Heller

It seems the Supreme Court has decided to take another case relating to gun rights.  It's an interesting choice.  The underlying question is whether someone convicted of a misdemeanor battery charge -- basically punching someone -- is allowed to possess firearms. 

This normally wouldn't be a bar to gun ownership, since it's a misdemeanor; federal law bars gun possession for those convicted of felonies.  However, there's another section of the law, termed the Lautenberg amendment, which bars gun possession for those convicted of domestic violence misdemeanors.  Although the law under which the defendent was convicted was not specific to  domestic violence, the victim was his then-wife.

Later, the police arrested him in a domestic-violence incident and found that he had firearms, which triggered the charge for firearms possession as a prohibited person.

The question thus is, does the nature of the relationship make the conviction a domestic violence crime, or does the law have to be specifically written to include the domestic-violence criteria?  The West Virginia court seems to have arrived at a different answer than other courts, hence the appeal to the Supreme Court (by the Justice Department). 

In light of Heller, I have got to believe that the DoJ specifically picked this case to appeal in an effort to ensure that they have a "favorable" case before the Supreme Court before gun-rights advocates have the chance to take another bite at the Emerson apple.  (Emerson was a 5th-circuit domestic violence case that famously found for an individual 2nd Amendment right but nonetheless upheld the domestic-violence statute as "minimally" passing due-process muster).

What attributes of the domestic violence case make it good for the anti-gun side?  Well, let's see.  It's a federal law, so they can avoid the incorporation question and any interference from state Constitutions.  They got lucky in getting a result here that creates a circuit split with an unfavorable plaintiff. 

If I had to guess, I'd say that the four votes necessary to grant cert in this case came from the "liberal wing" of the court, seeking to follow the Heller ruling with another case that will limit any damage Heller does to gun control laws. 

This is not the case we want leading the charge after Heller.

The only bright spot is that the question presented to the Supreme Court doesn't address the 2nd Amendment directly, but I rather suspect it will be addressed in the opinion nonetheless.

... and he basically explains why he took the positions he did before the court, even if they were bound to disappoint some.  It's good reading to understand the thought process behind the arguments (especially if you have a gripe about things said or not said) and is still short enough to be a quick read.

Alan Gura has responded to some of his critics on subguns.com, who were concerned about having machine guns thrown under the bus to save the individual right for other firearms. 

Thanks for your support.

The solution to 922(o) will have to be political in the end. The fact is, outside the gun community, the concept of privately owned machine guns is intolerable to American society and 100% of all federal judges. If I had suggested in any way -- including, by being evasive and indirect and fudging the answer -- that machine guns are the next case and this is the path to dumping 922(o) -- I'd have instantly lost all 9 justices. Even Scalia.  There wasn't any question of that, at all, going in, and it was confirmed in unmistakable fashion when I stood there a few feet from the justices and heard and saw how they related to machine guns. It was not just my opinion,
but one uniformly held by ALL the attorneys with whom we bounced ideas off, some of them exceedingly bright people. Ditto for the people who wanted me to declare an absolute right, like I'm there to waive some sort of GOA bumper sticker. That's a good way to lose, too, and look like a moron in the process.

I didn't make the last 219 years of constitutional law and I am not responsible for the way that people out there -- and on the court-- feel about machine guns. Some people in our gun rights community have very.... interesting.... ways of looking at the constitution and the federal courts.

I don't need to pass judgment on it other than to say, it's not the reality in which we practice law. When we started this over five years ago, the collective rights theory was the controlling law in 47 out of 50 states.
Hopefully, on next year's MBE, aspiring lawyers will have to bubble in the individual rights answer to pass the test. I know you and many others out there can appreciate that difference and I thank you for it, even if we can't get EVERYTHING that EVERYONE wants. Honestly some people just want to stay angry. I'm glad you're not among them.

You want to change 922(o)? Take a new person shooting. Work for "climate change."

Thanks,
Alan

Very good points.  I would just add to that, we have to have an individual right to possess basic firearms, period, before we can address the question of whether we have an individual right to possess scary firearms.

... of the gun industry advertising to criminals.  The only source I know of for this persistent anti-gun meme is the ad run by a manufacturer advertising his gun's "fingerprint-proof" coating.  In actuality, the coating prevented the residue of skin oils from rusting the finish of the gun if you forget to clean the gun after handling it.  In anti-gun mythology, of course, it was the perfect murder weapon.  In terms of actual evidence, I believe I've seen the ad, but don't have a copy of it.

