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

[Al Norris]

sundog, the ACRU amicus brief was filed last October. It was part of the initial action, during the cert stage.

Whoa there RDak! It is exactly as rwilson wrote. This is only the first step in a long line of steps.

The Supreme Court is not going rule in such a manner that it will immediately break all the assorted State and Federal gun laws. While most, if not all, of us here are hoping for the best, we have to keep in mind what is at stake.

The question that was crafted, by the Court, is a very narrow question and as I see it, comes in two parts:

Whether the following provisions [of D.C. Code,] 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?​

The Court, of course, can rule however narrowly or broadly as they want on this question. As has been pointed out by several of the petitioners amici, the decision of the Court may affect such laws as the Machine-gun ban of 18 U.S.C. 922(o). They do not want this to happen. Hence all the arguments over the collective rights (Militia) issue.

That goes to the first part of the question: Do Second Amendment rights accrue to individuals who are not affiliated with a militia.

The DOJ, interestingly enough, admits that an individual right exists, but also argues that it is not a fundamental right, and therefore the standard of review should not be strict scrutiny, but something they call "heightened" scrutiny be applied. When reading the DOJ brief, the Solicitor General describes this "heightened" scrutiny as something more than the rational basis test, but less than intermediate scrutiny.

That argument strikes at the second part of the question: Are the Second Amendment rights of individuals violated, by the D.C. Codes, who wish to keep private arms for personal use in their homes.

Under the DOJ's test, the two lessor D.C. Codes may not stand up, but the handgun ban just may.

And let's be honest here, of all the briefs that have been written, there are only two briefs that have stayed within the scope of the question as presented by the Court. That would be the DOJ brief and Heller's brief.

While I believe the Court will rule for the respondents, I don't think it will go anywhere as far as some are hoping. I would be happy for the Court to simply say that the right is an individual right and that the D.C. Codes violate that right.

Such a decision would seem to imply that at least, Intermediate scrutiny is applied to Second Amendment cases.

And lastly, welcome to theFiringLine Kenneth and thank you for the needed information and the kind remarks about the nature of this thread.

 

[khanson241]

The cert order - Antipas raises this point

If you read the cert order, which antipas sets out below, you can get into some interesting tea leaf reading. Honestly, the way they worded it leads some to speculate this one is in the bag. It is absolutely wonderful that many of the anti briefs concentrate on who was in the militia and what milita means etc, when the original order specifies "not affiliated with militia." Thousands upon thousands of words wasted upon something the court apparently didn't want briefed. If you are feeling really masochistic, this was my initial take on the cert order. Read one way, it certainly appears they are primed to already rule for us. (I am a noob here and don't intend to violate any external links rules. I'm trying to avoid cutting and pasting in many hundreds of words into this thread. No hijack intended here.)

http://www.buckeyefirearms.org/node/4053

My guesses are still guesses. Actual mileage might vary.

But, that is not to say that the other pro-individual amici briefs aren't falling under the cert order. We are all arguing the same thing; we are just giving the justices many different paths to that conclusion. There is stuff there for the original intent types, stuff there for strict construction types, stuff there for social engineering types. (That is where the idea of a 911 sucks brief comes into play, for instance.)

we are all arguing about it being a fundamental, individual right, just on many different paths to that conclusion.

The antis, on the other hand, largely focused on throwing a hissy over "militia" and "collective rights" when the cert order specifically used words talking about the individual right and used words to indicate they didn't care about militia status.

 

[Al Norris]

But, that is not to say that the other pro-individual amici briefs aren't falling under the cert order. We are all arguing the same thing; we are just giving the justices many different paths to that conclusion. There is stuff there for the original intent types, stuff there for strict construction types, stuff there for social engineering types. (That is where the idea of a 911 sucks brief comes into play, for instance.)

OK. I see that. Which explains why I thought the NRA amicus brief was speaking more to Breyer than anyone else on the Court.

 

[wolfmann]

I see McCain has signed on to the NRA brief.
Nows its Obamas and Hillarys turn.

While this is not as yet Media mainstream for the elections its gona be!

im sure Hillarys stance will be for the antis,that is if she can be made to take a stand im sure she has a long memory.

Will Obama come to the dance or sit on the fence being a wallflower?

This is starting to get interesting

Looks like whether pro or con everyone wants to have scotus make a collective or individual decision.

I believe scotus has been put on notice they will have to make a definitive answer in this respect.Both sides are putting all their eggs in the basket on this one.

