How should courts look at 2nd Amendment cases?

[Lew Archer]

Any matter before a court will present a fact pattern...which will raise various legal issues...which must be resolved by the court so that it may resolve the case at bar.

This is obviously true in 2nd Amendment cases. While Heller and McDonald recognized an individual's right to arms for self defense, neither provided an analytical framework which courts could use to weigh and decide cases. Until the Supreme Court does so, lower courts will have to find there own way.

Academics will have ideas on the matter, too.

In fact, one noted law professor, Eugene Volokh from UCLA, authored the attached UCLA law review article in 2009 which suggests an approach to resolve 2nd Amendment cases.

It's lengthy, but comprehensive and thought provoking.

If you're interested, it's well worth your time. The article was cited in the recent 7th Circuit Court of Appeals decision in of US v. Skoien and will likely be cited in future cases. If memory serves, Professor Volokh's writings were cited in Heller and McDonald.

So, when you have the time...here's a link to the article:

http://www.law.ucla.edu/volokh/2am.pdf

I'm curious to know what you think of his recommended approach to 2nd Amendment cases.

 

[oldRoger]

I am reading, I am reading...........what I need is a program that will reset margins and let me print opinions out without cutting down half of the forest.

 

[oldRoger]

My thoughts after reading Volokh on Implementing RKBA

First for those not familiar with it, I suggest a frequent look at The Volokh Conspiracy which is IMO the best legal blog.

Volokh certainly suggests a reasoned approach for judges who will handle the litigation resulting from the Heller-McDonald SCOTUS decisions. Will the courts follow his suggestions?
We would hope that some of the many Judicial Conferences held at places like Aspen would discuss (between Golf and fine dining) and guide judges toward some unified approach.
Wanna bet?

His approach:
Scope;
Burden;
Danger Reduction;
and Government Proprietary Role.

While Volokh lays out a very logical approach he also points out the many problems facing us. Many of the restrictions, fees, etc. implemented by the politicians (Burden) are quite likely to be found constitutional. Furthermore, it is going to take many years to work through the system and it would be remarkable if further SCOTUS decisions were not required. The circuit decisions will be at odds.

What I would suggest for those who want to better understand the situation facing us is to; read Heller,& McDonald both the majority opinions and dissent , this Volokh Paper and Sykes dissent in Skoien. This is a lot of reading to be sure. But for the folks here and elsewhere who keep saying SCOTUS has decided; where is my carry permit, or I want my full auto M-16, this will bring clarity like nothing else.

Legislative relief is IMO faster far more likely to satisfy us than Judicial Relief, and can go further than the courts are likely to go. The courts will defer to the legislative in many ways that we do not like.

I don’t like to sound like a one note band but be informed and very careful who you elect.

 

[Lew Archer]

My thoughts after reading Volokh on Implementing RKBA

First for those not familiar with it, I suggest a frequent look at The Volokh Conspiracy which is IMO the best legal blog.

Volokh certainly suggests a reasoned approach for judges who will handle the litigation resulting from the Heller-McDonald SCOTUS decisions. Will the courts follow his suggestions?
We would hope that some of the many Judicial Conferences held at places like Aspen would discuss (between Golf and fine dining) and guide judges toward some unified approach.
Wanna bet?

His approach:
Scope;
Burden;
Danger Reduction;
and Government Proprietary Role.

While Volokh lays out a very logical approach he also points out the many problems facing us. Many of the restrictions, fees, etc. implemented by the politicians (Burden) are quite likely to be found constitutional. Furthermore, it is going to take many years to work through the system and it would be remarkable if further SCOTUS decisions were not required. The circuit decisions will be at odds.

What I would suggest for those who want to better understand the situation facing us is to; read Heller,& McDonald both the majority opinions and dissent , this Volokh Paper and Sykes dissent in Skoien. This is a lot of reading to be sure. But for the folks here and elsewhere who keep saying SCOTUS has decided; where is my carry permit, or I want my full auto M-16, this will bring clarity like nothing else.

Legislative relief is IMO faster far more likely to satisfy us than Judicial Relief, and can go further than the courts are likely to go. The courts will defer to the legislative in many ways that we do not like.

I don’t like to sound like a one note band but be informed and very careful who you elect.

Well said, Roger. I would just add that the key to legislative success is to win the arugment in the minds of the American public. I think the progress in that direction has been significant in recent years...and Heller and McDonald certainly should reinforce those gains.

As aggressive as this Administration and Congress have been on certain matters, such as Health Care, they have avoided 2nd Amendment conflicts. I believe the reason is political self preservation--apparently, they haven't forgotten the hard learned lesson of Al Gore's loss to George Bush.

As long as gun control is seen as a political loser for Democrats, they will walk softly, at least at the national level.

Unfortunately, that leaves those of us in states California in a bind: the legislature at that level routinely attempts new gun control measures without fear of negative consequences when it's time for re-election.

So, in those areas, winning the 2nd Amendment argument amongst the general public is even more important. How to do that, though, is another problem...