Gun Control

The Second Amendment Without Scalia

What will happen to gun rights if a Democrat picks his replacement?

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This week Republican presidential candidate Ted Cruz warned that Antonin Scalia's death leaves us "one justice away from the Second Amendment being written out of the Constitution altogether." Although I share the Texas senator's concern about the fate of the right to keep and bear arms if a Democrat nominates Scalia's replacement, the short-term consequences may be less dramatic than Cruz implies.

Writing for the five-justice majority in District of Columbia v. Heller, the 2008 decision in which the Supreme Court recognized that the Second Amendment protects an individual right to armed self-defense, Scalia said that right was violated by a law that banned handguns and required owners of long guns to disable them with trigger locks or keep them unloaded and disassembled. But he strongly implied that nearly every other existing gun control law would pass constitutional muster.

Scalia wrote that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." He also said the Second Amendment applies only to weapons "in common use for lawful purposes," a condition that seems designed to justify any pre-existing national ban, and mentioned "prohibiting the carrying of 'dangerous and unusual weapons'" as "another important limitation on the right to keep and carry arms."

Heller thus blessed a policy that permanently disarms people who have never committed a violent crime or shown any propensity to do so; left open the question of whether and where people have a constitutional right to carry guns outside their homes; gave wide latitude to "conditions and qualifications" for selling guns, which might including licensing and registration of buyers as well as background checks and waiting periods; and provided a potential rationale for outlawing guns that politicians deem especially dangerous (such as "assault weapons"). In another 5-to-4 decision two years later, the Supreme Court overturned Chicago's handgun ban, confirming that the Second Amendment applies to cities and states as well as federal domains but leaving its scope unclear.

Defining the scope of the Second Amendment is where the legal action is now, and that could remain true even if a Democrat picks Scalia's successor. Rather than overturn Heller completely, a new Supreme Court majority friendly to gun control laws could simply read the right to arms narrowly enough to accommodate them.

There were two dissents in Heller, both joined by all four justices in the minority. One dissent, written by John Paul Stevens, argued that the Second Amendment does not protect an individual right to armed self-defense. The other dissent, written by Stephen Breyer, argued that the D.C. handgun ban was consistent with that right.

By embracing Breyer's reasoning, which tolerates wide variation in gun controls based on local conditions, a new majority of Democratic appointees could approve whatever restrictions come their way while still claiming to respect Second Amendment rights. That is essentially the position taken by Barack Obama and the two Democrats vying to replace him, Hillary Clinton and Bernie Sanders.

Politics would once again be the main constraint on gun laws, meaning that jurisdictions like D.C. and Chicago would once again be free to ban handguns. In other words, the most likely short-term consequence of adding another Democratic nominee to the Supreme Court is that Democrats would succeed in disarming their own constituents.

At the national level, existing laws would be upheld, but that is probably also true under Scalia's approach. New gun controls, whether the universal background checks Democrats are pushing or the Australian-style mass confiscations that Clinton admires, would not suddenly be more likely to pass.

That could change over the long term, of course, which is why constitutional constraints are important. You don't wait for a fire to break out before you buy an extinguisher. 

© Copyright 2016 by Creators Syndicate Inc.

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  1. Hello!… Having only learned of this development a few hours ago my first thought is that Congress should do the obvious and principled thing. Which is to tell the president to fuck off and simply decline to employ or fill the position with anyone OBO and company may try to offer up for this job.

  2. Regardless of the SPECIFICS of Scalia’s decision or oral arguments in Heller, the fact is that Heller and McDonald’s significance hinges on the setting of the precedent that the 2A IS an individual right. The left wants to erase that precedent, and then slowly, by incrementalism, legislate private possession of guns out of existence. That is their goal and they will never stop. They will never compromise and they will never be bargained with. That is why a Justice on the SCOTUS that tips the decisions towards the left would be so disastrous and that is what Cruz is talking about. Having argued NINE cases before the SCOTUS, I think he understands the importance of what is in play here constitutionally…

    1. Exactly this.

  3. The constructionist thing to do would be to do what the Constitutuon says and vote on the President’s nominee. Only progressives let politics influence their principles, right?

