In the first 5 minutes the protagonist shoots down a helicopter in flight with a .50. This is obviously not good. More later.
UPDATE: Aside from the propaganda value of the opening sequence, and a few gratuitous left-wing political comments, the movie itself wasn't too bad. It followed the book fairly closely and had good reasons for those points that it simplified or changed. They did not get into many technical details, but if you were watching for them, they were mentioned at least in passing. Stylistically, fairly close to The Bourne Identity, which I enjoyed. However, nothing particularly special either.
4 See Silveira, 312 F.3d at 1092; Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999); United States v. Wright, 117 F.3d 1265, 1273-74 (11th Cir. 1997); United States v. Rybar, 103 F.3d 273, 286 (3d Cir. 1996); Love v. Pepersack, 47 F.3d 120, 122 (4th Cir. 1995); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992); United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977); United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976); Cases v. United States, 131 F.2d 916, 921-23 (1st Cir. 1942).
The District cites a decision in the Second Circuit, United States v. Toner, 728 F.2d 115 (2d Cir. 1984), as holding that the Second Amendment protects only a right related to ?civic purposes.? The District?s reliance on this case is plainly wrong. In Toner, the court stated only that the Second Amendment right was not ?fundamental.? Id. at 128. The opinion in no way addressed the question whether the Second Amendment requires that use and possession of a weapon be for civic purposes. We are not aware of any Second Circuit decision that directly addresses the collective versus individual nature of the Second Amendment right. See Silveira, 312 F.3d at 1063 n.11 (noting that only the Second and D.C. Circuits had yet to decide nature of Second Amendment right).
6 Of the state appellate courts that have examined the question, at least seven have held that the Second Amendment protects an individual right, see Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 240 (Colo. Ct. App. 1988); Brewer v. Commonwealth, 206 S.W.3d 343, 347 & n.5 (Ky. 2006); State v. Blanchard, 776 So. 2d 1165, 1168 (La. 2001); State v. Nickerson, 247 P.2d 188, 192 (Mont. 1952); Stillwell v. Stillwell, 2001 WL 862620, at *4 (Tenn. Ct. App. July 30, 2001); State v. Anderson, 2000 WL 122218, at *7 n.3 (Tenn. Crim. App. Jan. 26, 2000); State v. Williams, 148 P.3d 993, 998 (Wash. 2006); Rohrbaugh v. State, 607 S.E.2d 404, 412 (W. Va. 2004), whereas at least ten state appellate courts (including the District of Columbia) have endorsed the collective right position, see United States v. Sandidge, 520 A.2d 1057, 1058 (D.C. 1987); Commonwealth v. Davis, 343 N.E.2d 847, 850 (Mass. 1976); In re Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); Harris v. State, 432 P.2d 929, 930 (Nev. 1967); Burton v. Sills, 248 A.2d 521, 526 (N.J. 1968); In re Cassidy, 51 N.Y.S.2d 202, 205 (N.Y. App. Div. 1944); State v. Fennell, 382 S.E.2d 231, 232 (N.C. Ct. App. 1989); Mosher v. City of Dayton, 358 N.E.2d 540, 543 (Ohio 1976); Master v. State, 653 S.W.2d 944, 945 (Tex. App. 1983); State v. Vlacil, 645 P.2d 677, 679 (Utah 1982); see also Kalodimos v. Village of Morton Grove, 470 N.E.2d 266, 269 (Ill. 1984) (stating in dicta that Second Amendment protects collective right).
7See 1 LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW 902 & n.221 (3d ed. 2000). Professor Tribe was not always of this view. See Sanford Levinson, The Embarrassing Second Amendment, 99 YALE L.J. 637, 640 (1989) (critiquing Tribe?s earlier collective right position).
The District's Argument, strained but not isolated.
The District's argument -- as strained as it seems to us -- is hardly an isolated view. In the Second Amendment debate, there are two camps. On one side are the collective right theorists who argue that the Amendment protects only a right of the various state governments to preserve and arm their militias. So understood, the right amounts to an expression of militant federalism, prohibiting the federal government from denuding the states of their armed fighting forces. On the other side of the debate are those who argue that the Second Amendment protects a right of individuals to possess arms for private use. To these individual right theorists, the Amendment guarantees personal liberty analogous to the First Amendment's protection of free speech, or the Fourth Amendment's right to be free from unreasonable searches and seizures. However, some entrepreneurial scholars purport to occupy a middle ground between the individual and collective right models.
That's an interesting word choice there: "entrepreneurial" is usually used to describe individuals who seek to create new businesses in order to profit from a perceived market opportunity. I may be reading tea leaves here, but this may be a reference to anti-second-amendment scholars seeking to obtain funding (eg, profit) from some of the anti-gun institutions, not least of which is the Joyce Foundation. The Smallest Minority has extensively documented their activities in this area.
The most prominent in-between theory developed by academics has been named the "sophisticated collective right" model.3 The sophisticated collective right label describes several variations on the collective right theme. All versions of this model share two traits: They (1) acknowledge individuals could, theoretically, raise Second Amendment claims against the federal government, but (2) define the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms.
The District advances this sort of theory and suggests that the ability of individuals to raise Second Amendment claims serves to distinguish it from the pure collective right model. But when seen in terms of its practical consequences, the fact that individuals have standing to invoke the Second Amendment is, in our view, a distinction without a difference. But cf. United States v. Emerson, 270 F.3d 203, 218-21 (5th Cir. 2001) (treating the sophisticated collective right model as distinct from the collective right theory). Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The latter point is true either because, as the District appears to argue, the "Militia" is no longer in existence, or, as others argue, because the militia's modern analogue, the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment.
Or, in other words, the sophisticated collective rights theory is the result of actual legal scholarship being done which rendered the prior (unsophisticated?) collective rights theory untenable. Once sufficient historical evidence was available to legal scholars and judges on the actual meaning of the text, it became impossible to paper over the problem with collectivist noises.
