Heller

This video is from Reason magazine's interview with Alan Gura, filmed shortly before the Heller decision was released.  I'm including it here mainly for completeness, since I seem to have missed it when originally published.

Mayor Adrian M. Fenty wants to help balance the District's recession-squeezed budget by allowing as many as 80 percent of the city's inmates to qualify for early release, borrowing a tactic that has stirred controversy elsewhere in the nation.

The Heller case struck down the ban on handguns and defensive firearms in DC, and ever since, the political leaders of that city have been struggling to formulate a response.  They took several tries at formulating new legislation that was almost-but-not-quite as bad as their original bans, hoping that it would survive court challenge.  Congress has responded by continuing to press for legislation removing gun control from the issues that the DC local government can write laws about.  

So, DC's Mayor Adrian Fenty has thought up a wonderful new plan: long-term political sabotage.  If he can't keep honest citizens in his city from having firearms for self-defense, by god he will make sure that in another 10 or 20 years, researchers will notice an increase in crime that very nearly coincides with the embarassing outbreak of civil rights in his jurisdiction.

I should probably note that I'm not seriously claiming Fenty is doing this deliberately to increase crime and sabotage gun rights.  It's a possibility.  Mainly, though, I want this article to be sitting in my archives in those 5 or 10 or 20 years, so that if that uptick in crime does materialize, I'll be able to point back to at least one alternative explanation.

[I apologize for the lack of a link; I wrote this up and saved it for later, not realizing I hadn't included a link -- NEW linked].

I may have linked to this before, but I've been going through old emails and found it again.  If you haven't seen this detailed article on the Heller case in Reason, it's worth a read.  It covers a lot of the aspects of the case that aren't often mentioned in media coverage -- specifically the opposition of the NRA (seeking consolidation with the Seegars case, then seeking to overturn the DC law through Congressional legislation before it could b heard).

It also has one tidbit that almost surprised me:

"It makes all the difference in the world that this one guy went down and filled out an absolutely meaningless piece of paper which you knew in advance was a futile act," Neily says. "It was not intentional on the part of Alan, Bob, and myself, but it was intentional on the part of Dick and Dane, and it was very important that Dane had that insight and did that." Heller slid in because he had a permit denied: a clear injury with a paper trail.

I picked up on the importance of Heller's application from basically the first moment that standing came up as a possible issue.  In fact I remember complimenting Alan and the rest of the legal team at a very early stage for having thought to include it.  I was surprised at the time that they were reluctant to take credit for the idea, and didn't necessarily think it would make a lot of difference.  There was case law (based on the First Amendment) to back them up on the idea that making an application was not strictly necessary to challenge a law.  Yet, having made that application became absolutely crucial.

Reason magazine, a major libertarian publication, has an article on the Heller case:

In retrospect, D.C. v. Heller seems almost inevitable, because of shifting public and academic attitudes toward gun rights. But victory came only after a protracted struggle, with many pitfalls along the way. It was pulled off by a small gang of philosophically dedicated lawyers -- not "gun nuts" in any stereotypical sense, but thoughtful libertarians who believe Second Amendment liberties are a vital part of our free republic. Together they consciously crafted a solid, clean civil rights case to overturn the most onerous and restrictive set of gun regulations in the country. In the process, they set the stage for further legal challenges to other firearms restrictions from coast to coast.

There's an important but unstated subtext here, in the context of the last two elections: Heller was brought by a legal team of libertarians, and privately funded by a wealthy individual associated with the Cato Institute, another libertarian organization.  Traditional Republican organizations were mostly silent on the issue.  Even those organizations associated with gun rights were less than helpful; the largest and most influential such organization went so far as to file the Seegars case in an attempt to disrupt the case which would become Heller v DC at the Supreme Court level.

Meanwhile, four Republicans have taken it upon themselves to introduce their own version of an assault weapons ban.  You may recall that fiasco in 1994 was originally a Democratic idea, and it cost them control of congress and, arguably, the Presidency.

