pageok
pageok
pageok
D.C. Circuit Accepts Individual Rights View of the Second Amendment,

strikes down D.C.'s gun control law. The opinions in the 2-1 decision, which I haven't read yet but which I will blog about later today, are here. Thanks to How Appealing for the pointer.

I doubt that this will get reversed by the entire D.C. Circuit sitting en banc, though such a reversal is not impossible; the D.C. Circuit is relatively conservative, and conservative judges have historically had different views on this question, as they have recently had on free speech, jury trial, and other constitutional rights. (Recall that Chief Justice Burger, who was indeed quite conservative, expressly took the collective rights view in public statements, though that was before the recent spate of scholarship on the Second Amendment, and before the modest turn towards libertarianism — at least as to enumerated rights — of modern conservatism.)

And if the D.C. Circuit decision survives a call for rehearing en banc, it seems to me that the Supreme Court will indeed agree to hear the case: There would be a square split between the D.C. and Fifth Circuits on the individual right side and several other circuits on the collective right side, a decision based on the individual right in favor of the challenger (so that the District can sensibly appeal), and what looks at first glance to me like a clean procedural posture (summary judgment for a plaintiff).

UPDATE: Several colleagues of mine at Mayer, Brown, Rowe & Maw, at which I'm a part-part-part-time academic affiliate, are representing the Violence Policy Center as amicus in support of the D.C. gun ban; I have been entirely uninvolved in the case, but I thought I would notice my colleagues' participation.

Per Son:
Awesome. One day I'll be able to get my guns out of their safe in another state and have them in my home!!!!!!! That is if the appeals do not kill this!

As for those who hate the ACLU - quit hatin'! They sided with the gun owners.
3.9.2007 10:31am
Guest3000:
That was the American Civil *Rights* Union. Very different.
3.9.2007 10:38am
alkali (mail) (www):
The dissent's answer is quite compelling: whatever the Second Amendment might entail, it is about state militias, however you construe that term. The District of Columbia is not a state. I look forward to commentary.
3.9.2007 10:41am
Per Son:
Guest3000:

I will now be announcing my full withdrawal of my assertion for people to "stop hatin'"

It is I who will eat a full meal of humble pie, and "quit hatin'" myself.
3.9.2007 10:45am
Per Son:
alkali:

Also, it should be noted that Henderson is hardly a liberal. I still say that the Supremes would say collective 6-3 or 7-2 or 8-1. In fact I believe Scalia would go pro-collective and only Thomas is a guaranteed individual right.
3.9.2007 10:48am
cirby (mail):
The District of Columbia is not a state.


But, it is, however, part of the United States, and the non-alien residents there are generally considered to be American citizens.

Unless someone wants to argue against allowing full rights for poloticians and bureaucrats, which might get some support around the rest of the country.
3.9.2007 11:14am
Ejote (mail):
This case also avoids the incorporation question that has generated an arguable split. Footnote 13 on p. 39 touches on the issue, but doesn't cite the more recent cases on both sides of the split.
3.9.2007 11:22am
Jiffy:

Unless someone wants to argue against allowing full rights for poloticians [sic] and bureaucrats, which might get some support around the rest of the country.


I would say so, since DC residents have no voting representation in Congress.
3.9.2007 11:24am
Steve:
The Supreme Court has been ducking this issue for lo these many centuries. CJ Roberts is far too quick-witted not to come up with an elegant dodge!
3.9.2007 11:31am
cirby (mail):
I would say so, since DC residents have no voting representation in Congress.


...and yet they can still vote in Presidential and other elections, and habeas corpus generally applies.

A citizen is a citizen.

Unless they aren't, in which case we could probably sell a bunch of DC residents off to help settle the national debt. We can start with the telephone sanitizers.
3.9.2007 11:42am
TyrantLimaBean:
Of note: Prof. Volokh is cited in the opinion.

