We can test the hypothesis that Heller and McDonald played a substantial role in sapping the strength of the gun control movement by taking serious gun control off the table by looking to see whether the gun control movement had greater intensity before Heller and McDonald.
Mike Dorf
September 25, 2013
The Non-Paradoxical Role of the Supreme Court With Respect to Gun Control
[Dorf is law professor at Cornell. Even though he appears to have an anti-gun bias he has done a thoughtful and fair analysis of the political dynamics of gun control as well as the post the above quote was taken from.
I believe it was Sebastian who hypothesized after the Heller decision that people would stop supporting the anti-gun organizations because banning guns was off the table. Basically, if the end game wasn’t confiscation then what was the point? Dorf addresses that and arrives at essentially a softer version of the same conclusion.
What Dorf doesn’t address and perhaps doesn’t understand is that with the Heller decision gun rights supporters now see most existing gun control laws as infringing the rights guaranteed by the Second Amendment. Viewed through the lens of the First Amendment, any law that has a chilling effect (in the legal sense) on the exercise of the right to keep and bear arms should be struck down as unconstitutional. The outrage at having our rights violated motivates us and increases the intensity of gun rights people. Most hard core anti-gun people surely recognize at least some portion of this and are demoralized by it.—Joe]
“Most hard core anti-gun people surely recognize at least some portion of this and are demoralized by it.”
Because of that demoralization, I think the problem at this point isn’t so much the big anti-gun believers but the useful idiots that cynical politicians can still use to delay anti-gun law reform. The zero-information voters that will still pull that lever for more gun-control because it sounds good and they haven’t given it any thought. THOSE are the people we need to reach.
Unfortunately, a lot of Anti-gun zealots are in denial over Heller and MacDonald – don’t even recognize their importance.
I still run into people who argue the militia part. Still. Its crazy.
Just point to USC, Title 10, section 311.
http://www.law.cornell.edu/uscode/text/10/311
Basically, young men can posses them, women and the elderly can’t. That usually shuts them up; when it doesn’t, it puts the argument on a totally different level.
The Supreme Court hasn’t spoken out about concealed carry yet but I believe they are going to find it a privilege and not a right — and nothing in Heller or McDonald says that they won’t.
It depends on what level of scrutiny they decide it needs. If it’s strict scrutiny, then concealed carry most places with minimal hassles will be all but written in legal stone.
… and if it’s a privilege to carry concealed, then it cannot be a privilege to carry openly, and still have the 2nd Amendment carry any semblance of a right.
All prohibitions on open carry go POOF! overnight.
It will, ipso facto, be an infringement for any person to be stopped for peaceably and openly carrying a firearm.
I don’t think the Supremes want to go there.
You guys are optimists. The reality is that the Supreme Court rarely pays attention to the letter of the Constitution. They are, in that respect, only slightly better than Congress.
By way of demonstration, look at how often they speak of “balancing”. There is NO Constitutional justification for the notion of “balancing” in Constitutional cases. So anytime you hear a judge use the words “balancing” that’s a signal they are about to do something that tramples the Constitution.
We do have Federal Courts ruling this way. See Seventh Circuit Court of Appeals in Moore v. Madigan.
Almost for certain some sort of carry outside the home will be found to be a right. I agree that concealed carry has a high likelihood to be found as a privilege subject to regulation. In which case open carry will be considered subject to very little regulation.
“…any law that has a chilling effect (in the legal sense) on the exercise of the right to keep and bear arms should be struck down as unconstitutional.”
Key word being “should”. We should not need a Bill of Rights at all, but the reason we do is because people try to control each other when they should not.
As I’ve said for years, the left knows exactly how a right is supposed to work. They demand that it work the way it’s supposed to work when it’s something that will advance the Progressive cause. When they disagree with it they pretend it either doesn’t mean what it says, it never existed in the first place, it’s subject to various interpretations and limitations, in these enlightened times we no longer need it, or we can no longer afford it (and “think of the children”; which is the height of irony considering the One Right they do recognize, and which isn’t in the constitution while the second amendment is in it).
You’re getting drawn into a stupid game even talking with certain people. They don’t mean anything they say– They’re just playing with you.
I was fortunate to attend a debate between Alan Gura and Professor Dorf, hosted at Cornell Law School, about “The Future of Firearms Law”. It’s available online at http://www.lawschool.cornell.edu/spotlights/Law-School-Hosts-Debate-on-the-Future-of-Firearms-Law.cfm.
“But what about the public opinion polls that show that Americans favor at least some new gun-control measures—like expanded background checks—by a very wide margin? Are these polls wrong?”
I kept hearing about the 90% meme all through the debate this year, but no one ever actually produced that survey for examination. I suspect that a more introspective comparison between what that survey actually poled and what the proposed legislation was to deliver would have found much discrepancy. This, I believe, accounts for the outcome much more so than the intensity of the two sides, as the writer suggests.
I think a huge part of that is that the average person does not know how restrictive current gun law already is.
Not to mention that polling groups have been shown to have their own axes to grind (example: PPP suppressing a poll showing that Giron was going to get kicked out by the recall).
They are simply waiting to pack the court with their lickspittles and reverse Heller and McDonald.
I tend to agree with you. They will view the individual right to self defense (ignoring what a collective right to self defense could possibly have as meaning and significance) recognized by Heller as a sort of Plessy v Ferguson to be nibbled away as it was, or killed with one fell swoop as they believe it to have been nibbled.