Ho Hum

Bryan Miller is ho hum about the Supreme Court taking the Heller case.  Joe Huffman and Thirdpower are already on it.  Joe says:

[The second amendment is] overwhelmingly categorical and never been used to overturn a law since it was adopted, therefore we shouldn’t take it seriously and can enact laws that violate it without concern to the constitutionality of the law. Interesting logic. So, Mr. Miller, do you advocate treating the 13th amendment in the same way?

Read the whole thing.  I actually think Bryan is right.  The ruling won’t fundamentally be earthshaking…. over the short term.  But over the long term, I wouldn’t be so ho hum.  The first amendment similarly started out absent any earthshaking ruling, and with broad license for the government to regulate speech.  Somewhere along the line, free speech went from this:

“The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” – Justice Oliver Wendell Holmes Schenck v. US, 1919

to what we have today, which are broad free speech protections that would never allow for something like the Espionage Act to stand today.  I similarly expect the early second amendment cases to resemble the early first amendment cases.  I don’t think the Supreme Court will ever bar all regulations of firearms, but I suspect the end result of this second amendment jurisprudence will probably leave us with much less gun control than Bryan Miller would like.  I agree with Joe; you’re seeing masked frustration.

5 thoughts on “Ho Hum”

  1. I think you’re right. There will be no sudden change, but if we can get a few solid incremental rulings out of the Supremes in the next few years, true implementation of the second amendment will unfold gradually over the next 20 or 30 years.

    It’s frustrating to face that wait, but at least we will have a future.
    We have come very close to going the way of the English several times in the last 50 years.

  2. Let’s not forget that SCOTUS allows laws like the McCain/Feingold act to infringe on the 1st amendment. I suspect they will be even more flexible on what they allow to infringe on the 2nd.

  3. That was, to be blunt, a different court. We’ve had 2 votes change over since then, both from the majority in a 5-4 decision.

    OTOH, that is the reason the NRA opposed the case in the beginning; Bush getting to replace 2 judges was not exactly foreseen. OTOH, we also lucked out in that his first picks were shot down, IMHO…

  4. Actually, the Second Amendment has been used to strike down laws. See Nunn v. State (Ga. 1846), and it appears to have been used by the Idaho Supreme Court (along with Idaho Const. Art. I, sec. 11) In re Brickey (Ida. 1902) to strike down a city ban on carrying of guns. State v. Nickerson (Mont. 1952) is also arguably a case where the Second Amendment, along with the Montana Const. RKBA provision, overturned a criminal conviction.

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