"The District points to the singular
nature of the Second Amendment's preamble as an indication
that the operative clause must be restricted or conditioned in some way by the prefatory language. Compare Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 36(1998), with Michael C. Dorf, What Does the Second Amendment Mean Today?, 76 CHI.-KENT L. REV. 291 (2000). However, the structure of the Second Amendment turns out to be not so unusual when we examine state constitutional provisions guaranteeing rights or restricting governmental power. It was quite common for prefatory language to state a principle of good government that was narrower than the operative language used to achieve it. Volokh, supra, at 801-07."
3.9.2007 11:44am
Antares79:
I don't see why, contrary to EV and most commenters thus far, that this case is any more ripe for a SCOTUS decision on the big 2d amendment collective right vs. individual right issue than previous circuit and state cases addressing the issue.

Henderson's dissent alone demonstrates that this big 2d amend issue may be easily be dodged by the issue of the District's lack of statehood status, a status which is likely to be supported by conservative jurists who might otherwise support an individual rights view (and acquiesced to by liberal jurists in lieu of reaching the individual/collective rights issue and losing). Indeed, this case appears worse than most to address the collective/individual right issue.
3.9.2007 11:44am
Clayton E. Cramer (mail) (www):

Henderson's dissent alone demonstrates that this big 2d amend issue may be easily be dodged by the issue of the District's lack of statehood status, a status which is likely to be supported by conservative jurists who might otherwise support an individual rights view (and acquiesced to by liberal jurists in lieu of reaching the individual/collective rights issue and losing). Indeed, this case appears worse than most to address the collective/individual right issue.
On the contrary, this simplifies deciding it. There's no question about whether incorporation is required; the Bill of Rights has always applied in federal jurisdictions. The District's lack of statehood status simplifies this considerably for antigun conservatives (and they are out there), because there are no federalism issues. If the right is individual (and the evidence is overwhelming on this point), and it doesn't apply in a federal jurisdiction, then it means nothing at all.

As to why this case is ripe for review: unlike Emerson, whose violation of federal law was arguably a legitimate public safety exception to a general right, the facts in this case are law-abiding, sane adults living in DC. (Well, you might argue how sane someone who chooses to live in DC really is...) This isn't an exception; it is the general right.
3.9.2007 11:50am
Brett Bellmore:

I don't see why, contrary to EV and most commenters thus far, that this case is any more ripe for a SCOTUS decision on the big 2d amendment collective right vs. individual right issue than previous circuit and state cases addressing the issue.


The issue has been more than ripe, positively rotten for review, for decades. The tacit assumption here is that the Court was avoiding 2nd amendment cases not because the issue wasn't "ripe", but because, so long as the circuit courts were doing the dirty work of rendering the 2nd amendment moot, they saw no reason to get involved. Now they must act or the 2nd amendment will be upheld, and that's an entirely different ball of wax. Especially when it's right in their own backyard.
3.9.2007 11:56am
Justin (mail):
"If the right is individual (and the evidence is overwhelming on this point)"

Way to assume the answer to the question there.
3.9.2007 12:01pm
Eugene Volokh (www):
Ejote: The split is not on the incorporation question -- the split is on whether the Second Amendment secures an individual right against the federal government. The Fifth Circuit in Emerson and the D.C. Circuit in this case say yes, many other courts say no.
3.9.2007 12:10pm
Dan Hamilton:

"If the right is individual (and the evidence is overwhelming on this point)"

Way to assume the answer to the question there.


It depends on what you are willing to back up your answer with!
3.9.2007 12:17pm
Bruce Hayden (mail) (www):
Yeh, I was also impressed that EV was cited in the decision. Way to go.
3.9.2007 12:34pm
Ejote (mail):
Eugene: There are two splits. There is the big picture split on the individual / collective rights question, which is at issue in the D.C. Circuit case. There is a smaller picture split on whether the Second Amendment has been incorporated against the States. There are two pre-Barron v. Baltimore Supreme Court cases that state the Second Amendment has not been incorporated, and the overwhelming majority of federal appellate courts have so held. The Ninth Circuit in Silveira v. Lockyer stated, but did not hold, that these old Supreme Court are no longer good law. (Judge Gould had a useful summary of the law on this point in a footnote in his special concurrence in Nordyke v. King.) So in addition to the collective / individual right question, there is an incorporation issue on which CA analyses, although probably not holdings, disagree. This is not an issue in the D.C. Circuit case because the relevant actor is governed by the Second Amendment directly.
3.9.2007 12:42pm
Erick:
Are there any informed guesses (or better) about how the various judges would vote if it went en banc?

