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Second Amendment Case Heads to Supremes:

Earlier today, District of Columbia officials announced that they would file a petition for certiorari in the U.S. Supreme Court seeking review of the U.S. Court of Appeals for the D.C. Circuit's decision in Parker v. Districut of Columbia, in which the D.C. Circuit concluded that the Second Amendment protects an individual right to bear arms and struck down the District of Columbia's handgun ban for infringing upon this right. Lyle Denniston has details on SCOTUSBlog here.

uh clem (mail):
This is a very interesting development.

I don't see how the SCOTUS can deny cert, since there's a split in the circuits. So there's no dodging the question.

My view is that if the eventual decision resolves the individual right view in the affirmative, not much will really change viz a viz existing law - compelling interest and all that.

And if it's resolved in the negative, look out for the multiple head explosions!
7.16.2007 1:18pm
Brett Bellmore:

And if it's resolved in the negative, look out for the multiple head explosions!


As a result of hydrostatic shock, in some cases; That's one ruling that would piss off so many people it could easily bring back assasination as a factor in American politics.
7.16.2007 1:23pm
Brooks Lyman (mail):
While I would certainly welcome a SC decision supporting what I believe to be the correct interpretation (based on my common-sense reading of the Amendment, not on any particular legal or textual analysis) of the Second Amendment - that it is an individual right - I must confess some trepidation. While current Constitutional scholarship supports the individual right view, apparently few decisions in any court since Miller in 1939 do so, and the possibility of the SC to go on precedent rather than original intent is a somewhat scary thought.

Well, better the Devil you know than one you don't....

And there is always the possibility that the SC majority has been itching to get its teeth into a Second Amendment case and get us back to Original Intent and perhaps incorporate it into the 14th Amendment. One can hope.
7.16.2007 1:25pm
Gregory D. Morris (mail) (www):
Assuming they uphold the DC ruling, then it may actually foster an environment for stricter gun control in some instances. The reason I say this is that I seriously doubt the Supreme Court will write an opinion on this case that is anything but extremely narrow. They will probably uphold overturning the DC gun ban, but allow nearly as strict regulations.

What that would mean is anytime a pro-gun politician uses the "slippery slope" argument, they can be countered with this ruling as proof that guns cannot be banned outright.
7.16.2007 1:28pm
Brett Bellmore:
The chief problem here is that the Supreme court has been ducking this issue for about 7 decades now, meaning a huge accumulation of laws violating the 2nd amendment... And some of the Justices you might expect, all things being equal, to be interested in upholding the amendment, are rather obsessive about precident.

In particular, Scalia's remarks in "A Matter of Interpretation" about nobody shedding a tear when the 2nd amendment is finally struck down concern me: Just how out of touch does a man have to be to write something like that, and is he still suffering from that delusion?

I think it's time to show the Supreme court what a FIVE million man march looks like, just so they don't get the idea that a ruling against the 2nd amendment will be meekly accepted.
7.16.2007 1:33pm
vinnie (mail):
Ok, this is why I am not a lawyer. The right of the people means the right of the people. Ok got it. "Shall not be infringed" means regulations are ok.

In my opinion Compelling Interest does not apply.
7.16.2007 1:36pm
Guest Poster:
I highly doubt Scalia would vote against the Personal right interpretation. He might not write the opinion, but would he vote against Thomas, Roberts et al?
7.16.2007 1:39pm
Gregory D. Morris (mail) (www):
Vinnie: the truth really doesn't matter when you get lawyers (no offense to anyone reading this) that pick things apart down the the last comma... you can interpret anything to mean anything if you use enough words. Original intent is important, but may be ignored. Will of the people is important, but will be ignored.
7.16.2007 1:41pm
Justin (mail):
One way to avoid a useful interpretation of the question is to invalidate the ban as overly broad, but not reach the question of "to what degree" the 14th Amendment incorporated the Second Amendment to the states. It's hair-splitting, but the Roberts court is very good at performing bizarre hairsplitting.
7.16.2007 1:48pm
vinnie (mail):
"Will of the people is important, but will be ignored."

Hence the founders knew this and we have the second amendment.
7.16.2007 1:50pm
A Northwestern Law Student (mail):
Prof. Adler, a bit of a confusing title for this post. "Heads to Supremes" means "Supremes have agreed to hear it"? Oh wait, no; then it must "Cert petition has been filed with the Supremes"? No again -- it turns out to mean just that "One party has said they will file a cert petition with the Supremes."
7.16.2007 1:51pm
DiverDan (mail):
Since this is a case regarding the District of Columbia, and not a State, isn't it true that the Supreme Court cannot, and hence will not, use this case to analyze whether or not the 2nd Amendment is "incorporated" against the States through the 14th Amendment Due Process Clause? That, it seems to me, is the one issue NOT properly presented by this case. Hence, even an affirmance of the D.C. Circuit's ruling that the 2nd Amendment createsan individual right leaves the door open for States to attempt regulation, under the theory that the 2d Amendment was NOT incorporated by the 14th Amendment, and thus not binding on the States.
7.16.2007 1:57pm
Gregory D. Morris (mail) (www):
DiverDan: Good point... but what is an "individual right" if it is left up to the states? I think the argument would be made that an individual right that applies to nobody isn't worth the parchment our founding fathers put their quills to.
7.16.2007 2:00pm
Dan Schmutter:
Well, for one thing, if the Court does grant cert., there is no chance that they will address the 14th Amendment incorporation issue since it is not a State law in question, it is a D.C. law.

Dan
7.16.2007 2:07pm
Houston Lawyer:
It will be interesting to see whether the Supreme Court writes the Second Amendment out of the same Constitutionin which the right to commit sodomy and abortion are so clearly set forth.

If nothing else, such a ruling would make clear even to laymen that the Supremes are just making it up as they go along.
7.16.2007 2:10pm
Sebastian (mail) (www):
It's good news, but let the nail biting begin. I think it's quite likely the Supreme Court will uphold the DC circuits ruling, but it's not a sure thing. Part of me almost hopes they won't take it, but I think they will. We're playing Russian roulette with the 2nd amendment, but I have to admit, I like the case, and I like the odds.
7.16.2007 2:14pm
Kazinski:
The political aspect of this case is pretty interesting, will the conservative majority throw the case, (while still dissenting), thus guaranteeing an enormous backlash to carry Thompson (Fred not Tommy) into the White House in 2008 with considerable majorities in both houses?

The Supremes explicitly striking down an individual right to bear arms would be a nightmare for the Democrats in 2008 leading up to the election. I question the timing.
7.16.2007 2:14pm
DiverDan (mail):
Gregory Morris: I fully agree that an "individual right" that applies to nobody isn't worth the parchment it's written on. However, that really wouldn't apply here, as, even if the Second Amendment were NOT incorporated by the 14th Amendment (though if it is an individual right, it's hard to see why it wouldn't fall within the purview of the "privileges and immunities of the citizens of the United States" which States are prohibited from infringing upon), it would still preclude Congress from certain actions with respect to gun regulation.
7.16.2007 2:21pm
Dave Hardy (mail) (www):
Since this is a case regarding the District of Columbia, and not a State, isn't it true that the Supreme Court cannot, and hence will not, use this case to analyze whether or not the 2nd Amendment is "incorporated" against the States through the 14th Amendment Due Process Clause?

