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

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I heard nobody take any exception to the fact the the English BoR precluded Scottsmen or Catholics from arms, whereas Protestant subjects of the Crown were permitted arms "appropriate to their station."
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Au contraire, I think that point will be troubling to the justices, and is in addition thereto, further evidence of the skepticism inherent in the development of the 2nd vis a vis the controlling of arms....

On the other hand.....

WildnayisaytoomuchAlaska TM
 
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"Suitable for civillian use" has no defined meaning."
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To me, a "civilian use" clause is likely to be interpreted as disturbingly close to the "sporting purpose" clauses we have today. Any such interpretation ignores the militia purpose. If only arms in "common civilian use" that are "lineal descendants" of musket and flintlock pistols are allowed, then no new weapons could ever be protected by the 2nd amendment. Tasers, pepper spray, phased plasma rifles in the 40 W range, etc. would not be protected. As military technology advances, the militia clause would become ever more obsolete.

If the 2nd amendment is a fundamental, individual right which is at least partly motivated from a militia purpose, it would protect militia weapons. The court will not accept this in a majority ruling. I'm sure the justices are paying very close attention to Clement's position.

It was noted during the argument that machine guns are not in common civilian use. However, what was not mentioned is that they are not in common use because they are banned; so it's circular reasoning to allow the ban because they are not now in common use. I think this is why Kennedy suggested that Miller was "deficient" -- that was in direct response to Gura's statement about the "militia clause as informing the type of weapon which is protected."

The Court may deviate from the Miller interpretation that militia weapons are protected. They may gut the militia clause.
 
The Court may deviate from the Miller interpretation that militia weapons are protected. They may gut the militia clause.
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This then would be judicial activism, which we all abhorr. It is a complete mis-read of the 2A by IGNORING THE TEXT OF THE LAW in favor of whatever is convenient or appeases the trembling masses.

How can the highest court of the land, beholden only to the text and contextual spirit of our founding documents, come to such an aberration of justice?

For that matter, how do Breyer, Stephens and Ginsberg sleep at night after hearing this case? They want, with every fiber of their being, to squash the case for personal convictions, knowing full-well that the text and historical context clearly present opposite to their own personal feelings. I'm certain they know it.

Why is it so hard to apply the law consistently without prejudice to the environment or participants?
 
Well, I read all this:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf

Things don't look so good. I mean around here, when all the state legislators all talk about how much they favor education, it a sign they are about to cut ed funding.

Much was made about the age of members of the Militia. They sort of went by the standard military age requirements and asked if those outside these requirements had 2nd Amendment rights. Our guys, in my opinion, fumbled on this point.

In the book, "Drums Along the Mohawk", supposedly based on true events, the standard military aged men were all gone following George Washington, when the villages suffered aggression from Redcoat led Indians. The women and elderly took to arms and successfully defended the villages.

In World War Two, Germany utilized young boys and elderly to fight the "Battle of the Bulge." This unlikely Army might have succeeded better had they not run out of fuel. As it was, they really made a showing.

A veteran without legs, in our "Pistol Club" made Master. A good guy to have on your side, defensive only.

Old saying, "God didn't make all people equal, Sam Colt did!" Sort of makes firearms important for defense, I think. We have had a very mellow existence for a lot of years. In a pinch, people not in the regular Army or Militia have been called to Militia duty.

A lot they did not discuss, like the failure of weapons restrictions world wide. They seemed to me to hint to assume gun bans work, or some indicated that authorities had the authority to do whatever, bringing up old English law.

Other opinions?
 
They may gut the militia clause.
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How can the highest court of the land, beholden only to the text and contextual spirit of our founding documents, come to such an aberration of justice?
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This is what concerns me about the "baby steps" approach, i.e. where Gura tries to narrowly and minimally win his case. That's fine if you're certain that the ruling will be very narrow while allowing for further challenges. BUT... look at the argument. The justices were asking very broad questions about the nature of a fundamental right. Most of the questions did not relate specifically to the 3 D.C. laws in question. The decision in this case will shape everything to come, but unfortunately it took so long for SCOTUS to take a 2nd amendment case, we're in a situation where the right is deeply infringed. The status quo is unfair to our side's argument: D.C. is able to argue for a total ban, but Gura was not able to argue for the "Libertarian ideal" that Dellinger ridiculed.

This is a bad situation to be in when the justices will write a decision which will be essentially unencumbered by precedent. (Note that Kennedy twice suggested that the court may not follow Miller, and the argument and questions were generally originalist, while there were almost no citations of precedent.) This is why we may end up with something substantially weaker than the strict scrutiny which protects other fundamental rights. And unfortunately, that sort of decision would leave us in a hole that we can't dig ourselves out of.

Bottom line: I understand what Gura was doing, and it was probably a good idea. But this case really should have happened about 40 years ago, and the lateness of this case works against us.
 