Why weren't the NRA and the Republicans leading the charge?  I don't know, but I suspect that their loss of limited-government leadership on this issue and many others is part of the reason they lost their leadership of Congress in 2006 and the Presidency in 2008.  We depend on interest groups and politicians to lead the way, with the courage of their convictions if not exactly a fixed-bayonet charge, and with respect to the 2nd Amendment both the Republican party and the NRA failed to recognize a leadership opportunity when it bit them in the ass.

I am slightly disappointed that the Reason article doesn't mention my in-depth reporting on the Parker v DC case -- the case which eventually became Heller v DC.  To my knowledge I was the only news source actually posting and commenting on full documents from the case.  But I suppose I can't have everything.

In attempting to challenge the legal fees proposed by the winning team in the Heller case, DC's Attorney General described the Heller case as using "proven legal theories" and thus, according to him, is not worth a fee enhancement despite being "significant" and "above-average". 

If that was the case, why didn't DC settle the case and change it's laws?  There's just no way to make that argument coherent. 

The Volokh Conspiracy has a case that cites the dissent in Parker (the original case, that the Supreme Court affirmed in Heller) for the proposition that citizens of the District of Columbia do not have Second Amendment rights. 

Accordingly, both the Supreme Court and this court have consistently held that several constitutional provisions explicitly referring to citizens of ?States? do not apply to citizens of the District.?

This is exactly the sort of judicial malfeasance that transformed what should have been a minor victory for the 2nd Amendment in US v Miller into 60 years of oppression.  There are lots of rulings that cite US v Miller for things that contradict any possible reading of that decision.  If we aren't careful we'll see exactly that same result with Heller -- especially if the Supreme Court's composition becomes more liberal over time. 

As noted on the Conspiracy, the outcome itself is not incorrect -- Heller does not offer those charged under "felon in possession" laws much recourse. 

I don't know that there's anything we can really do about this, other than hoping an appeals court takes notice and rewrites the ruling with a similar result.

Although Texas has been a shall-issue concealed carry state for some time, many people are surprised to learn that it's a fairly restrictive state regarding carry of weapons otherwise.   For example, you're not allowed to carry a sword.  Why not?  Who knows?  (There has to be a special exemption for renaissance festivals).  Of course, this state of affairs is really embarassing to Texas gun rights activists, so there's a petition to fix the problem.  You can sign the Texas Open Carry Petition here.  It's gaining a lot of steam thanks to the Heller decision.  I got the tip from a Keyboard and a .45 (and believe it or not, listening to a local radio news program reminded me).

It seems the newspaper which denied the existence of the Second Amendment up until the last possible minute attacked the fee request that the Heller lawyers filed.  Alan Gura wrote a letter to the editor defending his request.  And he's right to do so; this is a landmark civil rights case.  

That's the bill for the Heller case, according to ScotusBlog.  That's a big number and it should put into perspective a lot of the people eager to take whatever random criminal defendent happens to be in trouble with the law all the way to the Supreme Court.  Do you think your average upstanding citizen wrongfully accused can afford to spend nearly 4 million dollars defending the 2nd Amendment?  No.  Do you think that Heller would have won with second-rate lawyers constrained by funding?  Possibly -- but I wouldn't like the odds.

The anti-gun side will almost by definition have the force and funding of government behind it.  That means we'll be at a disadvantage in court unless we carefully pick the cases we champion.  That's why we have cases filed in Chicago and California challenging the gun control laws there.  There are organizations and individuals backing those lawsuits that can fund them all the way to the Supreme Court, using carefully crafted cases to attack the foundational flaws in gun control laws. 

It's already started over at NotionsCapital, which links to my series on the process of legally obtaining a licensed and registered hunting rifle within the DC area in support of a silly screed against the Heller decision, guns in general, and whatever else stumbles in front of the keyboard.  It deserves a fisking, because the disinformation is thick.

No one will be happy with the new District of Columbia handgun law. It is not stringent enough for handgun opponents, and will be abused. It will not please handgun enthusiasts: the registration process does not even have a drive-through window or one-hour service.

