DC v Heller/SCOTUS and practical implications

J

jrm

New member
I have been following the news and the thread here regarding DC v Heller. Interesting case, to say the least.

What I have been wondering is what will be the real world implications of whatever decision is reached.

Let's say, just for arguments sake, that the SCOTUS rules pro "individual right" 2A. Sure, I know that ruling that simple is not likely. But let's just say it is that simple or clear.

What will this mean for someone like myself in downstate NY (not NYC). The state/county already issued me a permit, but not full carry. Only target/sportsman. Technically, they are already "recognizing my individual right" to own a handgun. NYS is one of the most restrictive states for handgun laws, and I know if is better in most other states (even in many other counties in my own state).

How would/could a favorable SCOTUS decision change this for the better?
 
If I read the court correctly, They will come down on the side of individual right. What I can't read is the level of scrutiny that will be applied. I suspect they will say that the DC Gun Ban is a step too far and uphold the appellate decision. Then there will challenges to other laws that will work their way through the system. Levy indicated the next law he wants to attack is the NYC Sullivan Act. the Chicago ban will go the way of the DC ban should the court rule in favor of Heller. But someone will need to take it to court. I don't see the Daley machine rolling over. We won't know until late June most likely.




Nothing will directly effect you right away as I see it.


DC v Heller/SCOTUS and practical implications
I have been following the news and the thread here regarding DC v Heller. Interesting case, to say the least.

What I have been wondering is what will be the real world implications of whatever decision is reached.

Let's say, just for arguments sake, that the SCOTUS rules pro "individual right" 2A. Sure, I know that ruling that simple is not likely. But let's just say it is that simple or clear.

What will this mean for someone like myself in downstate NY (not NYC). The state/county already issued me a permit, but not full carry. Only target/sportsman. Technically, they are already "recognizing my individual right" to own a handgun. NYS is one of the most restrictive states for handgun laws, and I know if is better in most other states (even in many other counties in my own state).

How would/could a favorable SCOTUS decision change this for the better?
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Nothing will directly effect you right away as I see it.
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I agree. It will be up to local legal parties to bring 'unjust' gun laws up to their own state courts for review, citing the Heller case as a president that is germane to the situation...
 
Let's say, just for arguments sake, that the SCOTUS rules pro "individual right" 2A. Sure, I know that ruling that simple is not likely. But let's just say it is that simple or clear.
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They will rule in favor of the individual rights interpretation. That appears to be a foregone conclusion.

The question will be interpreting whether restrictions imposed by the Government or States violates that interpretation. Since it's already been established that some restrictions don't, then we need to know which ones do.

That may not be the simple answer you're looking for, but the more simple the ruling of the court, the more complicated the interpretation since it isn't spelled out.:cool: Hope I didn't confuse you. I'm starting to confuse me.:D
 
Here's what it will mean.

Once the court comes down on the individual right side (and after listening to the entire thing on C-Span today, I'd be very, very shocked if they didn't come down on the individual right side) it settles that the Second Amendment actually does mean exactly what it says about the right of the people to keep and bear arms.

That means for the next 20 years, there will be lawsuit after lawsuit filed against onerous, draconian gun laws, like the ones mentioned above.

It means that jurisdictions may be able to regulate gun ownership (in limited ways) but that total gun bans just won't pass muster.

Here's a great example, I think.

Adult bookstores and X-rated video stores have been found to fall under the protections of the First Amendment.

I live near a city that would love, and I mean absolutely loooooooooooove to eliminate, totally, adult bookstores and X-rated video outlets.

But because there are court cases establishing that adult books and X-rated videos are protected under the First Amendment, the city has some adult bookstores and X-rated video outlets within its limits.

The city might be able to pass regulations about where the adult bookstores or X-rated video outlets are located.

But the city absolutely cannot ban adult bookstores and X-rated video outlets.

Even though the city government, and vast majority of the city residents really, really, really want to completely ban adult bookstores and x-rated video stores, they simply can't do it.

And if they try to, the owners or patrons of the adult bookstores and X-rated video outlets can sue the holy living Hell out of the city, and win.....big time.

It'll be the same for gun ownership.

