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Why Gun Control Legislation Will Likely Pass Supreme Court Review

Why Gun Control Legislation Will Likely Pass Supreme Court Review

Gun control advocates got a rare bit of good news from the Supreme Court this week, declining to hear a case brought by gun owners challenging a Georgia law that bans the carrying of firearms in public locations like churches and other houses of worship.

The law passed in 2010 when the legislature eliminated a firearms ban at generic “public gatherings” and replaced it with a list of eight specific places where firearms would not be permitted and was immediately challenged by the gun owners group GeorgiaCarry.org and a minister who argued a First Amendment constitutional right to bring a gun to church. The minister argued the new law forced him to choose between his First Amendment religious freedom guarantees and a Second Amendment right to bear arms.

On the same day as the Aurora theater shooting massacre a three-judge panel of the 11th Circuit Court of Appeals flatly rejected the First Amendment argument, holding that the group and the minister failed to show the law interfered with his sincerely held religious belief since gun ownership is not a basic tenant of Christianity and owning a gun and bringing it to church not a part of exercising that religion.

But this is the key point to pay attention to here. The 11th Circuit also rejected the Second Amendment challenge holding that the group’s belief that there is an individual right to carry a gun into a place of worship did not trump a private property owner’s right to exclusively control who is allowed on their premises and under what circumstances.

By refusing to hear the appeal of the 11th Circuit decision, that decision stands as good law. And it should. Appeals Court Gerald Tjoflat, writing for the 11th Circuit panel wrote that the Georgia gun law was written with certain places banned because the Legislature was “concerned that the carrying of weapons … would likely present an unreasonable risk of harm to people who assemble in eight specific locations” — places of worship, government buildings, courthouses, prisons and jails, state mental health facilities, bars without the owner’s permission, nuclear power plants and polling places and their immediate surroundings. The Second Amendment argument that the preacher and GeorgiaCarry.org made, Tjoflat wrote, asked the court “to destroy one cornerstone of liberty — the right to enjoy one’s private property — in order to expand another — the right to bear arms. This we will not do.”

This refusal to take the holding of District of Columbia v. Heller, the 2008 Supreme Court case that struck down a ban on handguns kept for home self-defense, saying it violated the Second Amendment, and expand it to any ban on guns in public places is a sign of some sanity among our federal courts. Gun rights advocates insists Heller stands for the proposition of an unfettered individual right to own and carry a gun (any gun) and have brought over 500 challenges to gun laws in the wake of the decision.

Thankfully they have not been very successful. As noted by The New York Times, with the exception of a recent Seventh Circuit decision that struck down an Illinois law that banned loaded guns in public, federal courts have upheld federal laws banning gun ownership by people convicted of felonies and some misdemeanors, by undocumented immigrants and by drug addicts. The federal courts have also upheld laws making it illegal to carry guns near schools or in post offices and laws concerning unregistered weapons. And they have upheld laws banning machine guns and sawed-off shotguns.

With this latest move, and even in the language of the Heller decision itself, there’s no reason to think the Roberts Court would not support a ban on the kinds of weapons used in Aurora and Newtown. Writing for the majority in Heller, Justice Antonin Scalia noted that laws banning “dangerous and unusual weapons” are “another important limitation on the right to keep and carry arms” and gave the example of “M-16 rifles and the like.” And as reported by the New York Times, when the case was first argued in 2008 Scalia suggested other kinds of weapons and ammunition could be regulated as well. “I don’t know that a lot of people have machine guns or armor-piercing bullets,” he said. “I think that’s quite unusual.”

The decision came the same day gun violence victim Rep. Gabby Giffords and her husband announced their new initiative aimed at taking on the gun lobby and curbing gun violence and on the second anniversary of the shooting in Tuscon that left six dead and on the second day of court proceedings in the case of James Holmes, the shooter who opened fire in a movie theater in suburban Colorado killing 12 and injuring almost 60.

Could this be the sea-change gun control advocates have been working for? In the wake of the sheer terror of Newtown, and the continued body-count in this country thanks to gun violence (nearly 700 gun deaths in this country SINCE Newton) I certainly hope so.

 

Related Stories:

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Senator Feinstein Promises Action on Gun Control. Can Congress Deliver?

 

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348 comments

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11:44AM PST on Jan 16, 2013

You are very welcome, Diane.

1:56AM PST on Jan 16, 2013

Kevin, thank you for your comment made yesterday morning at 7:37 A.M. I didn't go online last night and am just now reading it. Well said.

2:41PM PST on Jan 15, 2013

Cletus - You make a good point. Certainly citations alone can be cherry-picked and do not, by themselves, make something worthwhile.

My problem with the Robert Parry article (and Parry is actually a good journalist) is that he was purporting to present a historical argument while casually mixing quotes from George Washington (regarding Shay's Rebellion) with arguments on what Washington thought about the Second Amendment. It was, in my opinion, a sort of bait and switch.

Historians use citations so other historians can "check their work," so to speak. Parry did not do so and I had to dig to find out what quotes he was using and how they did or did not apply.

However, your point is certainly well taken.

11:33AM PST on Jan 15, 2013

Kevin B.: You and I do not disagree on much. But I see one minor bone to pick with you. You stated "a "historical" article, as opposed to a "political" one, gives citations". I hope you are not saying that the existence alone of "citations" makes an article "historical". There are plenty of political documents/storys with citations, even historical citations.

