Josh Horwitz on Heller
At the Huffington Post. Horwitz is leader of one of the antigun groups (they change names so frequently I can't recall what it's named now) created by some mega-billionaire.
His theme is rejection of an "insurrectionist" purpose behind the 2A (i.e., that it was meant to provide a safeguard against tyranny). He doesn't deny the history, just doesn't like the idea because it precludes the government having a "monopoly on force." (Madison's insight was deeper than Weber's: he saw the US as composed of people, states, and the federal government. By this standard, none of the three has a true "monopoly."
What I find interesting about all repudiations of "insurrectionist purposes" is that they are left empty when it comes down to: so what WAS the Second Amendment about? It had to have purposes, right? If not enabling resistance to tyranny, aren't you left with self-defense as a purpose? But for some strange reason they don't like that idea, either.
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NY Daily News on Heller
Editorial here. Author seems rather lacking in knowledge about the case, e.g., that it's a 2nd Amendment and not a 14th Amendment case, and claims things came up in oral argument that did not, to my memory.
His main theme is that strict scrutiny would doom many firearm laws. It rather underscore a point Randy Barnett once made -- opponents of an individual right oppose it because they fear that much of their agenda will fail if anyone asks hard questions about it. What's strict scrutiny? That the law serves a compelling governmental interest, that it is narrowly tailored to serve that interest without impairing rights in a way not essential to it, and that it is the least restrictive way of accomplishing that end.
In short, the statute is directed at a major social problem and properly written. The legislative body didn't just pass it on the theory "there oughta be a law," and not give a hoot about whether its restrictions were really aimed at the problem.
That those opposed to an individual right (or to strict scrutiny) have heartburn over having to do this tells us something about what they themselves think of their agenda....
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Podcast of my take on Heller
It's at Mark Vanderberg's site, gunrights.us.
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Bob Levy to speak in Mesa AZ
Bob Levy, one of the architects of Parker/Heller vs. DC, will be speaking on April 15, at 6:30 PM, at Macayo's Depot Cantina 300 S. Ash Ave., Tempe AZ (ph 480-966-6677). He'll probably discuss both Heller and his new book, "The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom."
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Prof. O'Shea on Heller
The title says it all: "Court can serve cause of liberty".
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"Living constitutionalist's" frustration at Heller
Steve Griffin, over at Balkanization.
As near as I can see, in this context his view would amount to "conditions have changed since 1789, and hence the meaning of the bill of rights has changed." NOT just that there are different considerations in trying to establish the limits of the right (which would hardly be controversial, or justify designating a school of thought), but rather rights may vanish (I assume that is his approach) if conditions change in the eyes of the judiciary (again, I'd assume this is his designated decisionmaker).
Wonder why the Framers bothered to establish a way to amend the Constitution,if that is so, and why they put such strict requirements on it? Sounds to me as if they meant it to be a deal that can be changed, not by a majority, but by something approaching a national consensus.
Hmmm... and in this context, wouldn't understanding "the threat guns can pose to police officers" require assessment of the work of various statisticians and criminologists -- John Lott, Gary Kleck, Steve Levitt come to mind, but there are many others -- on guns, gun laws, crime and self defense?
In a way the last hearkens for a return to ... well, it's hard to describe. But essentially days when the Court asssessed rights and their limits with reference to present conditions, but without any real data -- perhaps because it didn't exist, but does in this field. Freedom of speech: "fighting words" can be outlawed because they lead to fisticuffs (but without any empirical evidence that they do so). Porn can be outlawed (with the definition swinging wildly over the years) without any hard evidence that it inflicts harm, let alone that the harm is redressed by this or that definition). Defamation suits can be curtailed in various ways without real evidence that the protection was necessary to avoid chilling speech. I find most of the results made some sense, and at least did no harm, but it's hard to avoid concluding that this was "law office policymaking" rather than "law office history."
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Heller: other side manning lifeboats
Here's an article by a former staff attorney to the Brady Campaign.
It doesn't talk a lot about the core issue, but winds up agreeing that "the justices’ statements at the oral argument, as well as their previous comments and general ideological leanings, strongly suggest that at least five of them will endorse the view that the Second Amendment extends broadly to reach more than just military activities"
It ends with hopes the Court will focus on standard of review, maybe uphold part of the DC law and strike other parts.
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Reader's experience at Heller
Reader Victoria Lloyd sends her impressions of the Heller Experience, pasted in extended remarks below. Her experience with the Marshalls is typical. A court-watcher in the line next to me (who'd done one of the amici for DC) told me that the present Clerk, who came in under Rehnquist, has worked hard to make the Court user-friendly. Over in the Bar line, the Clerk came out about 7 AM to explain things, where the restrooms were, how to hold a place in line, what would happen when we were inside, etc..
Incidentally, before the argument, Justice Thomas read an opinion. I was a little startled -- for a fellow who never asks a question during oral argument, he has an excellent, deep voice and good speaking style.
Continue reading "Reader's experience at Heller"
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Commentary on Heller and US v. Hayes
Over at Sentencing Law and Policy, there are numerous posts on Heller. This particular one tries to draw some conclusions from the fact that the Court recently granted cert. in US v. Hayes, a case under the federal ban on gun possession by persons with a DV conviction.
Must confess I don't see the point. And it was rather strange that the post nowhere describes what's at issue in Hayes. I found the Circuit ruling, and (1) no one challenged the constitutionality of the statute; (2) the issue is what did Congress mean when it defined DV?
Update: 922(a)(20) is the provision added in 1986 that says a restoration of rights or related order makes a person no longer a prohibited person. I helped some on drafting that, long story. There have been some fights over its interpetation, i.e., is a conviction really expunged or set aside when the order says that it is, but the state statutes say that the conviction still has effect (e.g., it would count toward a second offense or can be used to impeach a witness). I suppose that recognition of an individual right might add a little, but probably just a little, weight to the argument that these expungements count as restoring rights. As I say, a little.
To be precise: Hayes had been convicted of ordinary battery, not under one of the modern DV statutes. The victim was his spouse. So when Congress worded the statute to say DV means an offense an element of which is force or threat against a household member, did it mean (1) an element of which is force, which happens to be against a household member, or (2) the elements of the offense must be force, and use against a household member? If the latter, then Haye's previous conviction didn't qualify, since use against a household member may have been the case, but it was not an element of the crime of which he was convicted, which was ordinary battery. The 4th Cir. said it was (2) and his indictment should be dismissed.
I can't see where the disposition of Heller would have much importance to that issue, except that maybe if it's an individual right it might give a little more argument for reading the statute narrowly rather than broadly.
Other postings look rather like raising "horrible hypotheticals" against an individual rights ruling. Every felon in possession case will invoke it, etc., etc. I tend to be a bit suspicious about anything coming from Ohio State U in any event.
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Updates on Heller
Alan Gura is interviewed by Jurist.
And here's a YouTube interview. A lot of other views are linked there, too. In this interview he responds to arguments he didn't forcefully assert his position. The fact is that there is a distinctive Supreme Court style, which is calm, restrained, and dispassionate. It's not at all like a jury trial, where you are trying to fire up the jury, more like presenting a scientific paper.