I won't argue that DC's proposed new regulations won't make anyone happy, but the reasons they will not satisfy gun rights advocates are quite a bit more substantial than simply lacking a drive-through.  The proposed process includes a vision test (which may well be struck down as discriminatory against the disabled), a written test (which should remind everyone of the infamous "literacy tests" once used to stop black voters from voting), a ban on semiautomatic handguns, a waiting period, and many other onerous requirements.

Handgun fanciers want the weapons As Seen on TV! ? the ones that never need reloading, don?t recoil, aim themselves, and always hit what they are pointed at. And they want them now.

Well, sure, those guns sound nice... pity they don't exist.  I'd settle for
the best currently available handgun technology, which is the basic semiautomatic handgun commonly carried by both the police and the military.  While revolvers are a step up from nothing at all, revolvers do not represent the best available technology -- and in fact a ban on semiautomatic handguns represents a ban almost as broad and sweeping as the one that the Supreme Court struck down in Heller. 

As for wanting them "now"... that's how a fundamental right works.  The government does not get to stand in the way and play parent.  How many people will die due to government-imposed waiting periods -- because they could not get a self-defense handgun before their attacker got them?

But semi-automatic handguns are classified as machine guns in the DC Code, and D.C. citizens will not be allowed to register them. The choice is limited to revolvers or single-shot target pistols. Too bad TV is awash in crime shows. If Gunsmoke was still popular, revolvers would in greater demand.

Never mind the absurdity of defining normal semiautomatic rifles and pistols as "machine guns" in order to mislead the public; that level of chutzpuh is par for the course in DC.  

Revolvers fire five or six shots and then need reloading. With semi-automatics, folks who cannot hit what they aim at after six tries can kill or injure up to thirteen innocent bystanders. No wonder everyone wants semi-automatics!  Under Washington?s new law, handguns must be kept in the home, so bystanders will certainly be family, friends, and neighbors. Of course, those are most often the targets of civilian handguns anyway.

How often have you read about a ordinary man defending himself in his own home who shoots the wrong person, no matter how many shots they fire?  While there are plenty of people who do stupid things with guns and hurt themselves or others, those are not usually actions taken in self-defense.  Civilian gun owners acting in self-defense tend to not need to fire their gun at all, and in the rare case where they must do so, they almost never hit an innocent bystander.  I can't think of a single documented case of an ordinary civilian doing so by mistake, in fact. 

Actually, one bunch of folks loves the new law. Local burglars are ecstatic. It is much easier to leave a break-in with a handgun than a bulky big-screen TV.

Funny, those are the same folks who are absolutely terrified of being confronted by an armed citizen defending his home with a handgun, many of whom have been captured and held for the police (not shot, mind you!) by one, or have had their friends similarly apprehended.  I don't imagine criminals will be celebrating, especially since illegal guns are not exactly scarce in DC.

Smith and Wesson has produced a special edition of one of their revolvers to commemorate the Heller v DC decision.  Some of the proceeds will be directed to the Second Amendment Foundation.  

According to Fox News, Heller -- the plaintiff in the original Heller v DC case which produced the first definitive Supreme Court ruling validating a 2nd Amendment right to keep and bear arms to individuals -- has chosen to sue the city of DC once again over almost the same issue.  This time, he's suing to challenge DC's continuing ban on the registration of magazine-fed firearms (any firearm capable of accepting a magazine of more than 12 rounds is classified in DC law as a machinegun, and will not be registeredl; this includes most semiautomatic handguns). 

The smart bets on this one suggest it won't reach the Supreme Court; it's likely to be struck down by the District or Appellate courts and cert to the Supreme Court denied (if DC even bothers to request it).

Still, this should be an interesting case to watch.  Itr's hard to believe DC can be so stupid about an enumerated right so recently confirmed by the Supreme Court.  I wonder if they are opening themselves to civil and criminal penalties for deprivation of civil rights under color of law?

