D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread

[publius42]

The only question remaining is whether handguns are "Arms" as defined by the 2A. D.C. will have to try and convince the 9 Justices that handguns are not "Arms."

Heller's lawyers say this on the subject, referencing the decision of the DC Circuit:

The court’s finding that handguns are constitutionally protected arms within the meaning of the Second Amendment was consistent not only with the Fifth Circuit’s individual rights precedent in Emerson, 270 F.3d at 227 n.22, but also with the First Circuit’s collectivist interpretation of the right to arms, which acknowledged that handguns would pass the Miller test. See Cases v. United States, 131 F.2d 916, 922-23 (1st Cir. 1942).

Petitioners cannot establish that handguns fail either prong of the Miller test. Handguns are plainly arms of the type that would be in common use absent (and even despite) their prohibition, such that individuals may be expected to keep them for ordinary, legitimate purposes. And handguns just as plainly have military application. Indeed, as the court of appeals found, handguns were specifically defined as militia arms by the second Congress.

The court said handguns are arms according to the tests established by the Miller case, and the DC side's lawyers apparently haven't contested it on those terms, instead choosing new ones. That's a stretch, and suggests the SC might let that part of the ruling stand.

OTOH, GoSlash is right that they did not have to phrase the question "...who wish to keep handguns and other firearms for private use in their homes" when they could have said handguns OR other firearms.

 

[publius42]

From the NRA and Ron Paul thread,

Fremmer:

We might lose. So that's not irrational at all.

The NRA attempted to help other gun owners in DC. They did nothing to hurt the case. If you disagree, please cite that part of the final order (granting the plaintiffs their requested relief) which shows that the NRA somehow hurt the case. I'd like to see that part of the order. So show it to us.

I never said it was irrational, just that compromising and timid tactics are not the only valid tactics. It's perfectly rational. I await Antipitas' response on the role of the NRA in this matter, and will comment further after he posts on that subject.

cool hand luke:

Considering that the entire issue will now most likely be decided by Justice Kennedy's views, the NRA's fear is well justified.

Don't be too shocked if the Court decides against the "Individual Right" construction of the second amendment. It's even money that the decision will go that way.

The history is on our side, IMO, and while Justice Kennedy has indeed embraced leftist views in many cases, read his opinion in the Lopez case, if you have plenty of spare time. He'll examine the history.

And even if we lose bigtime, it's still a win in two ways:

1. We know where we stand, and can quit bickering over militias and whether the 2A really guarantees the rest of the BoR by preserving an armed citizenry. If the DC opinion is overturned and gun bans are allowed based on some "collective rights" construction, that argument is over.

2. There would be incredible backlash against such a decision, just like there was after the Kelo decision. Kelo was the best thing to ever happen to some property rights groups, and resulted in quite a few positive changes in laws at all levels.

 

[Yellowfin]

2. There would be incredible backlash against such a decision, just like there was after the Kelo decision. Kelo was the best thing to ever happen to some property rights groups, and resulted in quite a few positive changes in laws at all levels.

But what would an effective backlash be? What would change for the positive? What can be done to reverse the anti gun stances of the large cities and leftist states if their stance is validated rather than voided?

 

[publius42]

No telling, Yellowfin. I'd bet the NRA and every other gun group gets a boatload of money, to start out. That's pretty predictable.

What might happen next? Depends how many phone lines and fax machines melt down and how many email inboxes explode. When it became obvious that the Kelo decision had scant support outside of 5 members of the SCOTUS, Congress passed a bill saying that federal money will only go to public use projects which are public use, not for private development of eminent domain projects. Obviously, a bill won't do the trick here, but with enough support, the Constitution can be amended.

Maybe that wouldn't happen, but let's look at another Kelo parallel. The SCOTUS gave the go-ahead to that development, and then what happened next? Did the bulldozers come the next day? No, because the whole thing was politically radioactive. No investor wants to sign on for that kind of political heat. There are other investments.

Similarly, gun control tarred with the Heller brush could become politically radioactive.

I don't know how it might go, but we've seen that gun owners, properly motivated, are a political force to reckon with. My observation has been that large numbers of Americans believe we have a right to own guns, and if the SC upholds a complete gun ban like the one in DC, it won't be just gun activists who are pissed off.

