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

[BillCA]

Something popped out at me at one point while reading lower (appellate court) arguments in a couple of other cases.

Often times a statement is made in a brief that seems all-too-innocious, such as D.C. here claiming a legislative finding that handguns have no legitimate purpose in the totally urban D.C. but it doesn't stop people from exercising their right to own long guns. In a number of cases, courts have asked some embarrassingly simple, yet fundamental, questions about government decisions. In the D.C. case they say residents can keep long guns for legitimate recreational purposes... expect at least one justice to ask where in D.C. a resident can engage in sport or target shooting. Or to take the opposite tack and ask D.C. counsel Why stop at handguns? If the ban worked, wouldn't criminals then turn to (sawed off) long guns instead? What justification was there to allow long guns? And sometimes the explanation reveals the flaws in their own logic.

publius42 - what I find amusing (and I hope at least one of the justices points this out) is that the constitution was written by men who were highly educated (even by our standards today). But if you read the constitution, it is almost unquestionably written so that any person who can read may understand the meaning of the document. Yet lawyers and others will attempt to parse out several different and distinct meanings of words like "The People" or "right" to torture and twist the grammatical simplicity with which the document is written.

Torturing "themselves" in the PA constitution as meaning "villiagers" or a collection of people but not individuals could be argued, but makes as much sense as saying the right of the people peaceably to assemble only means groups of people, not individuals. (huh?)

 

[Wildalaska]

Yet lawyers and others will attempt to parse out several different and distinct meanings of words like "The People" or "right" to torture and twist the grammatical simplicity with which the document is written.

Thats funny since 26 (?) of the signers were lawyers, including Jefferson. Maybe the grammatical simplicity is more complicated than folks think.

WildfwiwAlaska ™

 

[Musketeer]

Maybe the grammatical simplicity is more complicated than folks think.

and maybe not. How long was it before the first case came to the SCOTUS where the grammar and words used in the COTUS were in debate? How long did it take to forget what the words which were written meant?

 

[hammer4nc]

I view the ATF/DOJ amicus brief as the early implementation of the Democrat regime in the executive branch. Atty. Gen. Mukasey; installed by Chuck Schumer. Acting ATF Director Sullivan; installed by Kennedy/Kerry.

President Bush, being more concerned about legacy building in the final months of his term, and not wanting to engage in a brutal nomination process for these posts; acceding to these obviously anti-gun puppets, in exchange for some reprieve from daily negative headlines during his victory lap of the world tour.

Predictable output. Sad.

 

[Wildalaska]

How long was it before the first case came to the SCOTUS where the grammar and words used in the COTUS were in debate? How long did it take to forget what the words which were written meant?

1806 IIRC

WildafewshortyearsAlaska ™

 

[Al Norris]

Some further thoughts on the the amici briefs, in general and the DOJ brief in particular.

As I read these, I wondered at the level(s) of thought. I've come to the conclusion that, for the most part, when you start with a false premise, it is harder to maintain a scholarly and intelligent response than if you start from the actual facts themselves. Hence many of the "emotional" responses by some of the amici.

I also find the response from the gun community over the Solicitor General's amicus brief to be rather funny.

I have mentioned, in the course of this case, that should the Court find for Heller, and should the Court uphold the Circuits decision, then strict scrutiny will apply to all gun related laws. Incorporation against the States is on the near horizon, should that be the ruling.

Some, in the gun community, are in a tizzy-fit over the DOJ filing. I have found that amusing. Consider, many have seen the direct correlation between the D.C. handgun ban and 922(o) title 18 U.S.C. (the 1986 machine gun ban). If one falls, so must the other, at some point.

A few years ago, when Ashcroft was the AG, the DOJ produced a statement paper that reversed the position of the DOJ on 2A rights. The howling of the gun-banners was furious. Now the DOJ, through the Solicitor General, files a brief that sides with D.C.'s position and the gunnies are howling "betrayal!" It is my understanding that one of the SG's duties is to protect the laws, as passed by the legislature. So I have to ask, how could he have done anything else? Why the surprise?