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To me, a "civilian use" clause is likely to be interpreted as disturbingly close to the "sporting purpose" clauses we have today. Any such interpretation ignores the militia purpose. If only arms in "common civilian use" that are "lineal descendants" of musket and flintlock pistols are allowed, then no new weapons could ever be protected by the 2nd amendment. Tasers, pepper spray, phased plasma rifles in the 40 W range, etc. would not be protected. As military technology advances, the militia clause would become ever more obsolete.
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I can't find the quote or the record at present, but I recall there was quite a bit of arguing in Congress about banning a new rifle. But that was somewhere after 1865 when they were arguing about the fearsome firepower of the lever-action rifle. The arguments aren't new, only the perceptions change.
 
All of you also need to keep in mind what is going on here. During oral arguments, the Court advises counsel to assume that the Justices are familiar with and have read the briefs filed in a case. All of the points that you bring up were covered thoroughly in the briefs filed over the last few weeks. At the conclusion of oral argument, the Justices retire to another conference at which the preliminary votes are tallied, and the most senior Justice in the majority assigns the initial draft of the Court's opinion to a Justice on his or her side. The most senior justice in the minority does the same. Drafts of the opinions circulate among the Justices until the Court is prepared to announce the judgment in a particular case. Right now, the Justices are trying to build a consensus.

The one who is the most persuasive is the one that will become the majority opinion. There is a lot of strategy and consensus building going on in the court right now.
 
For that matter, how do Breyer, Stephens and Ginsberg sleep at night after hearing this case? They want, with every fiber of their being, to squash the case for personal convictions, knowing full-well that the text and historical context clearly present opposite to their own personal feelings. I'm certain they know it.
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I think it's because they spend more time following the preamble to the Constitution than the letter of the Constitution. Not saying I agree with the practice.

In this case (and I remain cautiously optimistic about Ginsburg) they're probably thinking that the second amdt as written and intended doesn't serve to insure domestic tranquility or promote the general welfare.
 
This is a mistake tactically because, if it is a personal right, it cannot be licensed.
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Licensing is not at bar in this case. If an individual right is established and recognized, then any licensing scheme falls in just the same way that licensing of journalists or websites would.
 
mvpel,
I wouldn't be so sure of that given the concepts they were throwing around. If they go for an individual right but leave the bar low (perhaps rational basis), they might treat it more like the right to peaceable assembly.
 
I was just listening to Sandy Froman, Past President of the NRA, who said that the aim was to make legal firearms that were in common use. I keep hearing some of you talk about the militia (which I believe is no more) but OK, I'll bite. Where is this well regulated militia that you are talking about. Are you formed into units? Do you drill? Who is in charge? Are you a bunch of untrained (millitarily speaking) civilians with infantry weapons? Have any of you heard of the National Militia Act of 1903? What is that in your opinion and why was it enacted. Hope this is on topic:rolleyes:
 
for the first part as I read it the 2nd is there so that a militia can formed from the populous. it was described in several ways in that day. one of the more notable is " who are the militia? It is everyone, except for a few elected officials.".

As the National Militia Act of 1903 post dates the Bill of rights, it has no bearing on it's meaning. It does not and cannot modify the bill of rights.




I was just listening to Sandy Froman, Past President of the NRA, who said that the aim was to make legal firearms that were in common use. I keep hearing some of you talk about the militia (which I believe is no more) but OK, I'll bite. Where is this well regulated militia that you are talking about. Are you formed into units? Do you drill? Who is in charge? Are you a bunch of untrained (millitarily speaking) civilians with infantry weapons? Have any of you heard of the National Militia Act of 1903? What is that in your opinion and why was it enacted. Hope this is on topic
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Where is this well regulated militia that you are talking about. Are you formed into units? Do you drill? Who is in charge?
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The 2A meant to insure that an effective militia could be raised from the civilian population, and never meant to insure that every member was constantly drilled and trained. It was meant to insure an armed citizenry from which the militia could be formed.

Federalist 29, Concerning the Militia:

The project of disciplining all the militia of the United States is as
futile as it would be injurious, if it were capable of being carried
into execution. A tolerable expertness in military movements is a
business that requires time and practice. It is not a day, or even a
week, that will suffice for the attainment of it. To oblige the great
body of the yeomanry, and of the other classes of the citizens, to be
under arms for the purpose of going through military exercises and
evolutions, as often as might be necessary to acquire the degree of
perfection which would entitle them to the character of a well-regulated
militia, would be a real grievance to the people, and a serious public
inconvenience and loss.
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I keep hearing some of you talk about the militia (which I believe is no more) but OK, I'll bite.
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TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 311. Militia: composition and classes
How Current is This? (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
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http://www.law.cornell.edu/uscode/10/311.html
 
I think y'all are getting a little too caught up in the militia aspect.

I thinik it's pretty clear that the "militia" wording in the 2nd amendment is an introductory, and not operative, clause. The right of the people to keep and bear arms is not LIMITED to militia purposes, even thought he Militia was ORIGINALLY a major reason to have it. Whether or nto the militia still exists or exists no longer doesn't matter; the right of the PEOPLE to keep and bear arms shall not be infringed.

There were many reasons the 2nd amendment was written to protect the right of the people to keep and bear arms, an efficient militia just being one, and the only one mentioned.

Miller defined arms as something useful for militia purposes, and I'm fine with that definition, but while an individual rights ruling should rule out most bans, laws can still be passed -- they will just have to live up to the scrutiny defined (hopefully strict scrutiny).

