Some prominent members of the Cato Institute are backing a court challenge to the firearm ban in the District of Columbia. The plaintiffs' counsel has an archive of documents in the case, along with a page of background information for those new to the issue. Those interested in this case should also examine the Seegars case, since it covers many of the same issues, albeit with the NRA's backing rather than the Cato Institute.
Disclosure: Sources who prefer to remain anonymous have occasionally provided copies of the filings not available through PACER in Seegars and Parker. A plaintiff in the Parker case has provided commentary and eyewitness accounts of the oral arguments in Seegars. Season appropriately before consumption.
Heller v Parker...
In case you haven't already heard, the DC handgun ban challenge that I have been following here for some time as Parker v DC has been renamed, upon the Supreme Court appeal, to Heller v DC. Rather than rename the category and break all the links, I'm adding a new Heller category that will only have information relevant to the Supreme Court case.
Robert Levy explains why the Bush administration's Justice Department was wrong to file an amicus brief in Heller v DC opposing the use of strict scrutiny as the standard of review and favoring remanding the case to the lower courts for further fact-finding. It's a good article, I suggest you read it.
I do have one small quibble:
In fact, the Court of Appeals did not suggest that any federal gun regulations (including those on machine guns) are unconstitutional. Moreover, under the Supreme Court's 1939 precedent, U.S. v. Miller, machine guns are not protected by the Second Amendment without showing that they are in common use by civilians.This is correct, but misses the point. Allowing the federal government to effectively ban a type of firearm, and then claiming that type of firearm is not protected by the 2nd Amendment because it isn't in common use, is a recipe for similar tactics -- if the federal government almost-bans handguns for 80 years and then bans the manufacture of new handguns for 20 years, can it then ban all handguns because they are no longer in common use?
When the first federal controls on machineguns were passed, they were undeniably in more common use than they are today. When the ban on new manufacturer of machineguns was passed in 1986, can the contribution of 40 years of intrusive regulation and heavy taxation be ignored when questioning whether a class of firearms is "in common use"? If a measure to confiscate all existing civilian-owned machineguns were passed today, could the contribution of a 20-year ban on new manufacture of machineguns for civilian markets be ignored when analyzing the 2nd Amendment implications of the law? I don't think so.
But Levy's article also got me thinking on a different topic.
I am struck by the parallels between the Bush Administration's brief in this case and the outcome of the most recent Supreme Court precedent on the 2nd Amendment, US v Miller.
The last major Supreme Court precedent on the 2nd Amendment is the US v Miller case. The Supreme Court issued a ruling in that case in 1939, and for the past 70 years, courts have cited US v Miller in their rulings supporting gun control without ever bothering to read the case. So let's briefly summarize the Miller case.
Miller was prosecuted for possessing an unregistered, sawed-off shotgun that had been transported in interstate commerce. He challenged the law under which he was charged as being in violation of the 2nd Amendment. He won in the trial court, which ruled that the National Firearms Act violated the 2nd Amendment. The government appealed directly to the Supreme Court; Miller was unable to appear (presumably imprisoned on other charges or dead), his lawyer was unable to file a brief without a client, so only the government was able to present their case to the Supreme Court.
Rather than upholding the law directly, the Supreme Court examined the case and ruled (by implication) that Miller, a private individual, had 2nd Amendment rights at issue in the case. They asked whether the weapon Miller was charged with possessing had military utility, concluded that they did not know one way or the other, and remanded the case to the lower court (which, remember, had originally ruled that the law under which Miller had been charged was invalid under the 2nd Amendment) for fact-finding on the question of whether Miller's weapon, a sawed-off shotgun, had military utility and was in common use.
If the weapon had military utility and was in common use, it would be protected by the 2nd Amendment.
Miller remained unavailable for trial. His case never proceeded, although his partner, Layton, plead guilty. There was never any fact-finding concerning the military utility of a sawed-off shotgun. Had there been, many veterans of WWI and WWII could have testified to the effectiveness and common use of a short-barrelled shotgun for cleaning out enemy trenches.
Miller was never convicted on the charges.
A conspiracy theorist might question whether the government, under Franklin Roosevelt, arranged for Miller to disappear at such a convenient time. Roosevelt had a history of conflict with the Supreme Court already. I'm not a conspiracy theorist, by which I mean I am not asserting that this did in fact take place... but I wouldn't be at all surprised if FDR did actually give the order for Miller to be disappeared.
