Heller & Burress
stevenjamar at gmail.com
Tue Dec 2 14:07:10 PST 2008
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
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.
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute of Intellectual Property and Social
Howard University School of Law fax: 202-806-8567
"There is no cosmic law forbidding the triumph of extremism in America."
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
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