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« Cuomo: Remington moving had nothing to do with NY gun law | Main | "The Second Amendment's Defining Moment" »

Law review: Resistance of lower courts to Heller & McDonald

Posted by David Hardy · 26 August 2014 10:00 AM

"RESISTANCE BY INFERIOR COURTS TO SUPREME COURT'S SECOND AMENDMENT DECISIONS," by Alice Beard, in Tennessee Law Review. It takes an optimistic view of long-term trends. At the moment, judicial recognition of the 2A as an individual right is relatively new and, to many courts, even irregular, something to be approached with caution or outright resistance. In the longer term, it may become accepted as one more American constitutional right.

4 Comments | Leave a comment

Frank Masotti | August 26, 2014 10:35 AM | Reply

So I take it that these same lower courts also scoffed and went against Brown VRS The Board of Education as well?

Jim | August 26, 2014 3:28 PM | Reply

Actually, they did, with "all deliberate speed."

Polymer Ring | August 26, 2014 8:25 PM | Reply

It's tough to demand the other side respect the plain interpretation of the constitution when your own side doesn't. For example, when Heller excepted the common infantry rifle, the M-16, from protection, without any justification other than to say that historically, the carrying of "dangerous and unusual" weapons had sometimes been prohibited. Somehow the Swiss can handle full auto weapons, but it's too dangerous to even see what would happen in the US.

And then there is the "in common use" test, where you ban something, then say it's OK to ban it because it's not in common use. But of course the only reason it is not in common use is because you banned it.

Lastly, they went out of their way to suggest concealed carry could be banned, even though the current experience of more than 40 states proves that there can be no basis for the infringement of such an important manner of exercising the right, even if such an infringement was once thought reasonable. They could have just kept silent on the issue or just made clear they were not saying anything one way or the other.

People have a hard time respecting your opinions as anything other than political when you needlessly rewrite the constitution to your modern preferences, and then tell them they ought not to rewrite it to their modern preferences.

Jerry the Geek | August 26, 2014 10:20 PM | Reply

Polymer Ring: as I read it the "Common Use" clause was presented as specifically opposing the "May Issue" approach to Concealed carry authorization. (You may be looking at references 70 thru 74 on pp 11-12.)

Pay more attention to the refrutal at references 75-78 on page 13 of the document, and subsequent remarks which specifically support concealed carry.

And bear in mind that this is an interpretive opinion published in the Tennessee Law Review ... not directly the words of SCOTUS.

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