Yup, it couldn't decide incorporation. Altho there might be a basis for some dicta. That's Akhil Amar's argument that the 14th broadened and made more individualist the right to arms (changing it from a sorta-government let's have the state militia as a counterbalance to federal power into we see it as an individual to shoot the intruder at the door, even if the intruder happens to be ... well, a member of the state militia). His point is that the privileges and immunities clause specifically says states may not infringe, because that was necessary to say. To say the federal government may not infringe the privileges or immunities of federal citizenship would have been to state a truism.
7.16.2007 2:27pm
Gregory D. Morris (mail) (www):
DiverDan: It seems to me a Right is a Right, regardless of what a state legislature thinks. The Second Amendment doesn't say "Congress shall make no law..."
I'm just saying, I really don't see how they could interpret it this way... although I've been surprised by wacky rulings before.
7.16.2007 2:28pm
Gino:
If I had the time and inclination, I would write an article explaining why I think incorporation is a moot point. Here's the short version: The benefit of a well regulated militia, i.e., the security of a free State, inures to the federal government. The federal government simply cannot allow the states to regulate away the security of a free State, whether before or after the 14th Amendment. Even if you define "free State" to mean the several states, which I do not, how can you let the several states dissolve our national security by effectively regulating away the militia with strict gun control?
7.16.2007 2:30pm
George Lyon (mail):
The Parker case does not present the issue of incorporation. That is best handled after and if the Supremes affirms Parker. At that point the most logical question would be whether the right is incorporated into the 14th amendment as against the states. If one looks at the debates on the 14th amendment it is hard to conclude otherwise than that the 14th amendment was intended to incorporate the second amendment's protections. See, e.g., Van Alstyne, The Second Amendment and the Personal Right to Arms, nn. 47-55 and accompanying text, online copy available at http://www.guncite.com/journals/vanalful.html.
7.16.2007 2:34pm
Carolina:
As with so many issues now, the million dollar question is "What does Justice Kennedy think?"
7.16.2007 2:40pm
Henry679 (mail):
I agree--incorporation is an issue for another day. First, let's get the concept of an individual right (re)established. The we can hash out what restrictions can be imposed and the incorporation issue.

A negative ruling (i.e. adopting the "collective" view") has no practical effect on current state laws since the collective view has been effectively presumed for decades. And Florida and Texas, for example, are not going to suddenly turn into gun grabbing states. Many states have their own clearer state constitutional provisions to inhibit any such thing anyway.

The political fallout, however, would be enormous, especially on 5-4 decision (which is the only way I can see such a loss occurring, and I think even that is unlikely).

A "win", on the other hand, establishes a right (or, more accurately, reestablishes a lost right), which I think is terrible important intellectually. Ideas matter--finding that "separate but equal" is NOT equal had a tremendous impact beyond Brown and its direct progeny. While it might be a bit much to expect the same magnitude of change here, it IS a change, and one in the right direction. A journey of 1,000 steps, etc.

Given the current Presidential polling (including in the GOP alone), it is not likely we are going to get a much better Supreme Court than this one on this issue. Let's roll.
7.16.2007 2:54pm
conlibr (mail):
even if scotus incorporates second amendment via 14th, important question is, what kind of scrutiny will be applied by state courts?
I think scrutiny will be strict in theory for keep and bear part of the amendment and rational basis for well regulated militia part. victory will be symbolic because state will still be regulate arms under police power!
7.16.2007 2:57pm
JosephSlater (mail):
I wonder what gun control advocates think about D.C. filing the cert petition?
7.16.2007 3:24pm
Neo:
I wonder how many shades of Soloman can be generated to allow an individual right for abortion, where it doesn't exactly say that, while removing and individual right where the 2nd Amendment makes it a hell of alot more obvious.
7.16.2007 3:35pm
Carolina:
Here is a link to the Brady Campaign's press release:

http://www.bradycampaign.org/media/release.php?release=910

It's full of weasel words, and doesn't even say anything like "We applaud the decision to file cert . . . ." Most of the verbiage is spent bashing the DC panel opinion.

Beyond what they say, I have no particular inside scoop on what they are thinking, but I would think they are concerned they may lose.
7.16.2007 3:37pm
vinnie (mail):
"Singer said she expects to receive legal assistance from several high-profile Constitution experts, as well as other cities. She said she will ask for a 30-day extension on the deadline to file her appeal with the Supreme Court, pushing that date to Sept. 5."

I think it is a ploy by Fenty to buy time to change D.C.s regulations just enough to be just short of a total ban.
7.16.2007 3:39pm
Alec:
The standard of review question is a good one (more for federal than for state). Remember that federal law prohibits felons from possessing guns or even ammunition manufactured in interstate commerce. Standard probation and parole conditions usually include a prohibition on firearms. Were I the District of Columbia, I would tout these facts in my brief.
Personally, I support the individual rights reading of the Second Amendment, and probably even incorporation (I would need to do actual research on that one). But the Court will certainly be hesitant once the spectre of the felon in possession laws is raised. They will need to craft a review standard that preserves those laws but invalidates the DC law. And remember, the mere fact that someone is convicted of a single crime will not justify prohibition for all felons. There are plenty of nonviolent federal offenders. Why should they be prevented from hunting for life?
As someone who is headed into criminal defense, I would absolutely love a pro-gun decision in this area. But you must remember that this will also provide the anti-gun side with plenty of ammunition: Bush's Supreme Court voted to give guns to convicted felons. Drug dealers, thieves and pedophiles now have the right to bear arms. So yes, enjoy it now (assuming they even grant cert). But the fallout will not be pretty. It would be something of a distortion, since the issue will not be addressed in this case, but
I'm no expert on the Court's calendar, but just when could we expect a decision in this case? Before the '08 elections I am sure both parties would hope.
Also, for very obvious reasons a very narrow decision is necessary. I mean, you cannot have private citizens running around with antiaircraft missles. We call those people "terrorists." So I am imagining a "reasonableness" standard of review.
Let the fireworks begin.
7.16.2007 3:43pm
Clayton E. Cramer (mail) (www):
Gino writes:

Here's the short version: The benefit of a well regulated militia, i.e., the security of a free State, inures to the federal government. The federal government simply cannot allow the states to regulate away the security of a free State, whether before or after the 14th Amendment.
Gino, you're more than a century too late. See Presser v. Illinois (1886):

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
7.16.2007 3:45pm
Clayton E. Cramer (mail) (www):
Houston Lawyer writes:

It will be interesting to see whether the Supreme Court writes the Second Amendment out of the same Constitutionin which the right to commit sodomy and abortion are so clearly set forth.
Completely agreed. If rights that are merely implied (and contrary to the evidence of original intent) can be found hiding in some invisible section of the Constitution, while a right that is explicitly in the text can be ignored, then the Supreme Court has no moral authority whatsoever, along with the rest of the government.

In some ideal universe, Justice Kennedy would write, "Look, I'm not thrilled with scrapping D.C.'s gun control, but it was extreme, and it is contrary to the Second Amendment. If D.C. government really wants to find some way to disarm young black men, it is going to have to be a bit more clever about it." But I don't have much confidence in Justice Kennedy's intellectual integrity.
7.16.2007 3:49pm
Alec:
By the way, critics of Roe and Lawrence need to be way more intellectually honest. You need to start attacking Brown, Griswold, etc. Because if you do not, you come across not as someone striving to be intellectually honest, but as a misogynist homophobe. Decisions crafted to help women and gays are not the only products of the right to privacy or decisions recognizing that "separate" is not "equal" based on social science.
7.16.2007 3:59pm
Carolina:
I am not quite so pessimistic as Mr. Cramer vis-a-vis Justice Kennedy. Justice Kennedy is not my favorite justice, but my complaint is that he often tries to avoid setting down bright line rules, and ends up in the mushy middle of three part tests and such.

But the Parker case really does represent the absolute, "black and white" case. If Parker is reversed, that is equivalent to holding the second amendment is meaningless. If affirmed, there will be years and years of litigation as to what the contours of the right are - and there, Justice Kennedy would be right where he wants to be, setting up conditionals and three part tests.

