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The Second Amendment in the Supreme Court:

The D.C. Circuit refused to rehear the Parker case en banc. A few thoughts on this case in the Supreme Court:

1. Timing: I assume that the District of Columbia will petition for certiorari; it has 90 days to do this, so the petition will likely be filed in mid-August. That would mean the Supreme Court will decide in late September whether to hear the case — and if it does agree to hear the case ("grant cert"), it will hear it in early 2008, with a decision handed down by early July of 2008.

2. Chances of the Supreme Court's Hearing the Case: High, I'd say well over 50% (unless Congress moots the question by preempting D.C.'s gun ban). That's a rare thing to say, given that the Court hears only about 1% of the cases that it's asked to hear. But here there is a split among federal courts of appeals on an important constitutional question — the D.C. Circuit and the Fifth Circuit take the individual rights view (see here and here for why the Fifth Circuit's decision can't be dismissed as dictum), while I think nine other circuits take the collective rights view. There is also a split between a federal court of appeals and D.C.'s highest court on the constitutionality of a specific law, which is itself usually seen as a strong signal in favor of cert. This is also the sort of question that the Justices would likely think ought to be decided by the Supreme Court; it's one thing to have different views in different circuits on some technical question, and another to have different views on whether an Amendment in the Bill of Rights secures an individual right or not.

3. Chances of the Supreme Court's Accepting the Individual Right View: Now that's a mystery. I think the individual rights view is correct, and I think the historical evidence should be a powerful influence on the Court.

But note how the vote in the D.C. Circuit broke down: Two conservatives (Silberman and Griffith) supported the individual rights view, but one Republican appointee (Henderson) seemed to reject it. In the en banc vote, the three Clinton appointees (Rogers, Tatel, and Garland) voted to rehear the case, but so did Randolph, a Bush Sr. appointee who to my knowledge is a pretty solid conservative; it's possible that they voted to rehear the case en banc just because it's extremely important, deepens a circuit split, and creates a split with the D.C. Court of Appeals — but generally speaking judges don't vote to rehear a case en banc unless they suspect the panel decision was mistaken. (On the other hand, sometimes judges vote against rehearing a case en banc even though they disagree with the panel decision; I'm not sure why Henderson voted against en banc, but I take it that it isn't because she changed her minds on the merits.)

[UPDATE: Alan Gura, lawyer for the plaintiffs, observes that Judge Randolph also voted to rehear Seegars v. Gonzales, an earlier D.C. Circuit case that rejected on standing grounds a challenge to the gun control law. Gura therefore speculates that Judge Randolph might not disagree with the individual rights view of the Second Amendment, but might instead want to reverse the standing decisions in Seegars and Navegar, Inc. v. U.S.. I'm not sure whether that's so, but in any event that would leave Judge Henderson as an example of a Republican appointee who nonetheless seems to endorse the states' rights / collective rights view of the Second Amendment.]

It's true that in the Ninth Circuit's Silveira v. Lockyer, archliberal Judge Pregerson and Clinton appointee Judge Gould endorsed the individual rights view, alongside the conservative Judges Kozinski, Kleinfeld, O'Scannlain, and T.G. Nelson; so it might be that some of the liberals on the Supreme Court will take a similar view. Still, supporters of the individual rights view ought to worry about the possibility that the Supreme Court vote on the merits will break down much as the D.C. vote seems to have — the liberal Justices being joined by one or two of the conservatives to endorse the states' rights / collective rights view. And on the Supreme Court, that would make a majority for that view, rather than the 2-1 split on the D.C. panel, and the 5-5 split on the court as a whole.

4. What Might a Pro-Individual-Rights Decision from the Supreme Court Do? I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban, and will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations (though that latter question would of course come up in another case within a few years).

5. How Might the Case Affect the Presidential Campaign? I asked a set of questions about this when the Parker panel decision was handed down; let me repeat them, now that the prospect of Supreme Court review in 2008 is less hypothetical, and now that we are further into the election campaign.

A. What, if anything, will the extra prominence of the issue do to the primaries?

B. Assume the decision comes down in late June 2008, and is 5-4 in favor of the individual rights theory. What will that do to the general Presidential election race?

C. Assume it's 5-4 in favor of the collective rights theory, with Kennedy joining the four liberals on the collective rights side. What will that do to the race? What if it's 5-4 with Roberts or Alito joining the liberals? I take it that if it's not 5-4, or (possibly) if it's 5-4 with a less liberal/conservative split, the effect will be less; is that right?

D. Or is this decision not that relevant, either on the theory that the issue won't energize people that much, or on the theory that plenty of people would be energized on gun control and the Second Amendment regardless of how the case comes down?

Naturally, if one of the Justices retires this year or next, the effect on the Presidential race would be still greater, I suspect.

Related Posts (on one page):

  1. The Second Amendment in the Supreme Court:
  2. DC Circuit denies en banc rehearing for Parker case:
Joel Rosenberg (mail) (www):
On the analysis, I don't think I could agree more, not that that should matter much.

I hope the SCOTUS takes the case; the present bench is, I think, the best we're likely to see in -- minimum -- eight years.

As to the questions:

A. Little or nothing. The top contenders in both parties, on gun issues, run the gamut from dreadful to putrid. If, on the other hand, there's a meltdown of Biblical proportions on the D side, it might help Richardson a lot . . . to the extent that there are sensible moderates left in the Democratic primary electorate who don't want to lose. Unlikely. The issue will be a boost to Thompson, if he comes in . . . but it'll be noise compared to other issues.

