Much of the discussion about Heller/Parker has focused on what might happen in the event we lose big at the SCOTUS. Uncle points to a Glenn Reynolds discussion about what happens if we win; some folks will argue that a win isn’t going to be that much of a win, and that the court will leave wiggle room such that most any gun control will be seen as a “reasonable regulation”.
Not sure how that’ll work for the gun grabbers. If Judge Silberman’s opinion is sustained, bans on specific classes of weapons will find themselves without constitutional standing pretty much overnight. The court rejected the idea that the 2A is satisfied because DC allowed unassembled, non-functioning long guns (after all, DC could just as easily argue that the 2A is satisfied because you can own a sabre and a katana and a battleax, even if no firearms of any kind are allowed…which would be an equally frivolous claim according to Judge Silberman. In other words, either you can own guns or you can’t).
So I’d argue that the Chicago gun ban will be toast, and San Fran won’t have much luck trying another outright ban.
Incorporation would seem to be the next logical step. The 2nd is just as important as the 1st Amendment.
Comment by Pete — November 20, 2007 @ 1:03 am
One nit pick here. The people of the US aren’t the “we” in “in the event we lose big”. This use of the word we is a lousy way to describe the issue. The United States Supreme Court may rule strongly against those individuals who have an interest in self-defense but the Supreme Court is not “we”, it is not “I”, it is THEM. I and many other individuals grudgingly pay IT taxes with which IT uses for IT’S own purposes, many purposes of which are at odds with the peaceful furtherance of self-defense of THE PEOPLE.
As Ernest Hancock has said many-a-time, there are those who want to be left alone to their own private and peaceful enterprises and there are THOSE who just **CANNOT** leave them alone.
Mixing up “the people” through the weak use of words with those nanny-state imposing, victim disarming, secret wiretap listening, genocide making, corruption dealing, poverty spreading individuals who oppress THE PEOPLE is (in my opinion) maligning us peaceable folks whose rights are not subject to the whims of 9 people (see inalienable) in dresses in Washington, DC who have far too often come down on the side of THEM THERE THOSE oppressors (not that this should be particularly surprising to any reasoning individual - after all it is US against THEM) and will rarely and haltingly issue edicts forbidding, much less punishing THOSE who infringe on of rights of WE, THE PEOPLE.
Comment by Thane Eichenauer — November 20, 2007 @ 5:33 am
Indeed; there’s a substantial school of thought that a willy nilly failure to include the 2A in the 14A’s protection is intellectually and constitutionally indefensible.
IOW, the court’s argument that “the people” in the 2A is the same as “the people” everywhere else in the BOR makes sense, and it’s pretty hard to explain how the other amendments would enjoy 14A protection when the 2A doesn’t.
Comment by Administrator — November 20, 2007 @ 8:18 am
[…] We all yammered on a bit back about what if we lose? Well, what if we win? […]
Pingback by SayUncle » Parker/Heller for the win — November 20, 2007 @ 8:37 am
If we win, it means the Court declares in no uncertain terms that what is protected is an individual right to arm.
Step two is then to overturn Presser v. Illinois and U.S. v Cruikshank and get that right incorporated under the 14th Amendment against infringement by states and localities.
Step three is to start rolling back the worst local and state infringements.
Comment by Kevin Baker — November 20, 2007 @ 9:24 am
SCOTUS never declares anything in “no uncertain terms”. That isn’t their job, and they don’t like doing it anyway. They rule narrowly. Sure there have been instances (Roe v. Wade for example) where there has clearly been “legislation from the bench”, but I don’t see that sort of thing happening here. I believe that they’ll uphold Parker/Heller, and nothing will change, other than outright bans. This means that they’ll likely be allowed to either ban handguns as long as functioning long guns are allowed. The ruling will likely allow everything up to and including registration, proficiency requirements, bans on certain classes of weapons, strict licensing, and safe storage requirements.
While I don’t like it, the court isn’t there to do what I like, it is there to interpret the Constitution and the law. And unfortunately, terms like “shall not be infringed” can (strangely enough) be interpreted more than one way.
Comment by Greg Morris — November 20, 2007 @ 10:32 am
True, they ruled only on “Keep”, not “Bear”…that would be the end result of Sebastian’s case
Comment by Matt — November 20, 2007 @ 10:38 am
Hey, the question was “what if we win.” The definition of “win” is declaration that the Second Amendment protects an individual right.
Everything else grows from that.
I think they all realize this, which is why they’ll deny cert. That will result in D.C.’s ban being overturned, and I expect D.C. will rapidly implement NYC-type “Sullivan” laws making possession very, very difficult and expensive - but not literally prohibited.
Comment by Kevin Baker — November 20, 2007 @ 1:03 pm
“Sure there have been instances (Roe v. Wade for example) where there has clearly been “legislation from the benchâ€?, but I don’t see that sort of thing happening here.”
Ah yes, the ole “activist judge” canard–almost universally reserved for situations where you want to denigrate a decision that you just don’t like for whatever reason. The problem with that analogy is RvW stands on another case (Griswold) which points out that the govt has no business regulating sexual intimacy and politics (vis a vis contraception). The problem with such attempts to poo-poo Roe is that doing so also means doing away with Griswold. You want to concede that the govt can tell your wife she can’t take the pill? You have to remember–the govt doesn’t grant rights, it recognizes them. Unless the govt is expressly granted a power to govern or regulate something, the onus falls on the govt to explain why and how it should get to do so. How quickly people forget the 9A; just because a right or freedom isn’t expressly enumerated in the COTUS doesn’t mean you don’t have it. We wouldn’t be in the pickle we’re in if people remembered that the govt doesn’t grant rights in the first place.
“This means that they’ll likely be allowed to either ban handguns as long as functioning long guns are allowed.”
Bzzzzt! Reread Silberman’s decision–the DC expressly explained what a frivolous and specious argument that is. They could just as easily justify banning all firearms and say the 2A is satisfied because you can own a sabre and a baseball bat.
Where the line on “infringement” really is might move glacially and slowly, but pretty clearly the DC seemed to rule that an outright ban is in fact an infringement.
Comment by Administrator — November 20, 2007 @ 1:18 pm
A better way to put it, perhaps: the question isn’t what rights we have (beyond those explicitly enshrined), but rather what regulatory powers are we THE PEOPLE willing to afford govt?
Comment by Administrator — November 20, 2007 @ 1:47 pm
Well, looks like we’re all going to find out, based on the AGC email I just got. Here we go!
Comment by Matt — November 20, 2007 @ 2:06 pm