The lower courts are divided between these competing interpretations. Federal appellate courts have largely adopted the collective right model.4 Only the Fifth Circuit has interpreted the Second Amendment to protect an individual right.5 State appellate courts, whose interpretations of the U.S. Constitution are no less authoritative than those of our sister circuits, offer a more balanced picture.6 And the United States Department of Justice has recently adopted the individual right model. See Op. Off. of Legal Counsel, "Whether the Second Amendment Secures an Individual Right" (2004) available at http://www.usdoj.gov/olc/secondamendment2.pdf; see also Memorandum from John Ashcroft, Attorney General, to All United States' Attorneys (Nov. 9, 2001), reprinted in Br. for the United States in Opposition at 26, Emerson, 536 U.S. 907 (No. 01-8780). The great legal treatises of the nineteenth century support the individual right interpretation, see Silveira v. Lockyer, 328 F.3d 567, 583-85 (9th Cir. 2003) (Kleinfeld, J., dissenting from denial of rehearing en banc); Emerson, 270 F.3dat 236, 255-59, as does Professor Laurence Tribe's leading treatise on constitutional law.7 Because we have no direct precedent -- either in this court or the Supreme Court -- that provides us with a square holding on the question, we turn first to the text of the Amendment.
When Silberman says here that he has no direct precedent, he's being very narrow-focused. The last major Supreme-Court precedent on the 2nd Amendment (Miller) turned on the weapon, not the question of an individual or collective right. Seegars, a recent precedent before this circuit, turned on standing and did not reach the merits of the case when considered en banc (it did reach the merits before a three-judge panel). Silviera and Emerson are from different circuits. Lopez (gun-free school zones) was decided on commerce-clause grounds rather than the 2nd Amendment. Earlier challenges to the DC law were heard in administrative courts rather than the federal circuit courts. And so on.
My new book Armed America (Nelson Current, 2007) answers some of
the questions about what arms were in common civilian ownership when
the Second Amendment was ratified. I cite ads offering "hand grenadoes"
for sale (probably equivalent to a modern pipe bomb in
destructiveness), and the 1786 Boston ordinance prohibiting leaving
loaded firearms in buildings (as a fire safety measure) that lists not
only small arms, but mortars, artillery, and a bunch of other stuff
that would qualify as "destructive devices" today. I don't think they
included them on the list because they wanted to be complete.
There was privately owned artillery during the Revolutionary
period, although I suspect that almost all of it (because of cost and
its lack of utility for hunting) was owned by the various militia
I've long believed the same, but based more on intuition and implication than solid authority. Clayton's evidence is welcome and will be cited in the future. (I just need to remember to order a copy of his book...)
If you look at the National Firearms Act hearings before the House
Ways & Means Committee, you can see that even proponents of it, such
as the A-G and his assistant, admitted that a complete ban on sale or
possession of machine guns was beyond the authority of the federal
government, because of the Second Amendment. Background checks for
weapons seem unobjectionable from a Constitutional standpoint, as long
as they have some reasonable relationship to public safety. But that's
more a function of the person, than of the weapon.
The other counterintuitive thing that I will note here is that the Constitution probably does not prohibit firearms registration so long as that registration is not used as a tool to aid confiscation. Many founding-era communities had firearms registration laws for militia purposes.
In modern times, however, registration lists have been used to support confiscation efforts often enough that this could be convincingly argued as currently prohibited even if originally permitted.
There's a thought-provoking post over at the Liberty Corner on torture. I think it takes the analysis in the wrong direction, though. Here's how I see it. For the purposes of this discussion, I will define torture as being the intentional infliction of intense physical or psychological pain upon a prisoner in an effort to elicit information or discourage others. By that definition, treatment of detainees that has been reported usually does not meet that standard, but sometimes has.
Government, at heart, is supposed to be about enshrining in law general policies that usually result in the best outcome, with the desirability of societal survival and societal liberty given equal strength. (The dead cannot enjoy their liberty, nor is life worth living without it). The key is that government cannot formulate a general rule that produces the right outcome in every situation, and when it tries to do so, the result is often worse. A well-designed government will build in certain exception-handling mechanisms to ensure the right result without requiring that the rules be changed to reach it.
It is morally unconscionable for a supposedly free society to engage in torture of innocents. There is room for argument on those who are guilty, but none for torturing those who have committed no wrong. Since there is no timely and reasonable means of accurately determining guilt in the usual justification scenario (a ticking time bomb hidden somewhere in a major city), it's not acceptable to engage in torture under those circumstances. The risk that you have the wrong man, or that there isn't even a right man at all, is far too high.
In the United States, the 8th Amendment prohibits "cruel and unusual punishment", under which this specific scenario would almost certainly fall. So under the US Constitution, you cannot torture a specific person; you might be able to argue that a sufficiently large group of prisoners would render the activity "usual" enough to pass muster. But the specific-person scenario is completely forbidden.
Are we then to conclude that there is no answer to the nightmare scenario?
No, because there is an answer. It's not a pretty one, but it's effective. As a society, as a government, as a general rule, we cannot ever condone torture; but in a specific situation, with specific individuals, and specific evidence, it is possible for an individual to conclude that the present situation constitutes an exception to the rule.
Once that determination is made, the individual chooses to discard the social rules and act instead according to the dictates of the specific situation. They are acting outside the law and doing so deliberately. The act of torture takes place, and the bomb is found or the innocent person suffers. And society prosecutes and convicts the torturer for his illegal actions.
By taking the illegal path, the individual is departing from the mantle of government authority and moral certitude. He is taking personal responsible for the decision to violate the laws of his society, deeming that the personal risk in doing so -- even if that results in a criminal conviction -- is worth the benefits.