B. In a close race, the gun issue can easily swing the election. Anybody in doubt could ask President Gore about Florida. But what's the pro-gun vote if it's Hillary vs. Rudy? Hillary vs. McCain? Not at all clear. Hillary might, of all of the top contenders, be the least anti-gun candidate, out of her deep and abiding conviction . . . that angering pro-gun voters is very, very bad for the Democrats, as such voters tend to arm themselves with information and proceed to vote Republican.

C. Even moreso, in a not quite as close race. It doesn't matter who the swing vote is -- gun rights voters would be very, very angry, and those of us involved in the movement would be screaming bloody murder.

D. I don't quite think that "gun control" is a dead issue, but it's like Jason in those horror movies -- it's been killed because it made a lot of trouble, but it will come back, but only when there's thought to be enough demand for a sequel. What's fascinating -- and reassuring -- to me is how little demand there is at the moment. The national Democrats don't want to touch it, and even in my own, very liberal-anti-gun (I accept, not just for purposes of argument, that there are pro-gun liberals -- without them, we wouldn't have gotten carry reform here -- but they're not many), Minnesota, the DFL stalwarts who were crying that the sky was falling in 2003 and 2005 are almost all silent. Even the astroturf "Citizens for a Safer Minnesota" isn't taking advantage of the recent horrible events to try to push for repeal of the carry law, or much of anything else. (And I don't think it's just because the Joyce Foundation turned off the money spigot to them, although I'm sure that's part of it.)

It's not a "perfect storm" right now, but it's close to it: good plaintiffs, opponents stupid enough not to make modest modifications to try to moot the case, and a court that's at least 50-50 to go the right way, and it could possibly end up being the first crack in the door to open up the issue of incorporation and applying the huge body of law around individual rights to the RKBA.
5.8.2007 3:05pm
uh clem (mail):
[an individual rights decision]...will not resolve the question whether the Second Amendment is incorporated in the Fourteenth Amendment to cover state regulations

I don't see how the 14th could not apply if the SCOTUS determines that the 2nd is an individual right on par with the rights guaranteed by the other amndments.

I suppose that they could write a decision that's so convoluted as to grant the right without elevating it to the same status as the other rights, but that would seem to be just kicking the can down the road. Or they could cop-out with a "no precedent" decision ala Bush v Gore, but that's even more unlikely - if they want to dodge the issue then refusing to hear the appeal would be easier.
5.8.2007 3:07pm
Bobbie (mail):
I have a hard time believing that the gun issue will effect the election. Most people don't care. Of the few that are passionate about the issue, they likely already know which party they're going to vote for.
5.8.2007 3:09pm
Bobbie (mail):
*sigh* effect = affect.
5.8.2007 3:10pm
mariner (mail):
I'm not at all confident that the Supreme Court will adopt an individual-rights view, although that would pretty obviously be the "correct" legal conclusion.

Doubters should remember the Court's execrable holdings in Kelo and McConnell.
5.8.2007 3:15pm
Vinnie (mail):
"Assume it's 5-4 in favor of the collective rights theory"
80 Million+ gun owners can swing any election. Right now gun owners are divided. Hunters, Milsurp junkies, mall ninjas, trap shooters, etc. If they are scared enough to vote single issue it could have a huge effect on the election.
5.8.2007 3:17pm
AF:
Haviong the Second Amendment in front of the Court during the election is a lose-lose proposition for gun-control advocates. If they win the case, it hurts them politically, and if they lose the case they lose the case. My hope (as a Democrat, not a gun-control advocate) is that DC will have the sense not to petition for cert.
5.8.2007 3:20pm
uh clem (mail):
If they are scared enough to vote single issue it could have a huge effect on the election.

Yes, if they can be made to believe the paranoid delusion that their hunting rifles are going to be taken away. Most are not that gullible and will sensibly vote based on other criteria.
5.8.2007 3:28pm
Thales (mail) (www):
The court could decide that 2A secures an individual right but nonetheless only governs individuals' relations with the national government because it is not part of "fundamental fairness" or some other test for incorporation. Under current doctrine, incorporation sometimes transforms some previously collectively held/states' rights into individual rights, but sometimes does not. For example, you have no incorporated 5th amendment right to an indictment by a grand jury in prosecutions by state governments, but it's pretty clear that when applied to the national government that right is individual. By contrast, one could convincingly argue that the establishment clause of the first amendment was once a right of states to be protected against federal interference with established state religions, but that post -incorporation it's an individual right to be protected from state's establishment of religions.
5.8.2007 3:29pm
Brett Bellmore:

Yes, if they can be made to believe the paranoid delusion that their hunting rifles are going to be taken away.


The Democratic party, given an NRA endorsed vehicle for mooting Parker, and proving that they're not really opposed to all gun ownership, period, couldn't bring itself to support a bill to restore even a modicum of 2nd amendment rights to D.C. residents. Going back to the debate over the "lawful commerce in firearms act", Kennedy's amendment to ban 30-06 ammo, the definative deer hunting round, and give an unelected bureaucrat authority to extend the ban at will to other rounds, gained almost universal support from Democrats.

It ain't paranoia if they really are out to get you.
5.8.2007 3:41pm
Nick B (mail):

Yes, if they can be made to believe the paranoid delusion that their hunting rifles are going to be taken away. Most are not that gullible and will sensibly vote based on other criteria.


You're exactly right, not even the Brady Bunch would go after Hunting Rifles. They'll call em "Sniper Rifles" first.
5.8.2007 3:44pm
Eugene Volokh (www):
uh clem: The D.C. gun ban barred people from keeping even their hunting rifles ready for self-defense -- they had to be locked and unloaded. Is your claim that most gun owners care only about hunting, and don't care about being able to defend themselves effectively? Or is it that gun owners (unlike, say, abortion rights advocates who live in California or other mostly pro-abortion-rights states) care only about their own rights to have guns for self-defense, and aren't troubled when fellow Americans' rights to have guns for self-defense are violated?
5.8.2007 3:44pm
Noops:

I have a hard time believing that the gun issue will effect the election. Most people don't care. Of the few that are passionate about the issue, they likely already know which party they're going to vote for.


