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State-level Battle of the Attorneys General in DC v. Heller

Thirty-one state Attorneys General filed an amicus brief in support of Heller. Part I.A. is a solid textual and historical argument for the Second Amendment as a meaningful individual right. Well-written, but I'm not sure it adds much to the treatment of these issues in Respondent's brief. Part I.B. adds some material on post-Miller cases in which the Supreme Court acknowledged the Second Amendment as similar to other Bill of Rights provisions (e.g., Konigsberg, Eisentrager).

Part II supports the D.C. Circuit's having found the handgun and self-defense bans to be facially unconstitutional, and takes on the Solicitor General's argument for intermediate scrutiny in Second Amendment cases. The Attorneys Genera argue for strict scrutiny. In Part III, the Attorneys General reassure the Court that none of the laws which the Solicitor General worried about (felon-in-possession ban, machine gun ban, undetectable firearms ban) would be endangered by strict scrutiny.

On page 23, note 6, the Attorneys General likewise signal that they are not worried that the Second Amendment would endanger appropriate gun controls in the states, for the Attorneys General announce that the Second Amendment should be incorporated.

The brief serves as counterpoint to a pro-Petitioner amicus brief filed by 18 big-city District Attorneys, which warned that affirming the D.C. Circuit's decision would unleash a dangerous set of challenges to gun controls.

Five state Attorneys General had filed a brief in support of D.C. That brief also argues against making the Second Amendment enforceable against the states (based on the argument that the Second Amendment is a federalism protection).

At Concurring Opinions, Michael O'Shea has created maps showing the 31 pro-Heller states, the 14 neutrals, and the 5 pro-DC states.

It may be that the incorporation issue explains why some state Attorneys General stayed neutral, rather than join the 31. It is also interesting that Illinois, which joined New York's amicus brief in favor of D.C.'s cert. petition, is neutral at the merits stage.

Oren:
On page 23, note 6, the Attorneys General likewise signal that they are not worried that the Second Amendment would endanger appropriate gun controls in the states, for the Attorneys General announce that the Second Amendment should be incorporated.
?
2.12.2008 2:55am
Oren:
Oh, I got it, nevermind the above . . .
2.12.2008 2:55am
RKV (mail):
"A court would likely conclude that machine guns and undetectable firearms do not constitute “Arms” under the Second Amendment. Even if these weapons could be described as bearing a reasonable relationship to the preservation or efficiency of a well regulated militia, they could not be accurately categorized as the kinds of weapons that are currently in “common use” by American citizens. See Pet. App. 49a. And even if these weapons were considered “Arms,” the federal laws would likely survive under the reasonableness standard because the regulations target a particularly dangerous feature of specific firearms and do not inhibit the core functionality of the general class of firearms."

Pish and nonsense. Balderdash. What the hell were these guys drinking? There is not a word in the Second Amendment about a dangerous feature exception. None. Common use? Certainly machine guns are in common use by our army and our police, so that argument is circular (and particularly so in light of FOPA 1986' Hughes Amendment).

Rather, look at Miller's test (and I realize that better scholars than I have gotten it wrong so I say this with some humility)...

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

ANYONE want to argue that the basic weapon of the US Army (which is a machine gun) doesn't have "some reasonable relationship to the preservation or efficiency of a well regulated militia?"
2.12.2008 9:00am
CWuestefeld (mail) (www):
I just skimmed 5-state brief. IANAL, but it seems incredibly disingenuous.

States and their courts...have proven fully capable of protecting the legitimate interests of firearms owners while leaving room for reasonable regulation


This is clearly not true -- it's the whole point of the case that DC has NOT protected the interests of owners. (Granted that DC is not a State, but they are addressing this particular case...)

Here in NJ, the Courts have entirely abdicated their responsibility to protect gun owners. Although NJ is nominally a concealed carry state, as a matter of policy the courts will not grant licenses except to the politically powerful. Although State statutes require that permits to purchase firearms be granted within 30 days, the Courts have gutted the law -- I know of NO example in which the response has been within a month, or even two months.

Most States have constitutional or statutory provisions pertaining to the right to bear arms.

