Laurence Tribe to Supreme Court: Restrain Yourself on Heller

[Ergosphere]

I'm sure such a culture war could get bloody. I often wonder how those who would disarm us will carry that out...

Bans have occurred. Confiscations have occurred. But a "bloody culture war" did not occur.

...to the effect that the states may limit the citizens to keep and bear only such arms that the officers, chosen by the states, are required to train the militia in the use of.

I think it's much more likely that they'll rule as the article describes: uphold an individual right while eviscerating it on grounds of "reasonable restriction."

Example: No training in the use of .50 caliber arms - you can't keep and bear .50 caliber arms.

Ah, well, California already has that restriction, as well as an AWB, magazine capacity limit, and handgun registration. And it's unlawful to carry a loaded firearm in most places. Then there's New Jersey, Illinois, New York, and Massachusetts, never mind the District of Columbia. We have a plethora of offensive firearm restrictions in this country: a hollow point ban, firearm ID cards, exams which must be passed in order to purchase a firearm, waiting periods, and restrictions on the frequency of purchases.

What we don't have is a culture war. And if it didn't happen before, I doubt it will happen now in the event that the Circuit decision in Heller is overturned.

I doubt we'll be so fortunate that the Court will unite behind us. I don't think there are enough courageous and honorable people seated there.

I think it's likely that we'll secure an individual right. But the interesting question is, what is protected by that right? Hope for the best, but be prepared for disappointment.

 

[publius]

It must be embarrassing to Tribe to have to resort to misrepresenting the case in order to make his point. Let's see..

The case involves a city resident who contends that the District is violating his rights under the Second Amendment with a citywide ban on handguns.

No, that's not all it involves. The actual question to be decided is:

Whether the following provisions, D.C. Code §§ 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?

Opponents of the District's flat ban on handgun possession have cited my words to the court and in newspaper editorials in their support.

That's the second time he's referenced the "ban" and this time with the word "flat" to add emphasis. This conveniently ignores the fact that pre-ban gun owners are still allowed to keep their guns, but it does help us to later draw the parallel to the "flat ban" we have on machine guns.

The lower court's decision in this case -- the D.C. Circuit Court of Appeals found the District's ban on concealable handguns in a densely populated area to be unconstitutional -- went overboard. Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.

If you can't win the argument, throw up distractions. How humiliating for Tribe. The Court talks about handguns and other weapons being kept in private homes, obviously bringing up the issue that DC laws insist that long guns be disabled, and Tribe has to run away by acting as if the issue is about concealed weapons and DC actually lets citizens keep FUNCTIONAL firearms for private use in their homes, neither of which is true, and he knows it.

Wow. Mr. Harvard Law Professor has to run from the facts and issues of the case and invent his own to make his point. Utterly pathetic.

 

[rdhood]

Tribe says that even “liberal scholars” like him have concluded, against their political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of militias, but that nothing he’s discovered “supports an absolute right to possess the weapons of one’s choice.”

It is interesting to note that libs used Miller to disqualify and regulate all types of guns. Now that it appears Miller, along with a ruling of individual right, could be used to strike down the automatic weapons ban, the left is conveniently forgetting it. A person does not have the right to possess the "weapons of one's choice". A logical extension of Heller and Miller could be that a person has the right to possess the weapons normally carried by military soldiers, and those include automatic weapons, sidearms, and grenades.

The crutch (Miller) that the antis used for so long might now be used to reverse much of the damage to 2nd rights, so it is conveniently overlooked in articles like this.

 

[SWMAN]

Tribe's logic is ridicules. His argument is judicial activism, making policy by judicial means. The 2A is a RIGHT, not a policy the government can change because it is more convenient to do so rather than change the Constitution. What part of "arms" doesn't Tribe understand? I thought the SC is supposed to clarify Constitutional issues, not give each opposing side a little here and there and still keep the issue clouded?

 

[geekWithA.45]

If the court sides with the theory that "the Second Amendment protects an individual right you can't actually use", based on the theory that even maximal levels of scrutiny support complete handgun bans, I shall assess the ruling on it's merits, rather than it's dicta.

Unless such a ruling clearly demonstrates how and under what circumstances it protect the keeping -and- bearing of militarily credible arms for private, lawful purposes, I shall consider such ruling to be a breach of the spirit and substance of the Bill of Rights in its entirety, and that we have entered an era where all bets are off.

 

[Kharn]

The readers at Volokh seem to think it is Tribe changing his position in one last-ditch attempt to get a Supreme Court slot (he has also made comments about Obama being a favored student of his, and appeared in an Obama commercial). He'd also previously approached our side about helping with the case, but was interested in a more important role than just writing an amicus brief, suspected to be because he's had a streak of defeats at the SC (3 losses in a row, last win in 2002) and knows in the end Heller will be victorious.

Tribe's latest treatise on Constitutional law has been delayed indefinitely after allegations of plagiarism surfaced.

Frankly, I'm inclined to agree he's grasping at straws to get a shot at being a Justice, but in the end he wont recieve the nod as he's too old (late 60s), no matter how much spinning he does.