I would disagree with this and say that "the gun issue CAN affect the election."

It's becoming fairly accepted political wisdom that pro-gun people impact elections. One of the primary reasons for this is the pro-gun voters vote single issue, while anti-gun people generally do not vote single issue on guns, but usually on other issues. That voting block for pro-gun people can be effective.
5.8.2007 3:50pm
Noops:

Yes, if they can be made to believe the paranoid delusion that their hunting rifles are going to be taken away. Most are not that gullible and will sensibly vote based on other criteria.


You must not know many pro-gun people. heh.

Besides that:

1) Hunting rifles are not the issue here, and never really have been as it applies to Second Amendment issues.

2) What exactly is a "hunting" or "assault rife?" I think a lot of people and politicians have tried and failed to classify these things. I think you'll find that people knowledgeable about firearms make less distinction here than you do, because the distinction is a finite one that often defies easy categorization.
5.8.2007 3:53pm
Sebastian (mail) (www):
I suspect an individual rights ruling would give the Democrats some cover to retreat farther from gun control in the 2008 elections. The Democrats aren't going to want to get backed up against the Bill of Rights on the issue. The die hards in the party will switch their rhetoric to "It's an individual right, but...".

A ruling along liberal/conservative lines, with Kennedy joining the liberals I think will most definitely fire up the gun vote quite a bit. But I think the same result will happen even if the the split isn't as much along ideological lines. I would expect the issue of Supreme Court nominees to be the real issue, rather than specific gun control proposals. The main thing gun owners will want to see is that the candidate will nominate justices that will overturn the Parker decision.

I think where the ideological correlation of the vote will end up coming into play is in what party gains the most from it. If it's along ideological lines, that will probably tend to play into the hands of the Republicans.
5.8.2007 4:00pm
KG2V (mail):
I'm not a lawyer, but I think the real interesting changes will be in places like NYC

Picture - even to get a rifle/shotgun you have to apply for a fairly expensive permit and wait many months to be approved. Isn't there some decision out there (re Poll taxes if I remember right) where it was ruled that you can't charge to practice a right? Ditto about delaying a right? I know the fee for the permit is currently $340, and I think that's every 3 years
5.8.2007 4:08pm
gattsuru (mail) (www):
Yes, if they can be made to believe the paranoid delusion that their hunting rifles are going to be taken away. Most are not that gullible and will sensibly vote based on other criteria.

Because, it's not like a Democratic front-runner supported a ban on every single semiautomatic weapon, which would include the stuff Wal-Mart hunters use.
5.8.2007 4:12pm
gattsuru (mail) (www):
Picture - even to get a rifle/shotgun you have to apply for a fairly expensive permit and wait many months to be approved. Isn't there some decision out there (re Poll taxes if I remember right) where it was ruled that you can't charge to practice a right? Ditto about delaying a right? I know the fee for the permit is currently $340, and I think that's every 3 years


Just because it's a real right doesn't mean they'll incorporate it. The right to trial by a jury of 12 individuals is a right, and it's not incorporated.
5.8.2007 4:16pm
uh clem (mail):
Is your claim that most gun owners care only about hunting, and don't care about being able to defend themselves effectively?

I didn't say that. My point is the majority of gun owners are not single-issue voters (despite a certain organization's attempt to make them so). Do you disagree with that?
5.8.2007 4:16pm
Brett Bellmore:

The right to trial by a jury of 12 individuals is a right, and it's not incorporated.


Probably because the Bill of Rights doesn't say anything about "12 individuals", it just guarantees trial by jury.

Incorporation would be a slam dunk if the Justices really cared to be right on the law.
5.8.2007 4:30pm
Xrlq (mail) (www):
Uh, no one disputes that a majority of gun owners are not single-issue voters. I think you'd be hard pressed to come up with a single identifiable political constituency that can say that a majority of its members are single-issue voters, so if that's the standard, no political lobby must be effective at anything.

Using a more sensible metric, a significant minority of gun owners are single issue voters, and a much larger subset, probably a majority, pay a lot of attention to that issue while pulling the lever. Ignore them at your peril - especially if next year we end up living in Bizarro-Land, where "the right of the people to keep and bear arms, shall not be infringed" means "Congress, shall not disarm its own militias unless it wants to.
5.8.2007 4:38pm
Sebastian (mail) (www):
which would include the stuff Wal-Mart hunters use

The last time I hunted in Wal-Mart, they threatened to call the police. I was depressed, because I had worked so hard on setting up the blind. Apparently the fascist managers at Wal-Mart think it's bad for business to allow their customers to be hunted. A real shame.
5.8.2007 4:39pm
Xrlq (mail) (www):
Brett, it's not that simple. Rather than nibble at the edges of the Sixth Amendment right to a criminal trial by jury (mostly incorporated, but not quite), take the civil right to a jury under the Seventh Amendment (not incorporated at all).
5.8.2007 4:40pm
Sebastian (mail) (www):
My point is the majority of gun owners are not single-issue voters (despite a certain organization's attempt to make them so). Do you disagree with that?

Yes. Quite a lot of gun owners are the types of people who would not normally pay any attention to politics. They've been brought into the political process by the issue. Those of us, like myself, who are not single issue voters, still rank the gun issue pretty highly in our political calculus when we go into the voting booth. When it comes down to people who are willing to vote based on the gun issue, there are a lot more pro gun votes to be had than anti-gun votes.
5.8.2007 4:42pm
Mr. X (www):
I didn't say that. My point is the majority of gun owners are not single-issue voters (despite a certain organization's attempt to make them so). Do you disagree with that?