In the DOJ brief, the SG mentions machine guns at least 11 times. If we, as a RKBA community, can see the correlation, why is it surprising that the SG has also seen the same?

Of all the briefs filed for the petitioner, it is the DOJ brief that has come out and said (via implication), "this is our power and we will not give it up without a fight." I should think this is a standard answer from any government. No government will glady give up power and authority, once obtained.

The DOJ brief is in realty not a brief for the petitioners. It outright says that the Circuits decision is the correct decision and that D.C. is wrong. The DOJ brief actually comes out in favor of Heller.

However, their brief is aimed primarily on future lawsuits against current gun regulations (primarily 922(o) and the NFA). This impression is further aided by who joins this brief: The Secretary of the BATFE. As the brief reminds the Court (on the very first page), the federal government has an entire Bureau whose job it is to regulate firearms. Hence, the SG wants the case remanded to draw the line even more narrowly than it has.

Politics, not logic (may) rule in this situation. That is why, of all the briefs, the DOJ brief is the most credible, the most persuasive and the most dangerous to the outcome of this case.

Those of you reading this, that are not involved in the "gun rights movement," may disagree with the analysis I provided. That's understandable. Your perspective would necessarily differ from mine, hence you would read a different nuance to the amici briefs.

 

[blhseawa]

Antipitas Is Correct

To Antipitas,

You are absolutely right on the money!

Couple of follow-up points.

1) The DOJ brief was neither for DC or Heller, it was not offered as support for either side. Because of that, it must by court rules, be filed when it was.

2) The DOJ is Congress's voice to the court for any law congress has passed.

Thus as you have pointed out, the DOJ doesn't care either way what happens to DC's laws. It's sole concern is the ramification to 922 (o) and NFA of 1934.

Needless to say, the BATFE would be concerned about it's future as well.

If the Supreme Court up holds the natural right (individual) meaning, which is the only English language interpretation from both syntax, semantics, and linguistics perspectives, than all federal law regarding "arms" bans may fall.

3) The way NFA and the BATFE define a machine gun is not the same as the true military definition. From a government perspective, a weapon that fires more than one shot per trigger pull and release is an automatic weapon and any automatic weapon is a machine gun. As I said, this is not the case. A machine gun from a military perspective is a weapon that was designed for sustained automatic fire, be it either a belt or magazine which is mounted to be deployed. This mounting, can be a mobile or fixed mounting system. Because of the sustained fire requirement these weapons are usually very heavy and generally require a crew to support them. Thus there is concern that the M1917, M14, M16 and M4 would no longer be banned from civilian ownership. The squad auto is considered in military circles to be a "service rifle" rather than a machine gun. And this ignores the whole sub machine gun discussion.

So I too, was not surprised by the DOJ brief.

 

[hammer4nc]

Obviously, you've done more analysis on this than the rest of us.

The DOJ brief is in realty not a brief for the petitioners. It outright says that the Circuits decision is the correct decision and that D.C. is wrong. The DOJ brief actually comes out in favor of Heller.

So, why was it filed on behalf of DC?

Politics, not logic (may) rule in this situation. That is why, of all the briefs, the DOJ brief is the most credible, the most persuasive and the most dangerous to the outcome of this case.

If you think it is in favor of Heller, why is the DOJ brief most dangerous to the outcome?

Further, in light of your analysis, why are you so amusedly dismissive of those in the gun community who might object to the DOJ brief?

A few years ago, when Ashcroft was the AG, the DOJ produced a statement paper that reversed the position of the DOJ on 2A rights. The howling of the gun-banners was furious. Now the DOJ, through the Solicitor General, files a brief that sides with D.C.'s position and the gunnies are howling "betrayal!" It is my understanding that one of the SG's duties is to protect the laws, as passed by the legislature. So I have to ask, how could he have done anything else? Why the surprise?

