Parker v. DC
Both sides appealing attorneys fees award in Heller
Story here. Basically, the trial court awarded Heller's team somewhat over a million. DC wants it to be more like $840,000, and Heller's team thinks $3 million is a better number.
I personally find it delightful that the argument is over whether DC will be out of pocket for $800,000, or a million, or three million.... The last number sounds so reasonable, but the fact that the District is looking at 840K as the bottom line for violating the Second Amendment is quite amusing.
DC gets tagged for $1.1 million in the Heller case
Ouch! They and other cities will have to start thinking twice before play games with the Constitution.
Heller, McDonald, and Andrew Sullivan's complaints
Damon Root takes on Andrew Sullivan's complaints about the two big wins.
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Dick Cheney, and the gov'ts amicus in Heller
Part of his autobiography to be released tomorrow. The Circuit Court of Appeals had struck down the DC law; the government wound up filing an amicus that argued the Supreme Court should send the case back to the District Court, to develop factual bases for a great number of issues. That is, the government was doing as much as it could to delay and complicate the case, while at the same time saying that it really did support an individual right. Cheney says he opposed this, and when Justice Department went ahead, he signed onto a legislators' amicus (in his role as president of the Senate) that did go all-out for an individual right.
Hat tip to Sixgun Sarah....
If you want to order his book on Amazon, here's the link:
In My Time: A Personal and Political Memoir
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DC Ct of Apps holds Heller is retroactive
Pdf ruling here. Skim ahead to p. 21, or p. 29 if you have a low threshold of boredom.
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Judge Laurence Silberman on the Second Amendment
Video here. He wrote the DC Circuit opinion in Parker/Heller, which the Supreme Court affirmed.
He says that he started in thinking it was a collective right, but when he looked at the briefs in Parker/Heller, he changed his mind.
Hat tip to reader Scott Stradley....
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DC v. Heller--a one year roundup
At Reason Hit and Run. To think it's only been one year...
Hat tip to Instapundit....
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Time for some laughs
While doing some online research I came across some webpages that were most amusing, in the wake of the Heller decision.
"The best indication of what any law, including a Constitutional provision, means, is what the courts say it means. Our federal courts, including the Supreme Court, have spoken plainly and unanimously on the meaning of the Second Amendment. .... The perniciousness of the pro-gun forces, particularly the NRA, is not that they disagree with the courts, but that they lie to their members and to the public about what the law says. The success of the NRA and similar organizations in their disinformation campaign is evident in the fact that so many otherwise reasonable citizens believe that the Second Amendment, despite its reference to the militia, guarantees an individual right to keep and bear arms. No-one knows that the highest federal courts in the land have consistently held that the Second Amendment is only a right held by the states against the federal government."
"How the NRA Rewrote the Constitution", Fairness and Accuracy in Reporting:
"The Hickman case is the most recent in an unbroken chain of federal decisions, spanning 60 years, ruling that the Second Amendment does not confer an individual right to possess firearms. .... Winless pitchers and hitless hitters seldom make the big leagues. Why should serious journalists continue to print as presumptive truth the NRA's view of the Second Amendment, when its record in the courts is no wins and all losses?"
Violence Policy Center (time to update your webpage, guys):
"In short, the federal courts have consistently given the Second Amendment a collective, militia interpretation. Moreover, no gun control measure has ever been struck down as unconstitutional on Second Amendment grounds. "
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One year ago today
... was the oral argument in Heller. I didn't have the angle to see it, but a friend who did said that the face of DC's advocate, Walter Dellinger, fell when Justice Kennedy's questions showed he was pro-individual right. Kennedy was the likely swing vote.
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Lots of Heller in Harvard Law Review
Online here.
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The inside story on Parker/Heller
At Reason Online.
UPDATE: Eric links in comments to an interesting post. I've got to note that, to those who haven't done it, law is supposedly a science. It isn't. It's human chaos with some semblance of form. Perhaps I'm biased, but Heller -- an absolute federal ban -- should have been a hands-down winner. Yet it broke on a 5-4. The game of litigation isn't anywhere near as predictable as poker. More like playing 7 card stud where you get five cards now, and in 2-3 years we'll deal out the rest. And based on unpredictables (who resigns from the Court, who gets re-elected, what the Senate looks like and what their views on firearms are, with nobody vetting them for that), the deck we deal from may be mostly face cards or all clubs or only low, odd, numbers.
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Article on Heller and a few critics
In the New York Times. And, despite the source, almost objective.
UPDATE: Bob Levy and William Mellor respond.
Personal take: the judges are of the brand of conservatives that dislike "judicial activism" (by which standard some of the liberal wing, esp. Souter, would be conservative). OK, but I can't see why, even with that approach, they cannot draw a line between:
Roe v. Wade, which recognized a non-enumerated right, and imposed non-enumerated restrictions upon it; and
DC v. Heller, which recognized an enumerated right, and suggested non-enumerated restrictions upon it.
The non-enumerated restrictions shouldn't be an issue. In the First Amendment we have tons of those. Free exercise of religion doesn't allow human sacrifice (tho it may animal sacrifice) or polygamy, freedom of the press doesn't allow kiddie porn (tho it does of computer-generated kiddies), freedom of speech doesn't cover disturbing the peace, threatening the president, etc. Nothing in the Bill of Rights (or its history) about human sacrifice, polygamy, non-computer generated kiddie porn, disturbing the peace, etc. So do they consider these non-enumerated *exceptions* proof of impermissible judicial activism?
Hat tip to Ambiguous Ambiguae...
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Article on Breyer dissent in Heller
"The Last Progressive: Justice Breyer, Heller, and "Judicial Judgment". "Progressive" here doesn't have its modern political meaning, but refers to a pattern of legal thought that began in the last 19th and early 20th centuries. It was, however, quite deferential to legislatures.
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Heller team reply on motion for attorneys' fees
Here, in pdf. As might be expected, it is well-written and merciless. In trying to hold the award down, DC apparently argued that it was a perfectly ordinary appeal, so Gura takes all their requests for extensions of time, which universally claimed that it was unbelievably complex, and sticks it in their craw. It ends with
"Defendants’ accusations of “windfall” are wholly unjustified, factually and legally.
Public interest law does not create great wealth, and this case would be no exception. Awarding
the full amount of the fee request will not bring Plaintiff’s counsels’ profits per partner anywhere
near the levels routinely enjoyed by Defendants’ attorneys. When public interest lawyers who
have risked significant amounts of their time and money vindicating a dormant civil right seek
fair compensation after years of being paid nothing, charges of avarice are inappropriate and not
well-taken."
Hat tip to Joe Olson....
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Judge Posner's criticism of Heller
At The New Republic.
Generally, he's a good thinker and writer. But not on this subject.
UPDATE: Federal laws relating to guns were pretty sparse until 1968, so indeed there was little reason for the Court to take a 2A case. If I recall correctly, around 1902 there was a law banning pistols from the Postal Service mails. Then the 1934 NFA, applicable only to full auto, short barrels, and a few other things, and still allowing those if registered and taxed. A 1938 National Firearms Act, which didn't do much -- provided for licensing dealers (I don't recall who had to get one) and they had to keep simple records of purchaser's name and address. A few prohibited person categories, chief one being convicted violent felons. Hard to see much of a 2A test case there!
Also, Prof. Wm van Alstyne has pointed out that the first case in which the Court struck down a Federal law for violation of right to speech and press... was in 1965! What we regard as normal judicial function, a careful review of laws for constitutionality, people bringing test cases, the cases getting to the Supremes, is very much a function of the last 30-40 years. That the Court didn't recognize a right as important until recently represents quite a common situation.
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Essays on Heller
Two essays by Prof. Tushnet, who is not particularly fond either of the individual rights view or of originalism.
Hat tip to Joe Olson...
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Reynolds & Denning on Heller's future
Prof.s Glenn Harlan Reynolds and Brannon Denning have an article in Northwestern Univ. Law Rev. on the future of Heller.
The question is whether the case becomes, essentially, what it should be: the recognition of a Constitutional right, and the beginning of an entire branch of Con law, or whether it may go the route of the Lopez case. In Lopez, the Court struck down the Federal gun-free school zone law because, in limiting simple possession, it had no basis in the interstate commerce power. But the lower courts resisted this, and essentially said "okay, so that statute is invalid. But any other ban on possessing something will be upheld, no matter how flimsy the connection to interstate commerce."
