Officially, they'll take a pass. But I'm sure their staff will be burning the midnight oil assisting the city. Most groups like that support each other quite ably. That's why testimony from the deposition of one "whistleblower" was being touted (wrongly) by one group even before I had the deposition in my hands. It's also why activists sometimes ask questions that mean nothing to their case but sure help one of their cohorts out.
Supreme Court to Hear DC Case
- Thread starter DonP
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Officially, they'll take a pass. But I'm sure their staff will be burning the midnight oil assisting the city. Most groups like that support each other quite ably. That's why testimony from the deposition of one "whistleblower" was being touted (wrongly) by one group even before I had the deposition in my hands. It's also why activists sometimes ask questions that mean nothing to their case but sure help one of their cohorts out.
alan
Member
Dave Kopel in Cato on gunbans, and word from USSC
BTW, if I understood correctly what I heard on a radio newscast, USSC has agreed to hear Heller(formerly Parker) v. D.C. It sometimes strikes me that we all would have been so much better off had the founding fathers simply said in The Second Amendment or elsewhere in The Constitution that "the right of the people to keep and bear arms shall not be infringed", without mention of militia, well regulated or otherwise. They, unfortunately did not so state, leaving us where we are now. Perhaps the USSC will finally clarify the issue, in favor of individual rights, one hopes. We shall have to wait and see, though we will get "a shot" in the USSC, it seems.
Court, Capital and Handgun
by David Kopel
In the next couple of weeks, the Supreme Court is likely to announce whether it will hear the Washington, D.C., handgun ban case. Handgun bans exist in only half a dozen U.S. cities, because although gun control is sometimes popular, gun prohibition is not.
In 1976, the District of Columbia City Council banned the possession of any handguns not already possessed and registered by residents, and the use of any gun for self-defense. That same year, Massachusetts voters were asked by referendum whether to ban handguns. The left-leaning state had been the only one to vote for George McGovern in the previous presidential election.
David Kopel is an associate policy analyst at the Cato Institute.
More by David B. KopelThe "People vs. Handguns" campaign was "supported by most of the state's press," according to Time magazine. But 69 percent of the state's voters rejected it.
Gun prohibitionists tried again in California in 1982, proposing a "handgun freeze," allowing current owners to keep their handguns but banning any new acquisitions. The measure was crushed by a vote of 63 to 37 percent. The freeze's opponents brought so many additional voters to the polls that they even carried Republican George Deukmejian to a 1 percent victory over Tom Bradley in the governor's race.
The gun prohibition movement successfully lobbied the Chicago suburb of Morton Grove to ban handguns in 1981. Chicago itself followed suit in 1983, and the suburbs of Evanston, Oak Park and Wilmette also enacted handgun bans.
The Chicagoland bans got a lot of press, and the national backlash against them was powerful. State after state passed preemption laws, forbidding localities from banning handguns. Today, an astonishing 45 states have preemption laws, including Texas and California, whose law has stopped two efforts to impose handgun prohibition in San Francisco.
By the early 1990s, local handgun bans had been outlawed almost everywhere in the United States. One of the few states without a preemption law was Wisconsin, which bordered the one state where handgun bans existed. Yet even in left-leaning cities in the state, handgun prohibition was rejected: by 51 percent in Madison in 1993, then by 67 percent in Milwaukee and 73 percent in Kenosha in 1994.
The D.C. handgun ban is a very rare, extreme and unconstitutional prohibition.
The Wisconsin gun ban campaigns did have important consequences. The Legislature enacted a preemption law, and in 1998, 73 percent of voters approved the addition of a right-to-arms clause to the state constitution.
The Brady Campaign denies that it supports handgun prohibition, but the group lobbies Congress and fights in the courts to preserve the D.C. handgun ban. That ban is aberrational not only by U.S. standards but internationally.
In Europe, almost all nations allow the possession of licensed handguns. Of the exceptions — Russia, Luxembourg, England, Scotland and Ireland — all but Ireland have murder and violent crime rates much worse than that of their neighbors and other nearby countries that don't ban handguns.