There's several I would put as locks to affirm, plus those from the panel. Using who appointed them as a rough guide for the ones I don't know anything about (yes, I know, terrible method, but probably better than nothing), it looks like a reversal is basically impossible.

But, as I said, I'm not working with much information outside a few of the prominent conservatives.
3.9.2007 12:45pm
Ejote (mail):
Judge Gould's discussion is at pp. 2228-29 &n.3 of the Nordyke v. King slip op. (link)
3.9.2007 12:45pm
Ejote (mail):
Eugene: I meant pre-incorporation, obviously, not pre-Barron v. Baltimore.
3.9.2007 12:53pm
NewPoster:
To the poster above, who thought that Scalia, would go collective. He is already on record as supporting an individual rights view.
3.9.2007 1:06pm
Respondent (mail):
Per Son:
Scalia wrote in his book defending originalism that he supports an individual rights interpetation of the amendment, and Roberts proffessed to Senator Feingold that that is his view as well. My tentative guess would be upholding the ban 6-3, assuming the court reaches the merits of the case.
3.9.2007 1:07pm
Ejote (mail):
There's a statement about incorporation similar to that in Silveira in one of the Emerson footnotes. And as for the objection that it's not a true split because no court has held the Second Amendment is incorporated, I think these statements are the best we're going to get: The lower courts can't overrule the Supreme Court's decisions about whether the Second Amendment applies to the states, however moth-eaten those decisions now are.
3.9.2007 1:12pm
Kazinski:
Alkali:

...whatever the Second Amendment might entail, it is about state militias...


Interesting take. So when the second amendment says: "the right of the people to keep and bear Arms, shall not be infringed". That refers to state militias. And when the first amendment says "the right of the people peaceably to assemble". That means that only state militias have the right to peaceably assemble.

Thank you for clearing that up for me.
3.9.2007 1:14pm
Brett Bellmore:

To the poster above, who thought that Scalia, would go collective. He is already on record as supporting an individual rights view.


He's also on record as saying, on the very same page, that few people would weep when the Supreme court gets around to ruling the opposite. I'm (relatively) sure what Scalia thinks is the correct ruling. Whether he'd think issuing a correct ruling was worth overturning 7 decades' accumulation of unconstitutional laws is quite another matter.
3.9.2007 1:25pm
Just an Observer:
IIRC, the D.C. law against firearms possession is about 30 years old. Why did it take so long to get this case?
3.9.2007 1:30pm
therut:
Free at Last, Free at Last, Thank God I'm Free at Last. Maybe??????????? Gawd I'm celebrating big time as soon as my time On Call is over. I am HAPPY and finally feel a smidgen of goodwill toward a Federal Court!!!!!!!!!!!!!!!!!!!!!!!!!! Freedom ain't it GREAT. YEEHAW! Sorry I must celebrate in the common manner I was raised. (Dancing a Jig)
3.9.2007 1:33pm
Eugene Volokh (www):
Ejote: You may be right that at some point the Court should take the incorporation question. But there's no split on the subject in the sense that the Court understands the term.
3.9.2007 1:34pm
alkali (mail) (www):
Kazinski: I was mostly attempting to summarize the dissent's position. However, I don't think it's crazy to say that the Second Amendment is "about" state militias, whether or not you think it sets forth an individual right. Oversimplifying considerably, I think that many people who take the individual rights view of the Second Amendment get to that view on the basis of some evidence that historically, the "militia" meant everyone who could carry a gun. There is even some discussion in the majority opinion about that.
3.9.2007 1:48pm
BVBigBro:
The people who take view that the second amendment can only be referring to an individual right do so on the basis of its' use of the words "the people".

This is the heart of the analysis provided by the writer of the majority opinion. The bill of rights rather clearly distinguishes between the states and the people and had the intent of the second amendment been to secure the rights of the state militia it would have read "the right of the states...".
3.9.2007 2:01pm
DC Metro Contract Attorneys Yahoo Group (mail) (www):
Professor Volokh:

You are too humble.

Your law review article is cited with approval on page 35 of the opinion. Congratulations.

