Based on the SCOTUS-rephrased question, anyone else not optomistic?

[cpileri]

They have left open the possibility to rule ONLY on the enumerated provisions (and only in effect in the District) and nothing more.

All other states, cities, etc will have the freedom to enact any restricting local legislation they see fit. IOW, nothing will change except maybe in DC.

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”"

Also carefully included in the wording is the ability to restrict such posession to 'in their homes'.

Given such weasle, I mean wiggle-room, I cannot be optomistic that a court that has decided your home can be stolen for private developer's use based on tax revenue (remember Kelo vs. the city of New London, CT?) will somehow see the light and support the individual citizen in any meaningful way.

C-

 

[Standing Wolf]

Given such weasle, I mean wiggle-room, I cannot be optomistic that a court that has decided your home can be stolen for private developer's use based on tax revenue (remember Kelo vs. the city of New London, CT?) will somehow see the light and support the individual citizen in any meaningful way.

I've been afraid all along government will once again look after the interests of government. I hope my fears prove unfounded, of course, but rulings such as Kelo don't inspire a great deal of confidence.

 

[rdhood]

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

The rephrasing means that they read Heller (5 point response to DC) and DC, and this is what they decided on. They are not deciding the "bear" portion of the 2nd. They are deciding on "individual right" and "for private use". They are deciding on "D.C." (vs. the States), they are deciding on "in their homes" and they are deciding on "not part of any militia".

To make this decision applicable to the States may take another case.
To make this decision applicable to "in their car" may take another case.
To make this decision "individual right" for members of a "State militia" may take another case (if it is found that being in a militia is a requirement for the 2nd).

ALL cases related to the 2nd and carrying will take more cases.

What will be decided is exactly how they have phrased it. I am optimistic that it will be decided that it is an individual right for people to keep firearms in their homes. The ruling will be very narrow, and it will take a lot more cases to build case law to make the decision applicable to the States, and to expand the definition of "home". This is just the start.

 

[Deanimator]

Of course I'm optimistic. This thing is like Guadalcanal, a mess almost to the end. We still won.

The best way to guarantee defeat is to stop fighting.

 

[everallm]

As with pretty much anything worth fighting for, it's a long, hard uphill battle.

This is the latest, but potentially very significant step in the incremental roll back of 60 years of anti 2A law.

The simple act of the Supremes accepting and codifying the individual right as opposed to the "militia" opens up a vista of opportunities.

Next stages will be to build on the specific outcomes of DC and look at cities or other municipality passing outright or effective bans, such as Chicago and NYC.

Possible stages after that would be looking at discrete states with onerous or ambiguous anti 2A not just hand weapons. Possiblly look to arbitrary restrictions such as magazine capacity or some of the really arcane California laws.

Step by step, ocassional set backs, long term is the only way this is going to work by building a strong set of legal precedents and binding judgements.

 

[antsi]

The simple act of the Supremes accepting and codifying the individual right as opposed to the "militia" opens up a vista of opportunities.

That's assuming they rule in our favor.

I wish I had your confidence. Frankly, this thing gives me the heebie-jeebies.

Next stages will be to build on the specific outcomes of DC

Count chickens much?

 

[ConstitutionCowboy]

Notice, however, that the Court framed the question around “firearms” which has a finite definition in the law whereas the Second Amendment prohibits infringement upon our right to arms; “arms” being all encompassing, covering weapons of all sorts and armour.

Woody

 

[Bartholomew Roberts]

Half the people citing Kelo on this board have clearly not read or understood the decision, particularly Kennedy's concurrence. So I don't know why people like to keep citing Kelo, particularly given that several of the votes from Kelo have changed. Since Kelo is no longer on-topic for Legal (lacking any RKBA comment), feel free to PM me if you want to hear my thoughts on why it is a bad analogy.

As to the D.C. decision, I don't think anybody here who has been following the case expected anything but a very narrow decision of the type the Supreme Court has agreed to hear.

IOW, nothing will change except maybe in DC.

Not quite... if the Second Amendment protects the right of an individual unaffiliated with any state-regulated militia to keep firearms for private use in their homes, then that affects every federal gun control law - even if not incorporated (and the fact that incorporation was unlikely to be addressed here has also been discussed).

Think of it like pouring the foundation of a house... a concrete slab doesn't look all that impressive; but you can't build a 20,000 square foot mansion without one - or one-bedroom row house either. Heller is the foundation for future efforts. Whether we get the row house or the mansion, depends on how hard we are willing to work and what kind of foundation we get here.

As to phrasing the question, some things that went in our favor - the Supreme Court broadened the issue to consider the D.C. "safe storage" statute. So they plan to address anti attempts to render firearms unsuitable for defense by requiring they be kept in a useless state. They also didn't limit it to just handguns as D.C. had suggested; but included all firearms. They may have limited the question to the D.C. statutes; but it isn't too hard to draw an analog to other laws around the country and even other federal statutes.

 

[ZeSpectre]

I think the -really- important thing is this.
The decision will NOT be the end of the road regardless of what happens.

Anyone thinking "ah great, the SCOTUS will decide and that will be that and we can all go home and have a beer and watch TV" needs a MAJOR reality check.

