The Heller Pessimism is Back

With the Supreme Court ready to hear the next case in what’s going to be a long stream of Second Amendment litigation, the pessimists are coming back again.  Both here in my comments and at SayUncle. I can’t say I really understand it, and still stand by Heller being a significant victory.

One of the things I’ve noticed about gun owners is that there’s a certain characteristic about many that make them revel in victim hood. To some degree, I can understand this, because for a large part of the last century, we spent it on the defensive, and there have been a lot of cultural changes in the country that many gun owners haven’t been happy with. But I don’t think that’s a reason for continuing pessimism and victim hood.

Are we going to get machine guns down at the corner hardware store for all? Probably not without a titanic shift in public opinion on the matter. But we can probably get a pretty broad Second Amendment right. There is no constitutional right that is absolute. Not having any restrictions at all on guns was never in the realm of possibility. But if you had told me at the beginning of this decade that the Supreme Court, out of the gate, would throw out a safe storage law, and that DC’s handgun ban would be history, I would have said you were nuts. If you had told me Chicago’s handgun ban would be in serious jeopardy by the end of the decade, I would have said you were a wild eyed, cheery optimist. But that is now the reality we live in.

It would have been nice if the Supreme Court had just ruled “It’s an individual right suckas, and for the states too! Machine guns for everyone!” but that wasn’t even going to happen. What did happen was pretty good, and better than I would have imagined was possible. It’s time for gun owners to stop wallowing in the victim hood mentality. It accomplishes nothing except disabling us from pursuing further victory. You’re declaring defeat before we’ve even begun this stage in the fight. Heller offers us a lot we can use to expand Second Amendment rights. Far more than it offers the other side. That the other side would grasp on to the few morsels that were left in there for them is understandable and predictable. But we won that day. They didn’t. They know that too, but can’t admit that much in public. I think we will win the day again. We’re not victims anymore. We’re winning our rights back.

27 thoughts on “The Heller Pessimism is Back”

  1. Well said, Sebastian. Heller answered a HUGE and fundamental question that, quite frankly, I was amazed there was ever a debate on: does the 2A protect an individual’s right to arms? Historical context shows it does, and the court recognized that.

    This case is now the next logical step. Now that we’ve answered the “fundamental right” question, does that right apply equally to all US citizens, or do states have a right to provide further regulation? As with Heller, I strongly believe we’re going to be pleasantly surprised by the decision. We may not get everything we want, but what we get will be substantial IMHO.

  2. I don’t think it is victimhood so much as cautious pessimism. As you say, we’ve beaten down for years. Overconfidence has gotten more than one person killed and perhaps hoping for a grand victory is just tempting the Liberal gods to spit upon us.

    We’d rather expect a neutral or bad outcome and be pleasantly surprised at a good one like Heller rather than not get what we hope for and be devastated and angry.

    When Heller happened, I was hopeful but concerned about a bad outcome. We got more than hoped for. My principal concern being that the Court would declare an enumerated right as obsolete and cast it upon the altar of political correctness. That didn’t happen.

    But here we stand again and, as Keven Baker has said, this one really is for all the marbles. Heller laid the foundation. This is the big one, the one that decides our future and perhaps what foundation we’ll either construct our rights upon for the future or being the first swing of the wrecking ball that destroys us.

    If we don’t get incorporation, it will be the same as if Heller never happened. Worse, it will allow the seeds of our destruction as a Constitutional Republic to begin to grow. If the Court can ignore an enumerated right as binding on the States, no matter how inconvenient, but grant such a stature to an unenumerated right emanating from the penumbras of the Constitution like abortion, our Constitution for all intents and purposes will no longer exist. Unchecked political and judiciary will shall be the new order and this country will ultimately be destroyed.

    So forgive me for more than a little pessimism and nervousness at approaching this issue. But like anyone dreading bad things happening, we need to get it over and done with. Living with the Sword of Damocles about what our rights really mean hanging over our heads for decades has done us no good. Better to get it over with, good or bad, and set on us a path we can at least see and begin down.

    The offense I take away at looking at this so far is the knowledge that the decision won’t be unanimous. That there will be justices who are supposed to understand the Constitution and interpret it properly will ignore the Founders own writings and the 10th or 14th Amendment and decide that the 2nd Amendment can’t apply to the States due to their own beliefs and biases. I would be surprised at 6-3 (or 5-3 if Sotomayor is forced to recuse herself). That those justices who would vote against incorporation would be allowed to continue on the bench is a travesty.