That's true as far as it goes. But NJ, at least doesn't. It seems rather misleading, when the full statement ought to be "Most States have protections -- but WE don't".
2.12.2008 9:19am
CWuestefeld (mail) (www):
they could not be accurately categorized as the kinds of weapons that are currently in “common use” by American citizens

Circular reasoning alert. This statement could be re-written as "They should be illegal because they're effectively illegal already." The fact that they've already make it incredibly difficult to obtain these weapons can't be used as an argument for why they are not Consitutitionally protected.
2.12.2008 9:24am
Ben P (mail):

There is not a word in the Second Amendment about a dangerous feature exception. None. Common use? Certainly machine guns are in common use by our army and our police, so that argument is circular.


Is there a word in the first amendment about a "libel exception" or an "obscenity exception?"


To ignore the fact that firearm technology has changed significantly since the days of the founding fathers is to take a pretty big conceptual leap.

I'm firmly in the camp that believes that gun control legislation is ineffective at reducing the number of crimes, but allowing criminals free access to automatic firearms gives criminals near parity (if not superior) firepower to the police, and considerably better evidence shows us that when police are forced into a confrontation with heavily armed suspects, the results get much worse.


In any case, I suspect this is a non-issue, as I seriously doubt this court, even if it goes all the way and adopts a strict scrutiny perspective on the individual right to bear arms, would invalidate federal laws regarding automatic weapons.
2.12.2008 9:24am
David M. Nieporent (www):
I just skimmed 5-state brief. IANAL, but it seems incredibly disingenuous.

States and their courts...have proven fully capable of protecting the legitimate interests of firearms owners while leaving room for reasonable regulation

This is clearly not true -- it's the whole point of the case that DC has NOT protected the interests of owners. (Granted that DC is not a State, but they are addressing this particular case...)
What makes it even more disingenuous is that it has nothing to do with the question. A constitutional amendment's meaning does not turn on whether the states independently recognize the right in question.
2.12.2008 9:26am
Matt Pickut (mail):
Pardon my ignorance (which I know is asking one to pardon a great deal) but could some one enlighten me on the basics of what it means to have an amendment 'incorporated'?
2.12.2008 9:37am
Ben P (mail):

Pardon my ignorance (which I know is asking one to pardon a great deal) but could some one enlighten me on the basics of what it means to have an amendment 'incorporated'?


Basically it means this:

As the bill of rights was originally written it only applied to the federal government. When it said things like "Congress shall make no law especting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press..." Or "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"

It meant that the federal government could not pass such laws. Whether or not the states passed such laws was up to the individual states.


Then comes the civil war and the three constitutional amendments. (13th, 14th, 15th)In particular the 14th amendment reads

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


Originally this was interpreted very narrowly. But about the turn of the century that certain of the rights granted by the bill of rights (IE the first 10 amendments) are so fundamental to "due process of law" that if any state were to deprive someone of those rights, there would be no due process.

Consequently, through the 14th amendment, the individual states are also required to enforce some of the provisions of the bill of rights.


The various views on this are more complicated, some justices believed that every amendment should have been incorporated, others did not. The practical result is that they've been decided one by one and only a few remain unincorporated. The second amendment is one such provision.

It
2.12.2008 9:53am
Ben P (mail):
Mistake, the paragraph that begins "Originally" should have "About the turn of the century some Judges started finding that..."
2.12.2008 9:55am
Carl in Chicago (mail):
Kopel wrote:


"It is also interesting that Illinois, which joined New York's amicus brief in favor of D.C.'s cert. petition, is neutral at the merits stage."


Thanks for pointing this out. I am a little puzzled, too, as I fully expected Illinois to sign on with the minority states in support of Petitioner. I wonder if the fact that the City of Chicago, and that Cook County State's Attorney Dick Devine, filed on behalf of petitioner was deemed "sufficient" toward representing the government interest here. Without a doubt, as is testament to the passage of county 2A resolutions (http://www.pro2aresolution.com/), if you removed Chicago and perhaps Cook county, Illinois likely would have signed on with the majority in support of Respondent.

