions, I'm not afraid of the helicopters-- black or otherwise.

But it is clear to me that you are!

You want to debate the issues? You want to provide a "valid" counterpoint to what I wrote? BRING IT!

Until then, I'll view you as just one more "liberal" who can't hang.

 

[Bill Nance]

Typical. .

You have nothing of substance to add, not one effort put toward a cogent debate in opposition to what I wrote above, and like the many liberals that I have come to know..and not love, you default to the tired liberal tactic of implying that anyone who hasn't gone to the tent revival for a refreshing cup of cool-aid is...how did you put it to MaverickNH...a "lunatic" of the "fringe right-wing" and is seeing "black helicopters" from their "bunker." What's next in your lexicon of liberal "gotcha's?" Will you be calling me a racist too?

For your information, Sparky. Those black helicopters? They are flown by members of the United States Armed Forces and as the wife of a retired Navy veteran who spent the last 15 years of his career humping with "his" Marines as their Doc, and who flew in plenty of helicopters on SAR missions, I'm not afraid of the helicopters-- black or otherwise.

But it is clear to me that you are!

You want to debate the issues? You want to provide a "valid" counterpoint to what I wrote? BRING IT!

Until then, I'll view you as just one more "liberal" who can't hang.

Um, no, you're a f***ing loon. You seriously think Obama was not a "natural born citizen of the United States?" Do you have the slightest f***ing clue what "natural born citizen" means? Got a law degree? No, didn't think so!

Yes, this places you clearly and distinctly into the lunatic fringe, to be consigned to same hole as the f***ing nut bags that were all convinced that the UN black helicopters were all about to confiscate all U.S. guns in the 1990's.

I don't give a rat's ass whatyour husbandhas done. I have personally flown into more dangerous situations in uniform than your fat ass has likely done and I'm not claiming any Goddamn medals for it, so you can kiss my skinny White Ass.

When you make a nut bag claim, like a claim that evern the Republican Party has not made, nor any creditable source FROM THE RIGHT has made, you get called a nut bag. Deal with it! I suggest you grow a sense of skepticism. I didn't credit the crap equating Bush=Nazi and in fact condemned it in no uncertain terms. I suggest you grow the same sense of proportion, else be condemned to the same fires of Hell with International ANSWER and MOVE ON.ORG.

There is not difference. It's just different sides of the same partisan coin.


!