Balkinization: Shameless self-promotion

Shameless self-promotion

Sandy Levinson

I spent yesterday in New York, in part to be interviewed by Bill Moyers for the edition of the Bill Moyers Journal that is being nationally broadcast on Friday, December 21 (I think at 9PM in most places on Eastern Standard Time, 8:00 in Texas and other places on Central Time), with repeated airings thereafter. I'm hoping that some of the viewers will feel like responding to my "dedicated blog," http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/ and, of course, I would welcome anyone from Balkinization who would feel like responding.

Also, David Kairys and I had a discussion/debate this morning on Philadelphia public radio station WHYY, available on podcast at http://www.whyy.org/91FM/radiotimes.html, on the forthcoming Heller case on the Second Amendment that will be decided by the Supreme Court next year. David, whom I respect greatly, is fearful that a decision upholding the DC Circuit will lead to a spate of decisions striking down what gun control legislation (other than DC-like absolute prohibitions) exists. My position is that it's almost wholly unlikely to have such consequences and that it would merely promote a lot of litigation, most of which would end up upholding regulation on "reasonbleness" grounds. As Adam Winkler has shown in a very illuminating article, state court judges in states that protect guns in their state constitutions usually uphold such regulation as exists. My fear, as a Democrat more than a lawyer, is that the decision may play a highly mischievious role in the presidential election without having much real importance on the underlying issue of guns in American culture. Anyone who wants an illuminating analysis of why the decision is almost totally unlikely to still debate on the issue, however it comes out, should read Mark Tushnet's new book Out of Range, a remarkably fair-minded overview of both the legal and public-policy debates in less than 150 pages.

Posted 5:03 PM by Sandy Levinson [link]

Comments:

Sandy:

If the Supreme Court rules, as have state courts enforcing their state constitutional protections, that we have a right to keep arms in our own homes for self defense, then I would suggest that many municipal and state laws making it nearly impossible to own commonly possessed firearms are in serious jeopardy.

I suspect the interesting reasonableness arguments will arise when courts consider laws placing limits on the ability to bear/carry a firearm out in public outside the home.

For example, 19th century courts still enforcing the 2d Amendment recognized that it was reasonable to prohibit the concealed carry of firearms because only criminals did so while the law abiding carried firearms in the open.

However, today, I suspect that that open carry of firearms down the street would not agree with our more delicate modern sensibilities and concealed carry is likely to be more widely accepted as the spread of concealed carry statutes indicate.

It should be very interesting to see how how the Second Amendment is applied to the modern era.

# posted by

Bart DePalma : 6:41 PM

I wonder, as a matter of fact, what the number of the purportedly "many municipal and state laws making it nearly impossible to own commonly possessed firearms" is. I suppose it's possible that a decision upholding the DC Circuit would lead to a successful challenge, say, of the Sullivan Law in New York City, but, as David Kairys was arguing this morning, the fact is, for better or worse, that relatively few states engage in vigorous control of firearms.

I think what is most interesting about Heller is that it is being financed by a relative "outsider" to the gun wars; my impression is that neither the NRA nor the National Hangun Coalition is happy with it, largely, I suspect, because neither can count to five (which I can't either). This is one of the relatively few cases where even experienced Court-watchers (in whose group I barely count myself) are uncertain. Or, to be more accurate, I believe I can predict six votes (Thomas, Scalia, Breyer, Souter, Ginsburg, and Stevens), but I'm really curious about Alito, Kennedy, and Roberts (in ascending order). I don't perceive any of these three as "gun types," and it's not clear to me that law-and-order-conservatives would necessarily want to open this Pandora's box, unless, as I suspect, they will simply say that flat out prohibition is unconstitutional and say that, of course, "reasonable regulation" short of prohibition is likely to be just fine.

# posted by

Sandy Levinson : 7:44 PM

In addition to the Chicago and DC prohibitions, and the severe restrictions in NYC, it is very difficult to purchase a pistol in New Jersey. Approval of an application for a Firearms ID card takes at least 90 days, and can take a year in some localities. Even with that approved, there is an additional process for each pistol purchase that takes at least 30 days in most localities and requires 2 written references -- for every purchase. Additionally, every local town and city administers the Firearms ID process itself. So, even if you've waited the necessary months for your firearms ID in one town, and then move a few miles to the next town, the process has to start all over again from the beginning. There is no way simply to change your address with the state. I hope that that process would not survive review, inasmuch as it's pretty clear that a wait of months simply to change your address amounts to harrassment, not protection of the public safety.

