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The Election Implications of the Second Amendment Case:

Michael Dorf -- who takes a collective rights view of the Second Amendment -- writes this (accurate) account of something that came up during the American Association of Law Schools panel on the Second Amendment. (The panel consisted of him, Katherine Darmer, John Eastman, and me, and was moderated by Mark Tushnet.)

On my Second Amendment panel today, there was some discussion about how a decision upholding or rejecting the individual right view would play politically.

We all pretty much agreed that a victory for the District of Columbia could be costly to the Democratic Presidential nominee, because it would activate the strongly Republican leaning gun rights groups. I said that I also thought a victory for Heller (the plaintiff) would help the Republicans, especially if it were 5-4, simply by making the issue salient and by emphasizing how closely divided the Court is, because the gun rights folks care more about this issue than do the gun control folks.

Harvard Law Prof Mark Tushnet (the moderator) and GW Law Prof Bob Cottrol (from the audience) thought that a victory for Heller would be good for Democratic politicians and gun control advocates, who could then claim credibly that the gun control measures they favor are not in fact the first step on a slippery slope to abolition. That's an intriguing idea but I'm not sure. It strikes me that the win-by-losing strategy is always risky and unpredictable. [Paragraph breaks added.]

I would add that a victory for D.C. would also be costly to the Democratic Presidential nominee because it would make the issue more salient for voters generally; polls suggest that the public supports the individual rights view by at least 2 to 1, and my sense is that many swing voters in swing states care about the issue a good deal.

REPEAL 16-17 (mail):
I would add that a victory for D.C. would also be costly to the Democratic Presidential nominee because it would make the issue more salient for voters generally; polls suggest that the public supports the individual rights view by at least 2 to 1, and my sense is that many swing voters in swing states care about the issue a good deal.


Absolutely right. A victory for D.C. would cause a backlash at least as big as that which occurred following the Kelo decision. The Democratic Party should hope for a win for Heller, so that it can say that there's no threat to gun rights. Speaking strictly politically, the Republican Party is probably hoping that D.C. wins so that it could ride the backlash to victory. Neither of this applies to the rank and file membership of each party.

My prediction: 5-4 or 6-3, in favor of the individual right reading of the 2nd Amendment.
1.9.2008 12:10am
Brooks Lyman (mail):
Given the preponderance of serious Constitutional scholarship supporting the individual right view of the Second Amendment, I would not be surprised if the number of justices supporting an individual right view was nearly unanimous.

I would also not be surprised if some of that support was in dissents that otherwise supported DC's case, on other (perhaps spurious, like "penumbras." etc.) grounds. I would agree, though, that Heller will win.
1.9.2008 12:18am
BruceM (mail) (www):
Note that nobody is claiming that a victory for DC upholding its gun ban would actually make the citizens of DC safer, reduce DC crime (of course, the addition of a penal statute by definition increases crime), or otherwise make DC a better place.

Deep down everyone knows these laws are purely political and have nothing to do with safety, crime, "the children" or any other political tokens. Of course, the thought of losing a right for purely political reasons is sickening to me, but most people seem to get off on it.
1.9.2008 1:00am
Daniel Chapman (mail):
A penal statute increases crime by definition in the same way tax increases increase revenue by definition.
1.9.2008 1:31am
Reasoner:
So many lower court judges have been willing to twist the meaning of the Second Amendment that I have little confidence in the outcome of the case at the Supreme Court. Especially since the court seems willing to ignore other parts of the Constitution, such as the First Amendment right to freedom of the press 90 days before an election.
1.9.2008 3:09am
Oren:
While I am strongly pro-gun (and pro an individual reading of the 2A), I will likely vote for a anti-gun candidate for unrelated reasons. Given that the Democratic majority in the Senate was won with the help of pro-gun states, I am confident that even the most anti-gun president will not be able to pass much by way of new legislation.

In the absence of a pliant Congress, how much influence does the President have on gun issues anyway?
1.9.2008 3:22am
illspirit (www):
Honestly, this could go either way.

A win for Heller could help the Democrats by making it appear the threat of further gun bans is off the table.

Or it could help the Republicans because it would show everybody that many Democrats have really have been trying to undermine a fundamental right. Especially if Obama is the nominee; given that he was on the board of directors for the Joyce Foundation, who underwrote a good portion of the dodgy "research" cited by the District.

Likewise, a win for DC could energize the gun vote like never before. Or perhaps the less political gun owners might throw handgun/eeevil black rifle owners under the bus, and vote for a Democrat in hopes they can make a proverbial deal to keep their bolt-action rifles.

Either way, I'm guessing the Court will find 6-3 or better in favor of an individual right. The District's brief just seems so.. desperate.
1.9.2008 3:26am
Reasoner:
Only a third of the Senate seats were up for grabs in the last election. If the trend of the last Senate election continues in the next, then the Senate will have many more members hostile to guns. The big treat in the near future isn't a ban on anything (except maybe "assault weapons"), rather the threat is gun registration, and laws to shrink the number of gun owners and therefore political support for gun ownership. Gun bans are much more tempting to lawmakers if guns have already been registered. All new guns are effectively registered at purchase today. The next law to be passed would require "background checks" for all private sales. I don't know why you need a serial number for a background check but for some strange reason those background checks would require the gun's serial number like they do in California. In addition to registration, gun banners will push for any laws that make it more expensive to own or use guns and make it more treacherous to navigate the regulations. The fewer the number of gun owners there are, the more "reasonable" regulations they will be able to pass, resulting in still fewer gun owners, and so on in a vicious circle. One of the biggest reasons they oppose concealed carry is not the disproven risk of misuse, but because concealed carry is something that may keep guns popular and familiar even among non-hunting city dwellers.
1.9.2008 3:57am
Jim at FSU (mail):
The pro-gun crowd cares about the gun issue a million times more intensely than the anti-gun crowd. Support for gun control in this country has typically been a mile wide and an inch deep. The only victory that the anti-gunners can really hope for is apathy amongst the gun crowd. Before 1994, they mostly had their wish (I remember in NY in the 80s, when Governor Cuomo repeatedly mocked gun owners as a bunch of bumpkins that never voted) but since then, gun owners have become much more politically aware. Many of them are single issue voters and there are at least enough of us to swing elections in close states.

Having guns become a really big issue in an election year is very bad for democrats unless the republican candidate is someone notoriously anti-gun, like rudy guiliani (which seems decreasingly likely). Someone like Obama who has publicly stated he wants to ban all semiautomatic firearms (amongst many other proposals) would suffer greatly at the hands of an energized gun voting bloc.
1.9.2008 4:21am
Jim at FSU (mail):
I predict that regardless of the outcome of Heller, the gun rights movement will continue to be a political juggernaut. I've been very encouraged by the progress we have made over the past 10-15 years at the federal and state levels.

