So Far Few Ripples From Landmark Ruling on Guns

[johnyt101]

A lot of people are starting to wonder if Heller is firing blanks. I think it is still to early to tell, but there are people out there that think otherwise. Here is a quote from the article.

 

All of this is awfully technical, of course, and it may have no practical consequences at all.

 

“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

 

http://www.nytimes.com/2009/03/17/us/17bar.html?hp

 

 

About nine months ago, the Supreme Court breathed new life into the Second Amendment, ruling for the first time that it protects an individual right to own guns. Since then, lower federal courts have decided more than 80 cases interpreting the decision, District of Columbia v. Heller, and it is now possible to make a preliminary assessment of its impact.

 

So far, Heller is firing blanks.

 

The courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by illegal aliens and by drug addicts. They have upheld laws banning machine guns and sawed-off shotguns. They have upheld laws making it illegal to carry guns near schools or in post offices. And they have upheld laws concerning concealed and unregistered weapons.

 

“The Heller case is a landmark decision that has not changed very much at all,” said Adam Winkler, a law professor at the University of California, Los Angeles who keeps a running tally of decisions based on the case. “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.”

 

Heller itself struck down parts of the District of Columbia’s gun control law, the strictest in the nation. The case was brought by law-abiding people who wanted to keep guns in their homes for self-defense. The cases that have followed it tend to concern more focused laws and less attractive gun owners.

 

Harvey C. Jackson IV, for instance, argued that he had a constitutional right to carry a gun while selling drugs in a dangerous neighborhood in East St. Louis, Ill. The federal appeals court in Chicago was unimpressed.

 

“The Constitution does not give anyone the right to be armed while committing a felony,” Chief Judge Frank H. Easterbrook wrote last month in Mr. Jackson’s case. Professor Winkler summarized the impact of Heller in an article to be published in The U.C.L.A. Law Review in June. “So far,” he wrote, “the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.”

 

There is one arguable exception to this trend. Two judges have struck down a part of the Adam Walsh Child Protection and Safety Act, named after the murdered son of John Walsh, the host of “America’s Most Wanted.” The act says that people accused of child pornography offenses must be prohibited from possessing guns while they await trial.

 

That provision may well have been unconstitutional as a matter of due process even before Heller, as it seems to impose a punishment before conviction. But two courts have struck down the provision based partly on the fact that a fundamental constitutional right is at stake.

 

“A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm,” Magistrate Judge James C. Francis IV of the Federal District Court in Manhattan wrote in December. Heller changed that, he said.

 

“The right to possess a firearm is constitutionally protected,” Judge Francis wrote. “There is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.”

 

The cases discussed so far all concerned federal laws, and there is no question that the Second Amendment applies to the federal government. The great open question after Heller is whether the Second Amendment also applies to the states or, in the legal jargon, whether the amendment is incorporated against them.

 

The Supreme Court has said that most but not all of the protections of the Bill of Rights are incorporated by the Fourteenth Amendment, one of the post-Civil War amendments.

 

The consensus among most legal scholars is that incorporation of the Second Amendment is likely. True, the Supreme Court has said in some older cases that the Second Amendment only applies to the federal government. But a footnote in Heller cast doubt on those decisions. For now, lower courts probably have to follow the older decisions until the Supreme Court says otherwise.

 

There are cases in the pipeline, notably in the federal appeals courts in Chicago and San Francisco, that could give the court an opportunity to answer the question in its next term.

 

Even if the court applies the amendment to the states, though, little may change. Most state constitutions already protect an individual right to bear arms, and federal protection, depending on its form, could well be merely duplicative.

 

But some liberal lawyers and law professors sense an opportunity, and they have urged courts to incorporate the Second Amendment in a novel way, one that might help liberal arguments for protecting rights not specifically mentioned in the Constitution. Abortion and gay rights come to mind.

 

In a supporting brief filed in the Chicago case, lawyers for the Constitutional Accountability Center, a liberal group, urged the court to bypass the usual way that amendments are applied to the states, through the Fourteenth Amendment’s due process clause. Using that clause to guarantee fundamental rights has always seemed a little curious, as “due process” would seem to protect only fair procedures and not substance

 

Another possibility, and the one urged by the brief, is the Fourteenth Amendment’s “privileges and immunities” clause, which says that “no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.” The virtues of that clause are that it makes sense by its terms and that there is some evidence that its framers specifically wanted it to apply to allow freed slaves to have guns to defend themselves.

