Heller & Burress

[Steven Jamar]

Is it clear that the second amendment protections limit states after  
Heller?  Heller was a DC case.  I think it almost certain that the 2d  
amendment will be "incorporated" in its  new form, so the question  
about Burress could come up.

I read the case as essentially adopting an "undue burden" standard  
like regulating abortion.  As long as the state doesn't eliminate the  
right, or place an undue burden on the exercise of it, the state can  
regulate.

Can Burress challenge the constitutionality of the law even if as  
applied to him in this instance (carrying a loaded gun, safety off,  
into a place of public accommodation) the scope of the right would  
probably not extend that far?  Heller only said the right is to defend  
oneself in one's home.

Steve

-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/


"There is no cosmic law forbidding the triumph of extremism in America."

Thomas McIntyre



On Dec 2, 2008, at 4:46 PM, Ray Kessler wrote:

> Although Heller concluded that the right was a right of individuals  
> (even if they weren’t connected to a militia), the Court did not  
> clearly specify the applicable standard of review.   The Court did  
> reject the toothless rational basis test, but refused to  
> specifically adopt or reject strict scrutiny.  If the Court were to  
> use strict scrutiny on N.Y. gun laws (carry permits), IMHO they  
> would find that the very stringent criteria for issuing permits  
> violated the 2nd Amend.  Permits are extremely difficult to obtain,  
> even for ordinary law-abiding citizens who can show a need.   
> Although Heller involved guns kept at home,  I think/hope it would  
> also strike down NY’s overly-strict license to carry laws.  This  
> would not mean, however, the convicted felons, juveniles or mental  
> patients would have to be given licenses.
>
> Breyer’s dissent uses a wishy-washy standard of review that would  
> essentially make Heller’s rights meaningless.  He (and the rest of  
> the dissenters) reject strict scrutiny, but their conclusion, IMHO,  
> does not hold water.
> Ray Kessler
> Prof. of Criminal Justice
> Sul Ross State Univ.
>
>
>
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu 
> ] On Behalf Of Michael Zimmer
> Sent: Tuesday, December 02, 2008 1:34 PM
> Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: Heller & Burress
>
> Does Burress have a good constitutional defense, based on Heller and  
> the Second Amendment, to his prosecution under the New York gun laws?
>
>
> Michael J. Zimmer
> Professor of Law Emeritus
> Seton Hall Law School
>
> Professor of Law
> Loyola University Chicago
> 25 East Pearson Street
> Chicago, IL 60611
> 312.915.7919
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