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  #1  
Old January 9th, 2008, 01:34 PM
johnlee johnlee is offline
John Lee
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United States Supreme Court To Rule On Second Amendment

My latest issue of American Rifleman said that the Supreme Court has agreed to review District of Columbia v. Heller.

I was stunned. But I checked the Court's docket and there it is:

http://www.supremecourtus.gov/docket/07-290.htm

In filing their respective petitions for writ of certiorari, the parties framed the issue in their own ways (how one frames the issue often decides the outcome). Here is how the Supreme Court framed the issue when it granted cert:

Quote:
Petition GRANTED limited to the following question: Whether the following provisions - D.C. Code [Sections] 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?
For those of you unfamiliar with Heller, check out this site for some background info of the case:

http://www.scotusblog.com/wp/uncateg...e-on-gun-case/

Time will tell how the Court rules on this one, as well as how narrow or sweeping its decision will be.

I'm excited.
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  #2  
Old January 9th, 2008, 01:41 PM
traveltoad traveltoad is offline
Aaron Shrier
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I had heard that that the court may hear arguements (if that is the correct way to state it).

I am still unclear how it would have any impact outside of DC. I do see an impact in states or perhaps cities that have eliminated a citizens right to bear arms... would a reversal have a farther reaching impact?
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  #3  
Old January 11th, 2008, 04:58 AM
JMH JMH is offline
Jonathan Hanson
 
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I think a reversal would have an enormous impact on the entire second amendment issue.

Let's hope the justices finally codify what is obvious to anyone who reads the second amendment with an open mind: The clause that refers to a "well regulated militia" was intended by the architects as justification, not precondition, for the right of the people to keep and bear arms.
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  #4  
Old January 11th, 2008, 08:39 AM
JSQ JSQ is offline
Jack Quinlan
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Tom Kimura and I have been talking about this case quite a bit.

I'm excited the court is even hearing it.
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  #5  
Old January 11th, 2008, 08:43 AM
JSQ JSQ is offline
Jack Quinlan
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Jan 4 2008 Letter from counsel for the petitioners proposing a Lodging of Council Session Transcripts as legislative history of the laws at issue, and copies of local municipal laws regulating the firing of guns in the 19th Centry as history of regulation of firearms in the District of Columbia.

Where can I read these?
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  #6  
Old January 11th, 2008, 08:45 AM
JSQ JSQ is offline
Jack Quinlan
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I hope that the court specifically addresses the concept of a "personal right" vs a "collective right" which John told me is being drawn as a distinction in arguing for the ban.
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  #7  
Old January 11th, 2008, 09:16 AM
johnlee johnlee is offline
John Lee
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Here's the text of District of Columbia v. Heller:

http://pacer.cadc.uscourts.gov/docs/...3/04-7041a.pdf

Peep footnote 4 of Heller. The majority view among the United States Courts of Appeals is that the Second Amendment guarantees a collective right and not an individual right to keep and bear arms. Heller rejects that view and interprets the Second Amendment as guaranteeing the individual right to keep and bear arms.

Heller is a D.C. Circuit case and represents the minority view. The other U.S. Court of Appeals case that represents the individual-right model is United States v. Emerson, a Fifth Circuit case:

http://www.ca5.uscourts.gov/opinions...31.cr0.wpd.pdf

Because Heller and Emerson follow the minority view, they do a good job of discussing the three most common interpretations of the Second Amendment.

The rule in the Ninth Circuit, the Circuit in which we live, is Silveira v. Lockyer:

http://fl1.findlaw.com/news.findlaw....r120502opn.pdf

Silveira adopts the collective-right model. That is, Silveira holds that the Second Amendment guarantees only a collective right to keep and bear arms and there is no individual right. This is the majority view among the U.S. Courts of Appeals.

These opinions can be difficult for the layman to read. They're full of footnotes and citations that seem to go on forever, and a good amount of the cases relate to other legal issues. So it's easy for the layman to get bogged down in irrelevancies. However, I think these cases make for good reading and I recommend all interested gun owners read them.

While several U.S. Courts of Appeals have ruled on the meaning of the Second Amendment, the Supreme Court has remained silent on this question for several decades, probably because it's too controversial an issue. In fact, it's a potentially explosive issue. The Supreme Court has hitherto denied cert in these cases, even though a split in the Courts of Appeals is one of the best reasons for the Supreme Court to grant cert. (Obviously, it's not a good thing if the Constitution means one thing in one part of the United States and another thing in a different part of the United States.) I guess the Second Amendment issue has reached the point where the Supreme Court feels it must rule on it.

How the Supreme Court will rule I don't know. It's pretty certain Antonin Scalia and Clarence Thomas will rule for the individual-right interpretation. That's two Justices right there. All we need is three more and we have a majority.

I remain optimistic and look forward to the Court's ruling. This case had better not get mooted or something. If that happens I'll be pissed.
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  #8  
Old January 11th, 2008, 06:29 PM
johnlee johnlee is offline
John Lee
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Because we have a Republican President in power right now, the official stance of the United States Department of Justice (which is part of the executive branch of the federal government and not the judicial branch) regarding the Second Amendment is that it guarantees an individual (and not a collective) right to keep and bear arms:

http://www.usdoj.gov/olc/secondamendment2.pdf

The legal and historical analysis in this memorandum opinion mirrors the analysis in Heller and Emerson, although the analysis is more lengthy and in-depth in some areas and less in others. This memorandum is far easier for the layman to read and understand than the Courts of Appeals decisions because the memo is written in plain English rather than legalese, the citations are in the footnotes rather than mixed with the text, and the facts and collateral legal questions inherent to any legal case are not present here. If you're interested about this issue but couldn't get through the court opinions, take a look at the DOJ memo.