In the early 90s, guns were considered an easy way to score points as being "tough on crime." Since 2004 or so, it has finally sunk in that gun owners are both politically savvy and well organized and that we punish even subtle attempts to harm our interests. Gone are the attempts to "divide the gun vote" by posing as hunters while "supporting an assault weapon ban"- candidates either avoid the issue or praise gun ownership.

The anti-gun lobby groups are all either going bankrupt or living off Joyce Foundation money. The gun-rights movement is a millions-strong bottom-up organization. The gun-control movement is a moderately well funded top-down organization that can no longer deliver votes. They're losing.
1.9.2008 4:30am
Skyler (mail) (www):
A Heller victory would be a boon for democrats because they would now have a great reason to no longer have to even discuss gun control. They would be free of even needing to pretend to want gun control for their gun control constituents and simply shrug that the court has spoken and there's no point in discussing it anymore. They have been severely hurt in the past by kow towing to the gun control factions, this gives them the opportunity to take the topic off the table and have one less divisive issue to confront. It will further unite their factions.
1.9.2008 6:25am
randal (mail):
Assuming DC loses, which I think is pretty safe, the political ramifications will depend a lot on the scope of the holdings.

I don't see how the Second Amendment could be upheld as an individual right without holding it as a fairly broad right. I think that when people realize that to be sensible, the right must include more than just hunting and self-defense - i.e. militia-style weaponry - a large portion of people who currently don't care will see a problem. Automatic weapons are pretty standard for militias - how could the right to bear arms not include them?
1.9.2008 6:44am
Dan J. (mail):
What would be the political ramifications if the Sup. Ct. "split the baby" in Heller? My gut is telling me that the Sup. Ct. will probably (in a 7-2 or 8-1 line-up) adopt the individual rights view of the amendment. Conversely, I see the Court splitting 5-4 upholding the D.C. gun laws as reasonable regulations under the Amendment. Would such a decision be as costly to a Democratic nominee as a Sup. Ct. holding the collective rights view as the proper conception of the 2nd Amendment?
1.9.2008 8:58am
Kevin P. (mail):
On a related subject, I maintain a Wikipedia page on the Joyce Foundation and their funding of gun control organizations. The material is summarized from sources freely available, including the Joyce Foundation's own reports.
1.9.2008 10:00am
BD:
Assuming the Court recognizes an individual right to keep and bear arms, it seems obvious that D.C.'s outright ban on handguns would be struck down as an impermissible infringement. But what guidance would such a decision provide with respect to the constitutionality of other forms of regulation?

Just by way of partial overview, it may be useful to think of the current state of constitutional law as it applies to other individual rights.

In the area of free speech, courts have long recognized a whole host of exceptions, such as threats, defamation, incitement to imminent lawlessness, commercial speech, obscenity, fighting words, and time-place-manner restrictions.

In the abortion arena, the Supreme Court applies an "undue burden" test that assesses whether a restriction places a "substantial obstacle" before a woman's attempt to obtain an abortion before the fetus reaches viability. In practical terms, this means the state can impose a waiting period, require parental notification (in the case of minors), and insist the woman gives her "informed consent," but can't create obstacles designed to discourage the woman from proceeding with the abortion.

I'm no judicial scholar, but it seems fair to say that courts have not allowed either free speech or abortion to be "regulated to death." On the other hand, the right to keep and bear arms arguably HAS been regulated to death in many jurisdictions.

A consistent approach to the protection of individual liberties would, I think, require the upholding of restrictions that keep guns out of the hands of minors, mental incompetents, convicted felons, as well as regulations of a purely procedural nature (e.g., registration and waiting period). Such an approach, however, would prohibit substantive restrictions such as licensing, local police approval, mandatory firearms training, legal restrictions on the availability of ammo, and prohibitions on the carrying or transportation of weapons.

Please note I am talking about what a consistent approach would require. I realize there is no guaranty the court will protect gun rights with the same zeal with which they have protected, for example, abortion rights. I'm also not implying that the level of government intrusion the court has permitted or might permit in any of these areas is necessarily consistent with my own view of the Constitution.

Of course, it's entirely possible the Court will narrowly confine its decision to an invalidation of the D.C. handgun statute without offering much guidance as to such a ruling's implications for other forms of gun regulation.
1.9.2008 10:18am
Temp Guest (mail):
A liberal friend of mine -- and an extremely partisan Democrat -- becomes enraged when I choose candidates by determining their stand on issues including gun control, abortion, homosexual marriages, etc., etc. He tells me that these are unimportant issues compared with the bigger ones facing the nation. I always respond that if these issues are so unimportant why doesn't the Democrat party regain its old electoral advantage by embracing positions shared by the vast majority of Americans. Spluttering ensues.
1.9.2008 10:47am
therut:
Temp you are correct. It reminds me of Howard Dean complaining about Republicians voting about such things as gay marriage, guns and abortion. I scream back at him the same thing. Why doesn't the Democratic Party drop pushing gay marriage, gun control and abortion? Oh the side steeping. Even my elderly mother wondered the samething. Deceit!!!!!! The unrest of Kelo will appear to be a party compared to the backlash if the USSC takes away a Right of the People. They will loose what they need the most----the respect of The People. They will be seen as lawless. Dangerous.
1.9.2008 11:34am
DangerMouse:
Temp Guest,

What does your liberal friend think are the bigger issues facing the nation?
1.9.2008 11:36am
Houston Lawyer:
The democrats should hope for DC to lose. If DC wins, the nominee will be obligated to support the decision. The nominee won't be able to say that he or she would appoint justices to the supreme court that disagreed with that decision since a justice that supported an individual right under the 2nd amendment would most likely vote to overturn Roe. A DC win would forever brand the supreme court as just another political body.
1.9.2008 11:38am
wekt:

My gut is telling me that the Sup. Ct. will probably (in a 7-2 or 8-1 line-up) adopt the individual rights view of the amendment. Conversely, I see the Court splitting 5-4 upholding the D.C. gun laws as reasonable regulations under the Amendment. Would such a decision be as costly to a Democratic nominee as a Sup. Ct. holding the collective rights view as the proper conception of the 2nd Amendment?