It is certainly clear the Illinois cannot abide the notion of 2A incorporation. Lisa Madigan, IL State Attorney General, signed on to the cert. stage brief, wherein the following is argued:

"As the court of appeals recognized, any decision in this case, concerning the validity of a law of the District of Columbia, would not necessarily determine the outcome of challenges to laws enacted by individual States. Nonetheless, the decision below has the potential to influence judicial interpretation of both the Second Amendment and state constitutional provisions. Consequently, the amici States have a strong interest in the review of the court of appeals’ decision, the rejection of its reasoning, and the reaffirmance by this Court of the States’ traditional authority to protect public safety through the exercise of the police power to restrict access to certain types of firearms." (emphases mine)

Clearly, the IL state Attorney General is very reluctant to relinquish the police power to restrict access by law-abiding citizens to whatever firearms the state legislature sees fit to prohibit. Per this reluctance, add to the AG the Mayor of Chicago, most of the Chicago City Council, Cook County Board President and most of the Board, Cook County State's Attorney, our current Governor, Senators Obama and Durbin, along with many Chicagoland US and State congressmembers. Our state guarantee (Section 22, enacted 1970) says as much: Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed. (emphasis mine)

Incorporation truly scares the hell out of Illinois, but more precisely, those that hold power in Cook county and Chicago.
2.12.2008 10:01am
An0n:
RKV,

Welcome to the real world. If the respondent and his amici take the position that it's unregulated machine guns or nothing, they'll get nothing. Their lawyers are smart enough to know that making that argument would destroy their credibility in the Court's eyes. I'd be very surprised if you could find a single justice willing to even consider striking down the National Firearms Act on Second Amendment grounds. (Nelson Lund clerked on the Court. So did Ted Cruz, much more recently. You think they don't have a good idea how far they can go without making the justices run screaming in terror?)

Sometime, just for fun, talk to some folks who aren't members of the so-called gun culture about your theory that the Second Amendment means you get to own a machine gun without any government oversight at all. They'll think you're crazy. I'm not talking about anti-gunners. I'm talking about moderately pro-gun folks: casual gun owners, and non-owners who aren't vicerally hostile to guns, i.e., a solid majority of the public.

Regardless of what the Framers might have thought about the NFA, it's here to stay. Get over it and move on.
2.12.2008 10:02am
An0n:
Er, "viscerally."
2.12.2008 10:03am
A.S.:
The most interesting are the neutral states. I would have expected California and Rhode Island and Connecticut and Illinois to join the pro-DC side - Democratic leaning states with Democrats as Attorney General (California's Attorney General is Jerry Brown!). One might expect Tennessee and NC to join the pro-Heller side, but they have Democrats as Attorney General, so there might be some political conflict.
2.12.2008 10:14am
Ben P (mail):

I would have expected California and Rhode Island and Connecticut and Illinois to join the pro-DC side - Democratic leaning states with Democrats as Attorney General (California's Attorney General is Jerry Brown!). One might expect Tennessee and NC to join the pro-Heller side, but they have Democrats as Attorney General, so there might be some political conflict.


I think it's necessary to point out that the assumption you're making isn't necessarily an accurate one.

I'll admit that in general most of those in favor of gun control nationally are democrats.

However, states like my home state, Arkansas, are filled with "Pro-Gun, Pro-Life Democrats." I don't know for sure, but I would suspect that Tennesee and North Carolina have significantly numbers of such a faction in their own democratic parties as well.
2.12.2008 10:20am
banduraj (mail):

Regardless of what the Framers might have thought about the NFA, it's here to stay. Get over it and move on.


I have little doubt about this myself. However, if the lower court is affirmed with no mention of machine guns or other such laws, then I would have to say the the Hughes amendment is in real jeopardy. And rightly so.
2.12.2008 10:20am
cjwynes (mail):
I'm not buying the argument in the prosecuting attorneys' brief where they quote cases that arose before the Incorporation Doctrine was established to claim that the 2nd amendment shouldn't be applied to the states. If you had to pick one clause in the Bill of Rights that, as written, "has no other effect than to restrict the powers of the national government", surely it would be the Establishment Clause. And yet the Establishment Clause, obviously a mere "federalism provision", has been incorporated and even given it's own ridiculously powerful standing exception to make enforcement easier. If we accept the incorporation of the Establishment Clause, I don't see how we can reject the incorporation of the 2nd amendment, assuming that an individual right of some sort is found to exist.
2.12.2008 10:33am
RKV (mail):
The NFA is (or at least was until the Hughes Amendment to FOPA) a tax law and as such is certainly within the powers of the Federal Gov. Otherwise, you are setting your sights way too low and too soon. Get real. There is no point to the Second Amendment, unless it makes government employees uncomfortable. They're not supposed to be. They're supposed to do what we tell them, and not the other way around.