-DC Metro Contract Attorneys Yahoo Group
http://groups.yahoo.com/group/DCMetroContractAttys/
3.9.2007 2:05pm
alkali (mail) (www):
BVBigBro: I am referring to the kind of analysis at pp. 30-35 of the majority opinion. Obviously, many people think you don't need to even consider that issue. Hence my disclaimer "oversimplifying considerably."
3.9.2007 2:14pm
Dilan Esper (mail) (www):
I am very happy about this result. I have long held that the idea that the 2nd Amendment doesn't secure an individual right is crazy, and that blanket gun bans almost assuredly have no relationship to the well regulated militia contemplated by the Bill of Rights.

I would only note that where the pro-gun rights legal positions are much more dicey is when we are talking about actual REGULATIONS of gun ownership-- I am sorry, but gun registration, waiting periods, and the like ARE regulations of the militia and are thus contemplated by the text of the Constitution.
3.9.2007 2:21pm
Antares79:
<blockquote>
On the contrary, this simplifies deciding it. There's no question about whether incorporation is required; the Bill of Rights has always applied in federal jurisdictions. The District's lack of statehood status simplifies this considerably for antigun conservatives (and they are out there), because there are no federalism issues. If the right is individual (and the evidence is overwhelming on this point), and it doesn't apply in a federal jurisdiction, then it means nothing at all.
</blockquote>
The debate isn't that the 2d amend applies to the federal government (it does and always has). The debate is, and Judge Henderson's dissent focuses on, whether the 2d amend applies to the federal government <b>regulating <i>any citizen/militia</i> or <i>only state citizens/militias</i></b>. Judge Henderson argues the 2d amend. bars federal action only against state citizens/militias, thus excluding DC from its protections. I and several conservatives agree with her that DC does not qualify as a state as used throughout the Constitution and in the 2d Amendment. (EV disagrees in his latest post).
3.9.2007 2:35pm
K Parker (mail):
Just an Observer:

At least part of the delay, from my amateur POV at least, resulted from a very constrained view of standing. It's way too easy, as far as I can tell, for the state to argue that the plaintiff hasn't been harmed if they haven't actually been arrested and/or charged with a crime. The fact that a normal, law-abiding citizen, complete with spouse, kids, mortgage, and a job, must actually get arrested and put all that in jeopardy before he can assert that the state is unconstitutionally constraining his right is.... well, you do the math!
3.9.2007 2:47pm
Monkberrymoon (mail):

Whether he'd think issuing a correct ruling was worth overturning 7 decades' accumulation of unconstitutional laws is quite another matter.

I don't think that would be too much trouble. In recent history, for example, he's part of the Apprendi line of cases and the Crawford confrontation stuff, right?
3.9.2007 3:00pm
Clayton E. Cramer (mail) (www):

"If the right is individual (and the evidence is overwhelming on this point)"

Way to assume the answer to the question there.
The question has been asked, and repeatedly answered. Start with my book For the Defense of Themselves and the State (Praeger, 1994), among many others.
3.9.2007 3:07pm
Clayton E. Cramer (mail) (www):

Kazinski: I was mostly attempting to summarize the dissent's position. However, I don't think it's crazy to say that the Second Amendment is "about" state militias, whether or not you think it sets forth an individual right. Oversimplifying considerably, I think that many people who take the individual rights view of the Second Amendment get to that view on the basis of some evidence that historically, the "militia" meant everyone who could carry a gun. There is even some discussion in the majority opinion about that.
Uh, no. We get to the individual rights view from the historical evidence of what the states requested in terms of an individual right, what James Madison's notes and speech when introducing the Bill of Rights said, and from more than a century of legal commentaries and court decisions about what the Second Amendment protects. The decision points to the question of how broadly constituted the militia was to demonstrate that even if the right was limited to the militia back then, it still meant that the right was very general in its nature. Unless the Court is prepared to argue that only white adult males have the right protected by the Second Amendment--which I rather doubt that they would do so.
3.9.2007 3:10pm
Clayton E. Cramer (mail) (www):

