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Jun 28 2010

Supreme Court Opens The Door to Undo Gun Laws

Last Year, the Supremes decided District of Columbia v. Heller.  That case overturned years of prior Supreme Court rulings that said States were allowed to restrict handgun use more than the federal government because the 2nd Amendment really only applied to the Federal Government and not each State. Heller said instead that the 2nd Amendment does give each individual a right to bear a handgun and that States must be very careful in how they restrict citizen’s access to handguns.  So crime-ravaged DC had one less tool to keep handguns off the streets.

This year’s loser is Chicago and the decision of the day is McDonald v. Chicago.   Chicago has had a very restrictive permit process. The law requires all owners of firearms to apply for a permit but  most handguns are excluded from the list of approvable firearms, therefore making it nearly impossible for any resident to own a handgun.  Emboldened by Heller and the NRA, two citizens of Chicago brought a lawsuit challenging the law as violating the 2nd Amendment.  They lost in the lower court; they lost in the appeals court.  Both of those decisions were based on  prior cases.  But of course, undaunted, the proceeded to the Supremes and they won!

It’s a daunting 200 plus page decision with lots of different opinions in it, but I will try to break it down for the non-ConLaw junkies out there. In a 5-4 opinion (of course – do I need to run down the roster?) the Court said the law went too far and that the 2nd Amendment requires that citizens have access to handguns (not just guns, BUT handguns) for self-defense.  Here’s the text of the 2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

Justice Alito determined that means  “self defense” is a basic right and a central component of the second amendment.  (Despite the introductory phrase about a well-regulated militia and security of a free state).  Furthermore, Justice Alito determined that the right to own a handgun is part of this basic right to self-defense.  Justice Alito relied heavily on the earlier Heller decision for much of the support behind his reasoning that the right to own a handgun is a “fundamental” right.   Now call me crazy but it seems to me that it is pretty clear that the amendment was meant to keep the Federal Government from restricting States from having weapons to operate a “well-regulated militia.”

But this case is an example of how this Court is willing to throw precedent out the door when it sees fit.   In what is an esoteric legal point in the case, but critical to Alito’s decision , he reasoned that the 2nd Amendment has been “incorporated” by the 14th Amendment (guaranteeing Due Process) to be applicable to the States.  In the past, court decisions have held that the state and local governments can regulate guns in ways that the federal government could not.  The 2nd Amendment they said was not incorporated by the 14th Amendment.

Now, much is said about how often the anti-handgun advocates who urged the Court to find that the 2nd Amendment  was not incorporated to the States are the same pro-choice advocates who urged the Court to find that the 14th Amendment incorporated a “right to privacy” to the States thereby stopping states from outlawing abortion.  But here is the difference:  Roe v. Wade was a precedent-setting case; it had no history to follow because it was the first time this argument had been raised to the Court.  McDonald, however, goes against prior cases that had decided the exact opposite.

So just so you can keep score, here’s quick summary of what theother justices said in McDonald :

Scalia basically agreed with Alito, but  he  actually stated that he just wanted to write a separte opinion so he could go on a 15 page rant about Justice Steven’s dissent.  Justice Thomas also agreed with the decision, though he stated he would have come to the same conclusion through an entirely different legal route.  He then goes on to explain in the next 55 pages exactly how he would do that. (No need to bother with it believe me ).  The rest of the 5 person majority -Kennedy and Roberts- signed on to Alito’s opinion.  Breyer, Sotomayor and Ginsburg dissented in an opinion written by Breyer that said it is not clear that handgun ownership for self-defense is so deep-rooted in our culture that it has beeen incorporated like other privacy rights.

Stevens, as we know from Justice Scalia’s opinion, wrote his own dissent in which he talked about the “militia’ language and the prior cases that held the 2nd Amendment did not apply fully to the States. He also talked about a “living Constitution” and the need to allow the States to decide how to regulate guns.  The best part of it though is his giving it back to Scalia, which he said he felt was necessary in light of Scalia’s “fixation” with his opinion.  He explains why Scalia’s blind adherence to the “tradition” of the Country at the time of the framing of the Constitution invites “bad Constitutional law” pointing out that when the bans on mixed-race marriages were overturned in 1967, that the country’s “tradition” and “roots” were in slavery and segregation so that using his analysis, mixed race marriages would still be illegal.  He goes on to rail at Scalia’s view of jurisprudence, and what is clear is that this is Stevens taking a last shot at making his position known:  the Constitution is a living document that must be interpreted in the context of the times.

