The U.S. Supreme Court just announced their decision to take the D.C. v. Heller case. The question they will be answering is:
Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
This is the most fundamental difference we have over the Second Amendment with the anti-gun bigots. They claim the Second Amendment guarantees state governments the “right” (governments don’t have rights, they have enumerated powers) to possess arms. Assuming any significant attention is given to original intent (this may be a big assumption) then it is difficult for me to imagine this will go against us.
This is good, this is very good. Now to answer Uncle and Pro-Gun Progress’s question. If we get the answer we want we start attacking the next most egregious laws such as those in Chicago, New York City, and New Jersey. We must be careful to attack them in the proper order to make sure we have a solid foundation to build upon as we get to questions like, “Does the individual have a right to carry a weapon on school grounds?” If we attack the “grey area” questions first they might be decided against us and the foundation gets built on the wrong side of freedom. Ultimately I want to see the DOJ prosecuting anti-gun politicians and organizations under 18 USC 241 and 18 USC 242. But that, if it ever happens, will be a long time from now. But still, it should be our goal.
I think we already won that part before the case even leaves the starting gate. Consider the wording of the question:
That looks to me like the SCOTUS is assuming as a given that the 2A recognizes an individual right…
As I wrote at PGP, the next step is to overturn Presser v. Illinois and U.S. v. Cruikshank and incorporate the Second Amendment under the 14th Amendment’s “equal protection” clause. Only then can we start overturning state and local laws based on violation of the Second Amendment. As the case law now stands, the Second is explicitly unincorporated, and states and localities may do as they wish.
I agree that is part of the process, but to overturn Presser v. Illinois and Cruikshank don’t we have to attack the state and local laws that are based on those cases? Presser and Cruikshank are so old that they can’t be directly reviewed again.
John, I agree there is a hint of that in the wording of the question. But they could still rule that no such individual right exists, hence the D.C. laws cannot be violating something that does not exist.
I’m worried about the phrase “not affiliated with any state-regulated militia”. Could this be used as an excuse to rule that 2nd Amendment rights apply to individuals…but only those individuals affiliated with a state organization? An organization that states have no obligation to organize, or admit citizens to?
Mike,
Yes, of course. They could come up with a watered down version of the collective rights theory and say it’s an individual right that depends on active participation/organization of your state in order for you to exercise it. But I think that is stretching it a little bit. Since they were at great liberty to reword the question I think the plain and straightforward reading of the question is the most likely interpretation of the stated question.
Actually, NJ illustrates a critical problem, regardless of the future SCOTUS decision. The issue is not that NJ legally prohibits gun ownership. The issue is that NJ politicians and bureaucrats use the concept of “reasonable regulation” to create multiple obstacles for law-abiding citizens.
For example, individual permits are required for each handgun purchase in NJ. A general firearms license is not sufficient. Handgun purchase permits are subject to the whims (and political leanings) of the local PD, and usually take at least 45-60 days to process.
I am hoping that someone will submit a SCOTUS amicus brief on reasonable regulation, perhaps linked to the concepts of licensing or functional guns raised by the Heller case. Otherwise, a Heller victory could be negated by onerous regulation.