Despite hysterical fundraising campaigns by anti-gun lobbyists, a Supreme Court decision against the D.C. handgun ban would not invalidate the vast number of laws regulating but not banning these weapons in the U.S. Indeed, overturning even the Chicago bans would require a definitive future ruling on whether the Second Amendment is enforceable against state and local governments, or only against the federal government and federal enclaves such as D.C.
Millions of Americans own firearms and use them responsibly, and that right is guaranteed under the Second Amendment. The D.C. handgun ban is a very rare, extreme and unconstitutional prohibition. If the Supreme Court were to affirm the lower court's decision against the handgun ban, it would end the shame of our nation's capital city depriving its residents of a right that legislatures and courts have protected almost everywhere else in the United States.
This article appeared in the Fort Worth Star-Telegram.
BTW, if I understood correctly what I heard on a radio newscast, USSC has agreed to hear Heller(formerly Parker) v. D.C. It sometimes strikes me that we all would have been so much better off had the founding fathers simply said in The Second Amendment or elsewhere in The Constitution that "the right of the people to keep and bear arms shall not be infringed", without mention of militia, well regulated or otherwise. They, unfortunately did not so state, leaving us where we are now. Perhaps the USSC will finally clarify the issue, in favor of individual rights, one hopes. We shall have to wait and see, though we will get "a shot" in the USSC, it seems.
Court, Capital and Handgun
by David Kopel
In the next couple of weeks, the Supreme Court is likely to announce whether it will hear the Washington, D.C., handgun ban case. Handgun bans exist in only half a dozen U.S. cities, because although gun control is sometimes popular, gun prohibition is not.
In 1976, the District of Columbia City Council banned the possession of any handguns not already possessed and registered by residents, and the use of any gun for self-defense. That same year, Massachusetts voters were asked by referendum whether to ban handguns. The left-leaning state had been the only one to vote for George McGovern in the previous presidential election.
David Kopel is an associate policy analyst at the Cato Institute.
More by David B. KopelThe "People vs. Handguns" campaign was "supported by most of the state's press," according to Time magazine. But 69 percent of the state's voters rejected it.
Gun prohibitionists tried again in California in 1982, proposing a "handgun freeze," allowing current owners to keep their handguns but banning any new acquisitions. The measure was crushed by a vote of 63 to 37 percent. The freeze's opponents brought so many additional voters to the polls that they even carried Republican George Deukmejian to a 1 percent victory over Tom Bradley in the governor's race.
The gun prohibition movement successfully lobbied the Chicago suburb of Morton Grove to ban handguns in 1981. Chicago itself followed suit in 1983, and the suburbs of Evanston, Oak Park and Wilmette also enacted handgun bans.
The Chicagoland bans got a lot of press, and the national backlash against them was powerful. State after state passed preemption laws, forbidding localities from banning handguns. Today, an astonishing 45 states have preemption laws, including Texas and California, whose law has stopped two efforts to impose handgun prohibition in San Francisco.
By the early 1990s, local handgun bans had been outlawed almost everywhere in the United States. One of the few states without a preemption law was Wisconsin, which bordered the one state where handgun bans existed. Yet even in left-leaning cities in the state, handgun prohibition was rejected: by 51 percent in Madison in 1993, then by 67 percent in Milwaukee and 73 percent in Kenosha in 1994.
The D.C. handgun ban is a very rare, extreme and unconstitutional prohibition.
The Wisconsin gun ban campaigns did have important consequences. The Legislature enacted a preemption law, and in 1998, 73 percent of voters approved the addition of a right-to-arms clause to the state constitution.
The Brady Campaign denies that it supports handgun prohibition, but the group lobbies Congress and fights in the courts to preserve the D.C. handgun ban. That ban is aberrational not only by U.S. standards but internationally.
In Europe, almost all nations allow the possession of licensed handguns. Of the exceptions — Russia, Luxembourg, England, Scotland and Ireland — all but Ireland have murder and violent crime rates much worse than that of their neighbors and other nearby countries that don't ban handguns.
