Tuesday, June 29, 2010

What if any impact on Texas from extension of Second Amendment by SCOTUS to the states?

Yesterday the US Supreme Court decided that the Second Amendment right to bear arms applies to the states. As Matthew Scarola at SCOTUSBlog put it, "Today’s opinion in McDonald v. City of Chicago means that for the first time, state and local governments’ gun regulations must comport with the Second Amendment’s protection of the right 'to keep and bear Arms.'”

Scarola thinks "McDonald’s extension of the Second Amendment to state and local gun regulation will undoubtedly prompt a flood of firearm-related litigation – especially because the Court did not specify a standard of review." Along those lines, “Justice Stevens lamented, 'today’s decision  . . . could mire the federal courts in fine-grained determinations about which state and local regulations comport with the Heller right . . . under a standard of review we have not even established.'”

Willl Texas see any successful gun rights litigation based on McDonald? We're already a pretty gun friendly state, but there are also stiff penalties for certain gun crimes. I wonder if any Texas statutes - or perhaps ordinances by municipalities - may be implicated by the McDonald decision?

Doug Berman notes that the court held "individual gun rights are 'fundamental,' they help safeguard another 'basic right,' and they must not be treated as 'second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees'."  This raises the question of whether felons can lose their "fundamental" right to bear arms after their sentence is complete; after all, they don't lose their rights to free speech, which is also a "fundamental" and "basic right." Scarola also raised this question, saying "In McDonald, the court left this area of the law in turmoil."

I've neither read the massive opinion nor given the state-level implications much thought, but let me know in the comments what if any implications might result in Texas from the extension of a "basic" federal right to bear arms to the states?


shg said...

While Doug is correct tha Alito calls the right "fundamental" numerous, there is nothing in the decision that holds it to be a fundamental right, thereby triggering strict scrutiny. It may take another 20-30 decisions before we start to get answers to these basic questions. Maybe more.

Anonymous said...

Good point, Scott... I think one could argue, especially in light of this decision and the "fundamental right" to bear arms established by7 the Court, that a person convicted of burglary 20 years ago -- but who has never been convicted, or for that matter even charged with a violent offense of any kind -- could argue that he or she retains the right to protect him or herself, in their homes, from criminals, enemies of the U.S., or an oppressive government (from which the 2nd Amendment is based). There should be a rational relationship test, other than the generic one established by the S.Ct. in Hiller (see Judge Tymkovich's concurring opinion and explanation in U.S. v. McCane). Felony dispossession laws have been found to violate state constitutions (e.g., Britt v. State before N.C. S.Ct.)

Robert Langham said...

I don't think much...but we might see some movement about the States great enthusiasum for denying folks 2nd Amendment Rights after felony convictions. They don't go after their First Amendment rights, or their Third or Fourth....so why the 2nd?
I think with the vastly expanded felony statues (felony for mishandling osyters, et), there is an argument to be made.

Anonymous said...

A non violent felony offender ought mot to have his/her 2nd amendment rights stripped away. Personally, I'd break that law if it were me. Since when have cops ever arrived BEFORE the rape/burglary/what have you? Let's hope this draconian process gets an overhaul.

Anonymous said...

Mr. Langham, in the case of certain felonies, there are far more rights than just the 2nd that gets taken from them.

Mr. Shackleford, why just non-violent offenders? if a person has no gun related violation why not any previously convicted felons? The class based exclusion is how we got to where we are today.

I do not have guns in the house. It isn't that I fear them, nor is it that I do not 'like' them. I have used several in the defense of this country on more than one occasion. I just choose not to own one, as is my right as well. This said, it should be the choice of the people as to whether they want a firearm in their home. it isn't enough to say that ONLY non-convicted citizens can own a fire arm. All people have different levels of danger in their lives. Felon or not, anyone can be put in danger of violence in teh right situation.

Anonymous said...

A "Fundamental Right" is a concept that has been under attack by politicians and world leaders for decades. They have tried to erode the Fundamental Rights of U.S. citizens for years because they make the people of the United States a force to be reckoned with. The founding fathers were very wise men who took great care to keep the power with the citizens, not the political operatives who would abuse it. One need only read the writings of the founding fathers to see what the words in the Bill of Rights and Constitution actually mean. The Second Amendment is clear when viewed through a background of the articles and speeches of the founding fathers. The people of the United States have a God given right to own weapons to protect themselves from people who would harm them and the possibility the government would become corrupt. The Second Amendment directly relates to being able to put the government in check by an armed citizenry. This being true, there should be no band on weapon ownership regardless of the type so the government never owns weapons more powerful than the people. The biggest opposition to the citizens owning weapon of any type are the corrupt politicians who should fear the people. Fear of the people was the check the founding fathers relied upon to keep the Republic safe.