Yes, I think such a decision would be almost as costly as adopting a collective-rights interpretation wholesale. Few will be fooled by the Court paying lip service to the individual-rights interpretion but then undermining it by considering an outright ban of handguns to be "reasonable regulation".
1.9.2008 12:05pm
Tony Tutins (mail):

Governor Cuomo repeatedly mocked gun owners as a bunch of bumpkins that never voted

Does he mock his bumpkin son Andrew Cuomo? Andrew has a New York pistol license, which means he's a gun owner:

http://nymag.com/nymetro/news/crimelaw/features/4320/
1.9.2008 12:20pm
Adam J:
I dunno what's gonna happen, but assuming an individual right is found, DC can easily claim that it has a compelling interest in stopping gun violence, but I don't think there's any way the Court can say that a complete ban will be "narrowly tailored".
1.9.2008 12:22pm
Oren:
The nominee won't be able to say that he or she would appoint justices to the supreme court that disagreed with that decision since a justice that supported an individual right under the 2nd amendment would most likely vote to overturn Roe.
I really don't see why those two issues are as closely related as you think they are. Kennedy certainly appears to support Roe and will likely approve the individual right to bear arms - what makes you think that he is the only one?
1.9.2008 12:53pm
J. F. Thomas (mail):
Why doesn't the Democratic Party drop pushing gay marriage, gun control and abortion?

I'm sorry, but apparently I missed the Democratic Party meeting where we were told that we were "pushing" gay marriage, gun control and abortion.
1.9.2008 1:10pm
J. F. Thomas (mail):
Most people don't give a damn either way how this case is decided. The NRA is very good at frightening individual politicians and stirring up the gun nuts of the world and making gun rights a bigger and more important issue than it is to the vast majority of people in the country. But most people are not as paranoid as Clayton and Dave Kopel. They don't see every reasonable gun control law as creeping totalitarianism.
1.9.2008 1:15pm
CrazyTrain (mail):
Dorf seems to be buying into the typical MSM narrative that everything's good for the Republicans. Win for plaintiffs is good for Republicans, win for defendants? Good for Republicans, of course. (Just like we constantly hear from the MSM that a terrorist attack would be good for Republicans, and no terrorist attacks? good for Republicans.) Ironically, this is typical of elitist Democrats. . . .

FWIW, I clearly agree with Tushnet. A decision against one position tends to ignite supporters of that decision. As a Democrat, it's one reason I hope the plaintiffs win in Heller. And I also agree with the individual rights view (it seems pretty clear that "people" means, well, "people" just like it does in the 4th and 1st Amendments, among others), and hope that it will indeed marginalize the slippery slope arguments so that we can have arguments based on the merits of particular gun control measures and not on whether they will lead to outright abolition (though I do think, as Prof. Volokh has shown, that gun-rights supporters are legitimately fearful of that slippery slope).
1.9.2008 1:22pm
CrazyTrain (mail):
By the way, I meant "a decision for one position tends to ignite those who oppose the decision." We have seen this with abortion many times -- the times the Court was close to overturning Roe was helpful for the Democrats because it ignited support by pro-choice groups. Indeed, the litigation strategy of the pro-choice groups in Casey was to take an all-or-nothing position so that the Court would either reaffirm Roe (which would obviously be their preference -- or reverse it and thus make it a huge issue in the '92 presidential election which they thought would help Democrats. At least this is the explanation I read in the book "Turning Right" about the Court in the late-80's, early 90s (a good book, by the way).
1.9.2008 1:26pm
anonthu:
I'm sorry, but apparently I missed the Democratic Party meeting

Perhaps somebody who's been conscious the past decade or so can fill you in

where we were told that we were "pushing" gay marriage, gun control and abortion.

Positions on those three issues pretty much define political affiliation these days... how many Democratic Congress members are anti-gay marriage, pro-gun rights, and anti-abortion?
1.9.2008 1:31pm
J. F. Thomas (mail):
Prof. Volokh has shown, that gun-rights supporters are legitimately fearful of that slippery slope

Legitimately fearful? How so? This country, almost without exception, has the most liberal gun laws of any industrialized society. Even modest attempts at controlling guns at a national level are rendered meaningless through the powerful lobbying of the NRA (i.e., the Assault Gun Ban). And then once the law is rendered meaningless it is ridiculed by the NRA because it was rendered toothless through the efforts of the NRA.
1.9.2008 1:33pm
J. F. Thomas (mail):
Positions on those three issues pretty much define political affiliation these days... how many Democratic Congress members are anti-gay marriage, pro-gun rights, and anti-abortion?

All three of these issues are far from black and white. Only in some bizarre fantasy world are all Republicans unequivocally anti-, pro-, anti- and all Democrats pro-, anti-, pro-. Not even close. There are lots of Republicans who support Civil Unions (e.g. Guiliani). I doubt you will find many Democrats who will argue that law abiding citizens shouldn't be able to keep firearms in their homes for self defense. And anti-abortion is an absolute statement that is a minority position in this country.
1.9.2008 1:43pm
Tony Tutins (mail):
Similarly, from my point of view, the NARAL is very good at frightening individual politicians and stirring up the choice nuts of the world and making abortion rights a bigger and more important issue than it is to the vast majority of people in the country. Your perspective changes when your own ox is being gored. Far more people have bought guns since Roe v. Wade than have had abortions.

The slippery slope of gun control is plain and simple: a gun control law is enacted in response to some event; the law proves ineffective in preventing another such event; the pro-gun control side decides the solution is not to repeal the new law, but to add another one. Repeat ad infinitum.
1.9.2008 1:45pm
J. F. Thomas (mail):
Similarly, from my point of view, the NARAL is very good at frightening individual politicians and stirring up the choice nuts of the world and making abortion rights a bigger and more important issue than it is to the vast majority of people in the country.

Except of course it isn't. The right to and availability of abortions in this country has steadily eroded over the last 25 years or so. After a spate of gun control laws in the mid to late eighties driven by the assassination attempt on Reagan, the tide has turned on gun control, especially over the last ten years. Heck, it even looks like you might get your holy grail, a SC decision saying the 2nd amendment right is an individual one.
1.9.2008 2:01pm
CrazyTrain (mail):
Democratic Congress members are anti-gay marriage, pro-gun rights, and anti-abortion

A lot more than you think (unfortunately on 1 &3). Many Southern Democrats -- that are Democrats because of economic issues -- are all of the above. Heath Shuler for example. I am sure there are tons of other Southern Congressmen that are all of the above.

And this is not just limited to Southern Democrats, but also some pretty big names in the party: Harry Reid, the Democrats' majority leader in the Senate, meets all those conditions, as does Senator Tester.

These issues, while important, do not "define" the parties.
1.9.2008 2:07pm
CrazyTrain (mail):
stirring up the choice nuts of the world

Because you have to be a real "nut" to think that the State does not own a woman's uterus . . .
1.9.2008 2:08pm
CrazyTrain (mail):
A liberal friend of mine -- and an extremely partisan Democrat -- becomes enraged when I choose candidates by determining their stand on issues including gun control, abortion, homosexual marriages, etc., etc. He tells me that these are unimportant issues compared with the bigger ones facing the nation. I always respond that if these issues are so unimportant why doesn't the Democrat party regain its old electoral advantage by embracing positions shared by the vast majority of Americans. Spluttering ensues.