The debate isn't that the 2d amend applies to the federal government (it does and always has). The debate is, and Judge Henderson's dissent focuses on, whether the 2d amend applies to the federal government regulating any citizen/militia or only state citizens/militias. Judge Henderson argues the 2d amend. bars federal action only against state citizens/militias, thus excluding DC from its protections. I and several conservatives agree with her that DC does not qualify as a state as used throughout the Constitution and in the 2d Amendment. (EV disagrees in his latest post).
The claim that the 2nd Amendment bars federal action only against state militias is utterly wrong, so this is quite irrelevant to the facts of the case. The notion that the 2nd Amendment protected the right of states to organize militias is an entirely 20th century idea.
3.9.2007 3:12pm
Smallholder (mail) (www):
The split seems to be based on what part of the Second Amendment one emphasizes:

"A well-regulated militia, being necessary to the security of a free state,"

vs.

"the right of the people to keep and bear arms, shall not be infringed."

There seems to be learned opinion on both the collective and individual sides of the fence. As I understand it, the courts, who are, after all, the final arbiters of constitutionality, much to Charlton Heston's chagrin, have usually (consistently?) ruled for the collective interpretation.

What makes this so exciting is that the recent decisions, if appealed to the Supreme Court, have the chance to dramatically change the court-interpreted understanding of the right to bear arms.

As someone who is not an avid follower of the Supremes, would someone please give a breakdown on why they think various justices will vote one way or the other?

Also, I'd like to hear from the individual rights folks about what they interpret the "Well-regulated" portion of the 2nd Amendment to mean - people are always arguing abut state vs. individual, but it strikes me that the well-regulated part of the Amendment would allow reasonable controls of either state militias or individual gun owners.

Thanks in advance.
3.9.2007 3:18pm
alkali (mail) (www):
Clayton E. Cramer: Uh, read my 2:14 pm comment.
3.9.2007 3:23pm
Carolina:

As someone who is not an avid follower of the Supremes, would someone please give a breakdown on why they think various justices will vote one way or the other?


My $0.02:

Definite Votes to Affirm (based on previous writings, statements):

Thomas
Scalia
Roberts

Probable Votes to Affirm:

Alito

Probable Votes to Reverse:

Breyer
Souter
Ginsburg
Stevens

???????:

Kennedy
3.9.2007 3:28pm
Clayton E. Cramer (mail) (www):

There seems to be learned opinion on both the collective and individual sides of the fence. As I understand it, the courts, who are, after all, the final arbiters of constitutionality, much to Charlton Heston's chagrin, have usually (consistently?) ruled for the collective interpretation.
Actually not. The federal courts have (especially in the 20th century) done all sorts of handsprings and backflips to avoid confronting the individual rights evidence, but when you start to look at how state courts have dealt with the question, the bulk of the decisions recognize that the Second Amendment protects an individual right. Most state supreme courts have taken the position that while the right is individual, the Second Amendment is a limitation only on the federal government, not the states. There are a number of prominent exceptions, however, as early as State v. Nunn (Ga. 1846) and as late as State v. Nickerson (Mont. 1952).


Also, I'd like to hear from the individual rights folks about what they interpret the "Well-regulated" portion of the 2nd Amendment to mean - people are always arguing abut state vs. individual, but it strikes me that the well-regulated part of the Amendment would allow reasonable controls of either state militias or individual gun owners.
There's a valid basis for regulation of firearms ownership that does not run afoul of the 2nd Amendment, but the "well-regulated militia" isn't that basis.

The first clause was primarily an expression of a hope that the federal government would primarily rely on the militia, not a standing army, for the defense of the nation. Some of the state requests for this were phrased much more strongly. South Carolina, for example, wanted an amendment limiting standing armies without consent of Congress in peacetime. For a variety of reasons touched on in my new book Armed America (Nelson Current, 2007), the fantasy of relying entirely on the militia was recognized as such by the First Congress.

The valid basis for regulation is to look at original intent. What type of firearms regulations were understood by the Framers as being compatible with "the right to keep and bear arms"? Well, there's no shortage of firearms safety regulations at the time--laws from Colonial and Revolutionary period that prohibited discharge in cities, regulating storage of gun powder, disarming slaves, and disarming those who were disloyal to the government (the Test Act, for example, in Pennsylvania, and similar measures in other colonies). The analogies today are the federal ban on gun possession by felons (like slavery, a lifelong disability) and gun possession by those who have renounced their citizenship (the Lee Harvey Oswald Memorial law).
3.9.2007 3:49pm
Don P. (mail):
"Also, I'd like to hear from the individual rights folks about what they interpret the "Well-regulated" portion of the 2nd Amendment to mean"

In the common usage of the time "Well regulated" meant well trained or well prepared, not well controlled, the way we use the term today. There are a number of good 18th and early 19th century references to the term "regulated" in that contextual usage.

