Summary of Heller Legal Positions:

For those who have not followed all of the detailed blow-by-blow of the Heller case, Nelson Lund has a useful summary of the various legal positions here.

Mike Hansberry (mail):
As always an excellect essay by Lund. But I do have one nit to pick.

What did the Supreme Court mean by "common use" ?

The meaning of Court's words "in common use at the time", is shown by the various militia acts/regulations they cited.

According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers

The above supports the "ordinary military equipment" reading. However there is an often overlooked cite in Miller that suggests a broader meaning to "ordinary militiary equipment" and points to weapons that individuals commonly used in their everyday lives that also would have a usefulness in common defense -though not what most regulars would carry.

From the VA militia legislation cited by the Miller Court:
"That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof."

The 1785 VA militia act allowed those militia west of the blue ridge to supply themselves with rifles to meet their duty to "keep" arms. Note that rifles were better suited for hunting than were smooth bore muskets, though muskets were the standard military equipment because they could be reloaded much more quickly than rifles. But as hunting was an important means of making a living in that area at that time (1785 was the era of the long hunters) the VA legistlature made an allowance.

In addition to shedding some light on the meaning of "in common use at the time", this provision also demonstrates that the VA legislature expected that individuals would "keep" arms for militia purposes as well as non-militia purposes.
3.15.2008 10:53am
Alan Gura:
Prof. Lund's summary of our position is not remotely accurate.
3.15.2008 11:22am
Redlands (mail):
Alan, what is your position?
3.15.2008 12:42pm
Mike Hansberry (mail):
Even Lund makes mistakes.

Professor Lund's statement below is flatly incorrect.

Apart from his interpretation of Miller, Heller assumes rather than establishes that the Second Amendment protects a right to keep firearms for private purposes such as self-defense.

The Heller brief demonstrated, with evidence other than their intepretation of US v. Miller, that a right to keep firearms for private purposes existed. See pages 9-14 and again pages 20-24, and perhaps other portions of the Heller brief which discuss private uses of arms in historical context not discussed in Miller.

I wrote an earlier comment thinking that perhaps Lund had meant that "within" the context of the Miller decision, the Heller brief did not bring forth evidence of a right to keep and bear arms for private purposes.

Certainly it can not be said that the Heller brief did not provide evidence of a right to keep and bear arms "apart from" the Heller brief's interpretation of the Miller decision.

Moreover, there is evidence(see my earlier post) within the Miller decision that private(non-militia purpose)uses of arms were expected/allowed.

Meriam-Webster defines "apart from" as other than : besides, except for
3.15.2008 12:50pm
Redlands (mail):
Forgot to ask, who will be arguing before the court?
3.15.2008 1:05pm
Has anyone taken a position or discussed the effect of the individual rights interpretation would have on felon-in-possession laws?
3.15.2008 1:53pm
andy (mail) (www):
Lund writes:

Another very significant grammatical feature of the Second Amendment is that the operative clause ("…the right of the people to keep and bear Arms, shall not be infringed") is a command. Because nothing in that command is grammatically qualified by the prefatory assertion, the operative clause has the same meaning that it would have had if the pre-amble had been omitted or even if the preamble
were demonstrably false.

Suppose that a college dean announces: "The teacher being ill, class is cancelled." Nothing about the dean's prefatory statement, including its truth or falsity, can qualify or
modify the operative command.

I wonder if Lund is hurting his case by thi sexample. If I showed up to a classroom and the sign said, "Professor X being sick, class is cancelled," and then someone said "Wait! Professor X is okay!",I don't know that I would assume that class had been cancelled nonetheless. And, if someone said that "I saw Professor X getting out of his car in the parking lot!", I definitely would not go home.

Of course, the 2nd amendment is a law, not a sign posted on a classroom door (and so the two need not be interpreted identically), but I think his example was a bad one.