Ummm, what are you talking about. "Regain" their electoral advantage? Are you following the news; take a look at the turnout in the two recent primaries, both of which are in traditionally republican states (although NH did go for Kerry last time). The 3rd place Dem got more votes in Iowa than the first place Republican, and turnout was 3x as high for Dems. Even in NH, both Barack and Hillary got way, way more votes than any Republican. (I loved how Fred Thompson, the supposed savior of the party a few months ago, got less votes than Kucinich.) Money has been pouring into the Dem Presidential candidates by a huge margin over the Republicans -- even by traditionally republican constituencies like big business. Big business isn't giving money to Dems because they like them, but because they think they are going to win. You may also want to remember what happened in 2006. Anything can happen, and maybe the Republicans will pull out the election this year, but right now, the "electoral advantage" is with the Dems.

Furthermore, the "majority" of the country is with the Democrats on abortion. Many Democrats that were first supported by the supposedly liberal "netroots" are very pro-gun rights (Tester &Webb for example, both of whom originally had their base of support in the netroots before in the "mainstream" of the party) and recognize that too much gun control is a bad thing. And on gay marriage, the country is slowly but surely going our way. Regardless, there is nothing wrong with sticking to an issue because you think it is right.
1.9.2008 2:18pm
CrazyTrain (mail):
One last thing on the electoral advantage: The Democratic candidate for President has gotten more votes than the Republicans in 3 of the last 4 Presidential elections. And in the one exception to that, 2004, the Republican won by the narrowest margin by a sitting President in close to hundred years. I encourage Republicans to keep believing that they have the "electoral advantage" and keep running on the issues they have run on in the last several national elections. . . .
1.9.2008 2:22pm
Andy Freeman (mail):
> Assault Gun Ban). And then once the law is rendered meaningless

Perhaps Thomas will describe a meaningful "Assault Gun Ban" and its meaning.
1.9.2008 2:26pm
BD:
"Because you have to be a real "nut" to think that the State does not own a woman's uterus . . ."

That's some pretty cheap demagoguery, no? If the state "owned" someone's uterus, it could decide who could and could not become pregnant, when she could become pregnant, and by whom. The issue in the debate is whether the state's interest in the unborn -- not any supposed interest in the woman's uterus -- is sufficient to justify intruding on the woman's privacy in regard to a decision to abort. That's not my characterization of the issue; it's Justice Blackmun's. Your attempt to frame the issue as one of ownership of the uterus is foolish.
1.9.2008 2:29pm
BruceM (mail) (www):
What if the SCOTUS pulls a 5th Circuit "Emerson" and says there is an individual right, but upholds the law and affirms the conviction of violating it. Who wins then? I think that's the most likely result, because everyone gets their way. The SCOTUS has never had a problem saying people have a right/liberty/interest/whatever in doing something protected by the constitution while coming up with a reason why it was reasonable for the government to punish their actions regardless.
1.9.2008 2:31pm
Andy Freeman (mail):
> This country, almost without exception, has the most liberal gun laws of any industrialized society.

Thomas suggests that this is a bad thing, that other countries have better gun laws.

Perhaps we'll hear how those laws have benefitted those other countries. For example, how about some cases where imposition of gun control was associated with a significant drop in crime.

What? There aren't any? Then why are they a good thing.

The US also has some of the most liberal speech and abortion protection laws. Since "they did it" is adequate when it comes to guns, why not other issues? What? On those issues it turns on something other than "they did it"? Fair enough, but why are guns different?
1.9.2008 2:32pm
Carolina:
J.F. Thomas,

I generally enjoy your comments as thought-provoking, but your passing reference to the silly assault weapons ban makes me think you don't know much about guns or gun regulation.

As Andy Freeman suggested, I'd love to hear your thoughts on: 1) what, exactly, is an "assault weapon"; and 2) why these weapons are more dangerous than other types of guns that you apparently believe are ok for citizens to own.
1.9.2008 2:54pm
J. F. Thomas (mail):
My gut tells me that the SC will completely sidestep the individual/collective rights issue and decide the case on some other basis.
1.9.2008 3:01pm
PersonFromPorlock:
J. F. Thomas:

This country, almost without exception, has the most liberal gun laws of any industrialized society.

True, but we could also say "Great Britain has the most liberal press-regulation laws of any industrialized society." The problem is that the laws exist at all, not that they're liberal or illiberal.
1.9.2008 3:07pm
Spartacus (www):
Andrew Cuomo? Andrew has a New York pistol license, which means he's a gun owner:

All derogatory statements about gun owners by proponents of gun control always contian an exception for the speaker himself, his family, and other rich and powerful people, who always reserve gun ownership and carry to themselves.
1.9.2008 3:18pm
Adam J:
Carolina- the answer to 2) is quite obviously, because they are very good at killing alot of people. There are good reasons for not allowing assault gun bans, however questioning their "dangerousness" is not one of them.
1.9.2008 3:23pm
Carolina:
Adam J:

You quite adroitly dodged issue #1: what, exactly, is an "assault weapon." You ought be at least be able to define something before you argue for banning it.

So I will ask again, why are "Assault weapons" more "good at killing people" than other types of guns?
1.9.2008 3:29pm
CrazyTrain (mail):
What if the SCOTUS pulls a 5th Circuit "Emerson" and says there is an individual right, but upholds the law and affirms the conviction of violating it. Who wins then?

I think everyone and noone. Both sides will spin it in an effort to rally their supporters.

I think that's the most likely result, because everyone gets their way.

I strongly disagree with that. The issue is so squarely presented and DC's law is really so strict that it really doesn't even allow the possession of usable guns in the home for self-defense that I don't see the Court finding an individual right and not striking down at least a portion of the law.

My gut tells me that the SC will completely sidestep the individual/collective rights issue and decide the case on some other basis.

I just don't see that happening. I think there is a majority for the individual rights view, and this case presents the issue so cleanly (it's a total ban, it is by the federal government so no incorporation issue, there is clearly at least one plaintiff with standing and there are not other justiciability problems, etc.) that there is no reason not to address the issue. Even for those justices who may adopt the collective rights view (I really have no idea on any of the "liberal" 4 on this issue), I think the issue is so well-presented that they too will want to resolve it.

It would also be incredibly irresponsible not to address the issue --- not that that hasn't stopped the Court before --- that I think all 9 Justices will ultimately feel a need to address it.
1.9.2008 3:36pm
CrazyTrain (mail):
Also, this case is just very, very different from Emerson. There, the Court was dealing with a situation where there was a compelling interest in restriction of the right to bear arms and it was not that intrusive of a restriction that affected the entire populace of a jurisdiction.
1.9.2008 3:38pm
glangston (mail):
I'm with Jim at FSU.