It looks like Heller tried to register his 1911 and was denied.  That takes some serious stupidity on the part of the DC officials.  DC claims that the 1911 is a "machine gun" because it is magazine-fed and can accept magazines holding more than 12 rounds -- even though the standard magazine size holds 7 and the gun is a normal, semi-automatic (one shot per trigger pull) handgun.  There are lots of other new and onerous requirements.  I'll try to follow up with more later.

What are the odds that this sets up Heller v DC 2?  Pretty good, since he was originally planning to register his revolver and could easily have done exactly that.

Robert Levy was one of the original backers of the Heller case, back when it was a small one.  He has an article out describing the effect the case has had on 2nd Amendment law going forward:

Much of the majority opinion and the dissent by Justice John Paul Stevens focused on contrasting interpretations of constitutional text, structure, and history. Without revisiting those arguments, about which volumes have been written, I?d like to comment briefly on four issues that received less attention in the opinions, but which have significant implications for the future. (1) What gun regulations will now be permissible? (2) Will the Second Amendment be "incorporated" so that it can be invoked against state and local governments? (3) Did a purportedly conservative Supreme Court engage in judicial activism? And (4) what happens next on the political front?

The guy put his money on the line for us when the NRA wouldn't.  It's worth reading what he has to say.

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered.

TriggerFinger: How do you see the "arbitrary and capricious" language concerning licensing schemes playing out with respect to concealed-carry licensing? Chicago's laws are an obvious target (with a local official trying to pass a very brief amnesty reregistration period because he forgot to reregister his guns), but there are other obvious applications. I'm thinking of New York's only-the-rich-and-famous-may-carry, and California's maybe-if-you-donate-to-my-campaign licensing system.

Basically, I'm trying to see if he thinks the "arbitrary and capricious" language is suitable for requiring a shall-issue standard for concealed carry licenses. 

David H (davehardy): After incorporation, this might come into play (altho as noted above, Heller is a keep arms case, so the first challenges should be to bans on that rather than on carrying). Hard to see how a right can be restricted on an entirely arbitrary basis, i.e., whether a local official is convinced you have a "need," not further defined, to exercise it.

I think that spells it out pretty clearly.  Shall-issue concealed carry might ride in under the coattails of Heller, but only after we connect the dots in other cases first.

The full transcript is available here.

John Lott takes apart Obama's shifting positions on the Heller case.  First he was for the DC handgun ban, now he's against it because it's unconstitutional, but he'll appoint justices in the mold of those who voted that the ban was in fact constitutional, even though as a Chicago legislator he voted in favor of even more draconian bans.  Right.

They always seem to feel that their little petite tyranny will be absolutely destroyed if you allow the peasants to own firearms.  Yet somehow, they never realize that generally, the crime rate is so high in the land they claim to rule that whatever they thought they were doing about crime wasn't working.  They get so angry about it.  It doesn't make any sense to me.  It's like they are afraid that the people might not need their protection anymore.  And that could lead to things like... people actually voting for someone else rather than the self-ennobled Mayor Daley. 

You think I'm kidding about the whole nobility thing?  Chicago has a handgun ban.  Like DC's, it functions by requiring handguns to be registered, grandfathering handguns already registered at the time it was enacted (1982), and forbidding new registrations.  It also requires that any grandfathered handguns be re-registered yearly.  One of Daley's dukes on the city council recently forgot to re-register his guns, which would make them illegal.  The solution?  Well, because it's one of the nobility, we'll just pass a new law to open the registry again... just for this year... so anyone who forgot to reregister can do so. 

In practice, the law might as well say "peasants need not apply."

"Does this lead to everyone having a gun in our society?  If they [the Supreme Court] think that's the answer, then they're greatly mistaken. Then why don't we do away with the court system and go back to the Old West, you have a gun and I have a gun, and we'll settle it in the streets if that's they're thinking."

The mayor is obviously not paying attention.  He's making arguments against concealed carry, not arguments against law-abiding citizens possessing firearms in their homes.  Never mind that when concealed-carry laws are at issue, they work and the streets do not run red with blood.

"We think we're such an improved society," he added. "The rest of the world is laughing at us."

