2nd Amendment Issues and the SCOTUS, post the new POTUS

[Glenn E. Meyer]

http://www.theatlantic.com/politics...upreme-court-wont-restrict-gun-rights/485810/

An analysis of what will happen in the future. The gist is that gun rights are so strong that Heller won't be overturned for various political and judicial reasons. However, state bans in sympatico states will not be overturned by SCOTUS as the votes aren't there. The precedent for not overturning such things as AWB, may issue permits vs. shall issue, bans on post offices, schools, etc. were set by Scalia's opinion and then later refusals to take up such cases.

The author is:

Gunfight: The Battle Over the Right to Bear Arms in America, Jul 15, 2013
by Adam Winkler

It's a pretty good read on the issues.

I note however, that the rhetoric to overturn Heller is out there. Chelsea (she of the $600K job for doing nothing - not the the Bush kids didn't get the same - just both party corruption) said that with Scalia gone, Mommy would go for it. Hillary in an interview with George Staphlochocupus on ABC refused to acknowledge the basic right (http://www.chicagotribune.com/news/...-clinton-second-amendment-20160605-story.html). Obama did the same in recent interview and both came out for an Australian policy.

Note - this is to discuss the SCOTUS issue and not a general political discussion.

 

[BarryLee]

Yes, implementing things at the State level and then simply having the Supreme Court refuse to hear any appeal will eventually work just fine for the anti-gun folks. It may take a few more years to achieve what they want, but they can still get there. It’s important that individual states implement as much pro gun legislation now as possible in the hopes that it will be difficult to remove those freedoms down the road. People need to be involved at the State level and pay as much attention to their local issues as they do the national ones. We all should be voting, donating, writing etc., etc right now and not when it’s too late.

However, couldn’t the same strategies play at the national level? For instance what if Health and Human services implemented an “Ammunition Tax” to fund trauma Centers and SCOTUS refused to hear any appeal.

 

[kilimanjaro]

Don't try and finesse the elections and it's impact on our rights.

The fact of the matter is that Heller was a 5-4 decision and is under major attack. Stare Decisis means absolutely nothing to the gun banners. We have already seen nominees to the SCOTUS, respected jurists, lie under oath at their Senate hearing about their support for the Amendment. Hillary Clinton is either lying about her intentions to enforce Australian-style registration and confiscation, or she is not. Everything points to her being entirely serious about it, this is far more than political pandering.

Make no mistake about it, this election is for all the marbles.

 

[zukiphile]

...Chelsea (she of the $600K job for doing nothing - not the the Bush kids didn't get the same - just both party corruption) ...

That is substantially untrue and the sort of equality of accusation to which people unfamiliar with political detail can lapse. The Bush girls worked as a teacher and for the Smithsonian, with Jenna going on to television after she married. There are none of the issues of unusual honoraria and continued political advocacy in support of a parent with either Bush daughter, neither of whom display attraction to party politics.

EDIT - It may be unfair to Chelsea to view her actions in light of her parents' ambitions, but she hasn't detached from the political side of those ambitions in the way the Bush girls have.

I note however, that the rhetoric to overturn Heller is out there.

Indeed. The author gives the potential force of the camp who do not acknowledge an individual right insufficient weight.

An analysis of what will happen in the future. The gist is that gun rights are so strong that Heller won't be overturned for various political and judicial reasons. However, state bans in sympatico states will not be overturned by SCOTUS as the votes aren't there. The precedent for not overturning such things as AWB, may issue permits vs. shall issue, bans on post offices, schools, etc. were set by Scalia's opinion and then later refusals to take up such cases.

That's an excellent summary.

The article seems a bit unsophisticated. It correctly observes that the votes to overturn Heller are not there currently and that many Second Amendment advances have been made legislatively. That doesn't mean that the new court cannot or will not rewrite the law on this point. Why would a justice opposed to recognition of a vigorous individual right seek to overturn Heller?

Because the rationale in Heller (despite the narrow holding) drives toward a strong and rather broad constitutionally protected right around which cities and states cannot legislate. A talented judge can work around a right to get to the result he prefers, but that sort of reasoning can get pretty ugly. It is more simple and direct to deal with the right with which one disagrees.

The article's author thinks that the holding in Citizens United is more likely to be overturned, but that holding pertains to a fairly basic free speech right. Do any of us doubt that a court that would permit Congress to abridge First Amendment protections would hesitate before overturning Heller?

One thing this election cycle is teaching me is that my ability to predict the future based on how past election cycles have worked is not reliable. I suspect that people who express confidence about how an election will turn out in several months are still learning this lesson.

 

[tyme]

A federal ban on some guns would run into enforcement trouble in gun-friendly states. The feds aren't trying very hard to enforce the federal marijuana ban (though that could change if someone like Trump takes over). What do you think the southern, plains, and rocky mountain states would do if there were a federal gun ban? Respect for the entire FFL system could crumble if the feds try to use their authority over FFLs to implement too broad a ban on guns.

 

[zukiphile]

A federal ban on some guns would run into enforcement trouble in gun-friendly states. The feds aren't trying very hard to enforce the federal marijuana ban...

They don't have to try too hard to leave some people terribly abused. The prospect of civil forfeiture will leave lots of landlord's attorneys telling their clients not to rent to MJ business clients.

Respect for the entire FFL system could crumble if the feds try to use their authority over FFLs to implement too broad a ban on guns.

