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NY Daily News on Heller
Editorial here. Author seems rather lacking in knowledge about the case, e.g., that it's a 2nd Amendment and not a 14th Amendment case, and claims things came up in oral argument that did not, to my memory.
His main theme is that strict scrutiny would doom many firearm laws. It rather underscore a point Randy Barnett once made -- opponents of an individual right oppose it because they fear that much of their agenda will fail if anyone asks hard questions about it. What's strict scrutiny? That the law serves a compelling governmental interest, that it is narrowly tailored to serve that interest without impairing rights in a way not essential to it, and that it is the least restrictive way of accomplishing that end.
In short, the statute is directed at a major social problem and properly written. The legislative body didn't just pass it on the theory "there oughta be a law," and not give a hoot about whether its restrictions were really aimed at the problem.
That those opposed to an individual right (or to strict scrutiny) have heartburn over having to do this tells us something about what they themselves think of their agenda....
Comments
Winkler is a "Chicken Little" and disingenuous (df - not straightforward, lier). His own law review proves that application of the "strict scrutiny" test is NOT always fatal. In fact, for acts of Congress, the survival rate is 70%. So, ... the felon in possession prohibition is safe. But the rule that shotgun barrels must be 2" longer than rifle barrels is nonsense and may be in danger.
The country is still safe.
Posted by: 30yearProf at April 28, 2008 11:38 AM
Very well said, Dave!
Posted by: JT at April 28, 2008 12:29 PM
"2) hold that the arms right triggers "strict scrutiny," meaning that government can only limit the right in the rarest and most compelling of circumstances."
AND
"Strict judicial scrutiny would mean the end to a wide range of common, legitimate gun safety laws that Americans nationwide rely on to preserve public safety and protect children."
Interesting that he would think that common, legitimate gun safety laws that protect children are not compelling after we've been told for so many years that they are.
"If the court makes the wrong choice, next thing you know someone will sue claiming the Second Amendment guarantees the right to walk down Fifth Ave. with a bazooka and a stash of grenades."
Sue, yes. Win? No. Is that really so wrong?
Posted by: Jim D. at April 28, 2008 01:26 PM
It would seem that the author edited their editorial, because I don't see any mention of the 14th Amendment in the article. Nevertheless, "heaven help us" to borrow the author's phrase, if "reasonable restrictions" include entire bans on handguns.
Posted by: Justin at April 28, 2008 01:26 PM
The antis are afraid that an individual rights decision on Heller will come back at them in a challenge to the Sullivan Act down the road. With the exception of a single NYS Senator, all NYC-area politicans have been silent on the case.
Posted by: Jacob at April 28, 2008 01:47 PM
They have 2 primary "agendas" regarding gun control: 1) Gun control gives politicians short term cover. It allows them to say they are getting tough on crime without having to actually *do* anything hard. Without having to spend too much, if any, money. 2) In the long run they plan to eventually disarm ordinary citizens. Period.
Posted by: Letalis Maximus, Esq. at April 28, 2008 05:00 PM
I am not comfortable with the Court as regards Heller. I hope I am wrong, but the cowardly and expedient thing for them is to rule much as they did in Kelo. These are not men, they are politicians with a lifetime job and lots of potentially lucrative contacts if they toe the line.
Posted by: straightarrow at April 28, 2008 10:30 PM
Although the Justices (Chief Justice Roberts in particular) indicated that they might create a new basis for judging infringements of what they clearly are leaning to uphold as an individual right, STRICT SCRUTINY (if they used that) would also include a PROVABLE EFFECT -- infringements not only would have to be the least restrictive, the they would have to GIVE THE DESIRED EFFECT.
No gun control laws have (or likely can) pass this portion of the requirement -- nor likely others -- if strict scrutiny is applied.
Under strict scrutiny, judges must also must presume that the law in question is invalid, and a court will uphold the law only if it is found to meet the requirements.
Notice the effects of Miranda rulings -- and how LITTLE infringement is allowed there.
None of the CDC, the National Academy of Sciences, nor DoJ was able to find that ANY gun control reduces VIOLENT CRIME, SUICIDE or ACCIDENTS in any significant manner.
Even Brady/NICS fails scrict scutiny miserably.
Whether it or other laws fail under Heller, will only be known (some time) after the Court finds it an individual right and publishes a full decision including scope and criteria (if any) for lower courts.
Posted by: HerbM at April 28, 2008 10:52 PM
Did they take the piece down? I'm getting a "page not found," even when following the link from the Daily News' own page.
Posted by: Bill at April 29, 2008 10:11 AM
Bill:
It appears the page is back up.
Posted by: Carl in Chicago at April 29, 2008 01:02 PM