The Status of the Courts and 2A

[Revelationechc]

JURIST - Sidebar: Appellate Courts Weigh In on Right to Carry Gun

Here is a taste, but the whole article is worth a read:

The US Supreme Court's decisions in District of Columbia v. Heller and McDonald v. City of Chicago established that individuals have an enforceable Second Amendment right to possess firearms — including handguns — for self-defense, and that this right is protected against infringement by states and municipalities as well as the federal government.
The facts of Heller involved possession of a handgun within the home. Does the right to keep and bear arms extend outside the home? To many, merely asking that question seems preposterous. When the Second Amendment was adopted, the founding generation had just fought a war of independence using their own weapons, and it was fought not in their parlors but up and down a continent. Today, the need for a firearm for self-defense is as likely to arise on city streets as it is in our bedrooms.


Post-Heller, however, many state and federal courts have been gingerly in recognizing the constitutional right to bear arms, either openly or concealed, outside the home. Some, such as the Maryland Court of Appeals, have flatly stated that they will not recognize that the right applies outside the home until the Supreme Court says that it does. Now, the stage is set for this issue to be resolved, possibly by the Supreme Court, but certainly by some of the US appellate courts. The US Courts of Appeals for the Second and the Seventh Circuits recently have decided cases on this issue and more are in the pipeline, most notably in the US Courts of Appeals for the Fourth and Ninth Circuits.

 

[Rider]

Thanks for linking. Good article. Overall, it looks somewhat promising, though you never know where things could go. If you conclude from Heller the right to owning handguns for self-defense, and that bearing arms(as opposed to simply keeping them) implies outside the home, a Court finding would be hard to take seriously if it came to a different conclusion. I guess we'll see.

I'm sure that if Obama gets the chance, his next nominations to the Supreme Court will be in their twenties.

 

[NEVER SURRENDER]

Our rights come from our creator not the gov not the court . They can all screw.

 

[Oldarmy]

Our rights come from our creator not the gov not the court . They can all screw.

This. They can also eat a shit sandwich, with nuts if they desire.

 

[freedom2012]

After Roberts appalling move under the ACA, I am not betting on the Scotus to stand by the second. This country is. Going to shite. The disease that has inflicted so many enablers of tyranny is spreading like a locust swarm. In the northeast, we might not be so close to thinking go time, but the true red states like Texas are thinking the pesticide is not far from being deployed.

 

[Revelationechc]

I respect everyone's opinions, but assuming these cases hit SCOTUS in the next few months, I believe our side will win the majority. Based on prior decisions and the current occupants of the SC seats , I don't see an interpretation of the constitution that is against us. Heller = Keep...what does "bear" mean. A judge would have to try very hard to bs their way out of explaining away that word's meaning.

 

[jefftk]

Any "anti-gun nut" will be happy to tell you that no right is absolute. You can't yell "Fire" in a crowded theater, after all, they will proclaim. Now, my only real experience with constitutional law is from listening to and reading the various arguments and decisions from SAF and Comm2A as well as researching relevant topics that arise from those. I will maintain, however, that I have a slightly better understanding of jurisprudence than anyone who uses "you can't yell fire in a crowded theater" as the crux of their argument.

As the article sort of points out, the supreme court has not yet determined the appropriate level of scrutiny to apply to the second amendment. Typically, "strict scrutiny" is the standard applied to things like fundamental constitutional rights, like those found in the bill of rights ( Strict scrutiny - Wikipedia, the free encyclopedia ). This is what I think we want, but what the courts have thus far been tip-toeing around.

Strict scrutiny would require showing a compelling interest from the state in order to limit any particular right. It would require that the means by which the state intends to limit the right is narrowly, and particularly well, tailored to achieving said interest and it would have to be the least restrictive means possible. Do things like assault weapons bans, magazine capacity limits, or suitability for LTCs demonstrate a well tailored means to achieve the state's interest of reducing violence? I'm not aware of any evidence that they do.

I suspect the courts do know this. I suspect they know that if such a standard is applied to the second amendment then there will be insufficient evidence to support the majority of gun control schemes. On the other hand, what counts for valid evidence may be subject to wild interpretation, so who knows...

Or, I could have no idea what I'm talking about... if thats the case then let me know.

 

[blinky]

So the way that was written it says that the second amendment can't be infringed at the state or city level, not the federal. The heller case stated that any thing that is regularly available and a common thing can't be banned.....well since the rest of the country is able to get standard sized magazines can't we technically have the 10 round laws in ma appealed?

 

[Revelationechc]

So the way that was written it says that the second amendment can't be infringed at the state or city level, not the federal. The heller case stated that any thing that is regularly available and a common thing can't be banned.....well since the rest of the country is able to get standard sized magazines can't we technically have the 10 round laws in ma appealed?

Based on that reasoning, yes. However, there are bigger issues that will be addressed first: Bear arms=right to carry and may issue/discretionary licensing practices. After those are settled, then the orgs will move on to issues like mag limits and specific weapons restrictions, ie AG list of banned guns.

 

[blinky]

Based on that reasoning, yes. However, there are bigger issues that will be addressed first: Bear arms=right to carry and may issue/discretionary licensing practices. After those are settled, then the orgs will move on to issues like mag limits and specific weapons restrictions, ie AG list of banned guns.

Fair enough but I feel that when the dust settles and if the gov determines all the new legislation is bull maybe it can be used as a jumping off platform