It might be argued that solicitor general Olsen's brief arguing that the 2a was an individual, not collective, right; was supportive of RKBA. Gun banners howled that it undercut established law. We cheered.

We're surprised, dismayed now because the current brief appears to reverse field, and undercuts RKBA. We never thought the DOJ's duty to "protect the law" overrode the constitutional issues inherent in the law. So, they're now arguing a collective view, just to play devil's advocate?

Next you'll be saying that the DOJ brief is doubleplusungood? I'm confused.

 

[publius42]

It is my understanding that one of the SG's duties is to protect the laws, as passed by the legislature.

Defending laws, like passing or repealing them, is a political job that should be done by the political branch. Enforcing them is a job for the executive.

2) The DOJ is Congress's voice to the court for any law congress has passed.

It's an executive department, and Congress has their own lawyers.

 

[RDak]

Yes Anti, but doesn't the DOJ want the case remanded to the District Court, who ruled for DC, and decided handgun bans were ok? They apparently want to give the District Court another bite from the apple IMHO.

That appears to be the beef with us pro-gunners.

I mean, DOJ says the 2nd Amendment is an individual right but it might be ok to ban handguns if the government believes so. So, in essence, the DOJ stating the 2nd Amendment is an individual right is a hollow statement IMHO.

Stating the government should always have the ability to prohibit the ownership of handguns is tantamount to not believing the 2nd Amendment is an individual right. You can only go so far with your machine gun analogy and I think you're going too far. It's a judgment call either way, I realize that.

Banning handguns is getting to the heart of the 2nd Amendment "reality" wise IMHO. Handguns are the premier self-defense weapon for ordinary law abiding citizens. The line has to be drawn in the sand somewhere and the DOJ drew it with possible deference towards the anti-gun philosophy IMHO.

 

[Al Norris]

So, why was it filed on behalf of DC?

Short answer: It wasn't

Long Answer: By the rules of the Supreme Court, should the Government (via the SG) decide to file an informational brief, it must do so at the same time as those who file supporting briefs for the petitioner.

Rule 37(3)(a):...or if in support of neither party, within 7 days after the time allowed for filing the petitioner’s or appellant’s brief.

If you think it is in favor of Heller, why is the DOJ brief most dangerous to the outcome?

Because the SG is essentially asking the Court to rule the right is individual but that rational basis review be applied. This renders the right individual, but susceptable to any law (moot).

We never thought the DOJ's duty to "protect the law" overrode the constitutional issues inherent in the law.

Then you and many others haven't done your homework. You thought wrong. Sorry to sound arrogant, but this was something we all should have learned from Emerson.

Next you'll be saying that the DOJ brief is doubleplusungood? I'm confused.

Nope. Doubleplusbad! Hopefully, I can un-confuse you as this progresses.

Defending laws, like passing or repealing them, is a political job that should be done by the political branch. Enforcing them is a job for the executive.

Defending a law in Court, is exactly the job of the executive. That's the difference.

2) The DOJ is Congress's voice to the court for any law congress has passed.

It's an executive department, and Congress has their own lawyers.

The Solicitor General supervises and conducts federal litigation in the United States Supreme Court for the Government (read, executive). The SG is also an advisor to the Court. It is pricesly this capacity that makes what the SG says, so dangerous.

Yes Anti, but doesn't the DOJ want the case remanded to the District Court, who ruled for DC, and decided handgun bans were ok? They apparently want to give the District Court another bite from the apple IMHO.

BINGO! With the added provisio that rational basis be used as the level of scrutiny.

Look, the DOJ is deathly afraid that the Court will rule that the right is not only an individual right, but that it is also a fundamental right. Fundamental rights require the Courts to use the highest level of scrutiny. What is termed, "strict scrutiny."

