12 responses to “Lunch With Instapundit”

1. 

   Mithras

   May 16, 2008 at 2:22 pm

   Even if Heller is everything we hope for, we’ll still be litigating the scope of the right for quite some time

   I doubt very much that Heller will be anything like what gun-rights advocates are hoping for. The reason for that is pretty straightforward: The most important legal restriction on gun ownership is not DC’s ban on handguns, or background checks or one-gun-a-month laws. Much more important are the host of state and federal laws which make it a crime to possess a firearm while in the commission of another felony, say drug dealing, even if the gun was never employed.

   If owning a gun is a fundamental right, then courts will have to apply strict or even intermediate scrutiny to laws like those. If such laws are ruled unconstitutional, then millions of people who are either currently in prison, on parole or probation, or are suffering some other legal detriment because of a prior gun conviction will have to be resentenced, possibly released from prison. Felons out on parole or probation will be able to own guns as a matter of constitutional right. None of the conservative members of the court want that. That’s why the Bush administration filed a brief advocating a very weak version of the individual rights model.

   In short, the court will give with one hand, and take away with the other. They will strike down the total handgun ban, but the majority will make clear in dicta that governments have the authority to make all sorts of laws governing who may or may not own one, as long as such laws do not work a total ban. (The dissent will be just one big eye-roll.)

   You are right, I think, that gun-rights groups will spend a lot of time and money litigating (and losing) in an effort to expand the contours of the right, but anything that diverts funds from their legislation and election strategy is fine by me.
2. 

   charles austin

   May 16, 2008 at 2:57 pm

   I was surprised when you weren’t mentioned on his writeup on his visit to Louisville before. Glad you were able to meet with him.
3. 

   Dodd

   May 16, 2008 at 3:40 pm

   I doubt very much that Heller will be anything like what gun-rights advocates are hoping for.
   …
   You are right, I think, that gun-rights groups will spend a lot of time and money litigating (and losing) in an effort to expand the contours of the right, but anything that diverts funds from their legislation and election strategy is fine by me.

   Your comments indicate a lack of understanding of what the gun rights crowd wants from Heller. First and foremost, we want a clear individual rights ruling. That seems quite likely to obtain – not guaranteed, of course, but that’s the way the wind’s blowing.

   We fully expect that any such ruling will nevertheless allow for the general possibility of regulation, as pretty much all Constitutional rights do. What we expect to be litigating is the specific contours of such regulatory autjority, just as has been done with pretty much all Constitutional rights.
4. 

   Mithras

   May 16, 2008 at 3:53 pm

   Your comments indicate a lack of understanding of what the gun rights crowd wants from Heller.

   The NRA amicus brief calls for strict scrutiny. Are you claiming otherwise?
5. 

   Dodd

   May 16, 2008 at 4:10 pm

   The NRA amicus brief calls for strict scrutiny.

   Indeed it does. And were I to write a brief in the case, I would argue for strict scrutiny, too. And I’d have a case.

   That doesn’t mean I’d necessarily expect the SupCt to go that far.
6. 

   Mithras

   May 16, 2008 at 4:25 pm

   My point is that that maximalist position is fairly characterized as “what the gun rights crowd wants from Heller“.
7. 

   Dodd

   May 16, 2008 at 4:35 pm

   No, you quite plainly said that you “doubt very much that Heller will be anything like what gun-rights advocates are hoping for.” [Emphasis added.]

   As long as the ruling comes down for individual rights, your doubt is inapposite.
8. 

   Mithras

   May 16, 2008 at 5:34 pm

   It’s only common sense that the majority will find an individual right. Otherwise, why grant cert?

   But no, I don’t think strict scrutiny is anything like a rational basis test, which is close to what I think you’re going to get. I don’t think many gun-rights advocates are hoping for an individual right that has no teeth.
9. 

   Fiftycal

   May 16, 2008 at 6:23 pm

   Obviously anti-gunners “hope” there will be no “change” in the anti-gun efforts of DC and Chicago. I think the anti-gunners will be bitterly disappointed when SCOTUS rules that the 2nd Amendment means what it actually says. I just hope the ACLU does start to challenge gun laws. It would be funny to see them try to justify that because owning a gun is a fundamental right, felons should be able to have them. In prison. With that “logic”, there should be no one in prison because of the 14th Amendment.
10. 

    Mithras

    May 16, 2008 at 8:21 pm

    Fiftycal-
    The ironic thing is, you all have won the cultural war on this. The height of the gun-control movement was probably the 90s. Since then, liberals have accepted that (a) there is social consensus that the Second Amendment does afford an individual right (whatever the contours) and (b) so long as guns can be sold legally anywhere in the country, they will end up everywhere. It’s amazing the number of cheap handguns the police confiscate here in Philly that were sold down I-95 in Virginia.

    I just hope the ACLU does start to challenge gun laws.

    I am going to the ACLU membership conference in DC in June, where I plan to argue that the ACLU must start litigating gun cases after Heller comes down, because otherwise the organization will be rightly seen as hypocritical. (They were not very receptive when I suggested at the 2006 meeting that the ACLU take the position that the Second Amendment affords an individual right.) Either everyone has the same rights, or no one has those rights.

    Of course, if the traditional gun-rights crowd hypocritically decides to stay out of those cases, it won’t be a surprise.

    But I don’t think the ACLU will need to bring many of these cases itself – most of them will be litigated by public defenders, who of course represent most criminal defendants. So I don’t think you’ll see the backlash that you’re hoping for.
11. 

    Fiftycal

    May 16, 2008 at 11:09 pm

    The “cultural war” was never in doubt. Lieberal hacks in the media made it APPEAR that the public “wanted” more gun control when most didn’t give a shit. As to “cheap handguns” showing up in PA or whereever, there already are numerous laws that cover that situation. That local police don’t care to investigate the situation, when they have total access to ATF databases, is NOT an emergency situation.

    And the hand-wringing over SCOTUS finally recognizing a RIGHT of individuals to keep and bear arms is laughable. REALLY reasonable restrictions against children, felons and others that prohibit firearms possesion will not be challenged, unless ACLU figures they can get mileage out of the situation.
12. 

    Bithead

    May 18, 2008 at 2:23 pm

    So, Mr. Harris;
    If you have a quick lunch with Instapundit, do you go back in time?