Category Archives: District of Columbia v. Heller

Take Back Your Government

Tuesday night, I spoke before the Bonner County Republican Party Central Committee (all elected county officials in Bonner county are Republicans right now), in support of a resolution (which I had a small part in writing) supporting the second amendment and:

“Strongly urging” the county commission (all commissioners are Republicans) to enact an ordnance

1. Declaring all federal firearms laws in violation of the second amendment

2. Requiring the Sheriff (also a Republican) to refuse to enforce, or allow to be enforced, and to prevent enforcement in the county; any laws abrogating, violating, or substantially limiting our natural and pre-existing right to keep and bear arms for defense of self and others.

This resolution was adopted by acclimation by the county party, and was forwarded to the Idaho state Republican party, so that they can include it (and the similar resolutions of all 44 counties in the state) in the statewide resolution of the Idaho Republican party (which will be substantially similar):

Quote:

A Resolution of the Bonner County Republican Central Committee to be known as
The Second Amendment Resolution

WHEREAS, The United States Constitution guarantees the natural and pre-existing right to keep and bear arms, and

WHEREAS, Only laws made “in Pursuance of” the Constitution are deemed valid, and
WHEREAS, The State and The People of Idaho possess and retain all powers not granted to the federal government, including the powers mentioned in the ninth and tenth amendments to the Constitution, and

WHEREAS, Bonner County being a duly recognized political subdivision of the state of Idaho, has the authority of the State of Idaho to honor Constitutional laws and disregard laws not made “in Pursuance of” the Constitution,

BE IT RESOLVED THAT, The Bonner County Republican Central Committee strongly urges the Bonner County Commissioners to enact the following Ordinance; following the example of the Founders and many States, Sheriff’s and local jurisdictions throughout the United States to wit:

AN Ordinance, which shall be known and may be cited as the “2nd Amendment Preservation Ordinance.”

To prevent federal infringement of the right to keep and bear arms; nullifying all federal acts in violation of the 2nd Amendment to the Constitution of the United States.

THE BOARD OF COMMISSIONERS OF BONNER COUNTY DO ENACT AS FOLLOWS:

SECTION 1: The Bonner County Board of Commissioners finds that:

A. The 2nd Amendment to the Constitution of the United States reads as follows, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

B. All federal acts, laws, orders, rules or regulations regarding firearms are a violation of the 2nd Amendment

SECTION 2: PROHIBITION ON FEDERAL INFRINGEMENT OF THE RIGHT TO KEEP AND BEAR ARMS

A. The Bonner County Board of Commissioners declares that all federal acts, laws, orders, rules, regulations – past, present or future – in violation of the 2nd Amendment to the Constitution of the United States, are not authorized by the Constitution of the United States, and violate its true meaning and intent as given by the Founders and Ratifiers; and are hereby declared to be invalid in this county, shall not be recognized by this county, are specifically rejected by this county, and shall be considered null and void and of no effect in this county.

B. It shall be the duty of the Sheriff of this County to take all measures as may be necessary to prevent the enforcement of any federal acts, laws, orders, rules, or regulations in violation of the 2nd Amendment to the Constitution of the United States.

SECTION 3 EFFECTIVE DATE

A. This act takes effect upon approval by the Bonner County Board of Commissioners

We have been winning this issue on the federal issue for a number of years. With Heller and McDonald; and the great work of Alan Gura (of Gura and Posesskey), Alan Gottleib of the Second Amendment Foundation, the NRA, JPFO, and others; we are going to keep winning this in federal courts.

But we have to do more. We have to make it clear that we will no longer accept the ratcheting violation of our rights and our liberty.

Further, the most restrictive laws, and the biggest dangers aren’t at the federal level; they’re state by state, and in some cases city by city. The way to win the country is to win state by state. The way to win each state, is to win county by county, and city by city.

We need to win these issues locally. We need to take back our government.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Yes, the Second Amendment really means what it says… and that means you too Chicago

This past Monday, Samuel Alito, writing for the majority (with separate concurring opinions from Clarence Thomas and Antonin Scalia) in the case McDonald vs. City of Chicago and Village of Morton Grove; handed down what in 30 years will I believe, be held as one of (or perhaps half of a pair of, or the second in a series of) the most significant rulings in the courts history, not just for the right to keep and bear arms, but for the rights of all people in this nation.

I had meant to get this post out yesterday, but I had to take the time to read the entire opinion… all 214 pages of it… and think about it for a bit.

This judgment is notable, both for what it does, and for what it does not do; and I want to go into that in some depth… and I want to go into some of the background and issues surrounding the decision that aren’t necessarily about the right to keep and bear arms

However, that is going to get long…. and if you aren’t interested in constitutional law and the nature and exercise of the rights and powers of the states, it’s going to be boring. There’s only so much you can do to make enumeration and separation of powers issues over more than two hundred years, all that interesting.


Note: Also, for those of you who DO closely follow con law, this is going to be a gross simplification in some ways. I don’t have time to write a book here, and a book is what it would take to cover this comprehensively (actually several… there are a few out there already, and Heller and its progeny are sure to generate more).

At any rate, I’m going to break it out into another posts, and I’ll update this post with a link when I finish the other one.

… I should warn you, I’m already 5,000 words in, and I’m probably less than half done…

McDonald vs. Chicago is the first major gun rights case brought before the supreme court under the clarified Heller doctrine, to wit:

The right to keep and bear arms for all lawful purposes is an individual right, possessed by all citizens and lawful residents of this country (provided this right has not been statutorily stripped from them, with due process of law); and the core of that right, is the fundamental right to defense of self, and others.

Actually, McDonald is a bit more than just “first”… In fact, the case was prepared in advance, and filed immediately on the handing down of the Heller ruling; by the lead counsel on the Heller case, Alan Gura.

The issue at hand in Heller was to affirm and clarify the basic right; something which those on the left in general, and in the gun control lobby in particular, had been trying to deny for something like the last 40 years

Note: The modern gun control movement as currently constituted really began in the late 60s; roughly coinciding with accelerating decay of civil order and rise in civil unrest, the rise of the drug and counterculture, and dramatically rising crime rates.

More than anything else, it was the assassination of Robert Kennedy, and Martin Luther King that kick-started the gun control movement as it exists today.

The gun control movement in the U.S. as a whole has its roots in racial discrimination against immigrants in the pre-civil war northern cites, and blacks in the post civil war south.

Up until the late 1950s, the left as a whole actually advocated gun ownership, as a bulwark against the state… a position generally ascribed these days to the “far right”; but as the left post 1932 increasingly BECAME the state, their position on civilian non-police gun ownership changed.

The issue at hand in McDonald is substantially identical to Heller, with a crucial difference we’ll discuss in a moment; that of incorporation of the second amendment against state and local governments, as other rights enumerated in the bill of rights have been.

In Heller, the substance and nature of the right were affirmed. However, though the assertion of the right is very clear; it’s application is potentially limited.

Because the Heller case pertained to a federal enclave (Washington D.C. is not a part of any state. It is a federal enclave. Precedent in DC cases applies federally, but not necessarily to issues in the several states), the ruling only explicitly applied to the federal government.

In principle the right could be asserted against the states, or it could not be… depending on judicial interpretation. Either way a judge decided, it would almost be certain to be appealed… as indeed it was (in at least four cases so far, all of which were delayed pending the McDonald ruling).

Also, Heller left various questions open to interpretation, such as the standard of review for laws pertaining to the right to keep and bear arms, and whether interest balancing tests could be made.. or for that matter just what types of laws would be acceptable short of outright bans on firearms in the home (which were explicitly forbidden).

In Mondays decision on McDonald, it was affirmed (quite strongly), that the rights protected by the second amendment are equal in stature to the rights protected by the first amendment, and all the others.

In both the majority opinion, and the concurrences, the court made it explicit that the protections afforded by the second amendment applied against the state. Further, they made it clear that a strict standard of review was to be applied to any law regarding the right to keep and bear arms (though they do not by any means disallow all regulation. In both Heller and McDonald, it is acknowledged that some regulation of any right can be acceptable, but must be strictly scrutinized).

There is still one set of questions to be resolved, what exact restrictions against keeping and bearing arms will be acceptable under this standard of review. Just as there are many limitations against speech permitted by current jurisprudence, including many which probably should not be allowed under the constitution (such as most of what is called “campaign finance reform”); there will likely still be substantial restrictions allowed by the court. In any case, it will be years… likely decades… before the whole issue is settled law, and in the mean time, there will be a lot of contradiction and chaos.

The fight is certainly not over… in fact it’s really just getting started.