The majority of gun owners are single-issue voters when real gun control proposals are in play, but ignore the NRA when there's no real threat of gun control being passed.
5.8.2007 4:42pm
anonVCfan:
I seriously hope we don't get a wishy-washy Justice Kennedy "sweet mystery of life" opinion on this case.

It's rather unfortunate that the court is coherently split 4-4 on a lot of things, and the price of 5-4 majority is that the "winning" Justices are stuck with an incoherent Justice Kennedy opinion explaining the result. I can only imagine what he might write about guns in America.
5.8.2007 4:44pm
Joel Rosenberg (mail) (www):
uh clem: I think you're right -- the majority of gun owners are almost certainly not single-issue voters. Even those of us who would tend to be characterized that way probably won't vote that way, if two candidates are close on gun issues but far apart on other issues that matter to us (and, of course, what matters to "us" varies widely).

But when the differences between candidates are sharp enough, there very definitely are enough "gun rights" (actually, what are called "gun rights" are really human rights -- property ownership and self-defense) voters to swing a few percentage points, and a recent paper by Kopel has quantified how large that has been.

That's why the national Democrats have, largely, dropped the "gun control" issue, and, largely, have avoided going along with the Brady Bunch/Joyce repackaging of "gun control" as "common sense gun laws" -- because they think it matters, and no that the Brady Bunch doesn't have anywhere to go.
5.8.2007 4:44pm
Martin Grant (mail):
"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

Even if you read this as an individual right (probably right, IMO) couldn't you still read it to say that guns can be can not restricted when used for militia type purposes (defense against other military forces); but their uses for other purposes (self defense, hunting, etc.) can be restricted as much as the government would like?

Doesn't Parker apply to self defense? Could you not take the individual rights tack, but say hand-gun ownership for individual self defense is not covered by the second amendment because that's not the purpose of a militia (militias defense a community). Or is that practically backing into a collective right (I don't think so, because the if it's collective then each community could have it's own regulations around it's militia).

We say dance is covered by the first amendment when done as an expression of an idea, but not for recreation. Couldn't we apply the second amendment in the same way and read it narrowly to say, you can own a gun in your home, but you can't ever take it out and use for anything at all unless it pertains to some type militia defense against some other military type body (be it foreign or our own government).
5.8.2007 4:46pm
Joel Rosenberg (mail) (www):
Close, I think, Mr. X -- the experience in Minnesota is that when gun issues (whether it's "gun control" laws or commonsense, mainstream, "shall issue" carry laws, just to pick two different kinds of gun issues) are live issues, the gun voters are motivated.
5.8.2007 4:47pm
Daniel Chapman (mail):
I suppose they could try, but it would be awfully hard to justify prosecuting someone for shooting an attacker in their home for "illegal use of a legally possessed handgun." It's much easier to attack the right to own the gun than it is to attack the right of self-defense itself.
5.8.2007 4:51pm
Bobbie (mail):
Does anybody have any evidence to support the position that even a sizeable minority of gun owners are "single issues voters"?

Also keep in mind that most gun owners live in solidly Republican states.
5.8.2007 5:13pm
matty g:

"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

Even if you read this as an individual right (probably right, IMO) couldn't you still read it to say that guns can be can not restricted when used for militia type purposes (defense against other military forces); but their uses for other purposes (self defense, hunting, etc.) can be restricted as much as the government would like?


maybe, but you'd have to first repeal the laws that define the unorganize militia as all men aged 17-45 or whatever it is.
5.8.2007 5:21pm
Carolina:
<blockquote>
I suppose they could try, but it would be awfully hard to justify prosecuting someone for shooting an attacker in their home for "illegal use of a legally possessed handgun." It's much easier to attack the right to own the gun than it is to attack the right of self-defense itself.
</blockquote>

Agreed. No US politician with hopes of re-election would possibly come out against the right to defend oneself in one's home against an armed attacker.

But some (less now than in the past, thankfully) are perfectly willing to attack the only realistic MEANS of self-defense for those of us who are not ex-Special Forces or judo champions.
5.8.2007 5:26pm
Thief (mail) (www):
Hmmm... per Prof. Barnett's recent post, given the way that the academic literature has recently come down persuasively in favor of the individual rights view of the 2nd Amendment, I'm not sure that a 5-4 vote either way is inevitable. It seems that Justice Kennedy is heavily influenced by the legal academy, as is, to a lesser extent, Justice Breyer. (A few passing cites of Active Liberty in some of the amicus briefs might be a good thing. ;) )

My wager: a 6-3 split (Roberts, Scalia, Thomas, Alito, Kennedy, Breyer vs. Ginsburg, Stevens, and Souter) that upholds the individual rights view but allows for gun laws that can pass either intermediate scrutiny or the rational basis plus test used in Romer v. Evans.
5.8.2007 5:31pm
Mr. X (www):
Does anybody have any evidence to support the position that even a sizeable minority of gun owners are "single issues voters"?


Well at least five million people are committed enough to the issue to pay dues to the NRA. That's a sizeable majority of gun owners and they've been acknowledged as swaying elections in the past, usually by the losers.
5.8.2007 5:31pm
Mr. X (www):
correction: "sizeable minority"
5.8.2007 5:32pm
Happyshooter:
Yes, if they can be made to believe the paranoid delusion that their hunting rifles are going to be taken away. Most are not that gullible and will sensibly vote based on other criteria.