Despite hysterical fundraising campaigns by anti-gun lobbyists, a Supreme Court decision against the D.C. handgun ban would not invalidate the vast number of laws regulating but not banning these weapons in the U.S. Indeed, overturning even the Chicago bans would require a definitive future ruling on whether the Second Amendment is enforceable against state and local governments, or only against the federal government and federal enclaves such as D.C.
Millions of Americans own firearms and use them responsibly, and that right is guaranteed under the Second Amendment. The D.C. handgun ban is a very rare, extreme and unconstitutional prohibition. If the Supreme Court were to affirm the lower court's decision against the handgun ban, it would end the shame of our nation's capital city depriving its residents of a right that legislatures and courts have protected almost everywhere else in the United States.
This article appeared in the Fort Worth Star-Telegram.
Cosmoline
Member
They can suck eggs for all I care. The ACLU hasn't been an important voice for civil rights for decades now. They exist primarily to collect funds. Their position on the Second just highlights how out of touch the old guard over there is. The days when they would defend the Illinois Nazis are long gone. Say what you will about them, it took some substantial courage to buck the view of 99% of the American public. These days they stick to mainstream left wing causes to ensure maximum flow of $$$.
legaleagle_45
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Try this... an individual right to preserve a collective power. View the personal weapons of individuals as a source of militia weapons for the state in the event the feds fail to properly arm the militia, either through maleovant design or inadvertant neglect.
Cosmoline
Member
But the collective--the militia--is still defined and organized by the state. And it can be defined out of existence very easily.
Moreover, I don't view my right to keep and bear arms as a requirement to serve any governmental need. Maybe it could under some circumstances, but the main point of it is to protect *ME*, not the state. Indeed another purpose of it is as a potential tool AGAINST the collective. Whether that's a mob come to lynch me or a tyrant trying to raise a mob of brownshirts. In that sense it's the ultimate individual right--the right to kill other people to defend yourself or to kill to overthrow a corrupt government.
It strikes me that we really don't have that much to lose in this decision. The second amendment has been totally ignored by government for generations now. Thousands of blatantly unconstitutional laws have been enacted and enforced nationwide with no regard for the second amendment whatsoever. If they decide in our favor, that's fantastic. Then maybe we can start overturning some of those laws. If they decide against us, then things remain as they are. The reality is that the second amendment hasn't protected us. Our political action, money and voting power have been the only things keeping us from going the same route as the UK or Australia.
usmarine0352_2005
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Since SCOTUS re-wrote the question, do you suppose they already have their answer?
They just need to write it out and explain it?
They just need to write it out and explain it?
Well Regulated
Member
Militia service in the 18th century was compulsory and so was firearm ownership. The organization of the militia into various age groups was done as a means to facilitate fit military males. The average life span of an 18th British American was about 45 years of age, so there was not a time in a males life that he was not a member of the militia except thought death or disability. The Question Presented by the Court today is an erroneous question and merely perpetuates the false idea that there existed a class of citizens as understood at the time outside the militia. Allegiance and protection are reciprocal duties and every free male had a duty to render his service to his community for its protection.
Gator
Member
I'm glad they will hear the case, and I hope the lower court's decision is upheld, but, even if it is, I don't expect much to change. D.C. would be the only area affected.
legaleagle_45
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The problem is more aptly stated as an "incorporation issue". Note that the feds could not legislate the state militia out of existence.
I see such a result as more than a mere possibilty. If you read Miller very carefully, you will see the basis. If you read Aymette (the case cited by Miller) you will see that even more clearly.
If the militia was not and is not an issue, why did Miller tie the arms that are protected to those that have militia utility?
Either do I, but we live with what we got. Miller is the case that needs to be overruled to get there, though.
K-Romulus
Member
It could be that the discussion conference solidified the battle lines. I read somewhere on Al Gores' Internets that a USSC cert. vote on any matter wouldn't happen unless one side or the other felt confident it would prevail on its view of the question.
