How much did public opinion influence Heller?

Discussion in 'Gun Control' started by Galileo, Dec 6, 2019.

  1. Galileo

    Galileo Well-Known Member

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    "Waldman argues persuasively that it was no coincidence that the Supreme Court only got around to affirming the individual’s right to gun ownership in 2008—by then the court’s decision in District of Columbia v. Heller was more or less in line with public opinion, which itself had changed markedly over time, thanks largely to a two-pronged propaganda blitz by the National Rifle Association and the equally vociferous arguments of conservative legal scholars. In 1959, a Gallup poll reported that 60 percent of Americans favored banning handguns; by 2012, that figure had dropped to 24 percent....

    "Scalia styles himself an originalist, someone who believes that a proper interpretation of the Constitution means divining—and hewing to—the original intent of the Framers. This is a tricky business when it comes to the Second Amendment, since, as Waldman notes, 'there is not a single word about an individual right to a gun for self-defense in the notes from the Constitutional Convention. Nor with scattered exceptions in the records of the ratification debates in the states. Nor on the floor of the U.S. House of Representatives as it marked up the Second Amendment.' "
    https://www.thedailybeast.com/the-secret-history-of-the-2nd-amendment

    He has a point. What Heller said about gun control is pretty much what a moderate on the issue would say in modern day America. It is very much in line with public opinion: there is a right to own a gun but the federal government may ban certain types of guns (such as machine guns and sawed-off shotguns) and prohibit certain classes of people from owning guns (such as felons and the mentally ill).

    Heller placed a lot of the emphasis on self defense and handguns being useful for that purpose. That probably had a lot more to do with decades of successful NRA propaganda than the original intent behind the Second Amendment. In 1959 the majority of Americans favored banning handguns. But now handguns are much more likely to be associated with self defense in the minds of Americans. The NRA has convinced many state legislatures to pass laws to allow the carrying of concealed handguns.
     
  2. Xenamnes

    Xenamnes Well-Known Member

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    Except for the fact that he does not.

    And yet the government cannot prohibit the ownership of other types of firearms that are in common use for legitimate purposes, such as semi-automatic rifles. Nor can the government mandate that private individuals keep their firearms stored in a manner that makes them inaccessible for the immediate purpose of self-defense.

    The emphasis mentioned was nothing more than using an example of what legal activity the second amendment was supposed to protect. It is not the sum total of what the second amendment was supposed to protect.

    And at one point in the history of the united states, the majority of the people favored blacks being slaves, sodomy carrying the death penalty, homosexual marriage being outlawed, that races should not mix, and substances such as alcoholic beverages being illegal. Yet in each and every one of these cases, the will of the people was ignored because the standards victimized others unjustly and were not legitimate exercises of the powers and authorities of government.

    Simply because the people favor something does not make the matter constitutional or acceptable.
     
  3. btthegreat

    btthegreat Well-Known Member

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    The courts were always designed to feel political pressure and respond, albeit verrrrry slowly by virtue of the political figures deciding the appointments and budgets, but
    the dynamics of the republic have changed now that we elect Senators directly, more states have direct elections for State supreme court and appellate court judges (a seeding ground for federal appellate courts), money is collectivized for all political campaigns, and political pressures are more quickly organized and sustained with modern communication. I would argue that SCOTUS learned a lesson with Roe and decided to wait to rule on same sex marriage later to see how public opinion was reflected after district and circuit court decisions. It was movement in polling after district and circuit court rulings paved the way for political cover in the legislative branch that was a bellweather for Scotus.

    Had public opinion hardened against same sex marriage, instead of softening, we might have seen either a more narrow decision or even a different decision at least for another generation.
     
    Last edited: Dec 6, 2019
  4. Xenamnes

    Xenamnes Well-Known Member

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    Then why have the courts not taken it upon themselves to decriminalize marijuana since the public is so supportive of it?
     
  5. Galileo

    Galileo Well-Known Member

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    You are contradicted by the Heller ruling itself which let public opinion (to a large extent) determine the line between acceptable and unacceptable forms of gun control. I think that removing restrictions on machine guns and banning handguns would be more in line with what was originally intended by the Second Amendment. It makes no sense to ban people from owning the types of weapons they would need to fulfill their militia duties. But the Heller court did not want to rock the boat too much. The NFA had been in effect for decades and was pretty much accepted by the public already.
     
  6. btthegreat

    btthegreat Well-Known Member

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    cite me a few cases that went before the appellate courts involving decriminalization that were contested based on either a constitutional or statute interpretation or question brought before them. Some question of constitutional and appellate importance, has to be brought to them up the ranks of the judicial system for them to decide. I have not heard about any cases on this point. I don't know how anyone could construct a legal brief that just dealt with the criminalization of pot. On its face its a public policy debate of a larger question of drug illegalization. .
     
    Last edited: Dec 6, 2019
  7. Xenamnes

    Xenamnes Well-Known Member

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    The united states military still utilizes sidearms, thus meaning handguns would also be utilized to fulfill militia duties.
     

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