Please note that the '"libel exception" or an "obscenity exception[s]"' occur after the fact. There's a huge difference there.
2.12.2008 10:35am
Sam Draper (mail):
You machinegun guys should have it figured out by now that the first reaction of every other gun owner when there is a bump in the road is to throw you guys under the bus. You spend enough time down there that you would think you guys would have gotten use to it by now. ;)

I like the American Civil Rights Union brief; it and some others straightforwardly argue that the court shoud not decide every theoretical case right now. Just decide this matter, and let the law develop in regards to other issues. I think that might give the machinegun guys a shot at getting rid of the '86 ban some day, given how registered machineguns are probably the type of firearm least likely to be used in a crime.
2.12.2008 11:07am
PersonFromPorlock:
Ben P:

...but allowing criminals free access to automatic firearms gives criminals near parity (if not superior) firepower to the police....

I believe that's the idea: to give a rebelling American People (criminals, by any state definition) the tools needed to remove a usurping state.

At any rate, the 'machine gun argument' is mostly nonsense; shotguns are more dangerous at close range, and scoped rifles from farther away.
2.12.2008 11:21am
Ben P (mail):

I believe that's the idea: to give a rebelling American People (criminals, by any state definition) the tools needed to remove a usurping state.


You're seriously arguing the state has no legitimate interest in preventing something like the North Hollywood Shootout?

(Note: I'm aware the guns used in that crime were already illegal, and fully agree that those that used the incident to argue for more stricter gun laws were misguided. That is an entirely seperate issue from whether or not laws already prohibiting automatic weapons should be repealed)
2.12.2008 11:27am
SeaDrive:
I think it's somewhat interesting that there has been little discussion, at least in the comments, about whether the right to bear arms implies the right to form a militia (e.g. http://www.michiganmilitia.com/) or about groups like the Branch Davidians who armed themselves to the teeth basically because they didn't want to obey the law.

In the abstract it sounds bold to say that a well-armed citizenry can defy a tyrannical government, but in the event it seems silly that the Federal Government should allow armed resistance to, say, child abuse laws.
2.12.2008 11:28am
Ben P (mail):
Apparently I can't type today, the above should simply read "stricter gun laws"
2.12.2008 11:29am
federal farmer (www):

(Note: I'm aware the guns used in that crime were already illegal, and fully agree that those that used the incident to argue for more stricter gun laws were misguided. That is an entirely seperate issue from whether or not laws already prohibiting automatic weapons should be repealed)


But full auto are not banned in most states. A select few people have seen their collections gain value inordinately since 1986.

I don't think arguing that militia requires the same arsenal as regular military or police. It might help though. However, militia strength is in its numbers. If not enough people muster for a cause, it isn't deemed a worthy cause and probably deserves to fail (see Shays Rebellion, Whiskey Rebellion).
2.12.2008 11:37am
Andy Freeman (mail):
> You're seriously arguing the state has no legitimate interest in preventing something like the North Hollywood Shootout?

While the state may have a legitimate interest in preventing such events, that interest doesn't justify measures which don't affect the incidence of such events.
2.12.2008 11:46am
Helen:
Politically, Connecticut is a very "blue" state, but more people are employed in firearms manufacturing here than in any other state. The only town in America with two major manufacturers is located in Connecticut. On firearms issues, we tread a fine line between the two camps.
2.12.2008 11:58am
Ben P (mail):


While the state may have a legitimate interest in preventing such events, that interest doesn't justify measures which don't affect the incidence of such events.


I was clearly arguing the severity and not the instance.

I think it's beyond question that an incident where the perpetrators who seek to have a "shootout" with the police and are armed with military type weapons is more often than not going to be a much more serious incident than one where perpetrators are armed with pistols or shotguns in the same situation.


Further, I think you can seperate assault style robberies and barricaded suspects and the like from crimes as a whole. The defining factor in such crimes is that the suspects are seeking, or at least recklessly ignoring the possibility of a violent confrontation with the police. Ignoring the fact that such behavior isn't entirely rational in itself, I think it's then a safe assumption such suspects would rationally choose the most powerful available weapons for the task.

Availability, of course, is almost purely a function of price. Suspects that are determined enough will always get their hands on something. So naturally, any law that increases the market price of a certain weapon should reduce the prevelance of the possession use of that weapon. I think this is perfectly borne out in the fact that there have been so few crimes committed with automatic weapons since the 1930's.


