Tag Archives: Guns

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Gun-Rights Decision May Have Limited Impact

by Stuart Taylor, Jr.

Newsweek

For gun controllers, the bad news is that the Supreme Court Monday ruled for the first time that the right “to keep and bear arms” in the U.S. Constitution’s 2nd Amendment restricts state and local power to impose gun controls.

The good news for gun control is that this new-found right may not restrict gun-control laws very much.

The 5-4 decision does appears to doom the exceptionally strict bans imposed by Chicago and Oak Park, Ill., on possession of handguns, even in the home for self-defense, that were before the court in the case at hand. A strict New York City handgun ban may also fall.

But no statewide gun-control law appears to be in immediate jeopardy, because nothing in Justice Samuel Alito’s majority opinion appeared to undercut the court’s assertions in a 2008 decision striking down a similarly strict handgun ban in the District of Columbia that a wide range of less stringent gun-control laws could be upheld as reasonable public-safety measures.
“We made it clear in Heller,” Alito wrote, “that our holding did not cast doubt on such longstanding regulatory measures as ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.’ We repeat those assurances here.”

The 2008 decision held for the first time that the 2nd Amendment restricts federal gun-control laws by guaranteeing an individual right to own a gun for self defense, and not merely for service in the now-defunct state militias, as the four dissenters had argued.

Because the District of Columbia is a federal enclave, the 2008 decision did not resolve whether the 2nd Amendment also restricts state and local gun-control laws. That was the issue resolved by Monday’s decision.

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Montana’s States’ Rights Showdown

by Daniel Stone and Stuart Taylor, Jr.

Newsweek

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that

State lawmakers have done a lot since Pre…

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that

State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case, which originated when a gun-rights group sued the Justice Department for threatening a crackdown, shouldn’t give separatists hope: it’s doomed to fail, as will similar rebukes.

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Judicial Factions And The Constitution

by Stuart Taylor, Jr.

National Journal

The news from the March 2 oral argument in the Supreme Court’s biggest pending case was that the five conservative justices seem poised to make the Second Amendment right to bear arms applicable to state and local gun controls, as well as federal. In the process, they will strike down the unusually strict handgun bans in Chicago and Oak Park, Ill. — probably in June.

But debate about the gun case, McDonald v. City of Chicago, has ranged far beyond guns. It has spawned an alliance of convenience among distinguished scholars in the progressive and conservative-libertarian camps.

Both have filed amicus briefs that take the gun-rights side while mainly seeking to expand other rights as well.

The detailed constitutional arguments show with unusual clarity why efforts to expand rights — whether favored by conservatives or liberals, or both — typically boil down to a bare-majority judicial faction using highly debatable theories to override democratic governance.

Many of the briefs in the gun case urge the Court to revive the 14th Amendment’s open-ended but long-moribund "privileges or immunities" clause and use it as a new fount of judicial power to strike down enactments imposed by majority rule. But the privileges-or-immunities alliance breaks down when its members are pressed on which laws should be struck down and which rights should be expanded or created.

Conservative libertarians who want the courts to reject economic regulations stress the considerable evidence that the authors of the privileges or immunities clause wanted to protect property and contract rights as well as gun rights.

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A Right to Keep and Bear Arms?

by Stuart Taylor, Jr

The Atlantic

The U.S. Court of Appeals for the District of Columbia Circuit issued the biggest gun control decision in decades on March 9, perhaps setting the stage for the biggest Supreme Court gun control decision ever. Rejecting the views of most other courts, Judge Laurence Silberman held for the 2-1 majority, "The Second Amendment protects an individual right to keep and bear arms"—not just to have guns when needed for service in now-defunct state militias. On this basis, the majority struck down the District of Columbia’s uniquely broad ban against having either a pistol or an operational rifle, even at home for self-defense against intruders.

The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don’t hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

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The Court Is Not a Right-Wing Nut

by Stuart Taylor, Jr.

Something about the timing of United States v. Lopez-"just a week after a bomb exploded in Oklahoma, killing more than 100 people," as reporter Nina Totenberg put it on National Public Radio-struck a lot of us (at least at first) as a bit much.

Here was the Supreme Court of the United States sending paroxysms of joy through the states-righters and the gun-lovers by holding (on April 26) that Congress had unconstitutionally exceeded its power to regulate interstate commerce, and had thus usurped the powers of the states, when it banned possession of guns within 1,000 feet of a school.

Here, in other words, was a 5-4 gift from the Court’s conservative bloc to the folks who listen to Justice Clarence Thomas’ buddy. Rush Limbaugh, who gives aid and comfort to fellow radio talk-showman G. Gordon Liddy, who, in turn, broadcasts pointers on how to kill (in self-defense, of course) federal law enforcement officials, like the ones who were targeted by the bombers and others on the right-wing lunatic fringe.

Perhaps these atmospherics-plus the fact that this was the first Court decision since 1935 striking down an act of Congress as exceeding its commerce power-were part of what inspired Yale Law Professor Bruce Ackerman to tell Totenberg that "this could well be one of the opening cannonades in the coming constitutional revolution." And Hofstra Law Professor Leon Friedman to assert that the Court’s holding that Congress may use its commerce power only to regulate activities affecting commerce "is an astonishing requirement to lay on Congress." And a giddy conservative, Professor Douglas Kmiec of Notre Dame Law School, to proclaim Lopez "the most important case in a half-century."