The Future of the Second Amendment

Brannon Dennings, professor of law at Samford University, and Glenn Reynolds, professor of law at the University of Tennessee (and proprietor of Instapundit.com), have just posted a very interesting new article to the Social Science Research Network on gun rights in the wake of the Supreme Court’s landmark decision in McDonald v. Chicago. Here’s a brief excerpt:

With its incorporation against the states post-McDonald, the Second Amendment now leaves the netherworld it inhabited previously, and enters the realm of what might be considered “normal constitutional law.” We now have a constitutional right recognized in no uncertain terms by the Supreme Court, and incorporated against the states. Litigants may now invoke that right without having to overcome questions of whether the right exists, whether it can be invoked by individuals, or whether it applies only against the states. For this reason, the Second Amendment, long treated like an embarrassing stepchild, joins other provisions of the Bill of Rights, not as some odd exception, but as normal constitutional law.

The question remains whether the federal courts will protect Second Amendment rights vigorously, as they generally do with regard to First Amendment free speech rights, or lackadaisically, as they often seem to do with regard to Fourth Amendment search and seizure rights. At least these questions will now be decided in court and not relegated to the arenas of scholarship and politics alone. Courts will now be forced to address, rather than evade, Second Amendment questions.

Download the article here. For Reason’s extensive coverage of the Chicago gun case, start here.

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  • 1980 Redux||

    Surely we can all agree that the court's reaffirming of our 2nd amendment rights was a win all around, right? Considering I normally get attacked for anything I post, let me just say, "I fully support 2nd amendment freedom and hope you agree."

  • Trespassers W||

    Well sure.

  • Cliché Bandit||

    Well, just to put a fine point on it (and be an insufferable pedant), most of the folks here will NOT agree simply because the Constitution grants no rights. Rights are inherent. This is something many who are new to the concept of freemdom have difficutly with. One thing GWB said that I agree with, "It is just a god damned piece of paper". Now, since the Court has decided to play along for now and encourage the government as a whole to respect my inherent right to exist it does make my life a little easier and thus I agree in part with it.

  • Cliché Bandit||

    speaking of freemdom...there will be a $2 boxes of freemdom in the lobby from 3 to 4 today.

  • ||

    > $2 boxes of freemdom

    Freedom costs a buck o' five.

  • 1980 Redux||

    I stand corrected, Bandit. You are, of course, quite correct in that regard.

  • Fist of Etiquette||

    The lapse is almost understandable. We're at the point where it is difficult for us to wrap our heads around the idea that we possess a given right until the state decides to take it from us, they unjustly take so many.

    With regard to gun rights, the state has removed those rights for so many for so long that getting them reaffirmed feels to many like a gift the Supreme Court has given us, when in fact they have told government to stop infringing on those rights.

  • Cliché Bandit||

    did you get a box of freemdom? We ran out early.

  • Fist of Etiquette||

    The gave me a voucher.

  • Fist of Etiquette||

    And then the other guy gave me a coupon for a y, so I could spell out "they".

  • mad libertarian guy||

    With regard to gun rights, the state has removed those rights for so many for so long that getting them reaffirmed feels to many like a gift the Supreme Court has given us, when in fact they have told government to stop infringing on those rights.
    reply to this

    This cannot be stated enough times. The latest decision was not some gift from our benevolent government, but an order from SCOTUS to the states to pipe anti-gun laws the fuck down.

  • hmm||

    Jesus don't feed the Bandit's ego. He's going to need an addition on his home just to keep it dry soon.

  • rather||

    Stop whining. it isn't like they call you a cunt, or a bitch, or a snatch, or a twat, or a.......

  • ||

    Shut the fuck up, whore.

  • rather||

    I love the you are a born-again bible thumper

  • ||

    ...retard? A moron? An imbecile? A blogwhore? A schmuck?

    These are all gender neutral, you fucking waste of space.

  • rather||

    I love the you are the devil's spawn

  • Barack Obama||

    Me too!

  • LarryA||

    The Future of the Second Amendment

    Illinois Association of Chiefs of Police Support Legalizing Concealed Carry Proposal

    Temperature in Hell approaches 32 degrees

  • ||

    lol. for cops, i would not be surprised. for cop-o-crats (police chiefs) that is amazing

  • Jim||

    I said something negative about you in the Gardening thread, Dunphy. I'd like to invite you to respond to it, or clarify / correct if I misrepresented you in any way, which was not my intention.