Pro-gun group have been pretty successful. Michigan CCW proves Anti's are Liars Clinton and Obama are viewed correctly as anti-gun. I can't see a pro Heller decision helping them except at the fringe of their supporters. It doesn't seem to be a winner to argue with the facts or the courts.
1.9.2008 3:39pm
J. F. Thomas (mail):
I'd love to hear your thoughts on: 1) what, exactly, is an "assault weapon"; and 2) why these weapons are more dangerous than other types of guns that you apparently believe are ok for citizens to own.

An "assault weapon" for the purposes of the ban should have been limited to simply to a semi-automatic rifle capable of accepting a removable magazine. The addition of the cosmetic details (of which the gun had to have two) made the ban meaningless. Obviously, the difference between the "assault weapon" as the term was used in the ban and the military definition of an assault weapon is that military assault weapons are capable of automatic fire. But of course, even semi-automatic assault style weapons are capable of delivering twenty, thirty or even more high velocity and accurate bullets as fast as the trigger can be pulled (and then reloaded very quickly). Even the U.S. government has soured on true full automatic--the standard issue M-16 only allows a three shot burst from a single pull of the trigger now. That is why those guns are more dangerous.
1.9.2008 3:39pm
Oren:
As Andy Freeman suggested, I'd love to hear your thoughts on: 1) what, exactly, is an "assault weapon"; and 2) why these weapons are more dangerous than other types of guns that you apparently believe are ok for citizens to own.
Well, I'm not Andy but I can start by saying that the following types of weapons should be summarily banned:
(1) RPG's and other anti-tank weapons (TOWs, M136, etc . . )
(2) SAMS and other anti-aircraft weapons (Stingers, etc . . )
(3) Mortars and other portable artillery (M29)

Clearly the right for an individual to bear arms (a right I support) does not extend to ANY weapon. Can we at least agree on these 3 classes?
1.9.2008 3:47pm
J. F. Thomas (mail):
I think there is a majority for the individual rights view

Well first off, I doubt this is true. I doubt most Americans have thought about the 2nd amendment hard enough to make a decision on this issue and poll results would depend entirely on the phrasing of the question. (e.g., I bet you could get polar opposite results depending on whether the NRA or Gun Control Inc. designed the poll). Secondly, the SC could care less what the majority thinks on this matter. I am not naive enough to believe they are never swayed by politics, but on this issue, I think they will actually base it on the law and constitution.
1.9.2008 3:48pm
Carolina:

An "assault weapon" for the purposes of the ban should have been limited to simply to a semi-automatic rifle capable of accepting a removable magazine.


Wow. I give you points for honesty, but that would go far beyond even what places like California do. You've included in your ban even guns like the Ruger 10/22 (a .22 cal plinker which is often a new shooter's first gun). It would be a massive restriction on tons of rifles which are used for hunting and target shooting.
1.9.2008 3:49pm
J. F. Thomas (mail):
Wow. I give you points for honesty, but that would go far beyond even what places like California

Well, you drove me to it. I was going to include, "firearms derived from, inspired by or based on military weapons," but I knew that would lead to endless nitpicking.
1.9.2008 3:58pm
GunOwner:
Most gun owners I know simply vote with their feet. I would never consider living in DC b/c of the ban.

In the Lopez and Morrison dissents, the 4 liberals claimed that passing federal criminal statutes was rationally related to commerce (people choosing not to visit or live in certain areas b/c of crime), thus Congress could pass federal criminal statutes. Will they pull that old chestnut out again for their dissent in Heller and invite Congress to further jump into the gun laws game?

What about the flipside? Does my refusal to live in DC or NYC b/c of draconian restrictions negatively affect commerce, thus the bans have to go? I didn't think states and localities could interfere with interstate commerce. But according to the Morrison and Lopez dissenters, these restrictions DO affect interstate commerce.

What about the Maryland law requiring a spent shell casing be shipped from the factory with each gun sold in MD so the firing pin imprint can be registered in a state police database? Many manufacturers simply stopped selling in MD because of the cost and the hassle. Does that state law impermissably interfere with interstate commerce? (BTW, the program costs MD taxpayers millions and has helped solve a grand total of one case since it was enacted.)
1.9.2008 3:58pm
J. F. Thomas (mail):
You just won't accept a reasonable definition so we end up being overbroad.
1.9.2008 3:58pm
Carolina:
One more thought:

Actually proposing a law along the lines of what J.F. Thomas suggested would, in my humble opinion, set the Democratic Party back 30 years or more. Any politician who voted for such a bill would be radioactive outside of the Northeast corridor and California.

Nothing would unify the various gun constituencies in this country (hunters, target shooters, people interested in self-protection, etc.) like a proposal to ban any rifle with a detachable magazine.
1.9.2008 3:59pm
REPEAL 16-17 (mail):
What if the SCOTUS pulls a 5th Circuit "Emerson" and says there is an individual right, but upholds the law and affirms the conviction of violating it. Who wins then?


If there's a majority for an individual right interpretation of the 2nd Amendment that majority will not give up the win. If there's a majority for the individual right interpretation, then they will declare the DC Ban Unconstitutional so as to show that the 2nd Amendment has teeth.
1.9.2008 4:00pm
Carolina:

Wow. I give you points for honesty, but that would go far beyond even what places like California

Well, you drove me to it. I was going to include, "firearms derived from, inspired by or based on military weapons," but I knew that would lead to endless nitpicking.


But that was my point. What you call "nit-picking", I call logical analysis. The guns that so horrify the Brady bunch and their crowd, are **low power** rifles. The M-16 our army uses today, and its civilian copy, the AR-15, fire a cartridge that is **much** weaker than the one fired by guns from the WWI or WW2 era.

And semi-automatic fire has been around since the 19th century. There's been no sudden increase in semi-auto rate of fire.

So, your average Brady press release is whining about semi-automatic rifles (that have been around for 100+ years), firing a cartridge much weaker than the one used by your average deer rifle.

Thus, your average gun owner asks: "What's the big deal about these particular guns?"
1.9.2008 4:05pm
Matt B:
Not to mention look at how rarely rifles are used in crimes at all compared to handguns, and you wonder why people care so much about assault rifles period.
1.9.2008 4:09pm
CrazyTrain (mail):
JF Thomas, my reference to a "majority for the individual rights view" was to a majority of the Supreme Court. I suspect though that at least a plurality of Americans believe that the right to bear arms is "individual" though I doubt they know much about the precise scope of the debate.
1.9.2008 4:14pm
GunOwner:

Not to mention look at how rarely rifles are used in crimes at all compared to handguns, and you wonder why people care so much about assault rifles period.


