D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread
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Associated Press 11/13
Nov 13, 10:22 AM EST
Court Takes No Action in Guns Case
WASHINGTON (AP) -- The Supreme Court took no action Tuesday in the case involving the District of Columbia's ban on handguns.
The justices discussed the case at their private conference on Friday, but reached no resolution.
Four justices must vote to grant an appeal. The court does not always reach a decision the first time it discusses a case.
At issue is the capital's 31-year ban on handguns, among the strictest gun-control laws in the nation. In March, a federal appeals court struck down the ban as incompatible with the Second Amendment.
The next time the court could announce its decision about hearing the case is Nov. 26.
The case is District of Columbia v. Heller, 07-290.
Nov 13, 10:22 AM EST
Court Takes No Action in Guns Case
WASHINGTON (AP) -- The Supreme Court took no action Tuesday in the case involving the District of Columbia's ban on handguns.
The justices discussed the case at their private conference on Friday, but reached no resolution.
Four justices must vote to grant an appeal. The court does not always reach a decision the first time it discusses a case.
At issue is the capital's 31-year ban on handguns, among the strictest gun-control laws in the nation. In March, a federal appeals court struck down the ban as incompatible with the Second Amendment.
The next time the court could announce its decision about hearing the case is Nov. 26.
The case is District of Columbia v. Heller, 07-290.
Today's Cato Daily Dispatch, Robert Levy on D.C. law, USSC and Second Amendment
Unholster the 2nd Amendment
The Supreme Court, in weighing D.C.'s handgun ban, has a chance to reaffirm the right to own guns.
By Robert A. Levy
November 14, 2007
It's been 68 years since the U.S. Supreme Court examined the right to keep and bear arms secured by the 2nd Amendment. It's been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It's been eight months since the second most important court in the country, the U.S. Court of Appeals for the District of Columbia Circuit, declared the D.C. ban — among the most restrictive in the nation — unconstitutional. The obvious incongruity of those three events could be resolved soon.
Later this month, the Supreme Court will decide whether to review the circuit court's blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the 2nd Amendment protects the rights of individuals. If the high court takes the case, oral arguments likely will be held this spring, with a decision expected before June 30. (Full disclosure: I am co-counsel for the plaintiffs and am one of the attorneys who initiated the lawsuit.)
Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.
More by Robert A. LevyThe stakes are immense. Very few legal questions stir the passions like gun control. And this round of the courtroom battle will be fought during the heat of the 2008 election. Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged 2nd Amendment violation might have occurred. Thus, Parker could have an immediate effect not only on D.C. gun regulations but on federal regulations.
Equally important, if the Supreme Court affirms the D.C. circuit's holding, state gun control laws across the nation could be vulnerable to constitutional attack. But before that happens, two other issues would have to be litigated.
The first is the knotty question of whether the 2nd Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But in the aftermath of the Civil War, much of the Bill of Rights was considered "incorporated" by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the 2nd Amendment has not yet been settled. And that issue did not arise in Parker because the District of Columbia is a federal enclave, not a state.
The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that 2nd Amendment rights are absolute. After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.
Similarly, gun regulations can be imposed on some weapons (e.g., missiles), some people (e.g., preteens) and some uses (e.g., murder). Indeed, the appeals court acknowledged that Washington might be able to justify such things as concealed-carry restrictions, registration requirements and proficiency testing.
But the Constitution does not permit an across-the-board ban on all handguns, in all homes, for all residents, as in the case of the Washington ban (with the exception of current and retired police officers). Somewhere in the middle, regulations will be deemed constitutional even if the Supreme Court upholds the lower court.
t's time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.
Meanwhile, the high court also will have to reexamine its 1939 gun case, United States vs. Miller, which generated more heat than light regarding the 2nd Amendment. The core holding of Miller, stripped of confusing clutter, was that protected weapons must be "in common use" and must bear "some reasonable relationship to the preservation or efficiency of a well-regulated militia."
Parker is entirely compatible with that holding. Pistols, which are banned in D.C., are self-evidently "in common use," and they have been carried into battle by American troops in every conflict since the Revolutionary War. But a proper reading of the 2nd Amendment should not attempt to link each and every weapon to the militia — except to note that the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service.
