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):


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.


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


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.


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.

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