    Heller will become Miller II without Incorporation. It will be eventually tossed aside and relegated to a footnote. Heller’s success in getting laws backed down or reigned in has been due to the threat of incorporation and the challenge to the SC those places would be forced to bear. A loss here would remove that threat and, I think, usher in a new Dark Age for gun owners. Such a loss, I believe, would translate into a new political will at the State level and Chicago-style infringement would be the eventual rule of the day, not the current exception it enjoys.

    Time will tell. Here’s hoping for the best.

  3. well, if we lose (and i don’t think we will) then we will have to demonstrate how our 2nd Amendment interpretation works together with this line in the Declaration

    “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government….”

    i think that it is everyone’s God given right to act the part of Eyeore and sing the “woe is me” song, but pardon me if i don’t offer them any sympathy while they do it.

    naturally i am convinced that there is no way anyone with any sense at all can believe that the 2nd Amendment doesn’t apply to the States as well as the Feds.

  4. I didn’t mean to be a downer, myself. I am cautiously optimistic here. Just don’t want to see a decade and half of progress set back is all.

    If for no other reason, a little common sense should prevail, (even though I know that the Court only deals with the law as written and the Constitution, as they absolutely should) that cities with the tightest firearms restrictions tend to have the highest violent crime rates.

  5. Pessimism and victimhood isn’t a gun owner thing, it’s a human thing. And it’s an especially easy thought pattern to fall into when you’ve actually been wronged. But the measure of the man (or group) is how he deals with it, not how he complains about it! Our star is rising, and we need to realize it. Sure, there are setbacks and it may not be rising as far or high as we would prefer, but until very recently all it was doing was sinking and fading. We need to snap out of this habit and recognize that we’re making real progress!

    It’s also important to remember that the court ruled 9-0 in favor of an individual right in Heller, but four of the justices then went on to say that the D.C. gun ban did not infringe upon it. But it was still a 9-0 decision trouncing the ridiculous “collective right” nonsense

    That’s what I anticipate happening here: it’ll be 9-0 in favor of incorporation, but four of them will go on to say, “but this regulation strikes me as reasonable despite all that.”

    Bigots are just like that. Be happy that we’re beating them!

  6. Well said. Heller was HUGE. Chicago will be HUGE. People who say otherwise have no sense of how constitutional law works or have their “Brady Blinders” of extremism on. You need to build precedent and build on it.

    I remember during Heller a lot of people moaned because Gura said that they were making no objections to registration. The time will come to address that.

    The same thing with his latest case. I live in DC. Do I expect to be carrying in public next year because of his lawsuit? No. The goal is to just get a ruling that “carry” is part of 2A.

  7. I think more than a few are so eager for the next revolution that these victories are actually setbacks to their agenda. I breathed a sigh of relief when Heller came down the right way.

  8. DCDC and Sebastian are right. I saw gun rights disappear due to comlacencty and that people just accepted the liberal dogma that guns kill and should be banned.

    I lived in Montgomery County MD and that is a liberal county. They never faced the harsh reality of having to defend themselves so could indulge in the luxury of think banning guns would reduce gun deaths.

    in this world thee are a lot of basic assumptions that people just pick up and believe unless challenged. Sometime the challenge is a good argument and sometimes it is reality.

    I recall a visit with my child’s doctor. The doctor asked about bike helmet use. My child answered that he used them when I made him but otherwise he did not accept the state’s authority.

    Later the doctor used the example of seat belts and automatically assumed that I approved of that law also. I said no. I do not that it was my choice and not the state. The doctor brought up the injuries and I said that I actually inspected fatal accidents and still disagree. That set the doctor back.

    You see the doctor assumed I accepted basic assumptions and I did not . Not that I do not believes in safety but that risks are mine to decide. A parent has the authority and the state is usurping my authority.

    Gun Control arguements were like that . People automatically assumed that everyone agree that guns were bad.

    The progress snuck up on people and 9/11 changed a lot of minds.

    Without the run of states that approved CCW I do not think Heller would have accepted the individual right.

    By the time Heller reached the Supreme Court the Court knew they had to uphold the individual right. The Bush DOJ explicity stated it and the people may have risen in revolt.

    Heller was a huge win. If the DOJ had not worried that the 1934 act would have been in danger the machine gun issue would not have come up. Gura caved on that because that was not his goal.

    Gura said later that if tried to push that arguement he would have lost the whole bit. I disagree but his basic assumption was that Supreme Court would not go with the idea that anyone can have a machine gun.

    The real underlying resistance is the idea that people can not be trusted with dangerous items.

    CCW proved that with handguns the people could be trusted. Machines gun had not been proven in common use to be safe.

    Incorporation was alluded in Heller so Heller set up for incorporation.

    Supreme Court wants to l;ock the 2A in control before new justices can change the progress. Supreme Court is political and the justices have worried about diminishing freedoms.