This is where we get into the theoretical discussion about the constitution, so I think I’m going to end here and pick it up in the next, much longer, post.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Elena Kagan And The Second Amendment

Today’s controversy burning up Memeorandum is a revelation concerning Supreme Court nominee Elena Kagan’s previously expressed views on the Second Amendment:

May 13 (Bloomberg) — Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal.

The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”

The law in question, of course, were the same firearms law that were at issue some 21 years later in District of Columbia v. Heller, which the Supreme Court ultimately struck down in what was actually the first explicit ruling on its part that the Second Amendment protected an individual right to keep and bear arms.

But, in 1987, a similar challenge to the same law suffered a much different fate:

The lower court ruling in the 1987 case, issued by the District of Columbia’s highest court, said the Second Amendment protects only the rights of states to raise militias, and not individual gun rights. The ruling upheld Lee Sandidge’s conviction for carrying a pistol without a license, possession of an unregistered firearm and unlawful possession of ammunition.

The high court refused to hear the case, known as Sandidge v. United States. The memo to Marshall, found in his papers at the Library of Congress, includes a handwritten “D,” indicating that he was among those who voted to deny review.

White House spokesman Ben LaBolt said the position taken in the memo to Marshall reflected the prevailing view of the law at the time.

That is, of course, absolutely correct. Prior to Heller, the Supreme Court’s Second Amendment, though slim, was decidedly against the idea that the amendment protected an individual surprise. Thus, it’s not all that surprising to me as an attorney that a 27 year-old law clerk working for one of the most liberal Justices on the Court at the time would produce a memo arguing that the appeal should be denied.

The question, then, isn’t what Kagan thought twenty years ago when the law was different, but what she thinks now, and she gave at least some clue to that during her confirmation hearings to become Solicitor General:

As a nominee to be solicitor general last year, Kagan told lawmakers that she accepted that 5-4 decision in District of Columbia v. Heller as a precedent of the court.

“There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation,” she said.

Kagan should clearly be questioned on her views about the Second Amendment and the Heller decision, but rather than focusing on something she wrote 20 years ago, I would hope that the Senators focus on what she believes today.

H/T: Vodkapundit

Supreme Court To Rule On Second Amendment’s Applicability To The States

One of the issues left unresolved by the Supreme Court’s ruling in District of Columbia v. Heller was whether the Court’s interpretation of the Second Amendment as an individual right applied to state and local governments. The last time the Court had the opportunity to rule on the issue, in 1886, in the case Presser v. Illinois, it specifically held that the Second Amendment only limited the national government, and no subsequent case has applied the doctrine of incorporation to the Second Amendment.

Today, the Supreme Court announced that it had accepted a case from Chicago that should resolve that issue once and for all:

The Supreme Court on Wednesday said it would decide whether an individual’s right to own guns for self-defense — as articulated by the high court in 2008 when it struck down the District of Columbia’s ban on handguns — also covers states and other cities with gun-control laws.

The question of whether the Second Amendment only applies to the federal government and federal enclaves like the District is one that was not addressed in the decision in Heller v. District of Columbia.

The case that the court accepted Wednesday concerns the city of Chicago’s law, which bans most handguns

Lyle Denniston at SCOTUSBlog provides further details on the issue now before the Court:

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon. It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA. lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller). A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497). Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

Given that the makeup of the Court has not appreciably changed since Heller, it seems likely that the Court will rule that the Second Amendment does apply to the states, but that’s something we can’t really be sure of until the decision is actually issued.

Sonia Sotomayor Gets It Wrong On Gun Rights

During the course of her confirmation hearing today, Sonia Sotomayor had a very interesting exchange with Senator Tom Coburn over the right to keep and bear arms:

In a prickly exchange over gun control, Sen. Tom Coburn tried hard to get Sonia Sotomayor to explain what she actually thinks about the right to bear arms. “As a citizen of this country do you believe … I have a right to personal self-defense?” he asked her.

Sotomayor said she couldn’t think of a Supreme Court case that had addressed the issue in that language. “Is there a constitutional right to self-defense?” she asked. “ I can’t think of one. I could be wrong.”

The Oklahoma Republican said he didn’t want to know if there was a legal precedent that would answer his question — he wanted to know Sotomayor’s personal opinion.

She paused. “That is sort of an abstract question,” she said. “I don’t –”

“Well that’s what the American people want to hear,” Coburn said. Americans don’t want legalese from “bright legal minds,” he said. “They want to know if they can defend themselves in their homes.”

Sotomayor paused and then apologized. “I know it’s difficult to deal with someone who is a judge,” she said. “Let me try to address what you’re saying in the context that I can, OK?”

She went on to explain a hypothetical case – and the way she’d interpret it under New York law (the state whose law she knows best). The state allows someone to defend themselves if they fear an imminent threat. Let’s say, she told the senator, that Coburn threatened her and then she went home, got a gun and shot him.

“You’d have a lot of explaining to do!” Coburn said.

Here’s the video of the exchange:

One wonders if someone needs to give Sotomayor a copy of the majority opinion in D.C. v. Heller:

Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 5Yer. 356, 360 (Tenn. 1833).

(…)

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

(…)

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.

Apparently, Sotomayor hasn’t read Heller at all.

Two Steps Forward, One Step Back On Gun Rights

One of the many issues left unresolved by last year’s decision in District of Columbia v. Heller was the question of whether or not the Court’s holding, and the Second Amendment in general, would apply to the states. Back in 1886, in the case Presser v. Illinois, the Supreme Court specifically held that the Second Amendment only limited the national government, and no subsequent case has applied the doctrine of incorporation to the Second Amendment.

Until now that is.

Yesterday, a panel of the Ninth Circuit Court of Appeals ruled that the Second Amendment does in fact apply to the states:

The Constitution’s protection of an individual right to have guns for personal use restricts the powers of state and local government as much as it does those of the federal government, the Ninth Circuit Court ruled Monday. The opinion by the three-judge panel can be found here. This is the first ruling by a federal appeals court to extend the Second Amendment to the state and local level. Several cases on the same issue are now awaiting a ruling by the Seventh Circuit Court.

Ruling on an issue that is certain to reach the Supreme Court, the Circuit Court concluded “that the right to keep and bear arms” as a personal right has become a part of the Constitution as it applies to the states through the Fourteenth Amendment’s due process clause.

That right, it said, “is ‘deeply rooted in this Nation’s history and tradition.’ Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the ‘true palladium of liberty.’

“Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”

But, following the lead of the Supreme Court’s decision last June in District of Columbia v. Heller, finding a personal right in the Second Amendment for the first time, the Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home.

Based on this, the Court upheld the law at issue in the case; a county ordinance that prohibited gun owners from bringing guns on county property or, more specifically as Chris Byrne notes, the county passed an ordinance prohibiting the Plaintiff’s in this case from holding a gun show at a county convention center.

Given the holding in Heller, this result is as unsurprising as the Ninth Circuit’s decision on incorporation. Consider this excerpt from Justice Scalia’s majority opinion:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

While this is dicta that was not essential to the ruling in Heller, it was a clear signal from the Court to the Circuit and District Court’s that it’s decision was not intended to be, and should not be interpreted as, a blanket declaration that restrictions on gun ownership of all kinds were per se unconstitutional. In fact, Scalia was careful to say in his opinion that the basis for the Court’s ruling in Heller was based primarily on what it saw as a fundamental right of self defense in the home.

Given that, the present makeup of the Court, and the likelihood that we’ll see at least one new Justice before this case is argued in Washington if it is appealed, it seems likely to me that the Supreme Court would agree with the Ninth Circuit on the incorporation issue, but that it would also agree that Alameda County’s restriction on guns on public property was a reasonable regulation under the Second Amendment.

That said, though, this is an important decision for gun rights because it means that restrictive gun laws across the country — in places like New York, Chicago, and San Francisco — are now potentially subject to being struck down for the same reasons that the Court struck down the laws at issue in Heller.

On the whole, that’s a big victory.

C/P: Below The Beltway

The Constitution really DOES mean what is says

This morning, the 9th circuit court of appeals confirmed that the 2nd amendment is indeed incorporated against the states under the selective incorporation doctrine, in the case Nordyke Vs. King.

This means that the 2nd amendment has a lawful status equivalent to that of the first, fourth, fifth, and other amendments which explicitly protect our fundamental rights.

Of course, that is only lawfully binding within the 9th circuit; but it is expected that other circuits will take judicial notice of the 9ths ruling.

If you aren’t familiar with the Nordyke Vs. King; this is the case where a gunshow operator was denied access to use country fairgrounds for their gunshows, because a county ordnance prevented the possession of firearms on county property by anyone other than law enforcement.

The facts of the case as presented to the court are as follows (emphasis in bold and red are mine):

Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, they have publicized numerous shows across the state, including at the public fairgrounds in Alameda County.

