Supreme Court to Hear DC Case

[CannonFodder]

You mean I could have a living gun? COOL!

 

[Gene_WI]

"If the case is upheld we will all die a horrible death as gun owners rampage through the streets, shooting indescriminantly. Then the gun will come alive and turn on the gun owners. After that the planet will plunge into the sun."

Why just yesterday a 17rd glock mag came to life, the little bugger jumped off the table chased our cats around and started trying to turn on the stove. Good thing I was able to stop it with a well placed frying pan blow...

 

[usmarine0352_2005]

Since not too many people have answered this:

Since SCOTUS re-wrote the question, do you suppose they already have their answer?

They just need to write it out and explain it?

 

[legaleagle_45]

No, not bingo. An "individual right" to serve some collective power is not a right at all.

Tell that to all those people protesting the military's "don't ask, don't tell" policy.

A requirement to serve is not a right.

But the disqualification from the general duty to serve may indeed be objectionable. Consider the exclusion of blacks from jury service.

True, and what keeps a state from deciding it no longer needs to have a militia?

Nothing... which raises the issue of incorporation.

If the unorganized militia code for a state is repealed, and the similar provisions at the federal level are repealed--how can there be a RKBA under your interpretation?

First let me state for the record... it is not my interpretation of the 2nd. It is my interpretation of Miller and Aymette... both of which are in contradistinction to what I believe the proper interpretation of the 2nd. Under such interpretation, the feds would still be prevented from violating the RKBA, the states would not. A classic incorporation issue.

In other words, your interpretation makes a constitutional right dependant on a series of archaic statutes.

What do you think Miller did with this language:

WITH OBVIOUS PURPOSE TO ASSURE THE CONTINUATION AND RENDER POSSIBLE THE EFFECTIVENESS OF SUCH FORCES THE DECLARATION AND GUARANTEE OF THE SECOND AMENDMENT WERE MADE. IT MUST
BE INTERPRETED AND APPLIED WITH THAT END IN VIEW.

 

[Davo]

From Fox News http://www.foxnews.com/story/0,2933,312338,00.html
Supreme Court Will Decide Challenge to District of Columbia Handgun Ban
Tuesday, November 20, 2007

WASHINGTON — The Supreme Court said Tuesday it will decide whether the District of Columbia can ban handguns, a case that could produce the most in-depth examination of the constitutional right to "keep and bear arms" in nearly 70 years.

The justices' decision to hear the case could make the divisive debate over guns an issue in the 2008 presidential and congressional elections.

The government of Washington, D.C., is asking the court to uphold its 31-year ban on handgun ownership in the face of a federal appeals court ruling that struck down the ban as incompatible with the Second Amendment. Tuesday's announcement was widely expected, especially after both the District and the man who challenged the handgun ban asked for the high court review.

The main issue before the justices is whether the Second Amendment of the Constitution protects an individual's right to own guns or instead merely sets forth the collective right of states to maintain militias. The former interpretation would permit fewer restrictions on gun ownership.

Gun-control advocates say the Second amendment was intended to insure that states could maintain militias, a response to 18th century fears of an all-powerful national government. Gun rights proponents contend the amendment gives individuals the right to keep guns for private uses, including self-defense.

Alan Gura, a lawyer for the D.C. residents who challenged the ban, said he was pleased that the justices were considering the case.

"We believe the Supreme Court will acknowledge that, while the use of guns can be regulated, a complete prohibition on all functional firearms is too extreme," Gura said. "It's time to end this unconstitutional disaster. It's time to restore a basic freedom to all Washington residents."

Paul Helmke, president of the Brady Center to Prevent Gun Violence, said the Supreme Court should "reverse a clearly erroneous decision and make it clear that the Constitution does not prevent communities from having the gun laws they believe are needed to protect public safety."

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, when the court ruled that a sawed-off shotgun was not a weapon that would be used in a militia. Chief Justice John Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."

The Second Amendment reads: "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

Washington banned handguns in 1976, saying it was designed to reduce violent crime in the nation's capital.