If pressed they would probably also cite ads for "concealable firearms"; never mind that concealed carry is legal, with appropriate licensing, in nearly all states.

Another similar myth is the idea that gun manufacturers deliberately flood the market with guns "just outside" of gun control areas to facilitate gun smuggling and artificially lower the price of guns.  The real answer is obvious: when stores order guns to sell and have their FFL in proper order, manufacturers provide them with guns to sell.

But since when has a lack of evidence for anything stopped the other side?

UPDATE: Oh, and I forget two other classic examples. 

Gun bigots are often fond of pointing to "plastic guns that won't show up on metal detectors" which obviously MUST be intended for criminal use.  Nevermind that they don't exist.  (Glocks, which pioneered the polymer-frame handgun, have more than enough metal parts to show up on metal detectors).  I suppose if someone wanted to build a plastic handgun that doesn't show up on metal detectors, and could manage to produce one strong enough to do so safely, they would be marketing to criminals, since I believe laws have been passing banning this thing that doesn't exist.  But don't quote me on that, I don't recall any details.

The other favorite target is "armor piercing ammunition".  Insofar as it exists, and doesn't mean simply "using more gun than the armor was designed to stop", I believe ammunition that makes any claim to piercing armor is marketed to military and law enforcement rather than criminals.  I have no idea whether any of it works when fired from a handgun rather than a rifle. 

Can you imagine Heller v DC as a gay rights case?  Yes, you can.  But not special rights.  The same rights everyone else has.

... because they feel he was conceding too much.  Lots of people have that viewpoint.  I'm not as concerned about it as most, because we have to keep in mind the question that's being ruled on in the case.  This is a case about an absolute ban on functional firearms.  The only goal in this case is to get the Supreme Court to strike down DC's gun laws, and in doing so, say that the 2nd Amendment protects an individual right which ordinary citizens can invoke against complete bans on functional firearms or certain classes of firearms. 

That's a very, very, very big step for the court to take.  Remember how difficult it has been to get any court to admit to a 2nd Amendment right in any situation at all.  If we push for too much here, we might lose the whole thing.

Our strategy is simple:

1. Force the Supreme Court to admit that the 2nd Amendment protects an individual right from a complete ban on firearms under Federal law.
2. Force the Supreme Court, in another case, that the 2nd Amendment protects an individual right from a complete ban on firearms under state law (a doctrine known as incorporation).
3. Force state or federal courts to overthrow irrational bans (assault weapon bans).
   
4. Force state or federal courts to overthrow "may-issue" licensing systems for gun possession.
5. Force state or federal courts to overthrow "no-issue" concealed-carry states (the right to bear arms), even if they choose to have a licensing system.
6. Only then do we consider trying to overturn the 1986 machine gun "ban" (on new manufacture), because machine guns are scary and we need the precedents lined up to make the conclusion inevitable.  Even at this stage we leave the NFA licensing system in place.
7. Once we have a substantial period of time without serious "machine gun crime", we can consider turning the NFA system into "shall issue".

Basically, what we need to do here is establish that licensing and regulation are acceptable, but complete bans or licensing systems that effectively create complete bans are not.  If we push for too much, the justices will balk and uphold DC's law for fear of the consequences of their precedent, and we'll be far worse off.

The best outcome for our side is actually not a "strict scrutiny" ruling that would immediately overturn everything we object to.    Such a ruling would cause all kinds of chaos and disruption.  We need to take it one step at a time and demonstrate to everyone that the world does not end at each step.

That said, some of the questions directed at Gura could have been handled better -- from a comfortable armchair with all the time in the world and no pressure.  As far as I'm concerned he did a great job, better by far than I could have done.

... and you saw it on TriggerFinger!

It being, in this case, Joe's posting of email from Alan Korwin, who was at the Heller argument and has a lengthy analysis of it, once of the most coherent I've seen so far on short notice.

There's a lengthy analysis of the Heller arguments over at Leibowitz's Cantlcle.

David Hardy was at the court during the argument, and has his notes in PDF form.  No real insights since transcripts and audio are available, but I'm feeling completist.

Arguments:

• Delinger
• Clement
• Gura
• Delinger
  

Commentaries:

• Lott and Bane
• Shepherd and Bane

Plus the official transcript is out.