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Brady on Heller: "we're glad we lost"
At the Brady Campaign Blog. Where they claim that NRA's initial opposition to the suit was inspired by fears that, with gun confiscation off the table, the organization wouldn't do so well.
I heard a lot of discussion about taking a Supreme Court case 2000-2006, and the only concern was "no one can predict, or even rationally guess, the outcome." As one very pro-2A law prof said "I can see where you get two votes; I can't see where you get the other three." Law is always a roll of the dice; the question is whether you like the odds. Heller's team did, rolled the dice and won.
I can tell you that during the oral argument, there was a breathtaking moment when Justice Kennedy showed his hand (for the first time; where he stood on the 2A was completely unknown). I'm told the DC advocate's face fell as he realized he'd probably lost the fifth vote. The Chief Justice's questions had signaled he was all for an individual right at that point, I think. Alito was unknown, probably our way, and then he tipped his hand, too. We had five votes. But until then it was a cliffhanger.
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WSJ on Heller & his attorneys
Story here. The only mystery is from where they got the cartoon/sketch -- it hardly resembles Alan Gura.
Hat tip to Joe Olson...
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Heller registers his revolver
Story at Reason Online. Like others, written by someone with only modest knowledge of firearms.
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Good interview on Heller ruling
Prof. Adam Winkler, UCLA Law, in the National Journal. It's quite detailed, does a great job of outlining the legal strategy (which was as fine a bit of strategic work as I've ever seen in a court) but here's a few high points:
Q: Justice Stevens lamented in his dissent that the court's decision overturns a longstanding precedent. Do you think the Heller decision represents a huge departure from previous decisions?
Winkler: Yes and no. It is a huge departure from the over 40 cases of federal court decisions interpreting Miller to protect the state militia and only the state militia and not to have any impact on an individual right to bear arms for private purposes.... On the other hand, the Supreme Court case law was pretty weak. There had only been that Miller case.... One side in the case -- [Jack] Miller, the defendant -- didn't even appear in the Supreme Court, refused to file a brief. All they had was one perspective -- the government's perspective -- on that case.... Prior to Miller there had been several decisions that had not been Second Amendment cases, but the court had referred to the Second Amendment as protecting an individual right to bear arms. So, I think that the Supreme Court precedent was not all that strong. But nonetheless, the legal rule was strongly recognized in the federal courts in general.
Q: Much of the literature on Heller talks about this case being a triumph for "originalism" or an originalist interpretation of the Constitution. Can you talk a little bit about the concept of originalism and how it applies in this case?
Winkler: Well, originalism is basically the idea that you'll define the meaning of a constitutional provision by reference to the original public understanding of the provision -- what the ordinary person would have understood that provision to mean in its time -- in contrast with living constitutionalism, the idea that these provisions evolve and keep up with changes in the underlying society.
Certainly, in one sense this case marks the triumph of originalism. There were over 70 amicus briefs filed in the case. Almost all of them employed originalist methodology to define what the right protected by the Second Amendment was. The Supreme Court goes on for pages and pages and pages parsing the history of the Second Amendment and what the framers and the American people might have understood the provisions to mean at the time. And even the dissent talks in originalist terms about what the intention of the framers was.
However, I think that the majority opinion by Justice [Antonin] Scalia departs radically from originalism where it really counts and where it really matters. The real question about the Second Amendment is what laws are prohibited and what laws are allowed under that constitutional provision. That's where the Second Amendment rubber hits the road. And on this question the court eschews originalism and focuses on what seems to me like living constitutionalism. The court says, 'Well, we don't mean to call into question longstanding bans on felons in possession of firearms or bans on guns in sensitive places or restrictions relating to the purchase and sale of weapons.' And the court also refers to an earlier opinion that bans on dangerous and unusual weapons are not barred by the Second Amendment. But all of these things are stuff that comes not from the original public meaning of the Second Amendment but from the traditions of American law since then. These kinds of laws are products of later generations, not of the founding generation.
Q: The New York Times wrote that with this decision the court "began writing a new chapter of constitutional law." Do you agree?
Winkler: I do, but I don't.... The idea that the right to bear arms is somehow some new right seems to me totally far-fetched. The New York Times is right, there is a new chapter of constitutional law being written -- a Second Amendment chapter. But, that said, the "right to bear arms" chapter has been written over the last 200 years. Almost every state in the union recognizes an individual right to bear arms for private purposes under their state constitutions.... Many states put these provisions in their original founding constitutions; other states have more recently added them. But it's a very well established constitutional right that individuals have under American constitutional law, broadly defined to include the American constitutional tradition at the state level.
There have been hundreds of cases challenging gun control laws at the state level, and it's always been true, despite what all of the extremists say in the gun debate, that we've had an individual right to bear arms and we've had reasonable gun control regulations. And they've coexisted peacefully with occasional controversies over particular kinds of bans. But the truth is that courts are not going to allow guys with bazookas to wander down Pennsylvania Avenue, and they're also not going to allow government to completely disarm the people. Because that right to bear arms is part of the American tradition. So is it a new chapter? Yeah, there's going to be a lot more cases. There's a Second Amendment chapter. But... you might think of this as just one more story in a larger chapter about the right to bear arms in American constitutional law.
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Dick Heller shows up to register his gun
And is turned down because he wanted to register a semi-auto. Confusing story here. Confusing because the reporter doesn't know the difference between clips and rounds, and it sounds as if DC police, in spoon-feeding the reporter the concept of semiauto, explained that it loaded "from the bottom," which the reporter took as the definition. (DC law defines any handgun that can accept a magazine with 12 or more rounds as a forbidden machine gun, whether you have a magazine of that type or not, and whether it's standard or not. If anyone has ever made mag. that fits your handgun and can hold 12 or more rounds, your handgun is verbotten).
UPDATE: I've heard that Heller will be back to register a revolver tomorrow.
UPDATE Pt. 2: The Heller Sup. Ct. ruling wouldn't cover this, since he had said he wanted to register a .38 revolver. The issue of the semiauto restriction thus wasn't considered by the Supremes. It'd require a new case to test that.
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Guest editorial on Heller
My column is here.
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Bob Levy on the post-Heller world
Here's his article, in Cato Unbound.
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Thought on claims that DC ban had effect on ... anything.
There were a few studies that claimed to find that DC's handgun ban had some dramatic effect on homicide, suicide, jock rash, and whatnot. There have been lengthy debates over the studies' problems (like cherrypicking dates, ignoring that crime was already trending down and, in at least one case, picking the wrong effective date for the ban).
I think there is a simpler response. If this accurately reports when the chief of police said, when the handgun "ban" went into effect in 1976 there were already 41,000 registered handguns in DC.
At what rate will those deplete? A few might break and not be worth repairing, but (1) this is rare (2) I doubt the guns in DC were fired or used much and (3) since you can't register a replacement, you'd certainly repair your present one. I doubt you'd have losses of 100 a year this way. Some owners would die and be unable to transfer. Might lose 1000 a year that way. Thefts don't count, since the guns probably remain in DC. Nor do people moving away, since they're not available to commit crime, either (and not being replaced; DC at the time was rapidly losing total population).
So if we guesstimate depletion of 1,100 handguns a year after the registration stop, we'd have something like:
1976: 41,000
1977: 39,900
1978: 38,800
1979: 37,600
And the studies in question claimed substantial short term (2-4 year) declines. Even if make the gun-controller's ultimate leap of faith -- that fewer legal guns means less crime -- how could one expect to see any measurable, let alone dramatic, reduction over a period of a few years?
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Justice Breyer's dissent misreads DC law?
At Concurring Opinions, Prof. Mike O'Shea has a post demonstrating just that. Breyer's dissent argued that the DC law was a reasonable regulation, since he thought militia purposes were the most important aspect of the 2A, and a person could still own and practice with rifles. But as Prof. O'Shea points out, DC law bans machineguns -- and defines them as any semiauto that can accept a magazine of more than 12 rounds. Effectively, this ban every American militiary rifle made in the last 40-50 years (ever since they retired the M-1 Garand in favor of the M-14).
