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.
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- D.C. Circuit Accepts Individual Rights View of the Second Amendment,
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As for those who hate the ACLU - quit hatin'! They sided with the gun owners.
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.
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.
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.
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.
"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."
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.
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.
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.
Way to assume the answer to the question there.
It depends on what you are willing to back up your answer with!
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.
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.
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.
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.
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...".
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/
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.
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).
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!
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?
"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.
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
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).
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.)
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.
http://volokh.com/posts/1172557175.shtml
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.
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.
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!
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.
Nothing gets by that guy!
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.
You overestimate their value, having lived in the area.
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.
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.
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.
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.
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.
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.