And Mother Jones on it. I won't call it leftist, because I know some very pro-2A leftists who can explain their position well in terms of consistency (why disarm the working man while the elite have their bodyguards). The author buys the laughable claim that the 2A stems from the militia, and only got into the Bill of Rights because the slave states wanted to preserve the militia in order to hold down the slaves. Which doubtlessly explains why Sam Adams of Massachusetts was the first to propose adding a right to arms to the constitution, followed by a substantial minority of the Pennsylvania ratifying convention, and then by a majority of the convention in that well-known slave state, New Hampshire.
Then a digression into the 1988 case where black (and VERY antigun and antiNRA) columnist Carl Rowan shot and wounded a trespasser, who was in his backyard hot tub in the night, and was prosecuted for having an unregistered gun: "but the incident fueled a tremendous amount of racial tension in the city..." I was living in the DC area at the time, and cannot recall a speck of "race tension" over the incident. A lot of chuckling, given his antigun writings, but if anyone of any race was tense about that issue, I never heard or read about it. But this being Mother Jones, I suppose a columnist can't take a potshot at a trespasser without somehow creating racial tensions.
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Prof. Dorf on Heller
Article here.
Hat tip to Joe Olson, followed by many others...
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Heller: photo of the usual suspects
L to R: Clayton Cramer, Alan Korwin, Bob Cottrol, myself (w/ beard in rear) and Joe Olson. And yes, we were feeling good!
Continue reading "Heller: photo of the usual suspects"
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In line for Heller, Clayton Cramer eats up an anti-2A type
It's on YouTube. He has her for dinner.
UPDATE: Yep, at 05:04 that's me coming down the steps. To the right is Clayton, and behind us Bob Cottrol.
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Transcript of Heller argument
Transcript is here, in pdf.
Here are reports from the Washington Times, the Detroit Free Press, and a take from Leibowitz's Canticle.
Joe Olson and I were out drinking with Alan Gura last night, and he was getting a constant stream of emails from machinegun owners on his pda, denouncing his statement that full auto arms' possession might not be protected by the 2nd Amendment.
I think EVERYONE associated with this case who knows anything about appellate argument -- and I've talked to many in that class -- agreed that if you cannot come up with a 2nd Amendment test that lets the government do a lot of things with full autos, you lose. That's bottom line. You can have a second amendment for things other than full auto, or you can have no second amendment. Take your pick, there is no third alternative. Life isn't fair. I was very relieved when the Court showed signs of taking the view that Heller is asking to own a .38, not a Thompson, so we can deal with the full auto issue if and when someone brings a case (which I hope will be about ten years down the road).
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Heller argument
Too tired to do much more, but here are my notes on the argument, in pdf format (8 pages).
I showed up for the Supreme Court Bar line at 6 AM, got No. 28. They let around 55 of us in, the rest went to the overflow room with audio but no visual. Report was that they had 60-70 seats for the general public, and since several hundred showed up, if you didn't sleep in line last night you didn't get in.
My guess is a 5-4 for us, possible a bit better but I wouldn't bet on it, and a narrow opinion by Roberts: a total ban on a class of arms violates the 2nd Amendment. The lower courts can figure out any additional inplications, and after a few years we may take another case to flesh it out some more. As Roberts pointed out, first amendment standard of review is a creation of the courts, and they took years on it.
Key event: Justice Kennedy turns out to be strongly pro individual rights. Read the notes.
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Waiting line for Heller argument already begins
According to the Volokh Conspiracy, the line began forming yesterday at 5:35 PM. 40 hours before the case is heard.
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ScotusBlog on amicus briefs
Here. I thought it nice to cite the Academics for the Second Amendment amicus. Altho the complaints about the amicus briefs being advocacy rather than dispassionate history don't ring very true when DC's historians' amicus was among the more hopelessly biased pieces of advocacy/history that I have ever seen. If a person wants to look at historians' craft as somehow impartial and scientific, they only have to look at Michael Bellesiles and, more importantly, all the big names in historians' work who enthusiastically praised it. Obviously they didn't verify anything in it before leaping aboard, or they wouldn't have been caught when it was flattened as largely fraudulent.
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Column on Heller and the conflict within DoJ
In the Washington Post.
In trying to understand bureaucratic infighting, you must grasp: (1) political appointees are a tiny, tiny oil film atop the ocean of career people. Esp. at Justice. (2) They often have no experience at all, and are dependent upon what their subordinates tell them. In this case, Clement certainly has lots of experience generally, but probably knew very little of the Second Amendment. If you don't know the field, and don't really have the time (weeks or months) to get up to speed on it, and all your subordinates are telling you this is the only way to go, odds are you'll go that way.
UPDATE: a commenter points out a section of the article that I missed on quick read. It rather leads me to doubt the author's reliability. I've talked to plenty of people in connection with this case, and mooted Gura, and nobody doubts his capability. Frankly, we grilled the heck out of him, time after time, for about five hours, and he handled it quite well. This is the first I've heard of anything relating to Ted Olson. And in any event, it's Alan's and Bob's and Clark's case, so no other gun rights advocate would have a say in it.
I wonder if the author didn't hear a distorted version of the fact that Alan offered to share his time with Ted Cruz, Solicitor General of Texas?
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Response to Larry Tribe column
Over at Townhall.com, Jacob Sullum responds to Larry Tribe's Wall St. Journal op-ed that claimed the DC laws were reasonable regulation.
Hat tip to reader Jack Anderson...
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Article on Heller amici
In the National Law Journal. The number of amicus briefs (67) doesn't beat the all-time record (107 in the Michigan affirmative action case) but should rank in the top ten. It's far above the average (six).
""The broad range of issues developed in the gun amicus briefs is interesting and supports the idea that Supreme Court cases are often about things far more important than what is important to the immediate parties," said Collins."
"An extraordinarily high-profile constitutional case generally draws an outpouring of amicus efforts by top Supreme Court practitioners. But with the exception of a handful of veterans, such as Robert A. Long of Covington & Burling, Charles Cooper of Cooper & Kirk, Jeffrey Lamken of Baker Botts and Andrew Frey of Mayer Brown, the amicus lawyers are predominantly from smaller firms outside of the Beltway, particularly on the side of the gun ban challengers."
Hat tip to reader Jack Anderson.
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Nathan Kozuskanich's new article taken under fire
In Heller, both DC and some of its amici invoked an upcoming law review by Nathan Kozuskanich, who works with Saul Cornell. It's just been put online, i.e., too late for any pro-Heller amici to insert references to it. The article begins with praise for Saul Cornell's new book, and describes the DC CIrcuit ruling as relying on the "flawed and distorted version of history that Gura and his partisan amicus briefs offered." Chuckle--no doubt where this article is going!
The main theme is to try to demonstate that Pennsylvania's 1776 Declaration, which guaranteed the right of citizens to bear arms for defense of themselves and the state, meant something other than an individual right. The gist of the demonstration is that at the time lots of privotal Pennsylvanians were concerned about creating a mandatory militia. OK, so what? The 1776 Constitution had references to that. There's no showing that the fact that many wanted a mandatory militia caused the right to arms clause to be inserted in the Declaration.
I won't go into detail because the article has been critiqued in depth by Clayton Cramer and by Dave Kopel. Clayton points out that the article actually cites Bellesiles!