Disclaimer: I have no strong opinions on 2nd amendment, but am just fascinated by its linguistic puzzles.
3.15.2008 2:08pm
gattsuru (mail) (www):
I haven't seen one, GV, and I'm not sure that even the strongest individual rights interpretation would mean a thing about felon-in-possession.

It's pretty clear that the states and federal government are quite capable of providing legal punishments which prevent individuals from executing their right to freedom of association and even speech under release conditions. Moreover, it'd be remarkably hard to demonstrate that the ban on felon firearm possession does not pass even strict scrutiny.

That's not to comment on the validity of the law, one way or the other, only the likely judicial reaction to a challenge.
3.15.2008 2:10pm
Mike Hansberry (mail):

Do you think that a student having read that sign and gone home could be counted as having cut that class?

In terms of the student's not being in class, it doesn't matter if Prof. is really sick, the dean has cancelled the class.

In terms of the non-infringement of the right to keep and bear arms, it doesn't matter whether or not a well-regulated militia really is necessary to the security of a free state -the right shall not be infringed.
3.15.2008 2:29pm
Dennis Nicholls (mail):
Felons may lose many of their constitutional rights, e.g. voting, freedom from searches. The court support this. Even the text of the Constitution says this. E.g. Amend. XIII says that slavery or involuntary servitude is perfectly acceptable as "a punishment for crime whereof the party shall have been duly convicted..."
3.15.2008 2:40pm
no name:
Redlands, obviously Alan Gura will be arguing the Heller case before the Supreme Court on Tuesday, and he has the skill to do it ably.

I'm not sure that I understand what Professor Lund claims that Gura and co-counsels have argued in their brief. However, I would suspect that Alan Gura knows what he argued in his own brief.

The road to this litigation has been fraught with with hurt feelings among people who are (or should be) on the same side.

Let us hope that those hurt feelings do not cause problems in getting the result that all of the "good guys" want: A statement from the Supreme Court that the 2nd Amendment refers to an individual right.

What Alan Gura needs and deserves now is not last-minute sniping from those who also want the Court to say that the RKBA is an individual right. The biggie right now is for the Court to say simply that the 2nd Amendment deals with an individual right.

The internal sniping and warfare is harmful and ugly, especially at this late date.
3.15.2008 2:50pm
andy (mail) (www):

I agree that, regardless of whether the prof was sick or not, a student could not be in trouble for cutting class. I'm just saying that one's assumptions about the prefactory clause could affect how one interprets the command.

How about:

"All of you being prepared for the exam, you are no longer required to read the Chapter summary."

What if one were grossly unprepared? Would he think it required to read the Chapter summary?

I imagine that a person would understand that he is no longer required to read the summary (whether prepared or not), but I think the prefactory clause might affect his understanding of the remarks.

Again, whether that has any effect on how to intepret the 2nd amendment, I am not prepared to say; I am just pointing out that Lund's example could have been better.
3.15.2008 2:52pm
gattsuru, assuming there is a personal right to own a firearm, I would readily concede that the government has some power to restrict that right. The only question is how much power does the government have. After all, no one would think for a moment that the government could ban anyone convicted of any felony from exercising their First Amendment rights. At the same time, perhaps you can justify some First Amendment restrictions when the restriction is actually related to the felony the person committed. For example, someone convicted of a computer crime might have their internet access severely limited.

But how could a state possibly justify banning any felon from owning any firearm, regardless of what felony the person committed. What interest does the state have in keeping Martha Stewart from owning a gun? Or how about Jeff Skilling? There's no relationship between their convictions and owning a gun.
3.15.2008 3:00pm
Dennis Nicholls, there is no constitutional right to vote. But even if there were, the question is the relationship between the right you are restricting and the fact that the individual has committed a crime. You can't simply restrict all rights of ex-felons. What justification would a state have in keeping an individual from exercising his or her constitutional right to own a firearm simply because he or she committed perjury or wire fraud? Could the state take away the individual's right to practice their religion as well?
3.15.2008 3:04pm

there is no constitutional right to vote.