 

[BillCA]

I think the question of the 2A being a fundamental right or not is already in the bag. When you consider that there were numerous debates and demands of state legislatures; the public notices that The People would not be deprived of their arms; the inclusion of the right to keep and bear arms in the BOR; that the early states also included a "right to arms" in their own constitutions (some predating the federal document), then it becomes obvious even to a blind man that the right to arms was considered a basic, fundamental right of the citizens in every part of the new nation.

I believe the court will rule that the right is individual as there is too much tangible history to deny it. I also think they'll at least say that it's a fundamental right not dependent upon any kind of membership in a militia and toss the D.C. ban -- by saying that registration is permissible but it can't be both required and "closed" (setting up the re-opening of the MG registry).

By doing this, they send a strong signal to lower courts that "strict scrutiny" needs to be applied to gun-laws and that will allow many challenges to work their way through the system. A great many will simply stop at the appellate court level, either lacking funds to continue or because losing that particular law isn't a keystone, allowing the anti's to focus on more critical (to them) issues.

Just finding it is an individual right will permit challenges to a great many laws. The one-gun-a-month laws are actionable because it limits how often you can exercise a right. Waiting periods would be challenged on similar grounds (a right delayed is a right denied) with the only question being balancing the length of delay against the Government's "compelling interest". Along the way, we might find incorporation (under the 14th) gets accomplished too.

 

[Al Norris]

When you're wrong, it's most often best to simply admit it and move on. Contrary to my own sources, there will be more than 20 briefs.

Over at the DCGunCase filings, there are now a total of 23 briefs for the respondent.

 

[Fremmer]

The DOJ, interestingly enough, admits that an individual right exists, but also argues that it is not a fundamental right, and therefore the standard of review should not be strict scrutiny, but something they call "heightened" scrutiny be applied. When reading the DOJ brief, the Solicitor General describes this "heightened" scrutiny as something more than the rational basis test, but less than intermediate scrutiny.

Just what they need - another very general and difficult to understand level of scrutiny to add to the mix. Sort of like Nebraska's "clear and convincing" evidentiary standard, which is something in-between preponderance and beyond a reasonable doubt, and just as fuzzy and malleable as a "heightened" level of scrutiny would probably be.

Let's just make it strict scrutiny and call it a day, shall we?

 

[David Nelson]

"Heightened scrutiny"

Hmm. Does that fall somewhere between the U.S. Department of Homeland Security yellow "Elevated" threat level and the orange "High" threat level?

Oh, why can't the solicitor general's gut feeling about this matter be at least as descriptive as that of the homeland secretary?

 

[RDak]

I know it's a first step guys. I know that very well.

However, it's a gigantic first step I honestly thought I'd never see.

Put yourselves in my shoes. All my da** life the anti-gunners have been successfully placing reliance on that stupid collective right theory. Christ, even President Clinton, and his Attorney General, stated the 2nd Amendment only afforded a collective right.

Many Courts and jurisdictions have used that theory to rule for and pass extremely anti-gun laws/regulations. It now appears that the collective right argument is finally going to be overruled?!

This has been going on for about 40 years now. I, like alot of you, have lived my entire adult life with the collective right theory used successfully by the anti-gunners many times. Many legislatures and judges attached themselves to the collective right theory in order to advance their anti-gun agenda.

They were either misguided, delusional or dishonest in their reliance on the collective right theory but they made MASSIVE headway in the last 40 years.

And, I'm telling you that, without the collective right theory , the anti-gunners are in EXTREME trouble IMHO. I could be wrong but I don't think so.

We all know that the anti-gunners primary objective is to prohibit the private ownership of ALL firearms. Without the collective right theory they simply can't achieve this draconian objective IMHO. In other words, their primary objective is obliterated IMHO.

So having the collective right theory rejected by SCOTUS is a HUGE step for RDak. And, like I said, it's a step I honestly thought I'd never see.

Anti: I honestly think (and I understand why) that you aren't "appreciating" the fact that the collective right theory will probably be rejected. Or maybe I'm over-appreciating!?

Ken is correct IMHO. The briefs in support of Heller do provide different avenues to get to the core issues before SCOTUS. Like Ken alluded to, the briefs present a wonderful mosaic IMHO. I mean, they just are wonderful!!

 

[RDak]

Anti and Ken: When the issue before SCOTUS says "not affiliated with a militia" that doesn't mean the militia argument is off the table IMHO.

Anti and I have had this disagreement for a while now.

"Not affiliated with a militia" sets up a category. That category must be analyzed, and a determination must be made, as to whether the 2nd Amendment even applies to the non-militia members category.

You have two basic categories. One is the collective, militia category and the other is the private citizen, non-militia category.

