The Political Implications of the Heller Opinion -- Please Comment:
Sorry our comments were down most of the day; if you'd like to comment about the political implications of the opinion — what it's likely to mean for the election, for the gun rights and gun control movements, and the like — please comment here. If you'd like to comment about the opinion as such, please do so on this thread below. If you'd like to comment about the legal implications of the opinion, such as what future challenges are likely to arise, how the opinion's reasoning may affect other areas of the law, and the like, please do so on this thread below.
But I think the decision as it actually came down will be neutral. It will help McCain marginally by bringing guns back into the national discourse generally, but the decision also takes an awful lot of heat off of Obama. Obama is free to cast Heller in a fairly narrow light while supporting the decision, and will still be able to argue for many of the common sense gun restrictions. This position seems ideal from the point of view of the Obama camp.
I noticed in another post that you made the claim that this decision would raise the specter of Obama appointing an anti-gun Justice to the Supreme Court. I'm not discounting the
possibilitynear certainty that Mr. McCain will make that argument, but I think it's an irrational fear.From my blog post on the opinion (had to write my own post with comments being dead most of the day here):
What do you think?
I got a semi-automatic that spits next time if you talk (you talk)
I got a hundred guns, a hundred clips, Nigga I'm from New York (New York)
I got a semi-automatic that spits next time if you talk (you talk)
Comin' to da hood near u.
1. Barack is now a "life-long supporter of the second amendment" and
2. If he's elected, you don't have to worry about your gun rights.
I would expect that any gun-control-friendly judge up for nomination would likely follow a similar strategy as the recent conservative nominees - make a few general statements about the importance of stare decisis and respectfully refuse to answer any questions of actual interest.
-m@
Makes sense. At least now there's a convenient label for a gun rights litmus test, a la Roe.
Simultaneously, the conservative Fox News as well as the entire conservative talk radio circuit and blogosphere spent all day detailing Obama's flip flops on the issue. Of particular interest, in view of his sudden support for Heller, was Obama's 2004 vote in the Illinois legislature against allowing a state self defense exception to being prosecuted under local gun control ordinances like those of Obama's Chicago.
Does anyone think that this coordinated response is an accident?
Somehow, I think the "bitter" folks at the NRA "clinging to their guns" have long memories and are not fooled by the opportunistic Obama flip flops.
This decision decided three things:
1: The 2nd Amendment is an Individual right.
2: It is part of a right to self defense (so much for the "I support the rights of hunters, but not the rights of city dwellers to have guns to protect themselves from crime).
3: The DC law is struck down.
It did not address the following:
1: Incorporation. Does the 2nd protect everyone, or only those people who live in DC?
2: Coverage. What are "specially dangerous" guns?
3: Licensing: Are licensing / registration laws really Constitutional (Scalia explicitly said they weren't considering that issue)? How restrictive can licensing be?
You have to wonder. Was Scalia silent on those because they simply weren't relevant to the case? Or because one of the five would have defected if he'd gone farther? In any event, if anyone in flyover country wants that ruling to apply to them, they want McCain appointing future Justices.
Now that the courts have taken over in this area, the country will, over the course of a few decades, end up with gun laws that conform to no more than the Supreme Court mandated minimum of protection. And even on the state court level, the tendency towards merging all interpetations to conform to the federal one will be just too much of a temptation for state judges. Take the exclusionary rule. It's been the law in Michigan under its state constitution for about the same time as it's been the rule in federal court. During all that time, no one remotely suggested that under the state constitution a "good faith" exception could come into play. Enter the US Supreme Court. In 1961? Mapp v. Ohio applies the rule to the states. In the 1980's, we get a good faith exception under federal law. And then the Michigan Supreme COurt suddenly discover in the mid to late 1990's that rule also holds true under the Michigan Constitution.
All in all, I think historians in a few decades will look upon this day as the beginning of the end for gun rights.
Odd. I was thinking it would have the opposite effect. Now that the individual rights view is settled law, I was thinking that single-issue gun rights voters would be more likely to stay home, since the issue of heavy gun controls and/or gun bans is off the table.