 

[Doggieman]

Reminds me of a "Judge Judy" episode I saw once. Some girl sued her ex boyfriend for something or other and during testimony it was revealed that he had a cache of guns in his place. Judge Judy asked why he had all those guns and he said it was his 2nd Amendment right. She said "Well you know the constitution don't you?"

So even in the eyes of Judge Judy the 2nd amendment applies to individuals.

 

[Al Norris]

In post #2 of this thread, I said:

For several years now, the Law Firm of Gura & Possessky, PLLC have had a website that included a page with all the pleadings, available for download. It was http://www.gurapossessky.com/parker_pleadings.htm. It has been the site from which I and many others have gotten our information on this from. The pleadings included all the filings of both the plaintiffs and defendants, from the original compliant onward. Also included are the details of the NRA's attempt to derail the case by consolidating it with Seegars.

For the benefit of Fremmer and any others who don't believe or aren't aware of this, I will now outline what happened.

In 2003, the NRA sought to consolidate their Seegars case with Parker. The NRA has a long history of not trusting other attorneys who bring 2A cases before the courts that they themselves do not initiate.

Part of the reason, I believe, stems from what I would call the "prosecutorial mindset." That is, a prosecutor will routinely fling as many charges as possible at a defendant, in the hopes that one or more charges will stick, should the case go to court.

So it is with many of the cases that the NRA has brought. They are rife with different issues, in the hopes that one or more of the issues will be adjudicated fairly by the Courts.

So it was with the Seegars case.

In any event, the NRA's lead attorney, Stephan Halbrook, was ordered to try and consolidate the two cases.

On Feb. 10, 2003, suit was filed in the District Court of the District of Columbia Parker, et al v District of Columbia and Anthony Williams (then, Mayor).

On April 4, 2003, the NRA filed its Seegars case. The NRA's case was not a "pure" 2A case. That is, there were several avenues in which a court could use to either uphold or deny the suit (Seegars challenged the same three on 2A grounds, but also challenged the same statutes on the grounds that they violated D.C. Code § 1-303.43 (an actual act of Congress), The Civil Rights Act of 1986, and also on 5th amendment grounds. Seegars also included the U.S.A.G. as a defendant). Whereas, the Parker case had only one question and was a pure 2A case.

At virtually the same time, the NRA filed a motion to consolidate the cases. This first motion was denied as it was filed in the improper Court. Nor was Parker notified of the consolidation motion as required by local judicial rules.

The NRA continued to pursued this and a second motion was also denied. This time based upon an apparent conflict of interest by the NRA council and the appellants in Parker, it too was denied on July 8, 2003.

All the while that the two cases were progressing through the judicial system, the NRA continued to lobby the Congress for a repeal of the disputed statutes... A sound policy, if there is any doubt that your case will not stand on its merits. In fact D.C. Personal Protection Act was suddenly proposed by Sen. Orin Hatch on July 15, 2003.

As it was, not only did Seegars fail (due to standing), it provided the Circuit Court an avenue to slightly enhance the already draconian standings issue that was made precedent in Navegear. This would play in the final resolution of Parker.

On March 9, 2007, the Circuit Court held for the appellants. The NRA at about that time, increased its lobbying efforts to have the laws overturned by Congress (That would have had the effect of mooting the entire case and the Precedent it established) all the while publicly applauding the win (a legislative remedy is the safer short term option).

I can understand the hesitation and apprehension of the NRA prior to the appointments of Roberts and Alito to the Supreme Court. The Rehnquist Court had lost its power to further enhance 10th amendment issues and the liberal side was having a virtual field-day in enhancing federal control (with Scalia playing both sides of the fence). I can even understand being apprehensive afterwards, since they were unknowns (and to some extent, still are).

It wasn't until Robert Levy personally visited with Wayne LaPierre, last June, that the NRA finally came fully onboard with the Parker case, as it was now certain that it would head to the Supreme Court. I strongly suspect that the huge number of members that called for the NRA to cease and desist, also had an affect upon the NRA's decision to back off the legislative angle.