But in this case, he is backed up against a wall. Either write an amendment out of the constitution or not. I am cautiously hopeful.
7.16.2007 4:00pm
blcjr (mail):
Brett Bellmore: Maybe I'm wrong (IANAL), but how does concern for not being quick to overturn precedent apply here? The truth is that there isn't a lot of precedent to go on. As you said, it's been 70 years, and that precedent is pretty weak, so that takes us back even further. Where I think Justices get leery of overturning precedent is when that precedent has been cited in frequent subsequent cases by the Court. That isn't the case here.
7.16.2007 4:03pm
Dave in Alexandria (mail):
A positive decision won’t strike down any state laws, since there’s no incorporation of the Second Amendment. It probably won’t strike down the National Firearms Act, either, because one could make a plausible case that machine guns and sawed-off shotguns are destructive devices. But there are parts of the 1968 Gun Control Act, such as restrictions on importation of guns and gun parts, that might be vulnerable, particularly the so-called Saturday Night Special law and the “sporting use” requirement.

I read once that if the Second Amendment is recognized as an individual right, it might make it possible to pass a federal law requiring gun registration. The rationale would be that, since individual Americans cannot be disarmed without taking them to court one at a time, the main objection to gun registration, that it is only the first step to confiscation, is removed.

As for the Five Million Man March, I’m in!
7.16.2007 4:05pm
Alec:
Has there been a decision on incorporation? I could imagine an argument that the changes brought about by the 14th amendment apply to this area as well. Once you recognize it as an individual right I don't see how this limitation would not apply to states.
7.16.2007 4:12pm
JosephSlater (mail):
Carolina:

Thanks for the link.
7.16.2007 4:23pm
Dave Hardy (mail) (www):
On incorporation of the 2nd:

You have several 19th century decisions ruling out incorporation under the *privileges and immunities clause* -- just as the Court then ruled out incorporation of all but a very few rights under that clause.

The 20th century trend was to incorporate via the due process clause, and the Court's never reached that with regard to the 2nd Amendment (altho the Circuits have frequently cited the P&I refusal to incorporate as settling this issue).
7.16.2007 4:28pm
Steve2:
How much do you think the "well-regulated" phrase in the Amendment's text - which it seems to me often gets ignored in favor of arguments over collective v. individual right and who constitutes the militia - is going to matter?

Second question: anyone know if there's any sort of movement to get the 2nd (or any other, now that I think about it... I know I'd be up for a re-write on the 4th, to make it more protective, and the 8th, to overturn Coker v. Georgia) Amendment repealed in the same manner as the 18th was? Or have a guess as the likelihood that a strongly-pro-gun ruling from SCOTUS would kick one off?
7.16.2007 4:32pm
Carolina:
Steve2:

There is no repeal movement I know of, and I follow this issue pretty closely. Periodically. though, a pro-gun control academic or op-ed writer will admit the 2nd amendment is an individual right and advocate its repeal. But there is no "movement."

Here is one example of one of those articles:

Salon Article Advocating Repeal

The modus operandi of gun control organizations, up to the present, is simply to deny the 2nd amendment guarantees an individual right.

Should Parker go the way I hope (affirmed), it's possible a movement to repeal would start, but I don't see it getting anywhere. There is a wide spectrum of public opinion on guns, but the number of people who fall into the "ban them all" category is quite small, from polls I have seen. On top of that, the amendment process is quite cumbersome and I think there is a general reticence among people to "meddle" with the constitutional text, especially the original bill of rights.
7.16.2007 4:45pm
Gino:
"Gino, you're more than a century too late. See Presser v. Illinois (1886)"

(Sigh.) This only reinforces two things I've always suspected: 1) I was born a hundred years too late, and 2) I'm a genius.

Seriously, thanks for the link. I'll read it.
7.16.2007 4:59pm
Alec:
So 14th incorporation is simply unknown. Maybe, maybe not. I think that this court, probably by 5-4, would incorporate it. Or maybe not, if Justices Scalia and Thomas have some trouble seeing that working out.

Steve2: Regarding your second question. Whether or not there is a movement now, there will be strong calls for an amendment once the decision is issued. Depending on how the debate is framed, there might also be a lot of popular support for an amendment as well. Remember that opponents of the decision will be able to point to criminal law and the potential effects this will have in that area. And remember slippery slope "man on dog" conservative comments after Lawrence? I can only imagine what the anti-gun lobby can craft for their campaign.
7.16.2007 5:01pm
uh clem (mail):
As far as I'm aware, there is no movement to overturn the 2nd (yes, I'm sure that there's someone waving a sign on a street corner somewhere, I'm talking about a real constituency for repeal not a few scattered kooks).

Nor will there be as an immediate result of a pro-individual rights ruling. Now, if gun regulations are overturned en masse and if the lack of those laws cause a societal change you may see something. But my hunch is that day to day life wouldn't change for most people, hence no repeal movement.

The reason I say this is my experience with the concealed carry shall-issue rules that were passed here (Michigan) a few years ago. Despite the rosy predictions of an orderly, polite, armed, and nearly crime free society, that didn't happen. And despite the dystopian predictions of gunfights on the highways over road rage, that didn't happen either.

My guess is that an individual vs. collective 2nd amendment ruling won't mean much to anyone other than the idealogues with a dog in the fight. But it's about time the darn thing is resolved - I'm tired of people talking like the individual right interpretation is settled law when it isn't.
7.16.2007 5:02pm
Steve2:
Carolina, that's interesting. Thanks.
7.16.2007 5:05pm
Alec:
As someone else from Michigan, I can agree that massive support of an amendment is unlikely following the ruling, but there is reason to believe that the potential change in our criminal law landscape could make a difference. Remember that the scare tactics will not necessarily involve the right of simple possession. Debates over drug use seldom involve individual simple possession; debates over gay rights are similarly tainted by pedophilia accusations. The anti-gun lobby will not need the criminal law landscape to change; they can craft suggestive and credible ads about what impact a pro-individual right decision could have.
7.16.2007 5:08pm
Henry679 (mail):
Alec, do you mean we might hear the "T" ad nauseum?

Maybe the "T"s will do the gun grabbers a favor and buy some cheap Romanian AKs at a gun show, and mow down a mall at holiday time, or take a school hostage. Then the libs will start telling us we can't afford THIS provision of the Bill of Rights (while the conservatives have neatly disposed of all the rest of it).

Poor Bill of Rights--it has very view true friends in this world.
7.16.2007 5:26pm
Henry679 (mail):
Meant "T word"
7.16.2007 5:26pm
vinnie (mail):
"cheap Romanian AKs"
In America?
$50 cash in south Africa for a good select fire AK vs $300+ for a semi auto only in America? I don't think so.
7.16.2007 5:37pm
Clayton E. Cramer (mail) (www):

By the way, critics of Roe and Lawrence need to be way more intellectually honest. You need to start attacking Brown, Griswold, etc. Because if you do not, you come across not as someone striving to be intellectually honest, but as a misogynist homophobe. Decisions crafted to help women and gays are not the only products of the right to privacy or decisions recognizing that "separate" is not "equal" based on social science.
I've pointed out the problems with Griswold in the past. There might have been a way to reach Griswold's result if there had been some argument that a married couple had a right to privacy under the Ninth Amendment, based on the absence of laws prohibiting birth control when the Ninth Amendment was adopted. But that would not have provided the rationale for the later decisions striking down bans on contraceptives for unmarried couples, or the reasoning used in Roe, or in Lawrence.

