Thursday, June 16, 2016

The Same Ol' Same Ol' — Mass Shooting + Outraged Calls For Gun Control = (Yawn) Nothing

Here we go again after another mass shooting by a lone gunman armed with an assault rifle (beloved by many weapons manufacturers and Dumbos/Teabaggers in office and out) killed 49 victims and wounded several others in Orlando, FL. This tragic opera has played out from coast-to-coast with victims ranging from kindergarten/first-grade to adults in a variety of settings. We don't have a Congress. It's just another breakout session of the NRA convention. If this is (fair & balanced) hatred of the NRA and its members and sycophants, so be it.

[x New Yorker]
Whar's Really Standing In The Way Of Gun Control
By Jeffrey Toobin

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After the Supreme Court decided District of Columbia v. Heller, in 2008, it appeared that all attempts at gun control might be doomed, as a matter of constitutional law, for the foreseeable future. In an opinion by Antonin Scalia, writing for a five-Justice majority, the Court reversed decades of precedent and asserted that the Second Amendment guaranteed an individual the right to possess firearms (discounting the amendment’s reference to “a well regulated militia”). So, in light of monstrosities like the massacre in Orlando, are the state, local, and federal governments powerless to pass laws that restrict the purchase, possession, and use of guns?

As it turns out, no. Major Supreme Court decisions often raise as many questions as they settle, and that was certainly true of Heller. That decision rejected a District of Columbia ban on the possession of handguns that extended to weapons kept in the home, but it did not resolve many other issues regarding the regulation of firearms. Several recent lower-court decisions have narrowly interpreted the words of Heller in upholding important local rules about guns.

Last week, for example, the U.S. Court of Appeals for the Ninth Circuit ruled [PDF] that the Second Amendment does not give individuals an absolute right to carry concealed weapons. The case involved a challenge to a California law that bans possession of concealed weapons unless the owner of the weapon has a permit from the local police, which could be obtained for “good cause,” as defined by each locality. San Diego had said an applicant could obtain a permit under any set of circumstances that “causes him or her to be placed in harm’s way.” The city listed a few acceptable grounds for granting a permit—having a job that involved carrying large amounts of cash, for example—but it also stated, “Simply fearing for one’s personal safety alone is not considered good cause.” In an opinion by Judge William A. Fletcher, a Bill Clinton appointee, the court said that the San Diego rule was permissible under the Second Amendment. As Fletcher wrote, “Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment—whatever the scope of that protection may be—simply does not extend to the carrying of concealed firearms in public by members of the general public.”

In a similar vein, the Court of Appeals for the DC Circuit, also last week, voided a lower-court decision that had invalidated the District’s ban on concealed weapons. This preliminary ruling was not the same as a final judgment on the merits, but the drift was very much the same as the Ninth Circuit’s decision—that states and localities have the right to ban the carrying of concealed weapons.

These decisions suggest that legislators still have a great many options to try to limit gun violence, even in the post-Heller era. In addition to concealed-carry bans, it seems clear that governments can require background checks before allowing the purchase of weapons. Similarly, it’s likely that government can prohibit individuals on the terror watch list, or those subject to domestic-violence restraining orders, from buying guns. Even Scalia’s opinion in Heller recognized “the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” This tradition might well allow a prohibition on possession of the AR-15, which the gunman in Orlando apparently used to kill so many people.

For gun control, in other words, the problem is not constitutional law but political will. Many states and localities have taken advantage of the gaps left by Heller to make serious efforts to limit gun violence. But because most guns are easily portable over state and jurisdictional lines, there is only so much that can be done without action by the federal government. And Congress, especially with the House of Representatives in Republican hands, seems implacably opposed to any sort of gun restrictions. Even in the period immediately after the massacre at Sandy Hook Elementary School, in Newtown, Connecticut, when the Senate was still in Democratic hands, an attempt to impose a background-check requirement fell to the threat of a Republican filibuster. (Some Democrats also voted to block the bill.) Last year, Republicans in the Senate blocked an Obama Administration initiative that would have banned individuals on the terror watch list from buying weapons and explosives in the United States. In other words, the Supreme Court hasn’t tied the hands of members of Congress; rather, the legislators have chosen to preserve the status quo—with the results, in Orlando and elsewhere, evident to all. Ω

[Jeffrey Toobin, a staff writer at The New Yorker since 1993, writes about legal affairs. Before joining The New Yorker, Toobin served as an Assistant United States Attorney in Brooklyn, New York. He also served as an associate counsel in the Office of Independent Counsel Lawrence E. Walsh, an experience that provided the basis for his first book, Opening Arguments: A Young Lawyer’s First Case—United States v. Oliver North (1991). Toobin's most recent book is The Nine: Inside the Secret World of the Supreme Court (2007). He graduated magna cum laude with a BA (classics) from Harvard College and earned a Truman Scholarship. Thereafter, he graduated from Harvard Law School magna cum laude with JD (magna cum laude), where he was an editor of the Harvard Law Review.]

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