Lott's commentary is predictable -- he's disappointed that there wasn't very much emphasis on statistical and empirical arguments.  The problem with this is that statistics are hard to get right, especially for non-experts, and the arguments aren't conclusively on either side.  We can convincingly make the case that gun control doesn't reduce crime, but we can't yet prove (though we can provide some evidence) that pro-gun policies do reduce crime.

Shepherd's commentary was insightful, but too long to summarize.  There's one particularly good moment when he's talking about an interview he witnessed between a local reporter and Heller (the plaintiff).  The reporter saw the DC Mayor, Adrian Fenty, walking out of the court building and asked a quick followup like "But hasn't the mayor done a lot to reduce crime in the city?"  Heller's response was to point out that the mayor was walking out of the Supreme Court building surrounded by 8 bodyguards, his own private army.... and yet Heller, who is allowed to carry a handgun to defend the lives of politicians like Fenty (Heller is a security guard for some government body), is not allowed to keep a handgun in his own home to protect himself.

I thought that was a very well done comment when I heard it on the CSPAN feed, but knowing what was actually in the scene visually makes it that much more powerful.

I hope he's right.  Listening to the arguments, I won't say he's wrong.  I think the DC handgun ban will lose big, and yes, there might even be some room for challenging the machine gun ban -- but that's another case.

There's just this really anxiety-producing proposition on what would we have if we relaxed these laws," said D.C. Council Chairman Vincent C. Gray, a Democrat. "We'd have to evaluate the court's decision, then look at what revisions in our own statutes would allow us to have the maximum restrictions on guns in the District."

Not unexpected, but it's sad that any politician who argues for maximum restrictions on a Constitutional right can get elected.

The Supreme Court has heard arguments about the meaning of the Second Amendment and the Districts of Columbia's ban on handguns.  A majority appears to support the view that the amendment protects an individual's right to own guns, rather than somehow linking right to service in a state militia.

They aren't going to try to read the tea leaves on this one, and I don't blame them.  But the leanings are positive.

CSPAN audio feed.

"As far as I know, it doesn't."

That's Delinger (I think) describing the effect the 2nd Amendment has on the authority of Congress to pass gun control laws today.  No effect whatsoever.  Good followups by, I think, Roberts.

From the sound of it, the forces of evil are falling back to the collective rights interpertation -- that the 2nd Amendment protected the right of the states to arm the militia.  Delinger is really taking a beating from the justices.

Delinger: "real potential for disruption"...

Kennedy is very interested in the 1689 english bill of rights, which did include a right to arms.  He forces Delinger to say that the 2nd Amendment is addressing a different, collective right that was much more limited than the english bill of rights.  Now, would people who had within living memory overthrown the english government in a popular revolution then proceed to enshrine in their Constitution fewer rights than they had just fought to defend?

Justice: "What is reasonable about a total ban on possession?"
Delinger: lots of stuttering
Justice: "So it's all right to ban books if you allow newspapers?"

I think that's Roberts again.  Damn, he's good.

Ginsburg asks about machine guns.  She's very weak but she's trying to feed Delinger points he can use to mislead.  It's not working well in persuading people on this topic but it doesn't bode well for later challenges on machine guns.

The "in common use" argument comes up, too.

Someone, not Roberts, is up on the "recreational use exception" and what is implies vis-a-vis the purported self-defense exception.  They keep saying self-defense is OK but the law does NOT say that, and people have been charged in self-defense situations.

Somebody was pushing hard to get a statement from Delinger concerning why their ban was "reasonable", and failed.

Switching to Clement.

Oh, nice.  He's not defending plastic guns, but he is defending machine guns, at least under Miller.  (Not at issue in this case directly, though).  I suspect he'll use that to argue for other than strict scrutiny -- ie, if strict scrutiny, machine guns are allowed.

Some discussion on "keep and bear" -- are they two rights?  Yes.
Does "bear arms" have an exclusively military context? 

Some discussion of the english bill of rights and parliamentary supremacy.  But didn't our Revolution give us the chance to expand those freedoms, so that our version of the english parliament would be likewise unable to infringe those rights?

Ginsburg: What is the difference between strict scrutiny and intermediate scrutiny in terms of the results? 

Roberts (?): arguing for a narrow ruling rather than a broad one.

Scalia asks which federal gun control laws would be at risk from a broad ruling.  Machineguns?  armor-piercing bullets?

Clement invokes machine guns.

Roberts reminds him that the law being challenged bans handguns, not machine guns.