Well, given that the only likely SCOTUS retirements in the next four and a half years will be from the dissenters in Heller, that argument probably won't go very far. Now it is possible that one of the majority gets hit by a bus or has a heart attack (am I the only one worried about Scalia's weight?), it would likely mean that the balance of the court would be shifted back towards where it was prior to O'Connor's retirement.
I disagree with Bart that there is some vast, Right Wing konspiracy just waiting to leap into action. Do not confuse correlation of like-minded people with a konspiracy, unless you wish to consider Kos, Soros, the NY Times et al as an equally vast Left Wing konspiracy (which I suspect you don't).
This decision will enable pro-choice-on-guns people to take the offensive not only in Chicago, but some other places as well. Which means that the left/liberal gun control forces will be playing defense, for the first time in 40 years.
Longer term, I expect fights over Scalia's remarks about M-16's, it's really annoying to find USSC Justices who seemingly can't be bothered to actually do the level of research that is required of tens of thousands of gun owners who don't even have a JD, i.e. to actually read NFA-34 and associated laws in order to understand them.
There is a possible lawsuit over discretionary CCW in California, as well, that may see some fallout from Heller, and possibly some people might want to push back at the states of New York/Jersey over their licensing schemes.
1)Gun control is an electoral loser, and has been for twenty years. Absolutely no one has won an election in that time by supporting gun control.
2)Gun control has literally never been effective in the U.S., to the point where no one can show any decrease in violent crime due to it. Ever.
and
3)The Heller decision gives the Democratic party a unique opportunity to formally disassociate itself from gun control at literally no cost.
In my ideal world, the Dems would adopt a platform plank affirming individual right (as unanimously affirmed under Heller) and forswearing any inclination to abridge them. It seems unlikely, but it's all upside as near as I can see.
1) Those who were apoplectic yesterday about Justice Kennedy and his opinion in Kennedy v. Louisiana should be at least somewhat mollified by his vote on Heller. I disagree strenuously with the Kennedy rationale but if I had to choose between the two cases for Justice Kennedy's vote, I would choose Heller.
2) Heller demonstrates better than any other case that I can think of this term that elections do matter. Can anyone with a straight face suggest that a hypothetical President Kerry would have appointed justices who would have joined Justices Scalia, Kennedy, and Thomas on this case?
Even had Justice O'Connor delayed her retirement hoping for a Republican President to appoint her successor (which I doubt), Chief Justice Rehnquist would have still died.
So 50,000 votes changed in Ohio in 2004 (or 400 votes in Florida in 2000), and Heller would likely have been 6-3 in the opposite direction.
.
Not that I'm inclined to vote DEM in any event, and not that strong 2nd folks (as I think I am) generally vote DEM, this decision "hardens my heart" against Democrats. 4 justices think that banning possession of a personal firearm in ones home is constitutional? That dung is going to spread pretty far, in my book.
.
Schumer and Feinstein, Lautenberg and others, I sort of thought there was a backstop in SCOTUS. No more. Blinders are off. DEMs are enemies of the 2nd, and I will NEVER see them otherwise.
.
A 1 for 1 "lib for lib" swap in SCOTUS is not good enough. 5-4 is too close for comfort, and even the 5 find plently of "reasonable" restrictions where I see "unreasonable."
.
The AWB, being a ban on looks rather than on function, was "tolerated" and derided as silly - because the same function can be obtained without the scary look.
.
But a total ban on handgun possession, well, that's a functional ban - and methinks the backlash of a rapid and wide spread of handgun bans might have political fallout.
.
Maybe it wouldn't. Maybe the American public is ready to go the way of the Aussies and UKs.
.
If so, well, it breaks my heart. But I guess I'd rather know the truth than delude myself that this is "the home of the free, who have ultimate say so over their government."
On the assumption the D.C. local government is basically unanimous in its support of Obama, they're not doing him any favors. Keeping ridiculous positions like this in the public's eye this may force Obama to continue scrambling to distance himself from his past support of similar restrictions, lest he alienate pro-Second Amendment voters he needs in the general election. And eventually all the flip-flopping will catch up with him.
The 5-4 nature of the court's split probably makes this a net positive for McCain. Having to rely on Justice Kennedy's vote, in a close decision, makes SCOTUS appointments an issue in the presidential campaign. The closeness of the decision is an eye-opener in itself. The fact that the minority believes that the 2A guarantees an individual right, but one that can be rendered functionally meaningless by any city council, will motivate some nose-holders to vote for McCain. I ought to know, I are one.
