Being a Supreme Court Justice might seem like a relatively easy gig. You get to pick the cases you hear, you and a majority of your peers have the last say on any laws that come before you and you have the job for as long as you want it.
For all that it is one of those jobs where acting to aggressively will only make more work for you. If you’re a law nerd like I am, the way that the High Court tried to square the circle between obscene materials and the First Amendment is a great example of how a Court tried and pretty much made a hash of balancing two competing interests.
We are at the start of something similar with the Second Amendment. The recent decisions by the Supreme Court in Heller and McDonald opened the door for a lot of uncertainty about what is and what is not allowed in terms of regulation of handguns.
The basic idea in both cases is that the government, whether Federal, State or Local, can not outright ban the ownership of handguns. This was hailed by the gun-rights advocates as a major victory. It has been seen as the opening of the way for the removal of all kinds of gun control laws that 2nd Amendment absolutists find abhorrent.
The problem for these folks is that in overturning 40 years of settled law, the Supreme Court left lower court judges without clear guidance. When you basically say that everything they learned in law school and from other decisions is invalid you wind up with a blank sheet of paper.
It seems that judges at all levels are resisting any urge to expand on the new regime of rights that Heller and McDonald provided. There is an article in today’sWashington Post that details how winning the big fight has not turned into a wholesale revision of the gun laws in this nation.
The Brady Center to Prevent Gun Violence says that since the two landmark decisions more than 400 cases have been filed or appealed on the grounds that the Supreme Court broadened gun rights and the States have not reacted appropriately. To date they have all been decided against gun owners or gun rights advocates.
The crux of the whole thing is what ancillary rights does a citizen gain by being able to own and keep a gun in their homes for self-defense? The Heller decision states, in part:
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons
This is really where the rubber meets the road now between gun-control advocates and gun-rights advocates. The issue is this part of the paragraph:
or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings
Some of the cases now being heard or appealed are arguing that since the decision says “sensitive places” that should, de facto, mean that any non-sensitive place is out of bounds for regulation of guns via carry laws.
Take the case of Sean Masciandaro. When traveling in the Washington D.C. area he stopped at Daingerfield Island Park to take a nap. He parked his car illegally and was woken by a Park Police officer to be told so.
The officer noticed the knife under Mr. Masciandaro’s seat and asked if he had any other weapons in the car. Mr. Masciandaro told the officer that he had a loaded handgun in the trunk of his car. He was cited for violating the ban on loaded firearms in vehicles on national parkland.
He was convicted and paid the fine, but has appealed. His contention is:
If there is a Second Amendment right outside the home, it surely applies to law-abiding citizens carrying handguns for self-defense while traveling on public highways.
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Personally I think that he is going to lose this appeal if that is the extent of his argument. There is a vast difference between ones home, which has real physical walls and is easily defined as belonging to an individual or family and the public highways.
The ability to defend ones home against invaders is very different from being armed for random occurrences, especially in places like highways where there is an active police presence patrolling regularly.
To try to shoehorn the right to carry arms (even benignly as packed in bag in the trunk of ones car) into the provisions of McDonald or Heller which spoke about home ownership specifically is a big leap to expect a court to take.
Being as fair as I can be, I do understand that having conflicting rules as to how handguns can be transported in places where an overall ban has been overturned is a tricky issue. There must be some provision for those who want such weapons to be able to get them to their homes and (hopefully) to and from ranges where they can practice with this dangerous tool enough to be proficient in its use.
Unfortunately there has not been a lot of desire on the part of State and Local governments to change their existing laws. They are the ones that are supposed to react to the changes of position by the Supreme Court while still acting in the best interests of their constituents. However you can hardly blame them.
Any change in gun control laws is going to be highly contentious with groups from both sides of the issue putting high amounts of pressure on the legislators. Then there is the almost inevitable legal challenge that any new gun control law will face, particularly if it comes down on the side of keeping controls tight.
All of this can be traced back to the, to my mind, bad decision by the Roberts Court to give new but narrow reading of the Second Amendment, and then fail to provide guidance as to how it would evaluate new regulations that it explicitly expected.
Until more cases like Mr. Masciandaro’s reach the High Court and are decided everyone from City Counsels to State Houses to Appellate Judges are holding steady to see which way the wind will blow.
Sadly no matter what case reaches the Supreme Court nor how it is decided is likely to put this issue to bed. When you overturn the apple cart of settled law, it can take decades to put all the apples back. The Supreme Court opened itself up for a lot of work with a fairly specious decision. We’ll all have to wait while they get that work done before we know the real state of Second Amendment rights.
The floor is yours.