Significantly, the 2nd Amendment refers explicitly to "the right of the people," not the rights of states or the militia. And the Bill of Rights is the section of our Constitution that deals exclusively with individual liberties.
That is why there has been an outpouring of legal scholarship — some from prominent liberals — that recognizes the 2nd Amendment as securing the right of each individual to keep and bear arms.
Considering the text, purpose, structure and history of our Constitution, and the clear weight of legal scholarship, it's time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.
This article appeared in the Los Angeles Times on November 14, 2007.
ETA: Added the URL - Antipitas
Unholster the 2nd Amendment
The Supreme Court, in weighing D.C.'s handgun ban, has a chance to reaffirm the right to own guns.
By Robert A. Levy
November 14, 2007
It's been 68 years since the U.S. Supreme Court examined the right to keep and bear arms secured by the 2nd Amendment. It's been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It's been eight months since the second most important court in the country, the U.S. Court of Appeals for the District of Columbia Circuit, declared the D.C. ban — among the most restrictive in the nation — unconstitutional. The obvious incongruity of those three events could be resolved soon.
Later this month, the Supreme Court will decide whether to review the circuit court's blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the 2nd Amendment protects the rights of individuals. If the high court takes the case, oral arguments likely will be held this spring, with a decision expected before June 30. (Full disclosure: I am co-counsel for the plaintiffs and am one of the attorneys who initiated the lawsuit.)
Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.
More by Robert A. LevyThe stakes are immense. Very few legal questions stir the passions like gun control. And this round of the courtroom battle will be fought during the heat of the 2008 election. Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged 2nd Amendment violation might have occurred. Thus, Parker could have an immediate effect not only on D.C. gun regulations but on federal regulations.
Equally important, if the Supreme Court affirms the D.C. circuit's holding, state gun control laws across the nation could be vulnerable to constitutional attack. But before that happens, two other issues would have to be litigated.
The first is the knotty question of whether the 2nd Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But in the aftermath of the Civil War, much of the Bill of Rights was considered "incorporated" by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the 2nd Amendment has not yet been settled. And that issue did not arise in Parker because the District of Columbia is a federal enclave, not a state.
The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that 2nd Amendment rights are absolute. After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.
Similarly, gun regulations can be imposed on some weapons (e.g., missiles), some people (e.g., preteens) and some uses (e.g., murder). Indeed, the appeals court acknowledged that Washington might be able to justify such things as concealed-carry restrictions, registration requirements and proficiency testing.
But the Constitution does not permit an across-the-board ban on all handguns, in all homes, for all residents, as in the case of the Washington ban (with the exception of current and retired police officers). Somewhere in the middle, regulations will be deemed constitutional even if the Supreme Court upholds the lower court.
t's time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.
Meanwhile, the high court also will have to reexamine its 1939 gun case, United States vs. Miller, which generated more heat than light regarding the 2nd Amendment. The core holding of Miller, stripped of confusing clutter, was that protected weapons must be "in common use" and must bear "some reasonable relationship to the preservation or efficiency of a well-regulated militia."
Parker is entirely compatible with that holding. Pistols, which are banned in D.C., are self-evidently "in common use," and they have been carried into battle by American troops in every conflict since the Revolutionary War. But a proper reading of the 2nd Amendment should not attempt to link each and every weapon to the militia — except to note that the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service.
Significantly, the 2nd Amendment refers explicitly to "the right of the people," not the rights of states or the militia. And the Bill of Rights is the section of our Constitution that deals exclusively with individual liberties.
That is why there has been an outpouring of legal scholarship — some from prominent liberals — that recognizes the 2nd Amendment as securing the right of each individual to keep and bear arms.
Considering the text, purpose, structure and history of our Constitution, and the clear weight of legal scholarship, it's time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.
This article appeared in the Los Angeles Times on November 14, 2007.
ETA: Added the URL - Antipitas
I never understood the Miller decision. If sawed off shotguns are not military or militia weapons, then why is the military using short-barrelled shotguns (certainly NFA weapons) in Iraq right now?
