"Why the Supreme Court Won't Impact Gun Rights"

[TeddyR]

This article probably gets it right on Second Amendment jurisprudence - Heller didn't really change that much and the Supreme Court isn't going to overturn Heller, especially since it permits many types of gun control. Although the author doesn't state as much, another take away is that the controllers' dream of some sort of handgun ban is simple fantasy that is never going to occur.

In any event, Heller is unlikely to be overturned. There are several high-profile cases that are likely to be reversed by a liberal Supreme Court, such as Citizens United and Shelby County. Heller, however, is not one of them. While there is no doubt that several of the justices believe Heller was wrongly decided, they have little reason to overturn the decision and every reason to maintain it.

Heller was a narrow decision that did not fundamentally reshape America’s regime of gun laws. The Court held that individuals have a right to have handguns in their homes. But only two cities, Washington and Chicago, and no states, had laws prohibiting handgun possession. (Chicago allowed residents to have long guns for self-defense.) In the eight years since Heller, there have been several hundred lawsuits challenging nearly every type of gun law on the books. Only a few laws, however, have been invalidated.

Even the justices who dissented in Heller now understand that the decision has not proved to be a roadblock to effective gun laws. All the laws at the top of the gun-control agenda—universal background checks, assault-weapons bans, and restrictions on high-capacity magazines—have all survived judicial scrutiny since Heller. Why would justices favorable to gun control vote to overturn a case that doesn’t actually stop lawmakers from regulating guns?

Plus, there is one really strong reason not to overturn Heller: It would spark a backlash that would make the political movement to reverse Roe seem like a schoolyard kerfuffle. The NRA would push for a constitutional amendment to enshrine gun rights and would likely include language, like it has in a series of recent amendments to state constitutions, making it much harder to restrict guns. Although most proposals to amend the Constitution are quixotic, gun politics are such that 38 states might well pass a new, stronger Second Amendment in a heartbeat.

http://www.theatlantic.com/politics/archive/2016/06/why-the-supreme-court-wont-restrict-gun-rights/485810/

[Eleanors38]

1. This should be in GD. But the politics there makes it likely it won't survive.

Much of what is written in the Atlantic article is what has been reiterated more or less by 2A defenders for years. Please DUers, mark these words:

"It would spark a backlash that would make the political movement to overturn Roe seem like a schoolyard kerfluffle."

The real power to regulate firearms is at the state level, and always has been. Those who wish to hop on down the Bunny Trail of gun control must face the onerous chore facing the Democratic Party writ large: Stop ignoring the South and Mid-Western and Upper -Western states, develop a Party ideology which appeals to people there, and grind it out for many years, only you will face folks like me who will insist that gun-control be off the table as a means of gaining political power and changing society for the better.

[jmg257]

2. Heller, the USSC...what matters is the level of scrutiny

that must be applied to potential laws. Someone has to agree on that eventually.

NY Safe act vs intermediate? Passes muster.
Maryland FSA vs strict scrutiny? Unconstitutional.


"A sharply divided panel of the Fourth Circuit ruled this week that Maryland's assault-weapon ban is subject to the most stringent constitutional test, strict scrutiny. The ruling all but ensures that the ban will fall when the Second Amendment challenge, Kolbe v. Hogan, goes back to the district court on remand.

The ruling is a dramatic split from similar rulings in other circuits. The D.C. Circuit and the Second Circuit both applied intermediate scrutiny to similar bans; the Seventh Circuit applied its own test (distinct from a traditional tier of review), and the Supreme Court declined to review that ruling just this past December.

Given this trend, the Fourth Circuit's ruling is a little more than surprising. But the majority said that Maryland's flat ban on assault weapons and large-capacity magazines cut to the core of the Second Amendment (self-defense within the home) and left no room for possession of these kinds of weapons. That was enough to justify strict scrutiny, said the majority.

The dissent, in contrast, noted that Heller itself left room for this kind of regulation, and that sister circuits have applied a lower level of scrutiny.

The ruling is not final: the panel sent the case back to the district court for application of the strict scrutiny standard. Still, this all but guarantees that the courts will strike the ban, handing a significant victory to gun-rights advocates, dealing a blow to advocates of gun regulations, and throwing a wrench into the jurisprudence on assault-weapon bans in the circuits."

http://lawprofessors.typepad.com/conlaw/second-amendment/

[TeddyR]

3. Agreed

The Supreme Court may have to weigh in on this issue. The 4th Circuit is rehearing en banc the Hogan case and may reverse the panel, while there is a case currently pending before the 9th Circuit that should also address the appropriate standard of review.

[discntnt_irny_srcsm]

4. Heller got it right

OTOH:
- a liberal justice replacing Scalia will change everything and reverse Heller, oh and the South will rise again...