Personally ... I think the NFA rules of automatic weapons ownership will be allowed to stand up to strict scrutiny -- still have to get a license and buy a tax stamp, etc.. But hopefully the ban on post 1985 guns will end.

Likewise I have no doubt that instant background checks will pass strict scrutiny.

My .02.
 
Tennessee Gentleman, I'm very aware of the Dick Act. It was the result of the Spanish-American War of 1898. It was the deal by which the Congress finally fullfilled the requirements of Art I section 8 clause 15. It federalized the individual State organized Militias and brought into existence, the National Guard, as we know it today.

It also brought about some other things that the States should have challenged, but didn't. In this, the States are complicit with the power grab of the Federal Government.

It does not, however, speak to the unorganized militia of the Constitution or of what is now USC Title 10, Chapter 13 Sec. 311 (then it was the Militia Act of 1798, wherein the two classes of the militia were first codified).

Further, well regulated did not have the meaning that you and Justice Breyer and SG Clement seem to attribute to it. As Justice Scalia corrected in the orals, it means "trained." Trained to what? Trained to the use of arms of the unorganized militia: i.e. Civilian weaponry. Which at the time, were the same arms that the soldier used.

All of the above is common knowledge to many, if not most, of us. We are not children to be talked down to, as if we know nothing of the history of our nation.

None of it addresses the instant case, and is therefore off topic.

Please, start a new thread to address this topic in the manner you seem to want to address.
 
Personally ... I think the NFA rules of automatic weapons ownership will be allowed to stand up to strict scrutiny -- still have to get a license and buy a tax stamp, etc.. But hopefully the ban on post 1985 guns will end.

Likewise I have no doubt that instant background checks will pass strict scrutiny.
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That is my hope as well.

As a weapon increases in potential for misuse, the "scrutiny" of the buyer increases.

BB Guns and Bows have no background checks.

Revolvers, Pistols, Rifles and Shotguns have instant checks.

MG's, DD's, etc. have an NFA application, a tax stamp (that is reasonable), and perhaps a safe storage requirement at most.
 
Question?

I think we have gone somewhat far afield. As I recall, the question the court has agreed to answer is:

Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, 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?

Their opinion will be phrased in that context. the majority opinion may be very short and concise either the appellate court got it right or wrong. They are under no obligation to expand. I heard at least one suggestion indicating that might just happen. Even the question was brought up about bear arms in orals they are under no obligation to render an opinion on the bearing of arms. They are not actually under any obligation to render a ruling on level of scrutiny they could let the appellate ruling stand in total.

Then again they are free to go as far as they want.

My guess is they already know how they will rule. The only question is the wording of the majority and minority opinions. Now if we only knew who is to write those opinions it would tell us a lot about what we could expect. but we won't know that until it a done deal. Further speculation is mute. we just need to wait. I don't like it but that is the way it is, we wait.
 
Here is one pundits view:

March 18, 2008
What the Opinions May Look Like in D.C. v. Heller
posted by Mike O'Shea

Predictions based on oral argument are always highly tentative. With that caveat, here's my best guess after listening to the Heller audio on C-SPAN:

A 5-1-3 decision in favor of Mr. Heller.

A five-Justice majority opinion authored by Chief Justice Roberts or Justice Kennedy (so I agree with Orin Kerr on the likely authorship) joined by Justices Scalia, Thomas, and Alito. The opinion will uphold the individual rights view of the Second Amendment, recognizing self-defense as a protected purpose of the right to arms, and invalidating at least some of the challenged provisions of D.C. law. The Court will distance itself from U.S. v. Miller and Miller's suggestion that the scope of protected "Arms" is closely dependent on what constitutes ordinary military equipment. What we'll get is a constitutionalization and moderate expansion of the post-1689 English right to arms. Justice Kennedy particularly seemed to favor this sort of approach.

(Justice Thomas will probably concur separately to assert a very robust conception of the Second Amendment right to arms. If the majority opinion does not address the proper standard of review for Second Amendment cases, Justice Thomas will write separately to urge that strict scrutiny be applied. Justice Scalia may join this concurrence.)

Justice Breyer will write for himself only, in an opinion that will probably be styled as a concurrence in part and dissent in part. He will agree with the majority that the Second Amendment protects an individual right that can be asserted outside of the context of active participation in the militia, but will argue that the right is nonetheless closely focused on civic purposes, not self-defense. Since D.C.'s laws restrict armed self-defense but still permit individuals to keep rifles and shotguns for other purposes, Justice Breyer will reason, D.C.'s regulations are reasonable.

Justice Stevens will dissent, in an opinion joined by Justice Souter and Justice Ginsburg. These three Justices will basically accept D.C.'s position: the Second Amendment may confer an individual right to arms, but it is not a right that can be asserted outside of the context of participation in a state-regulated military organization.

(I am hesitant in assigning Justice Ginsburg to this position. She may agree with Justice Breyer, yielding a 5-2-2 configuration.)

More later.

* * *

http://www.concurringopinions.com/archives/2008/03/snap_prediction.html

WildnetnudgeAlalaska ™
 
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