Before the County passed the law at issue in this appeal, the Alameda gun shows
routinely drew about 4,000 people. The parties agree that nothing violent or illegal happened at those events.

In the summer of 1999, the County Board of Supervisors, a legislative body, passed Ordinance No. 0-2000-22 (“the Ordinance”), codified at Alameda County General Ordinance Code (“Alameda Code”) section 9.12.120.

The Ordinance makes it a misdemeanor to bring onto or to possess a firearm
or ammunition on County property. Alameda Code § 9.12.120(b).

It does not mention gun shows.

According to the County, the Board passed the Ordinance in response to a shooting that occurred the previous summer at the fairgrounds during the annual County Fair.

The Ordinance begins with findings that “gunshot fatalities are of epidemic
proportions in Alameda County.”

At a press conference, the author of the Ordinance, Supervisor Mary King, cited a “rash of gun-related violence” in the same year as the fairground shooting. She was referring to a series of school shootings that attracted national attention in the late
1990s, the most notorious of which occurred at Columbine High School in Littleton, Colorado.

But the Nordykes insist that something more sinister was afoot. They point to some of King’s other statements as evidence that she actually intended to drive the gun shows out of Alameda County.

Shortly before proposing the Ordinance, King sent a memorandum to the County Counsel asking him to research “the most appropriate way” she might “prohibit the gun shows” on County property.

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as
icons of patriotism.”

Without expressing any opinion about King’s remarks, the Board of Supervisors adopted the Ordinance. County officials then exchanged several letters with the
Nordykes.

The General Manager of the fairgrounds asked the Nordykes to submit a written plan to explain how their next gun show would comply with the Ordinance.

As the County Counsel had told the General Manager, the Ordinance did not
expressly prohibit gun shows or the sale of firearms.

An aside from the the blog author: This is in fact a false statement. California statute in conjunction with federal law (i.e. the sum total of requirements imposed by both sets of statutes combined; not each set individually), requires that firearms transfers occur face to face, through an FFL; that the FFL conduct a background check and in person identity verification of the person they are delivering the weapon to at the time of sale, AND at the time of delivery if those times are separate; and that the sale be conducted at the FFLs place of business, an organized gun show, or a licensed auction.

Effectively, the only way they could conduct a gun show, would be to have pictures of guns available, at which time prospective gun purchasers could arrange to meet the FFL later at their place of business to purchase a firearm. It would not even be lawful to explicitly arrange for a sale at the show and then complete the transaction later.

The county counsel knew, or should have known, that this was the case.

The Nordykes insisted then and maintain now that they cannot hold a gun show without guns; perhaps because they thought it futile, they never submitted a plan.

During the same period, representatives of the Scottish Caledonian Games (“the Scottish Games”) inquired about the effect of the new law on the activities they traditionally held on the fairgrounds. Those activities include reenactments, using period firearms loaded with blank ammunition, of historic battles.

After the inquiries, the County amended the Ordinance to add several exceptions. Importantly, the Ordinance no longer applies to [t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

This exception allows members of the Scottish Games to reenact historic battles if they secure their weapons, but it is unclear whether the County
created the exception just for them.

By the time the County had written this exception into the Ordinance, the Nordykes and several patrons of and exhibitors at the gun shows (collectively, “the Nordykes”) had already sued the County and its Supervisors under 42 U.S.C. § 1983 for various constitutional violations. The amendment did not mollify them, and their lawsuit has wended through various procedural twists and turns for nearly a decade.

I just want to highlight again one particular passage:

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism.”

Disgusting.

Unfortunately the result here is mixed. The circuit has ruled that the 2nd is incorporated against the states; but that it did not overturn the statute in question… I’m not really sure I agree with or follow their reasoning on this one.

The ruling provides that the second amendment is explicitly incorporated against the states, in plain language:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”

Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right.

It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.

The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

There could not be a better, and more unambiguous, declaration of right than this.

What is puzzling to me is how they decided that the county ordnance did not then violate the second amendment.

Yes, they make clear that laws which make exercising fundamental rights more difficult do not automatically infringe upon them (from a legal standpoint); but it seems to me this is a clear cut case of a local government, promulgating a complete ban on the possession of firearms on land controlled by that local government.

Such a ban should be clearly unconstitutional under this analysis.

It would be like saying free speech did not apply on county property, which IS clearly prohibited. Yes, there can be reasonable restrictions, but total prohibition should be right out.

Given the relative weakness of argument supporting the ordnance, and complete lack of precedential support, I can only conclude they were desperately hunting for a reason not to invalidate ALL gun control legislation in one stroke.

Now, the real question, is whether either party is going to continue appealing, and file a petition for certiorari before the supreme court.

Both parties have grounds, and standing to file; and both parties have both incentive and disincentive to do so.

If they do, and the court decides to take it, it would be the second most significant second amendment case ever, after Heller (Heller clearly supersedes Miller, and is therefore more significant)

By the by, if you read the whole ruling (and I recommend you do) there is some extensive discussion of Cruikshank, Presser, and Slaughterhouse. I believe that Heller provided an explicit foundation for all three to be overturned (at least partially).

Actually I believe that proper jurisprudence suggests they should be overturned as having had no facial validity in their initial rulings, being clearly against the principals engendered in the constitution; but Heller gives a precedential foundation for this).

Although I’m generally not a big fan of Hugo Black; I think he had the right concept on the 14th amendment. In fact, I believe it should have been clear without the fourteenth amendment, and merely through the supremacy clause that ALL elements of the constitution as directly related to the people and the protection of our rights (as opposed to the structural components of the constitution) applied to the states.

Also contained therein, is an analysis of the right to keep and bear arms as a fundamental individual right, and commonlaw right from before the founding of this nation through the passage of the 14th amendment and beyond; including a discussion of the racist nature of gun control.

The footnotes and citations too contain a wealth of information, this lovely nugget being my favorite:

we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

In all, the incorporation portion of the ruling and opinion are so well researched, and reasoned, in such depth; that I cannot see how a credible argument could successfully be made against it, given an honest arbiter.

Conversely, the section (only a few paragraphs of a 40 page ruling) arguing that the ordinance did not violate the second amendment was so poorly argued that I can’t see how a successful argument COULD NOT be made against it, given an honest arbiter.

So I say, Alameda County, PLEASE appeal this to the supreme court on incorporation grounds; and to the Nordykes, please appeal the decision to uphold the law.

Thanks ever so much.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Another Ridiculous Gun Regulation Challenged In Washington, D.C.

Last year’s Supreme Court case hasn’t stopped the District of Columbia from passing arbitrary gun laws clearly designed to restrict it’s citizens’ Second Amendment rights:

A D.C. woman filed suit in U.S. District Court yesterday, claiming that the city would not let her register a pistol because of its color.

Tracey A. Hanson argued that her application to register a .45-caliber semiautomatic was denied because the gun is not on the California Safe Handgun Roster, which is the standard in the city.

Hanson tried to register a two-tone, stainless steel/black pistol, according to the suit. But the list has that model in olive drab green, dark earth or black, not in two-tone, stainless/black, the suit asserts. Hanson said rejection for that reason “seemed so arbitrary.”

(…)

Peter Nickles, the city’s attorney general, said he had not seen the lawsuit and could not discuss its details.

But he said he is confident that the D.C. regulations are “completely appropriate” under the Second Amendment.

Of course he does.

Hanson’s lawsuit joins one filed by Dick Heller, the main Plaintiff in the original lawsuit, back in July which challenges new gun laws passed by the city as too restrictive.

Gunblogger conference call with Missouri Governor Matt Blunt

Earlier today, I participated in a conference call with Missouri governor Matt Blunt, on the subject of gun rights, John McCain, and Barack Obama.

You may recall that recently, the Obama campaign worked directly with democratic party elected officials in the state of Missouri; engaging prosecutors and county sheriffs, to intimidate local media outlets, and prevent them from taking advertising criticizing Barack Obama.

Governor Blunt delivered a scathing rebuke of this blatant ethical misconduct (and violation of at least federal election regulations, if not federal law):

Gov. Blunt Statement on Obama Campaign’s
Abusive Use of Missouri Law Enforcement

JEFFERSON CITY – Gov. Matt Blunt today issued the following statement on news reports that have exposed plans by U.S. Senator Barack Obama to use Missouri law enforcement to threaten and intimidate his critics.

“St. Louis County Circuit Attorney Bob McCulloch, St. Louis City Circuit Attorney Jennifer Joyce, Jefferson County Sheriff Glenn Boyer, and Obama and the leader of his Missouri campaign Senator Claire McCaskill have attached the stench of police state tactics to the Obama-Biden campaign.

“What Senator Obama and his helpers are doing is scandalous beyond words, the party that claims to be the party of Thomas Jefferson is abusing the justice system and offices of public trust to silence political criticism with threats of prosecution and criminal punishment.

