Heller Recitation

[Buffalo Wing]

We are covering Constitutional Law right now in my law class and on Wednesday we will be discussing Heller v. D.C. As the outspoken 2nd Amendment supporter in the class, the professor has told me that she expects to "recite" the case (present the facts and then answer questions about both the majority opinion and dissent in front of the rest of the class).

I've read the entire Heller decision and was already pointed towards this review:

http://www.cardozolawreview.com/content/denovo/HARDY_2010_61.pdf

by an older thread on this forum. I was wondering if there are any other very in-depth legal sources worth looking at, especially with regards to the dissent. I get the feeling Justice Stevens' dissent will end up being heavily discussed, as the professor and I do not exactly see eye to eye on the subject.

Thank you all for your help!

[Bartholomew Roberts]

I would head over to the Volokh Conspiracy and look at their archives on "guns (http://volokh.com/category/guns/)." I would also take a look at the discussion of the underlying Miller decision by Michael P. O'Shea if you haven't already (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1287405).


Finally, if you need some quick 30 minute refreshers, the Independence Institute podcasts are great for hitting specific issues. However, the Dave Hardy article you read really gets into a detailed piece-by-piece dismantling of the Stevens dissent.

[green-grizzly]

That Hardy article is the best dissection of the dissent I have read.

[Buffalo Wing]

Thanks guys! Those other articles look pretty useful, and it's great to know I already have pretty much the best resource. Wish me luck, hopefully I can change a few minds tomorrow.

[svaz]

Good luck, let us know.

[Jim March]

There's a footnote that contains a reference to the Nunn case and some others. You need to review that whole footnote (I think it's #9) and all the cases cited - 6 or 7. Basically this is the "hidden gold" in Heller. All of the positively cited cases say the same thing: it's OK for a state to restrict or ban concealed carry SO LONG AS loaded open carry remains legal.

Now go read the Klein case, Ohio Supreme Court 2003 where they said the same thing in much more modern times. The Klein case was one where our side "lost" but in a cool way: the court said "no, you can't sue for a right to CCW permits but that's OK, everybody knows concealed carry is legal".

Everybody on our side went: :D

Everybody on THEIR side (including major police departments that had been busting people for "disturbing the peace") went: :eek:

Within days big happy heavily armed peaceful mobs of gunnies were doing laps around the various capitol buildings and in about a year "annoyed them" into passing a CCW bill :D. So in other words, loaded open carry almost immediately leads to concealed carry.

That's the first part of Heller nobody has noticed.

The other part is a damning pair of criticisms of the Cruikshank case. In one footnote it says that Cruikshank also said states could violate the 1st Amendment, a warning that Cruikshank's statement about the 2nd not applying to the states can't be relied on. But another comes late in Heller where there's a positive reference to a 2008 book by Charles Lane, "The Day Freedom Died" in which "the day" was the day the Cruikshank final decision came out in 1876. The Cruikshank decision caused over 4,000 lynchings and untold numbers of other civil rights violations. In cryptic fashion, the Heller court finally acknowledged the Cruikshank case as a total t u r d yet as late as fall of 2009, Alameda County California was trying to cite to Cruikshank in their defense of a gun show ban in the latest Nordyke case.

That's why we're so certain that incorporation will happen in McDonald.

[Bartholomew Roberts]

Let us know how it goes today.

[Buffalo Wing]

Jim -

I just saw your reply, I have the class in a few hours. I caught your help at just the right time! Thanks, that info gives me a few more awesome pieces to throw in to the debate! Looking over what I have, this should go well for me - I will definitely let you all know how it ends up going.

[Buffalo Wing]

And here's the update for everyone:

We spent the entire class on Heller and barely got into the majority's discussion of the actual meaning of 2A and its mention of Miller. We analyzed small parts of the dissent in concert with this but spent much more time on the majority.

I was able to get concessions from the professor that restricting the rights of all on the actions of a few is wrong, and that the right as written in 2A (compared with language elsewhere in the Constitution) secures an individual right. I was able to present this most strongly by tying it to the English right codified under Cromwell that allowed only Protestants to own and carry weapons. By using this to frame the Founders' mindset for Amendment, I was able to get agreement that the 2nd Amendment was written to protect any individual's right to keep and bear arms from repression, because of concerns of such a similar occurrence happening here during shifts in political power.

We got hung up for a while on the militia, and I didn't quite manage to persuade her that the right was separate from the stated purpose of the militia. Essentially, it seems she came down saying that since a militia is no longer necessary, 2A isn't either. We will be continuing the discussion into the next class, and I'll make sure to bring up more information from the Founders on how exactly the right was intended, including the other, separate proposals meant to secure the militia (effectively meaning the militia and 2A are not irrevocably tied to each other).

If the follow up goes like today did, I should have presented a very solid case. She already said I did a good job with it today, so I'm even more excited to finish it up now. Thanks again to everyone for providing the awesome resources I had to really make my presentation strong!

[Brian Pfleuger]

Way to go!

Fight the good fight my friend. Minds can be changed (if they're not too far gone).

[EugeneInNC]

Tag

[rwilson452]

Essentially, it seems she came down saying that since a militia is no longer necessary, 2A isn't either.


Regardless of it's necessity, it is still the law of the land. There is a process to change that. If she is unwilling or unable to go that route. She will just need to live with it.

[KyJim]

Buffalo Wing,

Let me suggest you consider this paragraph from p. 26 of Heller -- the purpose of codification is different than the substance of the right codified.

It is therefore entirely sensible that the Second Amendment’s
prefatory clause announces the purpose for which
the right was codified: to prevent elimination of the militia.
The prefatory clause does not suggest that preserving
the militia was the only reason Americans valued the
ancient right; most undoubtedly thought it even more
important for self-defense and hunting. But the threat
that the new Federal Government would destroy the
citizens’ militia by taking away their arms was the reason
that right—unlike some other English rights—was codified
in a written Constitution. JUSTICE BREYER’s assertion
that individual self-defense is merely a “subsidiary
interest” of the right to keep and bear arms, see post, at
36, is profoundly mistaken. He bases that assertion solely
upon the prologue—but that can only show that selfdefense
had little to do with the right’s codification; it was
the central component of the right itself.

[Buffalo Wing]

KyJim -

If we talk about Heller anymore in class today, and we probably will, that is exactly what I was going to bring up. I also planned on mentioning the different proposals by the Virginia delegation meant entirely to protect the militia, to argue from the "Founding Fathers' Intent" side of things. Hopefully we will cover it more today because I think bringing out those points will really finalize my argument on the case.

[Buffalo Wing]

And here's the final rundown of how my recitation went:

We spent about 10 minutes today wrapping up Heller. I got to present my final arguments and answer a few questions. KyJim, I brought up the part of the majority you mentioned and it went over very well. I answered a few questions about concealed carry, registration schemes, etc.

At the end my professor said I did an excellent job, that I presented the case very well and had a good answer to every question I was asked. She also said that as written, she is comfortable with the Heller decision and its implications. I think now that she generally felt that way before, but perhaps my defense of the decision strengthened that opinion? At any rate I was able to present a very solid and reasonable defense of RKBA.

Thank you all for the excellent help!

[Bartholomew Roberts]

Typically, instructors know the Constitutional Law cases very well and you aren't likely to sway them; but who knows how many of your fellow students had never heard of these things before and now understand it better.

One of the smarter things the pro-Second students in our law school did was start a Second Amendment student organization. Mostly all we did was get together, introduce people to shooting and have a wild game cook out at the school fair; but introducing future lawyers to self defense concepts is going to be important, especially as the Second Amendment fight gets broader.