  9. I don’t think you represent the argument of the Heller pessimist side accurately at all. I cannot answer for everybody, but I do not think anybody really expected the judges to rip off their robes, jump into the middle of the room naked, and scream out, GUN RIGHTS FOR ALL! F**K YEAH! while fist-bumping Gura, playing air guitar, and performing offensive pelvic thrust motions in the general direction of the defendant.

    Now, I am a layman, and I’m not even in America, so my understanding might be flawed, but I understand that the dicta, though not directly imbued with a legal force in and of themselves, present an influence on the interpretation of the law by future courts, either in future SCOTUS review or in lower courts. Therefore, what is said in the dicta is highly important.

    The court has held it would be “startling” to imply that “the National Firearms Act’s restrictions on machine guns… might be unconstitutional”, and the Second Amendment does not protect the ownership of those firearms not commonly owned by private individuals for lawful purposes. While the ‘common use’ statement can of course be interpreted in every which way by future courts and plaintiffs, the text of the majority opinion explicitly states that sawed-off shotguns and machine guns are not protected. [Specifically, pages 52 through 54] Even if we patiently omit the fundamentalist argument that felons should not have their gun rights revoked,, there still remains the question of machine guns and sawed-offs.

    Now, as you yourself correctly stated, it was not within the purview of this case to address anything beyond the case proper. As such there was no need that I, as a layman, can perceive – to add this. The court could have just focused on the issue of Heller’s pistol license application.

    Now, you say a world without Federal gun laws is impossible. I note this existed in the past, and will again in the future.

    But the status quo is like a cart loaded with bricks. It’s difficult to move this cart, even in a regular climate. The authors of the dicta (whether it was done to appease a 5th judsge or for whatever reason) just added a few more bricks to my cart, and maybe even unscrewed a wheel and made off with it.

    Sure it’s nice that you move forward, but you moved forward by setting a ceiling on how far forward you can get, and that ceiling is far lower than where I want to go.

  10. I don’t want to be taken the wrong way, here …

    But one of the things I’ve noticed about gun owners is that some of them are just out there … some of them have whacky ideas and do out of their way to find the evidence they need to maintain and build those whacky ideas. Some people are just overly paranoid.

    Gun owners, by and large, have a healthy mistrust for certain things … the government rightly being one of them. But I have to repeat what Alan Gura has said before. Regarding these issues of arms and arms control … sometimes, gun owners can be our worst enemy.

  11. Simply ask yourself how bad would it have been if Heller was decided the other way!

    It would have been BAD. It would have been a major victory for brady and miag. Plans for the next “assault” weapon banned would be being discussed in congress.

  12. everyone, read Carl & Steve’s comments. Then read them again. Steve, i am going to use your comments next time someone says that Heller wa no big deal.

  13. I’ve seen the same thing over and over and over.

    I cannot count how many times I’ve heard people say at gun shows, in gun stores, at a range, “Yep, it’s just a matter of time before they outlaw everything. It’ll be 20 years at the most. It’s all over with, and there’s nothing we can do about it.”

    I think it’s because deep down, everybody wants to be seen as the “sage on the stage,” the grizzled veteran with the realistic outlook, the one who’s been there and seen it, who doesn’t have false pie-in-the-sky delusions, etc.

    And it’s so easy to make correct predictions by merely being pessimistic.

    But I swear…..there have been times when I’ve wanted to walk up to the person saying stuff like that, hand him or her a pistol with one round in it and just say, “Here….it’s loaded….do the right thing for me, yourself, and everybody else.”

  14. Sebastian is correct. Some folks think it can and should be settled in their lifetime. Well here’s a nice tall glass of reality: FUGEDABOUDIT. And take it with a nice chaser of the history of the human condition.

    We’re doing pretty damn good in my estimation. And look at what’s coming down the line politically in the next few years. Should be pretty interesting, no?

  15. MicroBalrog:

    Heller opened a lot more doors than it closed, and it didn’t specifically close the door on much of anything. It might still be possible to get machine guns someday, but it’s not going to happen soon. It may never happen. But it was never going to happen without Heller, so I’m not all that concerned that Gura had to dodge the issue to win.

    Read the whole opinion. Don’t just read the parts the anti-gun people focus on then believe all is lost.

  16. Sebastion:

    Thats the thing. Heller mentioned some very narrow restrictions that Brady is trying to spin into justification of broad gun control. For some reason some pro RKBA folks are buying into it.

    Oh, and for you guys who want machine guns and silencers-many of us are just fighting for a revolver in our house and a rifle with a pistol grip. When we all get to the level of firearm access you enjoy, then we can talk machine guns.