“This abuse of the law for intimidation insults the most sacred principles and ideals of Jefferson. I can think of nothing more offensive to Jefferson’s thinking than using the power of the state to deprive Americans of their civil rights. The only conceivable purpose of Messrs. McCulloch, Obama and the others is to frighten people away from expressing themselves, to chill free and open debate, to suppress support and donations to conservative organizations targeted by this anti-civil rights, to strangle criticism of Mr. Obama, to suppress ads about his support of higher taxes, and to choke out criticism on television, radio, the Internet, blogs, e-mail and daily conversation about the election.

“Barack Obama needs to grow up. Leftist blogs and others in the press constantly say false things about me and my family. Usually, we ignore false and scurrilous accusations because the purveyors have no credibility. When necessary, we refute them. Enlisting Missouri law enforcement to intimidate people and kill free debate is reminiscent of the Sedition Acts – not a free society.”

Governor Blunt, who has decided not to seek re-election; has been campaigning in Missouri, and across the country, for gun rights, and for John McCain.

On the call with me were the organizers, Bryan Pick and John Henke from QandO.net, Jonathan Blank of the Cato Institute, Nicky Fellenzer from The Liberty Zone, Dave Kopel of the Independence Institute and DaveKopel.com, David Codrea of The War On Guns, JR of A Keyboard and a .45, Sebastian of Snowflakes in Hell, Cam Edwards of NRA News and the Cam and Company radio show, Bitter of The Bitchgirls, Dustin of Dustins Gun Blog, John Donovan of The Donovan, and Caleb of Call me Ahab.

It has been agreed that we can release the full audio of our conference call with the governor. I’ve put it up here:

Sorry, I cant get the embeddable streaming widget to work. Here’s a link to the full file, and an embedded player that works, at archive.org.

Gunblogger conference call with Missouri Governor Matt Blunt

I have edited nothing from Governor Blunts comments; only the introductions and some chat between my fellow bloggers at the beginning and end of the call.

If time permits, I will post a transcript later.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Heller v. District Of Columbia, Round Two

Just over a month after the United States Supreme Court struck down the District of Columbia’s handgun ban, the man who brought that case is suing the District again over it’s response to the Supreme Court’s ruling:

The man who successfully challenged the D.C. handgun ban before the U.S. Supreme Court filed a second federal lawsuit yesterday, alleging that the District’s new gun-registration system is burdensome and continues to unlawfully outlaw most semiautomatic pistols.

Dick A. Heller, a 66-year-old security guard who lives on Capitol Hill, and two other plaintiffs allege in the lawsuit that the D.C. government violated the letter and the spirit of the landmark Supreme Court decision, issued June 26, that struck down the District’s decades-old handgun ban.

The 5 to 4 ruling concluded that the Second Amendment grants individuals the right to possess guns for self-defense but said governments may impose reasonable restrictions. The lawsuit filed yesterday in U.S District Court says the District’s restrictions go too far.

The suit urges U.S. District Judge Richard M. Urbina to toss most of the District’s new requirements, which include ballistics tests of registered handguns. It also asks him to eliminate restrictions on semiautomatic handguns and to order D.C. police to approve the handgun applications of the three plaintiffs.

To call the District’s “response” to the Supreme Court ruling cynical would be putting it nicely, so it’s nice to see Heller and the others moving quickly to bring this issue before the Courts. Something tells me, though, that Dick Heller may have another date with the Supremes in two or three years.

Quote Of The Day

DC City Council Chairman Vincent Gray, on the District’s new gun legislation:

We’re trying to figure out how close we can get to where we were before.

Judging from the “emergency” law, which continues to ban semiautomatic weapons and requires trigger locks or the firearm to be disassembled at all times (except when used against an intruder), I’d say they’ve gotten pretty close.

This story is just too good, though, and offers a second gem:

Nickles said residents could neither keep their guns loaded in anticipation of a problem nor search for an intruder on their property. The porch is off-limits, he said, as well as the yard and any outbuildings.

Yes. You see, you have to wait until an intruder is next to your bed with his gun drawn on you before you’re allowed to assemble your weapon, load ammunition, and defend yourself. This is how DC is keeping you safe!

Hat Tip: Billy Beck

A Human Right, A Civil Right: Fundamental, Pre-existing, Strictly Scrutinized, Universal, and Incorporated

This morning, I’m noting a lot of ill informed …or perhaps just informed by misunderstanding of the text… opinions and statements regarding the historic Heller ruling on the scope and applicability of the 2nd amendment.

This of course is unsurprising when many people of varying levels of knowledge about law, history, and firearms have just a short time to digest a 90 page majority opinion and another 70 pages of dissents and cites.

In the table below, I’ve selected out the critical passages, and highlighted some of those I consider most instructive or important (bold for important, red for critical).

Briefly, I need to specifically address some points:

1. Incorporation: Scalia makes it clear in his majority opinion that the second amendment is a fundamental right, that must be treated the same as other fundamental rights such as the first amendment. He specifically notes it in respect to the 14th amendment NUMEROUS times. This decision will be applied universally within the domain of the court, and should be considered controlling upon the states (this is clarified in the later references by the way).

2. Universality: This decision applies to all within the jurisdiction of the court. Excepting prohibited persons (and there is a clear definition under federal law of who those persons are by the way), all individuals under the jurisdiction of U.S. law, have the right to keep and bear arms.

3. Scrutiny:
Again, this issue is clear. Though in the opinion itself Scalia does not explicitly state that second amendment issues should be reviewed with strict scrutiny, this is made clear in the text by equating the 2nd amendment with the first, 4th, 14th etc… Further, Scalia explicitly dismisses Stevens call for a “balance of interests” standard of medium scrutiny. This is in effect strict scrutiny, with certain well defined exceptions (such as for felons, the insane, and weapons of mass destruction).

4. Class III (machine guns and other): This one is mixed. Although the majority expresses that some restrictions are permissible, it also explicitly denies outright bans. It is clear that weapons that are in the common usage and available to citizens, are protected. That includes machine guns (machine guns are not illegal for the general public to own, they are just very expensive and tightly restricted). Although Scalia points out that Miller said it was OK to ban short barreled shotguns, he also noted that the decision is flawed, because it only took judicial notice of what was presented to the court, and the original apellant (Miller, though technically he was the respondent for the appeal to the supremes) never presented a case (he died before the date set for arguments, and his attorney didn’t bother to show up).

Based on my reading, I would say that the current law prohibiting the new manufacture of machine guns for civilian sale after May of 1986 (actually that’s not what it says, but that is how the ATF chose to interpret it) is out; after some long and difficult litigation. However, the door is open for other laws restricting such weapons, fi properly written to pass constitutional scrutiny.

This of course applies to other weapon types specifically targeted for bans; for example the requirement that all weapons imported into the United States have a “sporting purpose”, and that certain shotguns are considered “destructive devices” simply by arbitrary features; are also disallowed (again with the caveat that new laws could be written to pass a constitutional standard).

5. Scope: I think it is clear, though it will require significant litigation to hash out details; that no outright ban on any type of weapon (including machine guns as currently construed), excepting weapons of mass destruction, can stand muster. This means that all state “Assault weapons bans” will be struck down… eventually; along with magazine capacity bans, hollowpoint bullet bans etc… (though likely the ban on “armor piercing” handgun ammunition will continue).

I also think it is clear that there is significant room for licensing programs, and standards (including standards for weapons features and functionality)to be set, so long as the requirements for licensing are not discriminatory, arbitrary, capricious, or onerous. Of course, again, that is going to require years of litigation to define better.

I do think that clearly this means the end of Chicago gun laws, and most likely the radical reformation of laws in Massachusetts, New York, California, Hawaii, and New Jersey.

I should note that this does not mean universal “shall issue” concealed carry, but it almost certainly DOES mean that all states which allow concealed carry must allow it on a “shall issue” basis; using those standards as a guideline. Unless someone is a prohibited person, as spelled out under law since 1968, you MUST license them (presuming licensing exists).

Additionally, I believe this actually DOES set a requirement for lawful OPEN carry throughout the country; in that self defense is a recognized lawful, and traditional purpose of the bearing of arms.

And of course, this ruling does specifically allow for the restriction of carry of firearms in some ways, and some locations. As Scalia repeatedly says, no constitutionally protected rights are absolute (under the law).

Finally, any legislation that does not EXPLICITLY violate the above prohibitions, but would have the effect of doing so, is certainly disallowed. This means that standards for licensing, firearms design, dealer sale regulations etc… cannot be set so as to constitute an effective ban, or an onerous burden.

Now we just need to spend the next 15 years suing to define what constitutes an onerous burden.