Having accepted the personal cost of his actions, our individual has two remaining chances to convince society he was correct in his choice under the circumstances. The first is through jury nullification; although modern courts usually won't even let the topic come up, a jury can always decide that the facts are sufficient to convict beyond a reasonable doubt, but the circumstances justified it, and refuse to convict on that basis. The jury will have had time to consider the situation, will have seen the evidence, and will know probably the most important factor in this case: was a "ticking time bomb" discovered, or was the alleged terrorist innocent?
The second opportunity is a Presidential pardon. This can come into play if there was evidence the jury wasn't allowed to see due to national security concerns, or even if the President simply feels that an injustice was done. There is a political cost to be paid for a pardon, which will help to ensure they are not handed out casually.
Those two options, coupled with an individual's decision to take personal responsibility for a necessary action, are our
societal exception-handling mechanisms. Both allow for results that are contrary to the general rule, without requiring (as a judicial ruling would) that the rules be changed to accomodate a special case.
So I suppose my thoughts on torture can be summed up as: Never the rule, but potentially an exception.
The problem I have with most of the media (and blogospheric) discussions of torture is that they are considering the question in terms of changing the rules. We do not have to do that and we should not do that. We need a clear and unambiguous statement of policy that torture is not acceptable policy. If there are exceptions to that, treat them as exceptions, not a new rule.
The anti-gun "American Hunters and Shooters Association" almost got Parker v DC right. I was frankly surprised when I went to check, but it makes sense; their writers and professional liars are starting to notice that they don't have any credibility.
Anyways, here's what they have to say about the DC gun law:
ASHA believes the DC gun law should be amended to allow law-abiding
citizens the right to acquire and keep handguns in their homes and
places of business.
AHSA supports the Second Amendment to the US
Constitution and the use of firearms for all lawful purposes, including
hunting, self-defense, collecting, and competitive or recreational
shooting. Moreover, AHSA agrees with the Justice Department of the
United States that the Second Amendment more broadly protects the
rights of individuals, including persons who are not members of any
militia or engaged in active military service or training, to possess
and bear their own firearms, subject to reasonable restrictions
designed to prevent possession by unfit persons or to restrict the
possession of types of firearms that are particularly suited to
In1976 the Washington D.C. City Council enacted the Firearms Control
Regulations Act that prohibits the possession of a handgun that was not
registered with city police prior to Sept. 24, 1976 and re-registered
by Feb. 5, 1977. The Firearms Control Regulations Act also requires the
registration of all privately owned rifles and shotguns and requires
that they be kept at home and stored unloaded, disassembled, or bound
by a trigger lock or similar device.
By virtue of the fact that
handguns acquired after Feb. 5, 1977 are effectively banned, the DC gun
law is much more restrictive than the Gun Control Act of 1968 (GCA).
Section 101 of the GCA states:
is not the purpose of this title to place any undue or unnecessary
Federal restrictions or burdens on law-abiding citizens with respect to
the acquisition, possession, or use of firearms appropriate to the
purpose of hunting, trapshooting, target shooting, personal protection,
or any other lawful activity, and that this title is not intended to
discourage or eliminate the private ownership or use of firearms by
law-abiding citizens for lawful purposes."
believes the Washington DC Firearms Control Regulations Act should be
amended to allow law-abiding citizens the opportunity to acquire and
possess handguns, rifles and shotguns in their homes or place of
business consistent with the purposes of the Gun Control Act of 1968.
I won't give them the benefit of a link.
So what's wrong with this position? They are carefully suggesting that the DC firearms ban should be amended, not overturned. They would deny the gun rights community a badly needed legal victory in favor of a legislative change that could then be changed back later.
Did anyone think to record what they had to say about DC gun laws before the Parker ruling made it politically costless to favor an amendment?
We've seen the basic information that follows many, many times in recent court decisions. Competent legal analyses of the 2nd Amendment almost always begin with its plain text, while those seeking to disparage the right always seem to avoid the plain language.
As we noted, the Second Amendment provides: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
U.S. CONST. amend. II.
The provision's second comma divides the Amendment into two clauses; the first is prefatory, and the second operative. Appellants' argument is focused on their reading of the Second Amendment's operative clause. According to appellants, the Amendment's language flat out guarantees an individual right "to keep and bear Arms." Appellants concede that the prefatory clause expresses a civic purpose, but argue that this purpose, while it may inform the meaning of an ambiguous term like "Arms," does not qualify the right guaranteed by the operative portion of the Amendment.
This last bit is lawyer-speak for "We're not talking about nuclear weapons, and really not even about tanks or military aircraft or battleships, just militia-suitable firearms."
The District of Columbia argues that the prefatory clause declares the Amendment's only purpose -- to shield the state militias from federal encroachment -- and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right. In other words, according to the District, the operative clause is not just limited by the prefatory clause, but instead both clauses share an explicitly civic character. The District claims that the Second Amendment "protects private possession of weapons only in connection with performance of civic duties as part of a well-regulated citizens militia organized for the security of a free state." Individuals may be able to enforce the Second Amendment right, but only if the law in question "will impair their participation in common defense and law enforcement when called to serve in the militia." But because the District reads "a well regulated Militia" to signify only the organized militias of the founding era -- institutions that the District implicitly argues are no longer in existence today -- invocation of the Second Amendment right is conditioned upon service in a defunct institution. Tellingly, we think, the District did not suggest what sort of law, if any, would violate the Second Amendment today -- in fact, at oral argument, appellees' counsel asserted that it would be constitutional for the District to ban all firearms outright. In short, we take the District's position to be that the Second Amendment is a dead letter.
We are told by the District that the Second Amendment was written in response to fears that the new federal government would disarm the state militias by preventing men from bearing arms while in actual militia service, or by preventing them from keeping arms at home in preparation for such service. Thus the Amendment should be understood to check federal power to regulate firearms only when federal legislation was directed at the abolition of state militias, because the Amendment's exclusive concern was the preservation of those entities. At first blush, it seems passing strange that the able lawyers and statesmen in the First Congress (including James Madison) would have expressed a sole concern for state militias with the language of the Second Amendment. Surely there was a more direct locution, such as "Congress shall make no law disarming the state militias" or "States have a right to a well-regulated militia."