Again, this memo merely represents the view of the current President. This could easily change in future years. And the executive branch merely executes the Constitution. It does not interpret it. That is the job of the judicial branch.

We'll see in a few months how this goes down.
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  #9  
Old January 11th, 2008, 06:45 PM
greghirst greghirst is offline
Greg Hirst
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I also read this was on the docket-it needs to be decided once and for all.
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  #10  
Old January 12th, 2008, 09:28 AM
traveltoad traveltoad is offline
Aaron Shrier
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So is the "individual" vs. "collective" arguement rooted in the language surrounding "militia" and "individual" in the Second Amendment?
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  #11  
Old January 12th, 2008, 10:01 AM
johnlee johnlee is offline
John Lee
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Read the opinions.

Read the Second Amendment too. There's no "individual" wording anywhere in the text.
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  #12  
Old January 12th, 2008, 10:02 AM
JMH JMH is offline
Jonathan Hanson
 
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Aaron, it seems to be the "well-regulated militia" clause that has fueled so many anti-second-amendment arguments. In no other amendment where the word "people" is used has anyone argued that the wording does not specify an individual right. You don't have to be a member of a well-regulated religion to practice freedom of religion, nor do you have to be a member of a well-regulated debating team to practice freedom of speech. It's that pesky militia bit that I believe has caused so much trouble.

But if you read the wording, archaic as it is, the well-regulated militia clause is clearly only a listed justification for the right of all people - i.e. individuals - to keep and bear arms. Otherwise it would have specified that only members of the militia can bear arms.

Even so, I believe the accepted definition of the militia at that time was every healthy adult male. So, if those against individual rights to bear arms wanted to be constitutionally correct using the militia argument, they would argue that only women and infirm men have no right to bear arms.

But I'm no Supreme Court justice . . .
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  #13  
Old January 12th, 2008, 05:13 PM
johnlee johnlee is offline
John Lee
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Here's an example of how explosive the Second Amendment issue can be. I was brushing up on the Ninth Circuit's caselaw on the Second Amendment and found Nordyke v. King:

http://www.ca9.uscourts.gov/ca9/newo...df?openelement


The Ninth Circuit ruled on Nordyke on February 18, 2003, a few months after it decided Silveira v. Lockyer (which was decided December 5, 2002).

If you read Nordyke, you can see the judges fighting it out. I don't think I've ever seen the judges, who are normally deferential to one another, duking it out like this. It's hilarious.

Peep footnote 4 of Nordyke:

Quote:
We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court’s holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.

However, we feel that the Silveira panel’s exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: “[W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right.” Silveira v. Lockyer, 312 F.3d 1094 (9th Cir. 2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.

There was simply no need for the Silveira panel’s broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit’s holding in Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court’s holding in Hickman.

Therefore, despite the burgeoning legal scholarship supporting the “individual rights” theory as well as the Fifth Circuit’s holding in Emerson, the Silveira panel’s decision to re-examine the scope and purpose of the Second Amendment was improper. Because “only the court sitting en banc may overrule a prior decision of the court,” Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993), the Silveira panel was bound by Hickman, and its rather lengthy re-consideration of Hickman was neither warranted nor constitutes the binding law of this circuit. Accordingly, we ignore the Silveira panel’s unnecessary historical disquisition as the dicta that it is and consider ourselves bound only by the framework set forth in Hickman.

Silveira's Second Amendment analysis was was unpersuasive, unnecessary, unwarranted, and improper--a digression that does not constitute the binding law of the Ninth Circuit? Oh man, I'm dying here. That's awesome. Judges Reinhardt and Fisher, you have just been bitch slapped. Big time.

Judge Gould in his Nordyke concurrence states:

Quote:
Our panel is bound by Hickman, and we cannot reach the merits of Nordyke’s challenge to Second Amendment. But the holding of Hickman can be discarded by our court en banc or can be rejected by the Supreme Court if it decides to visit the issue of what substantive rights are safeguarded by the Second Amendment.

This is a ballsy statement by Judge Gould. I'm not even sure it's proper. It's basically telling the appellants that they lost the case, but inviting them to request en banc review by the Ninth Circuit and ask the Ninth Circuit to overturn Hickman. It's also a veiled invitation to appeal to the United States Supreme Court.

Another invitation to the Supreme Court by Judge Gould in his concurrence:

Quote:
It does not follow that such a right is absolute. The Bill of Rights, though robust, must be interpreted in light of societal needs. For example, even the broad protections of free speech in the First Amendment do not protect a person who “falsely shout[s] fire in a theatre and caus[es] a panic.” Schenck v. U.S., 249 U.S. 47, 52 (1919) (Holmes, J.). Similarly, the Fourth Amendment’s general requirement of a warrant for a search permits exceptions for exigent circumstances. See Payton v. New York, 445 U.S. 573 (1980). And though recognizing an individual right to keep and bear arms, government can within due bounds regulate ownership or use of weapons for the public good. We would make progress if the Supreme Court were to establish a doctrine of an individual Second Amendment right subject to reasonable government regulation. The decisional chips would thereafter fall where they may on the basis of particular cases and the delicate balance of their precise facts, aided by the complementary efforts of lawyers, scholars and judges. The law would best put aside extreme positions and adopt an assessment of reasonableness of gun regulation, for this would place us on the right track.

