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

[Al Norris]

A debate on the scope of the 2A rights are well beyond this thread. Start a new thread or do a search and pick up an older thread (of which there are many) to debate this.

This thread concerns the grant or denial of Certiorari in D.C. vs Heller, the current responses and amici briefs... Which essentially boil down to the question of whether the right is an individual right and if the current D.C. criminal codes are contstitutional, should the right be held as an individual right.

 

[mvpel]

This thread concerns the grant or denial of Certiorari in D.C. vs Heller, the current responses and amici briefs... Which essentially boil down to the question of whether the right is an individual right and if the current D.C. criminal codes are contstitutional, should the right be held as an individual right.

Which goes directly to the scope of the Second Amendment, right? Can't we keep ourselves entertained until the decision to grant or deny certiorari comes down?

 

[Al Norris]

This thread concerns the grant or denial of Certiorari in D.C. vs Heller, the current responses and amici briefs... Which essentially boil down to the question of whether the right is an individual right and if the current D.C. criminal codes are constitutional, should the right be held as an individual right.

Which goes directly to the scope of the Second Amendment, right? Can't we keep ourselves entertained until the decision to grant or deny certiorari comes down?

Not exactly. This decision, should the SCOTUS take the case will only answer the question of whether or not a complete ban on a single type of firearms (handguns) is constitutional. It may or may not answer the question on the gunlocks and/or disassembly. The question(s) presented by both appellants and respondents will allow the Court to chose exactly what question(s) will be answered. (that would be an on-topic discussion!)

It won't answer the question of whether a ban on machine guns violates the protections (922(o)). It won't answer the question of what a letter of marque and reprisal mean. It won't answer any questions on the constitutionality of the NFA. It won't answer the question of whether the States fall into the scope of the protections (incorporation via the 14th).

The Court may answer the original meaning of the 2A, but expect that in the form of dicta* and not part of the actual ruling/opinion.

So what would be the point of posting about any of this, when it will not even be covered by the decision? For entertainment, alone? Off topic, in that sense. This is one of those rare threads were the variables are too well defined to wonder about things the specific ruling/opinion will never reach.

That is why I suggested starting a new thread or opening any number of older threads, to continue with such speculation.

*dictum n. Latin for "remark", a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. The standard counter argument is: "it is only dictum (or dicta)."

 

[alan]

mvpel writes, I assume in response to my use of the term "historical fact":

"Historical fact" is not a legal term of art, but "judicial notice" is. It's about fairness and due process.

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

Is there a meaningful difference between the term I used "historical fact" and your reference to "judicial notice"? Bing a retired draftsman/designer who has about zilch in the way of legal background, it would seem to me that there isn't. I most certainly could be wrong though, however I see no difference between "judicial notice", and "historical fact", especially when members of the court might have themselves, during the course of military service, personally seen the issue and or use in/by the U.S. Military of short barreled shotguns.

 

[mvpel]

The difference is that you can't take judicial notice of "historical fact."

Just because a judge knows or believes a particular thing to be true doesn't mean that he can, by the rules of the justice system, just declare it so by fiat. The judge's role is as a referee, not as a font of factual information.

Although you may know as simple fact that a Burmester set consists of the three most commonly-used French curves, but this is just another example of a fact that would not be appropriate for a court to take judicial notice of, even if every last judge on the bench was formerly a draftsman.

It's in a different class of factual information than the fact that the third Tuesday of August 1985 was the 20th.

 

[Al Norris]

According to the Supreme Court docket, Heller will again go before Conference on Tues. the 20th.

At scotusblog:

On Tuesday, the Justices are scheduled to hold a private conference. (Click here for our list of petitions to watch.) Among the cases up for consideration are District of Columbia v. Heller (07-290) and a cross-petition, Parker v. District of Columbia (07-335), both stemming from the District’s handgun ban. Orders reflecting grants of certiorari (if any) are expected Tuesday afternoon; all other orders are expected the following Monday, November 26.

A question. According to Bartholomew Roberts in this post at THR, it is rumored that attorneys for both sides will be in attendence. I also note that this is unusual. So the question is: Is there a possible Per Curiam order in the making?

 

[mvpel]

That would be astounding, if so. Keeping fingers crossed.

 

[Doggieman]

'nother reason

I would be surprised at a unanimous opinion but then again maybe I wouldn't be:

The antis are arguing ultimately that the 2nd amendment is no longer relevant since militias are no longer used. But if a constitutional amendment is no longer relevant, then this cuts into the relevance of the supreme court itself. Let's face it, if you start erasing stuff from the constitution, then the jurisdiction of the court shrinks. It has fewer issues to decide upon, fewer legal tools to use, and becomes overall less powerful. And there's no political entity that likes to reduce its own power.

 

[alan]

mvpel:

Interesting points you raised in post 125.

BTW, this Burmester set, you mentioned is something new to me, possibly because I made greater use of templates (circle and elipse of various sizes) than of french curves, or were you simpy exercising literary license.

 

[mvpel]

Well you see my point, then, about taking judicial notice of certain things. For all you know, I could be pulling this business about Burmester sets of french curves out of my wazoo.

Thus, if this was an essential element of the case, we'd need to have a recognized, credentialed expert in pre-digital drafting take the stand under oath and expound upon the history and utility of french curves and why a particular set of three is referred to as a Burmester set.