All in all, it does suggest, as Robert Levy has remarked (paraphrasing the NRA) in 2003, "If we can't control the litigation, there will be no litigation."

 

[alan]

At the risk of spreading what might be an unfounded rumor/story, it is my understanding that Robert Levy, who supposedly is "comfortable", funded Parker now Heller v. D.C.

If that is true, and I suppose that there are any number of others, equally wealthy, who could have financially supported this case but didn't, then our side owes Mr. Levy a large vote of thanks.

Should it turn out that I'm simply inadvertently spreading rotten peanut butter, then shame on he/she who originated the story.

 

[gc70]

Per the Washington Post, Levy is a self-made millionaire who went back to law school at 49.

"To take something like this all the way through the Supreme Court, you're talking about several hundred thousand dollars," Levy said. But because Gura is charging a reduced rate, "it hasn't been nearly that much." Levy wouldn't cite a figure but said it was "a considerable sum." Whatever the price, he said, "happily, I'm in a position to pay it."

 

[publius42]

As it was, not only did Seegars fail (due to standing), it provided the Circuit Court an avenue to slightly enhance the already draconian standings issue that was made precedent in Navegear. This would play in the final resolution of Parker.

And in that aspect, the NRA may have accidentally helped out. Their case did make the rules for standing even worse, but also even more in conflict with the rest of the judiciary and with common sense. Those standings rules might just go away.

 

[Al Norris]

Before anybody suggests it, Stephen Halbrook is an exemplary attorney, when it comes to things 2A. See this site for the things he has done. In the case of the NRA and Seegars, he was simply doing what he was being paid to do.

Was the NRA right to try and do what they did, in regards to Parker? History will be the judge of that.

Publius42, The cross-petition is not yet dead. I would hope the SCOTUS does the right thing and grants cert on that issue. It would do us no favor for the Supreme Court to sit on this, while the other Circuit Courts scramble to modify their standings issues to match that of the D.C. Circuit.

 

[mvpel]

Obviously, a bill won't do the trick here, but with enough support, the Constitution can be amended.

What would the amendment say? Maybe something like "the right of the people to keep and bear arms shall not be infringed?"

As I see it, an adverse decision in this case marks the end of the United States of America - the moment that the Constitutional contract among the several states becomes null and void and we revert to our status as independent sovereign entities.

When the Constitution was ratified, each of the states voting upon it took the words in the Federalist Papers and other writings to heart in making their decision, such as Alexander Hamilton in Federalist #28 discussing the original right of self-defense, James Madison in Federalist #46 saying that the Constitution preserves the advantage of being armed, or Samuel Adams saying that the Constitution shall never authorize Congress to prevent the people from bearing their own arms, or Noah Webster's comments in An Examination of the Leading Principles of the Federal Constitution.

These writers, and the people who read their works when considering ratification of the Constitution and Bill of Rights, had a clear understanding of what the Constitution and Bill of Rights meant, and what they protected.

If the Supreme Court changes that understanding now, they'll have committed a grandiose bait and switch fraud against not only the original 13 colonies, but every one of the states that has ratified the Constitution since then. Fish a quarter out of your pocket for an example of such a state.

And a contract founded in fraud is no contract at all - the Federal Government will have committed a material breach, if not a fundamental breach of the Constitutional contract.

There may be talk of secession, but why go through the formality of seceding from an agreement that has been shredded by the other side?

That said, I don't believe that any such thing will happen. Any dissent from an individual rights interpretation of the Second Amendment will be patently intellectually dishonest, obvious even to the semi-literate layman; and will fly in the face of Supreme Court precedent and the meaning intended by the original authors. I wouldn't be shocked to see a 9-0 decision in this case, given the wording of the question.

 

[mvpel]

Before anybody suggests it, Stephen Halbrook is an exemplary attorney, when it comes to things 2A. See this site for the things he has done. In the case of the NRA and Seegars, he was simply doing what he was being paid to do.

You sell Mr. Halbrook short. I'm quite certain he deeply and earnestly believed that what he was doing was nothing short of heroic, preventing the end of the Second Amendment brought about by an adverse Supreme Court decision.

