Redstate

Posted at 12:30am on Jun. 28, 2008 Post-Heller

By Pejman Yousefzadeh

What comes next now that the Supreme Court has handed down its ruling in Heller? Professor Randy Barnett has a good editorial that lays out the nature of the legal fights ahead:

Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to "incorporate" the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.

My prediction: This ruling will eventually be extended to the states.

Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential "rationality" review advocated by Justice Stephen Breyer.

Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate "time, place and manner" regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.

My prediction? Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed - whose aim is to impose an "undue burden" by raising the cost of gun production, ownership and sale - would likely be found unconstitutional. All gun regulations - for example, safe storage laws and licensing - will have to be shown to be consistent with an effective right of self-defense by law-abiding citizens.

If any of these things happen, then Heller's status as a truly consequential ruling will only be emphasized, of course.

Read on . . .

Posted in D.C. v. Heller | Law | The Second Amendment — Comments (4)/ Email this page » / Read More »

Posted at 8:45am on Jun. 27, 2008 One tendentious opinion away.

From the same tyranny.

By Paul J Cella

A quick read of this article will surely leave you outraged. The story is simple enough: a neat amalgam of barbarism and PC bureaucracy, the sort of anarchy compounded by oppression that Liberalism so excels at producing.

A former British soldier endures as his neighborhood terrorized by a pack of feral young thugs (“yobs,” as they call them over there) for several days. He calls the police; they never come. He looks for an officer; finds none. Coming home one day to find his wife in tears and terrified, he finally has enough, and goes out to execute a citizen’s arrest, dragging one of the thugs into house and calling his mother. Thereupon the police arrive with the mother — and naturally arrest the homeowner.

This is justice under Liberalism.

Let it be noted that there was a somewhat similar case in Illinois five years ago, where a man who fought off an intruder in his house was charged with a handgun violation. State Sen. Obama voted against bills to remedy this manifest injustice twice.

Yesterday we all sat around in worried anticipation, hoping the Supreme Court would manage, this time, to maintain the plain meaning of the words of our Constitution and restore to us our self-government. The outcome was a good one — barely. But the tyranny of the Court is still in place. The four Liberals very frequently succeed in persuading Justice Kennedy to join them in their usurpations. They care not one whit about the plain meaning of the Constitution. They do exactly as they please.

Here in America, packs of feral youths exist in appalling abundance, just like in Britain. But most of them are well aware that their potential victims may be armed. On that fact, friends, much of our liberty hangs.

And we are only a tendentious opinion from one of the Liberal Usurpers on the Court, or their creature Kennedy, under the spell of the New York-DC elite adulation — one tendentious opinion citing foreign law, or sweet mystery of life, or mystical evolving standards, away from the same tyranny that would send the homeowner who defends his wife against thugs to jail, while showering the thugs with sympathy.

Posted in D.C. v. Heller | Great Britain | Guns | Law | Supreme Court | thugs — Comments (5)/ Email this page » / Read More »

Posted at 12:15am on Jun. 27, 2008 The Political Ramifications Of Heller

By Pejman Yousefzadeh

They are spelled out by Eugene Volokh:

There's no substitute for winning elections. The 5-4 conservative-liberal lineup (admittedly, with one of the four being a Bush, Sr. appointee) shows this. These issues aren't just about winning elections, as I'll note below. But winning is part of it. My guess is that, if the McCain campaign is smart about this, it can make this an important linchpin of its fundraising ("imagine what would happen to your rights if Justices Scalia and Kennedy retire soon and are replaced by Barack Obama"), of its attempts to energize the base, and of its attempts to bring over swing voters in swing states where the middle of the electorate tends to be pro-gun.

Note that first phrase: "There's no substitute for winning elections." It's an important point to keep in mind.

And having noted the importance of winning elections, let's examine what some of the immediate political fallout has been in response to the Court's opinion in Heller.

Read on . . .

Posted in 2008 | Barack Obama | D.C. v. Heller | John McCain | The Second Amendment — Comments (8)/ Email this page » / Read More »

Posted at 12:01am on Jun. 27, 2008 D.C. v. Heller

By Pejman Yousefzadeh

Today, the Supreme Court issued its decision in D.C. v. Heller, which affirms that the right to keep and bear arms is an individual right and not one that depends upon membership in a militia. This is a landmark and historic case--the first of its kind to affirm the plain meaning of the Second Amendment. It represents a tremendous and monumental victory for Second Amendment rights advocates and its ramifications will be instantly and broadly felt.