You know what?  I don't care what the rest of the world thinks.  The rest of the world has been laughing at us ever since we kicked King George's sorry ass back over the atlantic and declared a Republic of free men.  And we've been getting along just fine since then, except in cities like Chicago where the elected nobility have disarmed their subjects in a failed attempt to recreate Europe.

In railing against the Supreme Court ruling, Daley stressed the danger of private gun ownership, especially for the children of gun owners.

"We've shown time and time again how many children have been killed in their homes by guns," he said. "Parents are away, they get the gun. Parents are away, the child takes the gun, runs out in the street and has an argument, comes back and shoots somebody."

Actually, what Daley has stressed time and time again is that some children are killed by guns.  That's undeniable.  What he hasn't stressed is the number, because that number is very very small.

"Chicago, like other big cities, has a compelling interest in reducing crime related to firearms," the brief states.

How's that gun ban working out for you with that?

"From a law enforcement perspective, this [the Supreme Court decision] will no doubt make a police officer's job more challenging than it already is," Chicago Police Supt. Jody Weis said, "particularly since a firearm is used in 75 percent of all murders committed in the city of Chicago."

Right then.  It's not.  75% of all murders with a gun ban in place. 

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered.

TriggerFinger: Other bloggers have written about the inherent contradiction in allowing bans on arms not in common use when the most obvious class of such arms are not in common use precisely because of federal regulations that amount to a ban on new manufacture of weapons in this class. Tactically I understand that that's NOT the issue to press right now. However, the longer the '86 ban on top of the '34 and '68 restrictions are in effect, the weaker our case under "in common use." How do we get out of the bind, when the time comes? Or do we just have to hope for a better court or a legislative fix?

I can't really take credit for this question.  I think it was Snowflakes in Hell that pondered it.  But I can take credit for asking someone who might be able to answer.

David H (davehardy): That IS a logical problem! We have a similar one in the 4th Amendment. Prohibition on unreasonable "searches." How does that restrict wiretaps, etc. that don't involve a search? Court has held it extends to cover a "reasonable expectation of privacy," e.g. on the telephone. That, too, has a circularity problem. If the gov't announces it is randomly tapping every phone, does anyone have a "reasonable" expectation of privacy. I suspect it comes under the "you know what we mean" doctrine of judicial construction.

The comparison to reasonable expecation of privacy in wiretapping laws is a good one.  I've run into similar issues before; consider, for example, the transmission mechanism of email.  As currently standardized, email is about as secure as a postcard -- anyone who can look at the email while it is "in transit" from sender to recipient can read the contents.  This generally includes at least two internet service providers (including all their staff) and often a number of other "backbone" providers who link the two isps.  Usually, once it arrives, an administrator can read the contents.  Depending on the network design, it's possible that anyone on the local network (for example, anyone on the same floor of the building or same group of offices) could read the email as it was transmitted.  For web-based email, logging in to read the email provides yet another opportunity to learn the contents. 

And on top of all this, there's a law passed under the Clinton adminstration and expanded under Bush known as CALEA that mandates telephone companies make it possible for law enforcement to wiretap their lines "easily".  If I remember correctly, the required capacity is something like being able to tap 1% of all the current phone calls in the US.  Under Bush, this law was expanded to cover internet service providers in ways that I don't believe have been released.

And yet people have a very strong expectation of privacy about their email exchanges, and systems adminstrators know this and respect it.  It's not technically very private, but socially, it's treated as such.  At least some of the lack of privacy is due to government action.  So does the test consider the real privacy afforded by technical means -- ie, very little?  Or does it consider the expectation -- a lot?

I don't know.  (My solution is to fix the technical problems with the email system so that it is as private as people expect it to be).

The full transcript is available here.

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered. 

