D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread

[RDak]

Double post. Sorry.

[RDak]

Bill wrote: "I'll disagree. The question of the social utility of a law (or right) to do good or ill has little to do with its constitutionality. We could certainly have more public order if we did not permit protests or widely divergent views on the same subject. But our rights to free speech, free press and to peaceably assemble are more important that the social utility of an orderly society."

IIRC, the DC brief makes the "safety" argument in its brief and the Heller brief responds to it quite effectively.

So, (1) whether there is utility in the law and (2) its relationship to constitutionality has been brought up by DC and answered by Heller in their briefs.

I assume SCOTUS will have to make a conclusion on this subject because that is the main thrust of DC's argument (i.e., safety - as decided by the authorities).

I hope they make your conclusion! And I think they will overwhelmingly.

[Al Norris]

Actually. no.

By setting the question to be answered, the SCOTUS has effectively shut the door on this argument.

The briefs submitted before oral argument will have to stick to the issue the SCOTUS defined within the question.

[RDak]

How can DC argue its position without stating the ban is for safety reasons?

If they can't do that, they might as well withdraw their appeal?

Here's the question SCOTUS will answer:

Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

DC will argue their ban does not violate 2nd Amendment rights because non-militia individuals have no 2nd Amendment rights and the ban is for safety reasons.

I mean, what else can they say? I'm missing something here. I still don't quite follow what you and GoSlash are saying about limiting the arguments DC can put forth.

Now, as GoSlash has stated, maybe SCOTUS will summarily reject the non-militia members having no 2nd Amendment rights argument but the safety argument is the whole reason DC enacted the statute isn't it? That IS their argument (i.e., after acknowledging that the DC authorities really do not feel non-militia members have any 2nd Amendment rights).

I mean the provisions of the DC statute were enacted for what the authorities thought were public safety concerns weren't they?

To say it another way Anti: DC will argue safety reasons trump 2nd Amendment rights. (Well, no, I really believe DC will also argue we don't have 2nd Amendment rights but GoSlash has made a good argument that I might be wrong on that one.)

If DC can't argue (1) the individual non-militia member has no 2nd Amendment rights and (2) that safety reasons trump any 2nd Amendment rights, what the heck can they argue? I mean, there ain't nothing left to argue is there?

DC might as well just fold up their tents and concede.

I'm just not seeing the question limiting near as much as you guys are saying. Man, I hope you guys are correct!

[Al Norris]

Maybe this will help.

D.C. Code § 7-2507.02 states that all lawful firearms will be kept unloaded. Additionally, these unloaded firearms must be disassembled or bound by a trigger lock (there has been some confusion about this, so I thought I would restate it so as to show what this law requires), unless in a place of business, or while being used recreationally.

D.C. contends, in their cert petition, that this doesn't preclude a self-defense use. As we all know, these firearms would be rendered completely unusable in the event one had to use a firearm for just such a defense of the person. There just isn't time to reassemble/unlock and then load the firearm. You're dead and the BG has a new toy!

This will be struck down as an overly broad and unconstitutional invasion of the privacy of the home without much effort. It fails even the rational basis test (the least strict of the three tests used). Hence, the Parker decision on this point will be upheld.

D.C. Code § 22-4504(a) prohibits the carrying of a pistol without a(n additional) license. The statute actually makes no reference as to where you are carrying the pistol. As it is worded, without the additional license, you are a felon, by merely transporting your handgun from your bedroom to your living room.

Again, in a self-defense situation, you may survive. You may not be prosecuted for shooting the BG... But you may very well be prosecuted for carrying without a license. Within the confines of your own home, no less!

The government has no business trying to license you within the confines of your home. This one will not meet the least test, let alone intermediate or strict scrutiny.

Now we reach to D.C. Code § 7-2502.02(a)(4), which is the handgun ban.

To quote from Parker: "The District contends that since it only bans one type of firearm, “residents still have access to hundreds more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined—as we have done—that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them."

Now contrast the above with the actual question: "Whether the following provision, D.C. Code §§ 7-2502.02(a)(4), violate the Second Amendment rights of individuals..."