Your most powerful Senator, Feinstein, said this after the 1994 AWB only banned ugly guns: "If I could have gotten 51 votes in the Senate of the United States for an outright ban, picking up every one of them -- Mr. and Mrs. America, turn them all in -- I would have done it"

Senator Schumer is always demanding registration, and outright bans on pistols. He des that right now, after 1996. What will happen when you seize the white house?

Senator Levin does weekly gun banning speeches on the floor of the Senate. Weekly.

In what realty would I think that the leaders of the democratic left do not want to ban guns? Not fringe groups, the leaders of your party.
5.8.2007 5:33pm
Happyshooter:
Even if you read this as an individual right (probably right, IMO) couldn't you still read it to say that guns can be can not restricted when used for militia type purposes (defense against other military forces); but their uses for other purposes (self defense, hunting, etc.) can be restricted as much as the government would like?

The best militia guns are exactly what they want to ban.

The 15 round M92FS pistol, the 15 round Glock 19, those are military pistols. The libs hate them.

The AR and FAL black rifles? The P90 carbines? Those are light military small arms. The barrett anti-IED rifle?

Those are the guns they hate the most and the ones that currently all the efforts are being made to ban "Assault weapons" "Plane killing rifles" "over powered pistols".
5.8.2007 5:37pm
Martin Grant (mail):
>>I suppose they could try, but it would be awfully hard to justify prosecuting someone for shooting an attacker in their home for "illegal use of a legally possessed handgun."

>Agreed. No US politician with hopes of re-election would possibly come out against the right to defend oneself in one's home against an armed attacker.

I wasn't trying to make that point. But self defense makes its a non-2nd amendment issue. That'd be allowed under other statues.

I just think the 2nd amendment can easily be read narrowly in a way that would prohibit fire arms for recreational purposes. Or for carrying them around in public when not part of some militia exercise. Using one for self defense if attacked in one's own home, because it happens to be handy, is not a second amendment issue, but should instead involve whatever local laws cover self defense.
5.8.2007 5:40pm
hey (mail):
I do love the idea that hunting rifles are fine, it's those evil things that can kill people that are horrible. So many people don't see how they're simply mandating LARGER calibres! Deer are about the size of a person and can be rather hard to kill, while Moose are VERY large, VERY mean, and VERY hard to kill. Not to mention bears, who are representing an ever greater threat to people in their own homes.

If the gun controllers were against .22s but fully supported the widespread use of .50s, then maybe their claims would be believable.

Martin Grant: so could you explain how defence against an invader or rebellion should be distinguished from mere self defence? When does a B&E turn into looting? Arson, murder, etc? How do people know when they are allowed to defend themselves and when they aren't, because it is mere criminality and they just subject themselves to whatever's coming. Perhaps you are the tyrants that the Founders speak of, and that you are the reason that the people have the right to keep and bear arms?
5.8.2007 5:42pm
uh clem (mail):
Moose are VERY large, VERY mean, and VERY hard to kill. Not to mention bears, who are representing an ever greater threat to people in their own homes.

You forgot to mention Lions, Tigers and Hippopottomi.
5.8.2007 5:59pm
markm (mail):
My point is the majority of gun owners are not single-issue voters (despite a certain organization's attempt to make them so).

It's not just single-issue voting, it's also that gun control makes a good litmus test for a lot of other issues. In my experience, a pro-gun-control politician will also be for limiting many other rights. If he doesn't trust the people with guns, he just doesn't trust the people. That's not to say that there aren't "conservative" politicians that are anti-gun control because it's conservative doctrine, but want to violate every other Amendment except the third - but those ones are very easy to spot.
5.8.2007 6:01pm
Jim FSU 1L (mail):
A collective rights decision will mobilize all the single issue voters. Watch out.

An individual rights decision with a clear majority will probably get most of these same voters to let down their guard. Most of the effort after that point wont be in the legislature, but in the courts. Anti-gun politicians would actually be safer at this point because their position on the subject wouldnt be relevant anymore. Kind of like how state politicians now dodge on the abortion issue and say that they dont have any say on the matter because of the supreme court.
5.8.2007 6:03pm
W. J. J. Hoge:
If the Supreme Court takes the case, I'll bet that it the decision is affirmed 5-4 with the following in the majority:

Roberts
Alito
Scalia
Thomas
Ginsburg

If Kennedy gets on board, it could be 6-3.
5.8.2007 6:05pm
uh clem (mail):
In my experience, a pro-gun-control politician will also be for limiting many other rights.

Really? Such as?
5.8.2007 6:07pm
Vinnie (mail):
An unambiguous ruling for an individual right might be a huge benefit to the democrats. Allowing gun owners to look past an anti-gun democrat that they might otherwise like.
5.8.2007 6:14pm
Vinnie (mail):
How a politician stands on the Second Amendment tells you how he or she views you as an individual… as a trustworthy and productive citizen, or as part of an unruly crowd that needs to be lorded over, controlled, supervised, and taken care of. — Representative Suzanna Gratia Hupp
5.8.2007 6:18pm
Larry2:
Could anyone point me to a concise, clearly written article or blog post on incorporation? My Constitutional Law class in law school failed to address this and I've never really understood it.
5.8.2007 6:21pm
rlb:
If five Justices want a right to apply against the states, it does. If four or fewer, it does not.
5.8.2007 6:23pm
Bill Woods (mail):
Is Souter a lock for the anti-Bill of Rights side, again? Being from New Hampshire ought to count for something.
5.8.2007 6:25pm
uh clem (mail):
An unambiguous ruling for an individual right might be a huge benefit to the democrats. Allowing gun owners to look past an anti-gun democrat that they might otherwise like.

If you think that an individual rights ruling will end the gun control debate, you're dreaming. As our gracious host put it in point 4 above: "I expect it will be very narrow, will leave open considerable room for gun controls that are less comprehensive than D.C.'s total ban."

