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Law Seminar: Halbrook and Lund

I wanted to provide a summary for everyone yesterday of the Law Seminar, but I was tired and tipsy by the time we got done with the day’s events. The first thing that surprised me was how easy most of the speakers were to follow. Being geared toward lawyers, I was worried there would be much that would be over my head. But a lot it would be familiar to most people who follow this blog.

The first panel was Steven Halbrook and Nelson Lund. Most of their presentation was an update on the happenings since Heller, most of which was familiar. The most interesting thing Lund noted was that during the McDonald oral arguments, Scalia seemed to somewhat repudiate some of the dicta on gun control in Heller, which was the whole “presumptively constitutional” spiel . Quoting here from the materials:

As noted earlier, however, Heller also contains some broad dicta endorsing various forms of gun control that were not at issue in that case. Interestingly, Justice Scalia, who wrote the Heller opinion, specifically notes during the McDonald oral argument that “those are matters that we didn’t decide in Heller.” This raises the possibility that the Court might point out in McDonald that such dicta are not binding under the doctrine of stare decisis. Because the most onerous forms of gun control are almost invariably adopted by state and local governments, and narrowly written opinion in McDonald could open the way to more new constitutional challenges than Heller seemed to invite.

Halbrook went over various aspects of oral arguments, concentrating to the largest degree on Chicago’s disastrous arguments before the Court, Halbrook notes that the policy arguments made by Chicago are “irrelevant to the incorporation issue.”

Chicago argues that firearms prohibitions limit crime, and thus that firearms owners have no rights that the State is bound to respect. Yet the issue here is purely legal — whether the Fourteenth Amendment protects the right to keep and bear arms…

.. Chicago objects that Heller’s “common use” test may include “a weapon generally in common use for lawful purposes in one locale (such as a high-powered hunting rifle with precision sighting equipment popular in rural Illinois),” this “precluding a ban on use by Chicago gangs seeking to assassinate rivals.”

Halbrook notes, “This illustrates Chicago’s assumption that it can demonize and ban any firearm.” I’ve often said on this blog, the other side feeds our worst “paranoid delusions” by arguing for them in reality. They aren’t in favor of gun bans, sure, until we want to take that ability away, then they argue they ought to be able to ban any gun. And they wonder why we don’t take them in good faith?

4 Responses to “Law Seminar: Halbrook and Lund”

  1. Gudis says:

    This doesn’t make sense; “high-powered hunting rifle with precision sighting equipment popular in rural Illinois” the rifles may be popular, but they aren’t used for hunting, there is no rifle hunting of deer in Illinois unless they’re talking about muzzle-loaders.

  2. Jujube says:

    I’m confused. Doesn’t the 10th Amendment give Chicago (and Illinois) police power? The 10th Amendment is what gives the states power over public safety.

  3. Jeremy says:

    Jujube – the “states’ rights” argument for infringing upon basic rights was set aside by the 14th Amendment. That is what McDonald v. Chicago is all about. Applying the 2nd Amendment to Chicago, because they are infringing upon basic rights.

    “Public safety” concerns are overruled by the 2nd Amendment. The policy decision has already been made the Americans may “keep and bear arms.”

    All that is left is to determine what regulations local governments may place on gun ownership. Complete bans will obviously been ruled unconstitutional. We will get a clearer picture of what is constitutional in late June.

  4. Jujube says:

    Jeremy,

    OK, but it seems to me that Chicago was arguing it’s 10th Amendment rights, not the 14th Amendment. Until the 2nd Amendment is incorporated, it only applies to the Federal Government.

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