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movie zombie
01-03-2009, 11:52 AM
interesting....and depressing, unless incorporation is going to be productive?

Posted January 2, 2009 | 11:19 AM (EST) Alerts
Adam WinklerProfessor at UCLA School of Law

The New Second Amendment: A Bark Worse Than Its Right

In June, 2008, the U.S. Supreme Court issued a landmark ruling on the Second Amendment right to bear arms, D.C. v. Heller. For over 70 years, the federal courts had read that amendment to protect only a state's right to organize militias, like the National Guard. In a long-awaited victory for the gun rights movement, the Court reversed course and held that the Second Amendment protected an individual's right to own guns for personal self-defense.

So far, the victory hasn't turned out exactly as the gun rights folks had hoped.

As many legal scholars predicted, the Supreme Court's decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.

To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.

Since Heller, its Gun Control: 60, Individual Right: 0.

Before the Supreme Court's decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning.

About the only real change from Heller is that gun owners have to pay higher legal fees to find out they lose.

The basis for most of these lower court rulings upholding gun control is a paragraph near the end of the Supreme Court's decision that, at the time, seemed like a throwaway. The Supreme Court 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 on the commercial sale of arms."

What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories.

"I would have preferred that that not have been there," says Robert Levy about this laundry list of Second Amendment exceptions. Levy, executive director of the CATO Institute, which funded the Heller litigation, believes that paragraph in Scalia's opinion "created more confusion than light."

But to a die-hard gun rights advocate, the problem is exactly the opposite: the paragraph shed too much light. It revealed that the Supreme Court believes that almost all gun control measures on the books today are perfectly lawful -- a message that hasn't been lost on the lower courts.

Hardliners in the gun rights community cannot help but be disappointed with their long-awaited triumph.

RRangel
01-03-2009, 12:05 PM
Yes. If you want an f16 fighting falcon in your driveway the heller decision might be depressing. Then there is reality.

BitterVoter
01-03-2009, 12:37 PM
Yeah! I was charged with keeping an F-16 in the driveway without proper registration tags....I tried arguing "What part of 'shall not be infringed' didn't you understand?" and the charge stuck....Darned Heller!!! Now I have to go to DMV and register the darned thing.

But seriously, I am not surprised it is this way. To my understanding the way that they managed to pass all these laws and prohibitions was their argument that the 2A didn't apply to individuals and thus could be infringed, but now that the courts say it IS an individual right you think they are going to change? No!

They didn't pass gun control and the power it comes with to give it so easily. We will have to FIGHT for every inch of the restoration of our rights.

motorhead
01-03-2009, 12:55 PM
this clown is a tool. what about the prohibitions that were voluntarily removed because the agencies involved saw the futility of fighting heller? chicago has yet to wise up and d.c. seems to have to put up a token resistance, but they will lose. incorporation is a real possibility in many states, ca included.
it does look look we'll have to wait a while for nfa to be stuck down, especially under the new regime.

Smokeybehr
01-03-2009, 1:19 PM
Cluebat guys... Winkler was a co-writer for an Amici brief on the DC side of Heller. (http://supreme.lp.findlaw.com/supreme_court/briefs/07-290/07-290.mer.ami.pet.profs.pdf) Does anything more need to be said?

hoffmang
01-03-2009, 1:24 PM
We've only had two "losses" in Federal Courts and those were the NRA and SAF cases against Chicago at the District Court level. That was not unexpected and we'll either win those cases at Appeal or back to Supreme Court..

The interesting litigation is against states and locals after incorporation. Nordyke is going to be a huge blow to the Winkler POV (and he knows it's coming.)

-Gene

Dr Rockso
01-03-2009, 1:32 PM
Blah blah blah we didn't really lose Heller blah blah.....

Josh3239
01-03-2009, 1:39 PM
Bah, Huffington Post is a joke. I'd be better off getting my news from Uncle John's Bathroom Reader.