My major objection to Brown is that the resources that were put into integration might have been more effective put into improving the deplorable condition of black schools in segregated districts--problems that are often still with us today, such as East St. Louis. There's no question in my mind that when the government discriminated based on race that it was making laws that violated equal rights. Black kids that had to walk past white schools were clearly not being given the same opportunity as members of other non-white races. (Blacks were not treated the same as members of other races or ethnic groups; there were not Asian universities or public schools in the South.)
7.16.2007 5:45pm
Alec:
Henry,
Just look at it from the anti-gun perspective: how do you get the public to understand (and take) your position? They could have rational debates, but we've seen that rational debates do not really work in this country (not for crime or terrorism, certainly). So let us pretend that I am a lobbying consultant hired by, I don't know, George Soros. I am looking to fire people up and elect Democrats. Pro-crime members of the Supreme Court, all Republican appointments? Yes, please. Part of that will involve Columbine and related incidents. But how about "Little Jenny X was taunted by a child molester. He threatened her with his rifle. Now, Bush's Supreme Court appointments have put the gun back in his hands." Save the children, ban the guns.

That being said, the NRA is very powerful and Democrats are hesitant to emphasize gun control. But I cannot imagine anything else that would reverse that quite like a pro-gun decision in this case. I think the individual rights position is absolutely correct, and I hate the ACLU's position on this matter (although I have been an otherwise loyal member for nearly ten years). Their position is available here: http://www.aclu.org/police/gen/14523res20020304.html


The other problem is that police officers will absolutely hate this decision, the officer in Parker notwithstanding. In California (where I currently live, and a state that is not a fan of either guns or crime) I can only imagine the reactions of law enforcement. Gang violence is a huge concern here in every metropolitan area. The arguments about criminal violence will resonate with Californians and probably any urbanite in the country. The Supreme Court will be forced to give us some guiding language or the circuits will erupt like wildfire when the Federal Defenders get their hands on a copy of the decision.
7.16.2007 5:49pm
Carolina:
Alec,

What leads you to think the Parker decision would go anywhere near the issue of felons and gown ownership? None of the plaintiffs are felons, so even if the Court was inclined to rule felons have a 2nd amendment right to own guns (which I can't imagine they would do), there's no way to make that ruling in the Parker case. It's not before the court.

The issue before the Court (assuming they grant cert) is: does the total ban on ownership in DC infringe the 2nd amendment rights of law-abiding adult citizens. That's it.
7.16.2007 6:04pm
Alec:
Clayton,

I sincerely doubt that would have been an argument for striking down those laws under the Ninth Amendment. I can just as easily make an argument for abortion under those circumstances (under common law and before 1821 there was no law prohibiting abortion before "quickening"). If you supported the result of Griswold using that (forced) reasoning it would have very little impact on Roe's central holding. And that argument is just absurd. We didn't have crystal methamphetamine when the constitution was enacted and I am fairly certain there is no constitutional argument against prohibiting its possession, use or distribution.

And no one can seriously contend that Brown was decided correctly based on either the history of the 14th amendment's enactment or the plain language of the amendment. Separate can of course be equal, and the Court's standards of review (strict, intermediate, rational, rational with bite, etc) are inventions. Same with Loving, for that matter. So either attack it all or live with precedent and the living constitution. This selective reading of the federal constitution reminds me of a Kennedy decision.
7.16.2007 6:07pm
Clayton E. Cramer (mail) (www):

The other problem is that police officers will absolutely hate this decision, the officer in Parker notwithstanding. In California (where I currently live, and a state that is not a fan of either guns or crime) I can only imagine the reactions of law enforcement. Gang violence is a huge concern here in every metropolitan area. The arguments about criminal violence will resonate with Californians and probably any urbanite in the country. The Supreme Court will be forced to give us some guiding language or the circuits will erupt like wildfire when the Federal Defenders get their hands on a copy of the decision.
It is entirely possible for the Second Amendment to protect an individual right without striking down all gun control laws. Convicted felons in possession? Convicted felons lose quite a number of rights. That knocks out about 45% of all murderers, and probably 90%+ of gang members.

Minors in possession? Until the Supreme Court went on a rampage of insisting that minors enjoyed many of the same rights as adults (In re Gault, and Tinker), there wasn't any problem understanding that there's a real difference. Laws prohibiting minors from carrying firearms would also survive recognizing the Second Amendment as an individual right--and that would knock out about 1/3 of murderers, and perhaps 25% of gang members.

The only area where there might be a legitimate question would be with respect to mental illness. There is essentially nothing with respect to original intent that enlightens the question, partly because severe mental illness rates in the Colonial and Revolutionary period appear to have been substantially lower than today (according to Torrey and Miller's The Invisible Plague, perhaps 1/9th of current rates), partly because of the highly informal nature of mental illness commitment laws until the 1830s, and partly because nearly everyone lived in a small town. In a village of 400 people, you know which people can't be trusted with a gun. In a big city, things change. But we could fix this problem too, if the ACLU hadn't aggressively tried (and almost succeeded) in abolishing involuntary mental illness commitment in the 1970s.

There's no question that mandatory gun registration would be Constitutional, as long as it cost the gun owner nothing and took almost no time. (Of course, convicted felons and mental patients would remain exempt from registration because of Haynes v. U.S..) Background checks to make sure you aren't in a prohibited category would also survive, as long as they cost the buyer and seller nothing (the power to tax is the power to destroy) and involve little or no paperwork.
7.16.2007 6:07pm
vinnie (mail):
Alec,
Most police on the streets support an armed citizenry. Most appointed chiefs don't. I don't have access to my figures right now but they are available.
7.16.2007 6:13pm
Alec:
Carolina,

As a practical matter they will have to provide guidance. So no, they do not have to decide that issue; but if their dicta does not provide any guidance I know there are at least eight attorneys in our office (if not more) who will take one look at that decision and file a motion to dismiss their 18 USC § 922 cases (possession of firearm by prohibited person). There are thousands of these cases being litigated in federal courts across the country. I imagine, as with Booker, they will provide some guidance. Possessing a firearm is also usually a prohibited condition of misdemeanor probation, so it is not only felons who have their possession rights limited.

So, no, they do not need to reach the issue. But do you honestly think they'll allow the courts to go into this litigation blind?
7.16.2007 6:16pm
Clayton E. Cramer (mail) (www):
Alec writes:

I sincerely doubt that would have been an argument for striking down those laws under the Ninth Amendment. I can just as easily make an argument for abortion under those circumstances (under common law and before 1821 there was no law prohibiting abortion before "quickening").
That would be a fine argument if you were arguing against early abortions, because you are correct, the state of American law only criminalized abortion relatively late in the process. But that's an argument based on retained rights--not on this amorphous privacy right.

The right of a married couple to do as they wish in private might also survive based on retained rights in an odd sort of way, because many of the legal codes specified that a man and a woman were legally one person (part of the basis of femme couverture).

If you supported the result of Griswold using that (forced) reasoning it would have very little impact on Roe's central holding. And that argument is just absurd. We didn't have crystal methamphetamine when the constitution was enacted and I am fairly certain there is no constitutional argument against prohibiting its possession, use or distribution.
Why do you think the federal government had to adopt the tax stamp scheme of the Harrison Narcotic Act upheld in Nigro v. U.S. (1928), and used for machine guns with the National Firearms Act upheld in U.S. v. Miller (1939)?

And no one can seriously contend that Brown was decided correctly based on either the history of the 14th amendment's enactment or the plain language of the amendment. Separate can of course be equal, and the Court's standards of review (strict, intermediate, rational, rational with bite, etc) are inventions. Same with Loving, for that matter. So either attack it all or live with precedent and the living constitution. This selective reading of the federal constitution reminds me of a Kennedy decision.
You are wrong on multiple levels. The 14th Amendment guaranteed equal protection of the laws, and it is clear from the stated purpose (and objections) to the 14th Amendment that the intent was to stop states from treating blacks differently from whites. Now, I suppose that you could make the case that complete equality might have been Constitutional. Had the states discriminated consistently based on race, creating a white school, a black school, an American Indian school, an Asian school, all with equal funding and support, and required members of each race to attend only that school, you could make a "separate but equal" claim. (And had they done so, blacks would have gotten much better educations. As late as 1948, blacks in much of the South received about 2/3 the hours of instruction per year of schooling as whites.) But they didn't. The discrimination was against blacks.