The SCOTUS will decide if the 2nd Amendment applies to the non-militia category. To me, that's what the wording of the issue means.

All the wording means to me is the SCOTUS has already conceded militias are afforded 2nd Amendment rights. Non-militia citizens are now the core issue.

I don't see how you guys can assume the SCOTUS has already ruled for an individual right. I see it as the core issue before the SCOTUS.

That is why so many of the briefs address the collective right theory, individual right theory and history of the 2nd Amendment IMHO.

What am I missing here? It seems so clear to me, yet you intelligent men appear to disagree. Without getting into scrutiny, please explain to me how the words used by the SCOTUS, in their statement of the issues, concedes an individual right. I'm not an English teacher - LOL!

The SCOTUS must decide how the category of "non-militia member" comports with the wording and meaning of the 2nd Amendment IMHO. And, it's in this core area that I think we are going to win BIGTIME!

I'm obviously going out on a limb but strict scrutiny will probably go our way also IMHO.

Isn't it kind of ironic that we are "arguing" about the wording of the SCOTUS issues to be addressed? Kind of like the arguments people have had over the years relative to the wording and meaning of the language used in the 2nd Amendment!?

 

[Al Norris]

I generally go by "Fair Use" standards.

From the link Ken provided:

My GUESS is that there is a majority of justices who are willing to rule for pro-gun advocates, perhaps even a unanimous group, but only if it is strictly limited to inside the home for the first round decision. The hardcore group of pro-gun justices want the camels nose in the tent as strong as possible, so the compromise that was made was that this case would be limited to just a nice, clean issue of in your own home, which they can all agree upon.

Your guess parallels my own thinking... and why I've been saying that we will get a 7-2 ruling on this.

Anti: I honestly think (and I understand why) that you aren't "appreciating" the fact that the collective right theory will probably be rejected. Or maybe I'm over-appreciating!?

RDak, I never did understand the rationale behind the collectivist model. It made no sense when one looked at the plenary powers of the Congress over the Militia and the fact that the States could not keep a standing army without the permission of the Congress.

Anti and Ken: When the issue before SCOTUS says "not affiliated with a militia" that doesn't mean the militia argument is off the table IMHO.

Yes, it means that the Justices don't want to consider that "issue."

If it means that the militia stuff is off the table, as I think it does, then let's reword the question in that manner and see if it makes more sense to you:

Whether the following provisions [of D.C. Code,] violate the Second Amendment rights of individuals who wish to keep handguns and other firearms for private use in their homes?​

The question as presented, assumes the right is individual. What is at stake, is part of the scope of the right and (hopefully) what level of judicial review should be applied.

As to why are all of these briefs touching upon that issue? Because that's the main theme behind all the briefs for the petitioners.

Does that make any more sense?

 

[RDak]

Darn Anti, I must be dense. Well, alot of times I am dense!

Anti's re-worded question:

Whether the following provisions [of D.C. Code,] violate the Second Amendment rights of individuals who wish to keep handguns and other firearms for private use in their homes?

No it doesn't seem clearer to me. You have to answer what those 2nd Amendment rights are in the first place IMHO. And you get to that answer by analyzing the wording and meaning of the 2nd Amendment (i.e., which includes the militia preamble in the first part of the 2nd Amendment).

I mean, handguns and other firearms are "everything" in my mind. So the SCOTUS has to answer if those weapons are allowed to be owned by individuals under the 2nd Amendment. See what I mean?

How can anyone decide if the DC Code violates the 2nd Amendment rights of individuals without analyzing and ruling what those individual rights are in the first place? And to get to those individual rights, the militia statement in the 2nd Amendment must be addressed IMHO.

Now if the question was worded like below I could understand your point better. Although the SCOTUS would still have to analyze what rights individuals have under the 2nd Amendment in the first place:

"Whether the DC Code provisions violate the presumed and accepted 2nd Amendments rights of individuals who wish to keep handguns and other firearms for private use in their homes."

I'm sorry for being so dumb, but I just don't see it that way Anti.

 

[zukiphile]

Just another dummy chiming in.

All the wording means to me is the SCOTUS has already conceded militias are afforded 2nd Amendment rights. Non-militia citizens are now the core issue.

I don't see how you guys can assume the SCOTUS has already ruled for an individual right. I see it as the core issue before the SCOTUS.

If the militias are made of individuals, and the militia population has a second amendment right, you are very far from a right enjoyed only by states or their organised militias.

I am inclined to Anti's reading of the order.

 

[RDak]

I hope so zuki, da** I hope so!

 

[khanson241]

It is admittedly all guessing

Tea leaf reading is what I called it. But here is the reason I think the reading suggested by RDAK is a stretch.