The applicable question is how steep is the slope between availability and use, and how concerned are we with price related restraints as a barrier on legitimate gun ownership.


To be clear I don't necessarily agree with the Hughe's amendments' ban of weapons manufactured after 1986 as that seems arbitrary and at least the evidence I've seen suggests that the act was working well enough after that. But I do agree with the basic methodology of using price contols as a less intrusive method of regulation than outright bans.
2.12.2008 12:20pm
Tony Tutins (mail):
gives criminals near parity (if not superior) firepower to the police

The police were free to shop at B&B Sales, just like anyone else. Unfortunately for everyone, it went bankrupt six years ago, almost to the day.
2.12.2008 12:24pm
Clayton E. Cramer (mail) (www):

While the state may have a legitimate interest in preventing such events, that interest doesn't justify measures which don't affect the incidence of such events.
Yup. The Hughes Amendment to FOPA made legal machine guns quite a bit more expensive, but it isn't clear that it reduced the availability of illegal machine guns to criminals. I've read that the submachine gun used to murder Denver talk show host Alan Berg was manufactured in a van converted into a rolling illegal gun manufacturing plant.

Keep in mind that even illegal machine guns are pretty rarely used by criminals. The North Hollywood shootout was pretty widely covered precisely because it was unusual.

Once we get a clear-cut statement that the Second Amendment protects an individual right, I would not be adverse to a federal gun license issued on similar terms to the machine gun license (background check, fingerprints, photographs, and effectively no discretion on the part of the federal government about issuance) that would allow you to purchase or carry any firearm in any state.

Part of why there has been so little criminal misuse of legal machine guns is that background check. If we could be confident that such a federal license wasn't going to be used as a method for gradually disarming law-abiding adults, I think that many gun owners would find that tolerable. The fee would have to be zero or so cheap that few gun owners would actually find it an obstacle--remember that it isn't for the benefit of gun owners that such a license exists--but for the benefit of the rest of the society.
2.12.2008 12:49pm
common sense (www):
PersonFromPorlock:

Shotguns are really only better than machine guns within 50 yards against smaller numbers of people, and then that's arguable. A scoped rifle is only better at greater than 600 meters, with a well trained marksman, and small numbers of people. The machinegun is better from 50-600 meters without doubt, and better against large groups of people. A M240 with full combat load is much more effective in a general sense than a shotgun or scoped single shot rifle.
2.12.2008 12:55pm
SeaDrive:

Availability, of course, is almost purely a function of price. Suspects that are determined enough will always get their hands on something. So naturally, any law that increases the market price of a certain weapon should reduce the prevelance of the possession use of that weapon. I think this is perfectly borne out in the fact that there have been so few crimes committed with automatic weapons since the 1930's.


I doubt it. Availability is much better now and the use in crime is still rare.

I think the real reason is that, aside from premeditated murder, a crime in which a gun is fired is a crime gone bad. A bank robber does not want or expect to fire his weapon, and a semi-automatic pistol is more than enough fire power in the confines of a bank. A one-handed weapon is more flexible than a two-handed one like an assault rifle. A REAL machine gun, like a M60 (http://en.wikipedia.org/wiki/M60_machine_gun), is out of the question.
2.12.2008 1:18pm
whit:
"Certainly machine guns are in common use by our army and our police"

laughably wrong. army yes. police - no.

i'm a police firearms instructor. trust me on this one. very very few officers get to see any sort of fully auto weapon (submachine gun or machine gun). to state that they are in "common use" is simply ridiculous. note that i'm not stating an opinion about the issue of the 2nd and machine guns, just your claim about them being in common use by police. they are not
2.12.2008 1:45pm
Annonymous Coward (mail):

I would not be adverse [sic should be averse?] to a federal gun license issued on similar terms to the machine gun license (background check, fingerprints, photographs, and effectively no discretion on the part of the federal government about issuance) that would allow you to purchase or carry any firearm in any state.


Notice the experience in Illinois where the Fire Arm Owners Identification (FOID) was put in place by consent. The argument was that licensing the owner once for arms and ammunition would suffice and lead to negligible or no future harassment. Worked briefly and eventually not at all. In fact the FOID confers no particular rights or privileges around metro Chicago despite the good character reference. Lots of issues (e.g. much like the DC reference in one of the amici briefs about telling a widow the right to have a registered gun died with the husband to whom the gun was registered) such as firearms becoming contraband when the FOID holder in the family died and a myriad of gotcha's including delays in renewal at increasing prices and all the rest.