And yes, the different levels of scrutiny were an invention, as near as I can tell, because all the best lawyers at the time worked or the segregationists. (No surprise: lawyers follow the money.)

By the way, I agree that Loving was wrongly decided--although it is not in any way analogous to current laws defining marriage as "one man, one woman." Compare the penalty involved in Loving to the complete and utter lack of any penalty at all in the same-sex marriage cases. Also, the statute in Loving is an example of the dangerous liberalism of the 17th century; such laws are contrary to Christian practice for many centuries, and at even their height, laws banning interracial marriage existed in only a thin majority of the states (unlike laws against homosexual marriage).
7.16.2007 6:23pm
Carolina:


So, no, they do not need to reach the issue. But do you honestly think they'll allow the courts to go into this litigation blind?


No, I don't think they'll let the lower courts go "blind", I think they'll provide general language like "reasonable regulations of firearms ownership do not offend the 2nd amendment, but DC's outright ban does."

There are a myriad of specific cases that would need to worked out if an individual right is upheld: felons, misdemeanants, non-violent felons, 18-20 year olds, whether waiting periods are ok, whether one-gun-a-month limits are ok, whether assault weapon bans are ok, whether import bans are ok, whether trigger lock laws are ok, etc etc etc etc

There's no way the S Ct is going to hit all these issues in dicta, and my strong suspicion is they won't touch any of them. Lower courts and later supreme court cases will define the right.

I'm sure that following a Parker affirmance there will be lots of motions filed by criminal defense attorneys everywhere, and circuit courts will make judgments, and some of these will eventually get back to the Supremes. Years of litigation.

If they address felons at all in in a hypothetical Parker decision, I'd bet any amount of money you want it would be to say something like "reasonable regulations, such as prohibiting felons from owning firearms, do not offend the 2nd amendment." Maybe 10 years later we get a decision saying, for example, persons convicted of fraud-like crimes may not be debarred the use of firearms. But there's no way that's happening next year, not when the plaintiffs are straight arrow law abiding types and that issue is not remotely before the court.
7.16.2007 6:30pm
Clayton E. Cramer (mail) (www):
Alec writes:

Possessing a firearm is also usually a prohibited condition of misdemeanor probation, so it is not only felons who have their possession rights limited.
And persons who have been involuntarily committed (with appropriate due process) for mental illness or adjudicated incompetent to stand trial also lose their right to own a firearm. (That does no include persons locked up under emergency or observation commitments--although some states, such as California, use those to take away firearms rights for five years.) There's a lot of those out there, too.
7.16.2007 6:35pm
dwlawson (www):

I think it's time to show the Supreme court what a FIVE million man march looks like, just so they don't get the idea that a ruling against the 2nd amendment will be meekly accepted.


That is why I have proposed the idea of a Million Rifle March.
7.16.2007 6:46pm
Clayton E. Cramer (mail) (www):

There are a myriad of specific cases that would need to worked out if an individual right is upheld: felons, misdemeanants, non-violent felons, 18-20 year olds, whether waiting periods are ok, whether one-gun-a-month limits are ok, whether assault weapon bans are ok, whether import bans are ok, whether trigger lock laws are ok, etc etc etc etc
There's really several categories of questions:

1. What arms may a person "keep"?

2. What arms may a person "bear"?

3. What persons may be prohibited to keep arms?

4. What persons may be prohibited to bear arms?

5. What are the limits of bearing arms in a federal jurisidction? A federal courthouse will almost certainly be found to be a legitimate restricted area. BLM and National Forest lands probably not. What about national parks?

6. What about federal territorities? (This is a sticky one, because many of them are filled with non-white people, which is the reason that gun control remains so popular in liberal circles.)

7. Does the Fourteenth Amendment apply the Second Amendment to the states and local governments? Does the original intent of 1789 apply, or that of 1868?
7.16.2007 7:00pm
Clayton E. Cramer (mail) (www):
dwlawson writes:

That is why I have proposed the idea of a Million Rifle March.
Yup! It worked so well when the California legislature was debating a ban on open carry of firearms in 1967.
7.16.2007 7:02pm
Clayton E. Cramer (mail) (www):
Alec writes:

So either attack it all or live with precedent and the living constitution.
So if the Supreme Court decides that the Constitution is a living, breathing, constantly mutating creature, and refuses to continue to be bound by the dead hand of the past--and decides that national security needs of today mean that we can put security cameras in every Muslim home in America, you won't have a problem with that? I mean, you might disapprove of it as a matter of public policy, but you can "live with precedent and the living constitution." Do I have that right?
7.16.2007 7:07pm
Alec:
Actually, you should think that Loving was correctly decided (or could have been correctly decided) based on your rather nuanced reading of the 14th amendment. The statute at question in Loving did not mandate complete racial marriage separation. Only whites against nonwhites. Virginia argued that the statute survived because it prohibited all interracial marriages and hence applied equally. The Court doubted that was what the statute truly prohibited but held that it was a distinction without a difference. So your disagreement is with the Court's reasoning and not the inability of states to prohibit interracial marriage. But you agree that nothing in the 14th amendment textually prevents the state from criminalizing interracial marriage.

By the way, if you have a problem with the penalty, I suggest you consult the appropriate (dead) remedy: the 8th Amendment. See Bowers v. Hardwick , 478 U.S. 186, 197-98(1986) (Powell, J., concurring). That is distinct from any substantive "right" to engage in the conduct prohibited by the statute.

In any event, your embrace of equitable discrimination is at odds with the Court's reading of the 14th amendment (indeed, I do not know a single justice who would agree with it). But at least you've clarified that states can (in your view) discriminate based on race under some conditions.

And by the way, you dismiss the felon in possession argument too lightly. There are a host of other problems that emerge in the criminal law and, in any event, the issue will be litigated following a pro-individual rights decision. I've already spoken with defense counsel who have started crafting arguments. Will it be rejected? Undoubtedly. Can it work as a scare tactic? Yes.

Your discussion about registration is interesting. You are pulling this out of thin air as near as I can tell, because you have not offered a very clear explanation for why it would be OK only if it costs nothing. Are you assuming strict scrutiny applies? If so, there will be many arguments that can be made with respect to felons in possession, regardless of the nature of their crimes.
7.16.2007 7:10pm
dwlawson (www):

Clayton E. Cramer wrote:
That is why I have proposed the idea of a Million Rifle March.

Yup! It worked so well when the California legislature was debating a ban on open carry of firearms in 1967.


I can't tell if you are being sarcastic or not. Also, I was born (in CA) in 1965, so don't recall the event. Have a link?

Thanks
7.16.2007 7:15pm
vinnie (mail):
"So if the Supreme Court decides that the Constitution is a living, breathing, constantly mutating creature"
It is. See article V.
As for prohibited persons, they should be under direct supervision. Guns are one of the least dangerous things out there. If you can't be trusted with a gun you need a keeper, jail type or otherwise.
7.16.2007 7:15pm
Steve2:
DWLawson, 1967 is when the Black Panthers marched, bearing (legally registered) arms, to (and possibly into, I'm not certain) the California Legislature in opposition to a gun-control measure that was under consideration. The measure passed, and I've read more than one essay concluding it was the Black Panthers' opposition that swayed enough undecided legislators into supporting it.

