I realize that lawyers and law professors have to play the game and pretend that precedent, history, dictum, etc. are important to the Supreme Court. However, us "legal realists" and "attitudinalists" realize that just the opposite is the reality. The Court will do whatever it wants on just about any issue, incl. the 2nd Amendment, selecting the next President, etc. In spite of all the legalese. However, Heller has created a cottage industry for many, and it's always fun to argue about how many angels can dance on the head of a pin.
Ray Kessler Prof. of Criminal Justice Sul Ross State Univ. From: [email protected] [mailto:[email protected]] On Behalf Of rufx2 Sent: Wednesday, March 04, 2009 2:00 AM To: [email protected] Subject: Heller's Four Exceptions-Larson Four Exceptions in Heller Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit Carlton F. W. Larson Hastings Law Journal, Vol. 60, 2009 "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt upon 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." ---Heller The Court offered no citations to support this statement, and its ad hoc, patchy quality has been readily apparent to commentators, who have speculated that it was compromise language designed to secure Justice Kennedy's vote. More cuttingly, Justice Breyer suggested that these exceptions amounted to little more than "judicial ipse dixit." Although these exceptions are arguably dicta, they are dicta of the strongest sort. The Court described these exceptions as "presumptively lawful regulatory measures," and it is hard to imagine the Court invalidating them in a future case. For all practical purposes, these issues have been decided, and decided in favor of constitutionality. 1. felon disarmament laws significantly post-date both the Second Amendment and the Fourteenth Amendment. An originalist argument that sought to identify 1791 or 1868 analogues to felon disarmament laws would be quite difficult to make. 2. The strongest originalist argument for the exception for the mentally ill rests on the traditional ability of justices of peace to confine individuals with dangerous mental impairments. Specific eighteenth-century laws disarming the mentally ill, however, simply do not exist. 3. the vague reference to "sensitive places" is not itself explicitly grounded in eighteenth- century sources, and the Court may intend to require more specific justifications for each particular sensitive place. 4. The commercial restrictions with which we are most familiar are almost entirely twentieth- century innovations. 44 Stat. 1059 (1927) (no handgun sale through mail) 48 Stat. 1236 (1934) (National Firearms Act) 52 Stat. 1250 (1938) (Federal Firearms Act) 82 Stat. 1213 (1968) (Gun Control Act of 1968) See also HANDBOOK OF THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS AND PROCEEDINGS OF THE FORTIETH ANNUAL CONFERENCE 563 (1930) {Uniform Fire Arms Act of 1930 prohibited delivery of a pistol to any person of "unsound mind,"} If originalism fails to provide a sufficient grounding for all of the Heller exceptions, perhaps they can be justified under some form of balancing test, that is, by one of the typical tests that the Court uses when evaluating other constitutional rights. This Part explores whether any one test can explain each of the exceptions. I conclude that the answer is yes, but only under a low standard of scrutiny. Specifically, I argue that it is doctrinally impossible to conclude that strict scrutiny governs Second Amendment claims, while also upholding the four Heller exceptions. Felon It is therefore implausible to claim that an across-the-board exclusion for all felons from this one particular constitutional right can be justified as narrowly tailored under strict scrutiny. The Court must be assuming, nonetheless, that the risk of inappropriate gun usage by felons outweighs any self-defense benefit to the felon. I entirely agree with this policy judgment, but it is important to note that it is a policy judgment nonetheless, not explicitly grounded in anything in the Second Amendment's text or history, at least as that text and history is viewed by the Heller majority. The felon exception would, however, pass a reasonableness test. It would probably also pass intermediate scrutiny, since it is arguably substantially related to an important state interest. It may also pass an undue burden test, although this may be somewhat more doubtful, given that the law does exclude felons entirely from gun ownership. Mentally Ill this exception, if focused on a specific sub-set of the mentally ill, would probably be upheld under strict scrutiny, it is by no means a clear-cut case, and a broader law would almost certainly fail. It is, however, a relatively easy case under a reasonableness test, and possibly an undue burden test or an intermediate scrutiny test. Sensitive Places lower courts will have to address, case by case, whether particular locations are sufficiently "sensitive" to fall within the exception. One answer may be that Heller self-defense right simply has little applicability outside the home, which the Court claims lies at the heart of the Second Amendment. This is not entirely implausible, since Heller provides little guidance on the geographic scope of the self- defense right. But it's not especially consistent with Heller either. First, if the right has little applicability outside the home, there were would be no need for the Court to single out "sensitive" places, as opposed to places outside the home more generally. Second, although it is possible that most cases of self-defense arise in the home, this is far from obvious, and Heller at least hints at the value of self-defense outside the home.70 70 Heller, 128 S.Ct. at 2793 (citing James Wilson's reference to the natural right of defense of "one's person or house"). Commercial Regulation The existence of this exception is yet further evidence that the relevant test is not strict scrutiny, as most commercial regulations, not only of guns, but of any product, would probably fail strict scrutiny. Such regulations, however, would pass a reasonableness test, an undue burden test, and probably intermediate scrutiny as well.[?] [doesn't address the meaning of "commercial" as not including private sale or probing the baseline beyond which one could fairly be considered a commercial seller] Pieced from http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1347186_code366600.pdf?abstr actid=1347186&mirid=1
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