Kharn

 

[AVESguy]

Reading his actual column and not a commentary ABOUT his column is instructive and interesting.

http://online.wsj.com/article/SB120459428907209205.html

I read it in the paper yesterday.

 

[ConstitutionCowboy]

You are very knowledgeable ,but you are about to be proven wrong.
Which you want to be.

Lacking the high-fallutin' education, I must disagree with the first part. I'd say I'm more analytical. Yes, I hope I am wrong, and I WANT to be wrong, but my analysis of what I've seen come from the Court and of those on the Court, I can't be optimistic.

Ergosphere

The bans are one thing, the confiscations are another. Those have occurred on the state level. Blood will flow if Congress decides to disarm us, be it our blood or the blood of the minions. Well, maybe I should speak only for my self. It'll either be my blood or the blood of the minions sent to disarm me. Regardless, disarmament will not be cost free at my house. That's the way it is in the free world. Live free or die. Thomas Payne's words and the words in the Constitution mean as much today as they did back then...To me, at least. I may end up as dead meat, but it'll be free dead meat.

I think it's much more likely that they'll rule as the article describes: uphold an individual right while eviscerating it on grounds of "reasonable restriction."

Eviscerate or infringe, it's six of one, half a dozen of the other.

Ah, well, California already has that restriction, as well as an AWB, magazine capacity limit, and handgun registration. And it's unlawful to carry a loaded firearm in most places. Then there's New Jersey, Illinois, New York, and Massachusetts, never mind the District of Columbia. We have a plethora of offensive firearm restrictions in this country: a hollow point ban, firearm ID cards, exams which must be passed in order to purchase a firearm, waiting periods, and restrictions on the frequency of purchases.

It has been small scale so far, and how many people - otherwise good, law abiding citizens - have kept their arms or bought new ones unbeknown to the state? I read somewhere that there were only about 250,000 registered guns in Massachusetts. Do you honestly think of the near 300,000,000 guns in this country that only less than one tenth of one percent are in in the hands of the citizens of Massachusetts?

What we don't have is a culture war. And if it didn't happen before, I doubt it will happen now in the event that the Circuit decision in Heller is overturned.

It does not solely depend upon the Court simply overturning Parker/Heller, but upon what Congress and maybe some of the state legislatures decide to do after such a pile is dropped on our Right to Keep and Bear Arms and the now meaningless Second Amendment. You'll have to wait for the blood bath.

I think it's likely that we'll secure an individual right. But the interesting question is, what is protected by that right? Hope for the best, but be prepared for disappointment.

Nothing is protected by the right other than our freedom and security. That might require actually using arms. The protection discussed here comes from the Second Amendment. Our Right to keep and Bear Arms is not supposed to be infringed by government. Period. We can't use them for their intended purpose if we can't keep and bear them. I'm more than prepared for disappointment. I'm prepared for defense of my Right to Keep and Bear Arms.

geekWithA.45

AMEN.

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. If that doesn't convince you to take a stand and protect your inalienable rights and freedoms, nothing will. If that doesn't convince you to maintain your personal sovereignty, you are already someone else's subject. If you don't secure your rights and freedoms to maintain your personal sovereignty now, it'll be too late to come to me for help when they come for you. I will already be dead because I had to stand alone. B.E.Wood
Woody

 

[Winchester 73]

Quote:
You are very knowledgeable ,but you are about to be proven wrong.
Which you want to be.

Lacking the high-fallutin' education, I must disagree with the first part. I'd say I'm more analytical. Yes, I hope I am wrong, and I WANT to be wrong, but my analysis of what I've seen come from the Court and of those on the Court, I can't be optimistic.

Woody,Abe Lincoln,no matter what your thoughts of him ,had no high-fallutin' education and went on to be our 16th President.
Your knowledge of the Constitution is unsurpassed on THR.
Have faith.We shall prevail.

 

[F4GIB]

From www.Armsandthelaw.com

From Alan Gura's web site:

This is quite a change from Prof. Tribe’s position in May, 2007. At that time, in correspondence with us, Tribe said he would consider playing a “more central role” in our case, with the aim of helping us appeal to justices he perceived to be centrist and left of center. It’s difficult to see how his current position would accomplish that goal.

Academia hath no fury like a prima donna spurned.

Posted by: 30yearprof at March 4, 2008 07:08 PM

 

[mekender]

Several briefs have made it subtly clear that if they don't follow the Constitution they WILL have a culture war.

hell, Montana's brief basically stated that if the SCOTUS doesn't affirm an individual right, that the contract that Montana and the US signed making Montana a state will be invalidated

 

[yokel]

If the Court tries to reason the effect of the Second Amendment away, they could very well be firing an opening salvo that would help spark the gravest mass civil unrest America has experienced.

 

[mekender]

If the Court tries to reason the effect of the Second Amendment away, they could very well be firing an opening salvo that would help spark the gravest mass civil unrest America has experienced.

between the 2nd amendment battle and the growing immigration problem, this country hasnt been this on edge since the 1860s... now im not advocating violence, but it wouldn't surprise me to see things boil over... and i know what side im on already...