The FOID has done nothing at all for Illinois gun owners, save perhaps provide an alternative state issued identification document with an expiration date and even that isn't necessarily recognized beyond the jurisdiction.
2.12.2008 1:56pm
Andrew Hyman (mail) (www):
To David Kopel:

If there were no Second Amendment in the Constitution, would you be arguing that the DC handgun ban had been properly authorized by Congress? Of course you wouldn't.

You would be arguing that such a deviation from nationwide tradition and from national policy requires EXPLICIT AUTHORIZATION from Congress. And, the Home Rule Act obviously does not provide EXPLICIT AUTHORIZATION.

Obviously, the Supreme Court should not even reached the constitutional issue, because the ban should be struck down as unauthorized by Congress.
2.12.2008 1:58pm
banduraj (mail):

to state that they are in "common use" is simply ridiculous. note that i'm not stating an opinion about the issue of the 2nd and machine guns, just your claim about them being in common use by police. they are not


There's those two words again "common use". I, so far, have failed to see anyone give a good definition of what "common use" means. Looking at Miller, my interpretation would be that of "common militia use". Also, you may be right that machine guns are not in "common use" for most police, however, in every city with a SWAT team that I know of they sure are.
2.12.2008 2:03pm
zippypinhead:
It's clear from this thread and several others on this blog that even legally-sophisticated observers who are favorable to respondent's position in Heller are concerned that the machinegun issue may skew the Court's decisionmaking. At bottom, affirming the D.C. Circuit's opinion by applying the Miller test with a strict scrutiny standard of review, WILL directly impact 18 U.S.C. §922(o) (a/k/a the "Hughes Amendment"). 922(o) and the D.C. handgun ban are too similar structurally and functionally for one to be overturned and the other upheld in a Miller/strict scrutiny world (take the D.C. ordinance prohibiting registration of handguns not already registered circa 1976; substitute "1986" and allow for permissive transfer of already-registered firearms, and poof -- you have 922(o)).

The amount of ink devoted to machineguns in the merits and amici briefs ensure that the issue won't be lost on the Court. And I'd be willing to wager that a majority of the Justices won't consciously want to hand down a precedent that will eventually compel the conclusion that civilian ownership of machineguns cannot be burdened. Not necessarily for any good Constitutional/theoretical reason, but because they won't be able to get over the visceral reaction that machineguns are just too "bad," or "scary," or whatever. I said this in other threads, and so far nobody's come up with a response that gives me any comfort that I'm being too pessimistic about this sort of result-oriented outcome. Or for that matter, a really good homerun answer to the inevitable question(s) at argument containing the word "machinegun."

So, assuming that the Court holds the Second Amendment confers an individual non-militia right, I suspect the Court will adopt one (or more) of a short menu of options:

1. The Miller "militia" test is disavowed as inapplicable to a non-militia right, or perhaps is explicitly overruled outright. Divorcing the Constitutional definition of "arms" from the Amendment's preamble could permit the Courts to draw a line between handguns and machineguns. Although whatever standard one would advance to permit this is, at present, altogether unclear and hasn't been adequately briefed. Thus suggesting that this approach guarantees a remand in Heller, and several years of additional litigation dealing with a series of imponderables about the nature of "arms" before any clear rules will be articulated as the undisputed law of the land.

2. The standard of review gets fuzzed up -- i.e., "strict scrutiny" is rejected or watered down, as the Solicitor General recommends. For example, an "undue burden" standard of review could preserve the registration/taxation scheme of the 1934 NFA, although 922(o) may still eventually get tossed overboard. Or not. Again, articulating a different standard of review than that articulated by the D.C. Circuit likely buys the litigants a remand, although with an intermediate level of review it's at least possible the Court might be able to hold on this record that the handgun ban and inoperable home firearm requirement cannot stand. Frankly, this would be the easiest result-oriented path for the Court to take, assuming it's possible to get a majority or even a plurality to agree on what a standard should be.