The appellants in Nordyke requested en banc review by the Ninth Circuit, but were denied:

http://www.ca9.uscourts.gov/coa/newo...df?openelement

This order is even funnier than the original Nordyke opinion.

Judge Kleinfeld's dissent from the order denying en banc review:

Quote:
Our court and the Fifth Circuit take opposite views. In United States v. Emerson, the Fifth Circuit reads the Second Amendment to establish an individual right to keep and bear arms. Our court reads it not to. Our court takes what to me is a position verging on droll legal humor, that the right is a “collective” right belonging to state government, meaning that it is enforceable only by the state, even when the state is the violator.

...

Some people think that the Second Amendment is an outdated relic of an earlier time. Doubtless some also think that constitutional protections of other rights are outdated relics of earlier times. We The People own those rights regardless, unless and until We The People repeal them. For those who believe it to be outdated, the Second Amendment provides a good test of whether their allegiance is really to the Constitution of the United States, or only to their preferences in public policies and audiences. The Constitution is law, not vague aspirations, and we are obligated to protect, defend, and apply it. If the Second Amendment were truly an outdated relic, the Constitution provides a method for repeal. The Constitution does not furnish the federal courts with an eraser.

Imagine talking about your colleagues like that. In public. In print. It's hilarious. Five Ninth Circuit judges (Gould, O'Scannlain, Kleinfeld, Tallman, and Bea) dissented against the denial of en banc review in Nordyke, but in a separate dissent. I guess Judge Kleinfeld's words were too hot for TV.

You can see that the Second Amendment is a very divisive issue. I daresay this could be bigger than abortion or the death penalty.

I can't wait for the Supreme Court to rule on this.
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  #14  
Old January 13th, 2008, 04:51 PM
JSQ JSQ is offline
Jack Quinlan
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Just awesome.

I'm hoping that what ever divisions take hold in our current SC produce every bit as much drama and posturing. But in the end I hope that our consitutional rights are made more explicit and society changes accordingly.
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  #15  
Old January 14th, 2008, 12:57 PM
traveltoad traveltoad is offline
Aaron Shrier
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I'm not sure if I should apologize for my moronic questions or try to redeem myself with a more intelligent one. Both?
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  #16  
Old January 14th, 2008, 05:11 PM
johnlee johnlee is offline
John Lee
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OK, this gets even better.

Peep the site of Gura & Possesky, the firm representing Heller in the Supreme Court:

http://www.gurapossessky.com/news/parker/pleadings.html

There are many links there to pdfs of amicus briefs filed in the US Supreme Court. The list of amici there is pretty funny.

The American Jewish Committee? The Anti-Defamation League? Central Conference of American Rabbis? American Jewish Congress? Union for Reform Judaism? Is this is a freedom of religion case? Or is it a Second Amendment case? I thought the Second Amendment dealt with guns. Wasn't it the First Amendment that deals with an establishment of religion or prohibiting the free exercise thereof?

National Association for the Advancement of Colored People? The NAACP Legal Defense & Education, Inc.? Is this an equal protection case? Have blacks or any other race been singled out for help or hindrance by the Second Amendment? Maybe Heller was black? Actually, the Mayor of DC is black. Perhaps the NAACP perceives Heller as a racist opinion?

"Professors of Criminal Justice"? Is this a Fourth Amendment case involving an unreasonable search or seizure of a firearm? Or perhaps this is a Due Process case involving sterilization of convicted felons who used a gun in a violent robbery? No. Is this a death penalty case involving a convicted felon who shot some people? No.

American Academy of Pediatrics? The Society for Adolescent Medicine? The Children's Defense Fund? This is getting better and better. Pediatricians suddenly have a stake in how the Supreme Court will rule on the Second Amendment's meaning?

The American Bar Association? That's odd. This case doesn't seem to deal with commercial speech by attorneys. It's about guns. Or at least I thought it was. Why would an organization like the ABA have an official position on guns or gun ownership? Will attorneys be affected more than the people at large if the Supreme Court rules that the people have a right to keep and bear arms?

I think the participation of these amici shows that, at a minimum, the liberals are circling the wagons. They can sense a showdown of major proportions brewing, and whether they are interested in the Second Amendment or not, they are going to form a united front to try to prevent the Supreme Court from ruling that the Second Amendment means what it says. If only to help out one another. This isn't crazy. These organizations have accomplished what they they were formed to do and set out to do in the past, lost sight of their goals, and now really have have nothing better to do other than be officious in other people's affairs. Now, their activities consist of basically making it a business to help out one another in liberal causes.