    1. The Constitution is not a suicide pact.

      1. Something something “principals over principles” or somehting

    2. They can vote on the nominee, sure. Nothing says they have to vote “yes.”

      1. And yet, the go-to line is for them to not vote at all, not to vote “no”.

    3. I’m not sure that the Constitution requires a vote. It only says that the Senate’s role is advice and consent. If there is no vote, there is no consent, I suppose.

    4. I really do admire the left, much like one admires alligators or tigers.

      They are the apex political predator, with an eye only for political expediency. Nothing is beyond them, including goading the opposition into willingly falling on the sword of their own principles.

      It’s both magnificent and terrible to behold, like a python strangling its prey.

      Meanwhile, in 1960

  4. Of course Cruz is exaggerating, because he’s a politician. But that said, erosion of the treatment of any of the Bill of Rights as applying to the individual is no small matter. It certainly shouldn’t be waved off with a simple “well, liberals will only disarm the liberals and everyone will be happy”. In any liberal paradise there’s still thousands and thousands of people who prefer liberty, and it would suck for them to have to choose between giving up their rights and leaving their job/home because now there’s five partisan hacks who can’t understand the phrase “shall not be infringed” instead of just four.

    1. Correct me if I’m wrong, but constitutional concerns aside?, but wouldn’t that just be the “Free Market of Ideas” at work? People leave liberal gun-banning cities in favor of conservative gun-toting ones?

      Sure, it sucks that conservatives couldn’t enjoy California beaches, but frankly, let different places be different. Go to Texas? Expect to see people packing. Go to Las Vegas? Drinking in the streets. Missouri? Places that won’t serve gay people. San Francisco? Naked people walking down the streets of the Castro.

      Call me crazy, but I’d say the gun-control debate was spiked when gun advocates made gun control anywhere a national issue and decided they were no longer content to have different localities have different laws, as was understood to be constitutional for 200 years.
      ________
      ?A very large “aside”, yes.

      1. It depends on if you understand the reason why “enumerated rights” in the Constitution are enumerated.
        Explicitly.
        All on their own.
        In a dedicated amendment.

        The Constitution also assumes a potentially unlimited number of un-enumerated rights of the individual, but spells out certain ones as sacrosanct. This has largely been forgotten by the various powers, to the point where only the explicitly enumerated rights are viewed as extant and defensible in court. Now, even explicitly enumerated rights are being hacked away by statist power grabbers with regulatory and legislative “frameworks” (free speech zones and wood chippers – 1A, sporting purposes – 2A, NDAA – 3A, bulk data collection – 4A, etc.).

        Different places can let their own freak flag fly, but there are certain basic human/civil rights which must be protected and respected by all jurisdictions of government in a free society, among them the explicit right to keep and bear arms.

        1. The assumption being that any society that doesn’t have an explicit right to keep and bear arms is not a free society?

          Yemen is more a “free society” then Canada?

          There are lots of good arguments for the right to bear arms. This one is only persuasive unless you assume that freedom *only* flows from the barrel of a gun.

          1. Freedoms mean nothing unless they’re guaranteed. And, ultimately, the only way to guarantee the freedoms a government has decided to forbid is to use violent force against that government.

            The Second Amendment is there to guarantee the rest of them in the case our government becomes unresponsive to the will of the people or otherwise extremely abusive to the people.

            A society that is denied the right to do something as basic as physically defend itself is, yes, not “free.”

  5. What will happen to gun rights if a Democrat picks his replacement?

    You can probably kiss them good-bye. But not before gun and ammo sales go through the roof. Invest in firearm stocks.

    1. How so? Lacking congressional action (unlikely), the most that can happen is at the state level.

  6. Defining the scope of the Second Amendment is where the legal action is now

    “…the right of the people to keep and bear Arms, shall not be infringed.”

    Seems pretty cut and dried to me, but then again I’m not a TOP. MAN. so what the hell do I know.

    1. It says “the people”, not “the individual”. This is concrete proof that the founders wanted us to live in a socialist utopia, where guns were collectively owned, and available only to the military, national guard, police, secret police, thought police, dream police, stasi, and unaccountable government officials.