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David Young's response to DC's amicus briefs
David E. Young has links to several analyses of DC's amicus briefs here.
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Sup. Ct. to release audio of Heller arguments on same day
Story here. Normally it takes a few days, but in a handful of high-profile cases, the Court has done a same-day release.
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DC's reply brief in Heller
It's online at SCOTUSBlog. Reading it now. Interesting that it cites to Larry Tribe's article in yesterday's WSJ. Supremes briefs have to be printed, so this probably "went to bed" last week.
On a quick read:
Terribly weak on "not an individual right." I don't think they answered so much as one point we made in Academics for the Second Amendment's amicus.
A better job, tho, on standard of review.
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Larry Tribe on Heller
Larry Tribe of Harvard Law has an article in the Wall Street Journal. I think his position is somewhere between unclear and inchoherent; seems to agree that there is an individual right but even a complete ban on handguns is an acceptable regulation. The reasoning would be thin for a first year law student, along the lines of "it is wrong to say that a right is absolute; hence any restriction of it is permissible."
Sebastian at Snowflakes in Hell takes him to task. Alan Gura notes that his position last year was quite different.
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Podcast: Prof. Michael O'Shea on Heller
Right here. The Heller discussion starts at about 3.5 minutes into it.
I'll be on a plane tommorrow, so blogging will be light...
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Summary of Heller
Here it is, a preview from Cornell University's LII Bulletin.
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Another take on USA Today re: Heller
Shining City on a Hill has this take on Heller, and on this USA Today article.
The USA Today piece points out an interesting cultural rift: 73% of the American public believes it has an individual right to arms, but the enormous majority of lower federal court judges believe they do not. I'm hard put to come up with another situation where this is true.
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A unique resource for Heller
Reader Matt Carmel has created a truly unique resource for Heller, which you can download in .zip format by clicking here. Caveat: it's a 41 Meg file, even compressed as a .zip. Require Adobe Reader to use.
What it is: a spreadsheet on the briefs and, more important, a keyword searchable Adobe file, so you can just enter a word or phrase and immediately see which briefs used it. Click on the resulting index entry and up pops the brief, right at that page.
I wish there was some procedure for filing software with the Court!
PS--here's Matt's homepage. When not creating software useful in Supreme Court cases, he is a firearms instructor and FFL in Maplewood, New Jersey. Oh, and organizes sailing cruises in New York. How's that for all-around?
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Prof. Sanford Levinson on Heller: why use originalism?
Article here. As always, interesting and provocative.
He asks "why use originalism" in the sense that Parker/Heller can win on a broader view; that the right has evolved in Americans' minds to become ever more strongly individual, and that should be taken into account.
He does suggest the Solicitor General's position on standard of review should be accepted. (I suspect he's more optimistic than I about how lower courts would use it. I'd guess that if the Supremes hold for strict scrutiny, lower courts will in practice use about what we call the intermediate level, and if the Supremes hold for intermediate, lower court will in practice use rational basis -- any purpose for a law that can be speculated, and does not require psychotic thought patterns, is enough).
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Heller: ruling re oral argument
Today the Supreme Court issued an order:
1) The motion of Heller & the Texas Solicitor General, to divide argument and give Texas ten minutes of Heller's time is denied.
2) The (US) Solicitor General's motion for 15 minutes of argument is granted.
Hard to read much into it, beyond the fact that it gives a tactical advantage to DC. 45 minutes of argument for reversing D.C. Circuit, only 30 of argument for affirmance. DC can probably figure the SG won't use a lot of time arguing for the individual right. The key to the SG getting where they want to go is standard of review, intermediate rather than strict scrutiny, so that's where the SG will spend his time. DC can cut back on argument over standard of review -- which might have occupied half their time, and more than half if they appeared to be losing on individual right -- and use the time elsewhere.
UPDATE: it ought to be noted that when the SG asks for argument, he gets it. Maybe he may have gotten turned down in the past, but I've never heard of it happening. I don't know what percent of motions for divided argument are granted, but it may not be high (hard to split up 30 minutes very well). So this may just be SOP, with a tactical outcome that benefits DC. Correction inserted here. DC gives first speech, and in theory can reserve some time for rebuttal and thus go last. In practice, that's very difficult to do with nine Justices asking a continuous stream of questions. Heller goes second or perhaps third, depending upon where the SG is put. I'd expect him to be put before Heller, to give a chance to answer whatever he says.
Hat tip to reader Jack Anderson.
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Articles on Heller and upcoming argument
Legal Times reports on the question of dividing argument time, which appears to have become rather contentious.
Law.com has a story on the history of the case. Since it's subscription only, I'll post segments in extended remarks below.
Hat tip to reader Jack Anderson....
Continue reading "Articles on Heller and upcoming argument"
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Article on history of Heller case
Right here.
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David E. Young on DC's historians' amicus
An excerpt:
"It is not that the amicus historians fail to mention numerous historical facts. The problem is they often miss the significance of such facts in their rush to separate the Second Amendment from its actual private-rights-protecting nature. The professional academic historians' always-slanted interpretations are far from helpful for a clear understanding of a subject that they have helped make much more complex. It becomes evident at the very beginning of the historians' brief that their personally-held views are directly contradicted by the actual views of the two Founders, Mason and Madison, who were most closely associated with development of the provisions within the U.S. Bill of Rights."
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Bob Levy on the Solicitor General's brief
He gives it both barrels in the Washington Times.
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SG and Texas SG move for argument
Sebastian of Snowflakes in Hell points out an interesting section of the Supreme Court docket:
Feb 11 2008 Motion of the Solicitor General for enlargement of time for oral argument, for leave to participate in oral argument as amicus curiae and for divided argument filed.
Feb 11 2008 Motion of Texas, et al. for leave to participate in oral argument as amici curiae and for divided argument, and, in the alternative, for enlargement of time for oral argument filed.
I'd interpret these as follows:
Solicitor General of the US would like to argue. Neither side was willing to give him time (you only get 30 minutes in the usual argument, and he's taking positions that are not pleasing to either side), so he wants argument with his own time allocation. Divided argument means, I assume, that two people will argue for the SG.
Texas SG's motion is more interesting. They want the same (without divided argument). My guess is that the minute they saw the US AG's move they whipped this motion out. Normally, if an amicus wants to argue the Court's going to say it's on time from the party they're supporting. But with the SG asking for its own time, Texas has a shot at this motion.
UPDATE: looks as if Heller agreed to give Texas part of their time, then the SG moved for their own (separate) time of 15 minutes. I for one find it annoying. (1) If Heller has gven up 10 minutes, why wouldn't the SG ask DC to give it ten minutes? (2) 15 minutes? That's 50% of what a party gets. (3) To defend their position that 2A is an individual right is one thing -- but Heller & Texas will do that. I rather suspect most of that 15 will be devoted to arguing for a lax standard of review.
The discrepancy between #s of briefs on the two sites is apparently due to the fact the Supreme Ct doesn't show them on its website until after they have been sent to an anthrax screening place, whereas the pdfs are available right now. They may stock up several days' worth before sending them.