I wasn't very impressed by Clements on the audio.  He did OK but the Justices clearly had a much stronger command of the relevant law and history than he did.

Gura's up.

One of the justices is asking us to assume that the militia clause "informs" but does not dictate, and that the intermediate standard applies... under those assumptions, plus a lot of crime statistics, why isn't a handgun ban reasonable and proportionate response?

"A handgun ban serves to weaken America's military preparedness... handguns are military weapons."

The justice is pushing the crime issue, trying to argue that handguns are not really military weapons.

One of the justices is trying for the "only militia members can own firearms" point. 

We have some very effective advocates among the justices. 

Breyer, keeps pressing for a handgun ban as being a  "reasonable restriction" or perhaps even passing a stricter standard.  He's pushing hard for it but I don't think he can manage to convince anyone, even though he clearly believes it.

Gura is not defending machine guns or "plastic undetectable handguns" (which don't exist).  I'd rather he defended machine guns but tactically that's not wise.

Gura: Military aspects of Miller are not useful for determining types of allowable arms...

Breyer brings up Boston fire ordinances.

Gura: "firearms" at the time did not include pistols -- I think that's a mistake.

Justice: Why aren't trigger lock provisions analogous to gunpowder restrictions?

Gura: safe storage provisions would pass strict scrutiny, this doesn't because there is no self-defense exception.  Self-defense was the heart of the 2nd Amendment.

Breyer?: questions self-defense in light of proposals that were not accepted.

Ginsburg: What about licensing?

Gura: objective licensing standards are OK, such as training requirements, age limits.

One of the justices asks point-blank whether machine guns can be prohibited from interstate commerce.  Gura: "Yes."

Delinger: "There are some versions of the trigger lock that allows the gun to be loaded while the lock is on."  I'm not aware of ANY trigger lock that recommends that or calls it safe; every one I've seen says you have to unload the gun while locked and doing otherwise is DANGEROUS.

Delinger: rants about concealable handguns that can be taken into the classroom, the metro... trying to push the local legislation argument.

But do District residents have fewer rights than other citizens? 

OK, the arguments are over.

To sum up:

Delinger was poorly received and did not do a good job arguing his case, which was weak to begin with. 

Clement did OK, not great.

Gura did very well overall, but not without the occasional stumble.

Some sort of press conference, I think Fenty is speaking about the ban as a "public safety" issue.  He's blatantly lying about the results of the law, claiming that crime has "consistently gone down since the law was enacted".

Gura on the steps: Today we argued about whether the 2nd Amendment means something.

"The Constitution does not end at the borders of the District of Columbia."

Robert Levy: "This case is about self-defense."

Everybody on our side thinks the arguments went well.

Heller: "I was very pleased the way [the arguments] went."

Palmer: "Pretty confident the court will vindicate my rights."

More from SCOTUSBlog:

Justice Kennedy was very active in today's argument.  He asked the second question, advancing a theme to which he repeatedly returned:  that the first clause of the Second Amendment merely was a "reaffirmation" of the Constitution's militia clauses, and suggested that the first clause did not limit the distinct right to keep and bear arms (which he referred to as the "operative clause"), which was unconnected -- he used the phrase "quite independent" -- from militia service.  Kennedy expressed the view that the Second Amendment was a "supplement to" the militia clauses.  Kennedy also returned several times to the 1689 English Bill of Rights as the model for the Second Amendment.  Kennedy also indicated that he does not put a lot of stake in the Court's opinion in Miller, saying that it ends abruptly and does not fully elaborate the interests encompassed by the Amendment.

This is a good sign, and I agree with Kennedy that Miller opinion does not fully elaborate the interests encompassed by the 2nd Amendment?  How could it, when only one side of the argument was heard?

I think Kennedy's comments can be taken as foreshadowing a lengthy opinion that will attempt to fully elaborate those interests, as well as a positive sign about which way the decision will likely go.

Here's some more analysis of Kennedy's comments.

The poll of readers concerning the expected outcome of the case is running at 92% Heller, 5% DC.

... and in other news, a dog bit a man today.

The District of Columbia, which has one of the nation?s highest crime rates, banned private ownership of handguns. Rifles and shotguns were permitted, if kept disassembled or under an easily removed trigger lock. It is a reasonable law, far from the ban that some anti-gun-control advocates depict.

I find that really amusing.  First they describe the city's ban on handguns, and then claim that those laws are "far from a ban" because rifles and shotguns are allowed... so long as they don't work.

