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Thursday, June 26, 2008

Thoughts on Heller?

Particularly with the VC experiencing technical difficulties, I thought I'd open up a general discussion on the Heller decision.  Here are some initial questions:

  • What are the biggest surprises?
  • Where will the new Second Amendment right to gun-enforced self-defense lead us?
  • And what is the political salience of the decision?  Will this get the average person's attention, or will it drop quickly from the national consciousness?  I'm betting this will a bigger issue that I expected it would be.

Posted by Matt Bodie on June 26, 2008 at 01:13 PM in Constitutional thoughts | Permalink


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One of those two issues you mentioned is explicitly discussed in the US Constitution. One is not. Do you see the difference?

Posted by: Dave | Jun 27, 2008 7:07:07 PM

I don't own a gun. However, the second amendment does NOT say: "A well regulated people, being necessary to the security of a free state, the right of the militia to keep and bear arms, shall not be infringed." So, it is an individual right, and is NOT a right only available to large groups sanctioned by the government. The tricky part now is there are no gun dealers in DC [due to the city using zoning to keep them out], and it is illegal for DC residents to purchase a gun and bring it across the 'state' border, so how is a DC citizen supposed to exercise this right?

Posted by: Reedman | Jun 27, 2008 1:14:17 PM

I'll defer on suprises. I'm equally myopic on the impact of Heller on self-defense, though it is curious to consider what extension of the philosophy to airline security would lead to. Instead of more security, the answer is less security. Give all airline passengers guns. We'll get on the planes faster, but it will be a bit like a saloon in the Wild West once we're on board. I'm not quite sure I feel safer if armed citizen self-defense is a primary means of crime stopping. If all citizens are responsible gun owners, it could work. If some use guns like Yosemite Sam or Vice President Cheney we could all be ducking lead. Either you're with them or you're with the varmints.

More seriously, I doubt that the decision will have much impact on Senator Obama (who I support and have volunteered for). I'd imagine he can say that Heller is the law of the land and as President he'd be bound to follow it. He can also recognize that Heller does allow for restraints on gun possession by dangerous persons or in sensitive places, as well as restraints on particularly dangerous weapons. So he might say that he encourages all local governments to follow the guidance of Heller in enacting the sensible, constitutional safety measures that are endorsed in Heller. As to judges, I'd imagine he'll say that he'll appoint qualified people who will interpret and apply the law correctly, that it will be up to the judges on the court as to whether to follow precedent or modify it, and that judges can't and shouldn't precommit to decisions but instead should decide each individual case according to the facts and applicable law.



Posted by: Charlie Martel | Jun 27, 2008 1:00:45 PM

Let me get this straight....

When the issue is abortion rights, STATES MUST BE ALLOWED TO CONTROL THE ISSUES THEMSELVES. Get the Feds out of it!

When it is gun rights, the FEDS MUST BE ALLOWED TO CONTROL THE ISSUE THEMSELVES. Get the States/DC out of it!

Clear as mud.

Posted by: AJ in Denver | Jun 27, 2008 10:31:00 AM

Q: What are the biggest surprises?

A majority opinion by a single author. One would think that each of the concurring justices would want their mark on this historic decision.

Q: Where will the new Second Amendment right to gun-enforced self-defense lead us?

It will lead us back to the traditional balance of power between those of sound mind who abide by the law and those who would prey on them. According to the court majority, this is not a new found right. It was born of Common Law and reaffirmed and codified in the second amendment to placate the fears of anti-federalists. Mayor Fenty is delusional when he claims that licensed, registered firearms will flood the streets and fall into criminal hands. That has never happened. A cursory examination of the 74-year old NFA and the 160,000 registered machine guns in the hands of law abiding, private individuals lays this specious argument bare.

On the other hand, there cannot possibly be any higher availability of guns on the streets of Chicago and D.C. than there is today. It would seem that we must constantly relearn the lessons of prohibition and the war on drugs. Where demand exists, a market will spring up. In a post-Heller world, at least the sheep have a fighting chance against the wolves.

Q: And what is the political salience of the decision? Will this get the average person's attention, or will it drop quickly from the national consciousness? I'm betting this will a bigger issue that I expected it would be.

Your intuitions are probably correct. Well over 70% of the American public believe in an individual right to keep and bear arms in defense of one's life and home. To the extent that the McCain camp exploits this leverage, they may capture the "Vote Freedom First" blue-collar Regan Democrats and other fence sitters. Obama is extremely vulnerable here and the message has gotten out to politically active gun rights supporters. The image of him replacing a conservative vacancy with a far-left Stevens clone, confirmed enthusiastically by a Democrat dominated senate, is powerful stuff. Civil Libertarians should fear his use of administrative agencies like the BATF to harass lawful firearms commerce.

There is a slow but perceptible drift back towards gun rights in the Democratic Party as evidenced by the successful election of Senators Casey and Tester. To reverse this electoral strategy, the Republicans have no choice but to nationalize congressional races. It worked in 1994 when gun owners became energized by the so-called assault weapons ban. If they put Pelosi, Franks, Dodd and Schumer's gun control positions foursquare in the limelight and cast the local Democrat candidate as an unwitting enabler of such nonsense, they should salvage some seats in the upcoming bloodbath.

Posted by: Stephen Baker | Jun 26, 2008 4:11:39 PM

To further comment: Obama is a Constitutional Scholar--that's what he taught. For him to be this flaky on the Second Amendment (since I see he's frantically tossing all his old anti-gun language under the bus) really raises doubts as to just what does this guy know or believe? I understand that most constitutional scholars have reluctantly said that the Second Amendment does protect an individual right to bear arms.

It will be hard for Obama to say he's always supported gun rights when he personally steered money for books titled " Every Handgun is Aimed at You: The Case for Banning Handguns." In fact, look at this to see how pro gun control Obama has been in the past. How can he run from that record and maintain any credibility?

Posted by: Vanceone | Jun 26, 2008 1:33:47 PM

The biggest surprise is that Kennedy actually upheld the rights of Americans to have a 2nd amendment--that won't win him any brownie points in Davos.

Seriously, the biggest surprise is that it was so close. 4 justices thought that the only right Americans have to have a weapon is if they are in a militia? That's scary, for sure.

Where will this lead us to? Well, probably not much, except a lot more litigation. The decision is very narrow, and only really outlawed a total ban. Now we get to hammer out what is reasonable restrictions and so forth.

Politically speaking, this is a huge defeat for Obama. There is only one judge's vote separating confiscation of weapons from everyone, and Obama is tied to gun control in a major way. He's from Chicago, and part of his thin record is strong and total support for absolute weapon bans. He was on the Joyce Foundation, which while he was there touted itself as the most aggressive gun control organization in Chicago.

So, imagine the ad: "Your gun rights, your Second Amendment rights, were upheld by one vote. Senator Obama, a man who has said he supports gun control and worked to implement total bans, wants to be president. Do you want to vote for a man who has spent years working to take away your guns, when only one vote on the Supreme Court is keeping your right to protect yourself?"

Or something like that. Obama is flat out vulnerable on this.

Posted by: Vanceone | Jun 26, 2008 1:26:22 PM

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