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

[Hugh Damright]

If this view prevails, a national ban on all firearms -- including hunting rifles -- could be constitutional

With all due respect to Mr. Goode, I disagree. DC, like the States, has gun control powers, and if the Second Amendment is reconstructed so as to limit these gun control powers, IT DOES NOT FOLLOW THAT THE FEDERAL GOVERNMENT HAS GUN CONTROL POWERS TOO.

 

[Garand Illusion]

DC, like the States, has gun control powers

That's a hard statement to support. Since DC is completely governed by the Federal Government, and the constitution limits the Federal Government ... how is it that Congress can enforce gun control laws in DC they can't elsewhere?

Then take a look at the 14th amendment ... if gun ownership is a civil right, then the states can't limit it either.

 

[Hugh Damright]

That's a hard statement to support. Since DC is completely governed by the Federal Government, and the constitution limits the Federal Government ... how is it that Congress can enforce gun control laws in DC they can't elsewhere?

Gun control powers come under the police powers reserved to each State. DC also has some degree of home rule, with the DC government passing DC laws such as the gun laws in question. However, the US has jurisdiction over all matters in DC, so they may pass gun laws that act upon DC if they have such a desire ... and the US Congress can also vote to strike down the DC gun laws. In contrast, the US Congress does not have jurisdiction over the States in all matters, they have no delegated power to pass gun laws that act upon Virginia, nor do they have a power to strike down Virginia gun laws (unless they interfere with a federal power).

Then take a look at the 14th amendment ... if gun ownership is a civil right, then the states can't limit it either.

At most, the 14th puts federal limits upon the States gun control powers. The 14th does not empower the US with gun control powers, nor does it take away the States' gun control powers.

 

[Garand Illusion]

I know from your previous posts there's little point in a continuing debate with you, but let me just point out a few things once more:

Gun control powers come under the police powers reserved to each State. DC also has some degree of home rule, with the DC government passing DC laws such as the gun laws in question. However, the US has jurisdiction over all matters in DC, so they may pass gun laws that act upon DC if they have such a desire ... and the US Congress can also vote to strike down the DC gun laws. In contrast, the US Congress does not have jurisdiction over the States in all matters, they have no delegated power to pass gun laws that act upon Virginia, nor do they have a power to strike down Virginia gun laws (unless they interfere with a federal power).

DC is not a state, so it has no powers reserved to it as a state. None. It is strictly under the dominion of the US congress, which is strictly controlled by the constitution. If the constitution restricts the congress from infringing on arms ownership, they cannot let one of their creations (the DC city government) infringe on them either.

At most, the 14th puts federal limits upon the States gun control powers. The 14th does not empower the US with gun control powers, nor does it take away the States' gun control powers.

The first 2 points above are certainly correct. For the 3rd, however ... if gun ownership is a civil right guaranteed by the constitution, then the 14th:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

most DEFINITELY restricts the states from taking away a right granted by SCOTUS.

The states can't pass restrictive abortion laws because right or wrong the supreme court has found that to be a right. Neither can the states pass laws restricting freedom of expression/speech.

All of this stuff is pretty clearly defined and tested by SCOTUS. Pretty hard to argue. At least in the real world as the courts define and enforce the constitution today.

 

[Hugh Damright]

If the constitution restricts the congress from infringing on arms ownership, they cannot let one of their creations (the DC city government) infringe on them either.

If DC has a right to pass a gun law, that does not mean that the US Congress has a right to pass a national gun law. If Congress has no right to pass a national gun law, that does not mean that DC has no right to pass a gun law. That is what you were asserting, isn't it?

 

[Al Norris]

No Hugh.

If Congress has no power to pass a national gun ban, then D.C. has no power to pass a ban.

In other words, D.C. may not pass any gun bans or gun laws that would be more restrictive than any bans or laws the Congress would be empowered to pass.

Why? Because D.C. being wholly a creation of the Constitution and wholly controlled by Congress, this irrespective of any granted "home rule," is bound by the same restrictions placed upon Congress by the Constitution.

File this under: The created is not more powerful than the creator.

 

[alan]

Hugh Damright writes:

If DC has a right to pass a gun law, that does not mean that the US Congress has a right to pass a national gun law. If Congress has no right to pass a national gun law, that does not mean that DC has no right to pass a gun law. That is what you were asserting, isn't it?

Hugh:

It does seem be the above, that The Congress is and has been violating the hell out of the constitution respecting gun laws it has passed.

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Garand Illusion writes:

Then take a look at the 14th amendment ... if gun ownership is a civil right, then the states can't limit it either.


