District Attorneys, the ABA, and precedent in DC v. Heller

In the Supreme Court's Second Amendment, the American Bar Association filed an amicus brief in support of the DC handgun and self-defense ban. The brief argued that respect for stare decicis should compel the present Court not to recognize the Second Amendment as an individual right.

A related brief was filed by the District Attorney of San Francisco, joined by 17 other District Attorneys (including 5 from New York, and 4 from California). The brief makes its own argument about stare decisis, and warns that affirming the D.C. Circuit's recognition of an individual right would lead to vast challenges to federal and state laws against gun possession by convicted criminals, as well laws providing sentence enhancements for use of a firearm in a crime.

These arguments are addressed in pro-Heller amicus brief of the Maricopa County District Attorney, which is joined by 12 other District Attorneys (including Hamilton County, Ohio, and Carroll County, Maryland).

Tony Tutins (mail):
Not to be pedantic, but I'd like to emphasize that Harlan's dissent in Poe v. Ullman was a dissent to the denial of cert, because those unfamiliar might think his dissent was the losing side of a case that was actually heard by the Supreme Court.
2.13.2008 1:50am
Tony Tutins (mail):
Man, I should reread the cases. The Court dismissed the case for lack of standing; the merits were not reached.
2.13.2008 1:56am
Miller was a long time ago . . .
2.13.2008 3:20am
M. Stack (mail):
This amicus brief filed by the ABA is a joke. Their entire argument is based on the idea of stare decisis; but if the past was wrongly decided, or even decided at all*, then why not invalidate the precedent?

*I haven't started law school yet, but I am not familiar with the Supreme Court ever voicing whether the 2nd Amendment protects an individual right to bear arms. If it hasn't either way, then how can the ABA brief be considered to be convincing?
2.13.2008 5:34am
BruceM (mail) (www):
I'm not happy about having paid my ABA dues right now.

"Criminal defendants will challenge other laws if the court rules in favor of the other party" has always been the most annoying, disingenuous, worthless, lazy excuse for ruling a specific way. I suppose it's just a more specific version of the "it will open the floodgates of litigation" argument which I've always found to be meritless. It's not even so much that criminal defendants will be successful in new legal challenges stemming from a specific holding; but rather, the holding will merely give some credence to some arguments criminal defendants might make. Other than more work for prosecutors, why is that such a bad thing?

A penal statute being struck down on constitutional grounds is ALWAYS a good thing, as it shows our system of government is working well. The majority does not have the right to prohibit whatever behavior it wants to. Unfortunately, it seems as though there's a common understanding that all penal statutes must be upheld at all costs, lest society will crumble. Thus playing to this fear works, to a certain degree.
2.13.2008 5:40am
NaG (mail):
I understand the important policies behind stare decisis and, for the most part, agree with them on principle. However, I can also see why people like Justice Thomas roll their eyes at it. Fact is, there is not a lawyer out there who doesn't have at least a few cases they would like to see overturned. And I would wager that the vast majority of lawyers out there have applauded at least one instance where the Court reversed a major body of law -- Brown v. Bd. of Education comes to mind -- in the face of stare decisis.

In the end, I don't think stare decisis is a reason to uphold a body of precedent, as the ABA brief implies. Rather, it sets a minimal standard for what it takes to make the Court consider overturning precedent. In other words, I would see stare decisis as an argument best raised at the certiorari stage, not the merits stage. If the Court has agreed to hear the case, it has already put the prospect of reversal on the table. Telling the Court it should not have done that after it already has is a waste of time.
2.13.2008 8:09am
I quit the ABA after 3 years as soon as I realized what a liberal elite organization they had become. The entire "organized bar" is the same. Talk about no value for your money.
2.13.2008 8:20am
martinned (mail) (www):
[Thread hijack]


Having read some of the amicus briefs, all I can conclude is that the Constitution of the United States has clearly long outlived its usefulness. If sorting this out means having opaque arguments about the constitutions, laws and ratification conventions of the original states, the constitutional convention, the writings of the founding fathers, the English Bill of Rights, etc., all of which refer to a time that is radically different from ours, someone somewhere surely has to wonder what the point of it all is.
My own (anti-gun) position aside, Heller's position is clearly shared by a large majority of US citizens, and while I agree that that should not count for much in matters of constitutional interpretation, it might make someone wonder whether it mightn't be better to scratch the whole thing and start over.
2.13.2008 8:40am
martinned (mail) (www):
[/Thread hijack]
2.13.2008 8:40am
The ABA enrolled me for free without my permission after I was sworn into the bar. I had my membership cancelled as soon as I found out.

Michael Paulsen had an interesting post on stare decisis at Balkin a while back.
2.13.2008 8:58am
I have twice cancelled free ABA memberships (offered after each state bar I passed). This is just more evidence (as if I needed any) why I would never allow my name to be associated with this liberal lobbying group.
2.13.2008 9:01am
yankev (mail):

I quit the ABA after 3 years as soon as I realized what a liberal elite organization they had become. The entire "organized bar" is the same. Talk about no value for your money.
The ABA periodically laments its lack of younger members. They do not want to acknowledge that many younger lawyers are more conservative than us boomers, just as we were more liberal than the ABA leadership that preceded it.