No interpertation needed here. Whenever you see anyone clamoring to oppose this decision, just remember -- they are advocating a complete ban on firearms. All the lies about "reasonable gun safety regulations" go out the window. They want to make the 2nd Amendment a dead letter.
The Washington Post has chosen to advertise their editorial board's ignorance of the law for all to see.
IN OVERTURNING the District of Columbia's long-standing ban on handguns
yesterday, a federal appeals court turned its back on nearly 70 years
of Supreme Court precedent to give a new and dangerous meaning to the
Second Amendment. If allowed to stand, this radical ruling will
inevitably mean more people killed and wounded as keeping guns out of
the city becomes harder. Moreover, if the legal principles used in the
decision are applied nationally, every gun control law on the books
would be imperiled.
To respond to the last point first... exactly!
As for 70 years of precedent, that would be... oh... 1937. US v iller was decided in 1939. That sounds about right. While Miller did uphold a gun control law, it did so on narrow grounds, ruling that a specific weapon was not suitable for militia use. Parker v DC is the one of very few decisions I have seen to accurately cite US v Miller for that proposition, and those vaulted 70 years of precedent are based on a deliberate misreading of the Miller case.
While the ruling in Parker is certainly radical (by which I mean, "Way cool, dude!"), it's hard to imagine DC's murder rate rising much higher. In the 30 years since the ban was passed, that rate has only once been lower than the year the ban was original imposed. If there's any crime benefits to prohibition, they don't seem to show up in reality. Those with a knowledge of history will question the linkage of prohibition with a claimed reduction in crime rates even without the District's own history as an object lesson.
And finally, the city has had 30 years to learn how to reduce crime and keep handguns out of the city. They have failed miserably. If gun control was going to work, it would have.
The 2 to 1 decision by the U.S. Court of Appeals for the D.C. Circuit
struck down sections of a 1976 law that bans city residents from having
handguns in their homes. The court also overturned the law's
requirement that shotguns and rifles be stored disassembled or with
trigger locks. The court grounded its unprecedented ruling in the
finding that the Second Amendment right to bear arms extends beyond
militias to individuals. The activities the Second Amendment protects,
the judges wrote, "are not limited to militia service, nor is an
individual's enjoyment of the right contingent upon his or continued
intermittent enrollment in the militia."
This would be because the Amendment reads "the right of the people", not "the right of the militia". Here's another tidbit from US v Miller... by federal law contemporaneous with the 2nd Amendment, and still valid with some minor changes today, the militia is composed of all able-bodied male citizens between the ages of 17 and 45. Even if the DC legislature was stupid enough to pass a new law restricting ownership of functional firearms to militia members, it wouldn't be much of an improvement from their point of view.
Never before has a law been struck down on that basis. The Supreme Court, in its landmark 1939 decision UnitedStatesv. Miller,
stated that the Second Amendment was adopted "with obvious purpose" of
protecting the ability of states to organize militias and "must be
interpreted and applied with that end in view." Nearly every other
federal court of appeals has concurred in that finding. The dissenting
judge in yesterday's opinion, Karen LeCraft Henderson, a Republican
appointee like the other two judges on the panel, rightly lambasted the
majority for its willful disregard of Supreme Court precedent
Never before, huh? Then I'd say it's about damn time.
Note that a close reading of US v Miller reveals that the ruling turned on whether the weapon, a sawed-off shotgun, was suitable for militia use and found that no evidence had been presented that it was. The case was remanded to a lower court for findings of fact on that issue. It is worth noting that the case was at the Supreme Court because the lower court had struck down the 1934 National Firearms Act. And the court had no evidence on the issue because the neither the defendent nor his counsel appeared before the court.
The mental gyrations required to turn a 70-year-old ruling that a particular weapon was not military enough to be protected by the 2nd Amendment into a ruling that supports a blanket ban on the current military sidearm (Heller's desired handgun is the official sidearm of the US Military, or very close to it) would be worthy of admiration... except that I suspect no such gyrations were necessary. The author speaks from ignorance, not a twisted mind.
In order words... the court was following precedent correctly, for almost the first time, when it ruled in Parker v DC.
While the ruling caught observers off guard, it was not completely
unexpected, given the unconscionable campaign, led by the National Rife
Association and abetted by the Bush administration, to broadly
reinterpret the Constitution so as to give individuals Second Amendment
rights. Indeed, the D.C. lawsuit, by six residents assisted by the Cato
Institute, was filed in 2003, just months after then-Attorney General
John D. Ashcroft said gun bans are unconstitutional.
If the NRA's efforts to change the meaning of "the people" to mean "the people" rather than "the states" are "unconscionable", how would the author describe 70 years of court rulings ignoring the plain meaning of an Amendment within the Bill of Rights?
Probably "mission accomplished, comrade."
The NRA predictably welcomed yesterday's ruling. According to its myth,
only criminals have had guns in the city and now law-abiding citizens
will be able to arm themselves for protection. Mayor Adrian M. Fenty
(D) counters that argument with the sad record of what results from a
proliferation of guns. As he points out, more guns mean only more
violence, and the city already has too much of both. It is important to
note that the ban on handguns will stay in effect while the city
considers whether to appeal.
So the author is claiming that criminals in the city do not have guns? Funny, they held a big gun-law enforcement party in 1995 called Operation Ceasefire that claims to have seized 282 firearms in under 4 months. That's 20 years after the firearms ban was enacted. If the idea is to disarm criminals, it's clearly not working.
That is likely, Mr. Fenty
announced. The risk here is that an appeal could lead to an unfavorable
Supreme Court ruling, and a legal principle that now applies only to
the residents of the nation's capital would extend to the entire
nation. Yet doing nothing wouldn't serve the best interests of the city
and its public safety. Nor, for that matter, would it serve the
nation's interest to leave this dangerous ruling unchallenged.