I worked with Don Kilmer out in California, who brought the Nordyke gun show case and had cert denied by the SCOTUS, and heard some second-hand tellings of the opinions of the various Second Amendment attorneys around that case and others. There was a deep, abiding fear that bringing the wrong kind of case in the wrong way would be disastrous for individual gun rights.

 

[enstorm]

Here's my 2 cents on the case. If it's all somewhere else on some website, I apologize.

I think the supreme court decision will not be quite as broad as some people may think. And, if the supreme court upholds an individual right to keep and bear arms, the court will also emphasize that the right is subject to federal regulation. So, the battle will really only be starting, not ending.

The DC court of appeals decision is relatively short and pretty concisely defines the theoretical battle lines between the camps; it gives an accounting of the scarce US Supreme Court decisional law on the 2a (maybe the most notable being the '30's decision stating that sawed-off shotguns are not protected 2a "arms", a position the court will certainly not back off from, so, no nukes, nerve agents, machine guns, mortars or tanks in the garage, folks); it has at least a fundamental discussion of the historical interplay between the federal government and state militias, which is important to 2a interpretation (ie, "arms" are what individuals were required to bring to militia bar-b-ques, and never included artillery pieces and other weapons that the feds were to supply to the state militias); and it touches on the historical, individual, non-militia use of firearms in the US (hunting, for example).

The case is somewhat restricted in some ways. As I see it, at most the supreme court would decide (1) whether the federal government may completely deprive private individuals of the right to keep handguns at home for non-militia personal self-defense purposes; and, (2) how the federal government may permissibly regulate the right of individuals to keep handguns at home for the non-militia purpose of personal self-defense. What is not at issue is whether individuals have a right to use firearms outside the home for recreational or other non-militia uses; whether individuals have the right to carry concealed; the extent to which states -- as opposed to the feds -- can regulate arms protected by the 2a; etc.

Assuming the supreme court does not dodge the constitutional issues by just dumping the case on procedural grounds, it will for the first time review open 2a questions. What is the "State?" -- The individual states, or the single union of multiple states? Who are "the People?" -- Militiamen performing a civic function, or individuals looking out for their personal self-interest? What do "keep" and "bear" mean?

On each of these questions, the DC appellate decision is an overwhelming philosophical victory for individual-rights advocates. I think that the supreme court should and probably will affirm it in principal. If it does, I also think the supreme court will send the case back down to the trial court for some further action. Namely, are the specific weapons that the plaintiffs want to keep 2a protected "arms?" Are the accessibility restrictions reasonable?

Remember, just as indisputably fundamental personal liberties like freedom of speech can be regulated, so can 2a protected "arms." The nuts and bolts questions about the extent of permissible regulation are the ones that will be of real practical, and much greater, meaning to gun owners, than just finally resolving the philosphical debate that's before the supreme court now. Bore, bullet weight, powder charge, ballistic performance, number of arms kept at home, etc etc etc will all be subject to "permissible" regulation, regardless of the outcome of the current case. And, once the upcoming decision finally tells the regulators what the basic rules of the game are, you may well see more, not less, restrictions on gun ownership and use.

 

[publius42]

maybe the most notable being the '30's decision stating that sawed-off shotguns are not protected 2a "arms"

Not quite. The Miller decision did not say whether sawed off shotguns were or were not militia weapons, just that no evidence of it had been presented to them.

ie, "arms" are what individuals were required to bring to militia bar-b-ques, and never included artillery pieces and other weapons that the feds were to supply to the state militias

The battles at Lexington and Concord were about the privately owned cannons hidden on a private farm by the patriots.

The New Boston Artillery Company also had (privately owned) cannon.

But it wasn't just a few cannon which were privately owned. Here you can find a couple of letters of marque by which President James Madison hired a couple of private warships into US govt service.

What is not at issue is whether individuals have a right to use firearms outside the home for recreational or other non-militia uses; whether individuals have the right to carry concealed; the extent to which states -- as opposed to the feds -- can regulate arms protected by the 2a; etc.