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Dave Kopel on amicus briefs
Dave Kopel has an excellent series of posts on the amicus briefs over at The Volokh Conspiracy. Good comments on each, too, in terms of how well-written it was and what effect it might have. He points out that the Solicitor General's brief was filed late at night and showed signs of hasty preparation. I think I found a couple of typos in, in a hasty skim. He suggests it might be the product of last minute changes, perhaps a change from strict scrutiny to intermediate review (as the Libertarian amicus points out, the SG cited cases which simply have no relevance to the case -- could be the result of a sudden change and people scrambling to find precedent).
By my count, which may be off, Heller is supported by 46 amici. Some don't do that much, but the great majority are powerful. And they're spread out, not piling in behind each other. The PA brief takes on details of PA history. Cato and Joyce Malcolm take on the English right. Academics covers ratification. Others deal with the great commentators, the 14th Amendment, four deal with standard of review,
In terms of authority, 30 state Attys General (vs, what, 5 for DC), a majority of both Houses of Congress (vs. 19 for DC), Two former US Atty General and a former Solicitor General (Robert Bork, a surprise, last I heard he was anti-individual right, but I also heard a rumor he was reconsidering in light of the literature).
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Map of AGs agreeing with Parker/Heller position
At Concurring Opinions, Prof. Mike O'Shea has an interesting map.
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Academics for 2nd Amend. amicus brief online
At ScotusBlog.
Very tired. But will add some commentary.
Argument I is a strong attack on DC's argument over what the 2A was meant to do. I think it pretty well levels that.
Argument VI deals with their dismissal of the PA minority and the NH ratifying proposals. They shrug these off, saying that Madison took the VA language, not the text of those proposals, hence they are irrelevant. BUT we show that there is no evidence that anyone at the time thought that Madison's language was meant to differ with those earlier measures, and much evidence that Americans saw his language as guaranteeing the same rights sought by PA & NH.
At 9 n.7 we hit at DC's claim that, well, maybe the First Senate declined to add into the BoR a statement that States could arm the militia, because it was redundant -- that's what the Second Amendment meant, and they already had written that up. We point out a VA Senator who wrote angrily about losing the vote -- he certainly didn't think the matter had been taken care of!
At 11-12 we point that the Framers HAD the equivalent of unorganized militias, but required them to be armed. They were excused from drill and muster, but not from owning arms.
At 13, we give a judo flip to the argument that the preamble must control the operative clause.
At 16 we point out that the Framers were familiar with *friendly* governments seizing arms when needed in an emergency.
At 20, n. 18, we point out that treating the militia as State controlled is not entirely accurate.
At 22-23, we discuss Federalist No. 26, I think with better analysis than is generally employed. It has to be read carefully.
At 30 we cite an interesting event in the First Congress, which I blogged here long ago.
And some preemptive attacks (remember DC gets to file the last, reply, brief and may try to shift ground)
At 11, n. 9 preempts any try in reply to shift on the theory of purpose.
At 18, n. 14 hits at a theory DC amici cited, in a yet unpublished law rev. article, claiming PA's 1776 guarantee was meant to allow a mandatory militia (PA didn't have one).
At 31 we preempt a move DC might make, arguing that "right of the people" is somehow less individualist than a right of "persons."
UPDATE: if anyone wishes to contribute toward the brief, just click here. There's a Paypal link on upper right of page. If you're not a PayPal member, just click at bottom of the Paypal page and you can enter ordinary credit card data.
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Heller in the press
Wash Po picks up on the Congressional brief, and that Dick Cheney signs on. As well as the fact that the brief disputes the Solicitor General's standard of review position. Again, a surprising balanced and objective piece.
I've mentioned the brief filed by American Shooters & Hunters Assn, a "false flag" operation. They've put out a press release on their filing. As part of the false flag operation, their brief suggested the DC ban violated the Congressional home rule enactment for DC -- in the hope that the Court would use that, rather than the Second Amendment, as a basis for ruling. And so their press release is entitled "DC Gun Law Violates Home Rule Act." But US News & World Report doesn't take the spin.
BTW, I wouldn't give that angle high hopes. (1) It's invoking an argument NOBODY has ever made in the case. It's not the question presented, either. (2) Even if accepted, result would be DC Circuit is affirmed on a different basis. DC CIrcuit's case law stays in place. (3) Court didn't take the case just to bail out after everyone's briefed. Gun Law News has a concise summary.
Capitol Weekly (Calif.) has an interesting and long piece. Anti-rights folks saying an individual rights view would strike down every gun law and topple the Republic (watch how quickly they shift when that happens). For my money, the interesting passage:
"Irwin Nowick, a senior consultant in the Senate Rules Committee who is widely seen as a leading expert on firearms law, said courts have long ruled that states could limit or ban guns most likely to be used by “ruffians, brawlers and assassins,” ....
Normally considered a liberals, Justices David Souter and Ruth Bader Ginsburg are both sympathetic to “reasonable gun rights,” Nowick added. A narrowly crafted individual right could win 7-2, he said."
Big hat tip to reader Jack Anderson...
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Heller update
Checking out the amicus briefs so far filed... BTW, ScotusBlog must have some software that automatically grabs and uploads an amicus as the Surpeme Court files it, because one of the filers today cc'd me on the upload to the Court, and not two minutes later the file was posted on ScotusBlog!
UPDATE: Here's the Congressional amicus Hat tip to Jack Anderson... oh, and the Vice President signs it as president of the Senate.
Anyway,they're an impressive lot. I was especially struck by the Buckeye Firearms Fdn one and the Pink Pistols one and the Congressional one. NRA has extensive coverage of the issue. Libertarian Party focuses on the Solicitor General's standard of review.
Maj. Generals' one is sponsored by American Shooters and Hunter's Assn, a false flag operation, and suggests that the DC Ban is unconstitutional but other gun laws wouldn't be. Well written, as are the other briefs. There's one by over a hundred women legislators and academics.
And NRA has a list of all the federal legislators who have signed the legislators' brief, not yet online.
Battle stations, latest draft coming back from Joe Olson, I'm outa here!
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Incoming brief by federal legislators
DC had an Congressional amicus brief supporting it, signed by, I forget, 16 or 17 House members.
According to this article, there is a Heller brief incoming, supporting the individual right position, signed by 250 House members and 57 Senators. A majority of both Houses. And from that, necessarily bipartisan.
Hat tip to reader Jack Anderson.
UPDATE: the Washington Examiner reports that 68 House Demos, and 9 Demo Senators, are on the brief. Which means that the brief supporting Heller has four times as many Democratic signers as did the one supporting the District's gun law.
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First of amicus briefs online
ScotusBlog has the first amicus briefs supporting Heller & individual rights online. These are just the earliest filings. Deadline isn't until Monday. That's for filing with the clerk. Our printer's deadline, in order to meet that deadline, is crack of dawn tommorrow.
Take a look at the one from the Buckeye Firearms Fdn.. I liked the argument stating that DC's 911 system "is a joke."
Making final changes on Academics for the 2nd Amendment now -- to be precise, sending them over to Joe Olson for him to look at. This one is going to hit hard, very hard. Working at it now, weighing each footnote. Take this one out, we save 27 words. Could 27 new words be written that would have greater impact than the existing fn? (You get 9000 words, and we're right up against that).