Many will cry about the dangers of weapons and the number of deaths they will cause but I ask you which is more important; the safety of a few people or the safety of our Republic? Do you wish to live free or as a slave to politicians who promise you a false safety? In the many decades I have lived I cannot think of any major program the government has not screwed up. When the IRS seized a whore house for back taxes they couldn't even turn a profit running whores and selling whisky so why would anyone ever think the government could protect you. Remember the police are only minutes away when seconds count!

As a final thought I have always been one who felt guns laws only create another black market as all prohibitions have historically. If you use a gun to harm another person you already have numerous laws to deal with the crime by the evil doer. Why do we need laws that guarantee the birth of a criminal black market in guns? Some times less is better........

Anonymous said...

Good point Annie 2:49, I should have been more clear: A non-violent felon ought not to have his gun rights stripped even while on probation. A violent felon should have his rights restored after his supervision ends automatically. I'm not even comfortable with a violent felon being stripped during his supervision, but I would be willing to bet that changing that particular statute would be difficult in the extreme.

Anonymous said...

It's worth noting that Robert Heinlein said,"

I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do."

I heartily agree with him.

Anonymous said...

It's interesting because this is the same court that seemed very comfortable ruling that those convicted of sexual crimes could be kept in prison after they'd completed their sentence.

That's a much stronger restriction of rights, so my guess is that while they're saying they think that the right to bear arms is a basic individual right (as opposed to a right reserved only for the state), my guess is they will have no qualms about restricting them.

And Texas is actually a very restrictive state. I know Republicans don't like to think it because they control the state, but just because Texas hasn't banned hand guns doesn't mean it doesn't have an awful lot of Republican sponsored gun control on the books.

Check out the highly regulated concealed carry law. It basically gives you the right to carry your gun in restaurants that don't serve booze, and your business, but only if you own your building. Granted I'm using hyperbole there, but I'm not too far off. That's a pretty restricted form of "freedom".

Scott Stevens said...

I too feel that Texas is far from a "gun friendly" state. Before the concealed handgun carry statutes were enacted, there was, in fact, an outright ban on having a handgun "on or about" your person. There were exceptions, of course (on your own property; while engaging in sporting activity in which handguns were normally used; "travelling"--an undefined exception; and others), but it was not even clear that it was legal to carry a handgun to and from the store from which you could lawfully purchase the same.

Texas was not a state that allowed everyday carrying of a handgun with regulation by local or state police, it was a state whose default position on carrying handguns was a ban.

That has not changed much. If you do not have a concealed carry permit, you still cannot carry a handgun at all unless you fit in the exceptions which are largely unchanged.

If you think that it is too restrictive to remove handgun rights based on a felony conviction, then remember that it takes only defaulting on a student loan to loose the right to have a concealed carry permit (As of the last time I checked this was correct. Though I have been told this has been changed in the not-too-distant past, I have not verified that the student-loan default disability has been removed.)

In representing a client within the past 4 years I learned that the part of the concealed carry laws that say you cannot receive a permit if you have ever been convicted is taken very literally. In speaking with a representative of the concealed carry permit agency, I was told that even if pardoned, a person who had ever been convicted of a felony was ineligible to receive a permit.

I don't think Texas is the most restrictive State by any means, but a default ban on handgun carry is not particularly firearm friendly.

I you subscribe to the theory that one purpose of the 2nd amendment is to ensure that the government could always be held responsible to the citizenry via overthrow(a reasonable view in light of the political context of the creation of the 2nd amendment), Texas' restrictions seem even worse.

MailDeadDrop said...

Should it come to it (which I doubt), the States have a ready way to perpetuate the effect of today's prohibition on felons possessing: make surrendering the right to a firearm a condition of parole/good-time credit.

Anonymous said...


Rights promised int eh Bill of rights cannot be 'given' away, they can be put aside temporarily, but those rights granted by the constitution are inalienable. once out of prison, the SC would eat that law for lunch for those that are completely off paper.

Anonymous said...

Maildeaddrop: I'd cut off my arm before I voluntarily surrendered my right to a firearm.