TriggerFinger: Second question. The more-liberal side of the court is famous for reading rights into the "penumbras" of the Constitution. Would it be fair to read similar implications into any common federal gun control laws not referenced by Scalia as permissible? I'm thinking in particular of Lautenberg's domestic-violence rules, which came close to the brink in US v Emerson and which, as I recall, was notably absent from Scalia's list. (at least as summarized in the syllabus -- still working through the whole opinion)

It should be pretty clear what I'm getting at here.  What Scalia leaves off his suggested "ok list" for gun control is a ripe target for challenge precisely because it's left off and we won't have to argue with a recent Supreme Court "suggestion" even in dicta. 

David H (davehardy): Possibly. I did notice that Scalia omitted mention of Lautenberg. That wouldn't be significant in a purely legal sense, but suggests to that Scalia at least has heartburn with it, and the four Justice who joined him did not suggest its mention.

And it seems that Dave is thinking the same thing.  Left unstated is the effect that US v Hayes will have on the law:

In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence.  The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship ? that is, as a spouse, parent or guardian.

It's hard to get a good plaintiff for a Lautenberg case.  This case was picked by the Justice Department rather than our side, and the plaintiff is not one that I would have chosen, though the court grants certiori for its own reasons.  Are they planning to use this case to strike down the ban?  Probably not, even if Scalia left the rhetorical door open.  But it's possible.

I wouldn't be surprised to lose Hayes (especially since the 2nd Amendment question isn't presented at this point) and win a subsequent case involving a restraining order rather than a conviction.  Nor would it surprise me to see a ruling indicating that the 2nd Amendment requires careful dotting of i's and crossing of t's in order to uphold any regulations -- sort of a "you didn't get this case quite right, please come back later with your paperwork in order."  Reading tea leaves from the Court is not always easy. 

Clearly, though, I'll have to pay attention to the briefs in this case to see if and how the issue gets raised.

The full transcript is available here.

Dave Hardy of Arms of the Law (and one author of amici briefs in Heller) participated in an online chat on the Heller case last Friday.  I logged in to get a few of my own questions answered.  Here's my first question:

TriggerFinger: Blogger TriggerFinger here. We know Scalia's opinion covered a number of "suggested as reasonable" gun control laws. Those suggestions, including such things as the ban on felons in possession, are not strictly necessary to reach the decision in Heller. Could you briefly explain the concept of "dicta" versus a binding part of a core ruling and maybe give us a feel for how lower courts and future supreme courts will consider Scalia's words in future cases? How much weight is due, for example, to Scalia's discussion of felon-in-possession laws as constitutional when Heller, the plaintiff at issue, is not a felon?

I was hoping to address the concern that several other gunbloggers have already raised regarding the opinion in Heller.  Yes, it seems like the case and the decision conceded a lot.  However, not everything that's included in an opinion has equal weight.  Generally, the elements of a decision that are necessary to reach the final result have precedent weight; those that are not necessary to reach that result -- the judicial equivilent of a "by the way" -- are considered less important for future cases to respect.

Here's his answer:

David H (davehardy): Holding: the part of a decision that binds future Courts (they can depart from it only by overruling the prior decision). These are the facts here which were key to the decision. I'd say the Heller holding is that a federal entity cannot outlaw handguns nor require guns to be trigger-locked in the house. That's the law at issue and the court's decision on it. Anything is considered dictum. The Court may quote it later to buttress an argument, but it can depart from it without overruling. Laws about felons, government buildings, etc. were not at issue in Heller, so a future Court could decide those issues differently without having to overrule Heller. Icing on the cake, not binding.

As you can see from this brief but succinct explanation, what Scalia wrote regarding other gun control laws will have some influence (especially on lower courts) but not actual precedential value.   We can challenge even Scalia's "approved" laws and possibly win.  It would not necessarily be a wise thing to do right now, when we barely held 5 votes, but it's not barred completely.

We'll just need to take it slowly and carefully, one case at a time.

The full transcript is available here.

Suppose the Heller case, which the Supreme Court will likely rule on today, comes down with a ruling favorable to gun rights -- upholding the lower court and striking down DC's gun ban.  That's not going to be the end of the story.  It will still be impossible to get a handgun in the District in practice, if not in law.  Why? 

