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View Diary: What gun control does the Second Amendment allow? (226 comments)

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  •  Don't forget: Heller was 5-4 (12+ / 0-)

    A brief reminder: when the District of Columbia v. Heller case was decided, Antonin Scalia wrote the Opinion of the Court, on behalf of a 5-4 majority. The four-vote dissenters included Justices Stevens and Souter, now both retired, and the principal dissent was authored by Justice Stevens.

    But there was also a second dissent. It was authored by Justice Breyer. Like Justice Stevens's dissent, it received four votes. And I believe the whole liberal side of the current Court still thinks it was correct.

    It allowed much stricter regulations than Scalia. Whereas Scalia favorably quoted a post-Civil War commentator who said

    The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”                                                                                
    Breyer took a more reasoned approach, saying
    The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens—namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.

    The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are—whether they do or do not include an independent interest in self-defense—the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.
    Scalia's greatest virtue--one that Breyer does not share--is that he's pithy and writes concisely. While this sometimes saps any nuance from his arguments, it makes him a lot easier to read and cite. So if you really want to see Breyer's analysis play out, I suggest actually reading his opinion (or at least the first paragraphs of each section of it).

    But the takeaway is this: the Supreme Court is one vote shy of recognizing the ability of our elected representatives to impose vigorous regulations on the possession, storage, registration and carrying of firearms.

    It looks like filibuster reform will be proceeding in the next Congress. And, if I'm reading my committee charts correctly, Sen. Dianne Feinstein--the sponsor of the Assault Weapons Ban and one of the most vocal voices for gun control in the Senate--is about to become the most senior member of the Senate Judiciary Committee, as Chairman Leahy moves over to run the Appropriations Committee. If she moves from the Senate Select Committee on Intelligence to Judiciary, look sharp. And even if she doesn't take the gavel, I believe the next in seniority is Chuck Schumer, who has been pretty consistent in supporting gun control over the years.

    What this adds up to is a higher likelihood that judges and future SCOTUS appointees who believe in a moderate interpretation of the Second Amendment are more likely to win confirmation in the next few years, with favorable hearings in the Judiciary Committee and likely support from a majority of Senators.

    This is a serious opportunity to bring gun regulation in the US back to the realm of where it spent most of the past century.

    "Speaking for myself only" - Armando

    by JR on Tue Dec 18, 2012 at 10:46:28 AM PST

    •  I think it's more than one vote away (5+ / 0-)

      Because I think that the Court's respect of precedent is such -- especially on the liberal side -- that a shift in the Court's membership is not enough to overturn Heller, though they could erode it through application.

      Moreover, the whole point of the diary is that there's a lot of serious gun regulation which comfortably fits within Heller as-is.

      •  ? (0+ / 0-)

        didn't the dissent in McDonald say that Heller was wrong and should probably be overturned?

        It's been a hundred years, isn't it time we stopped blaming Captain Smith for sinking the Titanic?

        by happymisanthropy on Tue Dec 18, 2012 at 01:06:23 PM PST

        [ Parent ]

        •  Not quite (3+ / 0-)
          Recommended by:
          cany, VClib, fuzzyguy

          They do think it was wrong, and use the debate over the history to resist incorporating the right to the states, but they don't indicate how strongly they respect it as precedent:

          The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.

               Since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed. See, e.g., ....

      •  I've rec'd this comment even though (1+ / 0-)
        Recommended by:
        JR

        I believe the gist of JR's comment is to point out how contentious a ruling Heller really was--and still is, particularly now.

        By that measure, despite the court's (not always consistent) respect for precedent, Heller, rather like Citizens United, strikes me as a ruling that is rather ripe for being overturned, either entirely or in part, with even a minimal shift in the Court. After all it took only 17 years for Bowers vs Hardwick to be overturned and the overturning was done by a court not far to the left of the Roberts court.

        The right case, argued the right way, might have very significant effects.

    •  And Roberts (0+ / 0-)

      who I think sided with Scalia on that case, has little kids. School age kids. Kids who likely go to a school much like the one in Newtown.

      He might have a different view of things now.

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