Not true. See Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) ("And for reasons too self-evident to warrant amplification here, we have often reiterated that voting is of the most fundamental significance under our constitutional structure.")

In any case, I would argue that there is a much stronger argument for limiting gun ownership by convicted felons than for limiting voting by convicted felons.
3.15.2008 3:29pm
Mike Hansberry (mail):

You said:
I agree that, regardless of whether the prof was sick or not, a student could not be in trouble for cutting class. I'm just saying that one's assumptions about the prefactory clause could affect how one interprets the command.

I am guessing that you meant prefartory clauses in general (as in "a" prefatory clause) rather than "the" particular example Lund presented since you agree the student in Lund's example would not be liable.

In your own example, You are confusing whether it would be required and whether it would be wise to read the summary.

Teachers often assign more or less homework depending on how they see the class grasping a particular lesson. The fact that a professor waives previously scheduled homework since he thought the class was prepared, only releases the individual students from the obligation to do the assignement. It does not go to whether it would be wise for any particular student to read, or not read, the summary.

Hey Professor, you said I was ready for the exam, so I stopped studying, now I've failed and its all your fault !

Prof. -I said you didn't have to read the summary, I didn't say you must not. I didn't prevent you from studying, and its your own D*# fault for not being prepared -regardless of my incorrect evaluation of your preparedness.
3.15.2008 3:33pm
Dennis Nicholls (mail):
The expesssion "constitutional right to vote" is a tricky one. There is no abstract "right to vote" on specific issues for example. However, many amendments preclude the government from abridging specific persons from voting if a vote is being taken on a given subject matter. See for example Amendments XV, XIX, XXIV, and XXVI.
3.15.2008 3:37pm
Dennis Nicholls (mail):

You can't simply restrict all rights of ex-felons. What justification would a state have in keeping an individual from exercising his or her constitutional right to own a firearm simply because he or she committed perjury or wire fraud? Could the state take away the individual's right to practice their religion as well?

Well the execution of felons is constitutional. Once a felon is executed, they really can't exercise rights of speech, press, religion, or anything else.

The "white collar crime exemption" you infer has itself been held unconstitutional. See for example Skinner v. Oklahoma 316 US 535 (1942). Oklahoma routinely sterilized felons, but had an exemption for "white collar criminals". On an equal protection basis the Court struck down the law, although apparently holding the door open to fix the law by removing the "white collar" exemption (OK didn't do this).

Felons may also lose the right to practice their religion. For example, a Moslem terrorist serving a life term may be prohibited from making his mandatory pilgrimage to Mecca.
3.15.2008 3:51pm
Dennis, you're focusing on the power of the state to restrict rights while in prison. Obviously, a state has wider latitude to regulate someone's religion while he or she is in prison. Likewise, I don't think anyone doubts that a state can ban someone's right to possess a firearm while in prison. This is all obvious. But are you contending that a state can ban an ex-felon from practicing his religion once he is no longer a prisoner? Again, this isn't a question of reasonable regulation. This is an outright ban. (I.e., don't come back with an example whereby a condition of parole burdens someone's constitutional right to practice their religion. The gun ban is not merely a burden -- it is a ban.)