  17. dcdc wrote, “Oh, and for you guys who want machine guns and silencers-many of us are just fighting for a revolver in our house and a rifle with a pistol grip. When we all get to the level of firearm access you enjoy, then we can talk machine guns.”

    dcdc, you need to move to America, sounds like.

    There are still pockets of it left, you know.

  18. I’m going to make a slightly different argument. The 2nd amendment does not NEED to be incorporated!

    The first amendment needed to be incorporated via the 14th because it explicitly stated “Congress shall make no law…”. It took the 14th to apply that to the states.

    The 2nd amendment on the other hand simply states… “SHALL NOT BE INFRINGED”. The 2nd amendment does not need to be incorporated simply because it ALWAYS applied to the states and does not need additional incorporation.

  19. Hillbilly, Im a city guy, what can I say. Also, Its kind of fun living 4 blocks from SCOTUS in Dick Hellers neighborhood at this time. I missed the Heller arguements but will take the morning off to see the chicago case.

    If any of you visit Capitol Hill, stop in the Tune Inn. You will right at home.

  20. The argument has change substantially since Heller; we have moved the ball down the court. We no longer argue on whether it is an individual right and whether the 2A means that guns can be banned.

    Scalia controlled the opinion so that eliminated concurrences and differing opinions, that will just mess up the future cases, he gave a few throw away lines like reasonable restriction like that was in the original militia acts that prevented felons, drunkards and crazy folk. In fact he deleted drunkards as a prohibited class and made sure that women and children by implication are allowed them. This leaves the issue of age restrictions up to various legislatures where public opinion can argue that issue. Any statute is easier to overturn than what is stated in a Supreme Court decision.

    This is a very small fig leaf that Helmke is using. Reasonable does not mean severe restrictions. In fact Gura already made DC get off the California list as too arbitrary. Don’t allow the Joyce Foundation and Helmke’s arguments about reasonable scare us; it is a very weak reed based on Scalia’s opinion.

    Scalia gave a bit away by very vague and later deniable restrictions on unusual and dangerous. This was to relieve fears that the 1934 Act was imperiled. But he never said that machines guns are not covered by the 2nd. I thought that was very sly. Unusual and dangerous could be RPG’s and Bazookas, not the standard M4. You have to admit less people have RPG’s and Bazookas than machine guns. Plus the 1934 act allows machine guns and only taxes them to avoid that act being challenged as violating the 2nd. But the 1986 law is very exposed to challenge. That is a total ban of a class of arms that are common, just based on year or manufacturer. That is capricious and arbitrary. This also shuts down the “assault weapons “ bans since they are not unusual or dangerous as compared to hunting rifles.

    Also Scalia left in a very broad definition of arms, which encompasses anything from edge weapons, numchuks, and tasers or anything a person could use or throw. Please see the relevant section on pg 7.

    Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of
    Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his
    defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar). This includes states prohibition of body armor for civilian and non-police

    Scalia gave the pro and con of incorporation with the definite implication that all of the Bill of Rights has to be incorporated against the States. It was like he gave the primer for the next case.

    I have concluded that the McDonald case was picked because it allows the Privileges and Immunities Clause to be reargued that were demolished in the Slaughthouse cases.

    I think Scalia made it clear that Heller would be easily incorporated under Due Process, but they want to reinstate Privileges and Immunities and need the right case. I hope that Gura gives them a good way to allow that and not be derailed by extraneous hypothetical cases.

  21. Right Wing Wacko: your opinion is shared by Judge Silberman, the appeals court judge who sent the Parker/Heller case to the Supreme Court. And I would not be surprised to see at least one of The Nine include that in their decision next summer.

  22. “But he never said that machines guns are not covered by the 2nd.”

    Yes, but he also said it was “startling” to think the NFA is unconstitutional: ” Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.”

    He further goes on to say:

    “We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”

    Clearly, under the dicta, machineguns and sawed-off shotguns are not meant to be taken as protected by the 2nd.

    As for bigger guns, let’s just cross this bridge when we get there.

  23. Pessimism vs Optimism

    Back around 2002-2004 over at the bulletin board, debate raged over the sunset of the Federal 1994 AW ban. I was surprised at how many people were solidly convinced that the ban would never sunset and a permanent ban would replace it. I, of course, was one of the optimists.

  24. “Yes, but he also said it was “startling” to think the NFA is unconstitutional: ” Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected.”

    Miller is another precedent, like Slaughterhouse, that needs to be dumped. It should never have been decided in the first place, since only the government presented an argument (Miller being dead, and all). SCOTUS at the time should have dismissed it as moot.

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