Guns: how much longer will it take ....

The Heller Decision and What It Means


WHAT WAS AT ISSUE IN DISTRICT OF COLUMBIA V. HELLER?

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court heard Second Amendment challenges to Washington DC’s decades-old ban on handgun possession and requirement that firearms in the home be stored unloaded and disassembled or bound by a locking device. In considering the meaning of the Second Amendment for the first time in 70 years, the Court examined whether the Amendment protects an individual right to possess firearms, or only protects firearm possession connected to service in a state militia. In a radical departure from its previous interpretation of the Second Amendment, the Court held that the Amendment guarantees an individual right to possess a firearm in the home for self-defense, and struck down the handgun possession ban as well as the safe storage law (which had no exception for self-defense).

The Supreme Court stated, however, that the Second Amendment should not be understood as conferring a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court provided examples of laws it considered “presumptively lawful,” including those which:

Prohibit firearm possession by felons and the mentally ill;

Forbid firearm possession in sensitive places such as schools and government buildings; and

Impose conditions on the commercial sale of firearms.

The Court noted that this list is not exhaustive, and concluded that the Second Amendment is also consistent with laws banning “dangerous and unusual weapons” not in common use at the time, such as M-16 rifles and other firearms that are most useful in military service. In addition, the Court declared that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.”

WHY IS HELLER SUCH A RADICAL DEPARTURE FROM PRIOR SECOND AMENDMENT CASE LAW?

As discussed in Giffords Law Center’s brochure Gun Regulation and the Second Amendment: Moving Forward After District of Columbia v. Heller, the ruling in Heller represented a dramatic reversal of the Court’s previous interpretation of the Second Amendment. In United States v. Miller, the Court stated, in a unanimous decision, that the “obvious purpose” of the Second Amendment was to “assure the continuation and render possible the effectiveness of” the state militia, and the Amendment “must be interpreted and applied with that end in view.” In reliance on Miller, hundreds of lower federal and state appellate courts had rejected Second Amendment challenges to our nation’s gun laws over the last seven decades, making Heller‘s reversal of this interpretation a watershed moment in Second Amendment law.

WHAT ISSUES WERE LEFT UNRESOLVED BY HELLER?

Because the Heller case involved a law enacted by Washington DC, a federal enclave, the Court did not address the significant issue of whether the Second Amendment restricts state and local governments. The Court did note, however, that a series of eighteenth century decisions, beginning with United States v. Cruikshank, held that the Second Amendment applies only to the federal government. Heller cautioned, however, that, “Cruikshank…did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” Those later cases, in determining whether an amendment applied to the states, examined whether it applied to the states through the Due Process Clause of the Fourteenth Amendment, a method of analysis known as the “incorporation doctrine.”

Subsequently, the Supreme Court held in McDonald v. City of Chicago in a 5-4 ruling that the Second Amendment applies to state and local governments in addition to the federal government. In doing so, the Court reversed a Seventh Circuit decision that affirmed the dismissal of Second Amendment challenges to handgun bans in Chicago and Oak Park, Illinois.

Additionally, while Heller provided examples of laws the Court considered “presumptively lawful,” the decision does not offer guidance about how lower courts should evaluate challenges to firearms laws that are not among those examples. As a result, subsequent courts have struggled with precisely how to scrutinize firearms laws, and legislators who wish to enact gun violence prevention measures that are consistent with the Second Amendment lack clear guidance on precisely how to do so.

What exactly, do you want repealed in order to pass reasonable gun reform?

One thing that I'd like to see passed is concealed carry reciprocity.

Another thing I'd like to see passed is the Veterans Second Amendment Protection Act.

Another thing I'd like to see passed is the SHARE Act.

I'd also like to see the maximum time for a background check reduced to 24 hours.

That's not enough time to research for RO's & TPO's though.

Why can't all of that data be computerized and be made rapidly available?

Because the NRA opposes such a measure.

It was totally a political decision by a conservative activist Supreme Court:

District of Columbia v. Heller recognized an individual right to possess a firearm under the Constitution. Here’s why the case was wrongly decided.

and

The five extra words that can fix the Second Amendment

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Only progressives could argue that upholding the Constitution is a political decision by activists.

Progressives really do belong at Guantanamo so that they can't harm anyone.

I bet they would support better computerized records if it were tied to a measure to reduce the background check period to 24 hours.

If they wouldn't support it, then I would disagree with them.

What is the significance of the 24 hour time frame? What is your opposition to a longer period, say, 72 hours?

I think it can be done within 24 hours with the proper computerization. So there is no need to make anyone wait any longer than that.

It's not just a measure of a background check. It also provides a certain amount of time to notify victim's advocacy units and police departments.

What sort of notification do they require within the timeframe of a background check?

And why can't it be done within a 24 hour period?

How about the common law right to own and possess a gun to defend your home?

Victim's Advocacy units need time to respond to such notification, to take steps to prevent a violation of an RO and TPO's. Additional police support would be required for safety patrols.

At the expiration of 24 hrs only means at 24 and a half hrs, there's a possibility of a DV act in play. Notification is key.

Notification of what?

If the background check is a no-pass, then the person doesn't get a gun to begin with.

No big deal. If the government claims one too crazy to possess a gun just go to your corner illegal gun dealer and get one.

Since RO's and TPO's are civil matters, they do not show up on a normal criminal background check. It takes additional effort and time to screen because these types of offenses can only show once a hearing & conviction has taken place.

https://lawcenter.giffords.org/gun-laws/policy-areas/who-can-have-a-gun/domestic-violence-firearms/

For what it's worth, there's another shooting spree ongoing in Texas right now.

If enough due process has taken place with these restraining orders and temporary protection orders to justify depriving someone of their guns, then that information should be entered into the computerized records so that the information is instantly available to deny the purchase.

If there has not been enough due process to justify depriving someone of their guns, but there is still some reason to suspect that someone is dangerous, perhaps the system could be designed to give a warning when they purchase a gun.