The best interests of the city would be served by allowing the honest citizens that reside there to defend themselves with a firearm in their home. After all, what do you call an ordinary person without a gun facing a criminal with one? Helpless.
You don't suppose there might be a reason that the DC government would like to keep its citizens helpless and dependent upon the police and politicians to protect them from crime?
Paul Helmke, President of the Brady Center to Prevent Gun Violence, issued the following statement:
?The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in
Parker v. District of Columbia striking down the District of Columbia?s
handgun law is judicial activism at its worst. By disregarding nearly
seventy years of U.S. Supreme Court precedent, two Federal judges have
negated the democratically-expressed will of the people of the District
of Columbia and deprived this community of a gun law it enacted thirty
years ago and still strongly supports.
?This ruling represents the first time in American history that a
Federal appeals court has struck down a gun law on Second Amendment
grounds. While acknowledging that ?reasonable restrictions? to promote
?the government?s interest in public safety? are permitted by the
Second Amendment, the two-judge majority substituted its policy
preferences for those of the elected representatives of the District of
# # #
As the nation's largest
national, non-partisan, grassroots organizations leading the fight to
prevent gun violence, the Brady Center to Prevent Gun Violence is
dedicated to creating an America free from gun violence, where all
Americans are safe at home, at school, at work, and in their communities.
Publicola has some thoughts on the Parker decision that seem to me to be missing the point. Even though each of his criticisms is valid and reasonable, from a gun-rights-absolutist position as I know he holds (and as I also do, albeit with more willingness to compromise), they are missing the overall point of what the Parker case is about.
Publicola calls out the Parker decision specifically for getting it wrong about the usual things: registration, concealed carry, open carry, and possession by felons (plus the insane). All of these things fall under the mantal of the reasonable regulation which Publicola fears will lead to, well, TROUBLE.
First off, you have to understand that the plaintiffs in this case were challenging specific laws, and doing so in order to maximize their chances of winning the case before an undeniably hostile court. They were challenging laws related to the purchase and possession of a functional firearm in one's home. A District law concerning carry of firearms was specifically challenged only with regard to carry that occurred inside the home.
That means that anything the court has to say that is not necessary to reaching the core ruling is dicta. Dicta has no precedential force. It is there in this decision specifically and solely to explain what this ruling is not doing. It has one and only one target audience: the judges who will be asked to overturn the ruling. It is there to reassure the judges to whom the case will be appealed that the ruling is narrow in scope and will not result in all hell breaking loose.
(Let's face it: maybe 1%, at most, of Americans will ever in their lives read a court ruling that doesn't have their name on it).
So the dicta is there to reassure judges about the narrow scope of the ruling. Why is the narrow scope a good thing? Shouldn't we be challenging everything now? Bans on concealed carry, bans on evil looking guns, bans on big and scary guns...
Simply, no. Each of those issues bring a tremendous number of complications before a judge. To rule in our favor on a challenge to a concealed-carry ban, for example, a judge would need to decide that the 2nd protects an individual right, that the individual right includes carrying a firearm, that time, place, and manner restrictions violate that right (possibly even when those restrictions are light, such as shall-issue licensing), and then for each and every hostile precedent on the issue, the judge needs to explain why the current case is different.
There are a lot of conditions there, and they ALL have to go our way to win a case. That's hard, and when we've tried it, we've usually lost.
What we need to do instead is focus our efforts on reducing the variables. We need a specific precedent that says the 2nd Amendment is an individual right. Once we have that precedent from the Supreme Court, it's no longer a variable (at least not before an honest judge); instead it's a given.
Then, we can come back with our next issue. Maybe laws banning the carry of a firearm outside the home are unConstitutional; we can replace that with a may-issue system. But then may-issue systems are unConstitutional because they are not applied equally to all; we can replace may-issue with shall-issue. But shall-issue is trying to license the exercise of a right; so maybe we'll get Vermont-carry in the end.
In each case we'll maximize our chances of winning by building on our prior established precedents and present the judges with a simple, narrow proposition that will overturn a specific, narrow law or set of laws. It seems to me the next obvious choice, once we have a favorable Parker ruling from the Supreme Court, would be to challenge the Chicago ban on precisely the same basis... with only the small addition of a claim that the states are bound by the 2nd Amendment by way of the 14th.
That's how we can make it work, step by step. If we try to go too far, too fast, we'll end up with nothing... because that is precisely how we have been trying to fight the issue in the courts, and nothing is precisely what we had before Parker.
Until we do some groundwork, we will be laughed out of court on the tougher issues. And each time that happens, the precedential pile gets bigger.
Still, we have not always been so clear on this point. Although we recognized in Claybrook v. Slater, 111 F.3d 904 (D.C. Cir. 1997), that it was not necessary for a plaintiff to demonstrate that he or she would prevail on the merits in order to have Article III standing, the rest of our discussion seems somewhat in tension with that proposition. We did recognize that in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), when the Supreme Court used the phrase "legally protected interest" as an element of injury-in-fact, it made clear it was referring only to a "cognizable interest." Claybrook, 111 F.3d at 906-07. The Court in Lujan concluded that plaintiffs had a "cognizable interest" in observing animal species without considering whether the plaintiffs had a legal right to do so. Id. (citing Lujan, 504 U.S. at 562-63). We think it plain the Lujan Court did not mean to suggest a return to the old "legal right" theory of standing rejected in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153-54 (1970), because it cited Warth, inter alia, as precedent for the sentence which included the phrase "legally protected interest." Lujan, 504 U.S. at 560. Rather, the cognizable interest to which the Court referred would distinguish, to pick one example, a desire to observe certain aspects of the environment from a generalized wish to see the Constitution and laws obeyed. Indeed, in Judicial Watch, Inc. v. United States Senate, 432 F.3d 359 (D.C. Cir. 2005), Judge Williams wrote an extensive concurring opinion (not inconsistent with the majority opinion) in which he persuasively explains that the term "legally protected interest," as used in Lujan, could not have been intended to deviate from Warth's general proposition that we assume the merits when evaluating standing. Id. at 363-66.
