Symposium on Parker:
National Review Online this morning has a symposium on Rearming: The D.C. gun ban gets overruled featuring John Eastman, Cam Edwards, Alan Gura (lead counsel for the plaintiffs), Dave Koppel, John Lott, Nelson Lund, Clark Neily (another attorney for the plaintiffs), and me. Here is my take on the likelihood the case will be reversed either en banc or by the Supreme Court:
When discussing with my wife the Supreme Court justices' possible reaction to the Parker case, she observed that "it would be really exciting if they followed the Constitution." Indeed! But I predict they won't hear the case. True, the federal circuits now disagree about the original meaning of the Second Amendment. But there is no "circuit split" on the constitutionality of either the D.C. statute or a comparable federal statute banning all hand guns. The constitutionality of state statutes, such as have been upheld in other circuits, is complicated by the need to apply the Fourteenth Amendment, so those precedents are legally distinct. Further, because Solicitor General Paul Clement may well agree with the majority's interpretation of the Second Amendment, as does the current Justice Department, he may oppose granting Cert. Given that even liberal justices have long ducked this issue in the past, it would be very risky for them to take it up now that the Court is more conservative, textualist, and originalist. Of course, the case could be reversed en banc by the D.C. Circuit, but again I doubt it. Unlike the protection of an unenumerated right that makes judicial conservatives nervous — like the right to life at issue in Abigail Alliance — the proposition that the Second Amendment protects an enumerated individual right applicable to the federal government unites originalist-inclined judges, whether conservative or libertarian. Moreover, that Judge Silberman is highly respected, his opinion is powerfully reasoned, and the dissenting opinion is astonishingly weak, all argue against an en banc review. But wouldn't it be exciting if . . . ?
However, I have no confidence whatsoever in my powers of prediction. You can offer your own predictions, or reactions to the other views expressed in the symposium, here.
John (mail):
What you say is logical about S.Ct. review.

While there are differences among the Circuits in reasoning, there is not yet a confilct among the Circuits on results (e.g., one Circuit saying a given statute is unconstitutional and another saying it is constitutional).

Thus, unless the Supremes feel it is time for a "let's resolve this once and for all" moment--which I don't think it is--they'll want to wait.
3.12.2007 11:47am
Jay (mail):
I always suspected that a big deterrent to a definitive USSC ruling on the 2nd A would be that such a ruling would likely allow for "reasonable regulation" and no matter how carefully that was defined, the Court would condemn itself to a neverending series of future cases as to what was or was not "reasonable."

Anyone else agree?
3.12.2007 12:22pm
Is it true that the main argument against individual guns in this case is that DC is not a state, so the 2d ammendment doesn't apply?

Does this mean that male DC residents don't need to fill out selective service cards? Can national guard troops be mustered from DC residents? Can National guard armories or facilities be located in DC? Can DC tax money or government resources be directed toward the National Guard and other militia-type efforts? What happens when a disaster strikes DC? Does the national guard say 'tough shlt'?
3.12.2007 12:31pm
Regarding the 2nd ammendment as an individual right: though the text does mention 'militia,' find it significant that the rest of the Bill of Rights has to do with individual freedoms.

I haven't heard anyone argue that 'freedom of the press' applies only to actual printing press companies, or to the 'Press.' A guy in his pajamas sipping coffee and updating his blog resembles the 'Press' about as much as some middle age cubicle jockey with a shotgun in his closet resembles the militia.

We understand that just one man can make the Press. So does one well-regulated man make the militia?
3.12.2007 1:05pm
Spartacus (www):
Is it true that the main argument against individual guns in this case is that DC is not a state, so the 2d ammendment doesn't apply?

No, this misunderstanding seems to be spreading, perhaps due to a misreading of the Parker dissent's already confused reasoning.

The issue is exactly the opposite: since DC law is federal , the 2d amdt. does apply directly. Regarding a state law, we would have to ask if the amdt. is incorporated, and current SCOTUS precendent on the 2d still says it isn't (see Cruikshank, I think).
3.12.2007 2:08pm
Spartacus (www):
does one well-regulated man make the militia?

Each and every one of us, well-regulated or not, is a potential member of the unorganized militia (at least between the ages of 18 and 45).
3.12.2007 2:09pm
I personally urge everyone reading this to go out, take a safety and training course, and become well-regulated in the keeping and bearing of arms.

Historically, the vast superiority in the use of firearms over the use of the bow and arrow was not in any greater range, accuracy, or deadliness for several hundreds of years. It was in the ease of use and the ease of learning to use - it takes years to become dangerous with the bow and arrow while one can become both safe and skilled with a firearm in a weekend.
3.12.2007 3:30pm
Waldensian (mail):

it takes years to become dangerous with the bow and arrow

Not quite true. I quickly became dangerous to myself (if not the deer) while learning to use conventional and compound bows for hunting.

In all seriousness, bows have improved. A modern compound bow is no substitute for a firearm, but it isn't like learning an English longbow, either. I think most normal people could become quite dangerous with a compound bow in (much) less than a year.
3.12.2007 5:07pm
"But there is no 'circuit split' on the constitutionality of either the D.C. statute or a comparable federal statute banning all hand guns."

So all we need, then, is for some brave soul in DC to challenge the 1986 machine gun ban? ;) "No more registering handguns after 1976" seems pretty comparable to "no more registering automatic weapons after 1986," and true (selective-fire) assault rifles have at least as reasonable a relationship to militia functions as handguns do. Practically every light infantryman in the world is issued one.
3.12.2007 6:33pm
Combat use of the bow and arrow involves not just stationary firing at a stationary target (the first thing you learn, and most usable in hunting) but also firing while moving at targets who know of your location and are also moving. That's the sort of stuff that takes a good while to learn, but is much simpler with firearms. Buy yourself a couple of kiddie-toy suction-tip bow and arrow sets and try it out on the lawn with a friend having to shoot and dodge at the same time.

I hope my point is made, though, that one becomes much more dangerous and much more directed much faster in training with firearms than in training with bows.
3.13.2007 7:45pm