The brief, of (among others) 34 California DA’s, 8 Nevada DA’s, three Western sheriffs (two from California and one from Arizona), and a couple of California police officers’ groups, is here. It was interesting for me to note that it include DAs from all the Southern California counties except Los Angeles and Riverside, and including major ones such as Orange, San Bernardino, and San Diego.
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dcperson says:
is the new theory that the more government attorneys you toss on a brief, the more likely it is to be seen as persuasive?
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November 25, 2009, 8:57 amRedlands says:
No, but a probing question. I’m pleased my Office joined regardless.
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November 25, 2009, 10:14 amme_confused says:
I’m a bit confused by the concept here. Several of these DAs have been staunchly anti-2A and/or fairly anti-gun. Why would they sign-on in support of something that will limit their ability to regulate guns? What am I missing here?
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November 25, 2009, 10:15 amyankee says:
I think it’s just a new version of the time-honored theory that an argument’s persuasiveness is proportional to the number of amicus briefs making it.
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November 25, 2009, 10:47 amDjDiverDan says:
Maybe you are missing the following: (1) All or virtually all of these DAs are elected officials, and will either face reelection in the future, or have ambitions to seek higher office; (2) All of these DAs see the writing on the wall — an anti-gun position is generally a loser in any election; (3) These DAs also probably can anticipate that incorporation of the Second Amendment is most probably a foregone conclusion — SCOTUS is going to incorporate, one way or the other, with or without them; and (4) Signing on to this Brief is a good way to establish their bona fides with the pro-gun voters, or at least fend off attacks by groups like the NRA, hunting groups, etc. Whether or not these DAs personally agree with the incorporation of the Second Amendment against the States is beside the point — signing on to the Brief is a very effective use of their campaign funds (I assume they did not use taxpayer funds — I think there would be a real 1st Amendment problem with that), especially if they can anticipate a primary challenger or general election opponent who might attack them as anti-gun or opposed to self-defense.
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November 25, 2009, 10:55 amLarryA says:
Not sure about California, Nevada, and Arizona, but here in Texas DAs and sheriffs are elected officials, beholden to the voters.
Also, the anti-gun folks are always touting how law enforcement is on their side. Turns out not so much.
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November 25, 2009, 10:57 amPhatty says:
I liked this brief, because its central focus is debunking the ludicrous statements made by Easterbrook in the 7th Circuit opinion.
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November 25, 2009, 12:01 pmOren says:
Liberals support incorporation as a matter of preserving the Warren Court’s revolution in enforcing the guarantees of the bill of rights against the States. They have feared (much more so back in the Regan/Bush years, and even then somewhat hysterically) that a conservative Court would undo that precedent. Failing to incorporate the 2A would then be an invitation for a future Court to weaken the incorporation of other rights.
IOW, it’s perfectly consistent to think that Heller went the wrong way but, given that it went how it did, it must now be applied just like the Court’s other bill of rights decisions.
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November 25, 2009, 12:23 pmCatherine Jefferson says:
Maybe I’m dense, but I see no link to the brief nor do I see anything but the “briefest” summary of it and a partial list of supporters. So where is it? I want to read it!
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November 25, 2009, 12:35 pmDrew says:
Now if only these groups would give a damn about the 4th amendment.
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November 25, 2009, 1:00 pmdcperson says:
click on the word “here”
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November 25, 2009, 1:15 pmSteve says:
All of these DAs see the writing on the wall — an anti-gun position is generally a loser in any election
Uh, any election? Anywhere in the country? You seriously believe that?
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November 25, 2009, 1:19 pmFub says:
After a quick once-over of the list of CA DAs, I generally agree with this analysis. It is worth noting that the amici are from counties generally considered more conservative, with some exceptions.
The sheriff of Mendocino County is one such exception, but general political leanings there tend to be syncretic (or wild and wacky, depending on your POV) rather than readily definable as broadly liberal or conservative.
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November 25, 2009, 1:31 pmcalattnyken says:
CA is behind incorporation for several reasons, IMO.
CA has some strict gun control laws (as we know),and they do not want these laws to be stricken under a post-Heller analysis. As a result, CA best bet is to try to get on the incorporation bandwagon and argue that its laws are, of course, completely constitutional under post-Heller analysis. Recall however that CA assault weapon ban was held constitutional by the 9th, specifically relying on the “collective” rights model. IMO, CA’s mentality on this, is it wants a seat at the table to form an analysis that preserves its statutory framework re guns, as opposed to being on the losing side, and therefore the poster child of unconstitutional restraint.
If incorporation does happen, CA will have a tough row to hoe to keep its current restrictions. Note: CA does not have a right to bear arms in its own constitution.
If memory serves Jerry “Moonbeam” Brown Jr.‘s office supports incorporation.
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November 25, 2009, 1:49 pmJon W says:
LA not joining is interesting. I think 2nd amendment incorporation against the states is inevitable, but clearly (at least as I see it) LA is not enthused about the situation. We’ll have some general national right to bear arms, but how far will high-crime areas like LA, Chicago, DC, etc be able to go without running afoul of that right? Chicago clearly won’t be able to have a de factor blanket prohibition, but how far can they go without running into constitutional problems? High-crime areas are going to want to push the limits, which is going to make for some very interesting cases in the near future.