Entrench yourselves for a LONG haul and fortify your determination to persist for however long we need to fight (lifetimes if necessary) because THAT is how we will overcome, by refusing to fail.

If that "long haul" mentality isn't needed...GREAT, but it's better to have and not need.

 

[Henry Bowman]

There was no question but that the SCOTUS would address as narrow an issue as possible if they addressed the 2A at all. Heller's attorneys knew this and acted smartly and srtatigically.

I don't read anything positive or negative into the wording of the question presented -- except the part about "state-regulated militia." The 2A says "well regulated" not state-regulated. Perhaps this is setting up for an answer that addresses whether the 2A appies to DC, a non-state. But why? Is there any doubt that DC residents have Const. rights? The whole issue of "incorporation" has been avoided. Why would they address an unnecessary hypothetical like "state-regulated militia" that is not and cannot be at issue here? In Miller they certainly didn't see the need to think about whether the "militia" was state-regulated or otherwise.

This bothers me. I don't know whether it is a signal of fuzzy thinking on the SCOTUS, a compromise between the collectivists and individualists on the court, or just a red herring that the parties don't know whether to fear or how to address.

 

[davera]

The wording of their acceptance seems to means they will end up ruling on the individual vs. collective right to "keep" firearms. I'm optimistic that they will rule in favor of the individual right. They are likely to make it rather narrow and not directly address the "bear arms" part nor whether the 2nd is incorporated to state laws.

It seems unlikely to me that they will issue something that could broadly overturn or upset the morass of state laws out there.

But to rule that the 2nd protects an individual right is a huge step forward and yanks the rug out from under a lot of "reasonable" gun regulation.

 

[Henry Bowman]

Entrench yourselves for a LONG haul and fortify your determination to persist for however long we need to fight (lifetimes if necessary) because THAT is how we will overcome, by refusing to fail.

Sounds like what Bush told us all before we went into Iraq. I only mention this because our society has shown it has an incredibly short memory and attention span, and no patience for a contest that lasts longer than one season of Survivor, Dancing With the Stars, or the Bachelor. I find that discomforting.

Still, the point is that if the SCOTUS rule the 2A is an individual right, then courts accorss the country cannot continue to assume otherwise and will have to address whether it is anything other than a fundamental right and any regulation is subject to strict scrutiny. That is, courts will no longer be able to dismiss the 2A and will have to address it under the constriction of a new premise.

 

[Pepper46]

Since, the DC is not a state, has no representation in congress, or senate, how does the SC have jurisdiction?
I'm sure there are codes, and other legalese which allow it, just a small rant by someone who is frustrated with the entire mess.

 

[Big45]

IOW, nothing will change except maybe in DC.

Bingo. Nothing is going to change. How many companies made AR-15's prior to 1994? How many make them now?

They could repeal the Second Amendment and the whole BOR tomorrow. MONEY, STILL, RULES.

 

[Wayne G.]

As others have already mentioned, the significance of this (hopefully-soon-to-be) ruling is the establishment of precedent for future cases.

 

[Ash]

The Supreme Court has jurisdiction because the District of Columbia is a Federal District. It is not a state because it is the capital of the Federal government, the neutral ground for our representatives and senators to assemble to carry on the business of the states.

Prior to any ruling of the Supreme Court, the lower-court ruling pertains only to the district in which it rules. Take for instance the impotent and heavily over-ruled 9th Court of Appeals. It rules on something insanely arbitrary (the 9th DEFINES activist judges) like SUV's. That ruling only applies to those states within the 9th Court's jurisdiction. When that ruling goes before the Supreme Court, it will then apply to the entire nation what ever the ruling may be.

That the District of Columbia is of no consequence. The lower court's ruling has no current effect on California (or Boston or Chicago) at the present, as those places are beyond its jurisdiction. However, once the Supreme Court rules, the ruling affects all the nation as the Supreme Court has jurisdiction over the entire nation, regardless of location. The District has unique status when compared with other territories such as Guam and Puerto Rico because it was established in the constitution.

In any case, that is not really all that important. The fact remains that no matter what the Supreme Court rules upon, the decision applies to the entire United States.

Ash

 

[jpk1md]

Ash, thats not necessarily true.

If SCOTUS takes a narrow view and addresses only the 3 DC Statutes in question as per the rephrasing of the question yesterday then while they may affirm Ind RKBA, That Firearms do NOT have to be rendered inoperative and that the DC Handgun Ban is UnConstitutional this ruling could be done in such a manner that it only applies to the Fed....IE they will likely AVOID Incorporation to make 2A ALSO apply to States

 

[Ash]

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”"

The court must address a specific case when it takes on a case, and these DC codes are what must be addressed. The Court cannot address something not already addressed in a lower court ruling.

If the District of Columbia cannot restrict the possession of firearms by citizens because the 2nd Amendment refers to an individual right, then I cannot in any way see how the States can get around any ruling (if in our favor).

In other words, how on earth can this apply only to the DC? That the court is reviewing the specific DC laws is mandatory (else there would be no case to review).