Let's compare the course of the Heller case with the course of the Miller case. The case now known as Heller v DC began life as Parker v DC, and was filed specifically to challenge the DC ban on handguns and functional long arms. Miller's case was a criminal case. Miller won his case and overturned the law he was challenging in the lowest level of the court system, reflecting the "conventional wisdom" that gun control violated the 2nd Amendment; the Parker case had to deal with a spoiler effect from the Seegars case, and then proceeded to a narrow loss in the lower courts -- at least in part as a result of the precedent established by Seegars. The "conventional wisdom" in the lower courts is that gun control does not have to overcome a 2nd Amendment hurdle.
The case was appealed to the DC Court of Appeals, again following in the footsteps of the Seegars case. This time, though the appeals court differentiated from Seegars and struck down the challenged DC laws.
In the lower courts the District argued that plaintiffs (Parker, Heller, etc) had no standing to bring the case because they were not members of the militia. This is the same argument made by the government in US v Miller. However, in US v Miller, the Supreme Court rejected that argument without any briefing from the defendent. In other words, the Supreme Court in US v Miller considered it obvious that Miller had 2nd Amendment rights to be protected. The standing argument likewise failed with Heller, though it succeeded with other plaintiffs in the case (hence the change in naming for the case).
So, we're at the Supreme Court, the lower court has struck down a gun control law, and the government is going to try to defend the law.
So what is the Bush DoJ asking the Supreme Court to do with the Heller v DC case?
They want the case remanded to the lower court for consideration of the merits of rifles and shotguns (which are permitted by DC law so long as they are not in operational condition) as replacements for handguns. In other words, the government is asking the Supreme Court to replicate the Miller ruling by referring to the lower courts for additional evidence concerning the exact nature of the weapons and their utility for self-defense.
The last time the Supreme Court punted on this question, we got 70 years of lower courts blatantly misreading the US v Miller case even as they cited it in support of their local gun control laws. Almost four generations of absolutely no protection for the 2nd Amendment rights of ordinary citizens in the court system.
I'm not very enthusiastic about the prospect of another such weaselly ruling. And I am furious that the Bush Administration has chosen to backstab the people who put him in office this way. The man has no more elections to win, no more political dues to pay, and even his own vice president split with him on this issue.
UPDATE: Kevin at The Smallest Minority reminds me that the government appealed to the Supreme Court directly from the trial court. I've updated the post to correct this point. More information about US v Miller is available from Wikipedia (and many other places, but the Wiki writeup looks reasonable at this point in time).
UPDATE: Sailorcurt similarly questions the machine-gun point. While it may be good PR to downplay the chances of legalizing machine guns, I do not think it is wise in the long term. Machine guns are protected arms.
Alan Gura has an article on Parker...
Alan Gura has an article on the Parker case. It's pretty old by now, since I first wrote this post almost a year ago, then left it sitting on the table. But in the interests of completeness, here is it.
... about the Parker case.
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).
5 Emerson, 270 F.3d at 264-65
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.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.
Buried deep in the comments...
Buried deep in the comments section of the Volokh Conspiracy is this jewel from Clayton Cramer, on what armaments were commonly possessed by the people of the United States at the time the 2nd Amendment was ratified:
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.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.
The question of torture...
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.
UPDATE: The Agitator doesn't link here but posts almost exactly the same policy I expressed above. Interesting.
I haven't said much about this bill yet, but it's coming, believe me. In the meantime, take a look at Keyboard and a .45 who has pictures of firearms banned by HR 1022.
Well, I'll be a ... something
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.
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?
The 2nd Amendment as a dead letter?
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: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.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.
A dangerously ignorant editorial...
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 United States v. 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 precedentNever 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:That's a lot of lies for three short paragraphs.
I have to say I think it's premature to finish a roundup now... we're hardly getting started with this firestorm.
Missing the forest for all the trees...
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...
Still, we have not always been so clear on this point.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.
The Living Document Strikes Again
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.
The Insanity of the Opposition...
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.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.
Sideswiping the 9th Circus
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.
Speculations on Parker and the Hughes Amendment
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?
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.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?
Luckily that's not the case.
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