Though as I understand it, they had more shotguns with them than rifles...
7.16.2007 7:23pm
Lapsed Historian (mail):
When I fell asleep under a tree a while ago I was under the impression that virtually all reputable scholars of the founding thought that the so-called "individual right" theory of the amendment was recently invented nonsense. Certainly, you would be denied tenure for arguing otherwise. There is some insinuation on this thread that this is no longer the case, and insofar as the readers of this blog do not (on the whole) tend to be garden variety whackos, there must be something recent to the contrary. If someone has a bibliography please share it.
7.16.2007 7:28pm
Alec:
Clayton:


So if the Supreme Court decides that the Constitution is a living, breathing, constantly mutating creature, and refuses to continue to be bound by the dead hand of the past--and decides that national security needs of today mean that we can put security cameras in every Muslim home in America, you won't have a problem with that? I mean, you might disapprove of it as a matter of public policy, but you can "live with precedent and the living constitution." Do I have that right?


Very misleading and selective quotation. You are selectively attacking component parts of privacy cases. You do not agree with the right to privacy, fine. But you are coming up with rather disingenuous methods of preserving privacy decisions that you like (or that are too popular to really oppose) and those that you dislike. When you are backed into a corner on your ideology and the problems with interracial marriage bans, you accuse "liberalism" of making that error and that had they just been more Christian (and just when did the Southern Baptists decide interracial marriage was OK? 1994?) we never would have had the bans to begin with.

You ripped my quote from its context both in my post and out of the concern I raised in my initial post. You are obviously religious and you object to homosexuality, abortion, etc. Fine. I was making a point that the privacy rationale behind decisions you and others criticize was developed in a different context and that the conservative attacks on those decisions have largely avoided addressing the propriety of Griswold's holding. You then said you were opposed to the concept in general. Fine. But not everyone who complains about gay rights and abortion decisions would be comfortable with a government telling them they could never used contraceptives. Similarly, people forget that Brown and Loving were both liberal "activist" decisions. I wish to remind budding members of the Federalist Society of this fact before they open their mouths and say something they'll regret, espousing an ideology they perhaps do not understand.

That being said, I am done discussing this. It is unrelated to Parker.
7.16.2007 7:29pm
dwlawson (www):
Well, nothing like a bunch of armed black men to frighten fence-sitting racists to take action.

I'm not sure how many Black Panthers showed up, but I doubt it would have been characterized as a "million."

I think such a march would need more along the lines of a few hundred thousand to be effective. It would also require participation from people from all walks of life, all races, all genders.

Before anyone mentions the Bonus Army, I doubt that the govt would call out the tanks again...not only that, I think we don't have alot of military hanging around domestically...they'd have to call in the blue helmet crowd.
7.16.2007 7:32pm
dwlawson (www):

When I fell asleep under a tree a while ago I was under the impression that virtually all reputable scholars of the founding thought that the so-called "individual right" theory of the amendment was recently invented nonsense. Certainly, you would be denied tenure for arguing otherwise. There is some insinuation on this thread that this is no longer the case, and insofar as the readers of this blog do not (on the whole) tend to be garden variety whackos, there must be something recent to the contrary. If someone has a bibliography please share it.


I don't need help recognizing the sarcasm in this post. Good one!
7.16.2007 7:36pm
William Newman (mail):
Lapsed Historian: I don't have a bibliography, sorry, but I do have an isolated observation. To the extent that the Organization of American Historians sounds like a group of reputable scholars to you, your recollection sounds very plausible to me:-| and you might be interested in the Bellesiles affair which transpired while you slept. See Volokh Conspirator James Lindgren's _Fall From Grace_, http://yalelawjournal.org/111/8/2195_james_lindgren.html. It is a remarkable story in many ways, and among other things might lead one to wonder whether the historians always retained their impartial and knowledgeable scholarly professionalism with respect to gun-related issues.
7.16.2007 7:56pm
Dilan Esper (mail) (www):
I hate to say this, but I completely agree with Clayton Cramer's interpretation of the Second Amendment in his 7/16/07 5:07 pm post (this is probably the first time I agreed with him on anything). (Just to be clear, I don't agree with Clayton's half-facetious percentages of gang members and the like. But the legal analysis of what the government can and can't do consistent with an individual rights interpretation of the Second Amendment is spot-on.)

I would add that a short waiting period (with a judicial bypass) is probably constitutional as well, because it relats to the legitimate interest in deterring crimes of passion.

With respect to mental illness, the best solution to the problem Clayton identifies is to require some sort of due process / adjudication before a person could lose the right to bear arms on this ground, with a similar process for reinstatement.

To contradict some predictions here, I predict the Court denies cert. They don't want to touch this with a 10 foot rifle barrel. But if they grant cert., they will affirm what was actually a pretty well-reasoned Court of Appeals opinion.
7.16.2007 9:13pm
PersonFromPorlock:
Incorporation may not matter for another reason. 18 USC 242 says:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States...

So once an individual RKBA is defined as secured by the Constitution, it arguably becomes enforceable on the States through 18 USC 242.
7.16.2007 9:46pm
Dilan Esper (mail) (www):
If Section 242 has the effect you claim, then Duncan v. Louisiana must have been wrongly decided and states need to adopt 12 person unanimous juries.

My bet is that Section 242 simply is a statutory prohibition against the deprivation of rights in the Constitution that are enforceable against the states. But if the particular right is only enforceable against the federal government, then the state isn't depriving it and isn't violating the statute.
7.16.2007 10:29pm
juris_imprudent (mail):
Remember that federal law prohibits felons from possessing guns or even ammunition manufactured in interstate commerce.

One of us is mis-remembering federal law. Felons cannot purchase firearms or ammunition, and dealers cannot sell to felons, but I don't believe there is a felon prohibition on possession (since that lacks a nexus with commerce - aside from the "it, or a component of it, once moved in interstate commerce" and Lopez took a dim view of that). What general prohibition there is, was added as part of the Lautenburg amendment (i.e. misdemeanor DV or under a family law RO) and I thought only applied to that particular condition. And remember, that SC precedent holds that a felon cannot be charged with failing to register a firearm he unlawfully possesses (since to do so would constitute self-incrimination).
7.16.2007 10:38pm
dwlawson (www):

I would add that a short waiting period (with a judicial bypass) is probably constitutional as well, because it relats to the legitimate interest in deterring crimes of passion.


So since I already have several firearms, what is the purpose for the 24 wait for long guns and 72 hour wait for hand guns that I'm subjected to in Illinois?

If I were in a fit of passion, would I choose to run to the gun shop for a new gun or simply use one already in my possession?
7.17.2007 12:12am
Ahcuah (mail):

I don't see how the SCOTUS can deny cert, since there's a split in the circuits. So there's no dodging the question.


Just because there is a split does not mean the SC has to take it. Back in the 1960s and 70s there was a huge split on the right of personal appearance (right to dress as you wish). The SC dodged that numerous times (with Justice Douglas dissenting in the denial of Olff v. East Side Union High School District).

In the end, they did finally take a case regarding whether a police officer had a liberty interest in the length of his hair, Kelley v. Johnson, 425 U.S. 238 (1976), but they still haven't decided whether the average citizen has such a right.
7.17.2007 2:02am
Carolina:
Juris_imprudent:

You are remembering wrong. 18 USC sec. 922(g) bans felons from possessing firearms, not just buying them.

I think you may be confusing felons with 18-20 year olds regarding pistols. 18-20 year olds are in the bizarre position (under Federal law) of being able to own a pistol but not able to buy one from a federally licensed dealer.
7.17.2007 2:14am
PersonFromPorlock:
Dilan Esper:

My bet is that Section 242 simply is a statutory prohibition against the deprivation of rights in the Constitution that are enforceable against the states.