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Lower court follows pre-Heller law
Gene Volokh has a post on it. The federal trial court notes that " Ostalaza neglects to substantiate that argument with citations to any authority. Instead, Ostalaza points to District of Columbia v. Heller, a case that was pending before the Supreme Court at the time his motion was filed. " Can't see where that makes a difference.
It then cites to collective-right rulings from its Circuit. As Gene points out, the trial court seems to assume that it is bound by its Circuit rulings even though the Supreme Court has gone to the contrary -- the Circuit is its immediate boss, and until the Circuit changes its mind, the Supreme Court's ruling doesn't matter much.
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DC stumbling on dealing with Heller
Story here. I assume the reference to DC having about three weeks to comply reflects that fact that the Supremes haven't issued the mandate yet. An appellate court's opinion is just that, an opinion. Then there's a delay to see if anyone moves for rehearing. After that, the court issues a mandate, which is the actual order to the lower court to take action. I suspect it's going to be a little longer than that, since I think the Court of Appeals has to pass the mandate on to the District Court, and then the District Court must issue the actual injunction ordering DC to take action.
Hat tip to Dan Gifford....
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A few disappointments in Heller
I love the result, but the academic in me sees a few disappointments in the method.
MAJORITY: Scalia begins with a clear statement of his method: "In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”" This suggests original public meaning, with some textualism: the issue is not so much what did the Framers as individuals intend (nor even the First Congress), but rather what did Americans as a whole understand they were ratifying.
Yet he doesn't consider what is probably the strongest evidence of public understanding: Tench Coxe's newpaper articles discussing the Bill of Rights, which were printed in New York, Boston, and Philadelpha, and referred to the right to keep and bear "their private arms."
DISSENT: Justice Stevens vaguely implies his method. Original intent (i.e., the purposes of the Framers themselves): "Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution." Note references to "framers" and "proponents."
His conclusion is that "It [the 2A] was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States."
In order to reach this, the dissent has to ignore Argument I of the Academics' brief (pasted in extended remarks below). Basically, yes, there were Framers who worried about Congress disarming the militias by neglecting to arm them. But what they wanted was something entirely separate from the future 2A, and they lost. The Framers were articulate men. They did not try to say "States can arm militias if Congress fails to do so" by saying "the right of the people to keep and bear arms shall not be infringed." Instead, the concerned Framers came right out and said what they wanted: "each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same."
The reason you don't see that in the Bill of Rights is (1) Madison omitted it and (2) when the proponents pushed it as an addition in the First Senate, they lost it. I'd say that's decisive against the dissent's reading of the Amendment.
Continue reading "A few disappointments in Heller"
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How will ACLU react to Heller? Pt. 2
They can't believe it. Say Uncle has the story. Not to say I'm tired, but I'd blogged their reactions right after the ruling--they denounce the Heller ruling as putting a "strait jacket" on legislatures. This has got to be a first for ACLU, complaining that a constitution right is a strait jacket for the benevolent and wise government! Under the Bushitler Administration, no less.
Oh, well. At least the ACCU doesn't shout that gun rights people are on the side of the criminal. I suppose their taking the side of the Gitmo detainees put that out of the question.
UPDATE: Holy cow, are they taking a pounding in comments on their blog! Over 130 so far, members announcing they are quitting, donors saying they're going to give to pro-gun groups instead.
With regards their Foundation funding, a comment below links to a page where you can click on foundation grants for them. Joyce Foundation is a minor player, but Ford Foundation and Tides Foundation have given millions. I'm on an email list where a law prof. pointed out the national HQ also gets lots of money from the NYC and Los Angeles chapters, which are antigun. So, yes, they do have a financial disincentive to acknowledging the 2A.
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Cross petition for cert. in Parker/Heller denied
Orders here. This was the cross-petition by the Shelly Parker and the others whom the DC Circuit held had no standing to sue, under the Circuit's quite narrow case law (which is applicable to gun cases only; any other challenge is judged with a very broad test of standing). The Circuit held that one plaintiff, Dick Heller, had standing since he had applied for a pistol permit and been turned down.
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How will ACLU react to Heller?
It puts them in quite a dilemma. Their past supposed neutrality on the 2A was premised on their position that Miller settled that it wasn't an individual right, so they didn't have to consider it one. Heller takes care of that nicely. So what are they to do? Some thoughts at Concurring Opinions. (Via Instapundit, who notes that this will bring to a head their tension between being a civil liberties group and being a limosine/left political group). I once heard speculation that there was another factor: major foundation funding that might dry up if they acknowledged the 2A.
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Stevens' dissent: can Congress define the militia?
In an email, J. Norman Heath (THE authority on Federal-State pre-emption of militia statutes) points out an interesting thing. Stevens' dissent takes the view that the entire purpose of the 2A was to allow States to form militias independent of Federal control (he makes this point in reply to Scalia's argument that a right limited to enrolled militia would be meaningly as a check on the national government, since it could define who is in the militia).
Stevens argues in fn. 20:
"The Court assumes -- incorrectly, in my view -- that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. That assumption is not supported by the text of the Militia Clauses of the original constitution, which confer upon Congress the power to "organiz[e], ar[m] and disciplin[e] the Militia, Art I sec. 8, but not the power to say who will be members of a state militia."
Heath's extensive study of early Supreme Court case law indicates that the Court found essentially that when Congress acted with regard to the militia, it pre-empted the field, and States at most had the power to enforce the Federal commands and apply the Federal punishments. He points to the one case specifically addressing militia membership, The Mass.
""Organizing" obviously includes the power of determining who shall compose the body known as the militia. The general principle is, that a militia shall consist of the ablebodied male citizens. But this description is too vague and indefinite to be laid down as a practical rule; it requires a provision of positive law to ascertain the exact age, which shall be deemed neither too young nor too old to come within the description. One body of legislators might think the suitable ages would be from 18 to 45 others from 16 to 30 or 40, others from 20 to 50. Here the power is given to the general government to fix the age precisely, and thereby to put an end to doubt and uncertainty; and the power to determine who shall compose the militia, when executed, equally determines who shall not be embraced in it, because all not selected are necessarily excluded.
The question upon the construction of this provision of the Constitution is, whether this power to determine who shall compose the militia is exclusive. And we are of opinion that it is.
. . . . . . .
The general government having authority to determine who shall and who may not compose the militia, and having so determined, the state government has no legal authority to prescribe a different enrolment."
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Collective right per se dead
Instapundit makes an excellent point: the traditional "collective rights theory," i.e., that the 2A was a right of States to have a militia, could not muster a single vote on the Court. (In fact, DC didn't even argue it). And that "collective right theory" was what all of the lower court cases were based on (not that that stops Stevens from claiming their support).
The position "that's been the mainstay of gun-control groups, newspaper editorialists, and lower federal courts for decades, and one that was presented by those adherents as so obviously correct that those arguing for an individual right were called "frauds" and shills for the NRA" couldn't get a single vote.
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Con law scholars on Heller
William van Alstyne, of William and Mary:
“This case is to the Second Amendment what Roe vs. Wade was to abortion,” he said. “That one didn’t settle all the questions, and some people still don’t like it, but it was a watershed, like this one.”
Van Alstyne said the ruling’s “heat and volume” give the opinion added weight – 150 pages of research and dissections of the amendment’s 27 words, broken down phrase by phrase. The justices explored historical context and took into account how Americans spoke and wrote two centuries ago, when the amendment was ratified.
“Some people might try to dismiss it by saying it doesn’t amount to much, but that’s just wrong. This is serious business – a meaningful opinion that will stand for the indefinite future.”
Glenn Harlan Reynolds Instapundit, U of Tenn.:
"But winning in the Supreme Court is just the beginning of the story. Even the biggest civil-rights victories have taken years to percolate through the lower courts, often in the face of foot-dragging or outright resistance from lower-court judges, states and municipalities.
Brown v. Board of Education declared racial segregation unconstitutional in 1954, but it took a decade or more of slogging to make its promise bear fruit - and even then Congress had to give things a boost by passing the 1964 and 1965 Civil Rights Acts.
By contrast, in the 1990s the Supreme Court decided a series of cases narrowing Congress' powers to regulate all sorts of things under the rubric of "interstate commerce." But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.