I'm not arguing for a "white collar exception." Instead, I think any gun restriction (assuming there is a personal right to own a firearm) must be related to the status of the individual. At the very least, I would think a state would need to prove a convicted felon is violent before banning his or her right to own a gun.
3.15.2008 4:30pm
Dennis Nicholls (mail):
I think part of the problem is that the term "ex-felon" is a non sequitur. Getting out of prison doesn't make a "felon" into an "ex-felon". Once a person has been convicted of a felony, they carry the mark "felon" to their grave. Felons cannot hold jobs with defense contractors, in the banking industry, or in law enforcement. Even becoming a lawyer is difficult with a felony rap on your resume. It is true that the stigma of "felon" may be cleansed by special means, e.g. a Presidential pardon.
3.15.2008 4:38pm
Dennis, is that a long-winded way of saying you're not going to respond to the substantive points in my post?
3.15.2008 4:50pm
gattsuru (mail) (www):
The state can continue to prevent a parolee from traveling to Mecca, and the rare cases like that of Kevin Mitnick have demonstrated that the state can quite easily ban the use of many forms of speech by those under supervised release for years. Meghan's laws have demonstrated that whatever or wherever the right to privacy actually is, it isn't going to cover 'ex-'felons (as a linguistic thing, felon describes an individual who was convicted of a felony, regardless of whether or not that person is currently in prison. Only those with their records expunged or a pardon are really ex-felons).

Even ignoring that, the federal government retains the ability to violate the rights of individuals when the violation passes as acceptable level of scrutiny. In the case of gun rights, the best we can really hope for is strict scrutiny, which requires that there be a compelling government interest, that the violation is narrowly tailored, and that it uses the least restrictive means to achieve the compelling government interest.

Good luck trying to get felon-in-possession laws overturned on failing that test, but I don't see it happening any time soon.
3.15.2008 4:57pm
gattsuru, as I mentioned previously, there's no doubt that the state can burden constitutional rights. A gun ban does more than burden a right though. It suppresses the exercise of the right entirely. But putting aside the burden-ban distinction, even burdening a right needs some sort of justification. There is no justification for keeping Martha Stewart, or most people who have been convicted of non-violent felonies, from owning a firearm. In other words, I'm not arguing that felon-in-possession laws are on their fact constitutional. Instead, I think there could be numerous valid as-applied challenges. In lieu of saying more, which would require me to repeat myself again, I'll drop it. But if someone else would like to chime in to defend why Martha Stewart should not be able to exercise her right to own a firearm to protect herself -- extra point for anyone who is able to go beyond the facially absurd argument that the state has absolute power to ban the exercise of any right of someone previously convicted of any felon -- I'd be interested to hear from you.
3.15.2008 5:39pm
common sense (www):
Because Martha Stewart is evil?
3.15.2008 7:25pm
Thoughtful (mail):

Perhaps the general legal assumption is that all people found guilty of white-color crimes can afford body guards...

3.15.2008 9:18pm
Harvey Mosley (mail):
She could if she could just find a holster that didn't clash with her shoes...
3.15.2008 9:21pm
Angus Lander (mail):

You give a good response to Andy's counterexample to Lunz's claim that

the most significant grammatical feature is that its preamble is an absolute phrase. Such constructions are grammatically independent of the rest of the sentence and do not qualify any word in the operative clause to which they are appended

But what if we were to tweak the counterexample so that the dean announced in in class "the teacher's being sick, class is canceled today" and then, before anybody left, the teacher arrived. My sense is that anybody who left would be guilty of cutting class. Interestingly, if the dean showed up and said, merely, "your class is canceled today" I would be more inclined to excuse a member of the class's early departure. All this suggests that "the teacher's being sick, class is canceled today" functions (at least in certain contexts) like a conditional. This is not a helpful result for Lund.
3.15.2008 10:09pm
Bad (mail) (www):
"Summary of Heller Legal Positions:"

And you guys wonder why you get so many weird search result clickthrus... sheesh.
3.15.2008 10:13pm
Dilan Esper (mail) (www):
The road to this litigation has been fraught with with hurt feelings among people who are (or should be) on the same side.

That was inevitable, because the way to win this case is not to ask for the interpretation of the Second Amendment that the gun rights movement desperately believes in (i.e., most or all gun controls that the NRA opposes are unconstiutional).
3.15.2008 10:29pm
Amid the competing theories of the strict constructionists, the doctrinalists, the developmentalists, the contextualists, etc., one has to be somewhat baffled that there is not a common sense-ist school of constitutional interpretation. Such an approach might begin with two queries:

1.) Why did the founders bother to have a written constitution and

2.) Why write it in the vernacular?