As further evidence, consider that a few of the senseless rightwing dupes that post here on Care2 have been known to give their versions of 'citations'...links to any number of cherry-picked, un-vetted, and/or biased websites....as so-called 'proof'' of the veracity of their self-serving, ridiculous statements.

Let's not inadvertently confer upon these idiots the respectable mantle of "historical" just because they took the time to note where their cherry-picked, distorted world-view came from.

5:08PM PST on Jan 14, 2013

Enjoy ~

http://www.upworthy.com/why-is-jon-stewart-wielding-a-gun-on-television-oh-right-fox-news?c=upw1

4:31PM PST on Jan 14, 2013

A Silver Star for Mary B. Sorry, have run out of green ones!

12:44PM PST on Jan 14, 2013

(here is the rest of my post with the appropriate citations that was cut off. Additionaly, a "historical" article, as opposed to a "political" one, gives citations).

Local authorities in Western Massachusetts could not call out the militia because too many of those involved in Shay's were in the militia. Money had to be raised and militia gathered from Eastern Massachusetts to put down Shay's Rebellion.[2]

I gave a detailed outline on why the Robert Parry article was historically inaccurate. The fact that Parry threw in some quotes from George Washington does not make his assumptions concerning the Second Amendment valid.

[1] John Shy, "A New Look at Colonial Militia," The William and Mary Quarterly, Third Series, Vol. 20, No. 2 (April 1963): 176.

[2] Szatmary, David P. "Shays's Rebellion: The Making of an Agrarian Insurrection." (University of Massachusetts Press, 1980), 84-86.

12:42PM PST on Jan 14, 2013

Susan T. said "Kevin - Shays Rebellion was not THE militia - many former Continental Army & many farmers formed a militia, just as anyone could form a militia. They had skirmishes with govt led militia. There was no official blueprint for govt militia until the Militia Act of 1792. G.W., using the Militia Act of 1792, led STATE militias to put down the Whiskey Rebellion."

No, Susan, at the time of Shay's Rebellion the Massachusetts militia was controlled by the Massachusetts Militia Act of 1776 which required all men between the ages of sixteen and fifty to be enrolled in the militia, provide their own weapons and equipment, and be mustered and trained by their duly commissioned officers.[1]

The Federal Militia Act of 1792 has NOTHING to do with Shay's Rebellion.

Authorities in Western Massachusetts could not call out the local militia because too many of those involved in Shay's were in the militia. Money had to be raised and militia gathered from Eastern Massachusetts to put down Shay's Rebellion.[2]

I gave a detailed outline on why the Robert Parry article was historically inaccurate. The fact that Parry threw in some quotes from George Washington does not make his assumptions concerning the Second Amendment valid. His article is political not historical, and as a historian I have a problem with that.

[1] John Shy, "A New Look at Colonial Militia," The William and Mary Quarterly, Third Series, Vol. 20, No. 2 (April 1963): 176.

[2] Szatmary, David

12:14PM PST on Jan 14, 2013

Hi Stephen,

I am not deliberately "missing the point". Even though the preacher's contrived case before the 11th (and your silly hypothetical) do NOT in FACT cause anybody to really choose between two conflicting rights, I can accept that there might be (or has been) situations of real conflict. But I absolutely deny that as a result of such conflict, someone's rights "as a whole" have been violated. That is legal nonsense and, if accepted as true, would unravel the existing legal framework.

How about if you show us where in the constitution or its supporting documents that it says a conflict of law or rights relegates ALL laws and rights as "violated".

Instead of focusing on this deflective fluff, you might instead want to address the need for your finger in the proverbial dike. The "cazies" on your side are now shedding all pretense of respectability, where we have Wanda B. cherry-picking and mis-using facts to fantasize how the US military could be overcome in an armed rebellion, and we have the incurably convoluted logic of David F. promoting the military overthrow of our government if he feels ill-at-ease with it. While you try to nitpick about a poor preacher's grumpy attempt to trick the system into "unregulating" his guns in one contrived instance, truly bat-shit crazy people are undermining the walls of respectability for gun-ownership in this country.

10:36AM PST on Jan 14, 2013

David F - you are naive if you believe that even very well armed citizens could "rebel" successfully. Local law enforcement now has military "hand me down" weapons, not to mention drones in some areas. Politicians could also suspend posse comitatus & unleash the military. If enabling armed rebellion was the Founders intention with the 2nd Amendment why did they criminalize as treason taking up arms against the govt IN the Constitution?

Kevin - Shays Rebellion was not THE militia - many former Continental Army & many farmers formed a militia, just as anyone could form a militia. They had skirmishes with govt led militia. There was no official blueprint for govt militia until the Militia Act of 1792. G.W., using the Militia Act of 1792, led STATE militias to put down the Whiskey Rebellion.

What do you find specifically inaccurate about the Robert Parry article? Parry quotes directly from letters written by G.W. indicating he was very alarmed by the Shays Rebellion & felt a great need for a security force to protect the union from internal threats.

http://readersupportednews.org/opinion2/416-gun-control-/15171-focus-the-rights-second-amendment-lies

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