Ash

 

[Blackbeard]

I'm totally optimistic. Their questions contains the phrase "the 2nd amendment rights of individuals". This alone implies that they acknowledge that individuals have 2nd amendment rights. No matter what the scope of the ruling, it will be the end of the collective right theory forever.

 

[patentmike]

I'm optimistic based on how the SCT has framed the issue. If they answer "no", it would be a pretty narrow decision; DC gets to keep those provisions of its laws , and everybody gets to worry about whether DC is a special case, not being a state or having a state militia, etc. Not much will have changed.

If the answer is "yes", it's less likely to be something unique to DC, and more likely to acknowledge the individual right to keep "handguns" or "other firearms".

I think there is more upside potential than downside, but either way, it's not going to put Brady or the NRA out of business.

 

[Henry Bowman]

Their questions contains the phrase "the 2nd amendment rights of individuals". This alone implies that they acknowledge that individuals have 2nd amendment rights.

I understand your glee, but disagree. This is simply a question posed. The answer to the question could be that there is no individual right, therefore...

 

[bruss01]

Blackbeard wrote:
I'm totally optimistic. Their questions contains the phrase "the 2nd amendment rights of individuals". This alone implies that they acknowledge that individuals have 2nd amendment rights. No matter what the scope of the ruling, it will be the end of the collective right theory forever.

Actually, the presence of the phrase "the 2nd amendment rights of individuals" is encouraging not because it implies that the right exists, but because it indicates to me that the SC will first directly address the issue of whether any such right exists to begin with. THAT is the major ruling we need to get out of this case, and for them to gloss over it and simply "assume" it's existence without a specific legal determination of that fact, would still leave us hanging in the wind. We need them to CLEARLY and EXPLICITLY state that that right does indeed exist as applied to individuals who are NOT affiliated with any millitia and the more eloquent they wax in delineating it the more trouble activist courts like the 9th Circuit will have circumventing it from now on.

IMHO we will not get everything we want but we will get a decent foundation to build on, i.e. it will clearly be specified to be an individual right, subject to "reasonable" restrictions, and the majority of DC's restrictions will be found to be excessive. "Reasonable" will be the subject of future court cases to iron out the specifics, although the SC will likely provide some general guidance. DC will likely counter by losing gracefully and then 6 months later pass some other piece of crap legislation that accomplishes almost the same thing, and they'll ride along on that one until another suit is brought in 5 or 10 years which they lose also, repeat ad nauseum.

 

[ArmedBear]

Remember, "conservative" justices are not the same as "conservative" politicians.

Conservative judges, philosophically, oppose using a case as an excuse for them to effectively make new law on anything and everything that has a tangential relationship to the case. They consider that to be an abuse of judicial power.

That means, when a case comes to them, someone like a John Roberts will want to reduce the case to the essential question in it, and rule on that question only. They don't want to tell DC what their laws should be, exactly, only what is and isn't allowed for the government to do, and then only when it bubbles up to the SCOTUS.

Like it or not, agree with it or not, that's the judicial philosophy.

Now I'd prefer "liberal" judges with libertarian beliefs about the Constitution. By "liberal" I mean that I don't mind AT ALL if the judges raise holy hell and use this and any other case to impose the most extreme limits on government power justifiable by the text of the Constitution. Activism, by itself, doesn't really bother me; somebody has got to guard the Constitution.

However, that's not what we are looking at here. So, first, we would like to see a real ruling on the meaning of the Second Amendment, hopefully putting to rest the "collective rights" invention of mid-20th century creative legal "scholarship."

This won't be the end, or even the beginning of the end. It might be, perhaps, the end of the beginning.

Say this case is decided in favor of individual rights (the only reading of the 2nd that fits with original intent, or the understanding that a supermajority of Americans has had since 1787).

Then, the word "infringed" would have to be decided in another case, and even then, the decision probably won't specify what WOULD be "infringement" and what would not. It will probably only answer the question of whether a particular law is an "infringement".

Then there would have to be cases regarding "keep" ("safe storage" laws?) and "bear" (Right to carry in public places, or not?), as well as "arms" (M4 carbine, most common US military weapon but not allowed to civilians as an SBR in many states and as a "machine gun" throughout the US, must civilian purchase and use be allowed?) Each of these words could form the crux of a totally separate case.

That's one reason why I wonder why the Brady Bunch even CARES about this case. Of course they're lying: they really DO want a total ban of guns except in the hands of government agents. But a Heller decision, even in the best case I can reasonably imagine, wouldn't stop them from lobbying, collecting money, and doing what they do today. In fact, looking for ways to ban guns while paying lip service to an individual right would probably keep them even busier.

Still, I'd love to see the "collective right" myth taught in most universities in the US put to rest.

 

[legaleagle_45]

This won't be the end, or even the beginning of the end. It might be, perhaps, the end of the beginning.

At least attribute the quote to Churchill following the victory at El Alameinin
..."Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

But I digress--- we must congratulate and thank the Gura team... never in the history of SCOTUS litigation have so many owed so much to so few...

 

[ArmedBear]

I couldn't quote him exactly, because Heller isn't over yet.