Just quickly scimming through that, it is a joke that the author claims that since Heller gun control has been victorious versus the pro-2A. Sounds like someone didn't do their homework :rolleyes:

Gray Peterson
01-03-2009, 2:04 PM
Mostly criminals challenging their convictions. Welcome to the court system, where you have to be a squeeky clean person to have any hope of challenging laws that violate the 2nd amendment, versus violations of the 4th, 5th, and 8th amendment, where criminals are free to challenge and to have struck down bad searches, forced confessions, and torture.

FreedomIsNotFree
01-03-2009, 2:19 PM
About the only real change from Heller is that gun owners have to pay higher legal fees to find out they lose.

Oh really? Tell that to Gura and Co. We'll see who ends up paying in the long run.

And this is a so called "professor" at UCLA School of Law?

M. Sage
01-03-2009, 3:37 PM
As many legal scholars predicted, the Supreme Court's decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.

Wow. Can't avoid using the Brady-supplied talking points, can they?

Man, HuffPo is useless.

nicki
01-03-2009, 4:11 PM
Yes the Supreme Court ruled that gun restrictions on felons, and the mentally ill and restrictions and other common sense gun laws are constitutional.

All I have to say to the professor is keep opening your mouth, that way when we bury your "unreasonable" gun laws, the "sheeple" won't be upset because we will agree with you that reasonable gun laws won't get overturned on 2nd amendment grounds.

40 states have reasonable regulations on carrying guns, so at worse, only 10 states will have to modify their laws.

40 plus states have reasonable laws on EBR's, so only a few states will be effected when the courts make the other states comply with national norms.

Yes, all gun laws that can show a compelling public saftey benefit under a strict scrutiny standard will still be around.

Guess I won't be able to pick up my Nuke:43:

Nicki

Balisarda
01-03-2009, 5:01 PM
I hold HuffPo in the same regards as I do the KosKids. If you look at Mr. Winkler's biography on his UCLA page, he's essentially been an academic elite (or is that an elitist academic?) all of his working (term used loosely) life. Yes, FreedomIsNotFree, he is considered the cream of the crop among his UCLA compatriots. His active involvement in the District of Columbia v. Heller case gives him the "absolute authority" in the matter and anything that he says will be gobbled up by the Left as gospel. Posting on HuffPo is just him preaching to the choir. Dr Rockso (the Rock and Roll Clown, I presume?) hit the nail on the head because that's exactly the point Mr. Winkler is trying to spin. The Left's mindset is elitist, scary and void of common, rational thought. And that's the mindset that's going to be the law of the land on the 20th.

Josh

7x57
01-03-2009, 6:04 PM
OK, I don't know the ins & outs of practical law, so I defer to Gene and the other legal wonks on all that. But this sort of behavior follows precisely from what I take to be his world-view.

Truth is consensual. Textual meaning is no more than the reader's subjective response. Therefore, having lost in the attempt to build a monolithic consensus on the meaning of the Second Amendment, they now must redouble their efforts to control the consensus on what it means. If you can convince everyone that not much has changed, then you win.

It's also important to set up future plays. If you've convinced everyone that not much has changed, and then a court actually holds otherwise, then you are already set up to brand it as an aberrant, extremist decision.

I'm half tempted to offer to shave an outline of Antonin Scalia on my head if that isn't the basic underlying strategy for the foreseeable future, but maybe I'll pass on that. :-)

7x57

jacques
01-03-2009, 7:12 PM
"It revealed that the Supreme Court believes that almost all gun control measures on the books today are perfectly lawful -- a message that hasn't been lost on the lower courts."

But the decision reversed a gun control measure "on the books". This is BS. For The states that have laws that follow the federal laws, unlike California, that may be closer to the truth, but for places like here, NY etc., it will change.

CCWFacts
01-03-2009, 8:43 PM
Yeah, so, 60 criminal defendants have used Heller to fight their convictions. NO ONE on our side expected Heller to overturn the "felon in possession" law (maybe to eventually give some felons some procedure for getting their rights back, but not a blanket removal of the FIP ban).