  • ||

    i'll check it out. spanx for the heads up

  • ||

    just addressed it. and this has come up here before several times. in brief, rule of law requires that any sentient cop (who will necessarily agree with some laws) shall and will sometimes enforce laws/policies they disagree with.

    the nuremberg analogy is silly, and i addressed that too. i appreciate the heads up.

  • Jim||

    Thanks. Please do check out my further reply in that thread. I'm glad the subject has come up before...it means I'm tracking other *great minds* here in the Reason comments. lol.

  • ||

    i have seen several people use it as if it's some sort of "gotcha" moment. omg, i'm anti-WOD, yet sometimes I enforce drug laws. like i said, i think the laws in the WODV's are far worse for the average person, and not only do i enforce those FAR more often than the drug laws, but i have far less discretion in doing so.

    i'm always amazed at how much attention libertarians place on the WOD and how little on the war on DV's. the latter imo have broader reaching (in scope as well as subject population) encroachments on general liberty, etc.

  • Jim||

    I'm sorry, but I'm not familiar with the term: War on DV? What's the DV? I tried doing a google search and didn't see it.

    And I wasn't trying to frame it as a "gotcha" moment, I was more interested in the psychology behind 1) holding a certain belief, and 2) voluntarily violating said belief on a somewhat regular basis in pursuit of a paycheck.

    If you think that the other things you do outweigh the damage done by enforcing stupid laws, then say so. I would probably disgree, but then again I recognize that that would be a subjective value, and there's no real "right" or "wrong" answer on that unless we wanted to get into a "more libertarian than thou" purity bitch-fight, and nobody wins those. Except maybe Old Mexican; I'm not sure.

  • ||

    DV stands for domestic violence.

    i think you are misunderstanding the whole thing here. as a matter of policy, i think the war on drugs, particularly the war on pot is a miserable failure. that's a belief about policy, policy i think should be changed.

    i am not king. i do not rule the fiefdom called the USA. the laws are such that in most jurisdictions it's a (petty) crime. in some , it's a civil infraction.

    i am not "violating" my belief by enforcing drug laws whne i have to. my belief is that the policy should be changed. democratic process. rule of law, etc.

    i am not violating that belief any more than i am violating my belief when i have to arrest somebody for felon in possession of a firearm when they are only a felon for a nonviolent crime like writing bad checks.

    my belief is that the laws SHOULD be changed. my belief is not that cops should usurp rule of law, and act as de facto legislators. i find it ironic that the same people who whinge about fascist power hungry cops, think it's perfectl ok for cops to act to subvert the rule of law WHEN it's a law they happen to disagree with. think about that for a second. we aren't Judge Dredd.

    i am CERTAIN the other things i do outweigh the damage of enforcing drug laws. i have pulled people from buildings on fire, i have saved injuries, lives, property, etc. i have rescued victims of domestic violence, done successful interrogations that helped bring rapists, arsonists, murderers, etc. to justice.

    i checked my dept computer and in the last 16 months i have done exactly ONE marijuana case (the one mentioned), one forged prescription case (for oxycontin), and one misdemeanor marijuana case that i had to document for high school officials but was dealt with administratively by the school.

    in the same period of time, i responded to over 500 details, involving all sorts of disturbances, documented over 260 individual crime reports, made scores of arrests involving violent crime (robbery, felony assault, etc.), helped locate at least two missing alzheimer patients (one in the woods after an extensive search), etc. etc.

    i'll stand by that record any fucking day. enforcing drug laws is a TINY percentage of my job. TINY.

    and again, i am not violating ANY belief. if my belief was that cops should engage in conscientious objection and refuse ot enforce all drug laws, you might have a point. that's not my belief

  • Jim||

    I understand what you're saying, but we just disagree on beliefs then. If I thought the WoD was wrong, then I would not, in good conscience, be able to enforce drug laws, at all. I don't have your faith in our current system; I think the entire thing is far too rotten & irredeemably corrupt. Therefore, I would not choose to become a police officer, because you have a point about not leaving it up to the cop what he will and won't enforce (though I think there's a logically consistent case to be made that one could always refuse to enforce victimless crimes, and then that isn't arbitrary, it only serves to increase freedom). But it's a matter open to debate.

    To me, it's like making a Tony, majoritarian argument: well, these are our laws, so I'm going to enforce them and work to change them. I don't believe in majoritarianism. If it's wrong, then it's wrong, period, and should not be subject to a vote (full disclosure: I'm an anarcho-capitalist, so that's probably where our disconnect is).

