D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread
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Got through the respondant brief. WOW. And this is just the response to the petition for cert. not an argument before the Court. If and when that happens it's going to look like Gura and Co. are up against 2nd graders.
Reading that you wonder how anyone could legitimately disagree. Still a little nervous about how it'll turn out though. Seen too many legal decisions I considered ridiculous I guess.
Reading that you wonder how anyone could legitimately disagree. Still a little nervous about how it'll turn out though. Seen too many legal decisions I considered ridiculous I guess.
I just returned from the Gun Rights Policy Conference in Cincinnati, Ohio. I had an opportunity to meet and speak with lawyers Gura and Levy who are handling the Parker side of the case.
They emphasized, and it is important to remember, that this is the first time since 1939 that there has been a real opportunity to explore a Constitutional question at the SCOTUS level regarding the 2nd Amendment. Many people, including myself, were caught up in the euphoric anticipation of GCA and NFA being struck down yada yada yada. But that is not going to happen here. The question being dealt with here is a very narrow issue - whether or not the 2nd Amendment refers to an individual right or a collective right. If we win the case, which we should based upon what I heard them say about the absurdities of D.C.'s briefs and cert petition, the results will be incremental at best. There are still 20,000 gun laws to deal with and a decision in our favor in this case won't do away with them.
The good news is that a win here will settle the question of whether the 2nd Amendment is an individual or collective right. That will establish solid case law upon which challenges to other gun laws may be built. And last but not least, a favorable ruling in this case will really piss off Sarah Brady, and hey, that's something.
They emphasized, and it is important to remember, that this is the first time since 1939 that there has been a real opportunity to explore a Constitutional question at the SCOTUS level regarding the 2nd Amendment. Many people, including myself, were caught up in the euphoric anticipation of GCA and NFA being struck down yada yada yada. But that is not going to happen here. The question being dealt with here is a very narrow issue - whether or not the 2nd Amendment refers to an individual right or a collective right. If we win the case, which we should based upon what I heard them say about the absurdities of D.C.'s briefs and cert petition, the results will be incremental at best. There are still 20,000 gun laws to deal with and a decision in our favor in this case won't do away with them.
The good news is that a win here will settle the question of whether the 2nd Amendment is an individual or collective right. That will establish solid case law upon which challenges to other gun laws may be built. And last but not least, a favorable ruling in this case will really piss off Sarah Brady, and hey, that's something.
Fossten, do you remember your history of the civil rights movement in the U.S?
There were a lot of small baby-steps taken before Brown v. Board of Education. Despite what one may think, this is a baby-step in the direction of returning our rights. But... It's an important step.
Should the SCOTUS grant cert and take the case, rule in favor of Heller, it will be established once and for all, that the 2A is an individual right. After that, will come the myriad of cases that establishes the boundaries of the right.
The other thing about this is the standing issue (the cross-petition). We should hope that the Supreme Court reverses the D.C. Circuit court on that issue and restores standing to Parker, et al. Setting standing so high on pre-enforcement challenges (other than 1st Amendment challenges) will almost ensure that no one will ever challenge a bad law again... Without having been first convicted of the law they are challenging. That level of achieving standing is ludicrous.
There were a lot of small baby-steps taken before Brown v. Board of Education. Despite what one may think, this is a baby-step in the direction of returning our rights. But... It's an important step.
Should the SCOTUS grant cert and take the case, rule in favor of Heller, it will be established once and for all, that the 2A is an individual right. After that, will come the myriad of cases that establishes the boundaries of the right.
The other thing about this is the standing issue (the cross-petition). We should hope that the Supreme Court reverses the D.C. Circuit court on that issue and restores standing to Parker, et al. Setting standing so high on pre-enforcement challenges (other than 1st Amendment challenges) will almost ensure that no one will ever challenge a bad law again... Without having been first convicted of the law they are challenging. That level of achieving standing is ludicrous.
I think I'll start machining some parts right away for a machine gun I'll make when the decision in our favor comes out. Of course, I won't progress too far in the machining process. That would be interstate commerce, you know. But I'll be ready to build my own machine gun, and I'll do it in the most public way I can figure out. I always wanted to join a myriad.
How do you think I'll do? I think I'll win my case.
And that's why I think they won't grant cert. We'll have the same unstable mishmash of understandings of the 2nd which allows the machine gun ban to go on, because not rocking the boat is the most important thing of all.
I wish them luck, but they're actually in the funny position of arguing that a case they WON should be reviewed by the Supreme Court, but not for the reasons that the side which LOST says it should be reviewed.
It's all pretty good entertainment, but I keep asking myself when was the last time the Supreme Court really rocked the federal boat? While the 2nd amendment doesn't require militia membership to exercise the right to bear arms, it does kind of imply that citizens should own the types of weapons in common military use at this time. Machine guns figure prominently.