The problem began in the early 1990s when the ABA leadership decreed that anyone who harbored reservations about unlimited right to abortion was unwelcome in the ABA. A large contingency of members resigned; another contingency tried to challenge the process that led to that decision. The ABA responded by changing its constitution so as to remove any chance for the rank and file members to voice a dissenting opinion on anything.

Gresham's Law was then unleashed. As less radical members quit and prospective members were turned off, the organization moved further and further to the left. The ABA journal publishes articles that mix a liberal results oriented analysis with a profound ignorance of constitutional principles. These articles sometimes provoke letters from members who object to the bias and ignorance, which in turn provokes reply letters from liberal members inviting the conservative letter writers to improve the ABA by resigning.

I get disgusted every time the ABA sends me its monthly newsletter telling me what causes they are lobbying for on my behalf. I sometimes write to my Senators and Representative reminding them that the ABA does not speak for its members on these issues.

Why am I still a member? My pension plan from when I was in sole practice, my Hertz discount, and the chance to do committee work with my colleagues.
2.13.2008 9:44am
RKV (mail):
"[R]ecognition of an individual right would lead to vast challenges to federal and state laws." And they say that like it's a bad thing. Brown vs. Board of Education also did something very like that. AND it was the right thing to do. Ditto Heller.
2.13.2008 9:45am
Sam Draper (mail):
It sounds like the ABA has lost quite a few potential members due to its liberal advocacy, mine included.

There might be a few states that would have trouble with strict scrutiny, but I doubt most of them would. Firearms laws are mostly aimed at criminal misuse and keeping guns out of the hands of those under some type of disability (minors, insane, convicts, etc.). It is only a few states outside of the mainstream that will have problems. I can not think of a single law in my state that would not survive strict scrutiny. Given that the courts have basically ignored the second amendment, the people themselves have been forced to protect the right to keep and bear arms - and they have done a pretty good job.

Stare decisis is at heart a very conservative concept. I think the liberal establishment's lionization of the concept is indicative of how reactionary and defensive they are. The labels we use to describe our politics are completely outdated.
2.13.2008 9:59am
RKV (mail):
"There might be a few states that would have trouble with strict scrutiny?" California, New York, Illinois, Hawaii, New Jersey, Massachusetts and Maryland would certainly have problems with strict scrutiny. ONLY about 30% of the US population lives in those states. Given the unconstitutionality of those states many gun laws I HOPE they have trouble.
2.13.2008 10:11am
H. Tuttle:
Well, I've been meaning to cancel my ABA membership for a long while, and this brief pushed me over the edge. Canceled this morning. If the ABA believes stare decicis is a good enough rationale for maintaining severe interference with an express and fundamental Constitutional right they can't be trusted with ANY Constitutional argument and I will have no part of my dues supporting them.
2.13.2008 11:29am
You guys and gals need to also turn in yor ACLU memberships cause they use the same faulty reasoning for not suppporting the 2nd amendment. Paraphrasing their position----Since it has already been infringed (if it is an individual right--snicker) there is nothing we can(or will) do about it". Never ever will I give them any respect or my money. But lawyers feel FREE in quitting. I quit the AMA 1 year out of residency for many of the same reasons.
2.13.2008 11:54am
Tony Tutins (mail):
The ACLU has simply made the same decision as the NRA, NARAL, or the NAACP. They have picked out a certain set of constitutional rights to fight for with their membership and their financial resources. Unlike the ABA, AMA, AAP, etc., the ACLU is not working to deny our Second Amendment rights. Nobody criticizes the NRA for not jumping in on Fourth Amendment issues, so nobody should slag the ACLU for ignoring the Second Amendment.
2.13.2008 12:44pm
BruceM (mail) (www):
The problem is that "liberal advocacy" unfortunately equates to siding with criminal defendants. I've been happy with the ABA for siding with criminal defendants in its past amicus briefs, and can't think of one case where they've sided with the prosecution (though I'm sure there is one). I'm tired of losing my rights and having the constitution raped and repealed due to misguided desire to be "tough on crime."

But the ABA should not have taken a stand on the 2nd amendment, or should have been consistant and argued in favor of our rights.

I mean, I don't understand what kind of rational human being can be against having an individual right to do anything. The answer is YES to the qustion "Should there be a right or an individual right to do ____?" regardless of what you fill in the blank with, so long as it doesn't directly harm other people or their property.

Yes, I believe people should be allowed to possess machineguns. The only time I want to hold back a bit is on nuclear, chemical, or biological weapons. I think that I'd be okay with a judicially created limitation on the second amendment for NCB weapons.
2.13.2008 12:51pm
MXE (mail):
"The decision below, in rejecting this long line of precedent, leaves in doubt the constitutionality of a vast federal and state statutory framework of gun control laws..."