Indeed, you rarely hear of a gang-banger knocking over a liquor store with a .50 cal sniper rifle.
1.9.2008 4:19pm
J. F. Thomas (mail):
Thus, your average gun owner asks: "What's the big deal about these particular guns?"

The ability to fire twenty, thirty, or even fifty rounds without reloading. Plus, the 5.56 round, eventhough it is a relatively low velocity and light round, is designed to tumble and distintegrate upon penetration, so it is a very lethal round. And of course, the AK-47 uses a 7.72 (approx .30 cal) round, which is a lot more powerful--approximately the same as your average deer rifle (albeit with a lower muzzle velocity, so it does have less kinetic energy).
1.9.2008 4:21pm
Tony Tutins (mail):

you wonder why people care so much about assault rifles period.

It's what I call Goldilocks gun control. You ban weapons one type at a time. "Assault weapons" were too military-looking. There was a later flurry to outlaw 50 caliber rifles, based on no compelling arguments that I could see. The poor must be kept from buying small affordable handguns. But if 50 caliber rifles are TOO big, and Saturday Night Specials are TOO small, which are the guns that are JUST RIGHT?
1.9.2008 4:24pm
GunOwner:

And of course, the AK-47 uses a 7.72 (approx .30 cal)


7.62x39 (.308)
1.9.2008 4:29pm
J. F. Thomas (mail):
So, your average Brady press release is whining about semi-automatic rifles (that have been around for 100+ years), firing a cartridge much weaker than the one used by your average deer rifle.

True, I am sure that the real concern is the explosion of semi-automatic handguns. It wasn't so long ago that dependable semi-automatic handguns were very expensive and rare. Now every gang-banger has a 9 mm or five.

Of course if we even mentioned banning these weapons, you would scream bloody murder, so of course the mainly symbolic (and toothless) ban on "assault rifles", which also banned the manufacture of magazines for greater than 10(?) bullets was passed.
1.9.2008 4:30pm
Carolina:


True, I am sure that the real concern is the explosion of semi-automatic handguns. It wasn't so long ago that dependable semi-automatic handguns were very expensive and rare. Now every gang-banger has a 9 mm or five.


I don't believe this is the case. The venerable Colt 1911 (.45 ACP) is still the preferred pistol of our special forces troops, and it's been around since 1911. The Browning Hi-Power, a 9mm with a "high-capacity" 13-round magazine, was invented in 1922. I am not aware of anything showing pistols are a lot cheaper now, vs then.

But even if you are right, and pistols with 10+ capacity magazines are a lot cheaper now, so what? I just can't conceive of how limiting criminals to 6-round revolvers would have any appreciable effect on crime levels.
1.9.2008 4:44pm
Tony Tutins (mail):

I just can't conceive of how limiting criminals to 6-round revolvers would have any appreciable effect on crime levels.

Crime will go up, of course. As the opinion points out, Schwarzenegger signed into law a measure requiring handguns to microstamp a unique identifier on each cartridge. This measure prevents crime because the investigators can track down the shooter merely by scooping up the brass. Because revolvers don't throw the brass, they are inherently better suited to crime.
1.9.2008 5:09pm
Armed Ed (mail):
No gun is dangerous to people unless someone points it at people. Why is it that countries with draconian gun control have school shootings (Luxembourg, Germany, etc.)? Because people occasionally shoot people, regardless of the availability of legal guns. The problem with all types of gun control is that it only pertains to those who WANT to comply with the law and own guns. Those who want guns to facilitate murder, robbery, etc. will ALWAYS find guns. The same way that most people could buy marijuana if they really wanted to, most people could buy a gun if they really wanted one. Hence gang members with fully automatic weapons. Gun bans (and bans on certain guns) only serve to ensure that criminals will be the only ones with a guns or a given type of gun.

Furthermore, when you start defining "bad" guns as those inspired by military weapons, where do you draw the line? Military sniper rifles include variants of the Winchester Model 70; handguns include a run-of-the mill Beretta 9mm and the venerable 1911; military shotguns include numerous pump and semi-auto shotguns originally designed for civilian use. Super "bad" guns like the Barrett .50 cal line were almost entirely civilian weapons before the military bothered to even consider them. Would they be banned? The military and law enforcement provide huge business opportunities for gun makers, but the real money is in sales to civilians. Banning such guns would stifle firearms innovation, which would be bad for law enforcement and the military in the long run.
1.9.2008 6:06pm
Waldensian (mail):

And of course, the AK-47 uses a 7.72 (approx .30 cal) round, which is a lot more powerful--approximately the same as your average deer rifle (albeit with a lower muzzle velocity, so it does have less kinetic energy).

This is one of those moments where you reveal that you know something about firearms, but not enough to have credibility in arguments about regulating them.

Ballistically, the AK-47 round is roughly comparable to the old 30-30 Winchester, which historically was indeed a popular deer hunting round -- but for the most part only on the East Coast, where distances and critters are generally smaller.

However, I don't think you can possibly say that the "average" deer rifle these days is comparable to the AK, particularly in locations other than the East Coast. Most deer rifles today (and probably most in the past as well) are/were far more powerful, and are really comparable to WWII battle rifles. For example, I hunt with a Remington 700 in .30-06, an extremely popular deer round that was, of course, the round of choice for the U.S. military for many, many years. This is a very typical setup for deer.

The overall point being that, when you get right down to it, so-called "assault weapons" are different from other rifles only because they're scarier looking. In particular, and compared specifically to the "average" deer rifle in the U.S., the AK is lower powered and much, much less accurate.

And why on earth would you want to ban the Ruger 10/22?
1.9.2008 6:46pm
Jagermeister:
<blockquote>
Plus, the 5.56 round, even though it is a relatively low velocity and light round, is designed to tumble and distintegrate (sic) upon penetration, so it is a very lethal round.
</blockquote>

You obviously haven't read Dr. Fackler's research. The 5.56 wasn't <i>designed</i> with the characteristics that you ascribe. Tumbling is a product of under-stabilization (itself resulting from a combination of twist rate, velocity, and bullet weight and ballistic coefficient), and fragmentation is an unintended consequence of the cannalure. (IIRC, the 7.62 x 51mm Nato round has even worse fragmentation characteristics).

Also, whereas the standard 7.62 x 51mm has a muzzle velocity of about 2,800 fps, the 5.56 x 45mm is spec at 3,250 fps, making it a <i>higher</i> velocity cartridge. In any case, the terminal performance of the 5.56 vs. the 7.62 is almost completely a function of the cartridge, and has very little to do with the rifle itself.

If you know so little about the subject, why do you bother people with your ignorant commentary?
1.9.2008 7:32pm
eric (mail):
I do not understand this lethality argument. The most lethal gun in terms of how easily it kills a person is a shotgun with buckshot, at least at close range where the majority of shooting occur.

