Redstate

Posted at 12:30am on Jun. 28, 2008 Post-Heller

By Pejman Yousefzadeh

What comes next now that the Supreme Court has handed down its ruling in Heller? Professor Randy Barnett has a good editorial that lays out the nature of the legal fights ahead:

Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to "incorporate" the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.

My prediction: This ruling will eventually be extended to the states.

Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential "rationality" review advocated by Justice Stephen Breyer.

Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate "time, place and manner" regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.

My prediction? Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed - whose aim is to impose an "undue burden" by raising the cost of gun production, ownership and sale - would likely be found unconstitutional. All gun regulations - for example, safe storage laws and licensing - will have to be shown to be consistent with an effective right of self-defense by law-abiding citizens.

If any of these things happen, then Heller's status as a truly consequential ruling will only be emphasized, of course.

Read on . . .

Posted in D.C. v. Heller | Law | The Second Amendment — Comments (4)/ Email this page » / Read More »

Posted at 12:15am on Jun. 27, 2008 The Political Ramifications Of Heller

By Pejman Yousefzadeh

They are spelled out by Eugene Volokh:

There's no substitute for winning elections. The 5-4 conservative-liberal lineup (admittedly, with one of the four being a Bush, Sr. appointee) shows this. These issues aren't just about winning elections, as I'll note below. But winning is part of it. My guess is that, if the McCain campaign is smart about this, it can make this an important linchpin of its fundraising ("imagine what would happen to your rights if Justices Scalia and Kennedy retire soon and are replaced by Barack Obama"), of its attempts to energize the base, and of its attempts to bring over swing voters in swing states where the middle of the electorate tends to be pro-gun.

Note that first phrase: "There's no substitute for winning elections." It's an important point to keep in mind.

And having noted the importance of winning elections, let's examine what some of the immediate political fallout has been in response to the Court's opinion in Heller.

Read on . . .

Posted in 2008 | Barack Obama | D.C. v. Heller | John McCain | The Second Amendment — Comments (8)/ Email this page » / Read More »

Posted at 12:01am on Jun. 27, 2008 D.C. v. Heller

By Pejman Yousefzadeh

Today, the Supreme Court issued its decision in D.C. v. Heller, which affirms that the right to keep and bear arms is an individual right and not one that depends upon membership in a militia. This is a landmark and historic case--the first of its kind to affirm the plain meaning of the Second Amendment. It represents a tremendous and monumental victory for Second Amendment rights advocates and its ramifications will be instantly and broadly felt.

The Court's decision was 5-4, with Justice Scalia writing for the majority and with two dissents. To paraphrase John F. Kennedy, while the margin is thin, the Court's statement is clear. D.C. will now have to go back and significantly alter its weapons ban--a ban which dates as far back as 1976. In addition various other cities and states may find that their efforts to restrict guns will run afoul of the ruling in Heller; my hometown of Chicago has some of the most restrictive gun laws in the country and it may now have to change those laws to comply with the ruling in Heller. Of course, this all depends on whether Second Amendment rights are found to apply to state, county and municipal governments through the doctrine of incorporation. Lyle Denniston has some questions as to whether or not this is indeed the case and Brian Sagona agrees that Justice Scalia did not look at this issue in his majority opinion. Note the following from Tom Goldstein:

The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is.  So today's ruling likely applies equally to State regulation.

This is an issue that will be more comprehensively resolved with the advent of litigation concerning restrictive gun laws that may now be found to violate the ruling in Heller should the Second Amendment be incorporated against the states (on this issue, see the end of this post for clues regarding how the Court may rule on this issue).

Read on . . .

Posted in D.C. v. Heller | Law | The Second Amendment — Comments (6)/ Email this page » / Read More »

Posted at 7:43pm on Nov. 23, 2007 The Second Amendment As An Individual Right

By Pejman Yousefzadeh

Mike Cox, the attorney general for the state of Michigan, makes the argument on behalf of the proposition that the Second Amendment protects an individual right to bear arms. Really, the number and cogency of arguments in favor of this proposition are overwhelming in nature and substance. How the Supreme Court could possibly find otherwise is beyond me.

Maybe by writing that, I am setting myself up for a disappointment. I certainly hope not, but I am confident that the individual rights proponents have the better of this argument.

The only thing that gives me pause, of course, is that I have absolutely no idea what Justice Kennedy might think. Will he call upon the residue of his originalist jurisprudence to agree with my position or will he simply cite some international law case to find otherwise? The betting in Vegas ought to be hot and heavy regarding this issue.

Posted in Law | The Second Amendment — Comments (25)/ Email this page » / Read More »