In Claybrook, we went on to say, quite inconsistently, that "if the plaintiff's claim has no foundation in law, he has no legally protected interest and thus no standing to sue." Claybrook, 111 F.3d at 907. We concluded that plaintiff lacked standing, however, because the government agency in that case had unfettered discretion to take the action it did, and therefore there was "no law to apply." Id. at 908. Thus the decision in Claybrook was actually based on a separate jurisdictional ground -- reviewability under the Administrative Procedure Act -- and federal courts may choose any ground to deny jurisdiction, e.g., Article III standing, prudential standing, or subject matter jurisdiction. See Judicial Watch, 432 F.3d at 366 (Williams, J., concurring) (noting that Claybrook is hard to classify as a standing opinion). There is no hierarchy which obliges a court to decide Article III standing issues before other jurisdictional questions. In re Papandreou, 139 F.3d 247, 255-56 (D.C. Cir. 1998). Therefore, we do not read Claybrook to stand for the proposition, contra Warth, that we must evaluate the existence vel non of appellants' Second Amendment claim as a standing question. (Footnote 2)
I will admit frankly that all of those two paragraphs went right over my head. In order to comment meaningfully on them, I would need to do research into those specific cases, and since they are not being applied here, I don't think that would be productive.
In sum, we conclude that Heller has standing to raise his § 1983 challenge to specific provisions of the District's gun control laws.
That part, however, I understand well enough! It means that of the 6 plaintiffs, one survived the standing test and the case will proceed to the merits.
2 Admittedly, in Taylor v. F.D.I.C., 132 F.3d 753, 767 (D.C. Cir. 1997), we observed that the causation requirement of standing could coincide with the causal element in a cause of action. But cf. id. at 770 (Rogers, J., concurring). Whether that was correct or not, we concluded that even in that unique situation, not present here, we had discretion to decide the case on the merits or on standing grounds. Id. at 767-68.
More broadly, as the title of my article states, the key question is
not what the Second Amendment may have been understood to mean in 1791,
but what it means today? And
on that question, the Supreme Court has said pretty clearly that its
"right" language needs to be read in light of its preamble, a point
made at length in dissent by Judge Henderson. As I acknowledge above,
the Supreme Court opinions on point are under-argued, but the standard
rule is that lower courts must follow Supreme Court precedent unless
the Supreme Court itself overrules that precedent. Having violated the
spirit if not the letter of that rule, the DC Circuit has now teed the
issue up for the Justices to take a fresh look at the question.
This is the heart of the "living document" school of thought about the Constitution. The idea that the meaning of a document can change over time is just fine for a literary professor finding new meanings in Shakespearian work as a creative exercise, but it is something altogether different when applied to a document that forms the legal foundation of a nation encompassing 300 million people.
You simply cannot "reinterpert" such a document without changing the terms of the agreement that governs all of those lives. To be legitimate, that process must be democratic in nature and itself in accordance with the law.
So what does the 2nd Amendment mean today? The same thing it meant when it was written: that the government may not restrict the possession or carry of arms by its people. Arms have changed; the meaning has not.
That today's government refuses to recognize that meaning is a problem with the government, not the document.
They say the definition of insanity is doing the same thing over and over, while expecting different results. With that in mind, I bring you the following quote from BlackAmericaWeb:
Gun control groups and anti-gun advocates like yours truly will
wring our hands over yet another defeat in the continuing battle to get
over the gun madness that has this country in such a grip. It will not
matter that D.C. always makes the Top 10 in most murderous city
studies, or that guns don?t kill people, people kill people, and people
with guns really kill people.
The city?s bad guys -- and gals -- will continue to cop their guns
from underground dealers or just take a quick subway ride over the
river to northern Virginia, where they practically give guns away. Even
a 12-year-old can get a rifle or a shotgun over there.
Note that despite 30 years of a complete ban on handguns and functional rifles, DC is "always" in the top 10 of murderous city studies, and guns are readily available from underground dealers in the city itself. Gun control was not working in DC. Gun control will never work.
Columnists who decry the court?s decision will hear from gun nuts like
the purported woman lawyer from Nevada, who once got into an email
fight with me over an anti-gun column I had written, refused to
consider me anything but a traitor and a fool, and then posted it on an
NRA chatroom site when I told her to ?f--- herself,? which I only
regret not having done from the start.
Interesting how someone is a "purported" woman lawyer when they disagree with a collumnist. It's also very clear to me which of the two people in the discussion was behaving irrationally.
And the next time someone?s child is
grave-bound because someone had a gun, it won?t make a damn bit of
difference whether he or she got it legally.
No, it won't -- because, just like last time, and the time before that, and the time before that... they won't have gotten the gun legally. Criminals who shoot children do not meekly disarm themselves until a judge rules on the Constitutionality of a gun ban.
We note that the Ninth Circuit has recently dealt with a Second Amendment claim by first extensively analyzing that provision, determining that it does not provide an individual right, and then, and only then, concluding that the plaintiff lacked standing to challenge a California statute restricting the possession, use, and transfer of assault weapons. See Silveira v. Lockyer, 312 F.3d 1052, 1066-67 & n.18 (9th Cir. 2003). We think such an approach is doctrinally quite unsound. The Supreme Court has made clear that when considering whether a plaintiff has Article III standing, a federal court must assume arguendo the merits of his or her legal claim. See Warth v. Seldin, 422 U.S. 490, 501-02 (1975) (assuming factual allegations and legal theory of complaint for purposes of standing analysis). We have repeatedly recognized that proposition. See Waukesha v. E.P.A., 320 F.3d 228, 235 (D.C. Cir. 2003); Am. Fed'n of Go't Employees, AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982). "Indeed, in reviewing the standing question, the court must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims." Waukesha, 320 F.3d at 235 (citing Warth, 422 U.S. at 502). This is no less true when, as here, the merits involve the scope of a constitutional protection.