I can only imagine the flurry of panicked memos that circulated from the top of Liberal Central on down when the Supreme Court granted cert. I love it. I'm guessing the memos looked like this:


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  #17  
Old January 14th, 2008, 06:26 PM
skippy3k skippy3k is offline
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Keep asking, Aaron. You are speaking for some of us.
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  #18  
Old January 14th, 2008, 07:30 PM
traveltoad traveltoad is offline
Aaron Shrier
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Quote:
Originally Posted by johnlee
Because we have a Republican President in power right now, the official stance of the United States Department of Justice (which is part of the executive branch of the federal government and not the judicial branch) regarding the Second Amendment is that it guarantees an individual (and not a collective) right to keep and bear arms:

http://www.usdoj.gov/olc/secondamendment2.pdf

The legal and historical analysis in this memorandum opinion mirrors the analysis in Heller and Emerson, although the analysis is more lengthy and in-depth in some areas and less in others. This memorandum is far easier for the layman to read and understand than the Court of Appeal decisions because the memo is written in plain English rather than legalese, the citations are in the footnotes rather than mixed with the text, and the facts and collateral legal questions inherent to any legal case are not present here. If you're interested about this issue but couldn't get through the court opinions, take a look at the DOJ memo.

Again, this memo merely represents the view of the current President. This could easily change in future years. And the executive branch merely executes the Constitution. It does not interpret it. That is the job of the judicial branch.

We'll see in a few months how this goes down.

So it was this memorandum, and the stated individual right persepctive of the current President and Dept of Justice that has, at least in part, started this new wave of legal challenges?
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  #19  
Old January 15th, 2008, 08:10 AM
johnlee johnlee is offline
John Lee
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Aaron, if you had actually read the DOJ's memo, you would know that it cites to both the Ninth Circuit's decision in Silveira (holding that the Second Amendment protects a collective right) and the Fifth Circuit's decision in Emerson (holding that the Second Amendment protects an individual right).

If you are not interested in this matter, that is fine. But if you are interested in this matter and want to know more about it, then read the material. Heaven forbid you might have to read something. Really, it's not that hard. As I said previously, the court opinions can be difficult for the layman to read, but the DOJ memo is written in plain English and is easy to understand.

I'm happy to answer your questions if you actually read the material and have a particular question about something you actually read in the material. But I can tell by your questions that you haven't read anything and want the material spoon-fed to you.
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Old January 15th, 2008, 06:30 PM
johnlee johnlee is offline
John Lee
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Thumbs up

Oh man, this is disappointing.

The United States filed its amicus brief in Heller:

http://www.scotusblog.com/wp/wp-cont...ef-1-11-08.pdf

The United States is taking the position that the Second Amendment secures an individual right to keep and bear arms, but that the Supreme Court should apply only heightened scrutiny to laws that may violate the Second Amendment, and not the more Armageddon strict scrutiny standard that the Supreme Court has applied to laws governing other fundamental rights like freedom of speech, freedom of religion, and so on.

The United States summarizes its argument as follows:

Quote:
SUMMARY OF ARGUMENT

A. The court of appeals correctly held that the Second Amendment protects an individual right to possess firearms unrelated to militia operations. By its plain text, the Second Amendment secures a “right,” a term that the Constitution consistently uses to refer to individual freedoms rather than state prerogatives. The text also makes clear that the right is not limited to members of a select body (like today’s National Guard) but extends to “the people” generally. The Second Amendment’s placement within the Bill of Rights, and its use of a phrase (“the people”) that has acquired a settled meaning in surrounding constitutional provisions, reinforces the most natural reading of the Amendment’s text.

The Second Amendment’s prefatory language, which refers to the “necess[ity]” of a “well regulated Militia,” does not negate the Amendment’s operative guarantee. It was common in constitutional and statutory provisions at the time of the Framing for prefatory language to identify a goal or principle of wise governance narrower than the operative language used to achieve it. The logical connection between militia operations and a general right of private gun ownership was particularly clear when the Second Amendment was adopted, since the Framing-era “Militia” was not a select body like today’s National Guard, but instead comprised the free white male citizenry of fighting age, whose members were expected to bring their own weapons when called to service.

B. Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim. Like other provisions of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.

When, as here, a law directly limits the private possession of “Arms” in a way that has no grounding in Framing-era practice, the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff ’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction. Cf. Burdick v. Takushi, 504 U.S. 428, 434 (1992). Under that intermediate level of review, the “rigorousness” of the inquiry depends on the degree of the burden on protected conduct, and important regulatory interests are typically sufficient to justify reasonable restrictions. Ibid.

The court of appeals, by contrast, appears to have adopted a more categorical approach. The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of “Arms” that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review. Just as the Second Congress expressed judgments about what “Arms” were appropriate for certain members of the militia, Congress today retains discretion in regulating “Arms,” including those with military uses, in ways that further legitimate government interests. Under an appropriate standard of review, existing federal regulations, such as the prohibition on machineguns, readily pass constitutional muster.

C. Given that the D.C. Code provisions at issue ban a commonly-used and commonly-possessed firearm in a way that has no grounding in Framing-era practice, those provisions warrant close scrutiny under the analysis described above and may well fail such scrutiny. However, when a lower court has analyzed a constitutional question under a standard different from the one adopted by this Court, the Court’s customary practice is to remand to permit further consideration (and any appropriate fact finding or legal determinations) by the lower courts in the first instance. Several factors counsel in favor of following the Court’s customary practice here, particularly the lack of case law from this Court fleshing out the potentially relevant doctrines and subdoctrines that might inform the Second Amendment analysis. Accordingly, after taking the foundational steps discussed above, the better course would be to remand the case for further proceedings consistent with the Court’s opinion.