Simple: There are no stores in DC selling handguns.  Unlike rifles and shotguns, it's illegal to buy a handgun outside of your home state.  DC, of course, is not a state at all.  That's going to complicate things, especially since the City may seen a backhand way to prevent handgun sales to its citizens by preventing gun stores from opening within the District.

Consider the case of Charles Sykes, who operates a business transferring firearms to law enforcement customers within the city.  Recently Sykes found himself in need of new space for his business:

When he applied for a permit in late February, a representative for Zoning Administrator Matthew Le Grant notified him his business could not operate in the District and that the agency would send him an official explanation shortly.

He visited Le Grant's office in April and has contacted Mayor Adrian Fenty's office and the Department of Consumer and Regulatory Affairs. So far, he's received no details in writing about the rejection.

"I think there is a political motivation to this," he says.

If the DC government can keep any gun stores from opening in the District, they can keep their handgun ban, at least until someone brings a lawsuit over it.  I suppose one way around that would be to register a firearm already owned; it would have to have been purchased while living in a different jurisdiction.  That would keep the numbers down, especially if the city can think up some creative legal roadblocks for that process too.

Hat tip for this one goes to a reader who knows who he is and is  much appreciated.

by way of Pajamas Media and the Volokh Conspiracy.

... and Obama is from Chicago and part of the legislature that has maintained that ban.  Not that I was in any doubt that McCain was better than Obama on guns before.  I'm wondering if this issue will be enough to ignite a debate on the firearms issue that will change the outcome of the election?  We'll see, I guess.

One awkward part:

"Unlike the elitist view that believes Americans cling to guns out of bitterness, today's ruling recognizes that gun ownership is a fundamental right -- sacred, just as the right to free speech and assembly," McCain said.

You mean like the First Amendment rights to free speech and assembly that your McCain-Feingold campaign finance "reform" act violated?

Snowflakes in Hell speculates a little:

The Court did not much address the issue of machine guns, but the "common use" test that it prescribes will be problematic.  However, I think The Court has set itself up for an intellectual bind.  Machine guns are not in common use, but that's entirely because of the 1986 prohibition on new registrations preceded by 18 years of heavy regulations inder GCA 68, and decades of regulation prior to that under the National Firearms Act.  In short, machine guns fail the common use test because government regulations and prohibitions make them uncommon.   I think this is an argument that could be raised later that could possibly ease restrictions.

I agree here.  We're going to have to bring a separate case for this at some point.  That case is going to rest on whether "in common use at the time" means that the government can ban something that's not in common use because it has been banned for 70 years.  I can't imagine an honest court letting that stand, but we only got 5 votes for a much less scary ruling today.  So let's not bring that case until we've added some precedents and case law and friendly judges, mmmkay?

I think there?s ample language in the opinion to argue that the second amendment is incorporated against the states, and that will be the next step.   Chicago, New York, and I think, even Massachusetts and New Jersey?s licensing restrictions can be construed to meet the standard of ?arbitrary and capricious.?  In fact, I would view this somewhat similar to ?seperate but equal?  In that the Civil Rights movement was later able to argue that seperate can never be equal.   I think one could perhaps argue that licensing, or having to get the government?s permission, can always be subject to arbitrary and capricious standards.

Good thoughts.  The NRA has already announced that it intends to challenge the Chicago gun ban - that's an incorporation case and is the obvious next step. Pity they weren't so willing to help out with Heller at first.

On the ?bearing? of arms, I think The Court leaves open the possibility, and perhaps even suggests the possibility that the state must allow some form of carrying arms for self-defense.  This would presumably mean openly carrying of arms being legal everywhere, with states still free to regulate wearing of weapons.  But I would argue that perhaps the states can regulate concealed firearms, they may not outright prohibit them, since, given changes in society since the 19th century, that amounts to the destruction of the right.

There's nothing that really hints at that in the syllabus, so I'll have to read the whole decision before deciding whether I agree or not.  But it's a better take on the result than I got.

