ABA says Heller decision "lacks firepower"

[Nightingale]

Second Amendment Opinion May Lack Firepower | ABA Journal - Law News Now

Second Amendment Opinion May Lack Firepower

Posted Aug 8, 2008, 06:18 pm CDT
By Debra Cassens Weiss

Harvard Law School professor Mark Tushnet believes Justice Antonin Scalia’s recent majority opinion striking down a ban on handguns in the home was a compromise decision, crafted to appeal to a swing voter such as Justice Anthony M. Kennedy.

As evidence of a compromise, Tushnet points to Scalia’s statement in the 5-4 decision, District of Columbia v. Heller, that the right protected by the Second Amendment is not unlimited.

Nothing in the opinion, Scalia said, should be taken to cast doubt on laws banning possession of guns by felons or the mentally ill, or barring firearms in sensitive places, or imposing conditions on the commercial sale of guns.

But compromises are inherently unstable, Tushnet said Friday during a session at the ABA Annual Meeting. He predicts that in 10 years or so, the U.S. Supreme Court will issue a new ruling finding the Second Amendment right applies only to overturn complete bans on handguns. Any other regulation will be found acceptable.

In the interim, lower courts will have to sort out a variety of questions. Tushnet listed several.

Does the Second Amendment limit state as well as federal regulation of guns? What type of weapons are “dangerous and unusual,” making them subject to regulation under Scalia’s opinion? What standard of review will courts use? What kind of gun storage laws are permissible? Is there a right to carry weapons on the streets?

Other panelists agreed that Heller will likely have a limited impact in the long run, including Walter Dellinger, the former solicitor general who argued and lost the Supreme Court case. Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence, said the opinion “may turn out to be more symbol than substance.”

But Alan Gura, the lawyer who argued the case and won, said gun opponents appear to be going through stages of grief. They’ve experienced anger, denial and bargaining, he said. Now they need to reach acceptance.

The primary sponsor of the session was the ABA Special Committee on Gun Violence.

[RomanDad]

Whistling past the graveyard....

[Bad Horse]

I know there were a people in power that just kind of ignored court decisions like Brown. How does it work to enforce things that the politicians don't want to do? If DC just keeps saying they're following the court's decision while they're really not, what happens? Does each person they turn down have to sue and get an individual order? Or can the court say "We really mean it, cut it out!"

[RomanDad]

Originally Posted by Bad Horse

I know there were a people in power that just kind of ignored court decisions like Brown. How does it work to enforce things that the politicians don't want to do? If DC just keeps saying they're following the court's decision while they're really not, what happens? Does each person they turn down have to sue and get an individual order? Or can the court say "We really mean it, cut it out!"

Yes.

[Bad Horse]

Originally Posted by RomanDad

Yes.

Yes to everyone having to sue for themselves, or yes to the court saying stop that we really mean it?

[X-ffdo]

Idealogs will do what they think is right (For them and the public) They will not "get" what the U.S. constitution says. Look at the courts tight decision.
Those guys were hired to interpret the U.S. constitution!!!
Same thing happens at the county sheriff level, each one does what they think is right. The way the laws are written, sometimes "kill the goose"

[RomanDad]

Originally Posted by Bad Horse

Yes to everyone having to sue for themselves, or yes to the court saying stop that we really mean it?

Yes to the court saying "quite it.... We really mean it this time".

Its called Contempt of Court.

[sealbeach]

Originally Posted by Bad Horse

Yes to everyone having to sue for themselves, or yes to the court saying stop that we really mean it?

Seems to me that the citizens of New Orleans had to sue the city (mayor and chief of police) to get their firearms returned, which had been illegally taken from them during the hurricane.

Although the gunowners won, it still took more action and months of delay to actually get the miserable mayor and police dept. to release their guns, which by then were mostly rusted junk, caused by improper storage in a wet cargo container. I think I read the whole saga in one of the NRA magazines.

[NikNak]

Originally Posted by sealbeach

Seems to me that the citizens of New Orleans had to sue the city (mayor and chief of police) to get their firearms returned, which had been illegally taken from them during the hurricane.

Although the gunowners won, it still took more action and months of delay to actually get the miserable mayor and police dept. to release their guns, which by then were mostly rusted junk, caused by improper storage in a wet cargo container. I think I read the whole saga in one of the NRA magazines.

Yes on the above story. Many of the firearms were not "logged in," so they were not able to be retrieved/valued appropriatetly. When dealing with the government ALWAYS get a receipt with a legible name, or badge number on it.

[Quietpi]

Careful, us idealogues could take offense. The difference between idealogues and everybody else isn't whether or not we agree with the other side, but whether or not we have a rational basis for our arguments. Without a rational basis, there's no point in even trying to convince a person of something.

The basic difference between "our side" and "theirs" is the basis upon which our opposite philosophies are built -- our "First Thing." The advantage we have is that ours is demonstratively and intuitively true, and theirs is just as demonstratively false. Because of that, we can always win a truly rational argument. The "only" problem we face, usually, is getting them to admit that they've lost.

Would you rather have your house built on a foundation of concrete, or a pile of gravel? Thought so...

Nevertheless, if you choose to debate, or have to, always do it with another idealogue. Debating with anybody else is a waste of time. You won't accomplish anything, and it just makes him mad. Hey, that reminds me of an ancient Chinese proverb - something about singing pigs...

The point, I guess, is that the high court is now pretty much on our side. But there's going to be a lot of arguing with people who won't admit it, who's egos are built on false assumptions, and will have to be forced to comply. The outcome of the war is clear, but there are many battles that remain for us to fight. Like Vicksburg and Gettysburg all over again. Our job is to make sure we know our arguments, from top to bottom, better than the other side. Then enjoy the combat, knowing that, ultimately, we win.

So please, be an idealogue!

[sealbeach]

Originally Posted by NikNak

Yes on the above story. Many of the firearms were not "logged in," so they were not able to be retrieved/valued appropriatetly. When dealing with the government ALWAYS get a receipt with a legible name, or badge number on it.

Yes, IIRC squads of jack-booted thugs were breaking into homes and seizing weapons at gunpoint. More than one of the framers of the constitution were rolling over in their graves during that time. How many citizen's rights were violated during those halcyon times???

The embarassing part of this is that when we, the greatest country in the world, which is a model of democracy and personal rights--finally had a real bona-fide disaster on our hands, our "elected officials" not only allowed this to happen, they ORDERED the gun seizures...and the people who we hired to uphold the law and defend our rights were right out there in front, performing this vile task.

Of course this resulted in many laws passed which should in the future prevent this from happening again, but the fact remains forever that it DID happen, and COULD happen again--of course years later, the courts sorted it out, but that is small consolation in light of what really did happen when the SHTF.

Bad enough to have your village underwater, however some citizens were managed to hold the hordes of looters,zombies and bandits at bay, but when the people who should have been helping broke down doors and took their weapons, that must have been the final blow.

/rant mode off.