I don't think the court would look at it at all. There is no requirement in the constitution for congress to properly arm the militia, or the regular Army for that matter. All the constitution does is give them the power to. If they ruled like that the Air Force could sue congress for cutting the next generation fighter plane from the budget. People could sue congress when the strength of the Army dropped to a certain point. Do we want the courts deciding defense policy?
The state can have a militia, but the only power over it that the state truly has is the power to appoint the officers. When the militia is called up, it is troops. Which a state can't can't maintain in peacetime without the consent of congress.
I think using the militia clause to try to overturn 922 (o) would be a non-starter because nowhere does the constitution define how the unorganized militia is to be armed. It gave that power to congress, not the states. To the states it gave the power to appoint the officers.
I don't think an argument that basically said; a ban on adding new machine guns to the NFA list is unconstitutional because it infringes on my right to own a weapon that allows me to be a more effective member of the unorganized militia, will fail. Congress clearly has the power to decide how the militia will be armed and equipped, not any individual.
The argument has to be one based on the individual right to keep and bear arms.
Jeff
Cosmoline
Member
There was and there is such a class. All females, for one thing. And everyone over a certain age. The fact that the average life span in the 18th century was XY does not mean anything. I don't want my RKBA turning on whether or not the average colonial Joe lived to be fifty or forty. So the fact that the question presented looks specifically to someone OUTSIDE the militia is a good sign. I don't want this to be about the @#$@ militia. To hades with the militia.
Don't confuse rhetoric with reality. There was no conscription until the Civil War. And the militia was called up from among armed VOLUNTEERS, not conscripts. There was no requirement that everyone be armed. I'm not at all sure where you got that idea.
Because Miller was a disaster of an opinion upholding the worst piece of anti-gun legislation in US history. I don't want any part of Miller to survive, least of all the pen scratching nonsense about militia weaponry. Can't you see that was all just pretense? We all know the shotgun in question was a military weapon in WWI, but that didn't have any impact on the holding. They cited the militia clause as a way of making the Second a mere "group" right and rendering it impotent.
W.E.G.
Member
BINGO!
Thumper
Member
Are you kidding? You live in Illinois!
Has the Daley machine beaten you guys up so much that you're beyond hope? Hint: This decision affects you DIRECTLY.
Cosmoline
Member
It won't right away, but a good ruling will be the stepping stone. The next steps will be to attack other federal laws and to expand the scope of the Second to include the states via the 14th. Then Daley's machine will be in our sights ;-) Oh, that would be sweet.
I believe that it IS an individual right to preserve a collective power... whether or not the collective power (physically or actually) exists. And if said militia should need to exist, the arms that the individual has a right to would have utility in that militia... if it ever needs to exist, if it ever needs me (the individual) to be in it.
In other words, it is an individual right. Period. It is an individual right with the idea that the individual might have to use those arms in a militia. No sawed-off shotguns, no cannons, no suitcase nukes, no tanks, no heat-seeking missiles. It is an individual right, so that when the hoards of islamic fascists, the communists, or rogue Army generals hit the mainland, your state can say that YOU, Mr. American Citizen, need to show up with your rifle and your pistol and be prepared for training/fighting.
Olrocker
Member
Don't know if it's been mentioned, but on MSN.com they referred to the right to "keep and bear arms" (quotation marks were in article.)
Is that like the right to "freedom of speech" or "freedom of religion"? (sarcastic quotation marks by me.)
Is that like the right to "freedom of speech" or "freedom of religion"? (sarcastic quotation marks by me.)
Northslope Nimrod
Member
Do we have the votes?
As one poster mentioned earlier, we should have a solid 4 votes.
Thomas, Scalia, Alito and Roberts.
Where is our fifth vote? Do we have it? Can someone back it up with prior statements/positions of the jurist?
As soon as I'm convinced of one more vote, the better I'll sleep at night.
As one poster mentioned earlier, we should have a solid 4 votes.
Thomas, Scalia, Alito and Roberts.
