Justices Agree on Right to Own Guns

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http://apnews.myway.com/article/20080318/D8VG2PR00.html

http://www.ft.com/cms/s/0/51ca64b6-f51d-11dc-a21b-000077b07658.html?nclick_check=1

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[Pete]

It ain't over until their decision is read.

Feel good about the questioning but you've got an even-steven court with a swing voter.

[Roguish Lawyer]

http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2008/03/18/fighting_for_our_right_to_bear_arms/

http://www.scotusblog.com/wp/uncategorized/analysis-defining-a-right-of-self-defense/

[JGarcia]

RL, is there a chance that a favorable ruling from the Court will do away with the California AWB?

[Roguish Lawyer]

RL, is there a chance that a favorable ruling from the Court will do away with the California AWB?

No

[Guy]

NoDo we even pay attention to the Supreme Court rulings???

Stay safe.

[JGarcia]

Bummer, for a while there I was downright giddy.

[The Reaper]

No

Have you asked Professor Volokh?

TR

[Roguish Lawyer]

Have you asked Professor Volokh?

TR

I don't need to, although I did take a look at his blog before posting the links above. Court decisions typically are not going to have a major impact on things in the way legislation can. The courts just decide cases based on the facts before them, and their decisions won't necessarily apply to future cases where the facts are not identical.

Here, the court is considering a particularly draconian gun control law in DC. If they find that law to violate the Second Amendment, it does not mean that less draconian gun control laws also will be in jeopardy. Media reports often oversimplify what courts decide (and overblow the importance of their decisions).

[The Reaper]

I don't need to, although I did take a look at his blog before posting the links above. Court decisions typically are not going to have a major impact on things in the way legislation can. The courts just decide cases based on the facts before them, and their decisions won't necessarily apply to future cases where the facts are not identical.

Here, the court is considering a particularly draconian gun control law in DC. If they find that law to violate the Second Amendment, it does not mean that less draconian gun control laws also will be in jeopardy. Media reports often oversimplify what courts decide (and overblow the importance of their decisions).

My understanding that this was one of the few undeveloped areas of Constitutional law, one which has yet to be fully defined, and a significant SCOTUS decision has not been rendered since Miller v. US in 1938 or so.

It was my admittedly uneducated and unprofessional opinion that they could actually define the intent and specific protections of the Second Amendment (or at least, delimit it), as well as open a Pandora's box of challenges to state and local restrictions should they uphold the lower court ruling against the DC firearms restrictions.

Would a decision that affirms the Second Amendment as an individual right, and limits the ability of state and local laws to restrict that same right, not allow for challenges to gun bans of a variety of types across the country?

Obviously, this will be moot till the decision is reached and the analysis of opinions completed. IMHO, they could do anything from overturn the DC court ruling and deny any Second Amendment rights except for organized militia, though upholding the lower court decision and opine that the Second Amendment is an individual inalienable right not to be further restricted by any entity.

It was funny to me that the US rep (the Solicitor?) argued that this could allow private possession of machineguns, which is ALREADY a current individual right under Federal law. That was what Miller v. US was about, and the ruling that Miller was not protected by the Second Amendment because a sawed-off shotgun had no military application (thus requiring payment of the special $200 firearms tax before making it) is a very narrow and flawed decision, IMHO. Of course, neither Miller nor his representation were there to argue their positions. By that ruling, I SHOULD be able to own an M-4 or an M-16 rifle, because it is standard military issue.

Just my .02, not an attorney either.

TR

[HOLLiS]

My Understanding is the same as the Reaper. Before I start celebrating I am waiting for the decision to be read.

The discussion about Home Protection worried me. It will water down the 2nd Amendment. I feel the 2nd Amendment actually focus' on the right of the people to defend themselves against a unlawful/oppressive government. To be able to that, they must be able to have arms sufficient to do so. Weapons strictly for home defense would limit those choices.

[Roguish Lawyer]

My understanding that this was one of the few undeveloped areas of Constitutional law, one which has yet to be fully defined, and a significant SCOTUS decision has not been rendered since Miller v. US in 1938 or so.

Your understanding is correct.


It was my admittedly uneducated and unprofessional opinion that they could actually define the intent and specific protections of the Second Amendment (or at least, delimit it), as well as open a Pandora's box of challenges to state and local restrictions should they uphold the lower court ruling against the DC firearms restrictions.

Would a decision that affirms the Second Amendment as an individual right, and limits the ability of state and local laws to restrict that same right, not allow for challenges to gun bans of a variety of types across the country?

You are correct that the decision could open the door to other challenges in other cases. The point I was making is that the Court generally focuses its attention on particular cases and strives to avoid making broad pronouncements of law or policy. Sometimes it does that, but I do not expect it to do so here. At most you might see some kind of test established for lower courts to use to determine the circumstances under which the Second Amendment can be violated. Then you'll see other cases brought to apply that test to other situations (over a period of years, or decades). The Court's decision will not directly impact other laws like the CA AWB unless other lawsuits are brought to challenge those laws. And even then, I would be surprised if the decision in the DC case has the broad impact we are all hoping for. But we'll see.


Obviously, this will be moot till the decision is reached and the analysis of opinions completed. IMHO, they could do anything from overturn the DC court ruling and deny any Second Amendment rights except for organized militia, through upholding the lower court decision and opine that the Second Amendment is an individual inalienable right not to be further restricted by any entity.


From what I've read, they are going to hold that it is an individual right. But all rights, even fundamental rights, can be invaded upon a sufficient showing of public interest. The question is whether the Court is going to establish a test or not.

Just my .02, YMMV.

[GratefulCitizen]

It was funny to me that the US rep (the Solicitor?) argued that this could allow private possession of machineguns, which is ALREADY a current individual right under Federal law.
TR

Technically, aren't machineguns merely taxed, as opposed to restricted?

If the 2nd amendment is affirmed as an individual right, wouldn't it be a logical challenge that the government cannot tax a right?

There is some poetic justice in this, considering that the original taxation of machineguns seemed to be an attempt at gun-control which would dodge the 2nd amendment.