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View Full Version : Heller: what level of scrutiny does it call for?


Librarian
02-14-2009, 2:59 PM
Stan_Humphries posted about a UC Hastings Law Review symposium that happened yesterday.

You folks who have to actually work for a living and can't afford to take a whole day off missed out. The presenters here were a pretty good subset of the Pros from Dover in the 2nd Amendment line.

Leadoff was Sanford Levinson (http://www.utexas.edu/law/faculty/profile.php?id=SVL55) - author of The Embarrassing Second Amendment (http://www.guncite.com/journals/embar.html) which was acknowledged there as a call to liberals to take the 2nd seriously.

First panelist speaker was Don Kates (http://www.independent.org/aboutus/person_detail.asp?id=739), known to many of us through Nordyke (Don Kilmer was in the audience), author of 1983's Handgun Prohibition and the Original Meaning of the Second Amendment (http://www.guncite.com/journals/kmich.html), and Brannon Denning suggested Don had taught most of the presenters there.

Pre-Heller, I would have recommended those two essays as a really good place to start when getting into thinking about the 2nd Amendment; they're still good, but a bit more for historical background. I think the collected amici briefs for Heller (http://dcguncase.com/blog/case-filings/) may be a better, if more concentrated, source today.

So, the symposium had three panels:
Who, what and where, with Kates, Carlton Larson (http://www.law.ucdavis.edu/faculty/Larson/) and Craig Lerner (http://www.law.gmu.edu/faculty/directory/lerner_craig). Lerner is a co-author with Nelson Lund (http://www.law.gmu.edu/faculty/directory/lund_nelson).

Michael Kent Curtis (http://law.wfu.edu/faculty/profile/curtismk/bio/), on 14th amendment incorporation. (Lunchtime presentation)

Standard of Review, with Calvin Massey (http://www.uchastings.edu/faculty-administration/faculty/massey/index.html) (UC-H), Brannon Denning (http://cumberland.samford.edu/faculty/brannon-p-denning) and Nicholas Johnson (http://law.fordham.edu/ihtml/fac-2bioPP.ihtml?id=507&bid=158)

Implications of the opionion, with Alan Brownstein (http://www.law.ucdavis.edu/faculty/Brownstein/), Beth Hillman (http://www.uchastings.edu/faculty-administration/faculty/hillman/index.html) (UC-H) and Rory Little (http://www.uchastings.edu/faculty-administration/faculty/little/index.html) (UC-H)

Scrutiny is, generally, the examination of the level of government interest when a right is limited. Lots of stuff on the web - wikipedia here on strict scrutiny (http://en.wikipedia.org/wiki/Strict_scrutiny) - and the interest in Heller is associated with the exceptions in Scalia's opinion: felons, mentally ill, sensitive areas, commercial aspects.

The opinion simply does not say. In Professor Massey's explanation, it provides a 'constitutionally operative rule' but not a 'constitutional decision rule'.

So, they make intelligent guesses.

Several speakers on the first two panels pretty persuasively argue that reasonableness is excluded, 'rational basis' is explicitly rejected in the opinion, and 'strict' leads to contradictions.

On 'strict', they suggest that the contradictions are things like not all constitutional rights are removed from felons, and not all violent behavior with guns is classified as a felony. Don Kates argues that part of the problem is the current use of 'felony' - in the early Republic, that amounted to 'civil death' in most cases. Larson researched and found that the first felon no-firearms law was in New York in 1897, and there is weak evidence that some such restriction may have applied in the 18th century to some of the other cases.

So the level of scrutiny would seem to be less than 'strict', greater than 'rational basis', and we still don't know.

And the discussion of common usage was pretty entertaining. In sum it appears that the government can restrict the use of new technology, then later successfully argue that because the technology was not in wide use, they could restrict its further application! Circular....

Denning also remarked on the current 'uses' of Heller in cases; the current score is about 85-0 in favor of the government. He said that some courts may be going to issue a statement that in their jurisdiction, failure to bring up Heller is NOT 'ineffective assistance of counsel (http://www.lectlaw.com/def/i083.htm)', an indication that the courts don't want to see any of those.

In large part, this was the authors presenting their papers. There's a stack of drafts of forthcoming journal articles, all nicely bound, that I get to read this weekend. (They're all marked 'draft! do not cite or reproduce' so I won't; they're all due out in June - 60 Hastings LJ)

Nicely done, Hastings folks.

ETA: not being a lawyer, I really am not able to offer much more than this layperson's view of the presentations. And Nordyke was not mentioned.

ETA II: Hastings web site back up, so added links to faculty web pages: Massey/Hillman/Little

nick
02-14-2009, 3:11 PM
Informative, as usual.

Kid Stanislaus
02-14-2009, 5:02 PM
I've been skeptical from day one that Heller would make a WHOLE lot of difference when push came to shove.

DDT
02-14-2009, 6:11 PM
I've been skeptical from day one that Heller would make a WHOLE lot of difference when push came to shove.

So far it hasn't. Push is lower courts, shove is SCOTUS.


I feel SCOTUS is likely to spank the lowers when they hear their next major 2A case.

Librarian
02-14-2009, 7:04 PM
I've been skeptical from day one that Heller would make a WHOLE lot of difference when push came to shove.
Ah, another aspect of the discussion yesterday.

Denning talked about US v Lopez (http://www.law.cornell.edu/supct/html/93-1260.ZS.html) (1995) and how, at the time, it was thought that would slap the lawmakers around on the Commerce Clause. Turns out that Lopez has had very little influence. See especially Morrison (http://www.law.cornell.edu/supct/html/99-5.ZS.html) and Raich (http://www.law.cornell.edu/supct/html/03-1454.ZD1.html) and discussions of these.

It's way too early to tell about Heller. It's possible it will go the way of Lopez, possible not.

I'd think it prudent to wait for Nordyke before guessing at the trend. As I believe it is 7x57 saying, lots of people are expecting things in "internet time" - days, if not hours. Courts are generally running on "horse-drawn carriage", "pre-telegraph" time - months, if not years.

Yankee Clipper
02-14-2009, 7:47 PM
Ah, another aspect of the discussion yesterday.

Denning talked about US v Lopez (http://www.law.cornell.edu/supct/html/93-1260.ZS.html) (1995) and how, at the time, it was thought that would slap the lawmakers around on the Commerce Clause. Turns out that Lopez has had very little influence. See especially Morrison (http://www.law.cornell.edu/supct/html/99-5.ZS.html) and Raich (http://www.law.cornell.edu/supct/html/03-1454.ZD1.html) and discussions of these.

It's way too early to tell about Heller. It's possible it will go the way of Lopez, possible not.

I'd think it prudent to wait for Nordyke before guessing at the trend. As I believe it is 7x57 is saying, lots of people are expecting things in "internet time" - days, if not hours. Courts are generally running on "horse-drawn carriage", "pre-telegraph" time - months, if not years.
And as William Gladstone said "Justice delayed, is justice denied". Here we are over a hundred years later still proving him right and paying through the nose for it! Darn it! (Please add your own expletive as necessary!)

Librarian
02-14-2009, 9:18 PM
And as William Gladstone said "Justice delayed, is justice denied". Here we are over a hundred years later still proving him right and paying through the nose for it! Darn it! (Please add your own expletive as necessary!)
Maybe.

Would you prefer Congress-stimulus-bill time?

Some things just should not be done in a hurry. Other things can be improved with a technology upgrade - but I think reading and evaluating and decision-making can often be excluded from that. Legal things usually don't happen in OODA (http://en.wikipedia.org/wiki/OODA_Loop) loop time.