    I don't know anything about the problems caused by the WODV, and indeed I've never even heard anyone mention it. If you could link to something, or provide some insight on what's going bad with that, I'd be grateful to learn more.

  • ||

    well, we can agree to disagree. in regards to the war on DV, do some research... in brief, you can be stripped of 2nd amendment rights w/o a criminal trial, but merely a civil hearing based on a DV protection order.

    you can be stripped of your right to free association if a judge deems you a domestic violence victim in need of protection. etc. etc.

    you can be kicked out of your house for (AT LEAST ) two weeks if arrested for PC of a DV offense, if the judge issues a no contact order

    etc.

    as for the other point, it's not a matter of "faith in the system" as much as it's a belief in seperation of powers and rule of law, checks and balances, etc. i don't think you really want cops selectively deciding not to enforce laws based on personal beliefs. what if a cop doesn't think rape is wrong, statutory rape, child porn, theft, etc.?

    sure, you can limit it to "victimless" crimes. statutory rape is arguably a victimless crime.

    you can play that game all day long, but the practical reality is there are only two option

    1) the only people who can become cops are people who are unthinking agents of the state , since those are the only people who will ever agree with every law.
    2) you hire good, conscientious people, with the understanding that this is a democratic republic. you don't have to agree with every law, and in fact can advocate and work for change in the law, with the understanding that we can not ad hoc on an individual basis, just ignore laws we don;'t like.

  • Jim||

    We will simply have to agree to disagree. I'm glad we could come to the conclusion civilly. Anyway, I was not aware of all that dealing with domestic violence, so I will definately look some of that up this weekend, thanks for the tip.

  • ||

    also, note in my state, (certain) domestic violence offenses are the ONLY crimes where arrest is MANDATED by law. i can (not that i would) decide not to arrest for murder, otoh. but domestic violence? (certain offenses) MANDATORY

    it's also the ONLY crime where officers enjoy good faith immunity from false arrest suits. the ONLY crime.

  • ||

    oh, and also (under VAWA), they are a gross violation of states' rights/federalism concepts.

  • Michael Ejercito||

    well, we can agree to disagree. in regards to the war on DV, do some research... in brief, you can be stripped of 2nd amendment rights w/o a criminal trial, but merely a civil hearing based on a DV protection order.


    And people were interned on the basis of ethnicity, and the Supreme Court upheld it.

    The war on DV does not go far enough; people with DV convictions should be interned in Manzanar.

  • ||

    and forced to attend anger management seminars using the ludovico technique

  • ||

    dunphy, I posted this in the Balko thread. I wonder how you feel about it. The rest of you, rage as needed.

    Double Standard Applied. Nobody Surprised.

  • ||

    the most chilling part is this : "Hampton admitted he had consensual sex with the woman earlier but said he was off-duty at the time. Because he was married and there is a state law against adultery, internal investigators concluded he violated a department policy against breaking the law."

    that's pretty fucking ridiculous. ADULTERY? we had an officer who the prosecutors were going to charge with playing poker online (a C felony in my nannystate). when our union lawyer researched and discovered that in the several years since the passage of the law, not a single person had been charged with it, and that when it came out the fucking gambling commission outright stated they didn't intend to actually PROSECUTE anybody for it (it was a liberal head nod to the indian and other casinos that pay the state tax money), the prosecutors dropped the charge after the lawyer threatened a suit.

    regardless, i will just say this. there is NO easier way to smear somebody than a sexual assault allegation. people know this. these cops had due process and the process determined that the dept. acted prematurely etc.

    every cop lives in fear of his gf/wife getting pissed off and making some kind of DV or sex complaint. the mere allegations can ruin a career. the war on DV, as i mentioned means that with no right to an actual trial, a complainant can get a DV protective order, and IF they get that order, the cop will lose his job since he won't be able to carry a gun.

    we have had several officers the dept. has been forced to hire back after arbitrators did a REAL investigation of the evidence against them and determined that the dept. kneejerked and fired them w/o cause.

    in brief, i am well aware that allegations are not proof and we don't need the duke case (note the lawsuit has just been announced) , the mcmartin preschool trial or any of the other bogus sex assault cases to prove that.

    i know that i have seen a metric assload of sex assault complaints get nolle pros'd that *if* they were made against a cop the prosecutors would do everything posssible to try to charge a cop.

    regardless, i'm not willing to come to a conclusion about the facts of the case based upon this media article. if the cop was having sex on duty, imo that is a disciplinable offense, but should not be a firing offense unless it happens repeatedly AFTER discipline. obviously *if* he actually sexually assaulted somebody he should be fired. no question about that.