If the 2nd Amendment serves to protect weapons that would be used by a militia or military unit, wouldn't howitzers be appropriate as would other crew served weapons like heavy machine guns? Wouldn't at the minimum a BAR, or SMG count as something reasonably issued to Militia troops?
Maybe it isn't so much Miller that I don't understand as it is the interpretation of US V Miller. Perhaps it is the same as the A. Jackson statement after the court sided with the Cherokees in 1830: "They've made their ruling, now let them enforce it".
If the Constitutional guarantees don't count in the Dist. of Columbia because it is not a "state" can I then go buy a slave there?
If the 2nd Amendment serves to protect weapons that would be used by a militia or military unit, wouldn't howitzers be appropriate as would other crew served weapons like heavy machine guns? Wouldn't at the minimum a BAR, or SMG count as something reasonably issued to Militia troops?
Maybe it isn't so much Miller that I don't understand as it is the interpretation of US V Miller. Perhaps it is the same as the A. Jackson statement after the court sided with the Cherokees in 1830: "They've made their ruling, now let them enforce it".
If the Constitutional guarantees don't count in the Dist. of Columbia because it is not a "state" can I then go buy a slave there?
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I was hoping for a decision. On the one hand, I want them to take it because I think it will hold up as individual rights for gun ownership. But at the same time I would be scared to death that it could go the other way.
Thomas would be with us and I would hope Roberts, Scalia I think is on our side, but again, you never know. It would be nice if the end it here and make a decision and set a precedent....that is if it went our way.
Thomas would be with us and I would hope Roberts, Scalia I think is on our side, but again, you never know. It would be nice if the end it here and make a decision and set a precedent....that is if it went our way.
kjm writes:
I never understood the Miller decision. If sawed off shotguns are not military or militia weapons, then why is the military using short-barrelled shotguns (certainly NFA weapons) in Iraq right now?
If the 2nd Amendment serves to protect weapons that would be used by a militia or military unit, wouldn't howitzers be appropriate as would other crew served weapons like heavy machine guns? Wouldn't at the minimum a BAR, or SMG count as something reasonably issued to Militia troops?
Maybe it isn't so much Miller that I don't understand as it is the interpretation of US V Miller. Perhaps it is the same as the A. Jackson statement after the court sided with the Cherokees in 1830: "They've made their ruling, now let them enforce it".
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In my view, this business of/with sort barreled shotguns being "against the law" is pure baloney.
As to military use thereof, they were issued during WW1, which I'm absolutely certain the USSC was fully aware of in 1939. They were also used by the military in the period "between the wars", as well as during Viet Nam action.
As to your reference to howitzers, they are crew served weapons, not personal arms, such as an infantryman would be armed with. I would think that the SMG as well as SELECTIVE FIRE ARMS (Assault Rifles) would be included in Second Amendment coverage, as the above are obviously, personal weapons, issued to the individual infantryman.
Of course, re the above, one should realize that my orientation is NOT anti gun. I submit that this basic factor makes a huge difference in outlook.
I never understood the Miller decision. If sawed off shotguns are not military or militia weapons, then why is the military using short-barrelled shotguns (certainly NFA weapons) in Iraq right now?
If the 2nd Amendment serves to protect weapons that would be used by a militia or military unit, wouldn't howitzers be appropriate as would other crew served weapons like heavy machine guns? Wouldn't at the minimum a BAR, or SMG count as something reasonably issued to Militia troops?
Maybe it isn't so much Miller that I don't understand as it is the interpretation of US V Miller. Perhaps it is the same as the A. Jackson statement after the court sided with the Cherokees in 1830: "They've made their ruling, now let them enforce it".
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In my view, this business of/with sort barreled shotguns being "against the law" is pure baloney.
As to military use thereof, they were issued during WW1, which I'm absolutely certain the USSC was fully aware of in 1939. They were also used by the military in the period "between the wars", as well as during Viet Nam action.
As to your reference to howitzers, they are crew served weapons, not personal arms, such as an infantryman would be armed with. I would think that the SMG as well as SELECTIVE FIRE ARMS (Assault Rifles) would be included in Second Amendment coverage, as the above are obviously, personal weapons, issued to the individual infantryman.