So what does all this mean?  It means more lawsuits! The NRA now has the leverage to challenge anti-gun legislation at every turn.  Where it used to be left up to the States, now the federal courts will be deciding if each state’s gun laws overly restrict access. In NY, my friend Assemblywoman Michelle Schimel ( a fierce gun control advocate) has been trying to pass simple, common sense legislation requiring micro-stamping to make bullets easily identifiable. The minute it gets passed, it will be challenged under McDonald .  Heck, in NY you could challenge the permit laws just on the 7-month delay in getting a handgun permit in NYC alone. Other states will flinch before passing handgun laws for fear of being tied up for years in expensive NRA lawsuits.

For me, this is just another example of justices who claim to be “restrained” and against “judicial activism”  doing what they want when they see fit. Its frustrating, dangerous and to quote Justice Stevens “bad Constiutional law.”

7 comments

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  1. Mike

    In NY, my friend Assemblywoman Michelle Schimel ( a fierce gun control advocate) has been trying to pass simple, common sense legislation requiring micro-stamping to make bullets easily identifiable.

    You mean the simple, common sense micro-stamping that a single company holds a patent on, would significantly increase the cost of guns, does nothing against the 270 million odd guns currently in the country, does not imprint consistently, and can be defeated in five seconds with a $2 file?

    We can argue about whether people should or should not have the right to have guns for self defense, but at least have some thought to what the effects of your restrictive legislation are actually going to be. That is assuming, of course, that this is an honest attempt to reduce crime and not a cynical attempt to slip an extra tax on law-abiding gun owners.

    1. Oscar Michelen

      Dear Mike:

      All of the issues against micro-stamping can be easily addressed. (1) It is not “an extra tax” because if it does cost more money it would go to the manufacturer and not the government. Like all technology, it may be costly in year one or year two, but then the cost would plummet the same way it did with every new tech invention of the last decade. (2) They are already working on a mechanism that if the microstamping is disabled, the gun would be disabled. (3) The proposed cost is about $12-15 per gun. (4) Yes it would have no effect on the guns already out there, but starting it now would at least get the ball rolling as the older guns come off the street and become replaced.

      I do not have a problem with the right of law-abiding people to have guns for self -defense or for hunting. But I also think that the Second Amendment does not prevent States from taking reasonable steps (and I believe this is one of them) to try and make the streets a little safer. Thank you for you post because this I know for sure – this is an important issue in our society with very valid points on both sides and respectable intelligent debate is the best way to arrive at a workable solution.

