Heller & The Right To Privacy

[Robert Hairless]

The title of this thread supposes to be discussing Heller.

With all due respect, your honor, I give notice that I shall appeal your decision. My remarks addressed the opening statement made by Mr. Cosmoline and are consistent with the issues he raised.

 

[Robert Hairless]

§ 22-4504. Carrying concealed weapons; possession of weapons during commission of crime of violence; penalty

(a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in § 22-4515, except that:

(1) A person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon, in a place other than the person’s dwelling place, place of business, or on other land possessed by the person, shall be fined not more than $ 5,000 or imprisoned for not more than 5 years, or both; or

(2) If the violation of this section occurs after a person has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or another jurisdiction, the person shall be fined not more than $ 10,000 or imprisoned for not more than 10 years, or both.

(b) No person shall within the District of Columbia possess a pistol, machine gun, shotgun, rifle, or any other firearm or imitation firearm while committing a crime of violence or dangerous crime as defined in § 22-4501. Upon conviction of a violation of this subsection, the person may be sentenced to imprisonment for a term not to exceed 15 years and shall be sentenced to imprisonment for a mandatory-minimum term of not less than 5 years and shall not be released on parole, or granted probation or suspension of sentence, prior to serving the mandatory-minimum sentence.

Since the question references the above section, how can the court not consider the major issue it addresses that is raised by Heller?

I think it likely, by the way, that the question itself is being misread in these discussions.

The way it is being read is that the court will focus on the right of individuals not affiliated with a state-regulated militia to possess handguns in the home--in other words, as if the question read this way:

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 . . . in their homes?

The question could have been written that way but it wasn't. It was written to include the words "for private use": "but who wish to keep handguns and other firearms for private use in their homes?"

Seems to me that the court has declared that it will consider whether the DC Code's restrictions on the private use those individuals want to make of weapons in their homes--as well as its restrictions on whether they can keep weapons in their homes--violate their Second Amendment rights.

I don't see how the court could do otherwise. The Second Amendment combines the keeping and bearing arms into a single right, "the right to keep and bear arms." The amendment does not assert "the right to keep arms" and "the right to bear arms," which would indicate two separate rights.

Both the Second Amendment and the court link the use of arms with the possession of arms.

 

[RealGun]

I stand corrected that the Court's cert statement included reference to the 2A.

Again, I think the wording puts everyone on notice that any ruling or even dissenting arguments will be narrower in scope than previous arguments in the case. Why would it be surprising if the Court was again trying to limit "social consequences"? They may also consider restrictions on carrying arms to be settled law, not specifically appealed, and not central to this case. I don't see where they would be compelled to address the meaning and import of "bearing arms." They can separate "bearing" from "keeping" in a heartbeat.

 

[ilbob]

They can separate "bearing" from "keeping" in a heartbeat.

The courts are masters of parsing words in the constitution to come up with some kind of ruling they agree with, rather than what a plain reading of the constitution actually says.

I don't think we can accuse them of that in this case, since the case was never about bearing arms, there would seem to be no reason the court would rule on bearing arms.

Interesting that they used the term "private use". They could have used the term "personal use" instead. I wonder if that means anything. Justices of the SCOTUS are not known for picking words at random. Maybe we will get some kind of bonus out of this.

<added> You can never tell just what a SCOTUS will end up meaning in the long run. Nobody would ever have guessed that Brown v. Board of Education would have resulted in the waste of tens or hundreds of billions of dollars in court administered attempts to desegregate public schools by busing 6 year olds across town. In the end, that whole effort proved to be futile, and extremely counterproductive.

 

[Robert Hairless]

Ilbob, "personal use" hadn't occurred to me. Good point.

Mine essentially is the one in the addendum to your latest message. The court will decide what the court decides but although the question limits itself to addressing specific sections of the DC Code, the way the question is worded gives the court latitude to address issues broader than "is it okay for a DC resident to have a handgun in his home." I'd be surprised if a favorable decision suggested that "it's okay as long as he doesn't touch or use it and only looks at it from a distance."

I'm talking about my thinking only.

 

[Henry Bowman]

Sure, I expect some "reasonable" restrictions, but permits and licensing for carrying are definitely an infringement.

On a more conceptual level, I am concerned that at the end of the day the Supremes, being human undoubtedly having received many death threats and correspondence from the mental fringes, will want the comfort of allowing the .gov deep, wide, and flexible police powers to "keep guns out of the wrong hands" over maintaining a pure devotion to concepts given so little value these days like "liberty" and "freedom."

 

[gc70]

Interesting that they used the term "private use". They could have used the term "personal use" instead. I wonder if that means anything. Justices of the SCOTUS are not known for picking words at random.

I would really like to know which Justice suggested "private use" for the wording. They do not pick their words at random and I would bet that whoever suggested those particular words already had a plan about how to use them in the case.