Without that pressure, the lower courts were free to ignore the Supreme Court's efforts to cut back on federal meddling - and that's what they did, to the point that some called it a "constitutional revolution where no one showed up."
If the Supreme Court's Heller decision is not to meet the same fate, Second Amendment enthusiasts will have to start bringing, and carefully litigating, follow-up cases so as to ensure that Second Amendment rights don't wind up championed mostly by "ugly" defendants such as drug dealers facing firearms charges.
Is the gun-rights movement mature enough to follow through on this week's victory? We'll find out."
But UCal Dean Ed Chemerinki is not so happy:
"What then explains the court's decision to strike down the D.C. law? Conservative political ideology. The majority followed prevailing conservative political philosophy and found that the 2nd Amendment bestows on individuals a right to have guns.
This should not be surprising. The conservative justices regularly jettison judicial restraint when it is at odds with conservative politics. They've done the same thing in cases involving affirmative action and desegregation programs.
The irony is that the same conservative justices who were so eager Thursday to find an individual liberty under the 2nd Amendment are loath to do so when a right of a criminal defendant is at stake or when it is a matter of enforcing the religion clauses of the 1st Amendment. Thursday's decision is a powerful reminder that the conservative justices are activists when it serves their political agenda."
Hat tip to Dan Gifford...
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Transcript of online chat yesterday
It's online here. Thanks to those who wandered in!
[UPDATE: the key is that the dissenters claim you only have a right to arms if you are in a WELL-REGULATED, with inference by the goverment, militia, which (they don't add) (a) conveniently doesn't exist and (b) certainly wouldn't be created by any jurisdiction that wanted to enact arms restrictions. They don't deal with the question of how much "regulation," recognizing the special meaning of that term, makes a force well-regulated, or whether a court is suited to make that judgment.]
UPDATE: David E. Young posts a comment suggesting reading his books on the 2A. He modestly does not point out that the Court did just that. Scalia cites secondary sources very sparingly, but cites David's book five times, by my casual count. The only other such source that gets in that range is Helen Veit. And Scalia also cites several references to framing period statements that are, to be best of my knowledge, only to be found in David's books. Given the citations in Emerson to his works (what was it, a hundred or so?) David gets the bull's ears and tails in the Second Amendment endgame.
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Heller, women and gays
Ann Althouse suggests that the Heller women's amicus brief may have been abstracted into Scalia's opinion. "The argument about handguns and upper-body strength is explicitly a women's rights argument in at least one brief..." Given the words employed in both, it's convincing to me.
And Gay Patriot suggests that gays decided will benefit from the decision. He argues "I believe this decision is the best ruling for gays in many years..."
Sounds like everyone wins out, except the editorial board of the New York Times. Like its publish, they may already be packing heat. Much the same in California.
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An odd ad hominem attack on Heller
Over at History News Network. If this is the best the critics can do... it's pathetic. It reduces to undocumented assurances that Heller got it al wrong, and that the individual rights postiion can't be right -- why the first almost-recent (1960) article on it was by a non-historian in a law review.
"or a new theory in any field to have integrity, especially in a subject as well-trodden as the Constitution, it must be subjected to the intense scrutiny, before publication, found in any discipline. But this article, like nearly all others in the field of law, was never submitted to peer review by subject matter experts, the gold standard for evaluating the worthiness of new research and ideas in every other field of study."
I'm glad this "peer review" did such a good job with Bellesiles. At least law reviews look up your footnotes to ensure the author isn't blowing suspensions of carbon particulate up their nether regions. I gather that Bellesiles' peers thought that step not necessary to their review.
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Prof. Keller on Heller, Justice Breyer and culture wars
He posts over at The Volokh Conspiracy. Interesting point. In an earlier school voucher case, Breyer considered a potential harm to a constitutional interest (that controversial religions might created funded schools, that the public would demand that measures be taken against them, and that that would lead to entanglement of church and state, even if the voucher system itself did not) sufficient to vote to strike a law. No need for opponents of the law to prove probability here; the presumption is that this will occur, or at least that possibility of this is enough.
In Heller, it's the other way around. Instead of guessing/projecting/speculating in favor of the constitutional interest, Breyer does so in favor of considerations weighing against the interest. He notes that DC's crime rate rose after the ban, but then coincidence does not prove causation, and there is no way to know what the crime rate would be without the ban. That'd sound like a reason to strike the ban: constitutional guarantee, and people proposing a restriction cannot show, one way or the other, that the restriction is beneficial or not. But now he says that call is up to the legislature, its enactment and judgment that things are good is presumed correct unless the party supporting the right can disprove it: "the question here is whether they [the arguments] are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. "
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ACLU's thoughts on Heller
Press release here. Interesting how they treat different rights.
Habeas for Gitmo detainees: a blow to the Bush mad dogs:
"NEW YORK - The Supreme Court ended its 2007 Term by rejecting a centerpiece of the Bush administration's crumbling Guantánamo policy for the third time in four years while recognizing, for the first time in American history, an individual right to bear arms under the Second Amendment."
Heller: a bit of a constitutional straightjacket for our elected leaders:
"he Court was careful to note that the right to bear arms is not absolute and can be subject to reasonable regulation. Yet, by concluding that D.C.'s gun control law was unreasonable and thus invalid, the Court placed a constitutional limit on gun control legislation that had not existed prior to its decision in Heller. It is too early to know how much of a constitutional straitjacket the new rule will create."
Hat tip to reader Jack Anderson...
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Stevens' dissent--egad!
Comment on to previous post points out at p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..."
Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted -- commentators noted this was pretty suggestive the court hadn't bothered to read Miller before citing it. First thing you look for in reading a case is what happened below, and what the Court do to that. Very first thing.
I'd add that at 41 he refers to:
"In 1901 the President revitalized the militia by creating the 'National Guard of the several States,' Perpich 496 U.S. at 341 and nn. 9-10."
Reading that part of Perpich v. Dodd: It says in 1901 President Roosevelt called for reforming the militia. He didn't create the National Guard (where would he have had the authority?)
On the next page Perpich says that Congress in 1903 enacted the Dick Act, which created the "National Guard of the Several States." Footnote 11 of that opinion, referring to creation of the Guard, begins: "The Act of January 21, 1903, 32 Stat. 775, provided in part..." So I guess he didn't read the Perpich case, either, let alone verify the dates and who did what.
And none of the four signing onto this opinion, and none of their clerks, saw these items?
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DC's reaction
Press release here. They propose to declare an amnesty, among other things.
Hat tip to Jack Anderson...
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Thoughts on the Steven dissent
There are two dissents, each joined by the three other Justices in dissent. Stevens' I don't find at all persuasive. He buys the District's argument that "The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia."
Hmmm.... so that means the people of Arizona can provide that we all get postban M-16s, so long as we enroll? None of that $200 tax, either.
Says that that's the Miller holding, and since then "hundreds of judges" have relied on that. "No new evidence has emerged since 1980" to shake it. I guess he doesn't read the dozens of books and scores of law reviews that did just that.
OK, so "right of the people" is also used in the First and Fourth Amendments. Stevens just proclaims it has a different meaning there.
Attributes the 2A to Antifederalist fears that Congress would not arm or organize the militia, and states would be unable to do so. But, as we pointed out in our Amicus for A2A (as Argument I, hard to miss) Antifederalists had proposals *specifically* to provide that states might arm and organize militias if Congress did not (so they were capable of saying just that, rather than using wording about rights to arms), and these were rejected by Madison and the First Senate (so the Framers wanted no part of them).
Notes that the majority cites the four early great legal commentators, complains that one is a bit late (Cooley in the 1880s), claims that an early one (Tucker) in his lecture notes talked a lot about the militia (Nevermind that in his books he clearly ties the 2A to the individual right, and then goes on at length about the only one who (Story) who talked a lot about the militia. Ignores Rawle, who came before Story, and said the 2A guaranteed that Congress could never disarm the people.
In conclusion, he writes that the majority "would have us believe that over 200 years ago,the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons..." Well, uh, yes, they did. And it's a strange criticism from the most liberal of the Justices. Compare, oh, the Court "would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate pornography." Insert, at your option, "abortion," "vulgar language," or whatever.
I thought Scalia was a little hard on the dissent ... but having read this dissent, it's a bit more understandable.