Of course, re the above, one should realize that my orientation is NOT anti gun. I submit that this basic factor makes a huge difference in outlook.
My fear is that this court is not particularly friendly to individual rights. We have 4 solid leftists on the court and a middle of the roader. None of those seem overly concerned with original intent or enforcement as written. The other 4 are a toss up. The only thing worse would be to wait for Hillary's appointments to swing the court further left.
The court didn't say that short barrel shotguns were NOT a military weapon, they said that there had been no evidence presented that they were.
The US Supreme Court cannot hear new evidence, they can only review the record of the case as it stands, and they didn't feel that it was appropriate to make an assumption, in the absence of any evidence or argument in either direction, that short shotguns WERE suitable as military weapons.
The US Supreme Court cannot hear new evidence, they can only review the record of the case as it stands, and they didn't feel that it was appropriate to make an assumption, in the absence of any evidence or argument in either direction, that short shotguns WERE suitable as military weapons.
Oddly enough the Chief Justice of that time (forget his name) was a WWI artillery captain and so he must have been familiar with the use of the 1897 pump shotgun in common issue at the time.
You are correct though, niether Miller nor his attorney showed up to argue the case. It is believed that Miller was dead at the time. Nobody argues that Mr. Miller wasn't a bootlegger or moonshiner, the government was after him based on an NFA violation rather than the bootlegging or moonshining.
You are correct though, niether Miller nor his attorney showed up to argue the case. It is believed that Miller was dead at the time. Nobody argues that Mr. Miller wasn't a bootlegger or moonshiner, the government was after him based on an NFA violation rather than the bootlegging or moonshining.
A judge having personal knowledge of something, and having something proven in open court, are two different things.
http://en.wikipedia.org/wiki/Judicial_notice
In the United States, Article II of the Federal Rules of Evidence ("FRE") address judicial notice in federal courts, and this article is widely copied by U.S. States. FRE 201(b)) permit judges to take judicial notice of two categories of facts:
1. Those that are "generally known within the territorial jurisdiction of the trial court" (e.g. locations of streets within the court's jurisdiction) or
2. Those that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" (e.g. the day of the week on a certain date).
The Founding Fathers made a distinction between "arms" and "ordnance" (which, if I recall correctly, they called "ordinance"). Remember, they had field artillery and mortars even back then. The 2A doesn't say that citizens can own ordnance (such as a naval cannon, as just one example of a crew-served weapon circa 1776).
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I would like to see them do away with the SBR rule. It's totally irrelevant given that the standard U.S. Army issued weapon has a 14.5" barrel and the XM8 in its standard form would have had a 12.5" barrel.
A letter of marque and reprisal is meaningless if private citizens are not permitted to own warships equipped with cannons.
Just governments derive their power by delegation at the consent of the people. If the government has the authority to manufacture, own, and operate a Phalanx CIWS, where else but from the people who established the government do you think they got that authority?
Just governments derive their power by delegation at the consent of the people. If the government has the authority to manufacture, own, and operate a Phalanx CIWS, where else but from the people who established the government do you think they got that authority?
I remember reading about a gun store near Long Island that, until the middle of last century, sold all sorts of weapons, including artillery, torpedoes (now called sea mines) and anything else that the military had.
The fact is, no one trusts anyone. The law against machine guns is the same as a law against cannons. The difference is one of degree.
The fact is, no one trusts anyone. The law against machine guns is the same as a law against cannons. The difference is one of degree.
mvpel wrote:
The court didn't say that short barrel shotguns were NOT a military weapon, they said that there had been no evidence presented that they were.
The US Supreme Court cannot hear new evidence, they can only review the record of the case as it stands, and they didn't feel that it was appropriate to make an assumption, in the absence of any evidence or argument in either direction, that short shotguns WERE suitable as military weapons.