I'm disappointed the President took this position. I think the Supreme Court should find that the right to keep and bear arms is fundamental and therefore strict scrutiny should apply when a plaintiff challenges a gun law, just as it does when a plaintiff challenges a speech or religion law.

The United States' brief lists many gun laws that Congress has passed and a President has signed:

Quote:
1. Congress has enacted numerous laws governing the sale, transportation, and possession of various categories of firearms.

a. Congress has generally prohibited the private possession of particularly dangerous types of firearms, including certain types of handguns. Possession of machineguns is generally prohibited by 18 U.S.C. 922(o), and the definition of “machinegun,” see 18 U.S.C. 921(a)(23); 26 U.S.C. 5845(b), encompasses some weapons that fall within the D.C.-law definition of “pistol.” See p. 4, infra. A similar restriction as to “semiautomatic assault weapon[s]” was in effect until 2004. See 18 U.S.C. 922(v)(1) (repealed 2004 pursuant to preexisting sunset provision). Federal law also restricts the possession of firearms—including handguns—that, under specified circumstances, are undetectable by metal detectors or x-ray machines. See 18 U.S.C. 922(p) (2000 & Supp. V 2005).

b. Federal law also restricts the possession of firearms by various categories of individuals whom Congress has deemed unfit to possess such weapons. The most frequently applied provision generally prohibits the possession of firearms by any person “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. 922(g)(1). Section 922(g) also generally prohibits the possession of firearms by fugitives from justice; unlawful users of controlled substances; persons who have been adjudicated as mental defectives or committed to mental institutions; aliens illegally present within the United States; persons dishonorably discharged from the armed forces; persons who have renounced their United States citizenship; persons subject to restraining orders that include a finding that the individual is a credible threat to the physical safety of an intimate partner or child; and persons convicted of misdemeanor crimes of domestic violence (unless such convictions have been expunged, etc.). 18 U.S.C. 922(g)(2)-(9).

In addition, Congress has prohibited the private possession of firearms at particular locations. See, e.g., 18 U.S.C. 930 (2000 & Supp. V 2005) (federal government facilities); 40 U.S.C. 5104(e)(1)(A) (Supp. IV 2004) (Capitol Grounds and Capitol Buildings); 49 U.S.C. 46505(b)(1) (“concealed dangerous weapon” “when on, or attempting to get on, an aircraft”).

c. Federal law also regulates the manufacture, sale, and importation of firearms. The Gun Control Act of 1968 (GCA), Pub. L. No. 90-618, 82 Stat. 1213, prohibits any person from engaging in the business of importing, manufacturing, or dealing in firearms without a license. See 18 U.S.C. 923 (2000 & Supp. V 2005); see also 18 U.S.C. 922(a) (2000 & Supp. V 2005). The GCA also substantially restricts the importation of firearms and prohibits the receipt of firearms imported in violation of law. See 18 U.S.C. 922(l).

There are many federal gun laws listed there. I think it's safe to say that a good many of them would pass even strict scrutiny analysis by the Supreme Court. The right to keep and bear arms, like other rights in the Bill of Rights, is not absolute. No right is.

However, many other laws listed above might not pass strict scrutiny. The categorical ban on "machineguns" is one of them, and I can't help but think the Department of Justice is worried about that. "Machineguns" under federal law includes much more than weapons like the Maxim, MG42, Minimi, and M2. The legal definition of "machinegun" is far more broad, and includes rifles and carbines, regardless of action type, with a barrel less than 16" in length. "Machineguns" also includes shotguns, regardless of action type, with a barrel less than 18" in length. Are these really "machineguns" that law-abiding citizens should not be permitted to own? I don't think so. A more provocative question is whether law-abiding citizens should be allowed to own fully automatic pistols, rifles, carbines, and shotguns. This is, admittedly, a more difficult question. I say yes, but how the Court would rule on this one is anyone's guess.

The 1968 Gun Control Act is another law that might get shot down under a strict scrutiny review by the Supreme Court. The 1968 GCA bans the importation of many arms that lack "a legitimate sporting purpose", whatever that means. Pistols like the Walther TPH are not legal to import.

I'm no Supreme Court Justice, but as I see it, the Second Amendment protects an individual right. From that it follows (at least to me) that the type of "Arms" protected by the Second Amendment are personal arms. To my way of looking at things, this means personal weapons such as knives, swords, pistols, machine pistols, rifles, muskets, shotguns, and so on, regardless of action type. As I read the Second Amendment, it does not guarantee an individual the right to keep and bear crew-served weapons like true machineguns, RPGs, cannons, artillery pieces, tanks, battleships, chemical weapons, nukes, doomsday devices, etc.

I hope the Supreme Court rules that the Second Amendment protects a fundamental right of individuals, and uses the strict scrutiny standard when reviewing the DC gun laws in question.

Time will tell on this one.
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  #21  
Old January 15th, 2008, 09:02 PM
johnlee johnlee is offline
John Lee
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Some background info on how a case goes through the Supreme Court, from Wiki:

Quote:
Selection of cases

Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 7500 petitions for certiorari, of which approximately 150 are granted. In theory, each Justice's clerks write a brief for the Justice outlining the questions presented, and offering a recommendation as to whether certiorari should be granted; in practice, most Justices (all of the current court, except Justice Stevens) have their clerks participate in the cert pool.