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Skimming Heller decision for key points
30-31: shoots down argument 2A was just meant to allow states to arm militia if feds neglected it. That was addressed by separate state proposals for a BoR, which were rejected by First Congress. "Justice Stevens flatly misreads the historical record.' Yep, this is a Scalia opinion.
48 n. 23. Scalia is no friend to 14th Amendment incorporation, but in this fn., referring to Cruikshank, he noted incorp. isn't presented here, but Cruikshank *also* said first amendment wasn't incorporated, and did not use modern 14th Amendment analysis. He's keeping the door open.
49-50. US v. Miller dealt only with the type of arms that may be possessed: everybody knew the two bank robbers involved were not engaged in a militia exercise. Steven's view is "wrongheaded." Miller flawed, only one side briefed or argued, gov't brief cursory. Cites Miller language that militia were expected to appear with "arms in common use at the time."
53 n. 25. Writes off Lewis v. US. dictum. Wouldn't have hinged major constitutional call in a footnote of dictum where 2A wasn't at issue in case.
54 Limits. Shouldn't read ruling to abolish felon on possession, or carrying in sensitive places like schools and govt buildings, or ordinary restrictions on commerece. Common law allowed restrictions on unusual and deadly weapons. Arms in common use is the key. Fn.26 refers to these as presumptively lawful.
56: "the inherent right of self-defense has been central to the second amendment right."
56: Standard of review: ban on entire class of weapons that are overwhelming the choice for self defense violates any standard of review, hence no need to choose. (Inference: strict scrutiny applies to such a ban).
56 n. 27. Standard of review. Rational basis shd only apply where rationality is part of the constitutional restriction; isn't the case with an enumerated right. Citing Carolene Products. Cites first amendment alongside second.
57: Accepts argument made in women's brief that people without upper body strength need a handgun, and it can be pointed at burglar while one dials 911.
62: lights into Breyer's dissent for proposing simple balancing test. No other enumerated right's core protection is tested this way. The balance was struck by Americans when they adopted the 2A.
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HELLER WIN!
Reading the opinion (150 pgs with dissents) now. Scalia writes. It's 5-4, the majority signing the one opinion, no concurrences or fragmentation. Individual right not linked to militia service. No need to settle standard of review, since a complete ban on a wide class of arms fails all of them. DC ordered to allow Heller to register his handgun and carry it in his home.
Side note that this does not cast doubt upon felon in possession, etc., or bans within narrow sensitive areas such as courts and schools.
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No Heller today, should be tommorrow
Court had seven opinions left, announced four of them today (including no death penalty for child rape, and limiting punitives in Exxon-Valdez under maritime law). Three left for tommorrow: Heller, a campaign finance case, and one on energy contracts. Hope it's a good day for the First and Second Amendments!
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Prof. O'Shea on Heller and Scalia
Over at Concurring Opinions. Perceptive, as always.
Tommorrow we'll know, or maybe not. Seven opinions left. The Court will either announce Heller... or not, and set one more day for opinion release (probably tho not certainly Thursday).
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Trying to read Heller tea leaves
Over at the Volokh Conspiracy they're trying read the tea leaves.
Court's custom is to ensure each Justice gets to write at least one majority opinion from each "sitting," i.e., a month worth of oral arguments. Of the March sitting, coming into today, only Souter and Scalia had not had that privilege, and today Souter got one, leaving only Scalia. Maybe Heller will be his, meaning Heller clearly wins. I'd add that that also means the division of votes was firm from the beginning. Scalia's outspoken style is less likely to draw additional Justices in than is, for example, that of CJ Roberts. If there was a chance to pull an additional vote in from whoever is dissenting or concurring, it seems likely to me that Roberts would have kept the opinion for himself.
Gene Volokh wonders, if Scalia does get the opinion, whether a dissent he filed Thursday might presage a point he'd make -- that he (being a textualist) declines to go with the concept that a right's wording may be disregarded if doing so would serve its purpose. I.e., that purpose cannot overcome wording. I think that may be a bit of a stretch.
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FSA seems to expect defeat in Heller
Now Freedom States Alliance (sponsor of the antigun "Gun Guys" website, and receipient of major Joyce Foundation funding) foresees its defeat in Heller.
"Regardless of how the U.S. Supreme Court rules in the looming case, District of Columbia v. Heller, about whether DC's handgun ban violates the Second Amendment, there is no doubt that effective gun control measures can, and should, be enacted to save lives from gun violence."
Hat tip to reader Josh Berger....
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Brady on Heller outcome
Video here, Quite a series of retreats. Claims that the federal courts are right wingers, hopes that gun laws that don't inhibit self-defense will survive, acknowledgments that the case was carefully planned, etc. Griping about Justice Kennedy's questions? Brady is engaged in a MASSIVE retreat, on the eve of any decision. Perhaps a leak? Perhaps an educated guess? I don't know.
Hat tip to reader Jack Anderson...
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Nothing in Heller today
Court announced six or seven ops this morning, leaving ten to go. Next opinion day is Monday. Court is considered likely to add on an extra opinion day -- ten in one day is more than it likes to issue.
Of cases argued in Feb. two remain, and of March, two, incl. Heller. As often is the case, they save the controversial ones for last (one Feb. case is the punitive damages in Exxon-Valdez oil spill, and for March there's Heller). I suppose with the controversial ones, there's a lot of internal negotiation, additions to opinions to answer the opposing opinions, and stress on getting it nearly perfect.
The Court CAN put over a ruling until its next Term (October) but I think it's a very rare event.
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Chris Cox interviewed re: Heller
Gunvaluesboard has a steps of the Court video interview of Chris Cox of ILA in regards the Heller case.
The Court's next day for announcing decisions is tommorrow, starting at 10 AM EDT. I'll be up early and watching for it, altho I'd agree that the last decision day (Monday unless they add another one) is more likely. This is one every Justice wants to have as nearly perfect as possible, and the drafts of opinions may be moving back and forth, not to mention negotiation: "I'll sign the opinion if you'll take that footnote out, I just don't agree on that point."
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Op-Ed on Parker/Heller
Bob Levy has an Op-Ed in the Washington Times.
Prof. O'Shea on Heller
Over at Concurring Opinions, Prof Mike O'Shea has his take on what to watch for. It's quite detailed, and I can't think of anything unsaid that might be added.
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Brady Campaign--more on Heller
Check out the Brady Campaign Blog. It's a generic discussion of their top dog, Paul Helmke's surrender in Heller.
It sounds a little bit embarassed.
That would be understandable. After all, earlier this year Helmke posted of the "the long-standing view of virtually every Federal court – that the Second Amendment has an obvious militia purpose, and is no barrier to the adoption of gun control laws by legislative bodies..." They've long argued that view. In fact their main webpage still has Helmke saying he's confident they will win. And of course they fundraised off Heller.
And now he's announced they are totally hosed. They're going to lose in the Court, and they've already lost in the minds of Americans, by a 75% vote.
I can't help but wonder -- what Justice is going to want to sign onto an opinion going his way, now? The Court has to be deeply concerned about its reputation. It's got no appropriations power, no police, no miltiary. It depends on respect in a way the other two branches do not. Who would want to sign on to an opinion taking a position, where its chief advocate just publicly confessed that it's a loser, not only in the courts, but in minds of 3/4 of Americans?
UPDATE: I think SCOTUSBlog's statpack reflects, for cases not yet decided, a "best guess" as to who writes the opinion, based on which side they think will win and who, on the likely majority, is about due to be assigned an opinion. The latest is the June 9 edition, and I looked up some June 12 opinions. Two out of three had authors other than the ones listed in the statpack. I think the real assignments are kept as quiet as the opinions, since often, as in this case, if you know the assignment you know the outcome.
Permalink · Parker v. DC ~ · antigun groups · Comments (17)
No opinion in Heller today
Gitmo detainees and four other cases. With 22 cases going in, that leaves 17 to be decided. Next day for opinion releases will be Monday.