The Court's decision was 5-4, with Justice Scalia writing for the majority and with two dissents. To paraphrase John F. Kennedy, while the margin is thin, the Court's statement is clear. D.C. will now have to go back and significantly alter its weapons ban--a ban which dates as far back as 1976. In addition various other cities and states may find that their efforts to restrict guns will run afoul of the ruling in Heller; my hometown of Chicago has some of the most restrictive gun laws in the country and it may now have to change those laws to comply with the ruling in Heller. Of course, this all depends on whether Second Amendment rights are found to apply to state, county and municipal governments through the doctrine of incorporation. Lyle Denniston has some questions as to whether or not this is indeed the case and Brian Sagona agrees that Justice Scalia did not look at this issue in his majority opinion. Note the following from Tom Goldstein:

The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is.  So today's ruling likely applies equally to State regulation.

This is an issue that will be more comprehensively resolved with the advent of litigation concerning restrictive gun laws that may now be found to violate the ruling in Heller should the Second Amendment be incorporated against the states (on this issue, see the end of this post for clues regarding how the Court may rule on this issue).

Read on . . .

Posted in D.C. v. Heller | Law | The Second Amendment — Comments (6)/ Email this page » / Read More »

Posted at 10:26pm on Jun. 26, 2008 Stand Up And Applaud

By Gov. Mike Huckabee

Gun owners and conservatives everywhere should stand up and applaud the Supreme Court's ruling today in favor of striking down the unlawful Washington, DC handgun ban.

Today's decision affirming the 2nd Amendment right to an individual owning firearms is a refreshing decision from the court, and reminds us how important the election of the next President can be. The Washington, D. C. ban on handguns was clearly unconstitutional and the court ruling today reminds us that our Constitutional rights are not geographical---one locale cannot decide a different right than other locales-they are Constitutional rights-not community rights

Judge Antonin Scalia wrote the Majority Opinion. Joining Justice Scalia were Chief Justice Roberts and Justices Alito, Thomas and Kennedy.

Many of you know I proudly own a variety of firearms and enjoy hunting as well as sports shooting with targets and clays. But even if I were not a hunter I would still be a firm believer in the Second Amendment right of Americans to own firearms for self-protection and as a matter of principle.

In 1998, after the tragic killing of a teacher and four students at the Westside Middle School near Jonesboro, Arkansas, I was being interviewed by Katie Couric on NBC's Today show. She intimated that mass murder on school campuses seemed to be confined to schools in the Deep South, where there existed a "culture of guns."

I assured her that yes hunting and ownership of firearms were Southern traditions. At the same time murder of innocent schoolchildren was most certainly not and such violence was inexplicable regardless of one's geography. When she continued to press, looking for some validation of her view that these shootings were in some way connected to the South, I firmly reminded her that Colin Ferguson boarded a train in New York and coldly killed 27 people before finally being subdued. That event occurred in New York where the gun laws are among the toughest in the country and where gun ownership is much lower than in the South.

We certainly should be tough on those who abuse firearms by employing them in a crime. But abolishing firearms because there are reckless abusers makes as much sense as abolishing cars because some people drive while drunk.

Most firearms owners are responsible and exceptionally careful and safety conscious. My own membership in the NRA is something I cherish and value. This is not so much because I love guns but because I love freedom, and I believe to trample on one part of the Bill of Rights is to trample on all of it.

A version of this blog is cross posted at www.huckpac.com.

Posted in 2nd Amendment | D.C. v. Heller | Law — Comments (13)/ Email this page » / Read More »

Posted at 10:30am on Jun. 23, 2008 Waiting For Heller

Is There A Gun In My Tea Leaves?

By Dan McLaughlin

The Supreme Court's Term is likely to end this Wednesay or Thursday. I noted last Thursday, with the usual cautions about this kind of thing, SCOTUSBlog's observation that Justice Scalia was the most likely Justice to be writing the Court's opinion in DC v. Heller, given that only he and Justice Souter had yet to write majority opinions from cases the Court heard in March. Well, this morning the Court handed down the other remaining case from the March sitting, and it was written by Justice Souter. So the odds would seem now to strongly favor Justice Scalia.

How good is that news for fans of the Second Amendment? Well, it's unlikely that a Scalia opinion will be a bad one when an express provision of the Constitution is involved, but bear in mind that (1) even if he does write the opinion, there's no guarantee that it will be a majority opinion; it could be a plurality that leaves matters more unsettled than ever (e.g., 4 Justices favoring a strong individual right, 4 supporting DC's position, and 1 - usually Justice Kennedy, under the Court's current alignment - refusing to join either side's analysis) and (2) it's very possible that the Court will decide only the scope of the right against federal interference under the unique legal status of the District of Columbia, and won't address the thornier issue of whether the Second Amendment prohibits gun control measures by state governments. And of course, the guesswork could simply be wrong - even if Justice Scalia was originally assigned the opinion, it could end up as a dissent if some Justices changed their minds before it was finalized.

In other words: we can guess all we like, but until we see the opinion we can't know.

Posted in D.C. v. Heller | gun control | Justice Scalia | Law | Second Amendment — Comments (6)/ Email this page » / Read More »