Here, the Court has said in very unambiguous terms that the 2A is an individual right (but they have not said it is a fundamental right - there is a difference). The only question remaining is whether handguns are "Arms" as defined by the 2A. D.C. will have to try and convince the 9 Justices that handguns are not "Arms." Now, I grant you that D.C. may well try to tie the public safety issue with the fact that handguns are not "Arms," as defined by the 2A, but that is an irrelevant reference and the Justices will not be fooled with that ploy. They will instead, focus the orals upon what "Arms" may or may not be. D.C. cannot use Miller as the Circuit Court (and the then appellants) neatly destroyed that angle... But the Court can use Miller to demonstrate why handguns are in fact the very type of "Arms" Miller said was protected. In order to uphold Miller as precedent, the Court will need to use strict scrutiny here. The ban will fail on that count.

D.C. may try and convince the Court that the 2A is not a fundamental right, and therefore even though handguns are "Arms," they can use intermediate or even rational basis as the test for the validity of the statute.

But that would also invalidate Miller and I'm not so sure the Court will go there.

Does that make more sense to you. RDak?

[GoSlash27]

Antipitas,

D.C. will have to try and convince the 9 Justices that handguns are not "Arms."

The order frames the question as "handguns and other firearms" in lieu of the more open-ended "or" or simply "handguns". I think that sticks a fork in that argument as well.
Remember, by limiting the cert they rejected the scope of the petition. One of them was that handguns can be limited individually. That tells me that if they wanted to visit that question they would have.

AFA fundamental rights, I think the first litmus tests for establishing fundamental rights is enumeration in the BoR. Correct me if I'm wrong.
If that's the case and the order establishes the 2nd as an individual right then surely strict scrutiny applies?

[GoSlash27]

After thinking on it and doing some research, I think you're right. Enumeration doesn't automatically confer a "fundamental" right.
That changes things a bit. Still and all, the handgun ban has much more than just an "incidental impact" on the free exercise of the 2nd (zablocki (sp?) v redhail) because it's aimed squarely at it.
I don't think anything other than strict scrutiny fits. Of course, that's just me...

[Al Norris]

GoSlash, I'm thinking that the attorneys for D.C. may try and force the Court to look at a strict interpretation of Miller (even though I think that the Circuit precluded this and even though the Court does not want to go there), in that handguns must be of the type commonly used by the military.

I think they will fail, but not for lack of trying! Currently, I see little wiggle room for their defense... Though I will continue to think about it.

[GoSlash27]

Hey, if they want to go the Miller route and admit that military grade firearms are expressly protected that'd be fantastic!
I don't imagine that the counsel for DC is gonna push that idea too hard.

Plus, DC Heller doesn't involve interstate commerce.

[Oldphart]

Antipitas:
Forgive me but something you said above has set me to thinking, a dangerous thing too.
You said something about "fundamental" rights and suggested they were somehow different than other 'rights.' Could you please walk me through Legal Terminology 101 and explain the difference and why they're different?

Also: We're all excited to finally see the SCOTUS hold its collective nose and jump feet-first into the murky waters of gun control. The dozens of threads here and elsewhere attest to our agitation but it has finally happened. The wheels are turning now and there really isn't anything we can do to either slow or hurry them along. Regardless of what we write here (unless it's something really good!) we'll find out how the case shakes out sometime late next spring.
In the meantime we can use our energies in an effort to try to sort the RINOs out of the herd now running for POTUS. The fact that the Court has framed the question as it has may help us build fires around the feet of some of the newly converted "supporters" of the Second Amendment. Remember, an anti-gun President can pack the Court with anti-gun judges who can re-visit and re-write whatever this Court says.

[RDak]

Anti: Your explanation helps. Thanks for the info.!

You're right Oldphart, the possible Supreme Court picks of any President is probably the main reason I vote for the person. Always have. (Funny, I've never been able to go for a Democrat. In my lifetime, they've always been anti-gun.)