But I do like it when the Court goes on a historical bent (and not just because that makes odds of a Heller win higher). Justice Kennedy's opinion for the Court in one of the Gitmo cases is great on this. It traces the history of habeas corpus, and here's a short sample:
"The Government argues, in turn, that Guantanamo is
more closely analogous to Scotland and Hanover, territories
that were not part of England but nonetheless controlled
by the English monarch (in his separate capacities
as King of Scotland and Elector of Hanover). See Cowle, 2
Burr., at 856, 97 Eng. Rep., at 600. Lord Mansfield can be
cited for the proposition that, at the time of the founding,
English courts lacked the “power” to issue the writ to
Scotland and Hanover, territories Lord Mansfield referred
to as “foreign.” Ibid. But what matters for our purposes is
why common-law courts lacked this power. Given the
English Crown’s delicate and complicated relationships
with Scotland and Hanover in the 1700’s, we cannot disregard
the possibility that the common-law courts’ refusal to
issue the writ to these places was motivated not by formal
legal constructs but by what we would think of as prudential
concerns. This appears to have been the case with
regard to other British territories where the writ did not
run. See 2 R. Chambers, A Course of Lectures on English
Law 1767–1773, p. 8 (T. Curley ed. 1986)"
Permalink · Parker v. DC · Comments (0)
Solicitor General resigns
Paul Clement has resigned as SG. The Washington Times suggests that White House opposition to his position in Parker/Heller was a factor, although I'm unsure how much weight to give the suggestion.
Hat tip to reader Jack Anderson...
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What would a narrow, pro-individual right finding in Heller mean?
A question raised by a comment a few days back, too busy just now to find it. Suppose, as I'd expect, the Supremes come down, perhaps narrowly, for an individual right, that there are some limits, but here we only need rule that a total federal ban on handguns is not a permissible limitation.
What does the near-term future world look like, in terms of (1) future litigation and (2) politics and (3) gun control promoting organizations? On the last, would it be a great blow to morale, or just confirm their modern tactics of asking for rather small things (instead of national registration and permit systems, take that bayonet lug off that nasty-looking gun!) I have little idea.
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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.
Permalink · Parker v. DC · Comments (10)
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....
Permalink · Parker v. DC · Comments (10)
Podcast of my take on Heller
It's at Mark Vanderberg's site, gunrights.us.
Permalink · Parker v. DC · Comments (3)
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.
Permalink · Parker v. DC · Comments (15)
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.
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.
Permalink · Parker v. DC · Comments (4)
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.
Permalink · Parker v. DC · Comments (22)
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.
Permalink · Parker v. DC · Comments (122)
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.
Permalink · Parker v. DC · Comments (6)
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."
Permalink · Parker v. DC · Comments (6)
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.
Permalink · Parker v. DC · Comments (1)
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.
Permalink · Parker v. DC · Comments (6)
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 (12)
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.
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Bob Levy article on Parker
In the LA Times, no less.
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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.
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Houston Chronicle on Parker case
Article here.
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Interesting view of Parker v. DC
Over at Concurring Opinions, a former Ass't US Attorney for DC gives her take. She expects cert. to be granted, and adds "I think it's worth acknowledging the primary functions of the law as it's used by prosecutors in DC: the gun ban is both a preventive detention statute and an intelligence-gathering tool." That is, it wasn't employed for its own sake, but (1) it was used to lock up defendants whom they suspected, but could not prove, were violent, and (2) those allowed to plead out were required to agree to be debriefed about their knowledge of crime in the area.
Those seem rather doubtful objectives for a law of this type... but even so, could have been met with almost any other form of law, even permissive CCW licensing. Odds are that persons suspected of ongoing violence already have a criminal record that would disqualify them, or at the very least, wouldn't care for the attention that would follow filing an application.
Hat tip to Rob Allen.
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DC's reply on cert. in Parker
It's here, in pdf. No big surprises. Urges Court to consider only the handgun ban (and not the "functional firearm" ban), argues Miller, etc.
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NRO on DC arguments in Parker
Article here. "Just Stand There While I Die / The D.C. government has that right, and exercises it frequently."
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Brady Campaign tried to abort Parker v. DC
Leibowitz's Canticle has revealed that Brady Campaign admits it tried to talk DC into amending its gun law, in order to moot the Parker appeal. (Scroll down on that page, I can't find a way to link to the specific post).
"Helmke, of the Brady Campaign, said the group suggested to Washington that it rework its gun laws rather than press on with an appeal. A broad Supreme Court ruling on the Second Amendment could jeopardize a variety of laws, including waiting periods for handgun sales and California's machine gun ban, he said."
This bears out what I'd said to some friends a way back -- if you think some of the pro-gun side are worried about the Parker outcome, I'd wager that many of the anti-gun side are absolutely terrified of it! Litigation is always a roll of the dice, the only question is whether you like the odds, and our odds are good. They have far more at risk; right now in court the 2nd amendment is a reality only in DC and in the 5th Circuit (Tex., La, one other state, I think) and about everywhere else for courtroom purposes, the 2nd A. is no protection at all.
They might not even be able to win by winning. A ruling the other way will fire up the gun movement, perhaps resulting in a pro-gun White House, which (given the ages of the Supremes) might mean as many as four new appointments that might eventually rolling things back. From their standpoint, they have everything on the table, bad odds, and a risk of a bad longterm outcome even were they to win.
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Parker plaintiffs file response to petition
It's here, in pdf.
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Glenn Reynolds' take on Parker
It's here, with link to a pdf download. The paper discusses the upcoming Term, with Parker beginning at p. 13. Gist: Supremes vote-counting is an operation in guesswork. Prof. Mark Tushnet thinks there aren't five votes for an individual right (the four liberals will go against, and Kennedy, who comes from a conservative standpoint not sympathetic to individual rights) will join them. But Prof. Larry Tribe (the archtypical liberal) thinks individual rights will win out. He cites some writers who believe (and I quite agree) that this would be THE case of the Term. The number of Americans who feel strongly about this issue probably outnumbers those who feel the same about, oh, Gitmo detainees or other "hot" Supremes issues by a thousand to one, perhaps ten thousand to one.
I don't consider the "liberal wing" as a lost cause, as Tushnet apparently does. The leading lights on the individual rights side are all quite liberal. Akhil Amar, Sanford Levinson, William van Alstyne. Don Kates and Joe Olson got their start as civil rights workers who took up arms to defend against attack. This issue resonates across political lines. Heck, I know a devout Marxist who is a lifer in the NRA, and his explanations make more sense than the conservative ones. I.e., how will the workers defend themselves without arms? Why do most gun control schemes have exceptions for corporations' hired guards?
In Volupate Mors comments, in a comment blocked by the spam filter for some reason:
Your Marxist friend is right. As you know, the NFA contains a provision that allows corporations and trusts to purchase NFA firearms without local law enforcement sign-off; individuals have to be approved by the local CLEO.
As you also know, only the military and law enforcement can presently purchase machine guns that were made after May 1986. Someone is floating a proposal to allow security companies, who conveniently have contracts with state or federal governments, to purchase newly made machine guns.
Finally, Orwell noted that the rifle hanging above the door of a worker's cottage was the last thing standing between freedom and tyranny. He was right.
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Stay of mandate denied in Parker
Chicago Handgun Rights picks up an interesting note on how the DC Circuit just denied the motion to lift the stay of mandate in Parker.
I wouldn't regard it as disappointing: a motion like this is really made to suggest that your opponents are fools, and to keep them off balance. If you win it, that's nice, too.
But the actual ruling is, to my eyes, extraordinary. Normally, a Court of Appeals does NOT want the Supremes to issue certiorari... why risk having your ruling overturned? But in this ruling we have things like:
"To be sure, as our opinion suggested, the Supreme Court may well disagree with Seegars, 396 F.3d 1248 (D.C. Cir. 2005), and conclude that all the plaintiffs have standing."
and
"In any event, the District’s petition for certiorari makes an alternative argument not presented in our court – that the District’s ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection. The Supreme Court, if it should reach that argument – and conclude it was constitutional to ban handguns in the home if long guns were permitted – would necessarily be obliged to consider the impact of Section 7-2507.02, since a disassembly or trigger lock requirement might render a shotgun or rifle virtually useless to face an unexpected threat."
and (fn. 3):
"The District of Columbia Council never contemplated the specific use of a rifle or shotgun in that situation. Had the Council contemplated such, it would, perforce, have had to consider the danger posed by a rifle’s range and a shotgun’s pellet spread, as well as the difficulty one would have handling such long weapons in enclosed spaces – particularly by smaller individuals. Appellees’ brief at 17 did suggest that any gun (including a pre-1976 legal handgun) might be used in self defense in a “true emergency,” otherwise described as “genuine imminent danger.” But the Code does not allow for such, nor did the District ever specify how one would define the circumstances under which one could assemble or unlock a rifle or shotgun to face a “true emergency” (professionals might well be amused at such a hypothetical). The truth is that neither the Code nor the District, in this litigation, ever suggested that a rifle or shotgun, as opposed to a handgun, could be legally employed in self defense."