Summary of Impact:
So you can’t ban guns, or any particular types of guns; you can’t keep anyone not a prohibited person from buying, owning, keeping, bearing, and using guns for all lawful purposes (including self defense); you can license and set standards for guns to be sold, and for persons to purchase, own, keep, and bear them; but those standards cannot be discriminatory, arbitrary, capricious, or onerous.

Oh and of course, that doesn’t get into the halo effect this has on other cases dealing with fundamental rights issues (remember how many times they state that this is simply protecting a pre-existing right).

Excerpts from the text of the majority decision:

Held:

1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home…

… 2. Like most rights, the Second Amendment right is not unlimited.
It is not a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose: For example, concealed
weapons prohibitions have been upheld under the Amendment
or state analogues.

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Miller’s holding that the sorts of weapons protected are those
“in common use at the time” finds support in the historical tradition
of prohibiting the carrying of dangerous and unusual weapons.
Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment.

The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense.

Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster.

Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and
is hence unconstitutional.

Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.

Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

Affirmed..


* * *
We turn first to the meaning of the Second Amendment.

The Second Amendment provides: A well regulated
Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be
infringed.”

In interpreting this text, we are guided by the
principle that “The Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.”

Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.

* * *

“Right of the People.” The first salient feature of
the operative clause is that it codifies a “right of the people.”

The unamended Constitution and the Bill of Rights
use the phrase “right of the people” two other times, in the
First Amendment’s Assembly-and-Petition Clause and in
the Fourth Amendment’s Search-and-Seizure Clause. The
Ninth Amendment uses very similar terminology (“The
enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by
the people”). All three of these instances unambiguously
refer to individual rights, not “collective” rights, or rights
that may be exercised only through participation in some
corporate body…

…This contrasts markedly with the phrase “the militia” in
the prefatory clause. As we will describe below, the “militia”
in colonial America consisted of a subset of “the people”—
those who were male, able bodied, and within a
certain age range.

Reading the Second Amendment as
protecting only the right to “keep and bear Arms” in an
organized militia therefore fits poorly with the operative
clause’s description of the holder of that right as “the
people.”

We start therefore with a strong presumption that the
Second Amendment right is exercised individually and
belongs to all Americans.

* * *

… in the course of analyzing the meaning of
“carries a firearm” in a federal criminal statute, JUSTICE
GINSBURG wrote that “[s]urely a most familiar meaning is,
as the Constitution’s Second Amendment . . . indicate[s]:
‘wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.’ ”

We think that JUSTICE GINSBURG accurately captured the
natural meaning of “bear arms.” Although the phrase
implies that the carrying of the weapon is for the purpose
of “offensive or defensive action,” it in no way connotes
participation in a structured military organization.

* * *

Putting all of these textual elements together,
we find that they guarantee the individual right to
possess and carry weapons in case of confrontation
.

This meaning is strongly confirmed by the historical background
of the Second Amendment.

We look to this because it has always been widely understood
that the Second Amendment, like the First and
Fourth Amendments, codified a pre-existing right.

The very text of the Second Amendment implicitly recognizes
the pre-existence of the right and declares only that it
“shall not be infringed.” As we said in United States v.
Cruikshank, 92 U. S. 542, 553 (1876), “This is not a right
granted by the Constitution. Neither is it in any manner
dependent upon that instrument for its existence. The
Second amendment declares that it shall not be infringed”

* * *

There seems to us no doubt, on the basis of both text
and history, that the Second Amendment conferred an
individual right to keep and bear arms. Of course the
right was not unlimited, just as the First Amendment’s
right of free speech was not, see, e.g., United States v.
Williams, 553 U. S. ___ (2008). Thus, we do not read the
Second Amendment to protect the right of citizens to carry
arms for any sort of confrontation, just as we do not read
the First Amendment to protect the right of citizens to
speak for any purpose.

* * *

We reach the question, then: Does the preface fit with
an operative clause that creates an individual right to
keep and bear arms? It fits perfectly, once one knows the
history that the founding generation knew and that we
have described above.

That history showed that the way
tyrants had eliminated a militia consisting of all the ablebodied
men was not by banning the militia but simply by
taking away the people’s arms, enabling a select militia or
standing army to suppress political opponents. This is
what had occurred in England that prompted codification
of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear
arms, as with other guarantees in the Bill of Rights, was
not over whether it was desirable (all agreed that it was)
but over whether it needed to be codified in the Constitution.

* * *

We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits.

Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939.

We think that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary
war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.”

As for the “hundreds of judges,” who have relied on the
view of the Second Amendment JUSTICE STEVENS claims we endorsed in
Miller: If so, they overread Miller. And their erroneous reliance upon
an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

In any event, it should not be thought that the cases decided by these judges
would necessarily have come out differently under a proper interpretation
of the right.

The amendment’s operative clause furthers the purpose announced
in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns
.

* * *

It should be unsurprising that such a significant
matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens.

Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods.
This Court first held a law to violate the First
Amendment’s guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified, see
Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and
it was not until after World War II that we held a law

invalid under the Establishment Clause, see Illinois ex rel.
McCollum v. Board of Ed. of School Dist. No. 71, Champaign
Cty., 333 U. S. 203 (1948).

Even a question as basic
as the scope of proscribable libel was not addressed by this
Court until 1964, nearly two centuries after the founding.
See New York Times Co. v. Sullivan, 376 U. S. 254 (1964).

It is demonstrably not true that, as JUSTICE STEVENS
claims, post, at 41–42, “for most of our history, the invalidity
of Second-Amendment-based objections to firearms
regulations has been well settled and uncontroversial.”
For most of our history the question did not present itself.

* * *

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose…

…Although we do not undertake an
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale ofarms.26
We also recognize another important limitation on the
right to keep and carry arms.

Miller said, as we have explained, that the sorts of weapons protected were those
“in common use at the time.” 307 U. S., at 179. We think
that limitation is fairly supported by the historical tradition
of prohibiting the carrying of “dangerous and unusual
weapons.”

It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty.

It may well be true today that a militia, to be as
effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at
large. Indeed, it may be true that no amount of small
arms could be useful against modern-day bombers and
tanks. But the fact that modern developments have limited
the degree of fit between the prefatory clause and the
protected right cannot change our interpretation of the amendment

* * *

We turn finally to the law at issue here.

As we have
said, the law totally bans handgun possession in the home.
It also requires that any lawful firearm in the home be
disassembled or bound by a trigger lock at all times, rendering
it inoperable. As the quotations earlier in this opinion demonstrate,
the inherent right of self-defense has been central to the
Second Amendment right.
The handgun ban amounts to a
prohibition of an entire class of “arms” that is overwhelmingly
chosen by American society for that lawful purpose.

The prohibition extends, moreover, to the home, where the
need for defense of self, family, and property is most acute.

Under any of the standards of scrutiny that we have applied
to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster….

… See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A
statute which, under the pretence of regulating, amounts
to a destruction of the right, or which requires arms to be
so borne as to render them wholly useless for the purpose
of defence, would be clearly unconstitutional”).

It is no answer to say, as petitioners do, that it is permissible
to ban the possession of handguns so long as the
possession of other firearms (i.e., long guns) is allowed. It
is enough to note, as we have observed, that the American
people have considered the handgun to be the quintessential
self-defense weapon.

There are many reasons that a
citizen may prefer a handgun for home defense: It is easier
to store in a location that is readily accessible in an emergency;
it cannot easily be redirected or wrestled away by
an attacker; it is easier to use for those without the upperbody
strength to lift and aim a long gun; it can be pointed
at a burglar with one hand while the other hand dials the
police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

* * *

After an exhaustive discussion of the arguments for and against
gun control, JUSTICE BREYER arrives at his interest balanced
answer: because handgun violence is a problem,
because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding
period (a false proposition that we have already discussed),
the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED

We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insisting
upon.

A constitutional guarantee subject to future judges’ assessments
of its usefulness is no constitutional guarantee at all.

Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them,
whether or not future legislatures or (yes)even future
judges think that scope too broad.

We would not apply an “interest-balancing” approach to the prohibition
of a peaceful neo-Nazi march through Skokie. See
National Socialist Party of America v. Skokie, 432 U. S. 43
(1977) (per curiam).

The First Amendment contains the freedom-of-speech guarantee
that the people ratified,which included exceptions for
obscenity, libel, and disclosure of state secrets,
but not for the expression of extremely unpopular and wrong-headed views.

The Second Amendment is no different.

Like the First, it is the very product of an interest-balancing
by the people—which JUSTICE BREYER would now conduct for them anew.
And whatever else it leaves to future evaluation, it surely
elevates above all other interests the right of law-abiding,
responsible citizens to use arms in defense of hearth and
home.