Jurisdictions with really, really anti-gun governments might be able to regulate gun possession in certain ways, but they absolutely won't be able to ban or prohibit it.

possum
 
The transcript of oral arguments make a very interesting read. Seems pretty clear that a majority of S.Ct. will come down on the side of individual rights. Two key issues will be: (i) what restrictions are permissible and (ii) what kind of scrutiny are those restrictions subject to. Remember, every Justice may have their own unique position, and sometimes the Justice assigned to write the majority decision must compromise and/or build a consensus to get a majority of the other Justices to sign on to his opinion.

I don't mean to be pessimistic, but I think any decision will simply cause the gun grabbers to change tactics. Essentially they'll try to regulate us to death i.e. you can have a gun, but it has to have a built in trigger lock, ballistic fingerprinting, 14 pound trigger, maximum 5 round capacity, have to take a safety class every time you go to renew your permit, etc. It will be death by a thousand cuts.:mad:
 
Reasonable restrictions... reasonable... reason: 1 a: a statement offered in explanation or justification.

NYC has reasonable restrictions, right? (better than DC, that's for sure)

CA has reasonable restrictions, right? Just get one that's on the list after the mfg spends $$$ to prove it complies with local requirements, buy a safe or mandated lock and of course, become a "registered gun owner", pay the "fees"... good to go.

Gotta buy your handgun within the "state"... right? Not a neighboring state unless your local FFL will do the transfer. Oops, local FFL... Didn't Minneapolis sorta outlaw their last FFL within their city limits using Zoning codes? That sounds "reasonable" to me. :rolleyes:

Local tax on ammunition to defray costs due to GSW... reasonable.

Lots and lots of battles to fight once any decision hits the streets. Lawyers are gonna love it.

A well regulated militia (all or maybe some or maybe a select few of the people?) being necessary for a free state (living in freedom?), the right of the people to keep and bear arms shall not be infringed (by Congress unless it affects interstate commerce... but local gov'ts can and will infringe within reason, er, explanation or justification)

Baby steps forward. But far better than backing up or falling down dead.
 
I really really think that a lot of you pessimists are totally missing the point here.

Once the Supreme Court hands down a decision saying that there is an individual right to own a gun, it lays the groundwork for all sorts of lawsuits against existing gun laws.

Let's take abortion as the example.

There's no mention of abortion in the US constitution, but the outcome of the Roe V. Wade case resulted in a ruling with the Supreme Court stating that there is a constitutional right to have an abortion.

Are there states where the vast majority of folks would like to outlaw abortion?

Heck yes there are.

But because of the Supreme Court ruling on Roe V. Wade, those states CANNOT outlaw abortion.

Neither can they pass laws requiring a $10,000 tax per abortion, nor pass regulations requiring a woman to wait 10 months before having an abortion, etc. etc.

Not only can states NOT outlaw abortion, they cannot pass regulations or laws that would make access to abortion unduly difficult.

That's what an individual rights decision will result in for gun owners.

Not all bad, stupid gun laws will disappear over night.

But it will greatly curtail the passage of any more bad, stupid gun laws, and open the door for lawsuit after lawsuit after lawsuit aimed at getting rid of lots of bad, stupid gun laws.

possum
 
Baba Louie, what you describe is not the typical legal understanding of the reasonable standard. There are a couple of different standards of review... a few of the common ones include strict scrutiny, reasonable, rational, and presumptive.

Strict scrutiny means that any law that infringes upon the right requires the government to show a compelling interest that justifies the imposition on the right.

The reasonable standard is a bit vague but demands that the reason given would be accepted by an objectively reasonable person typically represented by a plurality or majority of the American people. To that end, some justices may defer to the legislature as the elected representative of this mythical person; others may demand empirical or substantial evidence to convince the reasonable person. In practice this is a stricter standard than...

Rational review which requires only that the legislature could be conceived to have a rational basis behind the law, even unstated, unequal, ineffective, and merely imagined by the court.

A presumption of constitutionality... is practically impossible to defeat. Typically dealing with war-time powers and executive actions where the court defers to the decision making of military branch based on confidential information the court isn't privy to. This area of law is still pretty grey.

However, there may be no need to go down this road at all as Scalia suggests. Ultimately all of these end in balancing tests leading to fact intensive inquiries which force judges to dictate what clears muster and what does not (for example, in a 1st Amendment context- this is free speech and this is pornography, this is hate speech and this is art, etc)... this could lead to a overwhelmed docket and completely arbitrary and unpredictable results which provides no guidance for citizens, law enforcement, or other judges.

But since Constitutional law has been historically filled with such tests it's improbable that the court will adopt Scalia's somewhat radical "clean slate" view.
 