Where is our fifth vote? Do we have it? Can someone back it up with prior statements/positions of the jurist?
As soon as I'm convinced of one more vote, the better I'll sleep at night.
legaleagle_45
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Correct... which is why some antifederalists wanted the 2nd Amend. Regardless of what congress does or fails to do, the 2nd amend would protect privately owned weapons which could be of use to the militia in the event of an emergency.
Incorrect, the state is in charge of them except solely when they are called into federal sevice.
Do not confuse the militia with the regular army.... totally different animal.
Madison would strongly disagree with you, as would Marshall and almost every other federalist. It was deemed a concurrent power. For example, Congress is given the power to tax. That does not mean the states do not have the power to tax.
Another argument for another day... Gura will avoid that issue. He is trying to convince Souter, Ginsburg, Kennedy... he is not trying to convince Thomas, Alito, Scalia and Roberts. An argument regarding machine guns will frighten the left and will make it more difficult to obtain a favorable ruling.
legaleagle_45
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BINGO!!
Unless the court rules that we have an individual right to keep and bear arms and incorporates the amendment to the states, thus wiping out 160 years of gun control at all levels of government, it will have no immediate effect in Illinois or anyplace else outside of DC.
To do that, they would have to overturn the part of Presser v. Illinois that says the second amendment is only a restriction on the federal government. That decision has stood for 121 years. I understand that Justice Scalia doesn't like to overturn previous decisions.
If we do get the decision we want, we will have to find a suitable plaintiff from Illinois and sue using Heller as a basis for the suit. Perhaps the guy in Willimet who was arrest for violating the city ordinance banning handguns in the city limits might have standing to sue, but since the state legislature passed a law preventing people who violated a local ordinance on possessing firearms from being prosecuted when they used the firearm in self defense a court would rule he had no standing, that the legislature had already given him relief.
Jeff
Cosmoline
Member
So the Second in your book is nothing but a justification for conscription? Some individual right. I have a right to be called up at any time by the state and need to bring my own rifle because they can't afford to give me one.
I don't know what the heck that is, but it's not a right. Not even a collective right. You've turned an individual right to keep and bear arms into a REQUIREMENT that citizens keep arms for the benefit of the state to be used if and only if asked for by the state.
Why should I have to show that they "could be of use" to the state militia? Moreover, who gets to decide what a state militia needs? THE STATE, obviously. So all they'd have to do is pass a law saying they no longer have an unorganized militia and no longer expect or want militiamen to bring their own private firearms. Bingo, no more RKBA. Your interpretation needs a lot of work.
DonP
Member
An update from SCOTUSBlog with a couple of very interesting paragraphs that will send the Brady Bunch into a whole new frenzy of fundraising appeals ... that will do absouktely no good at this point.
The Joyce Foundation and George Soros and company have already underwritten the Amicus brief, I'm sure.
Here is the way the Court phrased the granted issue:
“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 first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.
The Court did not mention any other issues that it might address as questions of its jurisdiction to reach the ultimate question: did the one individual who was found to have a right to sue — Dick Anthony Heller, a D.C. resident – have a right to challenge all three of the sections of the local law cited in the Court’s order, and, is the District of Columbia, as a federal enclave, even covered by the Second Amendment. While neither of those issues is posed in the grant order, the Court may have to be satisfied that the answer to both is affirmative before it would move on to the substantive question about the scope of any right protected by the Amendment.
The D.C. Circuit ruled that the Amendment does apply to the District because of its federal status, subject to all provisions of the Constitution. At this point, therefore, it appears that the Court’s review may not reach a major question — does the Second Amendment also protect individual rights against state and local government gun control laws? But a ruling by the Court recognizing an individual right to have a gun almost surely would lead to new test cases on whether to extend the Amendment’s guarantee so that it applied to state and local laws, too. The Court last confronted that issue in Presser v. illinois, in 1886, finding that the Amendment was not binding on the states.
Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right.