If you are far away from your target, a high powered bolt action would be great.

If you want to do a drive-by, I think a shotgun would also be the best choice. It would be almost impossible to miss your target. A pump can be fired very rapidly if you know what you are doing.

Handguns are only more concealable, never more lethal.

Why aren't gun control advocates trying to ban shotguns?
1.9.2008 8:34pm
therut:
How many fireamrs used in the military were first civilian firearms? Mr. Thomas wants only to ban those of military origin and lineage. I think he does not know the history of firearms very well.
1.9.2008 9:13pm
Tony Tutins (mail):
Just to point out that in Australia a pump shotgun is treated as a semi-automatic weapon, a Category C weapon which can be owned only by farmers or people who shoot for a living. (Exceptions: competitive clay target shooters who belong to a recognized club and have been shooting since before 1996; collectors with inoperable weapons.)
1.9.2008 9:48pm
dwlawson (www):
But of course, even semi-automatic assault style weapons are capable of delivering twenty, thirty or even more high velocity and accurate bullets as fast as the trigger can be pulled (and then reloaded very quickly). Even the U.S. government has soured on true full automatic--the standard issue M-16 only allows a three shot burst from a single pull of the trigger now. That is why those guns are more dangerous.

How about a 12 ga. pump shotgun (7 round capacity) with 3" 00-buck? Each 00-buck shell contains anywhere from 8 to 15 .30 cal pellets (bullets essentially).

Even a pump action shotgun such as described above can place a staggering amount of lead down-range in a short time.

It would be interesting to set up a damage capability test. Set up a bunch of man-sized targets in a crowd-type situation. Use a variety of weapons and a small amount of time.

I'd be willing to bet that the plain old shotgun shows up at least as devastating if not more so than most "assault" weapons and maybe even rivalling the "dreaded" full-auto small arms (leave ma deuce home).
1.9.2008 10:27pm
dwlawson (www):

True, I am sure that the real concern is the explosion of semi-automatic handguns. It wasn't so long ago that dependable semi-automatic handguns were very expensive and rare. Now every gang-banger has a 9 mm or five.


And we can blame the War on Drugs for them being able to afford them.

Seriously, I just bought myself a Smith &Wesson M&P .45 and my wife the same in 9mm...both guns were each close to $700. I wonder at the economics of straw man purchases of these weapons.
1.9.2008 10:33pm
Brooks Lyman (mail):
Several points:

1) The 5.56x45mm (.223 Remington) has about the same power as the 7.62x39mm which, indeed, has about the same power as the 30-30 of lever-action deer rifle fame....and a lot less power than typical military (or former military) cartridges such as the 7.62x51mm (.308 Winchester) or the 30-06 Springfield (the "06" stands for the year it was adopted - 1906 - to give some idea of the period we are talking about). Work by the Germans during WWII led to the development of selective-fire assault rifles firing firing a smaller and less powerful cartridge. The Russians took the German work to heart and developed a number of assault rifles firing lower-powered cartridges, ultimately leading to the AK-47 and its 7.62x39mm cartridge. The US took longer and eventually developed the M16/AR-15, which, while more prone to jamming in dirty conditions than the AK, has far greater accuracy potential, and is currently very common in high power rifle match shooting. There are several military advantages to such cartridges: they weigh less, so soldiers can carry more ammo; they have lower recoil so that soldiers can more easily hit what they are aiming at; and they are less lethal than more powerful cartridges, which is a military advantage, as a wounded man can take other men out of battle to care for him, while dead men can be ignored until after the battle.

2) Therut - While the technology of various firearms may be either military or civilian, the adoption of a particular firearm by the opposite group tends to vary, for reasons not always clear. I believe the first practical selective fire military rifle was the Mexican Mondragon, put into service about 1908; at the same time, various manufacturers were making semiautomatic civilian rifles and shotguns. The M1 Garand and its successor, the M14, were never very popular as civilian rifles except as target rifles, until Ruger came out with their Mini-14 firing the much smaller (and less powerful) .223 (5.56x45mm) cartridge. On the other hand, the AR-15 style rifles have become quite popular for both target shooting and hunting (mainly varmint, although some states allow it to be used for deer (remember, it's as powerful as the old 30-30, just needs the correct bullet for deer). Generally, it's hard to say which came first: civilian chicken or military egg, particularly when one is talking about basic technology rather than specific styling and cosmetics.

3) My understanding is that Fackler is correct on the matter of tumbling and wound ballistics. In addition, if a bullet strikes bone as against flesh, it's almost sure to tumble, whether one is talking deer or enemy soldiers. The moral is, don't get shot.

4) For some reason, the gun-banners seem to think of shotguns as innocent tools of bird hunters and trap and skeet shooters. The velocity of a 12ga may not be very high compared to the 5.56x45mm, but it puts out a shot load of about an ounce, from a bore almost 3/4 of an inch in diameter. A fearsome weapon, indeed. But, as the man said, the Second Amendment ain't about duck hunting. That said, the federal government banned (for all practical purposes) sawed-off shotguns in 1934, presumably because of their lethality combined with their ease of concealment. At the same time, they also "banned" machine guns. The "ban" isn't actual, but the guns are registered with the federal government, and there is a $200 transfer tax on their sale. In addition, most states have special machine gun licenses, which are not easy to get. I have a friend who had machine gun license #3 in a large town in Massachusetts; another friend worked for Savage Arms designing machine guns and couldn't get a machine gun license in the town where Savage had its factory....
1.9.2008 10:46pm
Dave D. (mail):
...Mr. Thomas is a stalking horse of dubious integrity. He argues agaunst the ownership of firearms with little knowledge and even less credability.
1.9.2008 11:48pm
Andy Freeman (mail):
> An "assault weapon" for the purposes of the ban should have been limited to simply to a semi-automatic rifle capable of accepting a removable magazine.

Okay - that's the "meaningful" definition, but we're still lacking the second half - why is banning those guns good.

Note that their properties (fast firing and reloading) aren't necessarily enough. Most of us define good in terms of consequences. For example, "If we ban those guns, certain kinds of criminal acts won't happen."

I'll note that Patrick Purdy, the classical argument, shot every few seconds. I can match his rate of fire with a single-shot rifle. Purdy had the same problem I did - if I'm shooting that fast, I'm rarely hitting, and neither did he.

In other words, Purdy's ability to shoot quickly actually made his attack less lethal. Isn't that a good thing?