But it will greatly curtail the passage of any more bad, stupid gun laws, and open the door for lawsuit after lawsuit after lawsuit aimed at getting rid of lots of bad, stupid gun laws.
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A law like a 10,000% tax on ammunition isn't a "gun law". It has been proposed in the US Senate before, and will be probably come up again.
 
A law like a 10,000% tax on ammunition isn't a "gun law". It has been proposed in the US Senate before, and will be probably come up again.
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And hopefully, people who are lots smarter than me, will use the argument that this sort of tax is unfair to the poor people of America, which then would probably lead to a race card being dropped, and the law being repealed. :cool:
 
A law like a 10,000% tax on ammunition isn't a "gun law". It has been proposed in the US Senate before, and will be probably come up again.
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No, but it places an unreasonable restriction on your ability to keep and bear ARMS, since a gun with no ammunition isn't a weapon.

Go back and look at the transcripts and you'll see where this issue was addressed, in regard to trigger locks and keeping a gun disassembled.

I believe that if the D.C. ban is struck down ( which looks likely ), it also effectively puts a stop to any other law or ban that would render a weapon inoperable. At very least it sets up a very good president to challenge any such law.


J.C.
 
The Supreme court has already upheld a 10,000% firearms tax: Remember that $200 tax on machine guns, levied when machine guns were dirt cheap? Given that precedent, getting them to admit that a similarly huge tax on ammo is unconstitutional will be challenging.

I don't think this is going to have any immediate effect, even in D.C., because they're just going to turn around and pass the harshest law short of an actual ban they can think of, and that will have to be challenged in court, too. The immediate effect will be a LOT of lawsuits wending their way through the system.
 
The Supreme court has already upheld a 10,000% firearms tax: Remember that $200 tax on machine guns, levied when machine guns were dirt cheap? Given that precedent, getting them to admit that a similarly huge tax on ammo is unconstitutional will be challenging.
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Yes, but was that done under the belief that 2A was not an individual right?

What happens when a later SCOTUS makes a ruling that contradicts or invalidates a ruling by an earlier incarnation of the court? ( Remember, one or two of the Justices have already questioned the validity of Miller. )

Seems to me that the second amendment being declared an individual right might turn out to be more far-reaching and important than anyone suspects.

Then again, maybe not. I've certainly been wrong before.



J.C.
 
Yes, but was that done under the belief that 2A was not an individual right?
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Nope, at that time the idea that it wasn't an individual right hadn't yet been invented. IIRC, the Court even stated that they were ONLY upholding it as a revenue measure, and if they'd viewed it as an attempt to attack ownership of the arms in question they'd have to strike it down.

Of course, there was a certain amount of "wink, wink, nod, nod" in saying that, they knew what was going down.
 
Nope, at that time the idea that it wasn't an individual right hadn't yet been invented. IIRC, the Court even stated that they were ONLY upholding it as a revenue measure, and if they'd viewed it as an attempt to attack ownership of the arms in question they'd have to strike it down.
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I see.

Then I suppose that after the dust settles with Heller, somebody needs to take that to court, and challenge the claim that it's just a revenue measure.

Of course that does all depend on exactly how SCOTUS rules on Heller... which means it's gonna be a long 90 days or so. :(


J.C.
 
The $200 NFA tax must be remembered in the context of the times.

They also had poll taxes. Perfectly legal in that day and age. The 24th amendment was passed in 1964. This made it a forbidden source of revenue for the Federal Government. In 1966, Harper v. Virginia Board of Elections extended the protection of the 24th via the 14th to the States. All poll taxes were illegal.

The above, coupled with the precedents of several other cases (Murdock v. Pennsylvania (1943) 319 U.S. 262; Shuttlesworth v. Birmingham (1963) 373 U.S. 262 - just to name two) has formed the modern legal theory that it is unlawful to tax a right. That my friends, is the means to attack such taxation, when the Heller decision becomes final.
 
Bans on classes of weapons in different states will be subject to challenge based on the level of scrutiny the court decides is appropriate.

Strict scrutiny means AWB bans in NY and CA and cities like Columbus will be ripe for attack.
 
Assuming the lower court is affirmed - What predictalbe effect will Heller v DC have on the Brady Bill and the newly passed NICS Improvement Bush just signed into law? Is there any direct commentary on how these laws will survive a protected constitutional right?
 
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