A common sense approach would avoid atributing missing words, such as the implied "because" or "so long as," that the collective right advocates lament are missing from the prefatory language of the second amendment.

It would also seem to be common sense that the subject of the second amendment is the word "right" rather than the word "militia." Strained interpretations that regard the terminal phrase in the amendment as the carelessly included confounder on a passage otherwise meant to affirm government discretion in administering a militia would be dismissed out of hand.

Arguments relying on analogy, e.g. comparing the right to keep and bear arms to the freedom of speech, or assembly, or the right to vote, or whatever would be used for illustration or explanation only, since the right to keep and bear arms has its own cozy amendment and does not rely on any other rights for its effect. (Analogizing rights is really only useful to generate counter-examples to disprove sweeping generalizations, especially where one compares an imlicit right with an explicit one, or compare one enumerated in one part of the Constitution with one guaranteed separately elsewhere.) In the case of the second amendment, the right to keep and bear arms is not a derivative right (e.g. derived from the right of states to organize militias) or a penumbral emanation, or a nostalgic homage to the Magna Carta. Common sense tells us that it has its own explicit amendment, taking up 10% of the Bill of Rights's slots. Any interpretation that would yield the same result for "the people" whether or not the second amendment was included in the Constitution would not be entertained.

In my opinion.
3.16.2008 12:52am
Mike Hansberry (mail):

And if you were to tweak it a little more, then you could actually have a conditional.

"the teacher being sick, class is canceled today"

is simply not the same as

"If the teacher is sick, class will be canceled today"
3.16.2008 1:01am
James Gibson (mail):
Prof Lund is really arguing for a living Constitution by his frequent references to the differences in the Arms used by civilians and those used by the military today compared to the lack of differences in the past. His logic seems that the court must allow some prohibition of the arms of the Army from civilians who do not need such weapons today for personal defense or hunting. The problem is his understanding of what the military uses as arms and what arms civilians use for what legitimate purposes.

His frequent reference to the M-16 as a machinegun is the best example. The M-16 has not had a full-auto capability as a general issue arm for 20 years. In 1986 the Army dropped Full-auto and began again training troops in marksmenship. Ten years later the CMP practically mandated the civilian AR-15 rifle (the semi-auto M-16) for the higher levels of competition, replacing the older M1A which was simply a semi-auto M-14 (which also never worked well in full-auto). Thus, on the grounds that the CMP exists to maintain a pool of trained marksmen for possible military service, it only works if the weapon they train with has some similarity to the weapon they would use in service.

On the grounds of what people use to defend themselves or to hunt. Do we limit people to revolvers because the Army uses semi-auto pistols (its in one of the Petitioner Briefs). Do we say that elderly people have to use a 12 gauge shotgun because some City official says its the better home defense arm. Do we prohibit people in the mid-west from hunting with bolt-action rifles because they hunt deer in Massachusetts with a shotgun.

I know people who hunt Coyotes and foxes (varmints) with AR-15s or Min-14s firing Army caliber rounds that are useless against Deer. Other people have hunted Deer with Garands, M1 carbines and M1As. What you hunt and where you are hunting it plays a big role in what is the best style of firearm to use.

In short, to Mr. Lund argument that today we have distinct differences between military and hunting arms that must be considered is invalid. One hundred years from now a historian will be remarking on the lack of differences in our military and civilian arms compared to the military and civilian arms of his/her times. In the same regard if Lund were to go back in time and remark about the lack of differences between a hunting arm and a military arm in 1814, boy would he get an earful on how wrong he was.
3.16.2008 2:39am
Brett Bellmore:
The only reason we have such a distinction between civilian and military arms, is that the Court spent 7 decades deliberately refusing to enforce the 2nd amendment, allowing the growth of laws creating this distinction. It's a neat trick, refusing to enforce a clause of the Constitution for an extended period, and then using the resulting violations to define the extent of the clause.
3.16.2008 12:13pm
Angus Lander (mail):

You're certainly right, and I never meant to disagree, that "the teacher's being sick, class is canceled today" implies, "the teacher is sick and class is canceled today," which, in turn, entails, "class is canceled today."