3. An even more minimalist opinion, essentially punting on the merits, either by (a) fixating on sideshows like standing or the applicability of the Amendment to the District, or by (b) articulating the bare Constitutional standard, finding the record does not adequately address something, and sending it back down for a basically complete do-over. The least satisfying outcome, but one that would be increasingly likely if the Court is badly fractured.

The odds of the Court adopting wholesale the D.C. Circuit's Parker reasoning? Slim to none, I'm afraid.
2.12.2008 2:13pm
Elliot Reed (mail):
Is the incorporation issue before the Court in this case at all? It shouldn't be, since D.C. is not a state. Congress has delegated its authority over the city to the city government, but actually exercises direct control over certain aspects of city governance, such as the school voucher program it imposed a few years ago.
2.12.2008 2:25pm
Ben P (mail):

I think the real reason is that, aside from premeditated murder, a crime in which a gun is fired is a crime gone bad. A bank robber does not want or expect to fire his weapon, and a semi-automatic pistol is more than enough fire power in the confines of a bank. A one-handed weapon is more flexible than a two-handed one like an assault rifle.


I'd disagree but only in the very limited sense I was describing above. I think there's a certain set of crimes where the pattern of behavior of the suspect shows that they fully expected to "shoot their way out of a situation. Wearing a facemask to a bank robbery says you expect to get away without being shot at. Spending hundreds or thousands of dollars on body armor and automatic weapons tells me you're expecting a high probability of a fight.

It's similar with suspects who have barricaded themselves somewhere. Waco is infamous for a lot of reasons, but I think it shows that suspects who are armed on par with the police and absolutely unwilling to be "talked out" present a significant bar to normal police tactics, as no normal police commissioner is going to willingly entertain the idea of an "acceptable casualty rate" in a single assault.
2.12.2008 2:35pm
banduraj (mail):

The odds of the Court adopting wholesale the D.C. Circuit's Parker reasoning? Slim to none, I'm afraid.


Why? The court specifically tailored the question at had to avoid other issues such as incorporation and/or machine guns. Tell me why the court would extend their rule out beyond that question especially considering the courts interest in a narrow ruling.
2.12.2008 2:50pm
Kazinski:
There is already an unfettered right to possess machine guns, at least in the ninth circuit.
2.12.2008 3:38pm
Tony Tutins (mail):

Is the incorporation issue before the Court in this case at all?

No. But the Court always wants to consider what would be the effects of ruling in a particular way.
2.12.2008 4:31pm
RKV (mail):
"machine guns are in common use by our army and our police." Here in the People's Republik they can and do legally own them, and I good citizen that I am, cannot. Every time the SWAT team comes out they bring them. That is quite common enough for most people to consider them "common," even if you say its otherwise.
2.12.2008 5:26pm
RKV (mail):
One more item, whit. See Article 1 Section 8 of the Constitution for the missions of the militia. Arms used to perform those missions are protected, at least under the Miller standard.
2.12.2008 5:27pm
Andy Freeman (mail):
> I was clearly arguing the severity and not the instance.

I wasn't arguing that instance, I was pointing out that severity isn't enough - you have to also have an effect.

Mass murder is a fairly serious crime. Yet the state's legitimate interest in stopping mass murder would not justify banning red pants, even if three mass murderers wore red pants and Congress wrote the relevant finding.
2.12.2008 7:28pm
Ben P (mail):
I think I check my RSS feeder too often.

This is basically what I was arguing summed up on short logical statements.

Assumption 1: there's a certain subset of crimes that inherently involve armed combat with the police to terminate the incident.

Assumption 2: Of those crimes, the ones where automatic weapons are used are substantially more likely to produce more serious consequences.

Assumption 3: Because of the nature of these crimes, the perpetrators will rationally choose the most effective available weapon for the job. (shooting it out with the police)

Assumption 4: The cost of a weapon is vital factor in it's availability. I'm sure if a criminal had enough money he could find an RPG, but that doesn't make sense.


With those assumptions, I argue that there would be a very clear inverse relationship between the cost of automatic weapons and their use in crimes. (probably curved as it will never reach zero, and never 100%)


The argument supporting the current state of the law was then that, even considering the small proportion of these crimes to the overall criminal rate, the harm prevented by reducing this percentage is a valid goal, and that given the reduced influence of cost as a direct limitation on the right to legitimately own as opposed to direct ban, the limitation on any potential second amendment right is justified.
2.12.2008 7:42pm