* * *

In sum, we hold that the District’s ban on handgun
possession in the home violates the Second Amendment,
as does its prohibition against rendering any lawful firearm
in the home operable for the purpose of immediate
self-defense. Assuming that Heller is not disqualified
from the exercise of Second Amendment rights, the District
must permit him to register his handgun and must
issue him a license to carry it in the home.

* * *

We are aware of the problem of handgun violence in this
country, and we take seriously the concerns raised by the
many amici who believe that prohibition of handgun
ownership is a solution.

The Constitution leaves the District of Columbia a variety
of tools for combating that problem, including some measures
regulating handguns,see supra, at 54–55, and n. 26.
But the enshrinement of constitutional rights necessarily
takes certain policy choices off the table.
These include the absolute prohibition of handguns held
and used for self-defense in the home.

Undoubtedly some think that the Second Amendment
is outmoded in a society where our standing army is
the pride of our Nation, where well-trained police forces
provide personal security, and where gun violence is a
serious problem. That is perhaps debatable, but what is
not debatable is that it is not the role of this Court to
pronounce the Second Amendment extinct.

We affirm the judgment of the Court of Appeals.

–It is so ordered.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Presidential Candidates Respond to D.C. vs. Heller Ruling

Given that the D.C. vs. Heller ruling is a historically important ruling for the Second Amendment and given that the next president could appoint between two and three Justices to the Supreme Court over the next four years, I think the responses from Bob Barr, John McCain, and Barack Obama might give us some insight into what kind of judges each would appoint and how each views the Second Amendment. Below are the complete official press releases from each candidate’s web site.

Bob Barr

June 26, 2008 10:16 am EST

Washington, DC – Today the U.S. Supreme Court upheld the individual right of Americans to own guns in District of Columbia v. Heller. The ruling “will go down as one of the Supreme Court’s most important rulings on behalf of liberty,” says Libertarian Party presidential candidate Bob Barr.

Until today, the Court had never held that the Second Amendment directly applied to individuals. “Today’s decision marks a new era for gun rights in America,” explains Barr, who is a member of the Board of Directors of the National Rifle Association. Barr also drafted the Libertarian Party’s amicus curiae brief in Heller. “By protecting an individual’s right to keep and bear arms, the Second Amendment ensures that all Americans are able to participate in sporting activities, hunt, and protect themselves and their families,” he explains.

The right to self-defense is particularly important for women and minorities in a city like Washington, D.C. “Where crime rates are high, a gun may be the only means for law-abiding citizens to safeguard themselves and their families,” Barr notes. “Lawful gun ownership deters an untold number of crimes every year.”

But the Court’s ruling, though welcome, is not enough. “It is important to have a president who also supports the right of Americans to own firearms,” says Barr. “Sen. Barack Obama says that he believes in such a constitutional right, but he supports the District of Columbia’s ban, which gives criminals an advantage over law-abiding citizens,” notes Barr.

Sen. McCain has not advocated an absolute prohibition, “but he cosponsored legislation which could require registration of attendees at gun shows and even ban such shows,” Barr warns. And Sen. McCain’s campaign legislation “curtailed the First Amendment right of gun owners to protect their rights by participating in election campaigns.”

As part of the Bill of Rights, the Second Amendment undergirds American liberty. “The individual’s right to keep and bear arms helps ensure all of our freedoms,” says Barr. “The Supreme Court’s recognition of the constitutional right to gun ownership is a recognition of the right to life, liberty, and property for all Americans.”

Barr represented the 7th District of Georgia in the U. S. House of Representatives from 1995 to 2003, where he served as a senior member of the Judiciary Committee, as Vice-Chairman of the Government Reform Committee, and as a member of the Committee on Financial Services. Prior to his congressional career, Barr was appointed by President Reagan to serve as the United States Attorney for the Northern District of Georgia, and also served as an official with the CIA.

Since leaving Congress, Barr has been practicing law and has teamed up with groups ranging from the American Civil Liberties Union to the American Conservative Union to actively advocate every American citizens’ right to privacy and other civil liberties guaranteed in the Bill of Rights. Along with this, Bob is committed to helping elect leaders who will strive for smaller government, lower taxes and abundant individual freedom.

John McCain

For Immediate Release
June 26, 2008
Contact: Press Office
703-650-5550

Statement by John McCain on Today’s Supreme Court Ruling on Second Amendment Rights

ARLINGTON, VA– U.S. Senator John McCain today issued the following statement regarding today’s United States Supreme Court ruling on District of Columbia v. Heller:

Today’s decision is a landmark victory for Second Amendment freedom in the United States. For this first time in the history of our Republic, the U.S. Supreme Court affirmed that the Second Amendment right to keep and bear arms was and is an individual right as intended by our Founding Fathers. I applaud this decision as well as the overturning of the District of Columbia’s ban on handguns and limitations on the ability to use firearms for self-defense.

Unlike Senator Obama, who refused to join me in signing a bipartisan amicus brief, I was pleased to express my support and call for the ruling issued today. Today’s ruling in District of Columbia v. Heller makes clear that other municipalities like Chicago that have banned handguns have infringed on the constitutional rights of Americans. Unlike the elitist view that believes Americans cling to guns out of bitterness, today’s ruling recognizes that gun ownership is a fundamental right- sacred, just as the right to free speech and assembly.

This ruling does not mark the end of our struggle against those who seek to limit the rights of law-abiding citizens. We must always remain vigilant in defense of our freedoms. But today, the Supreme Court ended forever the specious argument that the Second Amendment did not confer an individual right to keep and bear arms.

Barack Obama

I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today’s decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe.

Supreme Court Upholds Individual Right To Keep And Bear Arms

After nearly two centuries of silence, the Supreme Court today struck down a District of Columbia gun ban and affirmed that the Second Amendment protects an individual right to keep and bear arms:

WASHINGTON — The Supreme Court ruled Thursday that Americans have a right to own guns for self-defense and hunting, the justices’ first major pronouncement on gun rights in U.S. history.

The court’s 5-4 ruling struck down the District of Columbia’s 32-year-old ban on handguns as incompatible with gun rights under the Second Amendment. The decision went further than even the Bush administration wanted, but probably leaves most firearms laws intact.

The court had not conclusively interpreted the Second Amendment since its ratification in 1791. The amendment reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

The basic issue for the justices was whether the amendment protects an individual’s right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

Justice Antonin Scalia, writing for four colleagues, said the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home.”

In dissent, Justice John Paul Stevens wrote that the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

Yes, that’s right Justice Stevens, they did. It’s called the Second Amendment.

While the devil is, as always, in the details and, as I noted in March, this is far from the end of the Constitutional debate about gun control, this is, all in all, a great day for individual liberty.

A Personal View of the DC VS. Heller Oral Arguments

I watched/listened to the oral arguments in DC vs. Heller this morning, and in my view (solely based on my knowledge of the justices, and the questions and arguments raised today; which is always iffy) we’re looking at a mixed bag.

Well, first the good news. It seems clear that the entirety of the court, even Souter, Breyer, and Ginsburg, agree that the second amendment protects a pre-existing individual right right to keep and bear arms.

The rest of the question gets a bit thornier however.

Clearly, the position of the courts is, and has always been; that all rights protected by the constitution are, under some circumstances, subject to regulation or restriction. I can for example say whatever I want in the privacy of my home, or make any criticism of the government that I want, but I cannot publish malicious lies about someone. Preventing libel, is a reasonable restriction on the first amendment, and is a compelling interest of the state.

Given this historical and legal basis, folks who say “What part of ‘Shall not be infringed’ don’t you understand” are just being silly (and often offensive, threatening, etc… etc…).

At this point, it seems clear that all of the justices believe that some regulation is reasonably allowed under the second amendment. The question then devolves down to “what is a reasonable restriction”… therein lies the rub.

DC presented the position that not only was there not an individual right; but that even if there were, that local legislatures had nearly unlimited power to regulate such rights (in fact, their lawyer suggest that they had plenary authority, a position flatly rejected by the court).

Walter Dellenger, who argued the case for DC, was absolutely DESTROYED by all the justices during questioning. Even the liberal justices tore him to pieces. It was clear he was disingenuous in his arguments, and presented no clear or coherent logic, justification, or defense of their positions. Even Ginsburg and Breyer, who nominally support strict regulation of firearms, seemed unswayed and unimpressed.

Paul Clement, the Solicitor general of the U.S., argued a “middle road” standard; presenting very strong arguments for the individual right position, which seemed to impress the justices. He was much weaker on his other contention however that reasonable restriction and a broad standard of review were necessary to protect the public interest in regulating firearms; specifically citing machine guns and “plastic guns designed to get through metal detectors” (a fantasy commonly used by gun banners to scare people into agreeing to bans in principle).