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

The District is making several arguments in defense of the restriction, including claiming that the Second Amendment involves militia service. It also said the ban is constitutional because it limits the choice of firearms, but does not prohibit residents from owning any guns at all. Rifles and shotguns are legal, if kept under lock or disassembled. Businesses may have guns for protection.

Chicago has a similar handgun ban, but few other gun-control laws are as strict as the District's.

Four states — Hawaii, Illinois, Maryland and New York — urged the Supreme Court to take the case because broad application of the appeals court ruling would threaten "all federal and state laws restricting access to firearms."

Dick Anthony Heller, an armed security guard, sued the District after it rejected his application to keep a handgun at home for protection.

The laws in question in the case do not "merely regulate the possession of firearms," Heller said. Instead, they "amount to a complete prohibition of the possession of all functional firearms within the home."

If the Second Amendment gives individuals the right to have guns, "the laws must yield," he said.

Opponents say the ban plainly has not worked because guns still are readily available, through legal and illegal means. Although the city's homicide rate has declined dramatically since peaking in the early 1990s, Washington still ranks among the nation's highest murder cities, with 169 killings in 2006.

The U.S. Court Appeals for the District of Columbia Circuit ruled 2-1 for Heller in March. Judge Laurence Silberman said reasonable regulations still could be permitted, but said the ban went too far.

The Bush administration, which has endorsed individual gun-ownership rights, has yet to weigh in on this case.

Arguments will be heard early next year.

The case is District of Columbia v. Heller, 07-290.



Ill be watching....

 

[BridgeWalker]

Well now, this is very timely for me personally. I just registered for my law school's seminar on gun control. Rumor has it is taught by a pro-gun prof, who send his students to a local range to get informed.

This is gonna be a *very* interesting term.

 

[illspirit]

Okay, so the general consensus from a few pages back is that we can't directly lobby the Supreme Court. What we can do, however, is start writing to our Governors and various elected things at the State level urging them to have the Attorneys General file amici curiae in support of Heller.

Four States have already filed on the side of DC. We should probably be trying to convince as many other States as possible do the opposite!

 

[Fburgtx]

One other thing, do most of you think this will help the Republicans in the 2008 race??? I mean, it should help with voter turnout of gunowners when the presidential candidates start weighing in on this.

 

[Outlaws]

Does anyone else find it very fitting that Live Free or Die Hard came to DVD today?

 

[Cosmoline]

But the disqualification from the general duty to serve may indeed be objectionable. Consider the exclusion of blacks from jury service.

The constitutional objection there lies in the defendant's right to equal protection and to have a representative jury.

The gays in the military issue is political. There is no legal right to serve the military and there is certainly no Constitutional right to serve in the military.

What do you think Miller did with this language:

With that language Miller gave the Antis support for the collective right theory. I have no idea why anyone would support it.

As far as what Miller *actually* means, who knows. It's a very poorly worded opinion. Though it seems to favor their side more than ours. At this point the case is so old and has so many tire tracks on it it may as well be tossed, and I'm really hoping the Court finally does just that.

the feds would still be prevented from violating the RKBA, the states would not

But Miller let them violate it. And nothing in Miller would keep Congress from repealing the various federal laws which reference the militia.

 

[everallm]

With regard to the earlier question about how the press are reacting to the announcement.

Initially VERY muted, "Just the facts ma'am" but the squealing quotient is suddenly strating to ramp up. Just came across the first "Well what's to stop them from owning an ICBM with a 20 megaton warhead"

Hey, it's the run up to Turkey Day, I expect a spike in righteous indignation by tomorrow morning tailing off rapidly by lunch time as the great annual migration to Grandma's starts.

The trytophan induced food coma will keep the wailing and gnashing of teeth suppressed until middle of next week. Then, with a bit of luck Paris Hilton will be back in the news when she discovers, form a humanitarian perspective that Rwanda and Aruba are different countries.

At that point this falls into background noise until the pols start to pick it up when the nominations get tight. Hillary as a staunch individualist.....