  2. Ty Enright

    Dear Counselor, it does seem that you are probably not seriously skilled in metal work, mechanics, nor the construction or use of firearms. Nor does it seem that you have read any in-depth reports about micro stamping. The technology is easily defeated, with the simplest of tools, emery paper and a dowel, a fingernail file, and a minute or two, including assembly and disassembly, and there is no longer any imprint. I will be glad to demonstrate this at any time to you. As well Revolvers leave no empty cartridge cases to find for evidence, and spent cartridge cases could be collected from 10,000 places in the USA including firearms ranges, and left as evidence to muddy the evidential trail. Bullets are easily made from lead, and even jacketed bullets are easily manufactured at home with a simple press. I spent many years reloading precision ammunition for target shooting competitions at national level. The technology of modern firearms and modern ammunition is out of the bag for 150 years, and most American tinkerers would have no issue manufacturing either ammunition or firearms. The additional costs of micro stamping are of course a “Tax” on the consumer. Given that there is only one manufacturer of this stamping equipment, desperate to make money on their investment, and desperate to promise anything to gun hating local or state governments trying to burden the law abiding citizenry by making gun ownership and use too expensive for many folk, and that the studies done show that this stamping technology is in no sense mature, the whole thing is a less than honest furfy, that is in no way efficacious in cutting crime, but just cutting down on my (the law abiding owner) guns. Please be honest about your agenda. The purpose is not to hamstring criminals, but to make me defenseless. This places you in an ethical position that is not defensible. I will be glad to demonstrate this to you as well, I did study logic at Peter Singer’s classes at Monash Uni (he is now chair at Princeton.
    My own agenda? I was lucky in that my grandfather taught his 7 sons to fight and to use firearms, which is why they escaped and fought the Nazis and survived the Holocaust. They were all Jews you see, from Bratislava, and those Jews who had the will, the skills, and the tools to fight, had a far better chance of surviving, and I and my many cousins, our children and grand children number over two hundred Jews alive, because a short European Jew 100 years ago taught his sons to have the wherewithal to defend themselves.
    You would disarm me, my children and grand children, by making gun ownership too expensive and difficult. I am sure that you are not in the ranks of those who support the establishment of firearms ranges where the law abiding can train to be effective and safe with their firearms.
    My own experience in Israel from 64 to 68 on both the Syrian and Jordanian borders, made me well aware of the importance of being armed and ready and safe, and I recall no cases of armed kibbutzniks killing each other. My farm in Australian not far from Grafton made me aware of the dangers of violent and predatory criminals on the loose.
    Please do be aware and honest about your personal agenda, it’s your blog to air your opinions on, but you do not own the facts, you don’t even have the facts, you have not studied the issue for the last 45 years as I have, you have not been part of forming new firearms legislations as I was in the middle 1980s in Canberra, Australia, and you have apparently not read Heller nor McDonald, nor any of the available literature. When I came back to the USA, I offered my services to give free technical advice to the Violence Policy Center (VPC), and other such organizations. I soon discovered that they are in way interested in the truth, in ay way, certainly not technical, and not statistically. This makes them less than honest. They aren’t after safety, they are out to ban guns, as is Chuck Schumer, a man who never had to stand to defend with his person, a community or country.
    You are I am sure a very educated, accomplished, and IQ’d, and successful man, but as you are aware, this has nothing to do with the value or “truth” of your thesis, it takes great rigor to make ourselves look beyond the surface the MSM feeds us, to research the facts, the figures and the history of issues.
    You are more than welcome to contact me for discussion, or materials on the subject, and I will be glad to “shout” you dinner, (pay for your dinner), I live on the Upper West side where I was born, and where I spent almost half of my life in installments. This is country of many urbane, educated, talented, intelligent people, many of whom are related genetically (did you know that Ashkenazi Jews are now deemed to be all as close genetically as 4th or 5 cousins?) , but who espouse political stances that have been disastrous… The last democrats I believed in were Pat Moynihan and JFK. Good day to you and a Good Sabbath.
    T Enright.

  3. Oscar Michelen

    Ty – I am no expert in gun manufacture for sure. And of course every one has the right to defend themselves. But that is not the issue. The issue is whether States can through their elected Legislatures enact laws that help fight crime. Microstamping will go down in cost and be improved as it moves into the marketplace just like every other new technology. The issue in McDonald is that now States are severely restricted in their attempts to enact reasonable gun control laws. None of the rights afforded to us is unfettered and all can be reasonably restricted. The Second Amendment is no exception.

  4. Lora

    Thanks for the case analysis. One of the all-time worst Supreme Court decisions ever. A definitive example of judicial activism that blatantly and purposely ignores the prefatory militia clause in order to reach a preconceived outcome. The Court may as well have spit on Bill Brady. Shameful.

  5. Oscar Michelen

    I hear you Lora, but I fear the worst is actually yet to come. Heller, the case that led to McDonald spurred nearly one hundred lawsuits against gun laws in the two years it has been in existence. McDonald will cause a multiple of that to be filed.

    It is always helpful in talking about that prefatory language to look at the prior versions of the Second Amendment that were submitted until the final language was approved. Here’s a link to the Wiki page that analyzes it pretty well:

    http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

    For example, this was the original version drafted by James Madison:

    “A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms”

    The last sentence was a “conscientious observer” clause that was later removed, but it is clear from this that the intent was to allow for States to have a militia composed of citizens and was not discussing an individual right.

  6. Lora

    *Sigh*

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