Brannon Denning was (and is) right -- Review of the Court's of Appeal
written opinions "reveals that the lower courts have demonstrated a
remarkable obtuseness, sometimes lurching into intellectual dishonesty.
As I have shown, the courts have indulged in constitutional gymnastics
in an effort to avoid construing the Second Amendment to contain
anything resembling [an effective] right ... . On this point alone,
courts might be said to be construing the wording of a provision of the
Constitution to be meaningless."
And condemning themselves to public opprobrium.
"Justice Breyer's Triumph in the Third Battle Over the Second
Amendment" ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2050420
)
George Washington Law Review, Vol. 80, No. 3, p. 704, 2012 (
http://papers.ssrn.com/sol3/PIP_Journal.cfm?pip_jrnl=142574 )
ALLEN ROSTRON (
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=286383 ),
University of Missouri at Kansas City - School of Law
Email: [email protected]
In recent years, the Supreme Court has issued two landmark decisions
about the constitutional right to keep and bear arms. District of
Columbia v. Heller rejected the notion that the Second Amendment
protects only organized militia activities, and McDonald v. City of
Chicago found that the right to keep and bear arms applies to state and
local governments via incorporation into the Fourteenth Amendment. Those
decisions left important questions unanswered. In particular, the
Supreme Court declined to specify what level of scrutiny or test should
be used to assess the validity of gun laws. Lower courts are now
wrestling with that crucial issue. Examining the decisions made so far,
this Article argues that the third phase of the fight over the right to
keep and bear arms is moving toward an unusual result. The lower court
decisions reflect the pragmatic sentiments of Justice Breyer’s
dissenting opinions in Heller and McDonald. Frustrated by the
predominantly historical approach and the puzzling categorizations
suggested by Justice Scalia and the other members of the Heller and
McDonald majorities, the lower courts have focused on contemporary
public policy interests and applied a form of intermediate scrutiny that
is highly deferential to legislative determinations and leads to all but
the most drastic restrictions on guns being upheld. Justice Breyer thus
stands poised to achieve an unexpected triumph despite having come out
on the losing side of both of the Supreme Court’s recent clashes over
the right to keep and bear arms.
****************************************************************************************************************
Professor Joseph Olson, J.D., LL.M.
o- 651-523-2142
Hamline University School of Law (MS-D2037)
f- 651-523-2236
St. Paul, MN 55113-1235
c- 612-865-7956
[email protected]
http://law.hamline.edu/constitutional_law/joseph_olson.html
_______________________________________________
To post, send message to [email protected]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
