Summary of Heller

The Cornell article loses me in the first paragraph when the author refers to "Joseph Heller". The petitioner's name is Dick Anthony Heller. Joseph Heller is the author of "Catch-22". There may be some distant connection there, since the District's position of, "No, we haven't banned it. Yes, you need a license for it. And No, we're not issuing those licenses any more." represents a near-perfect example of Catch-22 logic.

Just finished reading it.
Actually it seems like a good, neutral overview of the case, with a wonderful list of sources and links at the end.

Funny, there are a many of great briefs with better talking points but they rely mainly on the NRA brief in their analysis of big points. Disappointing to say the least.

I can't believe I missed the "Joseph Heller" mistake. Gah.

Nevertheless, I believe this is good, fairly neutral summary of the main points in the case.

Kevin at the Smallest Majority has just put up a mega-post on the judicial history of the Second Amendment leading up to Heller.

These are the two articles I'd point anyone to who wants to get up to speed before orals.

QUOTE --On one side are gun rights advocates who argue that the Second Amendment gives individuals the right to “keep and bear arms.” On the other side are gun control advocates, who believe that the Second Amendment only gives individuals associated with a militia this right.

I wasn't aware that we were arguing that the BOR gives us rights.

From the LII Bulletin:
"The interpretation of the Second Amendment been debated for years. On one side are gun rights advocates who argue that the Second Amendment gives individuals the right to “keep and bear arms.” On the other side are gun control advocates, who believe that the Second Amendment only gives individuals associated with a militia this right."
Maybe I've just hanging around with libertarians for too long, but I've never believed that the BOR gives anybody anything. I've always thought that the Articles in the BOR, like the rest of the US Constitution, prescribes the limitations upon government.

For a long time I've not been a fan of the quality of education gained by many students of higher education so I suppose I shouldn't be surprised at the results of 2 Cornell students that feature pet-sitting and sking in their bios.
(http://www.law.cornell.edu/bulletin/07bio.html)
At least Ms. Sander (Edited) seemed to have missed only one misspelling - that of Milita (sic) in one of the headings. ;)

All in all, I think that readers of LIIBulletin could have gotten as much information, and of better quality, from David's site here, or The Volokh Conspiracy. I'm disappointed, but not surprised.

Yes, Chris, you beat me to it.

Whenever I see the assertion that the BOR GIVES or CONFERS rights, I blow off the rest of the article.

Had they used the word PROTECTS, I might have taken the article a bit more seriously.

As was said in Cruickshank and repeated in Presser, the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed..."

Michael and Chris,

I think you are correct to notice that the very question in this case is one of statutory interpretation, where the Court must determine if the BOR 'protects' a personal right or if the right is one only protected for those associated with a militia. And I believe the two students at Cornell may have conveyed their point in a convoluted manner to the lay reader who has failed to do background research on this issue; however, I do believe they are correct in their analysis where the discuss if a right is "conferred." In the Court's own words,

“The courts have consistently held that the Second
Amendment only CONFERS a collective right of keeping and bearing arms which must bear a ‘reasonable relationship to the preservation or
efficiency of a well-regulated militia.’” (quoting Miller, 307 U.S. at 178)); United States v. Hale, 978 F.2d 1016, 1020 (8th Cir. 1992).

Now for those of us out there who can't seem to understand the BOR, it clearly protects certain rights from state infringement, and simultaneously enumerates those rights through its enactment!

Lastly, I do agree that the Volokh Conspiracy does a wonderful job on this case.

-Cheers

To quote Justice Scalia, writing for the majority of in a decision handed down earlier this year:

In the present case, however, the party's associational rights are at issue (if at all) only as a shield and not as a sword. Respondents are in no position to rely on the right that the First Amendment confers on political parties to structure their internal party processes and to select the candidate of the party's choosing."
N.Y. State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791(2008).

And to quote an older case on the Fourth Amendment from the Supreme Court:

"The common law thus recognized, as have our recent decisions, that rights such as those conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched."
From Steagald v. United States, 451 U.S. 204 (1981).

C.Cannon does a great job of rehashing my point! The court has continuously associated the term, "confer" with the BOR. Further, I would like to recant the convoluted statement I made in the last post. After a second read of the LII Bulletin, I think the Bulletin does a wonderful job at conveying the key arguments and ramifications in this case. It is a well-rounded and neutral depiction of Heller.

-Dave

I emailed the authors, Buechner and Ernemann, notifying them of the error concerning Heller's name, and of the "confer" v. "protect" debate. I also pointed them to this post, and they're following our discussion.

The name has been fixed.

I believe C. Cannon may well be Cecelia Cannon, the editor of the Cornell paper; if so, thank you for stopping by, and thank you in any case for explaining the issue so clearly.

As Cannon indicates, they acknowledge the debate, but believe their usage is consistent with the Court's, and do not mean to slant their summary one way or the other. (Ernemann calls King's post "pretty accurate".)

There's been a lot of great discussion of Heller here, at the Volokh Conspiracy, the Smallest Minority, and numerous other venues. However, the LII Bulletin is an excellent introduction to the key issues of the case, drawing mostly on the parties' briefs and a few of the amici briefs. It's not exhaustive, but it's not meant to be.

The LII Bulletin is the best single document I've seen for getting newcomers oriented to the intricacies of Heller.

Heller is going to be receiving a great deal of scrutiny over the next couple of weeks from many folks who have not been following the RKBA issue as closely as we have. Many, I think, will not be hardened partisans, and will be willing to listen to reasonable argument on the main points.

Let's not jump salty on neutral newcomers who have inadvertently stumbled across one of our trip wires.

Of course an appendage of the Governemnt is going to state things to their benefit. With that being said, I have no argument with the use of "confer" as regards traditional countries where the government rules the populace and confers various freedoms upon its subjects. However, the US is unique in that the government is not to rule, but merely to represent the true rulers, which would be the people, the citizenry. In which case the BOR "protects" pre-existing rights, whereas the citizens confer some of their power to the collective.