Once you start applying "compelling interest of the state" and "strict scrutiny" etc. to the existing body of gun regulations I don't think all that many will be thrown out on 2nd amendnment grounds (assuming for the sake of the argument the SCOTUS decision goes the way most people posting here want it to.) And while such a hypothetical decision may slow the proposal of new regulations, don't expect it to stop them.
5.8.2007 6:25pm
Shelby (mail):
most gun owners live in solidly Republican states

Bobby, do you have a source for that? It strikes me as dubious, given how many gun-owners I've known in Connecticut, New York, and California.
5.8.2007 6:27pm
Daryl Herbert (www):
My point is the majority of gun owners are not single-issue voters

50-100M single-issue voters would be a pretty big voting bloc!

I don't think every single gun owner needs to be a single-issue voter for gun rights to matter politically.

I don't think gun rights organizations have ever claimed that everyone who owns a gun votes based on gun rights (not that they aren't trying--they fully admit they'd like to be there someday).

I think most people could be classified as "single-issue voters" if the issue was the right to criticize the president. The difference between that right, and the right to own guns, is that there isn't a vast conspiracy trying to take it away. When the majority of Americans feel that way about guns, gun rights will be uncontroversial.
5.8.2007 6:27pm
Vinnie (mail):
"compelling interest of the state" was meant to be trumped by "Shall not be infringed. It is a "compelling interest of the state" to stop every revolution, even just ones.
5.8.2007 6:29pm
uh clem (mail):
"compelling interest of the state" was meant to be trumped by "Shall not be infringed.

I think you missed the reference. The point is that if the 2nd amendment is elevated to the same position as the other individual rights, it's exercise is subject to the same limitations as the other rights. Laws that curtail those rights are constitutional if they meet certain tests, of which "compelling interest" is one.

In other words, don't expect a SCOTUS ruling affirming the individual rights interpretation of the 2nd Am. to invalidate any and all regulation of weapons.
5.8.2007 6:38pm
Daniel950:
It's strange that the question posed is about the presidential race. It assumes that voters have some sort of say about the scope of their rights in the Constitution. Once the Court decides, however, the question is cut off. If a collective rights view is asserted by the Court, who is elected President won't matter.
5.8.2007 6:53pm
Xrlq (mail) (www):
Huh? If a collective rights view is asserted by the court, it will make a huge difference whether we elect a President who will sign sweeping gun bans into law, or whether we elect a President who will veto them and appoint future Supreme Court Justices likely to reverse the ruling.
5.8.2007 6:54pm
PersonFromPorlock:
Sebastian:

Apparently the fascist managers at Wal-Mart think it's bad for business to allow their customers to be hunted. A real shame.

What the heck is the Boone and Crockett record for WalMart customers, anyway? Gotta be over five hundred pounds, you can see three and four hundred pounders toddling around the stores anytime.
5.8.2007 7:03pm
SDN:
Clem,

Right here is a man proposing to exactly "take all the guns away." He was looked upon favorably enough by Clinton Admin Round 1 to get an ambassadorship. Not exactly considered a nut by Democrats, huh?
5.8.2007 7:16pm
Clayton E. Cramer (mail) (www):

In other words, don't expect a SCOTUS ruling affirming the individual rights interpretation of the 2nd Am. to invalidate any and all regulation of weapons.
I'm not expecting it to do so. I do expect it to invalidate:

1. Bans on law-abiding adults owning rifles, shotguns, and handguns appropriate to militia duty, such as the laws in New York and California.

2. Laws that grant discretion to officials in deciding who gets a permit to own or carry a gun--especially because the history of those discretionary laws is thoroughly racist.

I do not expect the courts to strike down bans on convicted felons or mental patients owning guns. Those seem like pretty strong examples of "compelling interest." Disarming law-abiding sane adults has no compelling state interest.
5.8.2007 7:26pm
Clayton E. Cramer (mail) (www):
Daniel950 writes:

It's strange that the question posed is about the presidential race. It assumes that voters have some sort of say about the scope of their rights in the Constitution. Once the Court decides, however, the question is cut off. If a collective rights view is asserted by the Court, who is elected President won't matter.
That's why after Roe v. Wade (1973), pro-life forces just folded up their tents, and lost interest in politics.
5.8.2007 7:28pm
Daniel950:
"Huh? If a collective rights view is asserted by the court, it will make a huge difference whether we elect a President who will sign sweeping gun bans into law, or whether we elect a President who will veto them and appoint future Supreme Court Justices likely to reverse the ruling."


So we have another Roe v. Wade on our hands. Lovely.
5.8.2007 7:29pm
Clayton E. Cramer (mail) (www):

So we have another Roe v. Wade on our hands. Lovely.
All the more reason why the Court should engage in a serious historical analysis, instead of its usual, "What result do we want? Law clerks, start searching for precedents to justify the political ends we like!"
5.8.2007 7:35pm
Daniel950:
"That's why after Roe v. Wade (1973), pro-life forces just folded up their tents, and lost interest in politics."


I guess my point is that I'd like to avoid another Roe v. Wade to begin with. It'd be great if the court comes out the right way, but let's not kid ourselves that the next presidential election will matter if they come out the wrong way. The next 6-10 Presidential elections will probably matter. Of course, if it takes 10 Presidential elections to un-do a Supreme Court ruling, you really gotta wonder about the balance of power that the Court has appropriated to itself.
5.8.2007 7:38pm
Bartholomew Roberts (mail):
Regarding how the case will effect the election:

In 2000 and 2004, the following states were significant battleground states that determined who won the Presidency: Ohio, Tennessee, New Mexico, Pennsylvania, Florida. The only change I expect to see to that list in 2008 is the addition of Virginia. I just do not see support of the collective rights argument being conducive to a Presidential candidate's chances of winning these key states. In addition, candidates can't afford to ignore the issue or the NRA will define their position for them, so they will have to speak out on it.