      /prog

    2. “But that’s only for muskets owned by militias!”

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  8. “Politics would once again be the main constraint on gun laws, meaning that jurisdictions like D.C. and Chicago would once again be free to ban handguns. ”

    Oh, the humanity! Local communities now can regulate? What shall gun nutters do?

    1. Indeed, what shall abortion nutters do. Oh wait.

    2. Local communities can’t nullify the Bill of Rights you detestable cocksucking piece of dog shit. Jesus tittyfucking christ, do you fucking think before you post, AmSoc, or were you reading your turds in the toilet bowl again?

      1. Communities nullify the Bill of Rights all the time and unless you have a spare $100,000 or so laying around to fight it to the Supreme Court you just out of luck. And by your language you are to stupid to to be a libertarian so go troll Politico.

        1. Fuck off, language police. You must be new here if you’re defending that detestable cocksucking piece of dog shit, known as AmSoc. The argument I was making is that local law does not trump Constitutional law. Now whether municipalities do indeed legislate contra constitutional law is not an argument or the argument I was making. Btw, who made you arbiter of who is and isn’t libertarian? Let’s see here, you disagree with people who don’t use language you want by suggesting they leave. You sound Authoritarian to me. Oh and did I mention, Fuck Off?

      2. You say “cocksucking” like it’s a bad thing.

    3. Please explain why Progressives and Socialist always want to force their views down everyone’s elses throat. I absolutely don’t care if you don’t want to own a gun so why does it bother you so much that I do. Progressives seem to think they need a law for everything. Maybe you are rich and get to write the laws but I am 69 and never once got to vote on one of those laws. When a gang banger kicks in your front door and robs you after raping your wife or daughter you can sit there hollering this is against the law. As for me I will at least try to grab my gun and send the bastard to hell before he visits your home next

  9. Why do you waste so much ink on the Constitution. The Constitution as written by our forefathers has no resemblance to what we laughing call the Constitution today. Originally only land owners could vote and it didn’t matter what race you were. That has changed a dozen times. Senators were appointed by the States not elected. The Federal government was to regulate commerce between the States and to maintain a Navy to protect our shores. Pretty much everything else was left to the States. What people don’t seem to understand is that it is the nature of everything to grow. That includes all forms of government and religion and any other concoction of man. And man’s driving force is Self and unfortunately that leads to corruption. That is why the more labels you attach to yourself the more you hate. I understand that being an Anarchist and Atheist is looked down upon but it let’s you look at others point of view. I am not advocating either of things but people need to take a real hard look at our leaders and see how really corrupt they are.

    1. the major difference is that in those cases,the Constitution was AMENDED by the procedure the Constitution contains,NOT by judicial fiat and playing word games,with meanings and definitions changing as they please.

      1. But what do you expect them to do? Those obstructionist Rethuglikkkan Tea Baggers won’t let them do what they want! They have no choice!

  10. Dream On?:

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    In your dream, the supreme court is not a scam
    In your dream, 9/11 was not a scam”

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    Regards, onebornfree.

  11. In other words Ted Cruz is correct. so why bother bashing him oh I know why its the cocktail party circuit you want to be allowed in by always bashing republicans even when your article agrees with him.

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  15. the Second Amendment of the Constitution is NOT ABOUT hunting or sporting.
    semi-auto,magazine-fed rifles such as the AR-15 and AK-47 are today’s modern MILITIA weapons,and thus should be the most protected of firearms under the Second Amendment.

    Militiamen were expected to appear for muster bearing arms and ammo similar to and compatible with what the Regular military had in use AT THAT TIME.
    Since we “compromised” and restricted ownership of full-auto,true assault rifles,that leaves the semi-auto versions for civilian militia use.

    In US v Miller,SCOTUS asked if a short-barreled shotgun was a weapon that a militia would commonly use,implying that arms protected by the 2nd Amendment were arms a militia would use. AR-15’s,M-16’s and AK-47s would be ordinary militia arms,and “hi-capacity magazines” also would be protected.

  16. It is pretty clear that Democrats do not support the populace owning firearms. There are enough quotes from their leadership and examples of the laws they have passed in the States they control the make it very difficult.

