Robert Levy on Heller
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.