If you view the amendment in that context, it starts to make a lot more sense.

IOW, a well trained and prepared militia (the individual citizen members comprising the body of the militia) is essential to a free state (from threats private and public, both foreign and doemstic) - therefore, the right of the people to keep and bear arms (and stay well practiced and prepared) shall not be infringed.

That's my .02 worth. (Obviously my non-legal hourly billing rate is lower than most folks here.)
3.9.2007 4:04pm
Brett Bellmore:
I would not put Scalia in the "definate vote to affirm" catagory, given his previous writings and rulings. If this were a new contraversy, and gun control laws were a novel infringement? Sure.

But Scalia's first loyalty is to precident, not the Constitution. Confront him with 70 years of bad law already on the books, and he'll fold faster than you can say, "stare decisis". He's already demonstrated as much in the Raich decision.
3.9.2007 4:10pm
Carolina:


But Scalia's first loyalty is to precident, not the Constitution. Confront him with 70 years of bad law already on the books, and he'll fold faster than you can say, "stare decisis". He's already demonstrated as much in the Raich decision.


I don't think Scalia is going to be cowed by any number of years of Court of Appeals precedent. Miller was the last time the Supreme Court spoke definitively on the 2nd Am., and that was at least arguably an individual rights opinion (the controlling fact being the military did not use short barrel shotguns). At best (for the collectivists), Miller was ambiguous. It certainly didn't reject an individual rights view.

I would be more amenable to your point if Scalia was going to be asked to overturn years of Supreme Court precedent. But he isn't, and I don't think he'll hesitate a second before voting to slap some appellate courts around.
3.9.2007 4:30pm
Mark in Texas:
Those inclined might pray for Saint Gabriel Possenti to guide the justices to the path of wisdom

http://volokh.com/posts/1172557175.shtml
3.9.2007 4:44pm
Lanceo (mail):
Ha, if you read any of Jefferson's letters or other writings, as well as Madison's, you will quickly realize that they intended the 2nd amendment to be an individual right.
3.9.2007 4:44pm
Clayton E. Cramer (mail) (www):
Carolina writes:

Miller was the last time the Supreme Court spoke definitively on the 2nd Am., and that was at least arguably an individual rights opinion (the controlling fact being the military did not use short barrel shotguns).
Actually the controlling fact was that the district judge who ruled that the National Firearms Act of 1934 violated the Second Amendment "took under judicial notice" that a short-barreled shotgun was a militia weapon. The actual decision of Miller was that he should have sought expert opinion. They did not rule that the Second Amendment was a collective right--which is what the Solicitor General wanted them to rule. It was a very clever decision in that it did not directly uphold NFA34, nor did it strike it down. It was decided very narrowly.
3.9.2007 4:49pm
Carolina:
I should have re-read Miller before I posted.

Mr. Cramer correctly points out that the controlling fact of the decision was the lack of evidence that a short barreled shotgun was used by the military/militia, rather than the fact the militia/armed forces did not use such weapons.

In any case, the point remains that the decision is far from an endorsement of the collective rights view.
3.9.2007 4:58pm
Clayton E. Cramer (mail) (www):

In any case, the point remains that the decision is far from an endorsement of the collective rights view.
Yes, especially when you consider that only one side briefed the case--the federal government. The defendant was not represented, and no amici were filed. Imagine an argument so weak that it can't carry the day when it was unchallenged.