First, we would have to assume that the SCOTUS was about to create two categories of rights without inviting any briefing on the issue whatsoever. I think it is safe to say that would be extraodrinarily unusual, perhaps unprecedented, to create two categories of rights without inviting any argument from the parties on whether that was proper, what the categories should be, what level of scrutiny should apply etc.

Second, they specify "in the home." A tremendous amount of the collectivist theory necessitates that it does not matter where you are. By specifying "in the home" they seem to clearly want to 1.) narrow it down for a bedrock decision, and 2.) are taking the most protected environment to do so. The sodomy statutes, pornography, religion...all these breakthrough cases usually involved the government trying to restrict what you do in your own home, then the court saying the government has very little business saying what you do in your own home. That is the road map that has been repeated.

Third, it is somewhat duplicitive. Any militia member necessarily has a home and will be keeping their arms at home to be ready to respond to the call. That really makes the militia a subset of the people as a whole. When you are arguing that a subset has greater rights than the whole, then you brief on the subset, not the whole. We would have to assume that the SCOTUS is going to create a subset that will be subsumed by the whole. Just doesn't make sense and SCOTUS history doesn't take this approach. If they were going to grant militia members greater rights, we would be briefing the militia issue too, if not exclusively.

Fourth, the words "the second amendment right of individuals" are used in ther order. No invitation as to when it is an individual right or not. No invitation as to the militia rights being different from individual rights. Again, the order even specifies without regard to milita status.

RDAK, we are all guessing here, and I'm not saying you are wrong. But fundamentally, what we are all saying is that either 1.) THe SCOTUS understands the issues and has narrowed their briefing order so there is a rock solid, unassaliable precedent established on the issue of individual right, which is the issue that has been before the courts for 60 years, or 2.) The SCOTUS doesn't understand the issue/is politically motivated and is going to pull things out of thin air. There is plenty of precedent for 2.), such as dredd scott, separate but equal etc. I guess I'm just inclined to say that we have some good, activist justices, and they wouldn't let this opportunity slip by without the question being answered conclusively, up or down, yes or no.

Yes there are good activists. If alito is out there behind the scenes to make sure we set these cases up for sctrict interpretation, that is a good thing

 

[khanson241]

Final brief count

Anti, I think you will end up seeing at least 26 amici briefs by COB monday. Ones of note that I haven't seen linked up on Alan's webpage or the scotus blog page: state AG briefs, state prosecutor's brief, and the law enforcement group brief. The law enforcement one might have a dynamite surprise in it as far as police groups who signed on. I don't know at this point for sure so I am not being coy. But there is potentially a news-worthy signer on that brief.

 

[Al Norris]

But there is potentially a news-worthy signer on that brief.

Holy moly... I don't think I want to speculate. I'll wait and be surprised!

No it doesn't seem clearer to me. You have to answer what those 2nd Amendment rights are in the first place IMHO.

Actually, I don't think you do. If it is as I suspect, the only thing the Court will do is to advance the position that the City (i.e. the Feds) cannot ban an entire class of firearms, that are in ordinary use. Remember, all we are really discussing is the right of the individual to keep handguns and other firearms at home for personal use.

That gives us an individual right to own handguns and other firearms that are in common use. It sets the bar, for complete bans of these types of firearms, extremely high: Strict Judicial Scrutiny.

That wouldn't affect bans on "assault weapons" or machine guns.

It doesn't define the entire scope of the right(s) or the level of Judicial Review on these other supposed rights.

It is consistent with the history of the militia, as the militia was completely unorganized for much, if not most, of its history in America.

It would be the kind of very narrow ruling that many of us see the SCOTUS making, and is consistent with what the Court has done in the past.

 

[RDak]

Guys: First off, I'm loving this discussion. Finally a Sup. Ct. case to talk about that will directly address the most important BOR amendment I think exists. FINALLY!!

I also know I'm reading tea leaves so to speak and could be completely wrong. This is just a fun and exciting time for this old pro-gunner who has waited so long for this type of case to be heard by the SCOTUS. I mean it, I'm like a giddy, little kid in a toy shop for the first time in his life.

If you guys are correct, the biggest concern for me, relative to the anti-gun movement, has already been won by us pro-gunners (i.e., the non-militia individual has some 2nd Amendment rights).

Obviously, I disagree and believe the SCOTUS will (1) decide if we do have 2nd Amendment rights in the first place and (2) then define how those rights, if any, can be limited/regulated.

Kenneth: As to the categories I used in my previous thread, I didn't create those categories, the SCOTUS created those categories.