During the Justices' regular conference, the Justices discuss the petititions, and grant certiorari in less than five percent of the cases filed. (During the 1980's and 1990's, the number of cases accepted and decided each term approached 150 per year; more recently, the number of cases granted has averaged well under 100 annually). Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the "discuss list"; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be "re-listed" for discussion at a later conference; this occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted.

The votes of four Justices at Conference (see Rule of four) will suffice to grant certiorari and place the case on the court's calendar. If the Supreme Court grants certiorari (or the certified question or other extraordinary writ), then a briefing schedule is arranged for the parties to submit their briefs in favor of or against a particular form of relief. During this time, an individual or group having an interest in a case but is not a party to the case may submit a motion to appear before the court as amicus curiae ("friend of the court"). Except for certain specific categories (such as lawyers for state and local governments) or where all parties to the case consent, it is in the Court's discretion whether such motions are granted.

The grant or denial of certiorari petitions by the Court are usually issued as one-sentence orders without explanation.

Cases that fall within the Court's original jurisdiction are initiated by filing a complaint directly with the Supreme Court, and normally are assigned to a special master appointed by the Court for the taking of evidence and making recommendations, after which the Court may accept briefs and hear oral arguments as in an appellate case.


Filing briefs

Before oral arguments, the parties to a case file legal briefs outlining their arguments. An amicus curiae may also submit a brief in support of a particular outcome in the case if the Court grants it permission. Formal rules govern every aspect of these briefs; Chief Justice William Rehnquist described the rules thus:
The rules direct what information must be included in a brief, describe the size of paper and type of print, and limit the number of pages. Even the colors of the covers of the briefs are specified: the petitioner's brief must have a blue cover and the respondent's must have a red cover. The Court also often receives briefs from amici curiae — friends of the Court — in particular cases, and these must have a green cover. This color-coding comes in very handy when you have a stack of eight or ten briefs in a particular case and can locate the brief you want by its color without having to read the covers of each.
Oral arguments

Thereafter, if the Court chooses to hold a hearing, each side has thirty minutes to present its case orally. In exceptional and controversial cases, however, the time limit may be extended. In the Court's early years, attorneys might argue a single case for hours or even days; but as the judicial workload increased, the time available for argument has been restricted. The late Chief Justice Rehnquist was noted for his especially strict enforcement of the argument time limits.

To file pleadings or to argue a case, an attorney must be a member of the bar of the Court. (The primary requirement for admission to the Bar is that the attorney must have been admitted to practice in the highest court of a state or territory for at least the past three years.) Justices are allowed to interrupt the attorney speaking in order to ask him or her questions, and particularly since the arrival of Justice Antonin Scalia in 1986, do so often.


Forming opinions

The conference: assignment of opinions

Immediately following oral arguments in a case, the Justices retreat in conference to discuss the points of law at issue in the case. No clerks are permitted to be present, which would make it exceedingly difficult for a justice without a firm grasp of the matters at hand to participate. At this conference, each justice - in order from most to least senior - states the basis on which he or she would decide the case.

Justice Scalia has professed frustration that there is little substantive discussion, while former Chief Justice Rehnquist wrote that this makes the conference more efficient. The votes are then tallied, and the opinion in the case is assigned: the most senior Justice voting in the majority (which is the Chief Justice if he is in the majority) makes the assignment. Likewise, if the Court is not unanimous, the senior dissenting justice assigns the writing of the dissenting opinion.

Circulating draft opinions and changing of views

The justice writing the opinion for the court will produce and circulate a draft opinion to the other justices. Each justice's law clerks may be involved in this phase. In today's Supreme Court, only Justices John Paul Stevens and Antonin Scalia write their own first drafts of their opinions. Once the draft opinion has been reviewed, the remaining Justices may recommend changes to the opinion. Whether these changes are accommodated depends on the legal philosophy of the drafters as well as on how strong a majority the opinion garnered at conference. A justice may instead simply join the opinion at that point without comment.

Votes at conference are preliminary; while opinions are being circulated, it is not unheard of for a justice to change sides. A justice may be swayed by the persuasiveness (or lack thereof) of the opinion or dissent, or as a result of reflection and discussion on the points of law at issue.

The evolution of the justices' views during the circulation of draft opinions can change the outcome of the case; an opinion that begins as a majority opinion can become a dissenting opinion, and vice versa. At the conference for Planned Parenthood v. Casey, Justice Kennedy is said to have initially voted with Chief Justice Rehnquist, but then changed his mind, feeling unable to join Rehnquist's draft opinion. While working for the Justice Department, present-day Chief Justice John Roberts - a former Rehnquist law clerk - wrote an analysis of Wallace v. Jaffree in which he indicated his belief (based on the length and structure) that Rehnquist's dissent had started out as an opinion for the court, but lost its majority; similar speculation is often heard of Justice O'Connor's dissent in Kelo v. New London. Justice Kennedy is known within the Court for changing his mind subsequent to the conference, and Justice Thomas is known for having the tendency to lose a majority. Justices may change sides at any time prior to the handing down of the Court's opinion. Generally, the Court's decision is the opinion which a majority (five) of justices have joined. In rare instances, the Court will issue a plurality opinion in which four or fewer Justices agree on one opinion, but the others are so fractured that they cannot agree on a position. In this circumstance, in order to determine what the decision is lawyers and judges will analyze the opinions to determine on which points a majority agrees. An example of a case decided by a plurality opinion is Hamdi v. Rumsfeld.