NO ONE on our side wants felons to be able to possessing guns, except perhaps after some rigorous process where they prove that they are no longer a danger.

If Heller would have allowed any felon or mentally incompetent person to go out and buy a gun at a gun store, I think the bulk of the NRA membership would have opposed it. But it didn't do that, and so these crim. defendants are just grasping at straws when they invoke Heller.

These aren't defeats for us. This professor understands this and his article was dishonest in its conception.

trashman
01-04-2009, 5:25 AM
Man, HuffPo is a very loud echo chamber.

Fixed it for you :)

--NEill

RRangel
01-04-2009, 8:29 AM
OK, I don't know the ins & outs of practical law, so I defer to Gene and the other legal wonks on all that. But this sort of behavior follows precisely from what I take to be his world-view.

Truth is consensual. Textual meaning is no more than the reader's subjective response. Therefore, having lost in the attempt to build a monolithic consensus on the meaning of the Second Amendment, they now must redouble their efforts to control the consensus on what it means. If you can convince everyone that not much has changed, then you win.

It's also important to set up future plays. If you've convinced everyone that not much has changed, and then a court actually holds otherwise, then you are already set up to brand it as an aberrant, extremist decision.

I'm half tempted to offer to shave an outline of Antonin Scalia on my head if that isn't the basic underlying strategy for the foreseeable future, but maybe I'll pass on that. :-)

7x57

I would say that the article is propaganda. The party has not even started yet and as you say the victim disarmers are trying to control the narrative with "nothing has changed" lies. Just wait until incorporation. I want to see the look on his face when California gun laws come crashing down like a house of cards.

movie zombie
01-04-2009, 9:32 AM
will those cases filed by felons have any effect on the public or courts against us?

i'm hoping someone writes a rebuttal blog for print. i actually think it would get printed if worded right.

movie zombie

hoffmang
01-04-2009, 9:59 AM
will those cases filed by felons have any effect on the public or courts against us?


Over the short term, yes. See both People v. Yarburough and People v. Flores that I've posted here. Granted that both of those were in state court here though.

-Gene

Harrison_Bergeron
01-04-2009, 1:48 PM
I say we blow up this guys inbox with links to the Nordyke ruling and all subsequent CA and non CA incorporation rulings

tiki
01-04-2009, 4:55 PM
I can't believe that this guy is a law professor. It doesn't surprise me. I work with people that graduated from engineering school that couln't engineer their way out of a closed garage.
I would love to be sitting in his class.


The New Second Amendment: A Bark Worse Than Its Right


Sorry, its the same Second Amendment. It's just that now, the Supreme Court has clarified its meaning for those of you too stupid or ignorant to understand it.


In June, 2008, the U.S. Supreme Court issued a landmark ruling on the Second Amendment right to bear arms, D.C. v. Heller. For over 70 years, the federal courts had read that amendment to protect only a state's right to organize militias, like the National Guard. In a long-awaited victory for the gun rights movement, the Court reversed course and held that the Second Amendment protected an individual's right to own guns for personal self-defense.

Um, wrong. For over 70 years, federal courts have misread the Miller ruling to interpret it as limiting the Second Amendment to State Militias, rather than the true ruling which held that the Second Amendment didn't apply because that firearm wasn't the type protected by the Second Amendment.


So far, the victory hasn't turned out exactly as the gun rights folks had hoped.


Not true. No one ever said that there would be sweeping changes over night. However, there were sweeping changes in D.C. and several other areas around the country changed existing laws because of that ruling.


As many legal scholars predicted, the Supreme Court's decision led to a tidal wave of Second Amendment challenges to gun control. Every person charged with a gun crime saw the Supreme Court's decision as a Get Out of Jail Free Card.


Yeah, so what? Criminals are going to try whatever they can for a defense. That wasn't too hard to predict.