I think the 9th Circuit was eager to get a collective-rights opinion on the books following Emerson, perhaps hoping to provoke Supreme Court review, or simply to reassert their view of the law. If provoking review was the 9th's plan in ruling the way they did in Silviera, it almost worked; the Supreme Court conferenced on the issue and demanded an opinion from one of the parties involved before declining to hear the case. That means there were probably at least three votes for reviewing Silviera before Alito and Roberts, even on a case that would involve questions of 14th Amendment incorporation.
I hope and suspect that our chances are better with Roberts and Alito on the court.
XLRQ has some good thoughts. It would take a separate case to challenge the Hughes amendment (which prohibits registration of new fully-automatic firearms) specifically, but Parker would probably count as binding precedent IF the Supreme Court upholds it in substantially similar form. I'm not sure how likely that is, but I also find it very hard to imagine how the 2nd Amendment could allow for weaselling around this issue.
What are the points of commonality?
Both the Parker case and the Hughes Amendment are about registration systems that no longer allow new registrations;
Both are purely federal cases, with no issue of state or local authority to contend with;
Both involve weapons with undeniable militia utility;
Both will have a relatively minor impact on existing laws, since states can and do regulate Class III weapons as they choose.
There's even one factor in favor of a challenge to the Hughes Amendment, and that is the almost complete lack of criminal use of registered Class III weapons. Finding criminal use of handguns is not difficult. It's probably not even very difficult to find criminal use of handguns registered in the District by retired police officers.
Applying Navegar-Seegars to the standing question in this case, we are obliged to look for an allegation that appellants here have been singled out or uniquely targeted by the D.C. government for prosecution. No such allegation has been made; with one exception, appellants stand in a position almost identical to the Seegars plaintiffs. Appellants attempt to distinguish their situation from that of the Seegars plaintiffs by pointing to "actual" and "specific" threats, Appellants? Br. at 21, lodged against appellants by D.C. during the course of the district court litigation. But this is insufficient. None of the statements cited by appellants expresses a "special priority" for preventing these appellants from violating the gun laws, or a particular interest in punishing them for having done so. Rather, the District appears to be expressing a sentiment ubiquitous among stable governments the world over, to wit, scofflaws will be punished.
I can understand the reasoning here, but I am surprised by the result. While the city clearly did not have any special priority in prosecuting the plaintiffs before they filed suit, once they filed that suit then the city's threats of prosecution become actual and specific. Had plaintiffs actually violated the law, can anyone doubt that the city would have acted on those threats of prosecution with a "special priority"?
The noteworthy distinction in this case -- a distinction mentioned in appellants' complaint and pressed by them on appeal -- is that appellant Heller has applied for and been denied a registration certificate to own a handgun, a fact not present in Seegars. The denial of the gun license is significant; it constitutes an injury independent of the District's prospective enforcement of its gun laws, and an injury to which the stringent requirements for pre-enforcement standing under Navegar and Seegars would not apply. Since D.C. Code § 22-4504 (prohibition against carrying a pistol without a license) and D.C. Code § 7-2507.02 (disassembly/trigger lock requirement) would amount to further conditions on the certificate Heller desires, Heller's standing to pursue the license denial would subsume these other claims too.
This is an interesting and effective way to dodge the Navegar-Seegars precedent. It would not have been possible without the plaintiffs' and their counsels' forethought in going ahead with the registration attempt before filing the case.
I do find myself with one question, though. Why was plaintiff Heller denied a permit? As noted, he works as a security guard for Congress; and that puts him fairly close to the exception for retired police officers. Of course close is not good enough, but I'm wondering if maybe there is a little bit of a story there. Why not have one of the other plaintiffs also apply for a license?
This is not a new proposition. We have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury. See, e.g., Cassell v. F.C.C., 154 F.3d 478 (D.C. Cir. 1998) (reviewing denial of license application to operate private land mobile radio service); Wilkett v. I.C.C., 710 F.2d 861 (D.C. Cir. 1983) (reviewing denial of application for expanded trucking license); see also City of Bedford v. F.E.R.C., 718 F.2d 1164, 1168 (D.C. Cir. 1983) (describing wrongful denial of a preliminary hydroelectric permit as an injury warranting review). The interests injured by an adverse licensing determination may be interests protected at common law, or they may be created by statute. And of course, a licensing decision can also trench upon constitutionally protected interests, see, e.g., Dist. Intown Props. Ltd. P'ship v. District of Columbia, 198 F.3d 874 (D.C. Cir. 1999) (reviewing District of Columbia's denial of a building permit under the Takings Clause); Berger v. Bd. of Psychologist Exam?rs, 521F.2d 1056 (D.C. Cir. 1975) (reviewing District of Columbia's denial of a license to practice psychology under the Due Process Clause), which will also give rise to Article III injury.
As you can see here, the registration attempt has the effect of kicking Parker off into a whole separate section of the law and the precedents. It is on details like these that cases sometimes turn...
At oral argument, counsel for the District maintained that we should not view this as a licensing case for standing purposes because D.C.'s firearm registration system amounts to a complete prohibition on handgun ownership. The District argues that we must analyze appellants' standing exclusively under our pre-enforcement precedents, Seegars and Navegar.
We disagree on both counts. The District does not completely prohibit handgun registration. See D.C. Code § 7-2502.02(a)(4) (allowing certificates for pistols already registered in the District prior to 1976); D.C. Code § 7-2502.02(b) (excluding retired police officers of the Metropolitan Police Department from the ban on pistol registration). Had Heller been a retired police officer, presumably the District would have granted him a registration certificate. The same would be true if Heller had attempted to register a long gun, as opposed to a handgun. In any event, Heller has invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law, and the formal process of application and denial, however routine, makes the injury to Heller's alleged constitutional interest concrete and particular. He is not asserting that his injury is only a threatened prosecution, nor is he claiming only a general right to handgun ownership; he is asserting a right to a registration certificate, the denial of which is his distinct injury.