Strict Scrutiny is usually applied to 1st amendment cases. But it has been applied to 4A and 5A cases. It is usually the process of equal protection stemming from the 14th amendment.

Not every governmental regulation implicating First Amendment or other fundamental rights is subject to strict judicial scrutiny. On the contrary, "t is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied." "When the regulation merely has an incidental effect on the exercise of protected rights," the First Amendment is not implicated and the regulation need only be reasonable.

In order to satisfy strict scrutiny, a law must be neither vague nor substantially over or underinclusive. It must further an overriding state interest yet be drawn with narrow specificity to avoid any unnecessary intrusion on the right in question.

The above is from Lectric Law Library. Includes the citations I ommitted.

Under Strict Judicial Scrutiny, few laws can stand. This is why the DOJ brief mentions "machine guns" so many times. The Government is even afraid that the NFA may eventually fall.

I think I've answered your questions. If I am wrong, there will undoubtedly be a real attorney along shortly, and will clarify where and why.

 

[Wildalaska]

If I am wrong,

You are not.

You are right.

And after the predictable screeching and gnashing of teeth subsides, I'll comment again

WildthereisasliverliningAlaska TM

 

[publius42]

Defending a law in Court, is exactly the job of the executive.

But they're not defending a law so much as suggesting an interpretation, and interpreting is the job of the Court.

Besides, wouldn't defending a law mean supporting any rulings made by a Court? They are saying the District Court interpreted the law incorrectly.

 

[RDak]

Anti : I have a little problem with your conclusion that the DOJ favored Heller.

Giving the District Court another chance to justify their original decision is siding with the plaintiff (i.e., DC) IMHO.

You are right though when you state the DOJ says they feel the District Court went too far. That's a VERY good thing for us pro-gunners.

However, I think the DOJ was honest enough to conclude that giving the District Court another bite from the apple realistically favors DC more than it does Heller. Just my opinion.

I mean, the District Court already had their chance to apply the level of scrutiny it thought appropriate. That Court felt there was no individual right IIRC. So it never got to a scrutiny decision IIRC?

With that type of "feeling" towards the 2nd Amendment, we need another Court to decide who hasn't already played their hand so to speak. The outcome would be too obvious and unfair to pro-gun arguments to allow the District Court another bite from the apple when they don't even feel the 2nd Amendment affords an individual right IMHO.

To remand the case back appears to be counterproductive and arguably a delay tactic. Let SCOTUS frame the scrutiny requirements, etc., that's what we need IMHO. We don't need the case remanded to a court who has already given their "gut level" opinion. That's my "beef" with the DOJ brief.

One thing I will say though, that might pi** off other pro-gunners, is I appreciate the honesty of the DOJ by stating their brief was more supportive of DC than Heller. They didn't try to hide the fact that giving the District Court another chance to decide in favor of DC was somehow more supportive of Heller.

I think that's why the DOJ submitted their brief on DC's "side of the ledger" IMHO. They could have waited and filed their brief on the other side. But they didn't because the DOJ realized remanding the case to the District Court gives the anti-gun decision another chance for approval by the Fed. Circuit/SCOTUS (i.e., a greater chance than they have now IMHO).

It's giving the District Court this "second chance", to justify their prohibition of handguns decision, that puts it into the anti-gun camp. It was honest of the DOJ to say their brief was more on DC's side IMHO.

Honesty is all I ask from anti-gunners. I understand the DOJ's concerns even though I wish those concerns didn't really exist. I also don't like the DOJ attempting to keep this issue from being decided by SCOTUS. We need a SCOTUS decision. It's been too long in coming.

Anti: It's TIME for SCOTUS to decide the level of scrutiny that must be applied to 2nd Amendment issues. I do understand what you are saying about levels of scrutiny. I want SCOTUS to FINALLY define that level. It's about time Anti, it's about TIME! We also need them to address the militia vs. individual rights arguments.