[alan]

Oldphart:

Re reference to RINO's, interesting point, one that has been made before, here and elsewhere. Interesting fact however is that not all Republican's are pro gun. They may sit around the campfire singing Kumbya, but push coming to shove, where are they?

Ditto for Democrats, except for the fact that they are not universally anti gun. The party platform is one thing, individual votes can be another.

Antipitas:
Your posts continue well composed, thoughtful and enlightening.

[Al Norris]

Most of the BOR meet the definition of fundamental rights. Included are also the following rights:

the right to privacy (abortion is actually defined as part of this right); the right to marry (and its corollary, procreate); the right to travel (intra or interstate).

Note that the 5th amendment right to indictment by a grand jury is not a fundamental right.

Fundamental rights are therefore those rights that are considered basic to liberty within a working free society: a free state, as opposed to a state of despotism or tyranny.

Strict Scrutiny, the highest level of judicial review, is applied to those rights that are considered fundamental rights.

To pass the Strict Scrutiny test, a law or regulation must 1) have a compelling governmental interest; 2) The law or regulation must be narrowly tailored to achieve the goal; and 3) the law or regulation must be the least restrictive means of achieving that interest.

Should the law or regulation fail any of the three tests above, then the law or regulation is deemed unconstitutional.

To sum it up in context: If the Court does not find that the 2A right is a fundamental right, then one of the lessor tests (intermediate scrutiny or rational basis) may be used.

[GoSlash27]

Expanding the above

Intermediate (or heightened) scrutiny:
DC must show that the ordinance serves an important state interest.
DC must show that the ordinance is substantially related to that interest.

Rational basis scrutiny:
DC must show that their ordinance is rationally related to their interest.

Whatever level of scrutiny is applied to DC will set the benchmark for review of all gun control measures across the country.

[RDak]

Thanks again for all the info. GoSlash and Anti!!

[GoSlash27]

On second thought, scrap the Intermediate scrutiny test. This is clearly a due process case rather than an equal protection case.

that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law

.
Dred Scott

Under due process cases only strict and rational basis apply, depending on whether or not the right is considered fundamental.

Hope I'm not confusing you
Edit: And if Antipitas and I disagree on anything, go with what he says. I know about enough in this matter to get my head blown off.

[Oldphart]

Thanks to both of you. I (we) hear all these legal terms and phrases when a significant case hits the courts. The rest of the time they really aren't very high on our lists of 'things to worry about.'

I had an idea about what a "fundamental" right was and it turns out that I was pretty close. Maybe there's hope for me yet - or maybe it's time to abandon all hope. Again, Thanks.

[Al Norris]

GoSlash, I intentionally kept my answer brief, so as not to confuse or conflate the issue.

I do agree with your premise that this is a due process issue. I would go one step further, however. Look up substantive due process. That is the way I believe the Court will rule.

If they do rule in this manner, it will immediately wreck havoc upon certain State laws, as they regard people moving into or visiting those certain States, should these people happen to own certain prohibited firearms. Should those States "revamp" their laws without giving residents the same protections, then Equal Protection comes into play.

I'll leave it to someone else to "flesh out" that argument.

[GoSlash27]

AP,
That's exactly what I'm getting at. By rejecting the question in the petition they have signalled that this is, indeed, a substantive due process conflict.

IOW, they summarily rejected the notion that 2nd Amdt rights can be altered by crossing a state boundary simply by refusing to entertain the question.

[Al Norris]

Now see this thread, started by publius42....

[publius42]

Originally Posted by Antipitas

The only question remaining is whether handguns are "Arms" as defined by the 2A. D.C. will have to try and convince the 9 Justices that handguns are not "Arms."

Heller's lawyers say this on the subject, referencing the decision of the DC Circuit:

The court’s finding that handguns are constitutionally protected arms within the meaning of the Second Amendment was consistent not only with the Fifth Circuit’s individual rights precedent in Emerson, 270 F.3d at 227 n.22, but also with the First Circuit’s collectivist interpretation of the right to arms, which acknowledged that handguns would pass the Miller test. See Cases v. United States, 131 F.2d 916, 922-23 (1st Cir. 1942).