 

[Len S]

I am no legal scholar, I do not pretend to know how things really work in Sodom on the Potomac but I do have a question for those of you who study these things. Is it possible or probable that, in a BIG case, such as this. where things have been debated for a LOOONG time that the justices have made up their minds Long ago and these arguments and briefs are window dressing? It is not like a case that comes out of nowhere about, speech, contracts, discrimination. The justices have known for a long time that this was going to have to be settled sooner or later and have formulated their opinions over time and all the briefs, speeches and other stuff is just a narcotic for the masses. I know that this is not supposed to happen but....I can't see the judges weighing through each and every page. I have to think that the clerks do most of it and write a brief on the brief. THis gives the clerks the real power by being the filter. The judges also have to know about the "filter effect". So does anyone have a theory on this? Am I crazy and in need of a tinfoil hat? Or is it possible that the decision has been made?


Len

 

[mekender]

well, i just dont know len... i should hope that justices would do what they have traditionally done and examine the case as it is presented to them, not how the publicity has presented it... but anything is possible

 

[Titan6]

Tribe says that even “liberal scholars” like him have concluded, against their political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of militias, but that nothing he’s discovered “supports an absolute right to possess the weapons of one’s choice.”

This is the default position of the Anti movement. After they lose all the other arguments it goes along the lines of "should people be allowed to have nuclear weapons, so their are lines then". Of course this argument is spurious straw man but that does not stop them.

 

[ConstitutionCowboy]

Len S,

I postulated somewhere on this board exactly what you ask. I've forgotten where I posted it. But what I postulated was that since the Court itself framed the question in the fashion it did, it had already come to a "conclusion" and framed the question to actually present a question in a form so that their pre-formulated answer would follow.

I've been looking at the question and trying to draw some really positive answer to it, and though I can conjure up some good positive responses, there is too much room for the answer from the Court to be wishy-washy and/or downright injurious to the protection of the right. The only positive I can draw from the question as it's worded is the contextual assumption that the Second Amendment does protect the right as a right of individuals. The negative I see is the question includes the DC law which includes limits/restrictions/Prohibitions on the right which gives the Court leeway to grammatically answer that the DC law goes too far instead of saying it is unconstitutional. The Court could also say the DC law does not go to far and reverse the lower court.

It's anyone's guess at this point. I doubt we'll learn any more from the hearing on the 18th next.

Woody

"I pledge allegiance to the rights that made and keep me free. I will preserve and defend those rights for all who live in this Union, founded on the belief and principles that those rights are inalienable and essential to the pursuit and preservation of life, liberty, and happiness." B.E.Wood

 

[Don Gwinn]

Len, it's all but certain that at least some and probably most of the Justices already know how they're going to vote, yes. There might be a "swing vote" or two, but that's about it.

But if there are one or two swing votes available, then they'll make all the difference.

 

[RoadkingLarry]

between the 2nd amendment battle and the growing immigration problem, this country hasnt been this on edge since the 1860s... now im not advocating violence, but it wouldn't surprise me to see things boil over... and i know what side im on already...

Unfortuantly, unless the evil .gov and .fed start interfering with the next season of Survivor or American Idol most people are not even going to notice the decision in DC V. Heller much less care.

I still think we are gonna get seriously hosed come March 18th and we won't even know it till mid June or July.

 

[yhtomit]

"The D.C. Circuit Court of Appeals found the District’s ban on concealable handguns in a densely populated area was unconstitutional. Tribe believes this went too far– that “a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence” should not be viewed as abridging the right of the people to bear arms."

I wonder whether he'd consider a revision for kids called "The Constitution in 100 Words" to be an abridgment.

timothy

 

[Mall Ninja]

Academia hath no fury like a prima donna spurned.

ROFLMAO! How true!

 

[Wineoceros]

I wonder whether he'd consider a revision for kids called "The Constitution in 100 Words" to be an abridgment.

An Abridgement Too Far?

 

[DonP]

The speculation, on a number of the major law school blogs, is that Tribe is desperately angling to severely back pedal and re-orient his previous "individual right" arguments, so he can be a potential Obama Supreme Court appointee. Obama was his "prize student" he's written in other blogs. Talk about serious sucking up!

His latest piece of drivel is pretty much the same point of view Obama is taking since they discovered the "hunting" line just doesn't cut it anymore with gun owners, e.g. "Sure it may be an individual right, but you can regulate it to the edge of extinction with no problem ... for the good of the people".

Tribe is 66 I think, and this is probably his last chance to be considered for an appointment and he feels it is his entitlement.

Most of the other law professors find his Op Ed "weakly reasoned", to be kind about it.

 

[TCB in TN]

It is sad that the current state of academia involves a debate about the intent of the framers, when any true academic mind would merely turn to the original writings of those same individuals. There IS no honest debate over the meaning of the 2nd, there is just the stated intent of the framers and the twisted words of those who don't like what the framers had to say.