 

[RDak]

Wild: I think most of us know that SCOTUS will probably allow for reasonable regulation. We need SCOTUS to set the standard. It's been too long for SCOTUS to avoid answering the militia vs. individual rights argument and to set a level of scrutiny standard.

Hopefully SCOTUS will rule against the militia argument so we can get to a scrutiny standard decision?

Obviously, I want a fundamental individual rights decision, coupled with strict scrutiny, but we NEED A RULING FROM SCOTUS for Godsakes.

It's about TIME Wild, it's about TIME!

 

[Al Norris]

The DOJ favors Heller simply because the DOJ doesn't care if the D.C. Code is sustained or stricken. They have even made the case for striking the codes. That's to Heller's advantage. What the DOJ is concerned with, is future litigation that may or may not affect a number of Federal laws. Therefore, should the Supreme Court strike the codes, the DOJ wants it done in such a manner that leaves intact the rest of the Federal laws.

The DOJ is doing the next best thing: Asking for a remand with instructions as to what level of scrutiny should be applied. They are suggesting mere "reasonableness," AKA rational basis, and are hoping for nothing more strict than Intermediate Scrutiny.

They, like the NRA, do not want this case before the SCOTUS. Bringing a 2A case before the SCOTUS has "DANGER, Will Robinson!" written all over it. The NRA has always known this. So too, does the DOJ.

So let's take the scenario a step further: The Supreme Court remands the case back to the District Court with instructions that the 2A recognizes an individual right and directs the Court to issue a decision consistent with the above.

This takes the ball off of the Supreme's court and throws it back to the District Court. It also makes the incorporation issue moot. It makes it much harder to get any other such issue back to the Supreme Court. It strikes down the decision by the Circuit Court, but the ruling by the Supreme Court is entirely consistent with the decision of the Circuit... Only it doesn't affect the rest of the Federal Government or its laws.

The District Court may very well take the hint and overturn the 3 D.C. Codes in contention. At that point, not even the City of D.C. will appeal to the Circuit. They are smart enough to get the point that they just had their butts handed to them: Don't Rock The Boat!

This would be a rational decision on the part of the SCOTUS. It saves the entire issue for another day and for another Court (they would be hoping).

Heller (and Parker, et al) gets what he wants. The DOJ gets what they want. There would be no Federal precedent from the Circuit. The SCOTUS neatly maneuvers to, once again, avoid the issue. Everybody goes back to the status quo. Neat. Tidy. And thoroughly political.

Before we actually envision things this way, shall we wait for the merits brief by Gura & Co? It may or may not change things.

 

[gvf]

The SCOTUS neatly maneuvers to, once again, avoid the issue

Why take the case to begin with to avoid the issue. Makes no sense. If that's the objective, much easier to decline the case to start with.

 

[PT111]

I am making the following predictions:

1. They rule that DC is covered by 2A even if it is not a state.

2. The word reasonable will be used at least 45 times in the ruling and opinions

3. Less than 4% of people will be happy with the ruling no matter what it is but 90% of a news media people will claim they are happy with it.

4. At least 9,000 articles will be written in the following month explaining what the ruling means

5. They will not rule that a individual citizen has the right to walk down the street with any type of arms they wish, unhindered.

6. They will rule that a citizen has a right to reasonable defense with a gun

7. It will not affect the legality of automatic weapons

8. The right to own a gun is an individual right but with "reasonable" limitations.

9. Both the NRA and Brady Bunch will claim victory publicly but will immediately begin to prepare for the next round.

10. They will not rule what is meant by reasonable.

In other words I think they will strike down a lot of DC's unreasonable restrictions but leave it open for the individual states to impose some restrictions. Whether the restrictions are "reasonable" is up to the individual to determine.