The Republicans will attempt to damage the Democrats with the forthcoming lawsuits, trying to get them to admit that there is no gun control measure which they really believe is unreasonable.
I don’t think that the guns issue will go away. Roe obviously did not take the abortion issue out of politics; it only federalized it and increased the importance of the presidency. On balance IMHO it benefitted the Republicans. I expect the same will happen with Heller. The best thing the liberal justices could have done was concur with Scalia, and put this issue to bed for good. What would be so hard about saying that people can have a revolver in their house? Like abortion, gun control is a Democratic gift to the Republicans that keeps on giving.
I really hope the NRA is not seduced into becoming a litigation boutique, instead of the excellent grassroots organization it has historically been. The courts are a broken reed.
.
They are Democrats. What do you expect?
.
I'm not trying to be cute, funny, cheeky, etc. I am seriously concerned that the Democratic party supports gun grabbing by any force necessary, political, legislative, and judicial activism.
.
Have you heard a Democrat express any concern whatsoever that this came out 5-4? The ones I've read are either "this is an okay decision, 'cause it admits reasonable limits" or "it went the wrong way"
.
None of them have any sense of alarm at the closeness of the decision. Fair enough. I noticed, and I am from here on out, alert.
.
I agree. If this had been 8-1 or 7-2, I'd come away with a completely different impression and set of concerns.
.
I'm glad they spoke their minds honestly though.
.
That fact (ok, it's my speculation) stands independently of the Heller decision. 2nd amendment folks are long ago wise to the double talk of "Reasonable restrictions, like Chicago has, don't infringe a constitutional right."
First, it provides a great opportunity for ads showing Obama flip-flopping, sidestepping, nuancing, and "clarifying" prior stands on a fairly binary topic. Obama has claimed, as one who teaches constitutional law, to be an expert on the area so lack of understanding provides no refuge.
Second, the visibility of this will make it very hard for Obama to continue to sidestep addressing the gun control issue concretely during debates (sadly, Tim Russert won't be there to nail him down -- but lesser moderators can do something this simple). Obama's best bet was to avoid debate on this issue because his history and his true beliefs won't play well with "rural" moderate Democrats which are one of the groups that McCain will target.
However, most importantly, this decision allows McCain to underline the fragility of the court's balance and how that balance could be changed to either gut Heller or to strengthen it in coming years as the level of scrutiny and incorporation issues are resolved slowly and painfully. It's very easy to make the case that Obama supports strong gun control and most of McCain's failings in this regard are tangential rather than central. Every assertion by Obama to fight this perception lead him into treacherous waters of careful triangulation which is very difficult to get right every time.
Heller also gives gun rights advocates the "audacity of hope" that the long battle can be won decisively via the SCOTUS. Before today, this possibility was far less tangible and seemed out of reach but now they can whiff the aroma of possible victory in the air. By leaving much unresolved, Heller will serve to reinvigorate gun rights advocates while putting gun control advocates on the defensive. That seems positive for the gun rights position - esp. when coupled with the reality that for every "single issue voter" who selects a candidate based largely on their potential to advance gun control, I believe there are many who select a candidate based largely on their potential to advance gun rights.
If anything happens to one of the 5 conservative justices, an Obama appointed replacement will move the court way to the left of where it was before O'connor's departure. All sorts of precedents O'connor supported are in jeopardy. A few that come to mind- enforcing the outer limits of the commerce clause, eleventh amendment immunity, the anti-commandeering principle in the Brady law case, congruence and proportionality as the touchstone of section 5 analysis, and school vouchers. So for someone agnostic about the rightward expansion of the court, but opposed to a court substantially to the left of O'connor, McCain is a much better bet than Obama.
Take a step back and look it the narrowness of the decision - it reflects the will of our society in the same way that the continued legality of abortion does.
I frankly don't see a retirement of any justice changing the fact that the 2nd Amendment provides the right to keep and bear arms, all we are dickering over is the restrictions involved. A decision in the opposite direction on either gun rights or abortion leads to rioting and chaos across the nation.