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Law blogs on Heller
Have a late evening of almost spare time before back to work on it. So here's a modest roundup:
Prof Balkin, at Balkanization has his take on the Administration's position.
Prof. Berman, at Sentencing Law and Policy suggests that if Parker/Heller win, choice of future test case plaintiffs will be vital.
Leibowitz's Canticle analyzes Heller's brief.
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WashPo on Heller
Article here. Quite a fair one, actually, which I find a little astonishing.
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Exhausted....
Joe Olson, Clayton Cramer and I got the Academics for the 2nd Amendment amicus brief off to the printer in advance of the deadline, now awaiting the page proofs. That's why I haven't been blogging much. That and a trip to the SHOT Show to try to convince mfrs that they should include copies of the documentary in their boxes. Not a lot of sleep in the last week.
UPDATE: SHOT Show was OK. Talked to a bunch of mfrs about the idea. The smaller ones seemed interested, larger ones not so much. Oh, well. One safe mfr was very interested, tho.
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Heller's brief is online
Right here, in pdf.
UPDATE: the brief was the work of Alan Gura, Bob Levy, and Clark Nelly. I was happy to offer ideas and research now and then, but that was it.
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Heller/Parker and standard of review
Prof. Winkler argues for a low standard, while Prof. Reynolds (aka Instapundit) argues for a high one.
Just had a thought regarding the Sol. General's position. It is along these lines:
(1) The case law the SG invokes -- while the SG never tells the Court of this -- actually calls for two different levels of review. The cases cited deal with election ballot issues. Minor infringements of the 1st Amendment there get something like intermediate level review. Substantial infringments get strict scrutiny.
(2) An absolute ban on handguns, which are currently about 40% of all firearms, and the portion most often used in self-defense. cannot to my mind be anything but a substantial infringment of the right to arms.
(3) Therefore, under the cases the SG cites, strict scrutiny applies. The DC Circuit applied that standard, and thus the case should be affirmed, not remanded, as the SG requests.
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Concurring Opinions insight on Heller
At Concurring Opinions, Prof. Michael O'Shea has a take.
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I guess Brady Campaign *doesn't* like the SG position
From today's Legal Times. (Registration required. I've put the major parts of the story in extended remarks below.
As usual, their argument as to the 2A's purpose goes in circles. (1) It is tightly linked to the militia; (2) but don't dare say the militia was meant to deter the Federal government.
Continue reading "I guess Brady Campaign *doesn't* like the SG position"
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I suppose there's one comfort for the Solicitor General
The SG has hacked off every gun organization, the Wall St. Journal, the Washington Times and now the Washington Examiner, not to mention half the internet.
But they can take one comfort. The Brady Campaign likes them. Sort of.
Continue reading "I suppose there's one comfort for the Solicitor General"
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Wall St. Journal takes on Solicitor General's brief
Right here.
Ouch!
"[I]t is nothing short of astonishing, and dispiriting, that the Bush Justice Department has now weighed in with an amicus brief that is far too clever by half."
"This is supposedly necessary because of this single phrase in Judge Silberman's 58-page ruling: "Once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them" (our emphasis). This has alarmed the lawyers at Justice, eliciting their dire warnings that somehow Judge Silberman's logic would bar the regulation of M-16s, felons with guns, or perhaps even Sherman tanks."
"Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated. It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration."
Hat tip to Joe Olson...
UPDATE: A legal tactical call? Not really. It'd be predictable that the SG would defend federal law in general. And that the Court isn't going to buy striking down the NFA or GCA; no matter what justification you could give, But the SG could have argued, without undermining the case, that what is at issue here is a ban of an entire class of firearms, descended from those known to the Framers. That fails any possible test, and thus you should affirm the DC Circuit. We would alert you to the fact we have a number of other federal laws, not at issue here. And then argue either (a) we think they'd pass strict scrutiny or (b) for some other reason they would be subject to a lessened standard of review (hint, hint, don't write us into a box with a ruling that ALL gun laws are subject to strict scrutiny). With either approach, affirm the DC Circuit.
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Parker/Heller set for argument
Argument is Tues., March 18. No time to say more, worked about 14 hours on the case yesterday, will be doing more today.
Update in light of comments: nope, no television. I forget which Justice replied, when asked about televising arguments, "over my dead body." They have lately gone to posting audio and transcripts a day or two after an argument, tho.
And yep, beating the "horrible hypotheticals" is always a problem. That's why the question of regulation comes in. I sometimes say that you could say the same about freedom of speech. "Why, if we allow 'freedom of speech.' we'll have to legalize blackmail (which is nothing but a threat to express embarassing incidents unless paid for silence), death threats, etc." Or have to allow people to use bullhorns in residential areas at 1 AM. There are ways to work out the extreme cases WITHOUT impairing the core rights. Complexity here is that courts tend to favor First Amendment liberties, and do not tend to favor Second Amendment ones.
Akhil Amar had an interesting test: if (to use his interesting if a bit eccentric, and I regard that as good) theory, the 2A was meant to protect a right of the people en masse to resist tyranny, and the 14A to protect their right to resist criminals, then a weapon that is good for neither can be banned without harming either purpose. A backpack nuke isn't appropriate to defending your house, and rather than enabling us to resist a tyrant enables one to become a tyrant (since terrorism is by tyranny writ small).
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Interesting take on DC's amici defenses
Over at Snowflakes in Hell.
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More on the Solicitor General's brief
In the WashPo.
"If the justices accept that advice when they hear the case in the spring, it could mean additional years of litigation over the controversial Second Amendment and could undo a ruling that was a seminal victory for gun rights enthusiasts.
Some were livid. One conservative Web site said the administration had "blundered in catastrophic fashion," and another turned Clement, usually a pinup for conservative legal scholars, into a digital dartboard. Rep. Eric Cantor (Va.), the Republicans' chief deputy whip, called the brief "just outrageous," and Republican presidential candidate and former senator Fred D. Thompson (Tenn.) accused the Justice Department of "overlawyering" the issue."
UPDATE: the Heritage Foundation weights in. A very good and objective piece. It is a good thing that the gov' t concedes there is an individual right, a proposition that has been hotly contested. But a bad thing that the gov't wants a limited standard of review. That the gov't concedes a right against itself is entitled to some deference. That it wants to limit that right is not; what else can we expect the Dep't of Justice to argue? We can thus hope that the Court considers the first significant, and the second "so what else is new?"
Hat tip to reader Ambiguous ambiguae...
ANOTHER update: here's, I think, a rational and balanced take on it. Hat tip to reader Jack Anderson.
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Glenn Reynolds and Brannon Denning on Parker
Their article, "The Year of the Gun," is online here.
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Fred Thompson on DoJ brief
Here's the story. Too busy writing to say more.
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A few takes on Solicitor General's brief
Sandy Froman has a Townhall column on the subject, and Brett's Constitution takes issue with my reading.
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DC's shortage of amici
The NY Sun notices. DC is supported by five state AGs (the challengers have 30 lined up, last I heard, to support the 2nd Amendment), and 18 Congressmen (don't know the count, but I'd expect Parker/Heller to have 5-10x that many).
Their "scholars" brief was supported by two law profs and, what, 4-6 history profs.