 

[Robert Hairless]

I would really like to know which Justice suggested "personal use" for the wording. They do not pick their words at random and I would bet that whoever suggested those particular words already had a plan about how to use them in the case.

Did you mean to write "I would really like to know which Justice suggested 'private use'" or do you know something you can share with us?

 

[Robert Hairless]

I just came across this by John Lott. He also finds "private use" potentially significant:

What is also interesting is how the Supreme Court has rewritten the
question posed by DC. DC originally asked that the question be:
"Whether the Second Amendment forbids the District of Columbia from
banning private possession of handguns while allowing possession of
rifles and shotguns." The new question is: "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?"

What is most striking about this revised question is that the court
appears to be questioning the city's claim that the ban comes "nowhere
close to disarmament of residents. The District's overwhelming
interest in reducing death and injury caused by handguns outweighs
respondent's asserted need . . . ." DC adds that they don't believe
that the regulations that lock up and require the disassembling of
guns does not "prevent the use of a lawful firearm in self-defense."
Of course, this is highly debatable because under DC law as soon as a
rifle or shotgun is made operational it becomes illegal.

But taking DC claims as accurate, locked guns are simply not as
readily accessible for defensive gun uses. In the U.S., states that
require guns be locked up and unloaded face a 5 percent increase in
murder and a 12 percent increase in rapes. Criminals are more likely
to attack people in their homes and those attacks are more likely to
be successful.

Since potentially armed victims deter criminals, storing a gun locked
and unloaded actually encourages increased crime. If the phrase "keep
handguns and other firearms for private use in their homes" was chosen
for a purpose, it might be that gun lock laws raise their own problems
that limit people's ability to use guns for defense."

 

[Henry Bowman]

On the issue of "private use," it could be interpreted as being in contrast with "militia use" or in contrast to "public use." By "public use" I mean keeping and bearing in public (out side of one's home or business). Antis like to argue a parallel to drivers licenses or auto licensing. As we all know, drivers do not have to be licensed or automobiles registered for use on private property as opposed to public roads (or privately owned commercial parking lots that are open to the public).

The absolute prohibition in "shall not be infringed" is underscored and intensified because the Second Amendment does not qualify it. In the Fifteenth Amendment, for example, the right to vote shall not be denied by the United States or by any state on the basis of race and so on, but Mayor Fenty and Ms. Singer could argue that the Fifteenth Amendment doesn't apply to the District. They will and must fall flat on their collective tushies when they argue that the Second Amendment doesn't apply in their realm because the prohibition against its infringement is absolute, unqualified, and unrestricted. The right to keep and bear arms is the one right in the Constitution (again, according to my ancient and possibly unreliable memory) that shall not be infringed without qualification. Staying strictly within the context of the Eighteenth Century the United States all together is not allowed to do it, none of the nation/states in the union are allowed to do it, and neither is any political subdivision or Mayor C. Ray Nagin or Mayor Tim Sullivan or Mayor Michael Bloomberg or President Hillary, Barack, or Rudy allowed to do it, not even a little.

I think that there is an argument to be made that the absolute language of the 2A means it can apply to private people and/or private property as well. When balancing the "right to keep and bear arm shall not be infringed" with private property rights, it can be argued that private property rights are outweighed by RKBA in places that are open to the public or in places of public accommodation (like inns and hotel rooms).

I don't think that the court will assert an unrestricted right for everyone in the United States, or even only its legal residents, to possess and carry functioning weapons as they please. I doubt that they will acknowledge such a right for adjudicated lunatics in mental facilities, prisoners, or drunks, for example, nor do I think that they will acknowledge it includes a right of everyman to have his own nuclear bomb even though only Michael Bloomberg and Oprah could afford one, and I wouldn't be surprised if they already do. But when the justices consider the public interest I hope that they do acknowledge that the Second Amendment requires the fewest restrictions possible, that only those with overwhelming public need should be permanent, and that any other restrictions must be few, obviously justified, and only temporary. By the former I mean those lunatics, prisoners, and "But I only had two beers" staggering imbeciles. By the latter I don't know what I mean but I do know I don't mean disarming people during and after a hurricane.

What you are describing is being under a "disability." It does not mean that juveniles, for example, have no rights, but they are presumed to be under a disability with respect to certain rights adults enjoy. Others (like prisoners and the insane) are under disability only after having been given due process, and then hopefully only for a temporary period.

 

[Robert Hairless]

Thanks, Henry Bowman. I'm sure you understand that my musings are not grounded in any knowledge of Constitutional law. I'm pleased if they're within the realm of relevance.

I was disappointed when I first saw the question, but the term "for private use" leaped out and its contrast with "who are not affiliated with any state-regulated militia" suggested that maybe the question was not so narrow as I first thought.