I do not see a threat to Roe V. Wade in McCain, nor do I see a threat to the 2nd Amendment in Obama. I just don't see any court in the near future throwing us into certain civil war over a culture clash.
I'm not a Democrat (not that there's anything wrong with that...), but this is a specious argument. Only two of the incumbent Justices were Democratic nominees, and both of those were confirmed by nearly 90% (or more) of the Senate votes (meaning nearly all the Republicans, as well as the Democrats). The other two dissenters were Republican nominees, and likewise were confirmed with 90%+ majorities.
So, don't bother blaming the Democrats, alone, for the current makeup of the Court. The Republican Party has had just as much to do with it.
One thing is certain, though, and certainly a concern...given the recent brouhaha and battling over judicial nominees, it's likely that whoever gets nominated will certainly not tell the Senate where they stand on any particular case, let alone a controversial case or a narrowly decided case, if they have any actual intention of making it to the SCOTUS.
I am a single issue voter, not guns, the court. I want a president who would appoint Janice Rogers Brown to the court and make it stick.
I don't think that is McCain or Obama. Certainly my inclinations and perhaps those for whom the court is an issue, but not the only issue are not offbase in saying McCain would be the least worst choice. See, e.g., his speech to the federalist society a year and a half ago.
But long horizon folks have to take to heart arteclectic's point about the partisan labels associated with the sitting justices upon appointment.
Taken more broadly, is the damage to the Reagan brand done by Bush and sure to be done by McCain worth accepting in return for maybe a single appointment.
Yes, the court is close, but if McCain's presidency adds to the confusion and disarray in Republican ranks the way Bush's has, it might mean the loss of opportunity for multiple appointments later, i.e. ruin the chances of real and apparently capable Republican standard bearers like Bobby Jindal.
Anoymice, you're a dreamer or possibly deluded like Carl Bogus, my fellow Rhode Islander who believes the french revolution is in the offing:
(actually I don't think he believes that at all, I just think he believes he has a clever way to hoist conservatives on this question, he is a progressive gun control uber alles kind of guy, convinced that legal guns are a health hazard, and I have seen no evidence whatsoever that he has the least conservative predilection himself).
.
I don't care who put those Justices on the Court - I'm looking forward, and when I see a proponent of gun-control, it is usually a DEM. Schumer, Feinstein, Lautenberg, etc. Obama doesn't fool me - he thought the DC ban was constitutional too.
.
No doubt, you can point to Republicans who hold positions on the 2nd that I find objectionable too - but when I compare the two parties, the DEMS are worthless as supporting the 2nd as protecting the sort of individual right that I believe is ESSENTIAL to a the security of a free state.
.
Anyway, the probability dice on the 2nd says NAY to electing a DEM. I'll concede that electing a GOP is "no guarantee" (not even close to a guarantee) - and likewise on the left, no guarantee that a DEM will appoint a 2nd-hostile Justice.
.
At any rate, I appreciate you sticking up for DEMs, really, I do. But you haven't moved my heart AT ALL.
Clip-loaded semiautomatic handguns? What, like the 1896 Mauser "Broomhandle"? ;)
What’s more repugnant to constitutional democracy and the rule of law – not to mention traditional conservatism – than the idea that the people should be armed to potentially go to war with their own government?
Oh my gosh. Has Carl Bogus never heard of the American Revolution?
Along the lines of the WaPo story about the DC semiautomatic ban (which will make a lot of real "gun enthusiasts" snicker), a Reuters story on the decision is firing up the right edge of the blogosphere against Scalia. Reuters correspondent James Vicini wrote:
I've seen a bunch of blogs insert quotation marks in there and take that as a literal quote from Scalia. They're going crazy about the idea that Scalia thinks this is a "new right" that has just "now" been generously granted to us by the Court. Just goes to show once again why you should never rely on mass media reporting on legal issues.
Yeah, because we all know wire services are far more reliable than the Supreme Court on the most arcane details of legal and historical interpretation. Sheesh!
They've had draconian gun control and hellish gun violence.
This decision will change the single most important variable.
And then we'll see.
Strong changes in one direction or the other will bring strong pressure on the entire debate. No more regression analysis a la John Lott. We have PROOF. Or not.