 

[Jamie C.]

“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?”

Seems to me that the court already admits that the 2nd is an individual right, and want to look at whether or not D.C.'s laws violate that right.

But then, I'm no lawyer and am certainly not well-versed in "legalese"... so maybe it's just wishful thinking that's coloring my take on the court's rewrite of the question.


J.C.

 

[Cosmoline]

Yeah you can't read too much into the phrasing of the question. The fat lady won't sing till next summer.

 

[legaleagle_45]

The constitutional objection there lies in the defendant's right to equal protection and to have a representative jury.

Not according to SCOTUS. The defendant has the right, but so also does the individual who is wrongfully excluded.

There is no legal right to serve the military and there is certainly no Constitutional right to serve in the military.

Take a look at the 2nd as originally proposed by Madison.... espescially the CO clause. There may indeed be a right to "not be arbitrarily excluded from militia duty for reasons not reasonably related to the individuals ability to perform militia functions".

With that language Miller gave the Antis support for the collective right theory.

Specifically, the sophisticated collective rights thesis. Yet the outright rejection of same takes away some very valuable tools... arguments. For example, the limitation of the individual right to members of the well regulated militia and to protect only the weapons they actually use in the well regulated militia is not supported either logically or historically. Essentially, the proper reading of Miller and Aymette provides for a very broad individual right whereby just about everyone has a right to possess militia useful arms... free from federal interference.

I have no idea why anyone would support it

It is not a matter of supporting it... it is a matter of recognizing it for what it actually is and marshalling the arguments appropriately.... instead of trying to forget that Miller actually said that.

 

[gopguy]

BFA files in support of Heller.

Buckeye Firearms files brief in support of the Heller suit against Washington DC.

http://www.buckeyefirearms.org/article4053.html

 

[patentmike]

“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?”

Here's my amicus brief: Yes.

 

[SuperNaut]

Certainly brief!

 

[AndyC]

Something I rediscovered, which is interesting in light of the argument over collective vs. individual right:

In United States v. Verdugo-Urquidez, the United States Supreme Court has declared that the use of the term “the people” as used in the Second Amendment is consistent with its use in the First Amendment.

“’[T]he people’ protected by . . . the first and second amendments. . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

What the Court is telling us is that the rights protected by both the First and Second Amendments are rights “of the of the people” and not of the state, in sum, individual rights.

Source: Dangerous Women: Feminism, Self Defense and Civil Rights - Robert L. Barrow and Dr. Gary Mauser

 

[Winchester 73]

I don't forsee a narrow decision.
Heller is going to win this case.
Scalia,Thomas,Alito,Roberts and Kennedy are going to be in our camp.
Ginsberg,Souder and Breyer may be on our side.
I see only Stevens definitely voting the DC collective agenda.
Hopefully, the decision will not be so narrow as to not firmly establish the 2A an as individual God given defensive right for the indefinite future.
That's the way the founder's envisioned it.A God given inalienable right to defend ourselves by what ever means possible.The 2A simply affirming this right,not granting it.

 

[Jeff White]

Not according to SCOTUS. The defendant has the right, but so also does the individual who is wrongfully excluded.

I have right to serve on a jury...KEWL...does this mean that because I was a police officer for 22 years I can't be excluded. I'd love to sit on a jury. The courthouse here doesn't even put police officers and their families into the list of people to be called for jury duty because no lawyer wants us on a jury. Wouldn't that really raise the bar so that it would be hard to exclude anyone from a jury unless you could prove that person was unfit to render a fair verdict.

Are we going to have separate hearings for each juror removed with the juror able to present evidence as to why he or she should be allowed to hear the case?

Take a look at the 2nd as originally proposed by Madison.... espescially the CO clause. There may indeed be a right to "not be arbitrarily excluded from militia duty for reasons not reasonably related to the individuals ability to perform militia functions".

But Madison's original language didn't make it into the constitution. How is his original language more valid then the language that actually made it into the constitution? Isn't that like saying that sections of laws that are stripped out in conference committee should be looked at as carrying the same weight as the actual final law?