If federal overreach caused catastrophic problems for the federal system, we'd have already had that catastrophy. It isn't as if manufacturers and distributors are going to begin direct sales in protest.

It doesn't take a wild imagination to see how we could go from Heller to the 2d Am. joining the commerce clause and the 10th Am. as barely more than historical curiosities.

 

[carguychris]

The author gives the potential force of the camp who do not acknowledge an individual right insufficient weight.

Arguably true, but I think the key word there is "potential", as that camp is IMHO highly unlikely to build a coalition large enough to realistically attain those goals in the short term. Broad swaths of the country remain firmly aligned with the other camp, and those constituencies aren't going to take further infringements lying down. I think this is the basic underlying premise behind Winkler's article.

I think some ill-advised regulatory actions are likely in the short term but that they will be quickly swatted down.

The long term is another story.

A federal ban on some guns would run into enforcement trouble in gun-friendly states.. What do you think the southern, plains, and rocky mountain states would do if there were a federal gun ban?

I'm not sure I can tell where you're going with this, but I think the answer to your question is clear: those states will sue the Feds. The groundwork has been laid with various lawsuits about other federal regulatory matters.

The feds aren't trying very hard to enforce the federal marijuana ban (though that could change if someone like Trump takes over).

I dunno; I think a proverbial stake has been driven through the heart of the federal MJ ban, and I don't think either party really has the stomach to emphatically enforce it at this point, but that's a topic for a different forum.

 

[raimius]

Heller was 5-4 just to get the basic right recognized. At least one presidential candidate has publicly stated Heller was decided incorrectly, and recently answered a question on the 2nd Amendment with "If it is a constitutional right..."

Don't kid yourself into thinking everyone thinks similarly to us. There are plenty of people, some VERY powerful, who think the 2nd should be repealed or relegated into oblivion by overly narrow (and ahistorical) interpretations.

 

[Armed_Chicagoan]

The next President is likely to name 3 Supreme Court justices during the first term. Besides that they will name a whole bunch of federal judges. With the 2A hanging precariously in the balance of a 5-4 decision this is perhaps the most important election for gun owners in a long, long time if not ever.

This election will have consequences far beyond the next 4 or 8 years.

 

[zukiphile]

I dunno; I think a proverbial stake has been driven through the heart of the federal MJ ban, and I don't think either party really has the stomach to emphatically enforce it at this point, but that's a topic for a different forum.

You might be right on that, but the differences matter. MJ is a quasi-generational issue, and it may be harder to make a prohibition stick on something that can be grown in a person's basement and has been used by lots of presidential candidates. That doesn't speak to a weakness in federal enforcement generally, but on the limited political support for the prohibition.

Generationally, fewer of the young have direct and regular experience with arms and although one can make a firearm in his basement, most people can't make one nice enough to have.

 

[Aguila Blanca]

The precedent for not overturning such things as AWB, may issue permits vs. shall issue, bans on post offices, schools, etc. were set by Scalia's opinion and then later refusals to take up such cases.

I have always maintained that Mr. Scalia didn't do us any favors with that throw-away about "presumptively lawful" existing anti-gun laws. Yes, I'm sure he had to write his opinion as he did in order to keep Kennedy on the pro-2A side, but the decision nonetheless has been and will continue to be a two-edged sword for the pro-2A side for years, maybe decades. Even more unfortunately, it doesn't seem to be as much a problem for the anti-2A side, as they simply ignore it. The lower court judges treat it as proof that all existing anti-gun laws are lawful, rather than recognizing it only meant the existing laws hadn't yet been tested against the Constitution, and the Supreme Court then simply declines to accept any more cases so we're stuck with the garbage spewing out of the lower courts.

 

[ATN082268]

The gist is that gun rights are so strong that Heller won't be overturned for various political and judicial reasons.

The U.S. Supreme Court doesn't have to overturn Heller to gut the 2nd Amendment. If Heller barely (5-4) upheld the individual right to bear arms under fairly ideal conditions (like with Scalia), then it wouldn't be too difficult to rule for cases which chip away at gun rights.

 

[ATN082268]

Respect for the entire FFL system could crumble if the feds try to use their authority over FFLs to implement too broad a ban on guns.

I suspect a broad Federal ban on guns isn't very likely although they may still chip around the edges a little more As more and more people are trapped into depending on government (Medicare, Social Security, etc), there will probably be a bureaucratic push to attach more strings to these programs. It might start with questions like: "Do you have any guns in your household?" Eventually I'm sure there will be a significant financial penalty for owning guns. I have no doubt under that kind of scenario, there will also be substantial financial penalties for lying and perhaps some jail time. The end result is that the peasants, err lower income people, will be disarmed while the nobles, err upper class people, get to keep their weapons.

 

[Don P]

A federal ban on some guns would run into enforcement trouble in gun-friendly states. The feds aren't trying very hard to enforce the federal marijuana ban (though that could change if someone like Trump takes over). What do you think the southern, plains, and rocky mountain states would do if there were a federal gun ban? Respect for the entire FFL system could crumble if the feds try to use their authority over FFLs to implement too broad a ban on guns.

Perhaps another April 19, 1775????

 

[Glenn E. Meyer]

While it is nice to speculate that states or individuals would do XYZ, a federal ban would totally disrupt manufacture and distribution of new banned guns. It would also disrupt sporting usage if the the ban was confiscatory as in Australia (supported verbally by Obama and Clinton). Banking for manufacturers would be a problem.

Thus, preventing national legislation is a high priority.