A justice voting with the majority may write a concurring opinion; this is an opinion where the justice agrees with the majority holding itself, but where he or she wishes to express views on the legal elements of the case that are not encompassed in the majority opinion.

After granting a writ of certiorari and accepting a case for review, the justices may decide against further review of the case. For example, the Court may feel the case presented during oral arguments did not present the constitutional issues in a clearcut way, and that adjudication of these issues is better deferred until a suitable case comes before the court. In this event the writ of certiorari is "dismissed as improvidently granted" — saying, in effect that the Court should not have accepted the case. As with the granting or denial of cert, this dismissal is customarily made using a simple per curiam decision without explanation.

Customarily, justices who were not seated at the time oral arguments were heard by the Supreme Court do not participate in the formulation of an opinion. Likewise, a justice leaving the Court prior to the handing down of an opinion does not take part the Court's opinion. Should the composition of the Court materially affect the outcome of a pending case, the justices will likely elect to reschedule the case for rehearing.


Tied votes and lack of quorum

If not all of the nine justices vote on a case, or the Court has a vacancy, then there is the possibility of a tied vote. If this occurs, then the decision of the court below is affirmed, but the case is not considered to be binding precedent. The effect is a return to the status quo ante. No opinions are issued in such a case, only the one-sentence announcement that "[t]he judgment is affirmed by an equally divided Court."

A quorum of justices to hear and decide a case is six. If, through recusals or vacancies, fewer than six justices can participate in a case, and a majority of qualified justices determines that the case cannot be heard in the next term, then the decision of the court below is affirmed as if the Court had been equally divided on the case. An exception exists when this situation arises in one of the now-rare cases brought directly to the Supreme Court on appeal from a United States District Court; in this situation, the case is referred to the U.S. Court of Appeals for the corresponding circuit for a final decision there by either the Court of Appeals sitting en banc, or a panel consisting of the three most senior active circuit judges.


Announcement of opinions

Throughout the term, but mostly during the last months of the term—May, June, and, if necessary, July—the Court announces its opinions. The decision of the Court is subsequently published, first as a slip opinion, and subsequently in the United States Reports. In recent years, opinions have been available on the Supreme Court's website and other legal websites on the morning they are announced.

The opinion of the Court is usually signed by the author; occasionally, the Supreme Court may issue an unsigned opinion per curiam. The practice of issuing a single opinion of the Court was initiated during the tenure of Chief Justice John Marshall during the early nineteenth century. This custom replaced the previous practice under which each Justice, whether in the majority or the minority, issued a separate opinion. The older practice is still followed by appellate courts in many common law jurisdictions outside the United States.


Reporting and citation of cases

Supreme Court decisions are typically cited as in the following example: "Roe v. Wade, 410 U.S. 113 (1973)." The court citation consists of the names of the opposing parties; the volume number; "U.S." (signifying United States Reports, the official reporter of Supreme Court decisions); the page number on which the decision begins; and the year in which the case was decided. The names of the opposing parties are listed in the format "Petitioner v. Respondent" or "Appellant v. Appellee." The Reporter of Decisions is responsible for publication of the Court's rulings. Two other widely used citation formats exist: the Supreme Court Reporter and the Lawyer's Edition, corresponding to two privately published collections of decisions. Citations to cases in the Supreme Court Reporter would be structured as follows: Snowden v. Hughes, 64 S. Ct. 397 (1944). Citations to cases in the Lawyer's Edition would be as follows: Snowden v. Hughes, 88 L. Ed. 497 (1944). Judicial opinions often use the citation from all three sources (the United States Reports, Supreme Court Reporter, and Lawyer's Edition), as seen here: Martin v. Texas, 200 U.S. 316, 26 S. Ct. 338, 50 L. Ed. 497 (1906). Since the 1930s, prior to publication of the decisions in these reporters, they are available from the United States Law Week ("U.S.L.W.). In more recent years, opinions have been available electronically soon after they appeared on commercial sites such as Lexis or Westlaw, and on Internet sites such as Findlaw and the Court's own website, www.supremecourtus.gov.

The Reporter of Decisions is the court official responsible for the publication of the Court's opinions and orders. The current Reporter of Decisions is Frank Wagner.

Decisions of the Supreme Court are precedents that bind all lower courts, both federal and state. The Supreme Court generally respects its own precedents, but has in some cases overturned them.
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  #22  
Old January 15th, 2008, 10:38 PM
JSQ JSQ is offline
Jack Quinlan
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I, for one, am not at all suprised that the current administration has taken the position of championing the second amendment as a personal right, but has included the necessity for regulation of that right for the benefit of the greater good.

This is very much in line with the opinion and policy pursued by the administration concerning other individual or "personal" rights such as the writ of habeus corpus, expedient trial, due process, search and seizure and privacy. I recognize that not all of these matters are constitutional issues but they generally revolve around the liberties of individuals and the current administrations willingness to critically limit these liberties in the interest of either broad social benefit or an individual well-being which they believe trumps the constricted right.