Alan Gura, the chief council for Heller, was very strong on presenting the individual rights position; but was very weak and unfocused in his arguments on the position of what constitutes reasonable regulation, and why. I think he was expecting most of the challenge to come from the “individual rights” argument, and not as much from the ‘reasonable regulation” argument. Though he was certainly prepared with facts and citations (his knowledge of 300+ year old statutes and precedent in both American and English common law was impressive), his arguments lacked coherent structure or flow.

For example, Justice Breyer repeatedly asked questions to the effect of “do the 80,000 deaths per year by handguns in the united states constitute a basis for reasonable regulation, or can they be considered in crafting such regulation?”. Were Gura prepared to argue the basis of reasonable regulation, his response should have been something along the lines of “We contend that crime rates are neither affected by, nor relevant to, the lawful possession and use of arms; and that regulation and restriction of the use of arms by law abiding citizens does not serve the compelling interest of the state in preserving public safety”. Instead he made vague arguments about reasonable standards of review etc… etc…

Dellenger in fact seized on this waffling about standards, to suggest during his rebuttal that if the court specified a strict standard of review (something they seemed inclined towards), that it would result in hundreds of judges around the country determining what was and was not protected by the second amendment, on an individual case by case basis.

So, as I said, a mixed bag.

Kennedy, Scalia, Roberts, Alito, and Thomas all clearly believe (both from questioning in this case, and in previous opinions and writing) in a strongly protected INDIVIDUAL right to self defense, and to keep and bear arms. It also seems clear that they support a strict standard of review for legislation; and a very limited scope for legitimate regulation.

Surprisingly, it also seems that Souter and Ginsburg agree that there is a right to self defense, AND that there should be a strict standard of review; however it seems they believe in a broader scope for legitimate regulation.

Stevens and Breyer, although they both seem to believe there IS an individual right, also seem to believe that very strong regulations or perhaps bans, are acceptable.

My prediction… that’s a tough one…

I think that we will see an absolute affirmation of the individual right to keep and bear arms, and that this right includes explicitly the right to self defense. In fact I think we may see some language to the effect of “for all lawful purposes, including hunting, sporting uses, and self defense”.

I also think we will see a strict standard for review, and application of that standard to the entire United States, including the states individually (under the 14th amendment and equal protection clause), rather than limiting the scope to D.C. or to the federal government only.

What I really have no prediction on, is what standard of “reasonable regulation” they might promote.

What seems clear, is that the entire court believes that US V. Miller (one of the few cases directly addressing the second amendment), and the standards it presents, are deficient. Scalia, Alito, Breyer, and Ginsburg all made comments to that effect. What that means for the future though… I think its anyones guess really.

I think we have a good shot at striking down all total bans on any gun, or even any class of gun, excepting perhaps machine guns and destructive devices. I believe they may explicitly approve of some licensing provisions provided that the licensing standard is non discriminatory. I believe that they would explicitly approve of regulations that restricted the rights of felons and minors.

I have no real read though on what their take is on the legitimacy of state and local regulations, such as trigger lock requirements, ammo bans, safe storage requirements, etc… I’m sure they will rule that state and local regulation are acceptable, but what standard of “reasonable regulation” will apply… who knows?

As it is though, under any possible construal of “reasonable regulation”; I would expect that the majority of the gun laws in California, Massachusetts, New York, Illinois, New Jersey, and Hawaii; would be in whole or in part, struck down.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

District of Columbia v. Heller Gets Its Day In Court

The Supreme Court had allotted 75 mintues for oral argument in D.C. v. Heller today — 30 minutes for each side and 15 minutes for the U.S. Solicitor General — but they actually ended up running nearly half an hour longer as the Justices considered the interpretation and application of an Amendment that has been largely ignored:

A majority of the Supreme Court today seemed to clearly indicate that the Second Amendment provides an individual right to possess a firearm and several justices appeared skeptical about whether the District of Columbia’s handgun ban could be considered a reasonable restriction on that right.

Two justices cleanly framed the issue confronting them after about 90 minutes of intense arguments that took a trip back to the English Bill of Rights and the founding of a new nation on this continent.

Justice Stephen G. Breyer noted the number of people killed by handguns and asked if it was unreasonable for a “city with a very high crime rate to say ‘no handguns here.’ ”

From the other side, Chief Justice John G. Roberts Jr. asked: “What’s reasonable about a total ban on possession?”

The justices peppered lawyer Walter Dellinger, who represented the District, about whether the law provided any adequate measure for residents to own and use a firearm for self-defense.

“Is there anything to show the District considered self-defense?” asked Justice Samuel A. Alito Jr. Dellinger said laws that allowed residents to own rifles and shotguns were an adequate provision.

Justice Anthony M. Kennedy, often seen as the deciding vote on the divided court, immediately made it clear he did not accept the District’s arguments — and the views of a vast majority of federal appeals courts — that the Second Amendment provided only a collective right to gun possession in furtherance of military purpose.

(…)

Kennedy said he thought the much-debated first clause was simply “reaffirming” the importance of the Constitution’s militia clause and that it clearly stated “there is a right to bear arms” that is separate.

It is often risky to make judgments about where a Judge or Justice stands based upon the questions they ask during oral argument, but in this case there were clearly four Justices who seemed to accept Heller’s argument that the 2nd Amendment provides an individual right to keep and bear arms — Justices Scalia, Alito, Kennedy, and Chief Justice Roberts. Justice Souter asked questions of both sides but also seemed more sympathetic to the individual rights interpretation, and Justice Thomas has previously hinted that he would fall into this camp as well (and given the way Thomas decides cases, it would be shocking if he didn’t.)

If that’s the case, then it would appear that the worst fears that libertarians and gun rights proponents had about this case — that it might result in the Court saying that the 2nd Amendment provided a collective rather than individual right — will be proven to be unwarranted.

One can only hope.

As I noted yesterday, though, that was only one portion of the issue before the Court, and the question of what standard to apply in the case was hotly argued as well:

Solicitor General Paul D. Clement told the justices that too strict a standard would imperil the federal government’s efforts to restrict machine guns or “plastic” guns meant to avoid metal detector screening.

The right to bear arms, Clement argued, “always coexisted with reasonable regulations of firearms.”

Alan Gura, representing those challenging the District law, said he agreed that the “government can ban arms that are not appropriate for civilian use,” but he said handguns clearly are not included in such a restriction.

Walter Dellinger, who represents the District, argued, of course, that the lowest standard of review should be applied and that even the District’s outright ban on handguns, along with the other regulations challenged was entirely reasonable. While I have a bias in this case, I’ve got to say that I don’t think Dellinger defended his position on this, or on the individual vs. collective right issue, all that well under questioning.

Over at ScotusBlog, Lyle Dennison has an extensive analysis of the oral argument:

In an argument that ran 23 minutes beyond the allotted time, Justice Anthony M. Kennedy emerged as a fervent defender of the right of domestic self-defense. At one key point, he suggested that the one Supreme Court precedent that at least hints that gun rights are tied to military not private needs — the 1939 decision in U.S. v. Miller — “may be deficient” in that respect. “Why does any of that have any real relevance to the situation that faces the homeowner today?” Kennedy asked rhetorically.
With Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia leaving little doubt that they favor an individual rights interpretation of the Amendment (and with Justice Clarence Thomas, though silent on Tuesday, having intimated earlier that he may well be sympathetic to that view), Kennedy’s inclinations might make him — once more — the holder of the deciding vote. There also remained a chance, it appeared, that Justice Stephen G. Breyer, one of the Court’s moderates, would be willing to support an individual right to have a gun — provided that a ruling left considerable room for government regulation of weapons, particularly in urban areas with high crime rates.

As Dennison goes on to note, one theme that emerged throughout the argument was the question of what the purpose of the Second Amendment was and what role, if any, an individual right to self-defense might play in the case. As the attorney for Heller noted at one point, the District’s ban on handguns and regulations on other weapons, along with a history of prosecuting people who used banned weapons in self-defense, means that District residents are essentially defenseless against an intruder breaking into their home in the middle of the night. What role that might play in the decision is unclear, but it was a powerful point.

So now, we wait, most likely until the very end of June when the Court’s term ends.

A transcript of the oral arguments can be found here.

I’ll post a link to the audio track when it’s available.

CSPAN audio can be found here (Realplayer required)

Gun Rights On The Docket Today At The Supreme Court

Beginning at 10am today and lasting for 75 minutes, the United States Supreme Court will hear argument in the most significant Second Amendment cases ever to come before it.

Today, in the Boston Herald, Robert Levy, one of the lead attorneys for the citizens in the case, gives a preview of the argument he’ll be making in less than an hour.