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Article on Parker in Legal Times
Parker attorney Bob Levy has published a concise article on the case in the Legal Times: here's a pdf of it.
Permalink · Parker v. DC · Comments (1)
Parker will be the national moot court problem
Just got word from Joe Olson that the 2008 Moot Court problem will be the Parker case. Not by name, but by content (in this hypothetical, a NY Senator murders another on the floor, and the legislature responds by banning handguns and requiring long arms to be disassembled. (I have the pdf file, but it's too big to download).
UPDATE: the National Moot Court is run by the New York City Bar Ass'n. If it's still as it was in the days I competed, each law school has internal competition in second year (and chooses their own topics). The school's winners of that become their third year team, and that team briefs and argues on the national topic in regional competitions. The winners of the regionals go on to the national competition.
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SCOTUSBlog on Parker & conserv. vs. liberal splits
ScotusBlog has an interesting insight for Court watchers. The media tends to portray the Court in simple liberal vs. conservative terms, and portrayed the last Term as a conservative "shift." But actually the Court doesn't make decisions as does a legislature: it decides what cases come before it. A typical Term will issue about 80 published decisions. Most of those will be on arcane points of little general interest -- antitrust, details of pension plans, habeas corpus procedure, etc. Only about five will have much in the way of general interest or political overtones. It was pure coincidence, SCOTUSBlog argues, that last Term's 4-5 such cases were ones in which the "conservative" side had the better case.
Next Term, it argues, the situation may be reversed. There are several appeals pending, or likely to be taken, where the "liberal" side has much the better argument. The blog notes that this may mean that in the months leading up to the election, the Court will seem to have "gone left," leaving conservatives able to make hay by arguing judicial appointments need to be moved right.
SCOTUSBlog calls Parker a likely win for DC. I'd strongly disagree, of course -- but remember the poster probably has little to no familiarity with the Second Amendment, and seems to basing that call on reading DC's petition -- which of course argues that the DC Circuit decision was an aberration, out of line with history ("sophisticated collective rights"), etc.. If you base your predictions on reading only the first brief, they're always going to be that the author of that brief wins in a slam-dunk.
UPDATE: As comments point out, the author of the blog entry is the attorney representing DC in the Supreme Court! So it's only natural that he predicts a win. Very few attorneys go into a case expecting to lose. And fewer still would care to put down in writing, posted to the Web, "I've billed my client a zillion hours on a case where I think we're going to lose."
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Latest developments in Parker
I'm back in town, and at the volokh conspiracy, Dave Kopel has a post on developments in Parker. Basically:
The Parker plaintiffs won in the Circuit Court on two grounds. Both the handgun ban, and the ban on having a functional (assembled, not trigger locked) shotgun or rifle in the house, were struck down.
DC asked the Circuit Court to "stay the mandate." When an appellate court issues an opinion, that gives its reasoning. After a period of time (to let the parties file an appeal, or not) it issues a mandate, which is the actual order to the lower court to do things ... strike down the statute, in this case. DC moved for and got a stay order, which held off issuing the mandate until it could file with the Supremes.
BUT DC only appealed the handgun ban to the Supremes.
So the Parker plaintiffs are now asking the Circuit to lift the stay of mandate as to the ban on functional rifles and shotguns. DC hasn't taken that to the Supremes, the time for doing so has run out.
I could see the circuit going either way on the motion. DC will likely argue that if it wins on its first theory in the Supremes (there is no individual right) that the functional gun ban will be constitutional. On the other hand, it didn't appeal that issue, and it is a binding judgment. I don't know if its omission is a tactical move (if they want to argue that the handgun ban is a limited measure, they'd rather not talk about the requirement to deactivate rifles and shotguns, too) or just a slip up by DC. As a tactical move: all the parties are going to be arguing the rifle and shotgun ban anyway, it's not like you can hide it by omitting it. As a slip up: I trust in going before the Supremes people vet their case a bit more carefully than that. I tend to think it's a tactical move, but am unsure.
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Cross-petition filed in Parker
It's in pdf here. Basically, the Parker ruling was that five of six plaintiffs did not have standing to sue since they had not been threatened with prosecution, but that one (who applied for and was denied a handgun permit) did have standing. The Circuit then ruled in favor of that one. This cross-petition seeks to establish that the others (who include Parker) should be allowed to sue, also.
Standing is very wierd here. I just wrote a law rev. article on it. Supreme Court rulings over the last thirty years have made it reasonably clear that if your conduct is inhibited by a law you argue is unconstitutional, that's enough "injury in fact" to have standing to sue. But in the 6th, 9th and DC Circuits, there is a much stricter standard, not for all cases, only for ones challenging firearms laws. Then you don't have "injury in fact" unless you are personally threatened with prosecution, or prosecuted. (Or at least have some other special qualifier: in the 6th, you're an FFL, or in DC, the gun you make is specifically named in an assault weapon ban).
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Author of Parker decision a possible Atty General nominee?
The Washington Post reports that possible nominees for Attorney General include former Solicitor General Theodore Olson, former deputy AG George J. Terwilliger III, and D.C. Circuit Court of Appeals Judge Laurence H. Silberman, who authored Parker v. DC.
It'd be a clear conflict for a judge to rule on a case he'd argued as an advocate, but I wonder if it would be a conflict for an AG to take a position on a case he'd decided as a judge?
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Discussions on Parker and "reasonable regulation"
Over at SCOTUSBlog. A few samples are extended remarks below.
Continue reading "Discussions on Parker and "reasonable regulation""
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New website for Parker v. DC case
Plaintiffs'/Respondents' attorneys have established a new website and blog covering the case, complete with FAQ. So far as I know, it's the first time a Supreme Court appeal has had either a website or a blog. Most appeals are so ... twentieth century, if you know what I mean.
Update: yep, I'd agree that by this point everyone knows everyone else's arguments by heart. Thought I did think DC went a bit overboard by setting out a lot of their merits arguments in the cert. petition, because that gave everyone their new position, in lots of detail, months before any merits briefs would be due. If there are any tactical calls that should be kept quiet, I would be sure they won't appear in the blog!
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Got quoted in Washington Times
I got a brief quote in a Washington Times editorial on the Parker case.
They trimmed down a point that I'd made. I said that I think of us as having four high-probability votes: Thomas and Scalia for sure, Roberts and Alito as high probability. As to the other five -- don't count this as the usual liberal wing vs. conservative wing, divide 4-1-4 with Kennedy the swing vote. The best academics arguing for an individual right -- William van Alstyne, Akhil Amar, Sanford Levinson, etc. -- are all very liberal. Don Kates and Joe Olson are former civil rights workers, who came to the second amendment issue after defending themselves in that role. This is an issue where any of the "liberal wing" could very well side with an individual right -- or heck, they ALL might.
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DC files in Parker
DC has reportedly filed for cert. in Parker.
UPDATE: they did indeed. Here's the petition. Basically sophisticated collective rights (with additional argument that 2nd A. was meant to protect states against the federal government, and DC is not a state but the seat of the federal government, and a handgun ban is reasonable regulation since it's only aimed at one type of gun which is nasty.
[Update: filing an amicus basically involves (1) find a suitable person or group on whose behalf it can be filed. Usually a group. I've never heard of an individual, though that may have been done somewhere and I just never heard of it. (2) Someone to write the brief. (3) Finding an area to write it on, which means coordinating with other amici. Courts *hate* it when you have a bunch of amici who just pick the 2-3-4 most obvious issues, which are probably already covered in the parties' briefs, and write on that. The court winds up reading the same point over and over. (4) Financing. Supreme Court briefs have to be printed. As in a printing press, and preferrably a printer who specializes in that. When last I briefed in the Supreme Court, the cost of a party brief was several thousand bucks. Amicus briefs can be a lot shorter, but prices have probably risen in the 15 years since I picked up that tab.]