But once "the right of the people to keep and bear arms" is defined as an individual right, secured by the Constitution, I'd argue that it does become enforceable against the states; there's no language in the Second Amendment that only Congress is prohibited from infringing on it.
7.17.2007 4:22am
K Parker (mail):
alec,
you have not offered a very clear explanation for why [registration] would be OK only if it costs nothing.
I take it you're OK with a requirement for a person to buy a government "journalism" license before they can blog or comment, right?
7.17.2007 4:42am
vinnie (mail):
I actually agreed with the judge (Silbeman?) when he explained why registration of certain arms useful for militia purposes might be allowed. The government has a right to know the size of the available militia.
I am a rabid "shall not be infringed" fan, but i can see this. I would not mind telling my government if I had a weapon of use to the militia ie. a current U.S. military caliber and configuration. What else I own is none of their business.
I should clarify that I would be willing if that "shall not be infringed" part is adhered to. My test for that is if I can order directly one of those select fire "Cheap Romanian AKs" and a russian military Makarov directly from the manufacturer overseas without asking my governments permission, counting parts, or alerting the BATFE.
7.17.2007 5:05am
RKV (mail):
I wonder if there is another path to incorporation outside the 14th Amendment (though its pretty clear from the Senate debates that the BOR was supposed to apply to the States)? It runs like this - IF a state can disarm the militia (which the 2nd tells us is "necessary for a free state") the a state can take away a power of the Congress (Article 1 Section 8). The Congress can hardly "calling [sic] forth the militia" if it has been disarmed.
7.17.2007 10:15am
Clayton E. Cramer (mail) (www):
Alec writes:

Very misleading and selective quotation. You are selectively attacking component parts of privacy cases. You do not agree with the right to privacy, fine. But you are coming up with rather disingenuous methods of preserving privacy decisions that you like (or that are too popular to really oppose) and those that you dislike.
No, I was suggesting that there might have been a valid basis to arguing for a right to privacy within marriage based on the historic status of marriage--but that this wouldn't have been a valid argument when more broadly applied.
When you are backed into a corner on your ideology and the problems with interracial marriage bans, you accuse "liberalism" of making that error and that had they just been more Christian (and just when did the Southern Baptists decide interracial marriage was OK? 1994?) we never would have had the bans to begin with.
I'm curious: did Southern Baptists ever take a position against interracial marriage? The Catholic Church, for example, was heavily involved in the lawsuit that caused California's Supreme Court to strike down its ban.

And yes, a big part of the rise of bans on interracial marriage in the late 19th century was the rise of Social Darwinism. The earlier waves of it in the 17th century were tied to a shortage of white females in the colonies, and a perceived "unfair" competition for them by black males.

You ripped my quote from its context both in my post and out of the concern I raised in my initial post. You are obviously religious and you object to homosexuality, abortion, etc. Fine.
You don't know what my objections are. If the state legislatures pass laws on these subjects, I might disagree, but that's quite different from judges finding rights hidden in obscure places that no one ever noticed them before.
I was making a point that the privacy rationale behind decisions you and others criticize was developed in a different context and that the conservative attacks on those decisions have largely avoided addressing the propriety of Griswold's holding.
I have objected to Griswold in the past. I find myself in the position of Justice Stewart, who called it "an uncommonly silly law," but that doesn't make it unconstitutional. Ditto with Justice Thomas's echo of Stewart in Lawrence. Not everything that this is silly is unconstitutional.

You then said you were opposed to the concept in general. Fine.
I'm opposed to the way in which the courts have manufactured rights because they did not like a law, but had no constitutional basis to overturn it.
But not everyone who complains about gay rights and abortion decisions would be comfortable with a government telling them they could never used contraceptives.
I am sure that there are a lot of people who don't realize how recently such laws were on the books. So what?
Similarly, people forget that Brown and Loving were both liberal "activist" decisions. I wish to remind budding members of the Federalist Society of this fact before they open their mouths and say something they'll regret, espousing an ideology they perhaps do not understand.
I understand the ideology. I am not a big fan of unlimited democracy, and there is a definite role that the judiciary is supposed to play in protecting Constitutional rights from majorities run wild. This doesn't mean that judges get to impose their preferences any and every time that they don't like the results of letting the unwashed masses vote. When the voters of Colorado, through the initiative process, amended the state constitution so that state and local governments were not to pass laws for a particular purpose, the worst that happened was that the government was prohibited from taking any action at all. To tell the voters that they lacked the competence to limit governmental power was the heights of Supreme Court arrogance.
7.17.2007 10:46am
Clayton E. Cramer (mail) (www):
dwlawson writes:

I can't tell if you are being sarcastic or not. Also, I was born (in CA) in 1965, so don't recall the event. Have a link?
Here's an article of mine from the March 1, 2006 Shotgun News that mentions it.
7.17.2007 10:50am
Clayton E. Cramer (mail) (www):
Alec writes:

Actually, you should think that Loving was correctly decided (or could have been correctly decided) based on your rather nuanced reading of the 14th amendment. The statute at question in Loving did not mandate complete racial marriage separation. Only whites against nonwhites. Virginia argued that the statute survived because it prohibited all interracial marriages and hence applied equally. The Court doubted that was what the statute truly prohibited but held that it was a distinction without a difference. So your disagreement is with the Court's reasoning and not the inability of states to prohibit interracial marriage. But you agree that nothing in the 14th amendment textually prevents the state from criminalizing interracial marriage.
I'm afraid that it was a stupid law, but that alone doesn't make it unconstitutional. There's no evidence that the 14th Amendment was intended to strike down interracial marriage laws. The good news is that they were on the decline before Loving, largely (although not exclusively) because they were falling out of favor. Sixteen states still had such laws when Loving was decided.


Your discussion about registration is interesting. You are pulling this out of thin air as near as I can tell, because you have not offered a very clear explanation for why it would be OK only if it costs nothing. Are you assuming strict scrutiny applies? If so, there will be many arguments that can be made with respect to felons in possession, regardless of the nature of their crimes.
Two bases for arguing that registration should be free:

1. There is no mandatory firearms registration in 1789--at least, none that I can find. There is mandatory registration of militia members, but not of their guns.

2. Would a $100,000 per gun registration fee "infringe" on the right to keep and bear arms (assuming that the right is individual)? Of course. I would agree that a one penny per gun registration fee is so trivial that it really doesn't. But it's like the woman who agrees to sleep with a guy for a million dollars, but gets offended when he offers her $50. "We've already determined what you are; we're just haggling over the price now."

3. Strict scrutiny does not preclude all regulatory measures. I've read that even under the strict scrutiny standard, about 1/3 of laws challenged actually survive. A ban on possession of firearms by those convicted of any violent felony or misdemeanor seems likely to survive strict scrutiny. A ban on possession by those convicted of crimes involving intoxicants might also survive (as long as it included alcohol and not just illegal drugs), because there is a very clear connection between public safety and intoxicated people having a gun.
7.17.2007 11:00am
Ian Argent (mail) (www):
Incidentallty (as I was reminded by a post on another blog), Canda has been an example that gun registration does not work - to the tune of some $2 Billion dollars. At least not for the job of catching violent fireamrs criminals. (It apparently works fine for prosecuting gun owners who were robbed while they were out of the country because the robbers had a shopping list obtained from the gun registry...)

My limit is license to carry off private property, no restriction on ownership, and property owners who don't want you carrying on their property cannot force you to disarm prior to entering their property, and are responsible for defending your and your personal property while on their property or while you are unarmed approaching or leaving their property. Vermont/Alaska style "regulation" is fine by me too :)
7.17.2007 12:01pm
Clayton E. Cramer (mail) (www):

Incidentallty (as I was reminded by a post on another blog), Canda has been an example that gun registration does not work - to the tune of some $2 Billion dollars.
That gun registration doesn't work doesn't make it unconstitutional. As I have pointed out elsewhere in this discussion, just because a law is stupid doesn't make it unconstitutional.