Also, as others have noted, Thomas' claim about when such guns became available is wrong. (John Browning's father invented some removable magazine fed weapons, and he wasn't the first.)
1.10.2008 1:52pm
David W. Hess (mail):
One beneficial effect of law banning "a semi-automatic rifle capable of accepting a removable magazine" would be a return to fixed magazine rifles using clips to hold ammunition and ease reloading like the M1 Garand allowing those unfamiliar with firearms using the term "clip" to be correct for once.

At least in the case of the Garand, I anticipate that a situation similar to the one with large capacity magazine limits could arise where a preference for a larger and more lethal cartridge substitutes for a high magazine capacity. If I am limited to 10 rounds of 9mm instead of 15, then 10 rounds of 10mm, .45, or any number of significantly more powerful cartridges becomes attractive.
1.10.2008 10:26pm
K Parker (mail):
J.F.,
It wasn't so long ago that dependable semi-automatic handguns were very expensive and rare.
You are way older than I would have guessed--I hardly know anyone who was around in 1911, much less that refers to that year as "not long ago".

eric,
Why aren't gun control advocates trying to ban shotguns?
Certainly there's a subset of them that do want to ban shotguns, including California concealed-carry permit holder Sen. Feinstein. But they realize that banning shotguns will be the hardest "sell" of all and thus say little about it now.
1.11.2008 12:54am
zippypinhead:
I usually just "lurk" on Volokh rather than post, but I can't resist making some observations: If Heller goes the way most commentators are predicting, another 1986-style "assault weapons" ban may be doomed. A reasoned analysis of either crime statistics or ballistics would conclude that banning "assault weapons" accomplishes nothing. They are almost never used in street crimes, and the .30 caliber battle rifles used by the U.S. Army from before WWI until the mid-1960s are more lethal than any AK or AR-style weapon (just ask our Special Forces in Afghanistan or Iraq why they've pulled 1950s-era M-14s out of storage to replace 5.56mm M-4s and M-16s). And the more specific criteria proposed for "assault weapon" bans make no sense if the S.Ct. adopts even a rational basis level of scrutiny for Second Amendment restrictions:

1. The "semi-automatic/removable magazine" ban argument is a red herring -- a trained user can fire 6 rounds from a revolver, speed-load and fire another 6 rounds, in 3-5 seconds. Cho, the Virginia Tech shooter, might have done more damage with a brace of more powerful .357 revolvers than he did with his 9mm Glock and .22(!) Walther, as he fired only 1 shot every 3 seconds on average during his 9-minute rampage. The semi-auto argument is even sillier with rifles: To counteract the lack of crime statistics, ban fans often cite D.C. snipers Malvo and Mohammed's use of a Bushmaster AR-15 clone to show how "dangerous" semi-auto rifles are. However, each of their killings were accomplished with a SINGLE shot -- from a functional standpoint they could have made the same shots with a modern in-line muzzleloader. Why did they use a Bushmaster? It's accurate (the AR-15 class is the most common competitive match target rifle today), the ammo is readily available, and if properly maintained it's a reliable, easy-to-use weapon. Much like your average bolt-action deer rifle. Most importantly, they used the Bushmaster because a gun shop violated EXISTING laws with sloppy inventory and sales practices, ultimately letting it fall into Mohommed's hands.

2. The "military design origin" ban criteria is also unworkable. A 1903 Springfield (WWI/WWII battle rifle) is a bolt-action military design that has a similar action as the modern Remington 700 deer rifle. Both of which use .30-06 rounds. Shall we ban the 1903 but not the Rem 700? The 1921 Thompson submachinegun that was popular among Prohibition-era gangsters was not adopted by the Army until 1938. The Mossberg 500/590 pump action shotgun is sold in both civilian and military versions that are mechanically indistinguishable. The Beretta M9 pistol that has been the standard sidearm of US forces since the mid-80s? Based on a design long available in the civilian market -- incidentally the 9mm Parabellum round it fires was designed for use in a Luger patented in 1898. Even the M-16 is based on the Armalite AR-10, a .30 caliber rifle that was rejected by the Army in the 1950s and was available to civilians for several years before the military ultimately adopted a variant of its 5.56mm AR-15 little brother.

My predictions: S.Ct. will almost certainly find an "individual" right protected by the Second Amendment, for all the reasons stated in previous posts. But a majority will likely adopt an "undue burden" analysis that preserves most, but not all, current forms of gun control. After the dust settles, there will be no D.C. handgun "ban," and the District will be forced to enact at least a narrow "may-issue" (not "shall-issue") concealed-carry permit law. Background checks, registration, and perhaps even a mandatory training requirement for mere ownership will survive. But "assault weapons" cannot be defined distinctively enough from other firearms to be broadly prohibited without some other plus-factor that isn't immediately obvious. The rather absurd U.S. v. Miller "well regulated militia" basis for deciding the types of firearms that can be banned will eventually be discarded, but the NFA will probably survive, since full-automatic weaponry may be enough of a bright line to withstand a rational basis/undue burden analysis challenge to the law's taxation and registration scheme. Although I'm curious to see how the current BATFE refusal to license new machineguns under the NFA will fare, given the obvious abuse of discretion issues.

Then again, I also once predicted the Redskins would play the Steelers in the Superbowl this year...
1.11.2008 6:07pm
Waldensian (mail):

If you want to do a drive-by, I think a shotgun would also be the best choice. It would be almost impossible to miss your target.

That second sentence is just totally wrong. It is true that the shotgun, the "king of the street," generally is a fearsome weapon for shooting people at close range. And it is true that the shot pattern is wider than a bullet, obviously. But the idea that you don't have to point it very accurately to hit something is just silly.

I invite you to come skeet shooting with me sometime.
1.11.2008 6:31pm
zippypinhead:
oops... I just re-read the beginning of my recent post. I meant to say "1994" assault weapons ban. No idea where the "1986" reference came from, unless it was the gremlins in my keyboard or I was secretly thinking of the 1986 amendments to the 1968 GCA. And to think, once upon a time I actually knew this stuff...

Next fearless prediction: Eventually the pro-individual rights interpretation of Heller that the S.Ct. will hand down will be incorporated to apply to the states, like the bulk of the Bill of Rights. But not in Heller, since D.C. is a Federal enclave and incorporation is not before the Court. But, as my earlier post predicts, this will not be the end of all gun control, just the more extreme subset that won't pass muster under a relatively permissive "undue burden" test. But goodbye Morton Grove...
1.11.2008 6:44pm
Rich Rostrom (mail):
If the Court finds for Heller, this could be a bonanza for Giuliani. He can then say: "Look, it doesn't matter what I think about gun control any more. The Court has declared it a matter of constitutional rights. I would not waste any effort trying to impose restrictions which the Court would just strike down anyway, even if I wanted to."

A Democrat could try the same thing, but it would deeply offend some of their key constituencies, and it wouldn't help much on the other side.
1.11.2008 11:42pm