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Lengthy debate on Parker
Over at the Federalist Society Online Debate website. Long, but explores the issues in a fair amount of detail. Partipants are Parker attorneys Alan Gura, Bob Levy and Clark Neilly, Glenn Reynolds, Saul Cornell, and Dennis Hennigan and Josh Horowitz of a couple of antigun groups.
Link via the BitchGirls.
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Law.com on Parker
Strangely, it captions it as Heller v. DC. Hat tip to David Codrea, who also noted the strange titling of the case.
[Blogging has been light since I'm out of town, to take a deposition, participate in some meetings, and do some technical research].
Permalink · Parker v. DC · Comments (7)
Parker is off and rolling!
On Monday, DC filed for an extension of time to file for cert., and Plaintiffs shot in an opposition this afternoon. Here both are, online.
DC's motion is quite weak. Basically (1) they took two months to decide whether to file, which now leaves them about a month to go, and it's complex, so give us another month and (2) we've taken on some outside attorneys and they need to get up to speed.
Plaintiffs' response hits hard. A petition for cert. hardly takes the research of a brief on the merits (here it almost writes itself: conflict between 5th and DC Circuits and the other CIrcuits, on a major constitutional issue. Respectfully submitted, (insert your name)).
One bit of news -- among the new attorneys on the DC side is a Walter Dellinger, Ass't Atty General, and for one term Solicitor General, under the Clinton Administration. Fuller bio here.
Continue reading "Parker is off and rolling!"
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2007 Term -- "the Second Amendment Term"?
At Concurring Opinions, the question is will the Court's 2007 Term be the Second Amendment Term?
"If the Court takes the case, then October Term 2007 becomes The Second Amendment Term. Parker would swiftly overshadow, for example, the Court’s important recent cert grant in the Guantanamo cases.
How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal."
He points out that the only way the Court could overturn the DC Circuit ruling would be to become obviously inconsistent in its treatment of the First, and of the Second, Amendments. The First Amendment establishment clause (as Akhil Amar points out) doesn't proclaim a "right," of the people or otherwise, but only that Congress shall make no law -- meaning Congress also couldn't interfere with State establishments of religion, which would continue to exist for decades. So it can be read as a federalism guarantee -- religious establishment will be a state rather than federal question. Nonetheless, the Court has read the establishment clause very broadly as creating an individual right.
In contrast, the Second Amendment does guarantee a "right of the people." It's hard to see how that can be read as something other than a guarantee of a right, and be consistent with establishment clause jurisprudence.
Finally, he suggests that in the popular eye there would be simpler reaction to ruling against Parker: "Wait a minute. I have a fundamental right to obtain an abortion or to engage in sodomy, even tho the Bill of Rights says nothing about either, yet I *don't* have a right that is spelled out in plain English? The Justices are just making it up as they go along, constitutionalizing anything they think should be protected, and abolishing and right they don't think should be protected."
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Vote counting on the Supremes
I'd agree with previous comments:
Thomas and Scalia are clearly in favor of an individual right;
Roberts and Alito are probably (maybe very probably) in favor of it.
The remainder are unknown.
But I'd add -- don't count on the "liberal wing" as all against an individual right. I know LOTS of folks who are liberal, in the civil libertarian sense, who support an individual rights view. Among my friends -- Don Kates and Mark Benenson (former head of Amnesty International's US branch) helped to start the movement toward recognizing an individual right. Professors William van Alstyne, Akhil Amar, and Sanford Levinson are all very liberal. I could easily see one or more of the liberal wing coming over (even if they might give problems later when it got down to what are reasonable regulations of the right).
Conversely, I doubt there is much risk of a conservative wing justice going to the other side. That was a big risk in former years (Warren Burger and Harry Blackmun, appointed by Nixon as conservatives, turned out to be strongly anti-second amendment, consistent with their "law and order" conservative views). But I don't see the present conservative wing as having those tendencies.
Update in light of comments: the Ginsburg dissent came in United States v. Muscarello, 524 U.S. 125 (1998):
"Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.""
Not definitive, but the association of "bear arms" with "carry a firearm on your person" does suggest that she's open to (if not already subscribed to) an individual rights view. One of the collective rights arguments is, after all, that while "keep" may be a person right, "bear" has a military orientation).
Permalink · Parker v. DC · Comments (13)
DC to file for cert in Parker
SCOTUSBlog has the story.
The press release, which I'll paste in extended remarks below, says they will ask for an extension of time to Sept. 5 to file.
That'd make the timetable roughly:
Petition: Sept. 5
Response due 30 days after petition is docketed, roughly Oct. 5.
Court returns to start new Term ... first Monday in October is a holiday, so I don't know if that counts, but either Oct. 9 or 15. It rules on the petition when it gets to it.
If it grants, DC's briefs are due 45 days from the grant -- let's guesstimate late November or early December -- Parker's briefs are due 35 days from that, maybe early January, and DC's reply would be due 35 days after that, say early to mid February.
Hat tip to reader Charlie Oldfield.
UPDATE: Here's the Brady Campaign press release on the filing. I find it rather strange. Nowhere does it say anything like "we applaud D.C.'s filing," or support it, or anything like that. It gripes a lot about the DC Circuit ruling, and says the obvious: a ruling would be the "most significant Second Amendment ruling in our history."
Continue reading "DC to file for cert in Parker"
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DC to decide on Parker appeal
The DC mayor says the city will decide on whether to go to the Supremes within the next week. (That's inevitable: they have until August 8 or so to file, and it can take weeks to get the petition and record printed. Yes, the Supremes require real offset printing).
[update in light of comments: Back 20 years ago, I was told there was a sporting goods store in DC that had an FFL. I doubt you could get one today. A expensive solution might be to buy antique arms, those made before Jan. 1 1899, which are not "firearms" under the Gun Control Act and thus can be sold interstate. Rifles would be easiest to find (Krags, 1893 Mausers, etc.) but at greater expense you could probably get, oh, Colt Single Action Armies, etc..]
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Article on Parker in Harvard Law Bulletin
Not bad, actually. One big error is a reference to " lawyers for the National Rifle Association—who helped steer the legal strategy of the plaintiffs and backed them financially...." Which wasn't the case at all. But then the heights of academia probably feel it necessary that a major legal matter not be brought by a couple of attorneys on their own buck, just as in tales of ancient Greece it is necessary that the invader have at least a million men (even tho it would have been impossible to move, or feed, a fraction of that number).
I like this segment:
"Pro-gun activists like Froman are confident that the Court will hear an appeal by the district in Parker, and they say that they couldn’t have gotten this far without help from an unlikely quarter: liberal law professors. In the past 20 years, several prominent legal scholars known for liberal views, including Professor Laurence Tribe ’66, have come to believe that the Second Amendment supports the individual-rights view. In the 2000 edition of his treatise “American Constitutional Law,” Tribe broke from the 1978 and 1988 editions by endorsing that view. Other liberal professors, including Akhil Reed Amar at Yale Law School and Sanford Levinson at the University of Texas at Austin, agree.
“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.”"
Permalink · Parker v. DC · Comments (1)
Podcast on the Parker case
Here's my podcast on the Parker case, at JPFO's website.
Permalink · Parker v. DC · Comments (2)
SCOTUSBlog on Parker v. DC stay of mandate
It's here. And here's a .pdf of the stay motion, which doesn't say much that isn't obvious.
Permalink · Parker v. DC · Comments (3)
Parker case: stay of mandate
DC petitioned the Circuit to stay the mandate until August 7, deadline for their filing a petition for cert. in the Supreme Court. The Circuit granted the stay (small pdf file). Judge Silberman appends a comment to the effect that DC has only said it "may" file a petition, but that he would view their filing this motion, and then not filing for cert., as an abuse of the system. An interesting comment, quite true, but also has a "bring it on" quality to it.
Note on procedure: when a higher court issues a ruling, that is followed by a mandate. The opinion says who won and why. The mandate is the actual order to the lower court to carry out the higher court's decision. It's delayed a bit, since someone may file for rehearing, etc..