Noooooo, must not harm the precious bureaucracy!

"...and could impede efforts by federal and state legislators to enact other public safety and crime-fighting legislation."

...and could impede efforts by tofu-eating ninnies to enact other feel-good legislation criminalizing household items.

"By upsetting the rules on which this regulatory system is predicated, without articulating any special justifications for such a change..."

...except the plain meaning of the Constitution of the United States of America...

"...the decision undercuts the principle of stare decisis and defeats long-settled expectations."

Waaaaaahhhhh! It's not fair! We buried this dirty little amendment years ago! You're cheating! I'm calling mom!
2.13.2008 12:52pm
MXE (mail):
Tony: It's true that the ACLU hasn't been active in opposing 2A rights, but they have officially expressed favor for the "collective rights" view, which leaves a bitter taste for those of us who support the whole Bill of Rights.
2.13.2008 12:54pm
Bruce Hayden (mail) (www):
I got a cheap ABA membership right after LS, some 20 years ago. But then they jacked the price at, I believe, 3 years, and I bailed. Then, every five years or so, I get a call offering free membership for a couple of months. So, a couple of months ago, I said fine, I will take your rag for a couple of months free. And, if anything, the quality has dropped even more. Besides, I innately distrust any organization that has a president who wears a bow tie, and has to speak to its members at least once a month about issues that I either don't care about, or oppose.
2.13.2008 12:55pm
Sam Draper (mail):
When the ACLU initially adopted its policy against the second amendment, they "affirmatively
support gun control legislation."
(see Link). A few years later someone remembered that they are not supposed to openly advocate liberal social policy, and they deleted that portion of the policy statent. Their current policy is here: Link. Their policy is not based on the fact that they are beling selective about what rights they protect; they justify their inaction on the grounds that the second amendment does not protect the right of the people to keep and bear arms.
2.13.2008 1:02pm
Kevin P. (mail):

Tony Tutins:
Unlike the ABA, AMA, AAP, etc., the ACLU is not working to deny our Second Amendment rights

Tony, while it is probably true that the ACLU does not work to actively undermine our Second Amendment rights, the official position of the ACLU is that there is no individual right to keep and bear arms. And certain chapters like the Southern California chapter of the ACLU have actually published newspaper ads to this effect.

I agree that the ACLU does not have to fight for gun rights, but is it too much to ask that they not give intellectual comfort to our enemies?

It is amazingly inconsistent that the ACLU will advocate for constitutional rights for suspected terrorists picked up in foreign countries but will speak against the constitutional rights of US citizens at home.

On the flip side, the ACLU of Texas has supported gun rights, so perhaps there is also local influence.
2.13.2008 1:22pm
juris_imprudent (mail):
Sigh, same old lies about Miller - it was about "maintaining the militia". That's a lot to hang on one part of one sentence.

If there was no individual right, then SCotUS would've found Miller's lack of standing fatal to his plea for relief. This was how the 9th disposed of Hickman v. Block. So Miller apparently DID have standing, and the question was to the extent of the right. The Court actually laid down the guidance for evaluating that, and it isn't what the gun control freaks would like.
2.13.2008 2:50pm
Thanks for the post. I hadn't heard that the ABA had filed a brief in this case, but having now read this post and the brief, I just sent a letter cancelling my ABA membership.

Too bad. I liked the magazine. But not at the cost of my Second Amendment rights.
2.14.2008 3:13pm
gattsuru (mail) (www):
Unlike the ABA, AMA, AAP, etc., the ACLU is not working to deny our Second Amendment rights.

The official ACLU site states that "There is no constitutional impediment to the regulation of firearms" as an official policy. While I'm unaware of any federal ACLU movements against the RtKBA beyond stating a policy viewpoint, I seem to remember local groups, especially within Massachusetts and other groups

Nobody criticizes the NRA for not jumping in on Fourth Amendment issues, so nobody should slag the ACLU for ignoring the Second Amendment.

Well, that's the funny thing. Last I checked, neither the NRA's official statement of purpose nor its internal policies did not include any protections of general rights. They don't claim to be interested in anything but the promotion of marksmanship.
Interestingly enough, the ACLU has previously described their purpose (PDF warning) as "The American Civil Liberties Union is our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country."

I think there would be slightly different measurement in place between a group which only says it's working on the second amendment and never touches the fourth, and another group that claims to defend and preserve all enumerated rights for everyone yet manages to miss a rather important right regularly.

Oddly enough, local NRA groups have jumped on Fourth Amendment (mostly illegitimate searches), First Amendment (mostly freedom of speech, but some freedom of association), and other Bill of Rights violations when in relation to firearms.

The ACLU has not only refused to even recognize the rights protected by the second amendment, it will even ignore violations of rights it usually likes when a pro-gun group is involved. Look at their inaction in regard to the J&G Gun Sales catalog case.
2.14.2008 5:30pm