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It never was, nor would it be today, a question of "new evidence". It would be today, as it was in 1939 a matter of HISTORICAL FACT, the historical fact being that the U.S. military issued short barreled shotguns during
World War1. Same were also used during the course of military actions in what were then known as "the years between the wars." Problem was the Miller had no representation before the USSC, meaning that the court heard only the government's side, and the government, I suppose, didn't feel bound to wave HISTORICAL FACT before the court. Had Miller, dead or alive at the time been represented before the court, Miller v. U.S. might well have read in an entirely different manner.
Of course, for people who read the ruling and judicial comments, the slant put on this case by the anti gunners would never have held the least bit of water, but that is another matter. Point is that, correct me if I'm wrong, there never was a question of new evidence, for there was and remains historical fact.
The court didn't say that short barrel shotguns were NOT a military weapon, they said that there had been no evidence presented that they were.
The US Supreme Court cannot hear new evidence, they can only review the record of the case as it stands, and they didn't feel that it was appropriate to make an assumption, in the absence of any evidence or argument in either direction, that short shotguns WERE suitable as military weapons.
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It never was, nor would it be today, a question of "new evidence". It would be today, as it was in 1939 a matter of HISTORICAL FACT, the historical fact being that the U.S. military issued short barreled shotguns during
World War1. Same were also used during the course of military actions in what were then known as "the years between the wars." Problem was the Miller had no representation before the USSC, meaning that the court heard only the government's side, and the government, I suppose, didn't feel bound to wave HISTORICAL FACT before the court. Had Miller, dead or alive at the time been represented before the court, Miller v. U.S. might well have read in an entirely different manner.
Of course, for people who read the ruling and judicial comments, the slant put on this case by the anti gunners would never have held the least bit of water, but that is another matter. Point is that, correct me if I'm wrong, there never was a question of new evidence, for there was and remains historical fact.
"Historical fact" is not a legal term of art, but "judicial notice" is. It's about fairness and due process.
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In the United States, Article II of the Federal Rules of Evidence ("FRE") address judicial notice in federal courts, and this article is widely copied by U.S. States. FRE 201(b)) permit judges to take judicial notice of two categories of facts:
1. Those that are "generally known within the territorial jurisdiction of the trial court" (e.g. locations of streets within the court's jurisdiction) or
2. Those that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" (e.g. the day of the week on a certain date).
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Something that is general knowledge to a veteran infantryman in the jurisdiction of the trial court is not general knowledge among the knitting circles in the jurisdiction of the court.
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In the United States, Article II of the Federal Rules of Evidence ("FRE") address judicial notice in federal courts, and this article is widely copied by U.S. States. FRE 201(b)) permit judges to take judicial notice of two categories of facts:
1. Those that are "generally known within the territorial jurisdiction of the trial court" (e.g. locations of streets within the court's jurisdiction) or
2. Those that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned" (e.g. the day of the week on a certain date).
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Something that is general knowledge to a veteran infantryman in the jurisdiction of the trial court is not general knowledge among the knitting circles in the jurisdiction of the court.
So what's your point? We're talking about what the 2A actually says. It specifically mentions "arms," not "ordnance." The Founding Fathers understood a distinction between the two terms, just as they did "defence" and "security," and "keep" and "bear." A proper understanding of the 2A necessarily includes a proper understanding of its terms, just like the debate about what "militia" means.
If you believe that you, as a citizen, should have a right to own ordnance, fine, that's your belief. If citizens in the past have owned sea mines and whatnot, that's an interesting discussion too. However, those issues are different from the issue of what the 2A actually says. To make the argument that the 2A includes ordnance is to stretch the 2A in the opposite direction that the anti-gunners stretch it.
The 2A is broader than the anti-gunners define it and narrower than the pro-ordnancers define it. It is what it is. Whether it is too broad or too narrow are two different discussions.
Can you point me to the page in "Origin of the Second Amendment" where a contemporary of the Bill of Rights propounds on the difference between "ordnance" and "arms?"
Tenche Coxe, meanwhile, expressed the sentiment that:
Again, if the government's authority to manufacture and possess a Phalanx CIWS did not come from the people who established it, then where did it come from?
Tenche Coxe, meanwhile, expressed the sentiment that:
Again, if the government's authority to manufacture and possess a Phalanx CIWS did not come from the people who established it, then where did it come from?
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