Meanwhile, in the Wall Street Journal law professor Randy Barnett gives a layman’s guide to the issues before the court today.

First, Barnett notes that, because of the lack of significant Second Amendment case law, the case will revolve around an originalist interpretation of the Constitution:

[B]oth sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be infringed.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intention of the Framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution.

Barnett also argues that the only consistent originalist interpretation of the Second Amendment requiresa finding that the amendment protects an individual right:

In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called “collective right” of states to preserve their militias — notwithstanding that, everywhere else in the Constitution, a “right” of “the people” refers to an individual right of persons, and the 10th Amendment expressly distinguishes between “the people” and “the states.” Now even the District asserts the new theory that, while this right is individual, it is “conditioned” on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won’t be based on a “collective” right of the states.

Finally, Barnett points out that Heller’s impact will be muted by the fact that it will only apply to Federal and D.C. law. The question of whether the Second Amendment applies to the states will have to wait for another day and another case.

I previewed the arguments in this post yesterday.

As for the mechanics, SCOTUS Blog has all the information:

At 10 a.m., the Court is scheduled to hear argument in District of Columbia v. Heller (07-290), involving a Second Amendment challenge to the District’s firearms regulations. Walter Dellinger of Washington, D.C., will argue for the petitioner, Alan Gura of Alexandria, Va., will argue for the respondent, and Solicitor General Paul D. Clement will argue for the United States as amicus curiae.

The argument is scheduled to last 75 minutes, and will be rebroadcast on CSPAN shortly after its conclusion. We will provide a link to the audio feed as soon as it is available.

A momentous day awaits us.

District of Columbia v. Heller Preview

Tomorrow, the Supreme Court will hear oral argument in District of Columber v. Heller, the case challenging the District of Columbia’s decades-old and near-complete ban on gun ownership by city residents. At stake is interpretation of an Amendment that has received almost no judicial scrutiny in 209 years since it was enacted.

One blogger, former Washington area talk-show host Chris Core, makes this point about what we might expect:

I, for one, have wanted a Supreme Court case on this for years. Let’s have the court finally tell us which side has the correct take on what the Founders meant. Both gun control and gun owner advocates have been trying to avoid such a case for fear of losing in the Court. Until now. Finally, probably in June, when the Court hands down its decisions, we will have clarity.

Or will we? I am betting we won’t. As often happens, I think the court will parse this one too finely to please either side. My thinking focuses on two of the words: “bear” and “arms”. There is a lot of wiggle room here. Does “bear” literally mean the right to carry a gun with you wherever you go, or is the fact that you can have one in your home enough? And “arms”–does that mean you can have absolutely any kind of weapon you want and can afford, or does the state have the right to say which arms are permitted and which are not? As much as I, and probably you, would love a definitive answer, I doubt we will get one. Nonetheless, this is the most interesting Supreme Court case to watch since Roe v. Wade.

Chris is right that we are unlikely to see complete resolution of the gun control issue from this case, and part of that has to do with the fact I noted above — since the Second Amendment was ratified in 1791, there have only been a handful of cases that addressed it and none of them have dealt with one of the central issues in Heller.

The other reason is because Heller isn’t just a simple question of whether or not the Second Amendment protects an individual or collective right to gun ownership. To make a complex case simple, Heller really comes down to two questions:

  1. Does the Second Amendment create an individual right to keep and bear arms, or does it merely mean that the states can maintain militias made up of members of the citizenry ?
  2. Assuming that the right is an individual one, what constitutes an infringement of that right ?

On the first question, I think there’s a good chance that the Court will find that the Second Amendment right is an individual one. From an historical perspective, which is really the only guide that the Justices will have, the argument that the drafters of the Bill of Rights did not intend to protect the right of individual citizens to keep and bear arms is simply absurd. Yes, it’s possible that they will reverse the Court of Appeals — and, if they do, that is essentially the end of the day and, I think, the end of individual gun rights in the United States.

The second question, though, is much more nuanced and, as SCOTUSBlog’s Wiki on the case notes, the two sides disagree significantly on the answer:

Even if the Court should opt for an individual, private right to have guns, the two main briefs divide on how to judge when such a right were violated by a gun control law. The city government backs a reasonableness standard, the gun rights challengers favor “strict scrutiny.” And, it is no surprise, applying the standards that each advances would determine the fate of the handgun ban in the District.

In previous cases, the Supreme Court has held that nearly all of the other rights guaranteed by the Bill of Rights are subject to a “strict scrutiny” standard; meaning that any law that would abrogate those rights would have to pass the following test:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Under that standard, obviously, almost no restriction on a constitutionally protected right can pass muster.

There are lesser basis of review, though; under “rational basis review” all that the government needs to show is that there is some rational basis for the law, and, under so-called “intermediate scrutiny” where the government only needs to show that the law or regulation involves important governmental interests that are furthered by substantially related means.

The Court could decide that the regulations that impact Second Amendment rights only need to pass one of these lesser standards of review, meaning that some forms of gun control legislation would be acceptable.

Finally, it’s important to note that whatever happens in D.C. v. Heller may not have the widespread impact that some believe because the Supreme Court has never ruled that the Second Amendment applies to the states:

It is a somewhat curious fact of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

The most likely outcome of the Court’s decision in Heller, whatever it might be, is that it will merely be the beginning of an entirely new area of Constitutional jurisprudence. Ten years from now, Second Amendment cases may be as common in the Supreme Court as First Amendment cases once were, and that will continue until the Court hammers out a coherent Second Amendment case law.

D.C. v. Heller Comes To The Supreme Court

On Tuesday, the United States Supreme Court will hear argument in what is clearly the most important Second Amendment case in decades:

Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District’s handgun ban violates the Second Amendment.

The nine justices, none of whom has ever ruled directly on the amendment’s meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.

“This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,” said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. “And that’s why there’s so much discussion on the original meaning of the Second Amendment.”

The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.

“The case has been structured so that they have to confront the threshold question,” said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. “I think they have to come to grips with that.”

Perhaps recognizing the importance of the case, the Supreme Court Clerk will make complete audio of Tuesday’s hearing available at the Court’s website almost immediately after argument is concluded on Tuesday morning. The decision itself, of course, won’t come until some time late in the Court’s term, which ends in June.

Complete background on the case, including links to all of the briefs filed by the parties and various other organizations can be found at ScotusBlog’s wiki for the Heller case.

More on Obama’s Doublespeak

Last week I wrote a post about how Barack Obama was trying to have it both ways on the Second Amendment. Ken Blackwell at Townhall.com, however, believes that Obama’s doublespeak about the Second Amendment (among some of Obama’s other statements) reveals a disturbing pattern in his attitudes about individual rights and a host of other issues:

Yet while Mr. Obama says he supports your Second Amendment rights, he also says he supports that gun ban. He went on to say that local governments should be able to enact any gun control laws they consider necessary to end gun violence, and that any such measures are constitutional.
What kind of gun rights does he supposedly support? What kind of “right” do you have, when the government can completely rob you of 100% of the exercise of that right, anytime they decide they have a good reason?

That’s like saying you have the right to worship as you choose, but the government has the power to ban attending church. Or that you have the right to free speech, but that government has the power to stop you from speaking about any subject it wants. Or that you have the right against unreasonable searches and seizures, but that anything the government wants to search at your house is automatically reasonable.

A right that the government can completely take away at any time is no right at all.

So to say that the Second Amendment means you can own guns, but that the city where you live can ban all gun ownership, then you have no Second Amendment rights at all.

I truly hope that someone will have an opportunity to ask Obama if he really believes that local governments can toss aside the Constitution whenever convenient (though I have a hard time believing that Obama would restrict federal agents to the Constitution while giving local law enforcement carte blanche to violate basic civil liberties of citizens). As if doublespeak on the Constitution wasn’t enough, we can expect doublespeak on many other issues which concern such issues as the economy, terrorism, and growing government.

The article continues:

This is what Americans could expect from a President Obama. He’ll wax eloquent about your rights, but then say government can take away whatever part of them—or all of them—that it wants.

It’s the disturbing pattern that’s starting to emerge of Mr. Obama announcing a principle or a goal, then endorsing policies that are the exact opposite of what would promote that principle or goal. It’s political-doublespeak. It’s Orwellian. In fact, it’s Clintonian.

Look for this pattern across the board. This is how he’ll empower private markets, by increasing government control. He’ll preserve our private-market healthcare system, by having government take it over. He’ll lower taxes, by raising them. He’ll cut government, by increasing government spending. He’ll create jobs, by raising taxes and fees on business […]

I’m sure there will be even more Obama doublespeak as the campaign wears on. I wouldn’t be too surprised if he proposed a new cabinet level position such as The Ministry Department of Truth.

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