Regarding how the Justices will vote:

I think the Thompson Center-Fire case from 1992 may provide some illumination, though perhaps not a lot. In that case, Kennedy came down in favor of a fairly harsh interpretation of a "constructive short-barrelled rifle." This makes me question how likely he is to view the Second as an individual right. On the other hand, Souter was in the majority in that opinion as well as in Staples.

My breakdown goes: Roberts, Thomas, Alito, Scalia on the pro-individual side, Stevens, Ginsburg, Breyer on the anti-individual side and Kennedy and Souter too close to call.
5.8.2007 7:52pm
KeithK (mail):
"So we have another Roe v. Wade on our hands. Lovely."

Except that this time the right in question is actually written in the Constitution...
5.8.2007 7:54pm
Brett Bellmore:

and appoint future Supreme Court Justices likely to reverse the ruling.


Unfortunately, the exact same judges who'd be inclined to uphold the 2nd amendment as a matter of first impression are the LEAST likely to be willing to reverse a ruling once it's been made. While the judges who'd gladly strike the Second down don't give a bucket of warm spit about precident, if it's against them.

We'd probably find it easier to reverse a bad decision on this by amendment, than by changing the Court's comnpostion and getting it to revisit the issue.
5.8.2007 7:55pm
Martin Grant (mail):
Hey says,
>>Martin Grant: so could you explain how defence against an invader or rebellion should be distinguished from mere self defence? When does a B&E turn into looting? Arson, murder, etc? How do people know when they are allowed to defend themselves and when they aren't, because it is mere criminality and they just subject themselves to whatever's coming.

I'm not sure. I believe it is currently up to the legislature. I wasn't at all suggesting that self defense should be illegal. I was suggesting it was not covered by a narrow reading the 2nd amendment (to have the 2nd amendment cover an individual right to self defense I think you'd have to construe a very broad reading indeed). That said, I think it should definitely be legal and should have been spelled out separately and explicitly in the bill of rights. I'd go even farther than a lot of other people would in the situations I'd allow deadly force if it were up to me. I just think matters of self defense are currently up to the legislature, even if that should not be the case.

>>Perhaps you are the tyrants that the Founders speak of, and that you are the reason that the people have the right to keep and bear arms?

Hmmm. You'd think I actually took a position for or against the narrow reading of the 2nd amendment I proposed. I expressed no such preference.

I don't think the words of the second amendment cover recreational use of gun ownership in any way. I think even an individual right to self defense is a little murky to read that in. I think it's clearly meant to disallow the government from preventing people from owning firearms, should they ever needed to organize and defend themselves against some organized force.
5.8.2007 8:45pm
Bartholomew Roberts (mail):
I think even an individual right to self defense is a little murky to read that in.


Why do you find it murky? It seems to me that most of the state constitutions adopted contemperaneously expressly state a right of self-defense. For example:

Connecticut: "Every citizen has a right to bear arms in defense of himself and the state." Conn. Const. art. I, § 15.

Delaware: "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use." Del. Const. art. I, § 20.

New Hampshire: "All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the state." N.H. Const. part 1, art. 2-a.(

Pennsylvania: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned." Pa. Const. art. I, § 21.

The idea of individual self-defense and a broader reading of an individual right also seem supported by the historical discussions I've read. From Saint George Tucker for example:

"This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible."

Philosophically, the Second Amendment has deep roots in the concept of individual self-defense.
5.8.2007 9:18pm
Guest Poster:
I was just looking up the Parker Case, and it seems that earlier this month the DISTRICT OF COLUMBIA COURT OF APPEALS, not the circuit court rejected a defendants claim based on a parker defense(that the 2nd ammendment protects an individual right) on the basis that they were not obligated to follow Circuit Court of D.C. opinions issued past 1971.

Case: 2007 D.C. App. LEXIS 232,16 [ANDREWS v. UNITED STATES]

"Andrews cites Parker v. District of Columbia, U.S. App. D.C. , 478 F.3d 370 (D.C. 2007), pet. for rehearing en banc filed 4/9/07, in which the court held that the Second Amendment protects an individual right to bear arms. 11 We are, however, precluded by Sandidge and by M.A.P. v. Ryan 12 from following the decision in Parker."


It seems D.C. is already ignoring the decision. Anybody care to explain?
5.9.2007 12:27am
dwlawson (www):

We say dance is covered by the first amendment when done as an expression of an idea, but not for recreation. Couldn't we apply the second amendment in the same way and read it narrowly to say, you can own a gun in your home, but you can't ever take it out and use for anything at all unless it pertains to some type militia defense against some other military type body (be it foreign or our own government).


But that's where that lovely "well regulated" phrase fits in. It's not about passing laws, but about the militia being functional.

I can practice dancing in my home. I cannot practice my marksmanship in my home. I have go to the range, through public ways.
5.9.2007 12:42am
dwlawson (www):

So we have another Roe v. Wade on our hands. Lovely.


Actually I think the recent decision on the partial birth abortion ban will dwarf any 2A ruling.

I'm afraid that the single issue voters seeking to protect Roe v Wade will overwhelm those of us seeking to protect RKBA.
5.9.2007 12:52am
Martin Grant (mail):
>Why do you find it murky? It seems to me that most of the state constitutions adopted contemperaneously expressly state a right of self-defense.

