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The Second Amendment-an individual right

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caltain

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With Heller v DC finally on the books as a solid win for gun rights we have a legal tool that we've never had before. The most important part of the ruling wasn't that total bans are unconstitutional, but rather that the Second Amendment is an individual right, not the right of a group or state.

What do you think that will mean in the long run for our fight to lessen gun control?
 
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rlh2005

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It's a good and necessary first step. And it was a small step. Unfortunately, many more small steps are needed.

Heller establishes the 2A as a individual right but does allow for "reasonable restrictions." It did not define "reasonable restrictions" nor did it incorporate the 2A. More legal cases are needed to define the scope and breadth of "reasonable restrictions" and to incorporate it. The incorporation of the 2A will add a lot of power to the fight against gun control.
 
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rlh2005

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Apparently, it must be explicitely stated. I saw Alan Gura speak at last night's VCDL meeting in northern Virginia. He said the right has not be incorporated under legal rulings to date. It's all part of that one step at a time. Get the court to say it's an individual right. Then you attack incorporation and define "reasonable restrictions." And, hopefully, some day the machine gun ban is tackled.
 
TexasNative

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Mr Gura said we had a lot of things to cover before addressing 922(o), primarily changing how Americans in general regard guns, and left me with the impression that 922(o) won't be changed in my lifetime.
 
TexasNative

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That's not what he was saying. He said that there's no way in today's climate and today's courts, to include the Supreme Court, that you'd get a ruling that the machine gun ban was unconstitutional.
 
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like_the_roman

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Heller made it so that gun licensing and "reasonable regulation" are perfectly permissible. The only legitimate use of guns, according to Scalia, is for defense in the home against criminals - not for defense against the government, which means limitations on what kind of guns we can own and where we can take them.

Thanks to 14th amendment incorporation, the 2nd amendment will eventually be applied to the states by the federal government, which will only result in the federal government being given more power.

We were all better off before the Heller decision.
 
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like_the_roman

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TexasNative wrote:
I think there are quite a few folks that would disagree with each of your contentions, Roman.
Click to expand...

And that is their right. But the outcome of Heller has already begun to hinder further attempts to ensure RKBA.

Less than a week after Heller, Mullenix v. BATF used Scalia's decision to rule against a gun dealer who wanted to import a WWII era machine gun.

U.S. v. Dorosan used Heller to deny the right to keep and bear arms on federal property, in this case, a post office.

Three days ago, U.S. v. Gilbert used Heller to make it clear that individuals do not have the rights to possess NFA weapons.

Heller is a Pyrrhic victory at best. The folks in the District of Criminals may be allowed to have revolvers in their homes now, but it won't be too long before we have nationwide licensing and registration, a permanent "assault weapons ban," and federal regulation/permission of carry outside of the home - and it will all be constitutional, thanks to Heller.
 
H

hsmith

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like_the_roman wrote:
Heller made it so that gun licensing and "reasonable regulation" are perfectly permissible. The only legitimate use of guns, according to Scalia, is for defense in the home against criminals - not for defense against the government, which means limitations on what kind of guns we can own and where we can take them.

Thanks to 14th amendment incorporation, the 2nd amendment will eventually be applied to the states by the federal government, which will only result in the federal government being given more power.

We were all better off before the Heller decision.
Click to expand...
Questionable, but I do agree Heller isn't much to celebrate. It is already being used against the 2nd amendment rights.
 
Dutch Uncle

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And I believe Mike said he spoke with Scalia, who indicated he is opposed to incorporation of the 2nd under the 14th. :X
 
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like_the_roman

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From D.C. v. Heller:

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."
Click to expand...

Notice how he left out the part about self-defense from government? To Scalia, rebellion and resistance against tyranny must not be a 'lawful purpose.'

From U.S. v. Gilbert:

The Supreme Court's recent decision in District of Columbia v. Heller, holding that the Second Amendment protects a limited individual right to possess a firearm -- unconnected with service in a militia -- does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles.
Click to expand...

Which brings us to U.S. v. Mullenix:

Plaintiff first argues that “[a]ll bans [on gun ownership] are clear unconstitutional infringements to the right to own and bear arms.... [In Heller,] the Supreme Court rejected the notion that the Second Amendment right is unlimited.
Click to expand...

So, despite everyone's optimism that Heller was a good "first step," we are already seeing the Courts use it keep federal gun control laws (NFA/GCA) in place, and it will likely be used to uphold local licensing/registration, taxation, carry restrictions, and other burdensome regulations as 'reasonable.'

Tell me, what part of this are we supposed to be celebrating?
 
deepdiver

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Quite informative, Bill.

Like_a_Roman, what I get out of the judgment excerpts you posted is that Heller didn't change anything relating to the particular matters before the court. The fact that Heller didn't change everything is not the same as Heller didn't change anything.
 
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