 

[ref441]

Late Betrayal on Gun Rights

http://www.townhall.com/columnists/K..._on_gun_rights

Late Betrayal on Gun Rights
By Ken Blackwell
Thursday, January 17, 2008

Et tu, Brute? In the waning days of the Bush Administration, Justice Department lawyers have filed a curious amicus brief in the DC gun ban case before the US Supreme Court. The attorneys took a middle-of-the-road approach to Second Amendment freedoms. They argued that gun ownership is not a “fundamental” right. Instead, they say, it is a right deserving only an “intermediate” level of protection.

The brief is a disappointing about face for a Justice Department once lauded for its ardent defense of Second Amendment rights.

Attorney General Michael Mukasey owes gun owners an explanation for this late betrayal.

In a recent Townhall.com column, former National Rifle Association president Sandy Froman protested the Justice Department’s misguided action. She correctly explains the government’s position includes only halfhearted support for the Second Amendment. If the Supreme Court were to adopt the Department’s position, it would imperil our civil right to keep and bear arms.

It appears that the Justice Department is trying to say this is a right that should be protected, but the level of protection should be low enough to allow government to broadly restrict or maybe even eliminate your ability to exercise that right. They try to split the baby of having a right but letting government do almost whatever it wants to that right.

The problem with splitting a baby in half is that the baby usually dies. If our rights can be regulated to the point that we can’t exercise them in our own homes, then they’ve been regulated out of existence.

So much for civil rights.

The Left refers to racial equality and voting as “civil rights.” But, civil rights are broader than that. Our civil rights are all the rights guaranteed by the Constitution. The Declaration of Independence tells us that government exists to protect our God-given rights, and the Constitution created our court system where those rights are vindicated.

There are three civil rights for which any attempted regulation should be looked at with great suspicion. They are religious liberty, political free speech, and the right to keep and bear arms.

Our country was founded by pilgrims seeking the religious freedom to worship according to the dictates of their own conscience, free from government dictates. The highest promise of free speech is that we may openly discuss the public issues of the day free of censorship or threat, so that we can hold our elected leaders accountable and replace those whom we learn have failed to keep our trust.

And the right to keep and bear arms was put there so that we could defend ourselves and our loved ones, provide for ourselves, and have a last resort to defend freedom.

Laws curtailing any of those three rights should be looked at with the most skeptical and doubting eye, and we ought not to allow such laws to go further than necessary to achieve extremely important objectives. For example, as important as free speech is, it’s clear why the government must be able to stop television reporters from showing maps of troop locations and movements in overseas operations. Narrow rules are allowed where such life-and-death matters are at stake.

But our civil rights can only be regulated in that minimal fashion, and only when absolutely essential. We never sacrifice our liberty.

Yet in the face of all that, the city of DC has a gun ban that forbids having a handgun or any loaded rifle or shotgun anywhere in your home. If you do, you’ll do more than pay a fine. You’ll go to jail.

This law plainly violates the Second Amendment, and ought to be struck down. A federal appeals court did just that, and now the Supreme Court has taken the case.

My parents loved me too much to encourage me to go to law school, so I’m not a lawyer. But I have gotten solid information from some good lawyers at the American Civil Rights Union, in addition to legal perspective, from a couple of the best Supreme Court lawyers in the country.

They are gravely concerned about the Justice Department brief in the Heller case, saying that this could be a Trojan horse in the Second Amendment. They say that for various legal reasons if the Supreme Court were to adopt the position in this brief it would be toxic for gun rights in America. This lawsuit could go either way off the brief’s argument, but future challenges to firearm restrictions—no matter how severe—would likely fail.

This brief was a terrible mistake. Hopefully the lawyers in this case can persuade the Supreme Court to reject that argument, and give our Second Amendment civil rights the robust protection they deserve.

 

[Oldphart]

So, what are the chances that Gura, et al, will bring up the argument that self defense is a fundamental right and therefore any law or regulation that infringes on that right is unconstitutional? We all know that to be true but does the SCOTUS? I should think if it was pointed out to tham and they agreed they could hardly do less than impose "strict scrutiny" to this case.

Opinions?