I'm loving reading these briefs.
Not only is the topic relevant and close to my interests but these SCOTUS opinions and the related briefs are all business. People are always criticizing the American legal system for being an exercise in obfuscation punctuated by tenuous claims and motivated by comprimised morals. They think lawyers and courts are all just talk talk talk. Everybody assumes they can deal out justice simply with common sense, but usually they don't know shit. In contrast, these opinions and briefs cut straight to the heart of the matter and tell it like it is whether or not you agree with them.

This shit makes me want to go to law school.
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  #23  
Old January 16th, 2008, 09:22 AM
matttaylor matttaylor is offline
Matt Taylor
 
Join Date: Dec 2004
Posts: 368
Philosophical question (maybe it's just semantics, I dunno):

How can the collective have rights that the individual doesn't?
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  #24  
Old January 16th, 2008, 09:58 AM
johnlee johnlee is offline
John Lee
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This collective right thing puzzles me. Exactly what is a collective right? I'm not even sure what a collective right is supposed to be. Does a collective right exist anywhere else in the Bill of Rights? No.

The entire concept of a collective right is flawed. The reason the academics came up with the collective right theory is the problematic (for them) wording of the Second Amendment. The Second Amendment speaks of the "right" and "the people". It doesn't speak of "powers" or "the states". It would be a very difficult battle for these academics to argue, explicitly and directly, that the Second Amendment protects a "right" of the states.

So out come the smoke and mirrors and instead the academics come up with a theory that the Second Amendment protects a "right" of the "the people", but only collectively, and individuals lack standing to prosecute a Second Amendment claim. The only "people" with standing to prosecute a Second Amendment is the collective people of the states. In real terms, only the states have standing to enforce the Second Amendment.

This is the rule of the Ninth Circuit. This doesn't make sense to me at all. Only the states have standing to enforce the Second Amendment, even though it guarantees a "right of the people"? Judge Kleinfeld's dissent in Nordyke rings true to me:

Quote:
Our court and the Fifth Circuit take opposite views. In United States v. Emerson, the Fifth Circuit reads the Second Amendment to establish an individual right to keep and bear arms. Our court reads it not to. Our court takes what to me is a position verging on droll legal humor, that the right is a “collective” right belonging to state government, meaning that it is enforceable only by the state, even when the state is the violator.

Even more bullshit is the quasi-collective right theory. I rather like Heller's take on the quasi-collective right theory:

Quote:
The District’s argument—as strained as it seems to us—is hardly an isolated view. In the Second Amendment debate, there are two camps. On one side are the collective right theorists who argue that the Amendment protects only a right of the various state governments to preserve and arm their militias. So understood, the right amounts to an expression of militant federalism, prohibiting the federal government from denuding the states of their armed fighting forces. On the other side of the debate are those who argue that the Second Amendment protects a right of individuals to possess arms for private use. To these individual right theorists, the Amendment guarantees personal liberty analogous to the First Amendment’s protection of free speech, or the Fourth Amendment’s right to be free from unreasonable searches and seizures. However, some entrepreneurial scholars purport to occupy a middle ground between the individual and collective right models.

The most prominent in-between theory developed by academics has been named the “sophisticated collective right” model. The sophisticated collective right label describes several variations on the collective right theme. All versions of this model share two traits: They (1) acknowledge individuals could, theoretically, raise Second Amendment claims against the federal government, but (2) define the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms.

The District advances this sort of theory and suggests that the ability of individuals to raise Second Amendment claims serves to distinguish it from the pure collective right model. But when seen in terms of its practical consequences, the fact that individuals have standing to invoke the Second Amendment is, in our view, a distinction without a difference. But cf. United States v. Emerson, 270 F.3d 203, 218-21 (5th Cir. 2001) (treating the sophisticated collective right model as distinct from the collective right theory). Both the collective and sophisticated collective theories assert that the Second Amendment was written for the exclusive purpose of preserving state militias, and both theories deny that individuals qua individuals can avail themselves of the Second Amendment today. The latter point is true either because, as the District appears to argue, the “Militia” is no longer in existence, or, as others argue, because the militia’s modern analogue, the National Guard, is fully equipped by the federal government, creating no need for individual ownership of firearms. It appears to us that for all its nuance, the sophisticated collective right model amounts to the old collective right theory giving a tip of the hat to the problematic (because ostensibly individual) text of the Second Amendment.

I wholeheartedly agree with the D.C. Circuit. The quasi-collective right theory is nothing more than a re-badged collective right theory. The quasi-collective right theory purports to take a middle ground between the individual and collective theories, but like the collective theory, the quasi-collective theory also denies standing to individuals as individuals to prosecute a Second Amendment claim. The quasi-collective right theory gives standing to individuals only when they are acting in some official capacity of the state. Basically, it gives standing only to the state. There's no practical difference between the collective right and the quasi-collective right theory.

Note that both the collective right and quasi-collective right theories end up with only the states having the standing to prosecute a Second Amendment claim. Both theories purport to guarantee a "right" to the "the people", but they don't. This is intellectual dishonesty at its zenith.
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  #25  
Old January 16th, 2008, 11:06 AM
matttaylor matttaylor is offline
Matt Taylor
 
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I would have never thought to make the argument that the sophisticated collective rights argument should be considered bogus due to there being no appreciable difference between it and the collective rights argument.

I can't get past the fact that collective rights can't exist if individual rights don't. Again, the argument may be construed as a semantic one (and as such may not stand up to Supreme Court type weight), but there really are no such things as collective rights in my view.
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