    fwiw, i have no doubt a LOT of cops have sex on duty. i know a cop who works for a neighboring agency who admitted it during his background and was later hired by the agency despite the admission. granted, he said he did it on his lunch period and in that agency we had UNPAID lunch, so he wasn't even technically on the clock in a sense.

    i fucking hate rapists. otoh, i am not particularly offended by cops who waste some on duty time by schtupping on duty. is it is a violation of policy? sure. do i think it's an awful thing? no

  • Fist of Etiquette||

    As currently written, the Phelps proposal says the Illinois State Police “shall issue” a concealed carry handgun permit within 75 days after an application is submitted.

    75 days. Just because we're letting you carry doesn't mean we're still not going to fuck with you.

  • db||

    It's 90 days in PA. Usually you get the approved permit back in about 1 month though.

  • db||

    Strangely enough, if you send a copy of a valid permit from another state, Utah will almost immediately issue a permit before the background check is done. They include a note that the permit is provisionally issued and can be revoked if you fail the background check.

  • LarryA||

    Texas is 60 days, but the actual issues are getting shorter.

  • Bill||

    There's no way for me to say this without sounding like a deuche, but it's Cumberland School of Law. Not Samford. Samford damn sure bought it, but we still like to pretend like its independent. One of the nation's oldest law schools. Not really good mind you, but very old.

  • Jay||

    Glenn Reynolds?
    Glenn "Let's Nuke North Korea" Reynolds?
    hu...

    /JRB

  • SIV||

    Yep!, that one. They guy who drives all the traffic to Reason.

  • rather||

    speaking of no rights, the court has officially sanctioned the police vampire association of North Texas. The police have trained officers that are permitted to draw blood from DWI suspects, and there is no right of refusal.

    http://www.myfoxdfw.com/dpp/ne.....i-suspects’-blood

    The sad part is none of them look like Edward Cullen

  • hmm||

    The whole thing could be summarized with a giant, "Suck it bitches!"

  • ||

    The whole idea of "incorporation" has always made little sense to me. From the Constitution's first moments, it has dictated certain aspects of State governments -- for instance, that every State must provide a "Republican" form of government to its citizens. Unless an article of the Constitution specifically refers to the Federal government, or can't be read as making sense UNLESS it refers only to the Feds, I generally take it as being binding on ALL levels of government, for which the Constitution is the supreme law of the land. Why should the restrictions of the Fourth Amendment, for instance, apply only to the Federal court system? It seems pretty clear that the ideal was for courts in general to provide certain elements of a common judicial system. Similarly, "the right of the people to keep and bear arms shall not be infringed" would seem to apply universally. Maybe the rights referred to directly after "Congress shall make no law" might need to be "incorporated," but not very many of the rest...

  • Pedant||

    The Constitution is a poorly written document full of internal contradictions. It is simply not possible to find precise meaning, and any attempt is simply cover for ones own personal preferences.

  • Xenocles||

    That's a rather misleading quiz. It's true that many of the answers aren't covered by the First Amendment in isolation, but that doesn't mean the Constitution doesn't provide any answers. Revealing secrets to the enemy, for example, is covered under the treason clause. Questions related to Presidential powers can be answered by checking Article II.

  • Barely Suppressed Rage||

    Except that those who wrote it and those who read it at the time all understood that the Bill of Rights were meant to be limits on the power of the federal government. The general understanding was that those affirmations of rights and controls on government power did not apply to the state governments.

    Which is why the 14th Amendment was introduced. Do a little research on that - a good starting place is Clarence Thomas's concurring opinion in Chicago v. MacDonald - the Congressional Record shows that the express purpose of the 14th Amendment was to apply, at a minimum, the protections of the first eight amendments of the BoR against the state governments. Only a few years later, however, the SCOTUS gutted it in the Slaughterhouse Cases.

    Which later required the SCOTUS to invent out of whole cloth the "selective incoporation" doctrine. There is nothing "selective" about it. The 14 Amendment explicitly was intended to fully incorporate ALL of the rights enshrined by the BoR - at a minimum - against the state governments.

  • ||

    This is a great article, thank you very much for the link.

    In the sections of Breyer's opinions that were cited, I noticed that he repeatedly uses the standard trick of restricting consideration of social costs to GUN deaths and suicides, rather than considering the effect of gun ownership on violent crime and suicide in general.

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