Heller Resistance

In August of 2009, "[a]n appeals court in Chicago ... ruled that the federal, state or local government can require all citizens to register their firearms under penalty of law."

The U.S. 7th Circuit Court of appeals decided that the Heller decision does not affect the 'right' of local (Cicero) officials to mandate firearms registration. "[T]he Second Amendment is no obstacle to mandatory gun registration."

"There is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance," the court said in an opinion written by Judge Diane Wood, a Clinton appointee. "Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under Section 62-260 of its ordinance."

Apparently, the 7th Court (in a 3-0 decision) feels that "regulated gun possession" falls well within that inconvenient "shall not be infringed" thingie.
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And in October of 2009,

A New Jersey appeals court has concluded that Americans have no Second Amendment right to buy a handgun.

In a case decided last week, the superior court upheld a state law saying that nobody may possess "any handgun" without obtaining law enforcement approval and permission in advance.

And ...

... New Jersey Appellate Division Judge Stephen Skillman wrote on behalf of a unanimous three-judge panel that Heller "has no impact upon the constitutionality of" the state law.

That's because, Skillman said, the Supreme Court did not strike down the District of Columbia's de facto handgun ban but instead simply ordered the city to issue a permit. In other words, while Americans may have the right in general to possess arms, the exact contours of that right have not been mapped, especially as the Second Amendment applies to state laws. (The court's majority opinion last year said: "We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement.")

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Now, in November, 2009;

... a Maryland appeals court has followed suit. A three-judge panel ruled last Thursday that the Second Amendment does not interfere with a Maryland law that generally restricts state residents from carrying handguns.

That's not much of a surprise. What is remarkable is that Judge Albert Matricciani went out of his way to write that even if the Second Amendment applied to state laws, Maryland's statute would be perfectly constitutional in the wake of the U.S. Supreme Court D.C. v. Heller decision last year to invalidate the District of Columbia's handgun ban.

[Emphasis in the original CBS report]

If you're confused, it's probably about whether the involved judges are taking the narrow view to preserve States Rights, or they're deliberately interpreting Heller narrowly because they are loath to give up pre-existing personal bias in favor of Gun Control.

It would be nice to believe the former.

The 10th Amendment to the Constitution states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Most of us are for States Rights even when they may walk a fine line between various Constitutional issues.

The American Constitution is unique among all nations in all history in that it recognizes the pre-eminent rights of "the people".

[Delete digressions pertaining to "rights of the people" and purported predations upon these rights by various presidents and branches of The Legislature.]

The Judiciary has been especially active in the past few years.

For example, in Roe v Wade the Supreme Court interpreted the constitution to allow for abortion ... although it is not specifically mentioned in the Constitution. The argument was that

"The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling."

(One wonders where in the American Constitution they found a citation to "the 2nd and 3rd trimesters" of a pregnancy.)

Moving quickly to 2nd Amendment interpretations, U.S. v Miller established the basis for disallowing 2nd Amendment protections, specifically in that a court case which was not even contested results in the prohibition of short-barrelled shotguns (and thus other 'special case' firearms restrictions; it's a 'slippery slope'.)

Essentially the decision was based upon the violation of a tax law., which required payment of a tax and acquisition of a 'tax stamp' on certain firearms. This has not changed in law.

Roe V Wade established the ability of the Supreme Court to interpret the constitutions however they wished. Perhaps more importantly, U.S. V Miller established the ability of a District Court to establish a precedence, under less than optimum conditions ("No appearance for appellees "), which attenuates the 2nd Amendment of the Constitution of the United States of America.

Now we see a new movement by local and District courts to undermine a finding of the Supreme Court of the United States (SCOTUS).

Your personal opinion is probably a reflection of your personal bias. Yes, you are biased. Me too.

I like the Heller decision, although I don't think it went far enough.

I don't like the recent court decisions pertaining to Illinois, New Jersey, and Maryland. (I note in passing that these are among the states which, a year or two ago, proposed bills in favor of Microstamping Ammunition.)

Today, we have local and district courts passing decisions which seem to modify the 'original intent' of the Heller Decision. But do they? These courts don't think so. They think that the Heller Decision was itself a 'narrow definition' of a fine part of the law; in this case, a Constitutional Interpretation.

The points they make are:

1. The Heller Decision only applies to Federal Districts;
2. It does not apply to registration ("regulation"), but only to absolute refusal to allow ownership of a firearm; or
3. Heller permits ownership, but does not address 'possession' under all circumstances (carry outside one's own property).
   

Those are the three main points of the issues raised by these points, and should come as no surprise. When the Heller Decision was published, there was much discussion about the issues which were deliberately not addressed by the Supreme Court.

In effect, the Right to Bear Arms folks then, and do now, consider this our own 'slippery slope'.

• If DC can't prohibit possession, can any other locality or state?
• If a locality or state can't prohibit possession, can it 'regulate' possession by requiring registration and/or issue of a 'permit' to possess a firearm?
• Does the interpretation applies to 'firearms', are the laws equally applicable to 'handguns'?
• Does the 2nd Amendment then allow 'carry' or 'concealed carry' of firearms? And if so, to what extent and under what conditions?
  
• Can private businesses (and shopping malls, churches, schools/universities, court houses, restaurants which serve alcoholic beverages, etc.) prevent patrons/visitors from carrying firearms on the premises? If so, under what circumstances?

These are just a few ... a very few ... of the questions which must be addressed before we really know what the 2nd Amendment means, and how it is applicable in all circumstances of American society.

Brother, we have a long way to go before we have defined exactly what the 2nd Amendment means in Modern Society.

We who espouse a 'loose' interpretation of the 2nd Amendment can expect to lose a few, some, perhaps many of these contests. Most of them will probably be contested in the courts for decades.

And at first we should expect to lose more than we win.

But today, because of the Heller decision, the shoe is on the other foot.

Before, we could not afford to lose a single court contest. Now, we may lose a few decisions, but as more decisions accede to our "Right to Keep and Bear Arms" philosophy, it may be possible to revisit the 'lost' issues and win new interpretations of our rights.

We cannot win until specific decisions --- which restrict our rights --- have been brought to the courtroom. Having local and District courts find against the Second Amendment (under various interpretations) only provides us with the opportunity to appeal, and appeal, and appeal.

The Gun Control folks find themselves on the other side of the battle now. Depending upon the political make-up of the Supreme Court (and one is reluctant to depend on a trend toward 'Originalism' in SCOTUS), it may be possible in this century to prevail against "miss-interpretations" from the last century.

The bottom line here seems to be that we need to elect an Executive who is predisposed to seat Federal Judges who are Original Constitutionalists, rather than those who view the Constitution as a "Living Document".

Obama?

Unless we can recover control of the Executive Branch, we are so screwed!