Are they really going to let me build my own machine gun, and not try to stop me by claiming it is interstate commerce or "militia" means State National Guard?
OK, great. I'll be ready and happy, but I won't be holding my breath.
It's all pretty good entertainment, but I keep asking myself when was the last time the Supreme Court really rocked the federal boat? While the 2nd amendment doesn't require militia membership to exercise the right to bear arms, it does kind of imply that citizens should own the types of weapons in common military use at this time. Machine guns figure prominently.
Are they really going to let me build my own machine gun, and not try to stop me by claiming it is interstate commerce or "militia" means State National Guard?
OK, great. I'll be ready and happy, but I won't be holding my breath.
Nope... But it is binding upon the Federal Government.publius42 said:
Unless Parker is overturned by the SCOTUS, this precedent stands.
The Supreme Court is currently caught in a catch 22.
1. They can deny cert and the ruling stands. That alone will invite all sorts of lawsuits in the D.C. Circuit that will bind Federal law. D.C. will be bound by their own precedent and this will upset the applecart.
2. They can grant cert and uphold Heller, without overturning the standing issue. That makes the ruling binding upon the entire U.S. and opens the doors to a 14th amendment challenge. This upsets the applecart, but at the same time, it allows the other Circuits to adopt the standing of D.C. which may in fact delay a 14th challenge.
3. They can grant cert and reverse D.C. in standing. This brings D.C. into compliance with the other Circuits and the Supreme Court itself.
3a. They can reverse D.C. by stating that the 2A is some kind of collective right... This will simply tick off about half the country. This will upset the publics applecart. They do not want to be the cause of that.
3b. They can uphold Heller, upsetting the applecart this way.
3b. They can uphold Heller, upsetting the applecart this way.
4. They can grant cert. Reverse standing. Uphold Heller. Still upsets the applecart (Can anyone see Kozinski in the 9th Circuit ROTFLHAO?).
At this point in history, anything the Court does is liable to upset someones applecart (I can picture Thomas trying to hide his smirk at the possibilities). It's a political football and what they do depends upon how much damage control they envision they can do... er, get away with.
Wildalaska
Moderator
Funny thing is, the DC decision shows that law trumps politics....
Wildexceptinthe9thAlaska TM
Antipitas said:
hmmm... So when I build my machine gun, can I challenge the ban in that Circuit, or do I have to do it where I live?
I thought Kozinski's opinion in the Stewart case in the 9th circuit was an excellent example of law trumping politics (until the drug warriors, in a jaw-dropping example of political power trumping the law, made him reverse it.)
I see you failed to note where Kolinski criticized the Raich decision:
Kolinski didn't cave. But he did uphold the SCOTUS decision in Raich as applied to 922(o). What is a shame, is that Oregon wasn't decided until after Stewart. Kolinski could have had a field day with Stewart when applying both Raich and Oregon! ... As did Thomas in his dissent in Oregon.
In both Raich and Stewart, there was the possibility that the Court would allow the isolated exception(s). It didn't, but in Oregon, it allowed the exception to be carved.
Which I suppose would make my earlier post include another point:
5. We can thus conclude that while the Court may uphold the 2A as a general right, it may allow D.C. the exception, as it did in Oregon.
sigh
And that, Ken, would defeat your argument over politics.
Just to show one such comment.
Kolinski didn't cave. But he did uphold the SCOTUS decision in Raich as applied to 922(o). What is a shame, is that Oregon wasn't decided until after Stewart. Kolinski could have had a field day with Stewart when applying both Raich and Oregon! ... As did Thomas in his dissent in Oregon.
In both Raich and Stewart, there was the possibility that the Court would allow the isolated exception(s). It didn't, but in Oregon, it allowed the exception to be carved.
Which I suppose would make my earlier post include another point:
5. We can thus conclude that while the Court may uphold the 2A as a general right, it may allow D.C. the exception, as it did in Oregon.
sigh
And that, Ken, would defeat your argument over politics.
I didn't mean to imply that Kozinski "caved" in reconsidering the Stewart case and reaching a conclusion consistent with Raich. I guess he did in the sense that he bowed to the fact that he lacks the authority to override the Supreme Court. I suppose he could have quit his job over it, but that would be ridiculous. Another judge would just step in to do what he refused to do.
Yeah, if they decide there is an individual right, but the DC gun laws do not infringe upon it, it does leave you wondering what kind of laws would infringe on that right. It might be shrugged off as a "truism" like the increasingly hypothetical "powers...reserved to the States respectively, or to the people" in the 10th amendment.