 

All of this is awfully technical, of course, and it may have no practical consequences at all.

 

“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

[Molly B.]

“My own bet,” said Sanford Levinson, a law professor at the University of Texas, “is that Heller will more likely than not turn out to be of no significance to anyone but constitutional theorists.”

Well, he doesn't live in Evanston, Wilmette, Morton Grove, and wasn't there one other one where the ban on owning a handgun has been lifted due to potential lawsuits based on the Heller decision.

 

It's been quite significant to those folks and the folks in DC.

[Don Gwinn]

They're counting the Chicago lawsuit among the ones where the courts have upheld gun laws and refused to apply Heller. There's an old saying that a lot of teaching is actually telling lies, because in order to simplify a very complex subject to the point that it can be understood quickly and serve as the basis for more learning on the subject, you have to oversimplify to the point of telling lies about it.

 

So they count the Chicago case as a failure to overturn a gun-control law, but what they're not mentioning is that the case is far from over. It's been decided by one court, but it has already been appealed and most people figure it could easily end up in the Supreme Court depending on the risk the anti-gun side wants to take--and the argument is still stronger on the pro-gun side. The federal court in Chicago ruled could not have ruled other than it did no matter what it thought of Heller, because it was bound by a higher court's previous decision.

 

In other words, the decision handed down in the Chicago gun case has absolutely nothing to do with the merits or the impact of Heller. It won't tell us anything about Heller's impact until it goes before a court that has the power to apply Heller.

[GarandFan]

And how many of those 80 cases were felons-in-possession cases?

 

Winkler is pretty good a blowing steam, and I get the feeling he does it with just a little bit of spite. Note that he filed an amicus brief on behalf of DC (the losing side).

[Yas]

From the City of Chicago "Caps" web site:

 

Can I own a gun in the City of Chicago?

As a private citizen, you can own a long gun, but not a handgun or an assault weapon, in the City of Chicago. You must have a current Firearm Owner's Identification (FOID) card from the Illinois State Police, and you must register your firearms with the City's Gun Registration Program, 3510 S. Michigan Avenue, Room 1027 SE, between the hours of 7:30 am and 4:30 pm. You can call the Gun Registration Program at (312) 745-5166 for more information.

I thought the U.S. Supreme Court just ruled the government cannot ban a citizen from keeping a handgun in his or her home. How can the City of Chicago continue its handgun ban in light of that decision?

The Heller decision applies only to the Federal government and Federal entities like Washington, D.C. It will take further litigation to determine if the decision also applies to state and local governments. The City of Chicago believes that its handgun ban is a vital tool for controlling violence in our City. At the same time, the City respects the authority of the courts, and will follow any applicable court decision regarding its handgun ban.

 

CAPS FAQ firearms question

[abolt243]

As an FYI, I attended a meeting Saturday morning where Todd Vandermyde, NRA lobbyist in Springfield spoke. He was adamant that the McDonald case would go all the way to SCOTUS. They (NRA/ISRA) are determined to appeal if they lose in appellate court, and he's certain that Daley et.al. will too. I believe he said that they expect a ruling from the 7th sometime this fall. If that happens, will there be time to get the case before the SCOTUS for the spring 2010 session?? I'm not familiar with the filing dates and deadlines.

 

AB

[Federal Farmer]

As an FYI, I attended a meeting Saturday morning where Todd Vandermyde, NRA lobbyist in Springfield spoke. He was adamant that the McDonald case would go all the way to SCOTUS. They (NRA/ISRA) are determined to appeal if they lose in appellate court, and he's certain that Daley et.al. will too. I believe he said that they expect a ruling from the 7th sometime this fall. If that happens, will there be time to get the case before the SCOTUS for the spring 2010 session?? I'm not familiar with the filing dates and deadlines.

 

AB

 

I think Gura at the ISRA Annual meeting said Fall 2010 at soonest.