UPDATE: lot of us have been wondering why there are so few. With AGs, it's easy: most of them are on the other side. With scholars, it's harder to call. One guess is that many historians may be chary of the Bellesiles affair, where they put their credibility on the line supporting his breathtaking new findings ... and were left holding the bag when it was exposed as bogus.
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Instapunk on the DoJ position
I have an uncanny feeling that he doesn't care much for it.
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LA Times on Parker & Dept of Justice Brief
Story here. As might be expected, the Times barely mentions that the brief accepts individual rights.
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NRA statement on DoJ Parker brief
It didn't take them long to react!
Statement of the National Rifle Association by Wayne LaPierre and Chris Cox on the
pending U.S. Supreme Court case:
In the coming months, the U.S. Supreme Court will consider the constitutionality
of Washington, D.C.'s ban on handgun ownership and self-defense in law-abiding
residents' homes. The Court will first address the question of whether the Second
Amendment to the U.S. Constitution, as embodied in the Bill of Rights, protects
the rights of individuals or a right of the government. If the Court agrees that
this is an individual right, they will then determine if D.C.'s self-defense
and handgun bans are constitutional.
The position of the National Rifle Association is clear. The Second Amendment protects
the fundamental, individual right of law-abiding citizens to own firearms for any
lawful purpose. Further, any law infringing this freedom, including a ban on self-defense
and handgun ownership, is unconstitutional and provides no benefit to curbing crime.
Rather, these types of restrictions only leave the law-abiding more susceptible
to criminal attack.
The U.S. Government, through its Solicitor General, has filed an amicus brief in
this case. We applaud the government's recognition that the Second Amendment
protects a fundamental, individual right that is "central to the preservation
of liberty." The brief also correctly recognizes that the D.C. statutes ban
"a commonly-used and commonly-possessed firearm in a way that has no grounding
in Framing-era practice," the Second Amendment applies to the District of Columbia,
is not restricted to service in a militia and secures the natural right of self-defense.
However, the government's position is also that a "heightened" level
of judicial scrutiny should be applied to these questions. The National Rifle Association
believes that the Court should use the highest level of scrutiny in reviewing the
D.C. gun ban. We further believe a complete ban on handgun ownership and self-defense
in one's own home does not pass ANY level of judicial scrutiny. Even the government
agrees that "the greater the scope of the prohibition and its impact on private
firearm possession, the more difficult it will be to defend under the Second Amendment."
A complete ban is the kind of infringement that is the greatest in scope. The U.S.
Court of Appeals for the D.C. Circuit correctly ruled that D.C.'s statutes are
unconstitutional. We strongly believe the ruling should be upheld by the U.S. Supreme
Court.
The National Rifle Association will be filing an amicus brief in this case and will
provide additional information to our members as this case moves through the legal
process.
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Government files amicus -- on DC's side!
Quick read: Gov't says, yes, it's an individual right. BUT we join with DC in asking Court to reverse the DC Circuit, because it applied strict scrutiny to the DC law. It should only have applied an intermediate standard. That is, the legal position of the US is that DC CIrcuit was wrong, a complete ban on handguns is NOT per se unconstitutional, it all depends on how good a reason DC can prove for it.
And this is filed in the name of the Solicitor General. Some quotes:
"When, as here, a law directly limits the private possession of “Arms” in a way that has no grounding in
Framing-era practice, the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction.
The court of appeals, by contrast, appears to have adopted a more categorical approach. The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of “Arms” that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review."
"The determination whether those laws deprive respondent of a functional firearm depends substantially on whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02, can properly be interpreted (as petitioners contend, see Br. 56) in a manner that allows respondent to possess a functional long gun in his home.8 And if the trigger-lock provision can be construed in such a manner, the courts below would be required to address the factual issue—not fully explored during the prior course of the litigation—whether the firearms that are lawfully available to respondent are significantly less suited to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a handgun) that D.C. law bars respondent from possessing. To the extent necessary, further consideration of those questions should occur in the lower courts, which would be in the best position to determine, in light of this Court’s exposition of the proper standard of review, whether any fact-finding is necessary, and to place any appropriate limits on any evidentiary proceedings. Moreover, even if the existing record proved to be adequate, initial examination of those issues is typically better reserved for the lower courts."
"CONCLUSION
The Court should affirm that the Second Amendment, no less than other provisions of the Bill of Rights, secures an individual right, and should clarify that the right is subject to the more flexible standard of review described above. If the Court takes those foundational steps, the better course would be to remand. "
As I read this, the (Bush) Dept of Justice is asking that the Court hold it to be an individual right, but not strike the DC gun law, instead sending it back down to the trial court to take evidence on everything from how much the District needs the law to whether people can defend themselves without pistols and just what the DC trigger lock law means. THEN maybe it can begin another four year trek to the Supremes. That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns violates the Second Amendment, and contends that it might just be justified, it all depends on the evidence.
There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup.
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Amici for DC online
Right here.
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AP on Parker -- gets almost everything wrong
Story here.
"in which justices will decide whether the Constitution's Second Amendment bars a conviction under tough Washington, D.C. handgun laws."
"The case stems from the conviction of Dick Heller, a 65-year-old security guard who had a permit to carry a handgun at work but was denied a license to keep one at his home in what had been a high crime neighborhood. He kept one anyway. "
"The D.C. Circuit Court of Appeals reversed his conviction, saying the city's 31-year-old law against buying, selling or owning an unlicensed handgun was overly broad and offended the Second Amendment's right "to keep and bear arms.""
How does AP make seven errors in a story that is only 11 sentences long? Heller didn't violate the law, wasn't convicted of anything, didn't claim the law was overly broad. And the DC law doesn't allow for licensing of handguns (that was his entire point).
UPDATE: I emailed Alan Gura, Heller's attorney, and he contacted AP. The story has now been greatly rewritten.
It still says district attys from 18 jurisdictions representing a lot of people signed the amicus brief, when it looks to me as if only 2 did. The rest of the locations come from the locations of the private firms that filed the brief as attorneys, not as the actual amici.
I don't have a screencap, but here's the text of the original story:
NEW YORK - Prosecutors from across the country, afraid that an upcoming U.S. Supreme Court ruling could erode state gun laws, on Friday asked the high court to uphold a ban on unlicensed handguns.
The district attorneys, from 18 jurisdictions, weighed in on a case in which justices will decide whether the Constitution's Second Amendment can overrule tough Washington, D.C. handgun laws. The prosecutors say a ruling against the ban could impair law enforcement and jeopardize public safety.
The case is centered on Dick Anthony Heller, 65, an armed security guard who sued after the district rejected his application to keep a handgun at his home for protection.
The D.C. Circuit Court of Appeals ruled in Heller's favor, saying the city's 31-year-old law against buying, selling or owning an unlicensed handgun violated Second Amendment rights of gun ownership.
The prosecutors, led by district attorneys Robert M. Morgenthau of New York County and Kamala D. Harris of San Francisco, say they worry that what applies in Washington might have an impact on their communities.
Assistant District Attorney Mark Dwyer, head of Morgenthau's appeals bureau, said the high court's review of the Second Amendment will be its first since 1939.