 

[publius42]

That's interesting news, Antipitas. Both sides want cert, but for different reasons. The SC is free to grant cert for any reason, including reasons not offered by either side.

If they were going to grant a cert petition, no reason to call the lawyers into a private session.

If they were going to deny cert, there's also no reason.

It suggests to me they plan to grant cert and consider some question nobody asked.

 

[Al Norris]

That may be what's going on. Since both sides have different questions, the Court may just be telling them what question will be answered.

Some of the "experts" I have read have said that because both sides are asking different questions, that it pretty well leaves it to the Court to decide what the issue is.

 

[Garand Illusion]

So ... to sum up most of the posts above ...

• The justices can answer/not answer anything they want.
• A "States Right" finding would pretty much invalidate an entire amendment. And tick a lot of people off.
• An "individual right" finding would turn back a better than 30 year old law, and open the door to an assault on laws nearly 100 years old. And tick a lot of people off.
• Though no one can know their mind, it seems most people assume 4 judges are pro-individual rights.
• And 4 judges, to different degrees, are pro States Right
• With 1 swing vote that has tended to swing "conservative."

Perhaps I'm jaded, but I just expect the Court to weasel out of the issue as much as they can, and deal with only the most limited of issues they feel they have too (and maybe none at all). I hope I'm wrong and there is more moral fortitude and courage in SCOTUS than I have come to expect from any branch of the government, but my low expectations are rarely in vain.

Or, to sum up further, BOHICA! Maybe for both sides.

In about 12 hours we may have further insights.

Or not.

 

[publius42]

The SC usually seems to handle cases so as to change the status quo as little as possible. So, you can work backwards to their conclusion by figuring out which conclusion will change things the least.

I'm not sure which conclusion that is. Maybe they'll say what the 5th Circuit said - that there is an individual RKBA, but it's not like those others in the BoR. It can be reasonably restricted without strict scrutiny.

In other words, the individual right is there, but meaningless in practical terms. Kind of like when they overturned the gun free school zones act in the Lopez case, knowing that Congress already had a brand new act which was identical in effect.

 

[mvpel]

The US Supreme Court has repeatedly described the Second Amendment in terms of an individual right, most directly in the Verdugo-Urquidez case. We may be surprised if they come down with a clear individual right ruling, but we shouldn't necessarily be.

Don't chill the champagne yet, though.

 

[Garand Illusion]

SCOTUS has spoken. For better or worse, it's GAME ON! And they did NOT let DC get away with redefining the question:

http://www.scotusblog.com/wp/?s=heller+district+columbia

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if it, in the end, decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

The city of Washington’s appeal (District of Columbia v. Heller, 07-290) is expected to be heard in March — slightly more than a year after the D.C. Circuit Court ruled that the right is a personal one, at least to have a gun for self-defense in one’s own home.

The Justices chose to write out for themselves the question(s) they will undertake to answer. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.

Here is the way the Court phrased the granted issue:

“Whether the following provisions — D.C. Code secs. 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?”

In a matter of months, things will change. And it looks like they'll change big time!

Whether or not we on this board LIKE that change remains to be seen ...

 

[mvpel]

I'm very excited!

The Supreme Court has, again and again, described the Second Amendment in terms of an individual right over the decades.

I think it's time to chill the champagne.

 

[buzz_knox]

The Supreme Court has, again and again, described the Second Amendment in terms of an individual right over the decades.

I think it's time to chill the champagne.

On other subjects, the Supreme Court has consistently held one thing, and then turned around did the opposite when the "facts" (which could mean actual facts, politics, personal interests, etc) dictated otherwise.

And remember that the vast majority of Supreme Court pronouncements on the Second Amendment were in dicta, dissenting opinions, or other non-binding statements.

The other side has the same reason to be chilling champagne as any of us. This could be a complete and total nightmare for us.

 

[Al Norris]

The headline from Alan Guras blog: Supreme Court Agrees to Hear Second Amendment Challenge to D.C. Gun Ban

From Scotublog: Court agrees to rule on gun case

The Court rephrased the question thusly: “Whether the following provisions — D.C. Code secs. 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?”

Please note the part I've underlined. This may or may not be chilling.

We are currently looking at a late March or early April date for Orals.

 

[Garand Illusion]

The Court rephrased the question thusly: “Whether the following provisions ... 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?”

Please note the part I've underlined. This may or may not be chilling.

I don't have the same knowledge of law and scotus cases as you do, but I actually thought that was a positive. It implies there is a second amendment right in place.

Now if they had asked it:

"Do individuals not affiliated with any state-regulated milita have a constitutional right," then I would have been much more worried.

The fact that they threw both handguns and long guns in together (handguns and other firearms) seems to me that they must be intending to make a pretty general and far-reaching ruling.

I've just kind of been figuring they would accept the DC question and basically say that "as long as people can own long guns it's OK to strictly regulate handguns" and pretty much overturn the ruling while giving a weak argument for an individual right.

But now that they've thrown them all in together ... it looks like it may be all or nothing.

And if it's nothing, I wouldn't be surprised to have the Clinton administration sign on to some anti-civilian gun ownership UN treaty or otherwise support taking away the rights we currently have.