As reported in the decision, the syllabus is prepared by the court staff for the convenience of the reader and does not have any binding legal language; it's just the summary version. I'm going to start my analysis there. It begins with a summary of the case:

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device.  Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Not much to say here.  It's an accurate summary. Next, the holdings:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

This is the core win for us. An individual right, unconnected to service in a militia, that protects not just hunting but also self-defense and other traditionally-lawful purposes.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms.

Again, part of our core victory here.  The "militia clause" does not limit the right that is protected, although it may explain its purpose.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved.

Again a necessary part of our victory.  Scalia's decision is basically blessing the "Standard Model" of the 2nd Amendment.

(c) The Court's interpretation is confirmed by analogous arms bearing rights in state constitutions that preceded and immediately followed the Second Amendment.

No surprise here -- other state Constitutions agree with this interpertation, often in language less easily confused.  Enforcement of those state Constitutional provisions has not always been ideal, though, or we'd have fewer gun control laws.  However, the example of Vermont, which has permitless concealed carry due to some court rulings to that effect, is instructive.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms.

It's of dubious worth because, after all, the drafters picked one final version.  However, the fact that many of the versions they began with included clearer individual rights language can be suggestive of how they thought about the proposed right.

(e) Interpretation of the Second Amendment by scholars, courtsand legislators, from immediately after its ratification through thelate 19th century also supports the Court's conclusion.

No surprise here.  The "collective rights" fiction is a 20th century invention designed to provide a convenient non-answer to Constitutional challenges to the National Firearms Act of 1934.

(f) None of the Court's precedents forecloses the Court's interpretation.  Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264 265, refutes the individual rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes.

This vindicates something I have been saying about Miller for a long time -- that the ruling was based on the militia status and type of the weapon, not the militia status of the person possessing it.  However, it also hints (not surprisingly, but disappointingly) that Scalia will be backing away from Miller's implied protection of military weapons. The result of applying Miller faithfully to modern laws would be... exciting. So Scalia is preemptively backing away here. We'll have to read this section of the actual decision to understand exactly where he's going.  More on the other cases later.  Next the syllabus has a laundry list of what we lost.  On the one hand, it's disconcertingly large and includes a lot of things I wish would rather not be there.  We'll have to read these parts of the decision closely to find out exactly how bad these concessions are, but it basically looks like most (if not all) existing federal laws regarding gun ownership will be preserved. 

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court?s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller?s holding that the sorts of weapons protected are those ?in common use at the time? finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Well, the result isn't unexpected, but we'll have to read it closely to understand the reasoning.  The only positive thing I can say about this part is that most of it will be dicta -- not necessary in order to reach the core ruling striking down the District's handgun ban.  Will that matter?  Probably not to lower courts, which will use this language to avoid striking down any federal laws that resemble those listed.  For future Supreme Court decisions, though, there may be some room.  Notably absent from Scalia's list of permitted infringements is the Lautenberg domestic-violence prohibition -- and the court is hearing a case next term on exactly that.  Interesting.  Also missing is any reference to an assault weapons ban.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition -- in the place where the importance of the lawful defense of self, family, and property is most acute -- would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.  Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

And this is the most disappointing part, even though it's the part that affirms the lower court and delivers us the actual win.  The court avoids setting a standard of review for firearms laws.  It explicitly validates licensing and registration requirements for simple possession.  The only bright spot is that it does so because Heller conceded those points in his argument -- later challenges to licensing and registration laws could conceivably have a different outcome.

So... a mixed bag.  5 votes to create an individual right that protects possession in the home for self-defense and other lawful purposes, but has a laundry list of exceptions.  No standard of review specified.   No word on incorporation, either.  Later courts will have to decide how much weight to give this court's dicta on which infringements are permissible and which standards of review to apply and whether state and local governments are bound by this right.  There's going to be a LOT of litigation on this topic.  Maybe I should consider going to law school.

Overall, it's a step forward.  We won on the fundamental question.  We now have an individual 2nd Amendment right that the courts can (and might even choose to) protect.  We'll have to fight for every scrap of protection we can get, though.