One of the interesting subsets of the question the Court will be confronting is whether the 1939 case of U.S. v. Miller is a precedent for what the Second Amendment means — individual or collective right. If that decision did find in favor of a collective right, the current Court would have to decide whether this was a binding precedent, or whether it should be overruled. Chief Justice John G. Roberts, Jr., has already taken a stand on that question. At his nomination hearing before the Senate Judiciary Committee, he said that “the Miller case sidestepped” the issue of whether the Amendment protected a collective or an individual right. He added: “An argument was made back in 1939 that this provides only a collective right, and the Court didn’t address that….So people try to read into the tea leaves about Miller and what would come out on this issue, but that’s still very much an open issue.”
The local law at issue in Heller has been discussed widely as a sweeping ban on private possession or use of handguns. But the Court order granting review took it a step further: the one section that will be at issue that goes beyond handguns is the provision that requires that any gun kept at home be unloaded and disassembled, or at least be locked. Thus, that provision also applies to rifles and shotguns kept at home, in terms of whether those weapons would remain “functional” in time of emergency if that provision were upheld. That part of the order appeared to widen the inquiry in a way that the local residents who challenged the law had wanted.
The Joyce Foundation and George Soros and company have already underwritten the Amicus brief, I'm sure.
Here is the way the Court phrased the granted issue:
“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 first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.
The Court did not mention any other issues that it might address as questions of its jurisdiction to reach the ultimate question: did the one individual who was found to have a right to sue — Dick Anthony Heller, a D.C. resident – have a right to challenge all three of the sections of the local law cited in the Court’s order, and, is the District of Columbia, as a federal enclave, even covered by the Second Amendment. While neither of those issues is posed in the grant order, the Court may have to be satisfied that the answer to both is affirmative before it would move on to the substantive question about the scope of any right protected by the Amendment.
The D.C. Circuit ruled that the Amendment does apply to the District because of its federal status, subject to all provisions of the Constitution. At this point, therefore, it appears that the Court’s review may not reach a major question — does the Second Amendment also protect individual rights against state and local government gun control laws? But a ruling by the Court recognizing an individual right to have a gun almost surely would lead to new test cases on whether to extend the Amendment’s guarantee so that it applied to state and local laws, too. The Court last confronted that issue in Presser v. illinois, in 1886, finding that the Amendment was not binding on the states.
Some observers who read the Court’s order closely may suggest that the Court is already inclined toward an “individual rights” interpretation of the Second Amendment. That is because the order asks whether the three provisions of the D.C. gun control law violate “the Second Amendment rights of individuals.” But that phrasing may reveal very little about whether the Amendment embraces an individual right to have a gun for private use. Only individuals, of course, would be serving in the militia, and there is no doubt that the Second Amendment provides those individuals a right to have a gun for that type of service. The question the Court will be deciding is, if there are individuals who want to keep pistols for use at home, does the Second Amendment guarantee them that right. Just because the Second Amendment protects some individual right does not settle the nature of that right.
One of the interesting subsets of the question the Court will be confronting is whether the 1939 case of U.S. v. Miller is a precedent for what the Second Amendment means — individual or collective right. If that decision did find in favor of a collective right, the current Court would have to decide whether this was a binding precedent, or whether it should be overruled. Chief Justice John G. Roberts, Jr., has already taken a stand on that question. At his nomination hearing before the Senate Judiciary Committee, he said that “the Miller case sidestepped” the issue of whether the Amendment protected a collective or an individual right. He added: “An argument was made back in 1939 that this provides only a collective right, and the Court didn’t address that….So people try to read into the tea leaves about Miller and what would come out on this issue, but that’s still very much an open issue.”
The local law at issue in Heller has been discussed widely as a sweeping ban on private possession or use of handguns. But the Court order granting review took it a step further: the one section that will be at issue that goes beyond handguns is the provision that requires that any gun kept at home be unloaded and disassembled, or at least be locked. Thus, that provision also applies to rifles and shotguns kept at home, in terms of whether those weapons would remain “functional” in time of emergency if that provision were upheld. That part of the order appeared to widen the inquiry in a way that the local residents who challenged the law had wanted.
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