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Gun Grabbers Expect To Lose At Supreme Court

by @ 8:25 am on June 13, 2008. Filed under Individual Liberty, Politics, Supreme Court

Sometime within the next three weeks, the Supreme Court will issue it’s decision in D.C. v. Heller, which will be the Supreme Court’s first major ruling on the Second Amendment in decades, and, already, the anti-gun forces are saying that they expect to lose:

The nation’s leading gun control group filed a “friend of the court” brief back in January defending the gun ban in Washington, D.C. But with the Supreme Court poised to hand down a potentially landmark decision in the case, the Brady Campaign to Prevent Gun Violence fully expects to lose.

“We’ve lost the battle on what the Second Amendment means,” campaign president Paul Helmke told ABC News. “Seventy-five percent of the public thinks it’s an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.”

While the Brady Campaign is waving the white flag in the long-running debate on whether the Second Amendment protects an individual’s right to bear arms or merely a state’s right to assemble a militia, it is hoping that losing the “legal battle” will eventually lead to gun control advocates winning the “political war.”

“We’re expecting D.C. to lose the case,” Helmke said. “But this could be good from the standpoint of the political-legislative side.”

The D.C. ban prohibits residents from keeping handguns inside their homes and requires that lawfully registered guns, such as shotguns, be locked and unloaded when kept at home.

If the Supreme Court strikes down the D.C. gun ban, the Brady Campaign is hoping that it will reorient gun control groups around more limited measures that will be harder to cast as infringements of the Second Amendment.

Does this mean that the debates over gun control will be over ? No, because, as I noted back in March, the Supreme Court’s decision is likely to focus on two distinct issues:

The other reason is because Heller isn’t just a simple question of whether or not the Second Amendment protects an individual or collective right to gun ownership. To make a complex case simple, Heller really comes down to two questions:

  1. Does the Second Amendment create an individual right to keep and bear arms, or does it merely mean that the states can maintain militias made up of members of the citizenry ?
  2. Assuming that the right is an individual one, what constitutes an infringement of that right ?

Based on the oral argument, it seems fairly clear that there is at least a majority of five Justices willing to rule that the Second Amendment right is an individual right rather than a collective one belonging to the individual states.

But that’s just the beginning.

First, while that Justices are likely to take the next step and determine that the District of Columbia’s all-out ban on handguns violates the Second Amendment, that will not answer the question of what, if any, restrictions or regulations on guns might be acceptable. As I noted back in March, Heller is likely to be the beginning of a process that could take a long time:

The most likely outcome of the Court’s decision in Heller, whatever it might be, is that it will merely be the beginning of an entirely new area of Constitutional jurisprudence. Ten years from now, Second Amendment cases may be as common in the Supreme Court as First Amendment cases once were, and that will continue until the Court hammers out a coherent Second Amendment case law.

Finally, whatever the outcome in Heller might be, how it applies to 99% of the population of the United States will remain unanswered because the Supreme Court has never ruled that the Second Amendment applies to the states. That will have to be the subject of yet another lawsuit.

H/T: Jason Pye

3 Responses to “Gun Grabbers Expect To Lose At Supreme Court”

  1. KipEsquire says:

    “Finally, whatever the outcome in Heller might be, how it applies to 99% of the population of the United States will remain unanswered because the Supreme Court has never ruled that the Second Amendment applies to the states. That will have to be the subject of yet another lawsuit.”

    There is no way the Court would not incorporate, at least in follow-up cases if not in Heller itself.

    The only two parts of the Bill of Rights expressly held not to be incorporated are:

    1. Indictment by grand jury — The logic here was that Fourteenth Amendment “due process” (the source of incorporation) cannot mean more than Fifth Amendment “due process,” which clearly did not include grand jury indictment (the very reason it was added separately). Hurtado v. California

    2. Seventh Amendment — The logic here was that the only reason we enacted the Seventh Amendment was to ensure that a party in a state with civil jury trials would not lose that right in federal court. But the fact that other states did not have civil juries was not contested (i.e., the Seventh Amendment ensured that moving from state to federal court might give you a new right, but could not deny you a pre-exisitng right, depending on which state you happened to live in) (cf., Federalist #83, where Hamilton tried — unsuccessfully — to counter this argument by insisting that no truly liberty-infringing civil case could ever end up in federal court anyway).

    In short, neither of those unusual circumstances is in any way applicable to the Second Amendment.

  2. Kip,

    I don’t disagree that incorporation is probably likely, it’s just that, at the moment, it doesn’t exist.

    Interestingly, there is one case that says that the Second Amendment does not apply to the states. Presser v. Illinois, which was decided in 1886.

  3. Thoughts on Heller…

    “Let’s be honest about it. This is an actual, enumerated right in the Constitution.”
    –Orrin Hatch

    You can get the straight reporting elsewhere. I will stick to items within my sphere of influence.

    Two preliminari……

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