My claim is that sometimes "the teacher's being sick, class is canceled today" is best understood as being elliptical for (but not grammatically equivalent to) the (weaker) proposition "if the teacher is sick then class is canceled today." To support this contention I noted that if the dean told the class "the teacher's being sick, class is canceled today" and then, before any of the class had left, the teacher showed up, it seems right to say that any student who subsequently departed would be guilty of cutting class.

Does this mean that we should read the second amendment as elliptical for a conditional? Not really; a textualist would want to investigate the linguistic conventions of the times to see whether "the teacher's being sick, class is canceled today" would have been understood as expressing a conditional rather than a conjunction (and, mutatis mutandis , whether the same held true of the second amendment).
3.16.2008 1:35pm
Doc W (mail):
The right to keep and bear arms cannot plausibly be limited to service in organized military units. Why would any such "right" be enunciated? Are we to suppose that in the absence of the Second Amendment, states would be fielding unarmed military units? Since weapons for organized military units could be (and in the case of cannon, were) stored in armories, what purpose would be served by a right to keep the relevant firearms at home? And how would any such view square with the "shall not be infringed" rubric that so clearly refers to pre-existing rights independent of government's will?

The key to a correct interpretation, in my opinion, lies in aptly interpreting "militia" and "well-regulated." The word militia refers not only to organized military units but also to the people at large who are expected to be available to serve the purposes of a militia--like, maintaining the security of a free state. "Well-regulated" was used in 18th-century parlance in a way that is rare or absent today, to mean "well-coordinated" or "well-operating" and thereby "effective."

So the right of the people to keep and bear arms was understood as essential to the effective carrying out of the purposes of a militia. The present-day existence of extensive professional police forces may obscure the fact that armed citizens would have been the first and primary line of defense of homes and communities against marauders, and that their efforts are still so needed in many cases as the first line of defense. So I suggest that when armed citizens defend themselves and their families or come to the defense of their neighbors in the period of time before the police can arrive, they are acting in their capacity as part of an effective militia.

This interpretation makes complete sense of the wording of the amendment. Under this interpretation, DC's ban clearly conflicts with the purpose of the amendment in assuring the continuance of an effective militia. On this interpretation, "shall-issue" carry permit laws represent an implementation of the Second Amendment by allowing for the existence of law-abiding armed citizens in a position to defend themselves and the community during the period of time before professional police can take over. And on this interpretation, we don't have to worry so much about the constitutionality of private rocket launchers.

On that last point as well, as it relates to private arms as a bulwark against tyranny--there is no question today of the militia forming ranks on village greens to do straight-up battle with the army if the federal government fell into the hands of a despot. What are needed are sufficiently capable individual weapons that they could be used in ambushes to capture heavier weapons. Guerrilla war, right?
3.16.2008 3:08pm
M. Slonecker (mail):
For the life of me I have a very difficult time understanding why the focus is almost solely on the Second Amendment. Numerous individual "rights" have been recognized that are not explicitly recited in the language of the Constitution. Even assuming, arguendo, that the Second Amendment is constrained by the term "militia", it is not the only provision upon which such a right can be recognized.
3.16.2008 5:28pm
Sam Draper (mail):
Hopefully, the cout will keep focused on the three issues that seem to have become lost in much of the debate:
Is Heller one of the people?
Is a pistol an arm?
Is a complete ban an infringement?
This should be an open and shut case, at least in regards to whether Heller can keep a pistol.
3.17.2008 8:00am