My experience is that most people, once you explain Haynes v. U.S. (1968) to them, lose interest in mandatory gun registration. A person who may not lawfully own a gun can't be prosecuted for failing to register it (Fifth Amendment protection against self-incrimination). The only persons who can be prosecuted for failing to register are those who can legally own a gun. In short, the law doesn't apply to the one group for whom it makes the most sense.
7.17.2007 12:07pm
Dilan Esper (mail) (www):
Clayton:

I don't think that's the only state interest supporting gun registration. Gun registration, also, theoretically, could help in solving crimes (if you can use it to determine whose gun fired a particular shot).

Of course, this is subject to all the objections that criminals wouldn't register anyway, as well as privacy objections, but a registry could result in some greater detection and prosecution of gun crimes by people who lawfully possessed a gun, but unlawfully used it.
7.17.2007 3:30pm
Ian Argent (mail) (www):
Clayton - I agree with you that it's probably constitutional; and in other circumstances there might be a compelling reason to maintain a firearms registry. But crime prevention and investigation is not one of those circumstances.

As I mentioned in that same section, I would support registration (essentially) of gun owners via a licensing process; I don't consider that unconstitutional, and have a sneaking suspicion that there ought to be some kind of assessment of suitability for carriage of firearms in public (knowledge of the 4 Rules, etc). I guess that takes me out of the "true-believers" category.
7.17.2007 3:47pm
Jay Myers:
Dave in Alexandria:

A positive decision won’t strike down any state laws, since there’s no incorporation of the Second Amendment. It probably won’t strike down the National Firearms Act, either, because one could make a plausible case that machine guns and sawed-off shotguns are destructive devices.

But... isn't the entire point of a militia to have destructive devices that can be used to defend the State? We don't equip the standing Army with Nerf bats so apparently destructive devices are needed for our defense. Remember, back when the Founders were still interpreting the Constitution private individuals could own artillery and warships.
7.17.2007 4:03pm
Clayton E. Cramer (mail) (www):
Dilan Esper writes:

I don't think that's the only state interest supporting gun registration. Gun registration, also, theoretically, could help in solving crimes (if you can use it to determine whose gun fired a particular shot).
Understood, but the actual data on this suggests that gun registration primarily solves gun control law violations. It's dated now, but Krug's 1968 study of gun registration found that in the ten years 1958-1967, where either mandatory or voluntary gun registration laws were in effect in 44 states, about a dozen violent crimes were solved by gun registration.

Krug reported that the relevant authorities found that in the period 1911 to 1967 that New York's Sullivan Law was in effect (which mandated more than registration, but actual licensing), they could not find a single violent crime solved with those records.

I've also read a report by an Australian criminologist who started studying gun control, and asking the same sort of questions of Australian police. Eventually, he stopped asking the question because no police official could think of any examples of gun registration solving violent crimes, and he got tired of them looking at him like he was an idiot for asking such a silly question.


Of course, this is subject to all the objections that criminals wouldn't register anyway, as well as privacy objections, but a registry could result in some greater detection and prosecution of gun crimes by people who lawfully possessed a gun, but unlawfully used it.
I recognize this as a theoretical possibility, and it is part of why I can't immediately dismiss gun registration as unconstitutional. Any rational analysis of the costs and benefits of gun registration would quickly lead you to conclude that it is a remarkably stupid idea. Why? Because:

1. Criminals don't usually leave a gun at the scene of a crime unless they are lying on the ground, waiting for paramedics.

2. Criminals usually don't register guns. (And I've read that when some convicted felons ignorantly registered assault weapons under California's law, the A-G just returned the registration form and fee. They knew they couldn't prosecute them.)

3. Criminals usually obtain guns by theft or by purchase from sketchy sorts who aren't likely to register guns, either.

But again: just because a law is stupid doesn't make it unconstitutional.
7.17.2007 6:24pm
Clayton E. Cramer (mail) (www):
Jay Myers writes:

But... isn't the entire point of a militia to have destructive devices that can be used to defend the State?
Yup. And the state supreme court decisions cited in U.S. v. Miller (1939)--and that gun control advocates cited into the early 1980s, before they decided to ban rifles as well as handguns--argued that only military weapons were protected. (These were often decisions upholding bans on Bowie knives, Arkansas toothpicks, and sometimes very concealable handguns. You can read far more than you want to know about this in my book Concealed Weapon Laws of the Early Republic: Dueling, Southern Violence, and Moral Reform (Praeger Press, 1999).

There is probably some appropriate originalist limit based on functional characteristics of arms in militia use in 1789, but the dividing line is likely to be based on lack of selectivity more than destructiveness. Remember that hand grenades were available for sale at the time of the Revolution; I have copies of ads offering them for sale to civilians in Philadelphia, and there is a contemporary Boston fire ordinance that prohibits bringing loaded hand grenades into buildings. My book Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007) gives more details.
7.17.2007 6:31pm
Tony Tutins (mail):
One thing that puzzled me on a recent trip to DC: If the District of Columbia is not a state, why does it have a National Guard? Walking from the Metro to RFK Stadium we passed a great whacking National Guard Armory. And, since DC has no governor, was Mayor Marion Barry once its commander-in-chief?
7.18.2007 3:27am
Andy Freeman (mail):
> If the District of Columbia is not a state, why does it have a National Guard?

The National Guard is basically a federal institution. The feds own the equipment and can take control at any time even if the units are given state names. (If the name was important, Corpus Cristi would have control of a nuclear submarine.)

The president can delegate command to anyone, and normally does to the governor where a unit is stationed, but if the president and governor disagree, the guard obeys the president. (One relevant case involves Reagan sending a NG unit to central america over the orders of a governor.)

Some states have noticed that this situation makes the NG less useful for certain things and have established their own organizations, which they get to pay for.
7.19.2007 1:24am
Maureen001 (mail):

Steve2:
How much do you think the "well-regulated" phrase in the Amendment's text - which it seems to me often gets ignored in favor of arguments over collective v. individual right and who constitutes the militia - is going to matter?


This point is intriguing to me.

Clayton E. Cramer:...
1. There is no mandatory firearms registration in 1789--at least, none that I can find. There is mandatory registration of militia members, but not of their guns...

Looks like the Founding Dads had no ambiguity over the Bill of Rights' Second Amendment being an individual right, remembering that rights are also "...endowed by their Creator" and "inalienable". Makes sense to me.

That makes interpretation of "well-regulated militia" an erroneous basis for gun control. I do not understand how there can be any support for gun control or weaponry regulation in the face of "shall not be infringed".

While I personally am uncomfortable with the idea of violent felons in possession of weapons that would aid them in continuing violence against others, or in mentally ill folks answering the call to arms of the voices in their heads, or of the covert group planning the violent overthrow of our legitimate government in pursuit of one of their own, and while I personally think that society would be better off requiring gun safety training prior to ownership, I cannot jive that with the specific language of the Second Amendment. And mostly, I am uncomfortable with some citizens of this country, even those of the Judiciary, agreeing to limit, modify, restrict, or interpret this written acknowledgement of "Right" to the rest of the citizenry.

And (here I go, out on that radical limb) as to the oft-cited restriction of the First Amendment, that one may not shout "Fire!" in a crowded theater as an example of a legitimate restriction of a right, I feel compelled to point out that it is also the right of someone else in that theater to shout out "There IS no fire, fool!" By the same token, it is equally the right of a law-abiding and sane citizen to defend against a violent felon/whacko/subversive and shoot back at them should they begin to use their weapon in such a manner as to threaten that selfsame "unalienable Right...[of] Life, Liberty," etc. etc. That would, of course require that everyone NOT be fettered by restrictions and qualifications to their Second Amendment Right.

Not complex at all.
7.19.2007 2:33pm