This raises a couple moderately scary questions. What would have happened if the District did completely ban possession of handguns -- including possession by retired police officers -- and possession of long guns? Heller meets the standing bar because he attempted to register and was denied. If he was unable to even make the attempt, if there was no registration process at all, how would any challenge to that law have standing short of actually violating the law and being caught doing so?
1 Of course, American Booksellers can be distinguished from Navegar, Seegars, and the present case, on the ground that the constitutional challenge at issue there implicated the First (as opposed to the Second) Amendment. The American Booksellers Court was concerned that Virginia's statute might chill speech without any prosecution ever taking place, 484 U.S. at 393, thereby creating a wrong without remedy if pre-enforcement standing were denied. But in deciding whether to privilege one amendment to the U.S. Constitution over another in assessing injury-in-fact, we note the statement of our dissenting colleague in Seegars: "I know of no hierarchy of Bill of Rights protections that dictates different standing analysis." 396 F.3d at 1257 (Sentelle, J., dissenting). The Seegars majority, although it felt constrained by Navegar to reach a different result, tacitly agreed with Judge Sentelle's assessment that the injury-in-fact requirement should be applied uniformly over the First and Second Amendments (and presumably all other constitutionally protected rights). Id. at 1254.
This is good news, even though it appears in a footnote. The decision is indicating the 2nd Amendment rights, once those rights are defined, should enjoy the same protected status as 1st Amendment rights -- and all the other rights within the Bill of Rights and presumably other Amendments that employ similar language.
It will make it much harder for judges to use standing as an excuse for avoiding crafted 2nd Amendment challenges once the basic 2nd Amendment rights are established by this case. Not impossible, mind you, but harder. It's always hard to win a case that requires someone actually commit criminal behavior in order to get a hearing, because your defendents in those cases are usually criminals by profession and that does not provide a good impression to the court or the public.
Now we begin to get to the meat of the issue, discussing the useful precedents to this case, including (not surprisingly) Seegars and its cited prcedents.
After the proceedings before the district judge, we decided Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005). We held that plaintiffs bringing a pre-enforcement challenge to the District's gun laws had not yet suffered an injury-in-fact and, therefore, they lacked constitutional standing. Although plaintiffs expressed an intention to violate the District's gun control laws, prosecution was not imminent. We thought ourselves bound by our prior decision in Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997), to conclude that the District's general threat to prosecute violations of its gun laws did not constitute an Article III injury. Navegar involved a preenforcement challenge by a gun manufacturer to certain provisions of the Violent Crime Control and Law Enforcement Act of 1994, which prohibited the manufacture (and possession) of semiautomatic assault weapons. We held then that the manufacturers whose products the statute listed eo nomine had standing to challenge the law in question because the effect of the statute was to single out individual firearms purveyors for prosecution. Id. at 999. However, manufacturers whose products were described solely by their characteristics had no pre-enforcement standing because the threat of prosecution was shared among the (presumably) many gun manufacturers whose products fit the statutory description, and, moreover, it was not clear how these descriptive portions of the statute would be enforced. Id. at 1001.
This is a very clear description of a case that was remarkably less clear in its actual ruling. Silberman manages this by leaving out most of the confusing details. It's clear that someone specifically named by a criminal law has standing to sue for a violation of his constitutional rights; it's less obvious how Navegar could hold that manufacturers who were visited and threatened with prosecution by the FBI following the passage of the assault weapons ban would not have standing.
I get the impression (and I could be wrong) that Silberman doesn't particularly like Navegar as a decision and would like to overturn it, but he won't be able to do that unless the matter comes before the DC Court of Appeals sitting en banc.
In Navegar, then, the "factor . . . most significant in our analysis" was "the statute's own identification of particular products manufactured only by appellants" because that indicated a "special priority" for preventing specified parties from engaging in a particular type of conduct. Id. Extending Navegar's logic to Seegars, we said the Seegars plaintiffs were required to show that the District had singled them out for prosecution, as had been the case with at least one of the manufacturer plaintiffs in Navegar. Since the Seegars plaintiffs could show nothing more than a general threat of prosecution by the District, we held their feared injury insufficiently imminent to support Article III standing. 396 F.3d at 1255-56.
Remember, the Seegars plaintiffs hadn't applied for a license or otherwise done anything. They just wanted to, hypothetically.
We recognized in Seegars that our analysis in Navegar was in tension with the Supreme Court's treatment of a preenforcement challenge to a criminal statute that allegedly threatened constitutional rights. See id. (citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979)). In United Farm Workers, the Supreme Court addressed the subject of preenforcement challenges in general terms:
When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."
442 U.S. at 298 (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). The unqualified language of United Farm Workers would seem to encompass the claims raised by the Seegars plaintiffs, as well as the appellants here. Appellants' assertions of Article III standing also find support in the Supreme Court's decision in Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988), which allowed a pre-enforcement challenge to a Virginia statute criminalizing the display of certain types of sexually explicit material for commercial purposes. In that case, the Court held it sufficient for plaintiffs to allege "an actual and well-founded fear that the law will be enforced against them," id. at 393, without any additional requirement that the challenged statute single out particular plaintiffs by name. (Footnote 1) In both United Farm Workers and American Booksellers, the Supreme Court took a far more relaxed stance on preenforcement challenges than Navegar and Seegars permit. Nevertheless, unless and until this court en banc overrules these recent precedents, we must be faithful to Seegars just as the majority in Seegars was faithful to Navegar.
Or, in other words, he doesn't like the decision in Navegar, and may not like the decision in Seegars, but when deciding Parker at this level he is bound to follow both. That's why it's so important to distinguish the Parker case from Seegars, especially when the case goes before the DC Court of Appeals en banc... since that same court decided Seegars recently, and won't be eager to overturn it.