-----------------

Garand:

Based on the above, it seems as if the states have been violating the hell out of the constitution too, respecting among other things, gun laws that they have passed.

 

[Garand Illusion]

Garand:

Based on the above, it seems as if the states have been violating the hell out of the constitution too, respecting among other things, gun laws that they have passed

I agree with you. But since SCOTUS has never enforced the 2nd amendment (all but 3 circuit courts consider it a State right), AND never gone through the (I believe bogus) process of "incorporating" it into the 14th amendment, we are still 2 steps away from the 2nd amendment limiting state/local laws.

Hopefully we'll take step 1 (getting SCOTUS to recognize the 2nd as an individual right) will happen this summer.

Step 2 ... who knows. I've never fully understood that side of it.

 

[Hugh Damright]

D.C. may not pass any gun bans or gun laws that would be more restrictive than any bans or laws the Congress would be empowered to pass.

Perhaps you mean to say that DC may not pass gun laws which are more restrictive than Congress would be empowered to pass in DC? That makes some sense to me. But if you're saying that if DC can have a gun law then the US can pass a national gun law, that seems to be an awful misconstruction.

Because D.C. being wholly a creation of the Constitution and wholly controlled by Congress, this irrespective of any granted "home rule," is bound by the same restrictions placed upon Congress by the Constitution.

File this under: The created is not more powerful than the creator.

To govern DC requires all the general/broad/unenumerable powers needed to govern. If DC has a speed limit, it does not follow that the federal government can pass a national speed limit. And if DC has a gun law, it does not follow that the US is empowered to pass a national gun law.

 

[Garand Illusion]

To govern DC requires all the general/broad/unenumerable powers needed to govern. If DC has a speed limit, it does not follow that the federal government can pass a national speed limit. And if DC has a gun law, it does not follow that the US is empowered to pass a national gun law.

The first part is actually an interesting point. But I still don't agree.

All powers not granted the Federal government are given to the states. But DC is not a state and under the control of Congress, so it follows that powers reserved to the state could actually be legislated in DC. i.e. a speed limit. So yes ... the fact that congress/DC city council created by congress can impose a speed limit does not contradict the constitution or mean that the Feds can impose a nationwide speed limit. (we did use to have a Federally mandated national speed limit of 55mph, but was that mandated by a threat to hold back highway funds? I don't recall.)

But the Feds are SPECIFICALLY and clearly prohibited (at least the way the majority of us read COTUS) from passing restrictive gun laws. Since they are prohibited from doing this, DC cannot do it either.

The first part of your post just seems to repeat what has already been said.

 

[David Nelson]

How to contact U.S. Solicitor General, et al.

U.S. President Bush comments@whitehouse.gov
U.S. Vice President Cheney vice_president@whitehouse.gov
U.S. Acting Assistant Attorney General Jeffrey S. Bucholtz jeffrey.bucholtz@usdoj.gov
U.S. Solicitor General Paul D. Clement askdoj@usdoj.gov, paul.clement@usdoj.gov, paul.d.clement@usdoj.gov
U.S. Assistant Attorney General Alice S. Fisher alice.fisher@usdoj.gov
U.S. Deputy Solicitor General Gregory G. Garre gregory.g.garre@usdoj.gov
U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives Chief Counsel Stephen R. Rubenstein stephen.rubenstein@atf.gov
U.S. Assistant to the Solicitor General Malcolm L. Stewart malcolm.l.stewart@usdoj.gov, malcolm.stewart@usdoj.gov

 

[publius42]

we did use to have a Federally mandated national speed limit of 55mph, but was that mandated by a threat to hold back highway funds? I don't recall.

Yes, that's how it was, and I DO recall, because it ticked me off. Much of my driving was using I-75 to cross the Everglades. You go straight for miles and miles and miles. One curve in 90 miles of road.

The transportation secretary who was responsible for this federal bribery? Elizabeth Dole.

We send our money to Washington, and some of it comes back, with some strings attached.

 

[mvpel]

Oral arguments are on Tuesday, March 18. I'm pleased that it's on the second day of the session, I was worried we'd have to wait into April for the first step in the vindication of our fundamental rights.

 

[Al Norris]

Garand Illusion posted that info back at post #354.

But I can see where it might have been lost in the ensuing discussion with Hugh.

Also of note, Oyez now puts up the oral arguments on their website, within a few of hours of being made. Those of us that can't be present at the actual arguments (which is most of us), can do the next best thing. We can listen to the arguments after they've been made.

 

[alan]

RDak wrote:

I wouldn't worry much Pub. I would think it's normal for the ban to remain while the appeal to the Supreme Court is active.