Speaking of the lower court's striking down the law:

The decision broke with the great majority of federal courts that have examined the issue, including the Supreme Court in 1939. Those courts have held that the constitutional right to bear arms is tied to service in a militia, and is not an individual right.

Will they ever learn to read US v Miller correctly?

The appeals court made two mistakes. First, it inflated the Second Amendment into a sweeping right to own guns, virtually without restriction or regulation. Defenders of gun rights argue that if the Supreme Court sticks with the interpretation of the Second Amendment that it sketched out in 1939, it will be eviscerating the right to own a gun, but that is not so. Americans have significant rights to own and carry guns, but the scope of those rights is set by federal, state and local laws.

They can't even state our arguments properly.  If the Supreme Court sticks with the 1939 interpertation honestly, I'll be able to buy a new machinegun once the decision comes down.  US v Miller protected military weapons even over and above non-military weapons.

It's hard to see how "significant rights to own and carry guns" are can possibly be consistent with a complete ban on an entire class of firearms, restrictive licensing and storage restrictions on all other functional firearms, and a complete ban on carrying functional firearms outside the home.

The District of Columbia City Council concluded that prohibiting the easily concealable handguns preferred by criminals, and imposing prudent safety rules on rifles and shotguns, was a good, practical strategy for reducing crime, suicide, domestic violence and accidental shootings. Far from a blanket ban, the law strikes a balance between gun owners and the larger community.

The District's gun laws are the strictest laws in the nation, and the New York Times thinks they are balanced?  Sure... balanced somewhere between "really really bad" and "police state".

In a way, it's refreshing to see all these opinion papers coming out and supporting the District's failed gun control laws.  It's like flushing game... they're admitting they support handgun bans and extremely restrictive controls on long guns.  They've been trying to hide this for years, even since they realized that it didn't sell to the man in the street.  But now they can't hide what they really think, and we're not going to let them forget it.

Hopefully we'll get an eyewitness account from him when he gets his Blackberry back.

Based just on the questioning, which can prove inaccurate, the Court is divided along ideological lines in Heller, with Justice Kennedy taking a strong view that the "operative clause" of the Second Amendment protects an individual right unconnected with militia service that guarantees the right to hunt and engage in self-defense.  If the oral argument line up were to hold when the Court votes, the Court will recognize an individual right to bear arms that will not be seriously constrained by military service of any kind. There was a seemingly broad consensus that the right would not extend to machine guns, plastic guns that could evade metal detectors, and the like. There was relatively little disccusion of the trigger lock provision.  Justice Breyer seemingly sought to pick up a fifth vote for a narrower reading of the Second Amendment by attempting to tie the question of the reasonableness of the regulation to whether the challenged statute left individuals with the ability to possess weapons that could be used in milita service.  But at argument, at least, none of the Court's more conservative members expressed much interest in that approach, and Justice Kennedy's view that the operative clause is not directed at militia service would seem not to point in that direction. 

A decision along ideological lines would not be a surprise, and would go favorably for us if Kennedy plays along as he seems to be.  Not much discussion of the standard of review.

They will be following the audio commentary live.

Marty Lederman thinks that the original meaning and plain text of the Constitution have no real relevance to judicial interpertation anymore, and that the real argument in Heller will be:

I therefore agree with Akhil that the justices are much more likely to decide the case not upon evidence from text or original understanding of the Second Amendment (although such matters will undoubtedly pepper their various written opinions), but instead based upon whether they are persuaded that (in Akhil's words) "Americans have established, merely by living our lives freely across the country and over the centuries, certain customary rights that governments have generally respected; basic rights [that] are simply facts of life, the residue of a virtually unchallenged pattern and practice on the ground in domains where citizens act freely and governments lie low."

As noted below, however, I'm less certain than Akhil which way such a consideration will (or should) cut with respect to D.C.'s restrictions in the Heller case, because it turns out the district does not prohibit the use of all firearms for self-defense in one's home.

I hope he's wrong about the standards the justices will use to decide the case, but I can't say what lurks in the secret heart of a black-robed justice.  All I can do is read their opinions, which pay frequent homage to the original language and text, especially when there is no preexisting maze of precedent to confuse the issue.

But I KNOW he's wrong about DC law permitting the use of any firearm for self-defense.  He continues the argument:

Well, as it happens, the District of Columbia does not prohibit its residents from having a gun