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November 25, 2009, 1:55 pmDave N. says:
What cost? I have no idea whether Michel & Associates did this case pro bono or not. However, even if someone hired the firm, it’s bill would not necessarily be paid by all, or even most, of the parties.
I am guessing that the California Rifle and Pistol Association Foundation paid the actual costs. All the District Attorneys had to do was say, “Yes, I’d like to join” and provide a one-paragraph biography for Appendix B of the brief.
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November 25, 2009, 2:17 pmPubliusFL says:
That’s what I figured — that California realized that incorporation was inevitable, and decided to get ahead of the curve with damage control by endorsing incorporation while arguing that properly construed, an incorporated 2nd Amendment does not call California’s gun control laws into question. I am very surprised, though, to see that this brief does not appear to make any effort to argue for a weak standard of review or even parrot some of Heller’s language about Heller not calling into question various types of reasonable restrictions on firearms ownership.
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November 25, 2009, 2:34 pmSGD says:
Is the State of California going to file a brief? I thought Moonbeam filed a brief in support of the peition for cert.
Is the DOJ not going to file a brief or are they going to file with Chicago?
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November 25, 2009, 3:15 pmgeokstr says:
It appears all of the brilliant (and that is a sincere compliment) lawyers and law professors here believe that this scenario I posited on this issue a long time ago can’t happen, right?
The current court incorporates the 2A. Then, Obama gets re-elected, and gets to appoint 1–3 retiring/dead conservative justices on the SCOTUS. The new Chief Justice Kagan, joined by Justices Breyer, Sottamayor, Holder, Clinton, and Patrick, suddenly find the hidden emanation from a long-lost penumbra that “proves” that the founders really meant that only members of formal state militias could own guns, and that there is no “individual” right to do so.
Bye-bye stare decisis, which liberals have shown time and time again is only important to them when conservatives try to undo liberal decisions. In one fell swoop, all state constitional rights of individuals to bear arms — gone. All existing restrictions on gun ownership validated, all carry permits invalidated. Democrats in city and state governments that have been unable to pass gun restrictions will be re-invigorated to do so, with the imprimatur of the Supreme Court to back them up.
How do you suppose incorporation will help those who believe in 2A individual rights under that scenario? It certainly makes more political sense to me to think that this is the motivation for otherwise anti-2A pols to suddenly be joining with conservatives for incorporation, than all this re-election concern stuff. The leopards have not changed their spots, just learned to wear striped camoflage, that’s all.
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November 25, 2009, 4:15 pmPintler says:
At least for most of my life, the notion that some good (or at least no excessive harm) might come from law abiding ownership of firearms has been a word of mouth proposition — it’s something you learned first hand from a parent, relative, or close friend. In WY or rural VA, people measured the steady media diet of ‘guns are bad and should be banned’, against the reality they knew, of numerous perfectly sane and responsible gun owning friends and relatives. If you were part of the nontrivial fraction of the population who lived in DC, NYC, Chicago, etc, though, you had no sources of information other than what you heard.
With incorporation, there will start to be a trickle of early adopters in DC, NYC, Chicago, etc. People will gradually start to hear, first hand, about an armed Aunt Sarah running off an intruder, and that will eventually change the politics of gun control in those places.
For those newly undisarmed :-) places the details — what kind of scrutiny and restrictions — won’t matter. Revolver or semi, with a large or small magazine, with or without a permit, etc. are pretty minor considerations compared to being totally disarmed. As people become more knowledgeable I expect many of those, e.g. bans at the post office, will be relaxed.
To answer your specific question, a quick reversal of Heller might work (although at a huge political cost), but the longer it stays in place the less support there will be for reversal.
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November 25, 2009, 5:08 pmDjDiverDan says:
Steve, you are quite right — I do not believe that the pro-gun position is necessarily going to be the winner in “any” election, or “anywhere” in the Country. Mea culpa, I wrote in haste. I’m almost certain that taking a position in favor of banning handguns would not be a political mistake in places like the People’s Republic of Berkeley or San Francisco. There might be liberal enclaves on the East Coast like that. In Texas, however, or any non-urban area west of Philadelphia, or anyplace in the South, and in the majority of California, banning guns is going to be political poison.
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November 25, 2009, 5:19 pmPerseus says:
I take it you wish to play the how many times J. Aldridge mentions John Bingham drinking game.
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November 25, 2009, 6:02 pmDavid Nieporent says:
No, it can’t. You’re confused; ruling that the second amendment is incorporated but doesn’t protect an individual right does not have any effect on “state constitutional rights.”
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November 25, 2009, 10:46 pmOren says:
State Supreme Courts are free to interpret their Constitutions without reference to the US Supreme Court. Many times, in fact, they rule squarely against it* and those rulings are binding on State Courts and State LEOs.
You have taken this outrageous scenario and spammed it across every RKBA thread. It evinces a total lack of understanding of how State Constitutional Law is made. It’s now 6–7 times I’ve seen it in the last few weeks. Enough already.
*For instance, many State Courts have ruled that State 4A analogs require suppression in case of a no-knock violation, contra the SCOTUS in Hudson. Also interesting, due to a rash of such cases in which the SCFL interpreted their 4AA much more broadly than the SCOTUS, the legislature specifically amended their 4AA to require the SCFL to interpret it in line with the SCOTUS interpretation of the 4A.
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November 25, 2009, 11:06 pm