Second Amendment: Unlocked And Loaded

Andrew Cohen: High Court Ruling On D.C. Gun Ban Marks Just A Beginning To Litigation

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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Stripped of all its legalese and deep bows to shaky precedent (the drafters of the Second Amendment being no less cowardly about ratifying mealy-mouthed laws than their modern-day counterparts), the Supreme Court’s big gun ruling Thursday pretty much tracks popular sentiment. In this sense, if perhaps no other, the ruling on its face, and perhaps for today only, is far less controversial than most people expected it would be.

A majority of Americans strongly believe that they have a right to possess a gun in their home for individual self-defense. Presto! Justice Antonin Scalia and the four other most conservative members of the Court have just granted them their long-hoped-for wish. But a majority of Americans also strongly believe that there should be sensible restrictions upon the use of guns in our society. Voila! The Court’s majority also recognized the validity of certain reasonable limitations upon the right to bear arms. Everyone’s happy, right? Wrong.

Wrong -- because the Court’s recognition of an individual Second Amendment right necessarily leaves open central questions about how far that right goes when it butts up against government regulation (state and federal both). In true Supreme Court fashion, the Justices weren’t willing to answer those questions in the abstract. That’s why Thursday’s gateway ruling marks just a beginning, not nearly an end, to Second Amendment litigation. Indeed, just a few hours after the Justices handed down their decision, the National Rifle Association was promising a nationwide campaign to go after gun regulations.

We now will see dozens of challenges to existing gun laws, all designed to challenge the outer boundaries of the District of Columbia v. Heller ruling. And we quite likely will soon see another Supreme Court ruling on the topic. It’s inevitable. Some gun laws will be upheld - no judge in America is going to allow guns in schools or allow felons to buy AK-47s. And some gun laws, especially those in major cities where gun violence is worst, will fail. In some cases, local legislators now will try to change their laws proactively to fortify them against the challenges to come.

Think of the Heller ruling as a pivot then between all that has come before - Second Amendment jurisprudence without an announced individual right to bear arms - and all that is to come - Second Amendment law with that right recognized. The dozens of lawsuits now to come are going to fill out the vast empty space of this new field. In fact, the rush to court now by the NRA will be akin to the Oklahoma land rush. Fire up the wagons! Stake your claims! Locate those individuals in Chicago or in San Francisco who feel they’ve been wronged!

This brave new world of gun law is precisely what the Court’s majority had in mind when it selected this case, among the many Second Amendment cases that routinely had come before it, for review. It was a set-up from the beginning. One of the most stringent handgun bans in America naturally created one of the easiest targets for the first-ever formal recognition of an individual right to bear arms. The expanse of the District of Columbia’s ban was a figurative door through which the Court’s narrow majority was able to squeeze through. And, perhaps just as surely, the language of Justice Scalia’s majority decision also created one of the most striking role-reversals in modern court history.

This time, for a change, it was the Court’s liberal wing accusing the Court’s conservative majority of "judicial policy-making." This time it was the Left accusing the Right of taking away legislative prerogatives (in the form of gun laws). This time it was Stevens and Ginsburg and Company accusing Roberts and Alito and Company of imposing their own personal views, and faulty legal logic, to generate an outcome they wished. The "ends justify the means" is the stinky trout usually thrown from right to left. This time, it came from left to right - proof that neither side has a monopoly on hypocrisy.

And neither side has a monopoly on sonorous and ultimately unpersuasive citations to legal history. Both Justice Scalia’s majority decision, and Justice John Paul Stevens long and strong dissent, devoted a great deal of time and space to divining the intent of the gasbag pols (oops, I meant to write "Founding Fathers" there) who drafted the Second Amendment, replete with its comma splice and its atrocious grammar and its references to "militias" and to "people" and gun rights not being "infringed." And the bottom line from this review? Surprise, surprise, it’s a toss-up.

Thursday’s landmark ruling may officially declare for legal and political purposes what the Second Amendment means but that declaration is much more about style than substance. The truly tragic fact is that, despite this massive litigation, with its thousands of pages of legal briefs submitted by every Tom, Dick, Harry and Jane in the legal world, no one is closer to knowing for sure whether the craftsmen of the Second Amendment truly intended for it to include an individual gun right or not. Five smart judges say yes. Four smart judges say no. Millions of regular Americans say yes. Millions of other regular Americans say no.

I’m not complaining about this, mind you. There are plenty of other examples in the Constitution and Bill of Rights where the 18th Century drafters left to future generations the task of sorting out the details. And this is where we find ourselves today. Thanks to a single vote on the Supreme Court, the details of the Second Amendment’s individual gun right now are about to be sorted out, over a period of years, in cases from coast to coast and in between. We know what the gun control landscape looks like on the eve of this new chapter; what it looks like at the end is anyone’s guess.