.
Not on any other kind of issue, or even a fact, for that matter. "President Bush asked the crowd to keep President Clinton's well being in their hearts, and President Clinton was going in for hear surgery, and the crowd booed."
.
See also, recent hubub on Judge Kozinski.
.
As far as I'm concerned, when they get something right, it's an accident.
The idea that the government does not have list is important for liberty. People have discussed the burial of weapons to prevent the loss of guns.
The gun rights community now has momentum from a court perspective and a lawsuit against Chicago has been filed. This decision will be used as a springboard to get rid of a myriad of gun restrictions.
No one expected this case to get rid of the 1968 law and the 1934 machine gun law.
If this case was 7-2 then gun rights people may have relaxed and not think a McCain victory is important. But at 5-4 those people know they just missed a bullet.
McCain wisely immediately went after Obama's failure to sign on the case in a brief and went after the similar Chicago ban. The flip-flop of Obama is becoming visible to those in the middle who have not paid that much attention.
All those Democrats that voted for Hillary in the Appalachian states have all the reason in the world with this decision and Obama's bitter comment to vote for McCain.
So in balance this helps McCain. More importantly this is the first roll back of gun control on the judicial front. With both legislature success in the states and this decision more Americans will be able to enjoy the Second Amendment.
It could just as easily have gone the other way. As it is, Heller is (as the saying goes) better than a poke in the eye with a sharp stick. But not by much. It threw out a draconian ban IN D.C. and ONLY in D.C. It didn't apply that ruling to the states. It didn't establish much of anything else, and explicitly hinted that most existing gun control laws would probably pass muster if challenged.
And that's the BEST the court could manage with a 5-4 majority? Clearly, the pro-RTKBA crowd needs all the help we can muster. And that includes, at the very least, not letting a confirmed gun grabber like Obama get a chance to nominate Supreme Court justices.
So this single-issue voter, who has plenty of antipathy toward McCain, will nonetheless vote for the man in November. And I don't think I'll be alone in that.
[Important Note to Helpful Readers: If we have confusing typos and especially ugly formatting errors, such as an unclosed underline or bold tag, we'd love to hear from you about them -- but please e-mail the author about this, rather than leaving a comment. We often won't read the comments for a while after the post, and if there's a glaring formatting error, we'd see it quickly when we revisit the post, even without the comment; and in any event the comment likely isn't going to be that helpful to your fellow comment readers. So please e-mail us directly about glitches like this. Thanks!]
Comment Policy: We'd like the posts to be civil, of course (no profanity, personal insults, and the like), but we're also hoping that people try to be as calm, reasoned, and substantive as possible. So please, also avoid rants, invective, substantial and repeated exaggeration, and radical departures from the topic of the thread. Sticking with substance -- and staying on-topic -- will make the comments more helpful to other readers, and more pleasant.
As editors, we reserve the right to delete posts, and even to kick out posters, though we hope that both of these will be exceptional events. (We also reserve the right to be busy with other things, and therefore (1) not remove all the posts that might merit removal, and (2) ignore demands such as "You should remove A's posts, because they're just as bad as B's!")
Here's a tip: Reread your post, and think of what people would think if you said this over dinner. If you think people would view you as a crank, a blowhard, or as someone who vastly overdoes it on the hyperbole, rewrite your post before hitting enter.
And if you think this is the other people's fault -- you're one of the few who sees the world clearly, but fools wrongly view you as a crank, a blowhard, or as someone who overdoes it on the hyperbole -- then you should still rewrite your post before hitting enter. After all, if you're one of the few who sees the world clearly, then surely it's especially important that you frame your arguments in a way that is persuasive and as unalienating as possible, even to fools.
Our goal is to provide an interesting and pleasant environment that can help inform readers. To do that, we'll occasionally have to exercise our editorial discretion. Think of this as an in-person discussion group, where having different voices is critical to a great conversation -- but where sometimes the leader has to deal with cranks who sour the conversation more than they enliven it.
Naturally, there's always a risk that this discretion will be used erroneously, no matter how well-intentioned the editor. But discussion groups (especially on the Internet, but also off it) generally need an editor who'll occasionally make such judgments.
And, remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.