Then why leave it out of the federal constitution? Is it not conspicuous by it's absence, when it's present in those four state constitutions you listed?
5.9.2007 1:39am
Eugene Volokh (www):
Bartholomew Roberts: The Delaware and New Hampshire Constitutions had their rights to bear arms added within the last three decades. The Connecticut Bill of Rights was enacted in 1818. You may still be right as to the bottom line -- there's some debate about the subject -- but for a list of state constitutional rights to bear arms in chronological order, see State Constitutional Rights to Keep and Bear Arms (starting with PDF page 18)
5.9.2007 1:57am
Antares79:

that would leave Judge Henderson as an example of a Republican appointee who nonetheless seems to endorse the states' rights / collective rights view of the Second Amendment.


I'm curious where the support for this statement comes from. Rather, doesn't Judge Henderson's dissent go to great lengths to remain neutral on the individual/collective rights question?

I think there is even an argument that Judge Henderson supports an individual rights view (just not in DC). Judge Henderson's dissent adopts the same grammatical reading of the 2d Amendment as those nine Circuits finding only a collective right in the Amendment. That is, the dissent and the other Circuits apply the prefatory (declatory) clause to the whole operative (guarantee) clause (and whereas the majority in Parker applies the prefatory clause to only a portion of the operative clause in order to support the individual rights view; see pages 3-6 of dissent and footnotes 1 &4). What is striking is that the dissent does not state that the "whole-clause" construction used by the nine collective rights Circuits supports the collective rights view, despite that this statement would support a dissent. Rather, the dissent speaks of the "whole-clause" construction only to require the term "state" to modify and limit the right to bear arms.

Thus, isn't it entirely possible that Judge Henderson believes that the "whole-clause" application is correct but that this construction does not necessitate a collective rights view? In fact, isn't it probable, under exclusio unius, that she supports an individual rights view given her application of the "whole-clause" approach but silence as to a collective right that would be compelled by such application under the other nine Circuits' logic? Her barb that the majority is merely superfluous and not incorrect with respect to an individual rights view seems to say, yes, it is probable.
5.9.2007 3:22am
Anon-----:
I would go with D. The people who are likely to be paying close attention to gun control issues like this are mostly fervently pro-gun-rights voters who are probably already safely in the Republican column.
5.9.2007 4:25am
Brett Bellmore:

Then why leave it out of the federal constitution? Is it not conspicuous by it's absence, when it's present in those four state constitutions you listed?


The whole Bill of Rights was originally omitted from the Constitution. That's why they're called amendments. So you're not making an argument that's inapplicable to, say, freedom of speech.

The argument made at the start was that the federal government was one of limited, enumerated powers, unlike the states, and that you didn't need to explicitly forbid the federal government from doing what it was never given the power to do in the first place. That's an argument Madison lost, which is why the Bill of Rights had to be added.
5.9.2007 7:38am
Mark Field (mail):

The argument made at the start was that the federal government was one of limited, enumerated powers, unlike the states, and that you didn't need to explicitly forbid the federal government from doing what it was never given the power to do in the first place. That's an argument Madison lost, which is why the Bill of Rights had to be added.


That particular argument was actually James Wilson's. His speech on October 6, 1787, made the argument in public for the first time (as far as I know). Hamilton repeated the argument and elaborated on it in Federalist 84. Madison agreed with it only in part, as he made clear in a couple of letters to Jefferson. Jefferson and others were instrumental in convincing Madison to change his mind.


Then why leave it out of the federal constitution? Is it not conspicuous by it's absence, when it's present in those four state constitutions you listed?


The BoR was intended orginally to apply only to the federal government, not the states. As Brett correctly said (despite my quibble with him about whose argument it was), the Federalists argued that no BoR was necessary because the new national government had no power over aspects of daily life in which issues like self-defense might arise. Thus, there would have been no need to mention it.

If the courts ever do hold that the 2d A applies to the states, they will have to address whether it includes a right of self-defense.
5.9.2007 12:44pm
Xrlq (mail) (www):
So we have another Roe v. Wade on our hands. Lovely.


Possibly, if the court adopts the Alice-in-Wonderland view of the Second Amendment. If it adopts a common-sense reading consistent with that of the overwhelming majority of the population, not so much, just as Roe itself would be an historical footnote if it had been decided the other way.

That said, even a no-rights ruling isn't going to mean the end of gun rights in this country, only the end of any hopes for having them validated by the federal courts. To the extent that the Supremes judicially nullify the Second Amendment, they will leave the question of gun control up to the political process, thereby making the question of who is President all that much more important.
5.9.2007 12:54pm
Spartacus (www):
Hoge: why do you think Ginsgurg sides with the 4 conservatives?

You forgot to mention Lions, Tigers and Hippopottomi.

You mean Hippopottomusses. Or Hippopottomussesses.
5.9.2007 3:42pm
dwlawson (www):

I would go with D. The people who are likely to be paying close attention to gun control issues like this are mostly fervently pro-gun-rights voters who are probably already safely in the Republican column.


I wonder how many people are in my position. I support issues on both sides of the aisle. No single party reflects my beliefs in toto.

When I was younger I chose to support liberals because I feel some sort of safety net is needed and despite its abuses, it does do some good.

Then I rebelled against choosing the lesser of two evils or in the case of last election "Dumb and Dumber" and began voting for outsiders as a protest vote. The problem with not voting is it gets chalked up as apathy. I wonder how many others that don't vote do so due to a lack of an inspiring candidate.

Now I am focused on an issue that affects me directly...RKBA. I'm letting the women, gays, and poor look after themselves this time.

Since I live in IL and the dems usually take it, my vote only really counts in the dem primary, so I'm planning to vote for Richardson.

In the national, I will vote for the candidate with the best stance on 2A. If none, I'll find some outsider and cast my usual protest vote.
5.9.2007 6:08pm