Even then, Miller is a poor decision. The state supreme court decisions it cites are very atypical--and many involve not the Second Amendment, but differently worded state right to keep and bear arms decisions. At least one decision, Robertson v. Baldwin is cited as though it is a militia case, when it is not (it is a clear statement that the Second Amendment protects an individual right), and Jeffers v. Fair (Ga. 1862) has nothing to do with gun control at all. It's a draft case decided while Georgia was out of the Union!
3.9.2007 6:10pm
Daniel Wiener (mail) (www):
So my question is this: At this moment, at least until this decision has been overturned or new laws are enacted, are individuals free to possess firearms in Washington, D.C., since the existing laws have been declared unconstitutional?
3.9.2007 6:15pm
Carolina:
A bit off topic, but the "blurb" on the main NY Times website describing reporter Adam Liptak's article on the decision is factually incorrect.

It reads (as of now) "The decision today was the first from a federal appeals court to hold that the Constitution gives individuals, not just state militias, the right to bear arms." Obviously, that's incorrect.

The article itself is correct, stating "The decision was the first from a federal appeals court to hold a gun-control law unconstitutional on the ground that the Second Amendment protects the rights of individuals, as opposed to a collective right of state militias."

The article is short, and smacks of a Brady Center press release, but is factually accurate. I wonder how the facts got confused for the blurb.

Small potatoes in the big scheme of things, but I did call the editorial hotline at the ol' Gray Lady.
3.9.2007 6:53pm
Carolina:
LOL, Prof. Volokh beat me to it. I just refreshed the main page and he has a post about it. . . .

Nothing gets by that guy!
3.9.2007 6:56pm
Brett Bellmore:
I think we actually dodged a bullet with the Miller decision; In the wake of FDR's court packing scheme, and "the switch in time that saved nine", that the feds were going to win was a given. The Supreme court was simply out of the law striking down business for a while, no matter what mental gymnastics it took to uphold this or that usurpation of power.

That Miller had no representation allowed the Court to uphold the NFA on the narrowest concievable grounds. If Miller had competent counsel, the Court would almost certainly have upheld the NFA anyway, and been forced to comprehesively shoot down every possible argument for the individual rights model.
3.9.2007 7:46pm
M. Simon (mail) (www):
If gun rights are a collective right, I want to start a gun ownership collective.
3.9.2007 9:04pm
Dave Hardy (mail) (www):
Unless they aren't, in which case we could probably sell a bunch of DC residents off to help settle the national debt.

You overestimate their value, having lived in the area.
3.9.2007 10:11pm
David M. Nieporent (www):
I don't see why, contrary to EV and most commenters thus far, that this case is any more ripe for a SCOTUS decision on the big 2d amendment collective right vs. individual right issue than previous circuit and state cases addressing the issue.
Because now there's a split.
3.9.2007 10:49pm
Dave Hardy (mail) (www):
But Scalia's first loyalty is to precident, not the Constitution. Confront him with 70 years of bad law already on the books, and he'll fold faster than you can say, "stare decisis". He's already demonstrated as much in the Raich decision

I think Scalia isn't a guy obsessed with precedent -- and the Supremes don't give much care to lower precedent anyway. Raich was largely a testament to the fact that conservatives (including at least a few libertarian-conservatives) don't much care for drugs, just as many liberals don't care much for guns. It's nice to be able to think that judges don't worry about whether they care for the subject at hand ... but they do. Just look at what strictures the Court has upheld against campaign ads versus those it has upheld against pornography. Very hard to explain those except as a product of a belief that "porno reform" laws are basically silly and "campaign reform" laws are basically well-considered good faith measures.
3.9.2007 11:05pm
Carolina:

I don't see why, contrary to EV and most commenters thus far, that this case is any more ripe for a SCOTUS decision on the big 2d amendment collective right vs. individual right issue than previous circuit and state cases addressing the issue.

Because now there's a split.


Yes, now there is a split, but further, today's decision actually struck down some of DC's laws.

A split was actually created with Emerson in 2001, but given the relatively liberal gun laws of the states included in the 5th Circuit, the chances of an actual law running afoul of the holding in Emerson were and are quite slim.

It's a different ballgame with DC's laws.
3.10.2007 12:57am
Antares79:

I don't see why, contrary to EV and most commenters thus far, that this case is any more ripe for a SCOTUS decision on the big 2d amendment collective right vs. individual right issue than previous circuit and state cases addressing the issue.

Because now there's a split.