Petitioners cannot establish that handguns fail either prong of the Miller test. Handguns are plainly arms of the type that would be in common use absent (and even despite) their prohibition, such that individuals may be expected to keep them for ordinary, legitimate purposes. And handguns just as plainly have military application. Indeed, as the court of appeals found, handguns were specifically defined as militia arms by the second Congress.

The court said handguns are arms according to the tests established by the Miller case, and the DC side's lawyers apparently haven't contested it on those terms, instead choosing new ones. That's a stretch, and suggests the SC might let that part of the ruling stand.

OTOH, GoSlash is right that they did not have to phrase the question "...who wish to keep handguns and other firearms for private use in their homes" when they could have said handguns OR other firearms.

[publius42]

From the NRA and Ron Paul thread,

Fremmer:

We might lose. So that's not irrational at all.

The NRA attempted to help other gun owners in DC. They did nothing to hurt the case. If you disagree, please cite that part of the final order (granting the plaintiffs their requested relief) which shows that the NRA somehow hurt the case. I'd like to see that part of the order. So show it to us.

I never said it was irrational, just that compromising and timid tactics are not the only valid tactics. It's perfectly rational. I await Antipitas' response on the role of the NRA in this matter, and will comment further after he posts on that subject.

cool hand luke:

Considering that the entire issue will now most likely be decided by Justice Kennedy's views, the NRA's fear is well justified.

Don't be too shocked if the Court decides against the "Individual Right" construction of the second amendment. It's even money that the decision will go that way.

The history is on our side, IMO, and while Justice Kennedy has indeed embraced leftist views in many cases, read his opinion in the Lopez case, if you have plenty of spare time. He'll examine the history.

And even if we lose bigtime, it's still a win in two ways:

1. We know where we stand, and can quit bickering over militias and whether the 2A really guarantees the rest of the BoR by preserving an armed citizenry. If the DC opinion is overturned and gun bans are allowed based on some "collective rights" construction, that argument is over.

2. There would be incredible backlash against such a decision, just like there was after the Kelo decision. Kelo was the best thing to ever happen to some property rights groups, and resulted in quite a few positive changes in laws at all levels.

[Yellowfin]

2. There would be incredible backlash against such a decision, just like there was after the Kelo decision. Kelo was the best thing to ever happen to some property rights groups, and resulted in quite a few positive changes in laws at all levels.

But what would an effective backlash be? What would change for the positive? What can be done to reverse the anti gun stances of the large cities and leftist states if their stance is validated rather than voided?

[publius42]

No telling, Yellowfin. I'd bet the NRA and every other gun group gets a boatload of money, to start out. That's pretty predictable.

What might happen next? Depends how many phone lines and fax machines melt down and how many email inboxes explode. When it became obvious that the Kelo decision had scant support outside of 5 members of the SCOTUS, Congress passed a bill saying that federal money will only go to public use projects which are public use, not for private development of eminent domain projects. Obviously, a bill won't do the trick here, but with enough support, the Constitution can be amended.

Maybe that wouldn't happen, but let's look at another Kelo parallel. The SCOTUS gave the go-ahead to that development, and then what happened next? Did the bulldozers come the next day? No, because the whole thing was politically radioactive. No investor wants to sign on for that kind of political heat. There are other investments.

Similarly, gun control tarred with the Heller brush could become politically radioactive.

I don't know how it might go, but we've seen that gun owners, properly motivated, are a political force to reckon with. My observation has been that large numbers of Americans believe we have a right to own guns, and if the SC upholds a complete gun ban like the one in DC, it won't be just gun activists who are pissed off.

[Doggieman]

Reminds me of a "Judge Judy" episode I saw once. Some girl sued her ex boyfriend for something or other and during testimony it was revealed that he had a cache of guns in his place. Judge Judy asked why he had all those guns and he said it was his 2nd Amendment right. She said "Well you know the constitution don't you?"

So even in the eyes of Judge Judy the 2nd amendment applies to individuals.