I was disgusted that the anti-gun DC politicians threw a curveball in their appeal where they say they allow rifles and shotguns. Hogwash! See how slippery and dishonest liberals can be? Disgusting!

-------------------------

Sir:

If I may, I submit it's not so much a case of "how slippery and dishonest liberals can be", rather it is a case of how slippery, dishonest, lying and so forth ANTI GUNNERS can be and or are. There have been, some who claimed conservative credentials, who I would not particularly trust around good whisky or my rights re guns or anything else.

 

[Garand Illusion]

Brief's filed for Heller

Antipitas or anyone else have time to look through and analyze? Over my head!

Today, attorneys challenging Washington, D.C’s 31-year-old gun prohibition laws filed their written arguments in the U.S. Supreme Court. Washington, D.C. bans the possession of handguns outright, and further forbids rifles and shotguns from ever being operable in private homes for use in self-defense. The case, District of Columbia v. Heller, is named for Dick Anthony Heller, a private security guard who carries a gun at work, but cannot keep one at home to defend himself and his wife. “I’m fighting for the constitutional right of law-abiding individuals who live in dangerous communities to have a firearm to protect themselves and their families from rampant violent crime,” said Heller.

 

[mvpel]

This sums it up pretty nicely:

The Second Amendment secures for Americans an individual right to defend themselves and their loved ones, at home, with ordinary firearms. ... The evidence of this simple truth is overwhelming, whether one looks at the Second Amendment’s text, structure, or history. When a fundamental right is at stake, the Supreme Court should rigorously scrutinize government regulations. And when a city tries to completely ban the exercise of a fundamental right, as Washington, D.C. has, the courts must step in and declare the law unconstitutional. If the D.C. ban is upheld, then every gun law, no matter how invasive, will be rubber-stamped by the courts and the Second Amendment will mean nothing.

Text, structure, history - all have to be ignored to rule in favor of DC, and I really doubt the Supreme Court will do that.

 

[Al Norris]

Just downloaded the brief. I'll have something to say about it later this evening.

 

[BillCA]

I'll leave the analysis and comparisons to Antipitas who seems to be much better at it than I. I will list out some of the salient points I gleaned in reading this "brief".
Note: This one is not as sophomoric as D.C.'s brief nor is it quite as insomnia curing.

• Argues the "militia clause" cannot limit, transform, or negate its operative rights-securing text.
• Reiterates the pre-existing right to arms.
• Reiterates the individual rights secured by the text.
• Details the meaning of "keep" and "bear" in a non-military context.
• Explains the 18th century meaning of "well regulated"
• Reviews historical documents supporting the individual right as part of English Common law.
• Shows the framers rejected a proposal to add a "states' right" to control their own militias.
• A short history of British abuses against colonist-owned arms.
• Rebuts the idea of the militia must be a government-controlled entity.
• Argues D.C. laws are unconstitutional;
• That a categorical test makes it easy to determine handguns are protected;
• Claims protected guns are those in common use by civilians and have military utility.
• Dances around the machinegun implications by saying the court might exempt machineguns because they were not "in common use" at that time.
• Argues the 2nd Amendment is a fundamental right
• Argues that strict scrutiny is the correct standard in Second Amendment challenges.
• Shows conclusively that D.C. is bound by the Constitution.

The attorneys for Heller are attempting to focus solely on the main issues - that banning hanguns is unconstitutional as is regulating the keeping of effective (assembled) arms in the home. They do lay groundwork for arguing against the machinegun ban but try to minimize concerns that a pro-2A decision would suddenly open the floodgates.

After reading the District's brief and this one, I get the impression that D.C. is outgunned and outclassed. But then, I'll admit to some bias too. The difference is about like...
-OJ Prosecutor Marcia Clark vs. Perry Mason
-A champion high school football team vs. the NY Giants
-Swating a fly with a Buick

 

[azredhawk44]

I read this brief from beginning to end, and loved every word of it. This should be recompiled as a text and a primer on American Firearms Civil Liberties. It places so many elements into historical context; the British seige on Boston, the Boston Massacre, the Jim Crow laws of the south in regards to Black firearms ownership... all the ugly underbelly of firearms prohibition.

I was particularly amused by the contents of page 59, where they assert that experimental and controversial social doctrine has no place even attempting to contend in the same arena as Constitutional Rights:

The ABA asserts that “the most notable risk
factor for mortality among abused women is the
presence of a gun,” and argues that “[h]ow to weigh
these risks against the desire to own a gun for self
defense is a policy judgment, not a constitutional
one.”
...
Putting aside the likelihood that the Constitution embodies at
least some policy choices the ABA finds uncongenial,
the cited study does not support the conclusion.

I daresay this was even... snarky?!? I love it!