Yeah, if they decide there is an individual right, but the DC gun laws do not infringe upon it, it does leave you wondering what kind of laws would infringe on that right. It might be shrugged off as a "truism" like the increasingly hypothetical "powers...reserved to the States respectively, or to the people" in the 10th amendment.
Garand Illusion
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I am not a lawyer, and not as smart as many of y'all, but ...
Calling it an individual right is still a half victory even if they allow DC's restrictive laws to stand. From what I've read, DC argues that they DO allow the right to keep arms because you can own a rifle or shotgun in DC, and use them defensively. No matter how big of a lie that latter is it will be part of the record.
In any case, as an individual right, it can still be brought up in court cases. It means that any law restricting guns will have to go through at least some debate and review before it's passed, and the politicians supporting it will have to explain why they're limiting a right granted in the consitution.
A meager consolation, I agree, but better than nothing.
Because "nothing" is if they review it and say it is a State's right and not an individual right. At that point politicians that are borderline pro-gun no longer have the constitution behind them.
Polls show that most americans, pro-gun or anti-gun, do believe they have a 2nd amendment right to keep and bear arms. If SCOTUS pulls the rug out from under that, will their opinions change? My hope is that Americans will be angry that a right has been snatched away for political reasons, and the result will be a pro-gun movement that actually has some teeth. My fear is that many will just shrug their shoulders and say, "oh, well ... looks like all my teachers were mistaken."
Certainly not for the people on this board, but particularly in blue states I think you'll see a huge change.
And of course we may see some scattered violence. But probably nothing major, as there won't be any immediate impact from a SCOTUS ruling to existing laws. It just opens the door for the anti-gunners to begin ratcheting away our rights in earnest.
If SCOTUS rules it's a weird "state's right," which is an oxymoron if there ever was one, I imagine private gun ownership will be virtually a thing of the past within my children's lifetime.
Calling it an individual right is still a half victory even if they allow DC's restrictive laws to stand. From what I've read, DC argues that they DO allow the right to keep arms because you can own a rifle or shotgun in DC, and use them defensively. No matter how big of a lie that latter is it will be part of the record.
In any case, as an individual right, it can still be brought up in court cases. It means that any law restricting guns will have to go through at least some debate and review before it's passed, and the politicians supporting it will have to explain why they're limiting a right granted in the consitution.
A meager consolation, I agree, but better than nothing.
Because "nothing" is if they review it and say it is a State's right and not an individual right. At that point politicians that are borderline pro-gun no longer have the constitution behind them.
Polls show that most americans, pro-gun or anti-gun, do believe they have a 2nd amendment right to keep and bear arms. If SCOTUS pulls the rug out from under that, will their opinions change? My hope is that Americans will be angry that a right has been snatched away for political reasons, and the result will be a pro-gun movement that actually has some teeth. My fear is that many will just shrug their shoulders and say, "oh, well ... looks like all my teachers were mistaken."
Certainly not for the people on this board, but particularly in blue states I think you'll see a huge change.
And of course we may see some scattered violence. But probably nothing major, as there won't be any immediate impact from a SCOTUS ruling to existing laws. It just opens the door for the anti-gunners to begin ratcheting away our rights in earnest.
If SCOTUS rules it's a weird "state's right," which is an oxymoron if there ever was one, I imagine private gun ownership will be virtually a thing of the past within my children's lifetime.
On Friday, Oct 12th, the city of D.C. filed its response to the cross-petition, Parker v. D.C.
Thanks to Scotus Blog for this.
Edited to add: The American Civil Rights Union (ACRU) filed an Amicus Curiae (Friend of the Court) brief in Heller v. D.C. on Oct. 9th. You can get it here.
From the blog:
According to the Supreme Court Docket:
Oct 5 2007 Brief amicus curiae of American Civil Rights Union filed.
Oct 5 2007 Brief amici curiae of American Acdemy of Pediatrics, et al. filed.
Oct 5 2007 Brief amici curiae of New York, Hawaii, Illinois, and Maryland filed.
So that leaves 2 Amicus Curiae briefs not in public view. The one from AAP and the one from the 4 States. Searching the AAP site turned up nothing.
Thanks to Scotus Blog for this.
Edited to add: The American Civil Rights Union (ACRU) filed an Amicus Curiae (Friend of the Court) brief in Heller v. D.C. on Oct. 9th. You can get it here.
From the blog:
According to the Supreme Court Docket:
Oct 5 2007 Brief amicus curiae of American Civil Rights Union filed.
Oct 5 2007 Brief amici curiae of American Acdemy of Pediatrics, et al. filed.
Oct 5 2007 Brief amici curiae of New York, Hawaii, Illinois, and Maryland filed.
So that leaves 2 Amicus Curiae briefs not in public view. The one from AAP and the one from the 4 States. Searching the AAP site turned up nothing.
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