When the SCOTUS used the term "not affiliated with a militia" they are setting up a separate and distinct category. Not me. Using that term logically indicates there is another category (i.e., affiliated with a militia).

So to define whether someone can own a handgun or other firearm in their home, who is "not affiliated with a militia", necessitates analyzing how the 2nd Amendment applies to that separate and distinct group. A separate and distinct group, like I said, that was created by the SCOTUS in their wording of the issues.

How do you decide whether 2nd Amendment rights have been violated by DC without analyzing the rights of the separate and distinct group the SCOTUS has decided to review? You have to go into the meaning of the 2nd Amendment and analyze how non-militia members fit into that scheme.

You guys are saying they are already acknowledging non-militia members have 2nd Amendment rights. What rights could those be if owning firearms in their homes is being questioned? I mean, what's left? Owning them but keeping them at a military armory? This is a very basic level of ownership that the SCOTUS wants to rule upon relative to a separate and distinct group that they chose to label. Not me.

Is this unusual and different than most other SCOTUS cases. Heck yes, it's different. The SCOTUS is venturing into uncharted waters with this one IMHO. They have set-up a separate and distinct group of people and are going to decide if they have the right to own firearms in a most basic place (i.e., their homes).

They can only perform this review by looking at how this distinct category of individuals fit into the language and meaning of the 2nd Amendment. A language and meaning that definitely has militia overtones IMHO. The militia exists guys and the SCOTUS has carved them out of the issue in order to decide how the non-militia citizens fit into the 2nd Amendment scheme.

They will most definitely address how non-militia citizens fit into the historical and literal meaning of the 2nd Amendment, etc. This will entail a discussion of the other non-review category, (i.e., individuals who are affiliated with a militia).

In other words, the SCOTUS has to explain why they set up a separate "not affiliated with a militia" category. They did it, not me. The militia is definitely part of the 2nd Amendment and the SCOTUS set-up two categories of firearms ownership when they worded the question.

Now they must decide how we fit into an amendment that undeniably includes militias. No one has ever questioned whether a militia member can own a firearm. No one that I know of that is.

Militias are basically as high up there as military personnel when it comes to "small" firearms rights IMHO. No one who has been following this issue could ever deny that.

(I know you guys don't deny this fact, you just feel the SCOTUS won't mention this area of the 2nd Amendment. As you know, I respectfully disagree. I also realize that the SCOTUS recognizing the 2nd Amendment sets-up two distinct categories of people could be a BIG plus for us? Not so sure about that though. I mean, I've always thought the militias are just an arm of the larger group of individuals. And any individual is allowed to own a firearm is how I interpret the 2nd Amendment. So why the two groups? Because the 2nd Amendment uses the term militia in the preamble.)

Anyway, we'll find out soon enough and I wish we all lived close enough so we could have a few beers together and discuss this stuff in person.

God, it's great to finally be talking about a SCOTUS case dealing directly with the 2nd Amendment.

Btw, I'm going to the gun range now!

 

[zukiphile]

Now they must decide how we fit into an amendment that undeniably includes militias. No one has ever questioned whether a militia member can own a firearm. No one that I know of that is.

Militias are basically as high up there as military personnel when it comes to "small" firearms rights IMHO. No one who has been following this issue could ever deny that.

Though I have a very broad reading of the 2d am., I have to say that the right covering the militias is not beyond contradiction. We often hear the argument that right is a dead letter becuase the "regulated militia" referenced in the amendment is now the "organised militia" od the NG. That's rubbish (regulated and organised are not fungible terms), but hardly worse that other things the court has concocted.

The case for optimism here is that the challenge seems to come from a man who is a member of the militia, but the court is seeking briefs on a wider issue.

 

[alan]

RDak and anyone else interested:

I too think that actually having USSC look at a Second Amemdment case is a good thing, especially what appears to be a GOOD case as Heller does. I think it's unfortunate that Parker and others didn't bother to seek out, complete and submit the necessary B.S. paper work. It would have been denied, however being thereby able to show impact or injury, I believe that they too would have attained that passing strange comodity, STANDING.

Otherwise, I find this business of "reasonable regulation", "reasonable restrictiomns" that seems to keep coming up bothersome, as it seems nowhere defined. It sort of becomes like that much mentioned "assault weapon/assault rifle", terms that have wildly differing meanings to different people.

Still, when all is said and done, and it isn't real close to that juncture, we must leave it to the lawyers, and hope for the best. Still, I guess that getting as far as we have gotten is something of an accomplishment. As to the ultimate end, we shall have to wait a while for that.