I don't think there is any right to serve in the armed forces. The supreme court has repeatedly ruled that the armed forces are unique and many of the same protections that citizens enjoy can be denied to members of the armed forces. I think any ruling that everyone has a right to serve in the armed services would nullify all those other rulings.

Jeff

 

[ArmedBear]

Amicus briefs are common in high-profile cases. However, amicus boxers are a bit more rare.

 

[Cosmoline]

the proper reading of Miller and Aymette provides for a very broad individual right whereby just about everyone has a right to possess militia useful arms... free from federal interference.

Even if you could get a court to agree with that, it would be incredibly easy for the feds or state in question to simply erase the militia. The militia is a creature of statute and it's controlled by the government. Building the RKBA on that foundation is building on wet sand.

it is a matter of recognizing it for what it actually is and marshalling the arguments appropriately.... instead of trying to forget that Miller actually said that.

The question before the court is specifically about an individual who is NOT part of the militia. So if we take the militia view of Miller as binding authority then the case is already lost. No membership in a militia means no right to keep and bear arms, case closed. Parker/Heller and Emmerson do not turn on the individual's membership in a militia, and that's as it should be. To the extent the dicta in Miller stands for the proposition that the right turns on such membership, it must be rejected. If it isn't rejected we're sunk, no matter what strange spin we might want to put on it (ie it means we can own RPG's, tanks, etc). Reliance on militia membership = the collective rights approach.

There may indeed be a right to "not be arbitrarily excluded from militia duty for reasons not reasonably related to the individuals ability to perform militia functions".

Assuming this is true, so what? The government can still decide to fold up its militia, as most state governments have now done. And repealing the various "unorganized" militias referenced in statutes is a matter of passing a law. Lord knows nobody has actually used those laws in generations. If you've made the scope of the Second depend on the scope of these militia laws, that's the end of the game.

 

[ieszu]

First off, I hope I am wrong and that freedom actually does prevail.

However, when the Supreme Court hears the case, there are many scenarios. First off, they could overturn the DC gun ban and "incorporate it"... means that the rest of the country would have to treat the 2A with as much reverence as the 1A. Or they could go the other way, and rule that the DC ban is constitutional, and incorporate it.

IF they rule in our favor, but they do not incorporate it, they leave it open for another case to rise up through the ranks from a different Circuit Court, and the decision may be pushed off until the next president.... which could go very badly for us.

So I am just warning that it is not a Yes/No case.... there is a gray area.

 

[Tyris]

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

Silly DC council members.. I've always found that handguns are at their best in purely urban environments.

-T

 

[legaleagle_45]

I have right to serve on a jury...KEWL...does this mean that because I was a police officer for 22 years I can't be excluded. I'd love to sit on a jury.

No, but you have a right not to be arbitrarily excluded for jury duty for reasons not reasonably related to your ability to perform your duties as a juror.

The courthouse here doesn't even put police officers and their families into the list of people to be called for jury duty because no lawyer wants us on a jury.

Your rights are being violated, IMHO. Of course, you could be properly excluded from any case involvoing the police or crime. However, your ability to serve upon a simple contract case should not be comprimised.

Wouldn't that really raise the bar so that it would be hard to exclude anyone from a jury unless you could prove that person was unfit to render a fair verdict.

No, all that must be shown is some rationale that is reasonably related to the exclusion request.

But Madison's original language didn't make it into the constitution.

And the reasons why it did not are also very enlightening...

Isn't that like saying that sections of laws that are stripped out in conference committee should be looked at as carrying the same weight as the actual final law?

And if the reasons for stripping it out, was because of fear that the government may use it as a ruse to exclude people from service arbitrarily?

AUGUST 17, 1789

Mr. Gerry — This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms.

I don't think there is any right to serve in the armed forces. The supreme court has repeatedly ruled that the armed forces are unique and many of the same protections that citizens enjoy can be denied to members of the armed forces.

You are right, but do not confuse the militia with the regular armed force... totally different critter.