[privatechaos]

texasgrouch should learn how to read. The first thirteen words of the second amendment were completely ignored in this idiotic decision. The true goal apparently is to increase crime, fear, and punishment to enrich the prison-industrial complex and to set the lower classes at each others'' throats.

[cfin5]

"What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty. . . Whenever Government means to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise a standing army upon its ruins." -- Debate, U.S. House of Representatives, August 17, 1789

- Elbridge Gerry

[pproctor1]

Though nobody has noticed it yet, the Heller opinion also specifically reaffirms the previous Miller decision. In fact, Scalia goes out of his way to discuss what the supremes really meant in "Miller". This is that militia utility makes possession of certain firearms legal.

This splits the second amendment into two parts, providing two independent constitutional bases for future gun litigation.

E.g., Scalia clearly states that "Heller" does not encompass such military weapons as the M16 or short-barrelled shotguns. However, he strongly hints that these are encompassed under "Miller". Wait until the firearms prohibitionists figure this one out.

[txgrouch2006]

knowhr whined
Bad decision, really bad.
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Boo hoo. Now it''s the LEFT WING NUTS'' turn to feel what it''s like to have a Supreme Court decision against your cherished agenda.

[txgrouch2006]

You can fuss and fume all you want. But IT''S THIS SIMPLE.

When the Constitution says "the people," it means "THE PEOPLE," and not "THE GOVERNMENT on behalf of the people." As in "We, the people."

That''s what the Constitution says. If you don''t like it, change it.

IT''S REALLY THAT SIMPLE.

[txgrouch2006]

closethippy1 wrote
Bye-bye US of A, I hardly knew ye.
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Seems like you hardly know much of ANYTHING.

I''ve read something of substance. THE CONSTITUTION, in the context of the history of the events that led up to it. You should try it sometime. You might LEARN something.

[closethippy1]

closethippy1 wrote
the reality is almost opposite to all this when you see the number of suicides, family fights, friends turning on friends, lovers turning on each other, road rage, or just rage because you looked at me the wrong way.
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It''''s sad that a self-proclaimed "closet hippy" has such a negative opinion about other members of society.
Projection. Look it up. It''''s you.
The opinion you express about others is YOUR SELF-PORTRAIT.
Posted by txgrouch2006 at 12:46 PM : Jun 28, 2008

The US has over 30,000 people shot by guns, 10,000 of which end up dead year after freaking year after freaking year.
Why don''t you put down the comic books and read something of substance once in a while.

[txgrouch2006]

closethippy1 wrote
the reality is almost opposite to all this when you see the number of suicides, family fights, friends turning on friends, lovers turning on each other, road rage, or just rage because you looked at me the wrong way.
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It''s sad that a self-proclaimed "closet hippy" has such a negative opinion about other members of society.

Projection. Look it up. It''s you.

The opinion you express about others is YOUR SELF-PORTRAIT.

[txgrouch2006]

MarkS7177 is still at it
ALL OF THE MURDERERS IN THE US, WHO USED A GUN IN THEIR CRIME WERE "LAW ABIDING GUN OWNERS" FIRST!
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You never answered my question on the other news item discussion.

PROVE THAT THEY BOUGHT A GUN *BEFORE* THEY COMMITTED THEIR FIRST CRIME.

[closethippy1]

Interesting how many people on the right romantacize the idea of the "average man" in the same way the Communists and Socialists do with the so-called "proletariat".
Hard-working and honest all of them. With a pure heart absent of any ill intentions.
And yet the reality is almost opposite to all this when you see the number of suicides, family fights, friends turning on friends, lovers turning on each other, road rage, or just rage because you looked at me the wrong way.
This reality is about to get much worse with this Supreme Court decision and, in the end, we will come to a complete circle and go back to a time when everyone was for themselves.
We will in essence devolved from an advanced industrialiazed nation to one resembling the fractured and corrupt societies of third world countries and the warlords that run them.
It''s bad enough to have religious freaks trying to prevent our children from understanding the basics of evolution and biology and in that way dumbing down our country and helping it to implode.
Now we have to worry about most everyone being armed most everywhere risking the further loss of more American minds needed to keep the US part of the advanced nations in the world.
While we keep a lookout on our science curriculum and of each other the rest of the industrialized nations will replace the US in the fields of scientific and social progress this country used to pioneer.
Bye-bye US of A, I hardly knew ye.