To date, the lower federal courts have ruled in over 60 different cases on the constitutionality of a wide variety of gun control laws. There have been suits against laws banning possession of firearms by felons, drug addicts, illegal aliens, and individuals convicted of domestic violence misdemeanors. The courts have ruled on the constitutionality of laws prohibiting particular types of weapons, including sawed-off shotguns and machine guns, and specific weapons attachments. Defendants have challenged laws barring guns in school zones and post offices, and laws outlawing "straw" purchases, the carrying of concealed weapons, possession of an unregistered firearm, and particular types of ammunition. The courts have upheld every one of these laws.

Is this clown serious? Did anyone believe that the 2nd Amendment protects the rights of felons, drug addicts, illegal aliens and persons convicted of violence to own firearms?


Since Heller, its Gun Control: 60, Individual Right: 0.

Before the Supreme Court's decision, none of the numerous challenges to gun control laws raised in recent months would have had any hope of winning. Now, with a revolutionary ruling recognizing a renewed individual right to keep and bear arms, they still have no hope of winning.


Ok, great. So criminals, insane people and drug dealers couldn't buy guns before and now they still can't buy guns. Whoopie!! Great victory for you.


About the only real change from Heller is that gun owners have to pay higher legal fees to find out they lose.


Really? I guess you haven't been to Washington D.C. then. And, while you sit in the dark blowing through your kazoo, keep in mind that incorporation hasn't happened yet. Not yet. Heller doesn't do anything for us in Kalifornia, yet. Not yet.


The basis for most of these lower court rulings upholding gun control is a paragraph near the end of the Supreme Court's decision that, at the time, seemed like a throwaway. The Supreme Court 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 on the commercial sale of arms."


No, jackass, the basis for most of these lower court rulings upholding gun control is the fact that most of these cases were poor challenges. The basis for these lower court rulings is that although the right to keep and bear arms is protected, certain individuals should still be prohibited from owning firearms.


What gun rights advocates are discovering is that the vast majority of gun control laws fit within these categories.


Vast majority, maybe. Sure, background checks, age limits, waiting periods, citizenship requirements; those may all be held to be reasonable controls. The court may find that requiring a permit to carry is a reasonable restriction, but, prohibiting the carrying of a firearm by pretty much the whole population, like here in California, isn't a reasonable restriction.


"I would have preferred that that not have been there," says Robert Levy about this laundry list of Second Amendment exceptions. Levy, executive director of the CATO Institute, which funded the Heller litigation, believes that paragraph in Scalia's opinion "created more confusion than light."


Of course. I'm sure he would have preferred that they granted incorporation at that time too. I'm sure many gun control advocates would have preferred that a a lot of stuff wasn't in the decision.


But to a die-hard gun rights advocate, the problem is exactly the opposite: the paragraph shed too much light. It revealed that the Supreme Court believes that almost all gun control measures on the books today are perfectly lawful -- a message that hasn't been lost on the lower courts.

Hardliners in the gun rights community cannot help but be disappointed with their long-awaited triumph.

No, no, no. I am a die-hard gun rights advocate. Never in my wildest dreams did I ever envision the Supreme Court ruling that the 2nd Amendment protects the rights of felons and drug dealers. Never did I think that the Supreme Court or any other court would rule that a waiting period or a background check or an age requirement is unconstitutional. I am not disappointed in the ruling and I anxiously await incorporation. Then, especially here in Kalifornia, we will see the effect of the Heller ruling.

_Odin_
01-04-2009, 5:37 PM
Cluebat guys... Winkler was a co-writer for an Amici brief on the DC side of Heller. (http://supreme.lp.findlaw.com/supreme_court/briefs/07-290/07-290.mer.ami.pet.profs.pdf) Does anything more need to be said?


This.

also, AWB doesn't fall under any of the "throwaway" statements in the last paragraph noted in the blog - the CA AWB and any future AWB's are toast, imo.

It suprises me that this guy is from UCLA - my impression of the school was that most profs. are from the "right" side, so to speak.

Kid Stanislaus
01-04-2009, 7:11 PM
" The Supreme Court 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 on the commercial sale of arms."

Hmmmmmmmmmmm, "or laws forbidding the carrying of firearms in sensitive places........" Now, can one conclude that the carrying of firearms in general is now protected?