Read the Bills Act Coalition

Thursday, July 3, 2008

Sen Cuccinelli wants to celebrate Heller

From the Cuccinelli Compass:

Dear Fellow Republican:
A little more on Heller. Why more? Because it’s an extremely important decision and because I’m hearing from some folks who think that the (shared) analysis I provided was too optimistic. I will be more blunt in this issue of The Compass....
First of all, let’s provide some resources....For those intrepid enough to read the opinion, you can find it here, courtesy of the NRA....For those that would like to hear or read some other opinions, you can find four of them here, courtesy of the Federalist Society. I particularly recommend Professor Lund’s write up, as it gives you the good news and identifies the potential problems in the decision....Second, the three main holdings in Heller are: 1) the 2nd Amendment protects the right of each law abiding citizen to keep and bear arms for private purposes, including self-defense, regardless of their service in any military organization. 2) The D.C. handgun ban is dead. A complete class of ordinary weapons cannot be banned under the 2nd Amendment. 3) Trigger-lock requirements and requirements that guns must be kept disassembled or otherwise unusable were struck down....The reason that Heller is such good news is simply the stark alternative. Had the dissent prevailed, then there would be literally no protection under the Constitution for the ownership and use of firearms. Period. That’s almost hard to imagine in this country, but we were 1 vote away from that very outcome. This stark alternative certainly has animated my positive reaction to Heller. We literally avoided being open to being disarmed by our government....Third, some of the concerns. I will turn to Professor Lund’s comments here (Prof. Lund “in quotes”, the rest is my comments). “Scalia’s opinion suggests that modern gun control statutes will not be upheld unless they have some reasonably close analogue in regulations that were widely accepted in eighteenth century common law or statutory law, or perhaps in regulations that have been widely adopted and accepted in modern times.” The first half of this sentence sounds good to me, looking for historical analogues from the founding period; however, once you start allowing the type of “evolution” referenced in the second half of Prof. Lund’s analysis, Judges can do whatever the heck they feel like doing – which is where our Constitutional jurisprudence has been so messed up in the last 50 years....Scalia’s opinion also includes dicta indicating that some important forms of gun control will be upheld. Examples include bans on carrying concealed weapons; disarmament of convicted felons; gun free zones in ‘sensitive places’ like schools and government buildings; restrictions on the commercial sale of firearms; and bans on ‘dangerous and unusual’ weapons, apparently including short-barreled shotguns and machine guns.”...This leaves open numerous issues, such as the question of what is a “sensitive place?” And who decides that question (ultimately of course, it will be judges, for better or worse)....Also, as a side note for those of you wise enough NOT to go to law school, “dicta” means comments in a legal opinion that are not binding, but are merely editorializing, or explanatory....Finally, one of “the most urgent questions left open by the Heller decision is whether the Fourteenth Amendment makes the Second Amendment applicable to state and local governments.” For the non-lawyers, the 14th Amendment has been deemed by the Supreme Court to have “incorporated” all or some of the Bill of Rights, which in turn applies against the states. So, if it is ultimately decided that the 2nd Amendment is incorporated into the 14th Amendment, then the 2nd Amendment will apply against the States. That outcome would obviously protect the individual right against all levels of government interference, to whatever extent it develops that the Supreme Court is going to allow such protection.
We shall see, but no time soon.
I hope this helps some of you understand why I finished my analysis by saying “in conclusion, I believe that the opinion is a solid victory. There will clearly be future cases that will flesh out the specifics of the Second Amendment...”


Heller Party!
Now that I have more fully explained why I think Heller is good news, at least under the circumstances, I want to reiterate that we’re going to have a Heller-night party in the Richmond area on Saturday, July 19th in the late afternoon/early evening. Please set this late-afternoon/evening aside on your calendar. We’ll get more details to you asap.

We’ll talk about the ruling itself and its impact. You’ll also have the chance to spend time with other 2nd Amendment supporters to talk about ‘what’s next.’ Please plan to join us!

Depending on what kind of sponsorship we can get, this event will cost nothing or nearly nothing (e.g., $5). If you are willing to sponsor this celebration, please email us at KC4AG@Cuccinelli.com or call us at 703-766-0635. Also, if you want to come, please RSVP to Mick@Cuccinelli.com (the new campaign manager), and please let us know if you’re willing to volunteer at the event.

We’ll see you there!

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