Massachusetts, Maryland, and California prohibit the sale of may types of pistols. In Massachusetts, for example, the single action revolvers used in "Cowboy Action" competition are illegal. To his credit, Governor Romney, shortly before he left office, signed into law a repeal of the state's prohibition of the sale of target pistols of the type used in the Olympics and other high-level competition. The MIT pistol team can now use state-of-the-art equipment. But I think the Johns Hopkins team (if they have one) is still out of luck. I hope that laws that have the effect only of making residents of a state into losers at national competitions would not survive. The same situation prevails with the state level "assault weapon" bans. AR-15 type semi-automatic rifles are the most widely used center bore competitive rifles. During the years of the federal ban, manufacturers produced their new target rifles with cosmetic changes that made them legal. Now that the federal ban has expired, manufacturers have reverted to the traditional designs. This means that shooters in the states that maintain state-level bans (New Jersey, New York, Connecticut, and California are four of them) cannot legally obtain the new models. At the highest levels of competition, having access the the best equipment can be the difference between winning and losing. The best golfers and tennis players are not using obsolete clubs and racquets, but shooters can be severely disadvantaged if they live in the wrong state. I hope that laws that have this sort of effect would not withstand challenge.

# posted by

Helen : 8:20 PM

Helen's interesting post reinforces my view that a decision by the Court upholding the DC Circuit will be a bonanza for lawyers, for it will take literally years to provide answers to the quite different questions she raises. A decision upholding DC will make most litigation irrelevant, but would be a bonanza to the Republican candidate for the presidency, who would take every opportunity to pledge to appoint justices who would overrule such a decision. There are good reasons for Democrats to hope that the Court, as with the pledge of allegiance case in 2004, find some way to invent a spurious "standing" doctrine that will eliminate the need for a decision at all, but I'm not hopeful.

# posted by

Sandy Levinson : 10:53 PM

Sandy:

I wonder, as a matter of fact, what the number of the purportedly "many municipal and state laws making it nearly impossible to own commonly possessed firearms is.

Not only would express possession bans be in trouble, but so would restrictive and perhaps all "may issue" gun licensing schemes. If the Second Amendment grants us a right to possess firearms, any scheme that allows a sheriff or bureaucrat to arbitrarily deny that right would have serious due process problems.

Off the top of my head, these areas with express firearm prohibitions or restrictive "may issue" licensing schemes could have problems: NYC and several smaller NY cities, Chicago and several smaller IL cities, Detroit and San Francisco. The states of HI, NJ, MA, MD, CA, NY, and RI. This list get much longer if all may issue licensing schemes are found to be unconstitutional.

Helen's interesting post reinforces my view that a decision by the Court upholding the DC Circuit will be a bonanza for lawyers, for it will take literally years to provide answers to the quite different questions she raises.

Helen only scratches the surface of issues. There are a backlog of issues which have been building up over the past 70+ years that the courts have ignored the Second Amendment. This will be similar to what has happened over the past century after the courts started enforcing the 1st Amendment.

A decision upholding DC will make most litigation irrelevant, but would be a bonanza to the Republican candidate for the presidency, who would take every opportunity to pledge to appoint justices who would overrule such a decision..

A decision saying the government could disarm the populace ala DC would cause a landslide for the GOP that would make 1994's reaction to the Brady Bill look like a status quo election. This firearms owner would be livid and there are millions more like me.

# posted by

Bart DePalma : 11:16 PM

"There are good reasons for Democrats to hope that the Court, as with the pledge of allegiance case in 2004, find some way to invent a spurious "standing" doctrine that will eliminate the need for a decision at all, but I'm not hopeful."

You like the idea of the Court inventing spurious doctrines to avoid enforcing parts of the Constitution they don't like? Personally, I'd prefer that they do their damn job, and let the chips fall where they may: Enforce the Constitution, the whole damn thing, as written, and if people don't like it, that's what Article V is for.

The Supreme court is not a 9 man constitutional convention, and it's the height of arrogance for them to act as one.

# posted by

Brett : 11:57 PM

What about it, Professor Levinson? If you got your constitutional convention and could have whatever you wanted (i.e., to make your new constitution based only on policy and not politics), what role would the right to bear arms have in it?

# posted by

Essayist-Laywer : 12:07 AM

Remember that such a constitution also needs to be ratified.

# posted by

Bart DePalma : 8:47 AM

"I'd prefer that they do their damn job, and let the chips fall where they may"

First off, Sl said "Democrats" might very well benefit. This doesn't necessarily mean they can get what is politically useful.

But, some 'spurious' standing ruling is really unnecessary. The statute here is rather extreme and can be differentiated from most others. This will be somewhat hazy, sure, but that is reality in law in many areas. I notice, i.e., obscenity is still allowed to be banned.

Anyway, when exactly does the courts truly let it all out? That isn't how they operate, and I don't know of some day they did. Various doctrines etc. explain the whys and hows in individual instances, but it's how things work and how they were expected to work.

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# posted by

Unknown : 12:35 PM