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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.
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""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."
Yeah, but....
In 18th and 19th century English, the term "well regulated" had nothing to do with government regulation.
In the period literature, there are references to:
1. "Well regulated schools" being associated with generous funding, or a vocal music program.
2. A "well regulated [fire] company" with a new fire engine.
3. A few references to "well regulated minds". Unless you think the authors were comteplating some sort of Orwellian Hell, these references can't mean "government regulated".
4. There is even one reference to a "well regulated society" IN THE ACT OF REBELLION against its government.
5. There is a reference to a "well regulated drawing room" being like a "well regulated school".
All the old passages I have found can be read without stress if you use the meaning "properly functioning" or "in its ideal state". Only a few can be read as "government regulated", and then only with varying degrees of stress.
The shift in meaning seems to have happened about 1900 or so. After that, "well regulated" started to mean "carefully regulated by the government".
I think that late March is probably too close to the DC reply. My guess is that this gets heard in April (last case of the term perhaps???) and we wait for all summer for an opinion (perhaps after November's election?? Wouldn't put it past the court to do so in order to remove the issue from the election)
Thanks Dave for this insightful commentary. You are indeed a treasured resource and a beacon of light and truth for those of us who keep second amendment rights near and dear to our hearts. Will you be sending copies of "In Search of The Second Amendment" to the justices as an amicus brief?
Is it normal for the Court to write the question themselves? (I don't follow SC cases that closely.)
Going further with your examples of well-regulated, I compiled some examples of the phrase "well regulated government" from the early Congressional debates. An old Usenet posting I made about this can be found Here..
Thank you, Mr. Hardy, for your time and insightful commentary.
I check your blog every day.
And I've bought and given away over 20 of your "In Search of the Second Amendment" DVDs.
You're doing a great service.
What has me worried is the way SCOTUS put the question.
“Whether the following provisions — D.C. Code secs. 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?"
The way that I read it, it sounds like the old "right of the states" argument is DOA.
However, I could see SCOTUS ruling that the Second Amendment applies only to members of a state-regulated militia. What constitutes a state-regulated militia gets left for the future...but note that no state HAS to have a militia at all.
Would it be right? NO! But right and law have little to do with SCOTUS rulings.
There's a great deal of "reading into" going on with the rephrased question. Everyone is trying to guess the Court's opinion based on the rewording. However, this is a futile exercise. In accepting the case the Court really had no choice but to reword the question.
An appeal is a review of purported errors by a lower court. A petitioner cannot simply ask the Court any ol' question, which is essentially what D.C. did. If one reviews the original complaint in the Parker case he'd see that the reworded question matched the original assertion made in the complaint. That assertion was rejected by the District court based on the collective rights theory. That rejection is the original purported error that was appealed. It is the error that the Court will review.
I was building up a good rant about archaic definitions of "well-Regulated" but Denton largely beat me to it. In modern parlance, the second amnedment might be expressed as; Since a proficient group of shooters is necessary to defend a free state, the right of the people to keep and bear arms shall not be infringed." This doesn't take a lot of effort. Pick up almost any dictionery from the late 1800s.
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