There may be a split (and laws struck down), but I still fail to see how SCOTUS will address the ultimate collective vs. individual rights issue. I think a SCOTUS case will address only the "does the 2d Amend apply to DC" question for two reasons:

One, the application to DC question is quite nuanced and an opinion addressing it alone will be lengthy.

And two, a majority of the justices won't want to reach the individual/collective issue. Justices opposing an individual rights view (probably only a minority of justices) would rather dodge the individual/collective rights issue by holding that the 2d Amendment doesn't apply to DC. Justices favoring individual rights are also likely to oppose granting statehood-like rights to DC and will similarly hold that the 2d Amendment doesn't apply to DC. Further, all Justices would probably prefer to wait to decide the collective/individual issue when a case that presents only that issue arises, instead of this standing and applicablity thicket of the present case.
3.10.2007 4:49pm
David M. Nieporent (www):
One, the application to DC question is quite nuanced and an opinion addressing it alone will be lengthy.
One sentence. Once you resolve that it secures an individual right, it's trivial that it applies to DC.

Justices favoring individual rights are also likely to oppose granting statehood-like rights to DC and will similarly hold that the 2d Amendment doesn't apply to DC.
That doesn't make any sense. Justices favoring individual rights think the second amendment applies to individuals. Therefore, ruling that this applies to DC would not "grant statehood-like rights to DC." It would grant peoplehood to DC residents.

The whole point of the individual-rights view is that "right of the people" grants rights to people. So where they live simply wouldn't matter.

The claim that it doesn't apply to people living in DC is so obviously frivolous that no reasonable person would ever make such a ruling. If one held a collective view, as wrong as that is, one could hold that right of the people to keep and bear arms could be read as the right of the states to form militias, in which case it wouldn't apply to DC.

But if one holds that the right of the people means the right of the people, against federal infringement, it makes less than zero sense to argue that it doesn't apply to the people most vulnerable to the federal government.
3.10.2007 5:41pm
Antares79:

The whole point of the individual-rights view is that "right of the people" grants rights to people. So where they live simply wouldn't matter.


You're arguing that the DC applicabilty issue is the same as the individual/collective rights issue. I disagree.

Under both an individual and collective rights view, where the would-be rightholders live affects their 2d Amend rights because that amend uses the word "state." Assuming the individual rights view, the second amendment clearly reserves the right to bear arms to the people of the states, as such a right is important to keep those states free. Thus the federal government may not limit state citizens' rights to bear arms (only their states may so limit the right absent any state constituional provision barring such limitations, until the 2d Amend gets incorporated against the states).

Under an individual rights view, it does not necessarily follow that non-state (e.g., DC) citizens cannot be limited by the federal government by the 2d Amendment; they are not state citizens and they have no state to keep free. The individual rights view may be vindicated simply by assuring individual rights to bear arms to state citizens.

I think it is dangerous to adopt your position that an individual right is guaranteed to all people of the Union, as this forces the word "state" in the 2d Amend to mean "condition" or "Union," because the right applies everywhere. This opens the door to arguments that DC should have full congressional representation because the Constitution uses the word "state" there too in defining Congressional makeup.

Of course, the Court may reverse me on whether the 2d amendment applies to the District. EV and several commentators have gone on at length as to what "state" means in the 2d Amend. Whatever the result of the issue, the Court must first decide the thorny DC applicability issue before proceeding to the individual/collective issue. And, coming full circle, I believe that because this issue must first be addressed, the Court will never get to the ultimate individual/collective rights issue.
3.10.2007 6:20pm
David M. Nieporent (www):
Assuming the individual rights view, the second amendment clearly reserves the right to bear arms to the people of the states, as such a right is important to keep those states free.
It doesn't "clearly" do anything of the kind. At no point does it limit its applicability in any way. It's the right of the People, not the right of the people of the states.

This opens the door to arguments that DC should have full congressional representation because the Constitution uses the word "state" there too in defining Congressional makeup.
No, it doesn't open that door at all. I'm not saying that the word state should be interpreted to include DC as well as the 50 states, the way the word 'state' often is in legislation. That would open the door in that way.

I'm saying that the word state means nation. Like secretary of state. Organization of American States (Hint: it doesn't mean Kentucky, Alaska, et al.). Or "foreign state" in article III or the 11th amendment.
3.11.2007 8:00pm