"We would like for the court to reverse the D.C. circuit," Dwyer said, "for them to say there is no individual right to possess a gun, that it (the Second Amendment) enables states to arm militias."
"We hope they don't say anyone can have a gun anytime he wants," Dwyer said.
The prosecutors submitted the papers as a friend-of-the-court brief, filed by parties who are not part of the case but who have an interest in its outcome. The district attorneys, who represent a total of more than 25 million people, come from jurisdictions that include New York, San Francisco, Boston, Dallas, Chicago, Minneapolis, Detroit, San Diego, Oakland and Atlanta.
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Historians' brief for DC
Here. Caveat: pdf, 300K.
Can't post all the amici when they come in today, as 30-40 are expected, but as soon as the Supreme Ct. puts them online, they'll be here. You have to scroll down to find District v. Heller.
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Blogger's take on DC's brief
Liebowitz's Canticle has a detailed posting on the DC merits brief.
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DC files Parker/Heller brief
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DC fires its Heller/Parker attorney
Prompted by a comment, I found the story in the WashPo.
I don't know quite what to make of it. A guess: the DC Atty General, a friend of the Mayor, wants the argument for himself? That's quite a feather in the cap. A justice on the AZ Supreme Court once told me that Sandy Day O'Connor said Supreme Court argument were on average inferior to those she heard in the AZ Court of Appeals. Reason was that every AG wants to take the argument for himself, and they're politicians, not litigators. In the Court of Apps, she said, she heard underprepared attorneys; in the Supreme Court she heard underprepared politicians, and she'd put her money on the underprepared attorney.
Or perhaps just "a new broom sweeps clean." DC got a new Atty General, the outside counsel was hired by the old AG, so goodbye.
I'd bet Morrison is NOT happy. The brief must be filed Friday, which means it's now in final form and at the printer's (Sup. Ct. briefs have to be printed, as in printing press). So they waited until he got the brief written and then popped it on him. But then this is DC, where backstabbing is normal business.
Update: Legal Times Blog says that DC refuses to give a reason, and that Morrison said he was viewed as too loyal to the former AG. Via the Volokh Conspiracy.
Another update: I don't think DC will move for an extension. First, their brief is due Friday, and has to be printed. It's certainly now at the printers', in finished form. Second, I don't think they would want to talk about why they fired him. It sounds like pure internal politics, and a stab in the back.
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Parker: the waiting
DC expects to file its brief on Friday.
Aw, link doesn't work. Take my word for it.
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Podcast of Sanford Levinson on Heller
Sebastian has a link to an NPR podcast on the issue.
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News of the day
Virginia's Attorney General will join the Attorneys General amicus supporting the individual rights position.
The Congressional Sportsmen's Caucus is celebrating some pro-hunting wins in the budget bill (details in extended remarks below).
UPDATE: The Supreme Court often asks the opinion of the Solicitor General, on a constutional question of some weight, if the Federal government is not a party. In that event, he's expected to file a brief, and sometimes to participate in oral argument (with sometimes a squabble about whether his time should or should not be deducted from the side he tends to favor -- when you only have 30 minutes per side, having 10 or so minutes removed can become a major issue!).
Continue reading "News of the day"
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Even the "living constitution" movement is in retreat
Prof. Cass Sunstein, in the Huffington Post:
On the one hand,
"Some people, above all Yale Law Professor Bruce Ackerman, have urged that the American constitutional tradition includes not merely formal amendments but also "constitutional moments," in which We the People make large-scale changes in our understandings. These changes ultimately have consequences for the meaning of the Constitution."
On the other,
"Predictions are hazardous, but here is a prediction. In the near future, the Supreme Court will conclude that the Second Amendment confers an individual right to own guns. When it does so, its conclusion will be greatly affected by a social setting in which that judgment already has acquired broad public support. And in fact, there now seems to be a general public understanding that the Second Amendment does protect at least some kind of individual right; and that understanding greatly affects American politics. If the Supreme Court finds an individual right to bear arms, it will not really be speaking for the Constitution as it was written by those long dead; it will be reacting to judgments that are now widespread among those now living."
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Former DC police chief recants on handgun ban
Former DC police chief Charles Ramsay has backed off from his support for its handgun ban.
"Ramsey's comments Monday to WTOP radio are a shift away from his defense of the D.C. gun ban during his time in Washington. In congressional hearings on the gun ban in 2004 and 2005, Ramsey told lawmakers nothing good would come from overturning the law."
Update: I corrected his name.
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NY Times on Parker/Heller
Story here. And for the NYT, strangely unbiased.
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Brady Campaign in fallback position
Their president, Paul Helmke, writes in today's Huffington Post:
"Thus, the Parker court concludes, "the right in question is individual.
The court, however, simply obscured the real issue. There is no question that the Second Amendment guarantees a right to "the people" -- that much is clear from the text. The issue is: What right does the Second Amendment grant to the people? Is it the right to possess and use guns for private purposes like hunting or self-defense, as asserted by the Parker majority, or rather the right to be armed for purposes related only to service in a government-organized militia?"
They've gone from collective rights ("it's a right of the State") to the fallback of sophisticated collective rights.
How big a retreat is this? Well, their 2003 amicus brief at the District Court (pdf file) argued, for example, "By this action, Plaintiffs seek to contest long-settle precedent that construes the Second Amendment of the U.S. Constitution as protecting only the ability of the States to maintain a "well-regulated Militia." (p. 2), "The vast majority of courts have interpeted Miller as a rejection of any individual right to bear arms under the U.S. Constitution," (p. 7) and "The Framers of the Constitution did not intend to create an individual right to bear arms." (p. 12)/ They cited pure collective rights cases (pp. 8-10).
Yep, it's a big retreat.
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Ark. AG supports Parker/Heller plaintiffs
He says sign onto a brief for state attorneys general in the case. The Texas AG has the lead on it.
UPDATE: What can you do about it? Call or write your AG. They're directly elected in every state I can think of. You're their constituent and voter.
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Parker and political campaigns
A column by Ken Blackwell.
"Presidential candidates whose views on the Second Amendment have been questioned should step up and detail their position on this issue. Mrs. Clinton, and Messrs. Obama and Edwards should explain their views. Mr. Giuliani should explain more fully why he opposes the D.C. gun ban but supports other restrictions on Second Amendment rights.
The American people expect leadership. Part of being a leader is answering the tough questions openly and forthrightly. On this issue, the court will do the heavy lifting. The candidates’ views, however, will certainly leave a mark."
Update: Alphecca has a related thought: the Repubs ought to use this as a wedge issue -- but if Rudy or Mitt win the nomination, that's going to be unlikely. (Via Instapundit).
Update, also via Instapundit: Prof. Sandy Levinson has similar thoughts.
"What is interesting is that almost none of the leading candidates in either party, right now, seems particularly "authentic" holding a gun. Any such picture of Hillary or Obama holding a gun would instantly become the "Michael Dukakis in the tank" photograph of 2007. Edwards, perhaps, has actually hunted and might not look ridiculous. Romney has been exposed as an utter fraud re his devotion to hunting, and somehow I doubt that Giuliani, who might well wish to shoot his critics dead (though he might prefer to personally strangle them), has in fact spent much time actually using guns. Perhaps Huckabee has done his share of hunting in the Arkansas pines (or wherever one goes hunting in Arkansas)."