A few of our most gungrabbing states have filed amicus briefs in the case, apparently afraid their own laws may be jeopardized. They may be right. If the SC finds in Heller that the 2a protects a fundamental individual right, they might incorporate that right under the 14th amendment, and then state and local gun laws could be challenged as violations.

 

[Al Norris]

If the SC finds in Heller that the 2a protects a fundamental individual right, they might incorporate that right under the 14th amendment, and then state and local gun laws could be challenged as violations.

Should the Court find the right to a fundamental right, these laws will be challenged. Period. These will be the types of cases that will get the 2A incorporated under the 14th.

I don't believe the Court will do that with Heller. However, it would be inevitable and the Court may very well do this at the start. In which case, I would be (very happily) wrong.

 

[mvpel]

Remember, just as indisputably fundamental personal liberties like freedom of speech can be regulated, so can 2a protected "arms."

The First Amendment does not, nor does any of its equivalents throughout the states, have wording along the lines of "shall not be infringed."

This prohibits any restriction at all on the right to keep and bear arms imposed against any individual without due process in a court of law, as in "no one may be deprived of ... liberty ... without due process of law."

Any restrictions would have to, as I see it, fall into the category of protecting the rights of others, such as "no discharge of artillery within city limits without justification," "detonation of any nuclear ordnance must take place at least 100 miles from populated areas, and owner assumes strict liability for fallout," etc.

It's absolutely right that this case is just the first domino in the long row of cases that will have to be filed in order to fully restore our freedom. But it's a very big, heavy domino.

 

[BillCA]

The First Amendment does not, nor does any of its equivalents throughout the states, have wording along the lines of "shall not be infringed."

Main Entry: in·fringe Pronunciation: \in-ˈfrinj\
Function: verb
Etymology: Medieval Latin infringere, from Latin, to break, crush, from in- + frangere to break — more at break
Date: 1513

transitive verb
1: to encroach upon in a way that violates law or the rights of another <infringe a patent>
2: obsolete : defeat, frustrate
intransitive verb

The original intent(tm) was for citizens to have the ability to purchase and possess arms that would be suitable
- First & foremost for war against an invader to our country
- To defend themselves and communities from tyrannical local rule.
- To suppress the power of the Federal gov't should it run amok
- To counter civil disorders such as riots and insurrections

To prevent the new Congress from abolishing or diminishing the right, it was declared that the right should not be defeated or frustrated by laws.

Any restrictions would have to, as I see it, fall into the category of protecting the rights of others, such as "no discharge of artillery within city limits without justification," "detonation of any nuclear ordnance must take place at least 100 miles from populated areas, and owner assumes strict liability for fallout," etc.

Any restrictions would, I think, need to be activity based. That is, prohibitions of types of activities with firearms would be legal, but only if they are specific to dangerous conduct. Just like shouting "fire!" in a theatre is dangerous conduct, so too might be unsafely carrying or discharging your firearm.

We might see "arms" divided into categories, such as "small arms" which fire a solid projectiles and "artillery" that fires "active munitions" (exploding shells). The former are common arms while the later may be subjected to special restrictions (i.e. bunker requirements for shells or security for the weapons) in the interests of public safety.

I don't think the right would be considered "absolute" when it came to WMD's and explosive devices like grenades or land mines.

 

[mvpel]

I don't think the right would be considered "absolute" when it came to WMD's and explosive devices like grenades or land mines.

If the government, which derives its just powers from the people who formed that government, namely us, has the "right" to own grenades or land mines, then how can it be that the people who created that government don't have that right? Do two people have more rights than one person?

That said, though, it's not illegal to own grenades or land mines, you just need a Class III license and pay the $200 tax. For something like a grenade, though, that'd be an even quicker way to turn money into noise than a machine gun.

 

[publius42]

If the government, which derives its just powers from the people who formed that government, namely us, has the "right" to own grenades or land mines, then how can it be that the people who created that government don't have that right?

If we have a right/power, we can delegate it to the govt.

 

[mvpel]

Can we delegate the right to peaceably assemble and petition the government for redress of grievances to the government?

We delegate powers, we don't delegate rights. The purpose of government is to protect our rights, not to exercise them on our behalf while prohibiting us from doing so.