    Then there are the individual people who will tell you “they do not like guns”, “I see no reason fro someone needing an assault rifle”, and stupid comments about “America’s gun culture”.

    You have to wonder why they are so fearful of law abiding citizens owning firearms and I can only conclude that it is because as long as the people can push back against the government they LEFT cannot turn America in to a Marxist Paradise.

    1. Gun ownership confers a subtle realization that one’s life needn’t wholly depend on the whims of the state. The proglodytes obviously dislike this.

    2. So, did you hear that story about some dipshit in Florida that made an impromptu firing range in his backyard? And then his shots went *out* of his backyard, peppering the next house over? And hitting a teenager in the hand?

      I did. And so did a lot of other people.

      It’s not responsible gun owners that make people nervous. It’s irresponsible gun owners. And until responsible gun owners are willing to do something about that, you can expect people afraid of irresponsible gun owners to try to do something to assuage their fears.

      Don’t lie to yourself that it has anything to do with Marxism. It just makes you sound crazy.

      1. Fuck off back to Slate, slaver. Nobody’s buying your bullshit here.

      2. Fuck off back to Slate, slaver. Nobody’s buying your bullshit here.

      3. Fuck off back to Slate, slaver. Nobody’s buying your bullshit here.

        1. A statement so righteous, the squirrels made it happen thrice!

    3. You generalize too much. I am way on the left, and while I don’t own a gun, I support the 2nd Amendment and read it as protecting an individual right. If the country at large doesn’t like it, they can change it. I know tons of Democrats that feel the same way. My best friend, a Bernie supporter, always carries.

      But the people who are opposed to guns have a much simpler reason than the one you give. They are mostly alarmed at Americans’ propensity to murder each other and feel they are more likely to be harmed by someone with a gun than someone without.

      Many pro-gun people feel they are more likely to be harmed if they don’t have a gun than if they do.

      The loudest on sides seem to be equally afraid – just of different people and with different solutions.

  17. The Heller decision left no doubt that the right to openly carry firearms in public is the right guaranteed by the Second Amendment of the Constitution. Justice Scalia cited two Open Carry cases which he said perfectly captured the meaning of the right to keep and bear arms.

    The McDonald decision left no doubt that the Second Amendment, in its entirety, applies to all states and local governments.

    Many people are upset that the Second Amendment does not include a right to carry weapons concealed and that SCOTUS does not recognize such a right. This is odd as some of these people make a lot of noise about “constitutional carry” and others who claim that states can ban Open Carry in favor on concealed carry and yet they pretend to be oblivious to the fact that when the 2nd Amendment was enacted in 1791, the use of a concealed weapon to kill one’s opponent in mutual combat was ALWAYS MURDER.

    The Heller and McDonald decisions spoke volumes about the Second Amendment right. The problem with most people is they either never read the decisions or don’t like what the decisions actually said.

  18. As Scalia said in the Heller decision: “”A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.”

    Brilliant words … but isn’t that the de facto state of all our rights under the current government system? Here we are terrified that a change of one man could dramatically affect the recognition of our rights.

    How did we get here? This level of power is not doled out to the Supreme Court in the Constitution. The Supreme Court set itself up as ultimate arbiter early in the republic’s history.

    Our Constitution is written in plain language. It doesn’t take a lawyer to interpret it. It only takes a lawyer to misinterpret it through legal sophistry that turns phrases like “no law” into dozens if not hundreds of laws and “shall not be infringed” into rampant infringment on every aspect of gun ownership. The same long train of government lawyers aren’t able to understand the clear language of the ninth amendment, because they don’t like its clear implications. Instead they regard it as a legal “cipher.” I mean, who could be expected to understand what “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” means?

    We are at the tail end of a long project to render the Constitution meaningless.

    “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” — Thomas Jefferson

    1. “but isn’t that the de facto state of all our rights under the current government system?”

      Yes….hell, that was the de facto state of our right under Scalia’s own words IN the Heller decision! Scalia was no champion of an uninfringable right.