He later adds--Fred Thompson is an exception.
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Parker: standing issue
No decision from the Supremes today on whether to take the cross-petition in Parker/Heller. That's the one where plaintiffs challenge the dismissal of plaintiffs other than Heller, on grounds of standing to sue. ScotusBlog speculates (which is all we can do) that the Supremes may just hold onto the cross petition until after they rule on the Second Amendment itself.
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Parker/Heller roundup
I can't recall a case getting this much coverage at the cert. stage. Or at the merits briefing state, either. Usually a Supreme Court case is ignored until the Court rules (and often even after that: in a Term the Court takes about 80 cases, but upwards of 70 are not very sexy). But...
Here's today's Wall St. Journal editorial.
Michigan Atty General Mike Cox weights in with textual argument.
Here's a pretty good general article on the case.
And here's the Brady Campaign press release, calling the Circuit ruling "judicial activism at its worst." Further proof that, in many cases, "judicial activism" amounts to "striking down a law I wanted upheld."
The Harvard Law Bulletin reports that Prof. Mark Tushnet thinks DC may win, while Prof. Larry Tribe thinks the plaintiffs will. It quotes Prof. Tribe, who came over to the individual rights view: “My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe said in a recent New York Times interview. “I have always supported as a matter of policy very comprehensive gun control.”"
And we shouldn't neglect academia. Here's Nelson Lund's latest, refuting the argument that since the amendment relates to the militia, and handguns are supposedly not militia weapons, they can be banned.
The case not only has its own webpage and blog, it has its own Wikipedia entry, which people are keeping up to date.
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Parker oral argument
SCOTUSBlog is reporting that Parker is likely to be set for oral argument the week of March 17.
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Prof. Glenn Reynolds on Parker
Glenn Reynolds (aka Instapundit) has a column on the case in the NY Post.
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Press conference on Parker
Video here. Excellently done. Everyone says their piece, short and concise, and that's it. We look forward to the fight, and this is why we brought the case.
The opposition speakers are stiff, often apologetic -- DC "had no choice" but to continue with the appeal, it's a "bittersweet moment," if the suit hadn't come over this law it would have come under some other law... only the last speaker bothers to say he thinks they'll win.
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Academics for the Second Amendment seeking donations for brief
I've put the full msg. in extended remarks below. A2A is a small group -- legal academics who support the second amendment aren't a majority! The costs of an amicus are considerable (just the printing, and Sup. Ct. briefs must be printed) run into the thousands.
Continue reading "Academics for the Second Amendment seeking donations for brief"
Permalink · Parker v. DC · Comments (11)
Thoughts on Parker's questions presented
The Supreme Court obviously wanted to be very precise. That likely explains why it skipped announcing last week, they had to work on it, perhaps negotiations between Justices on the precise wording. I suspect the wording is the result of a lot of careful thinking.
The reference to "Second Amendment rights of individuals who are not affiliated
with any state-regulated militia..." is good. Implicit in that is that the old collective right theory (that Second Amendment rights are rights of states only) is off the table. We're down to sophisticated collective rights vs. individual rights. And I might even venture a guess that the Court is showing favor for individual rights here. The sentence presupposes that there are "Second Amendment rights of individuals." There's no "if any" language in there. Read literally, it presupposes that individuals not in such a militia do have second amendment rights... the only question is whether the laws violate those rights. But that may be reading too much into the wording... then again, it was probably the result of some careful thinking, and negotiation.
"with any state-regulated militia" is interesting. It seems to dodge the question of how "well regulated" a militia would have to be if sophisticated collective rights view were taken. That'd be a legal mess -- just how much organization, how many drills a year would you need? The early federal militia acts, and the debates over them, suggest that "well-regulated" didn't require a lot, and the Congress recognized that full-time farmers and tradesmen couldn't spare a lot of time.
Inclusion of the functional firearm ban -- again, good. Perhaps even a slap at DC's petition, which had insisted that that question was not in line, and then rather dishonestly defended the handgun ban by saying residents were still allowed to defend themselves with rifles and shotguns.
Inclusion of its carrying permit issue -- that'd give me a bit of heartburn, but the Court made it clear the issue centers on "keep[ing] handguns and other firearms for private use in their homes..." That narrows it: it's only on whether the carrying restrictions, as applied to "carrying" in your own home, are constitutional.
Still gives a bit of worry, to the extent that the Court *might* thereby say something about carry permits generally. Then again, even were it to say something approving here, we'd still be far better off than we are now, when the only barrier to open carry permits is legislative: I can't recall any court striking one down, so if your state doesn't have such, it's because the voters won't let it be.
Overall, I'd say the rewording is a good sign.
By the way, on timing:
Petitioner's brief, that of DC, is due 45 days from the grant, or January 4 by my count.
Parker side's brief is due 30 days after that, or about February 3.
DC has 30 days to reply, or around March 5.
The Court is now booking arguments for March, so I'd guess an argument in late March.
UPDATE: No, it's not usual for the Court to write the questions presented on its own. Questions presented are right at the front of the petition and response, so that the Court can quickly see just what the issue is. Usually a cert. grant is simply cert. granted. Occasionally, where several questions are presented, you may see cert. granted as to this question but not as to the others. But a complete rewrite is in my research quite unusual. I haven't researched enough to know whether it's extremely rare or just quite unusual, but it's one or the other.
Permalink · Parker v. DC · Comments (10)
Cert granted in Parker!!!!!
Order here.
Court rephrased the question presented as:
"Whether the following provisions, D.C.
Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the
Second Amendment rights of individuals who are not affiliated
with any state-regulated militia, but who wish to keep handguns
and other firearms for private use in their homes? "
DC had phrased it as:
"Whether the Second Amendment forbids the District of
Columbia from banning private possession of handguns
while allowing possession of rifles and shotguns."
Parker/Heller had phrased it as:
" Whether the Second Amendment guarantees law-
abiding, adult individuals a right to keep ordinary,
functional firearms, including handguns, in their
homes."
7-2502 is the registration requirement. 2502.02 is the ban. 22-4504 is the pistol carry permit, which was construed to cover moving of a firearm within the home. 2507.2 is the "functional firearm" ban. Inclusion of the last in the grant is, I think, a good sign for Parker/Heller. They wanted it included, but DC insisted it hadn't filed for cert. on the issue. Well, the Court took care of that.
UPDATE: here's the Brady Campaign press release.
Permalink · Parker v. DC · Comments (22)
Bob Levy article on Parker
In the LA Times, no less.
Permalink · Parker v. DC · Comments (11)
Court watching...
Today's the day when the Supremes will probably announce cert. on Parker. Emphasis on "probably," since they make decisions when they want to.
UPDATE: a comment points out this entry on ScotusBlog, which says the Court made no mention of the case in today's orders. As it notes, this can mean almost anything.
Nothing: the Court wants just more time to think it over.
It means to grant cert, and wants to refine the questions it will pose in a cert. grant, which defines what the parties must brief.
Or the vote was to deny cert., and some Justices want time to write dissents from the denial.
So it can be a good sign, a bad sign, or no sign. And nobody but the Court knows.