  19. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarchy. We just need strong statesmen as governors and legislatures to make that stand! The people will get behind those that will take the stand, but we must first seek out those willing to put all they are on the line for the sake of freedom, not necessarily a political future.

    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”

    Freedom outpost

    1. “Perhaps even more disturbing is that the voters who feel strongest about overriding the federal courts ? Republicans and conservatives – are those who traditionally have been the most supportive of the Constitution and separation of powers,” reports Rasmussen. “During the Obama years, however, these voters have become increasingly suspicious and even hostile toward the federal government.”

  20. How about restricting 1st Amendment rights based on local conditions? Basing constitutional protections on local desires is incredibly dangerous to the nation as a whole and, if it can be done with the 2nd, it can be done with others.

  21. Having Dear Leader replace Scalia with a more progressive mind set is the key to controlling them via gun confiscation. This is a simple government formula: Leave the guns to your slavers, and everyone ruling you will feel much safer. What could be more simple than that? How many times do we progressives have to tell you neanderthal libertarians? We can not oppress the unwashed masses if they have guns.

  22. Scalia’s opinion was Second Amendment Lite… a pathetic attempt to accommodate libtards and other gun-grabbers while giving lip-service to the (pre-existing) right to keep and bear arms.

    The last time the Supremes looked at the Second Amendment (pre-Heller) was in US v Miller. The two lower courts had dismissed charges against Miller for possession of a short-barreled shotgun in contravention of the Gun Control Act of 1932. Ironically, that act was aimed primarily at removing machine-guns and sawed-off shotguns from bootleggers by adding a $200 tax. I say, “ironically” because it was the 18th Amendment and prohibition that created the violence that was to be “cured” by the GCA 1932.

    On appeal to the Supreme Court, Miller was not represented. This wasn’t surprising, because he was dead. Hearing ONLY the government side of the case, the Supremes concluded that they could not “take judicial notice” of the fact that a short-barrelled shotgun was a weapon of the type suitable for military (and thus, militia) use. “Judicial notice” is a term of art to describe the court entering into evidence on their own facts that are incontrovertible, such as that a certain day of the month was a Sunday. The court had three choices: It could reverse the case and enter a judgment for the government. It could uphold the lower court, dismissing the case, or it could revers and remand to the lower court for further procedure. (cont.)

    1. Nitpick: That would be the National Firearms Act of 1934. GCA was 1968.

  23. They chose the third option. In a normal case, the lower case would reopen evidence offered by both sides, consider the guidance from the Supremes, and enter a new verdict – perhaps against dismissing the case, or finding for the government.

    But Miller was dead.

    So the case went into a sort of legal limbo and, I suppose, is still technically open, waiting for Miller to show up and produce evidence.

    The interesting thing is that the Supremes in THAT case had some measure of courage. They were facing a threat of court-packing by FDR (may he rot in hell forever). Even so, they seemed to say, “If a weapon is suitable for the military to use – it’s protected”. Thus, virtually every firearm ever made would be protected. Pop guns (literally – with the little corks) might not be protected. Cap guns (the kind 6-year-olds used to play with before helicopter parents decided to outlaw fun) might not be protected. But everything from a bolt-action .22LR to a full-auto AK-47 would be protected as an individual right.

    Alas, we got milquetoast Scalia with his “unusual and dangerous” doggerel. Dangerous? What kind of gun would it be if it were NOT dangerous. That’s the whole point. Guns are dangerous! Unusual? What makes a gun “unusual”? Is an M-16 “unusual”? What if its ONLY “unusual” because the government restricted ownership for the past 48 years? (cont.)

  24. The real power of the Second Amendment is in the hands of the People. With gun sales running over 15 million a year for the past 12 years, we now have upwards of 320 million firearms in private hands. If the government gets too far out of line, they can be used – to form a new government.

  25. What you are being told in this article is that your constitution is mere putty in the hands of nine old people. You don’t have any rights. What you have is a benevolent dictator. Even the story of Apple defying government demands to create a way to hack your data further proves it. The fourth amendment and probably the fifth by the time this is over are not even a consideration much less a bar.
    If there is no law, only decree, then anarchy becomes imaginable. The second amendment becomes a tool of anarchist.
    They brought it on themselves.

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