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Second Amendment Cert Petition:
The D.C. government's petition for certiorari in the D.C. gun ban case is here, via SCOTUSblog. It's a somewhat unusual petition: it spends relatively little time on the split and its consequences, and instead uses much of its space to argue the merits (usually pretty irrelevant at the cert stage). I gather the authors figured that a grant was pretty much a given; in light of that, no harm in taking the opportunity to start arguing the merits.
rlb:
Not one actual citation to the Second Amendment. That'll fool 'em.
9.4.2007 2:01pm
anonVCfan:
Is there much to say about the split and its consequences?

The D.C. Circuit majority was quite explicit about the fact that it was creating a split, so the petitioners didn't need to spend a lot of time arguing that there is, in fact, a split.

I don't know enough to speculate about what the consequences might be, but I haven't seen any doubts expressed about whether this case is an approrpiate cert vehicle, and where nearly all of the courts of appeals have already weighed in and the D.C. Circuit's interpretation of the Second Amendment is fundamentally different from the others, that's the sort of split that the Supreme Court needs to resolve, and I can't think of a good reason for it to deny cert here.
9.4.2007 2:03pm
DJR:
anonVCfan: They still need to write a cert. petition. You can't just say, "This case clearly should be granted because the D.C. Circuit said there is a split and there haven't been doubts about the consequences of its decision."
9.4.2007 2:09pm
Carolina:
No mention in the cert petition of "the right of the people."

That, to me, is the strongest argument against DC. How can a "right of the people" be converted to a right of states to arm militias without mangling the language beyond all meaning? It can't, in my opinion.
9.4.2007 2:24pm
Brett Bellmore:
True. Too bad the Court is willing to mangle the language beyond all meaning, when it really, really doesn't like what the language says.

I'm half expecting the Court to refuse cert. despite the clear circuit split, just because this is a subject they don't want to tackle: They neither want to have their finger prints on killing the 2nd amendment off, nor want to uphold it.
9.4.2007 2:35pm
Tomm:
From the petition -

Having looked to the District as a safe haven from armed insurrectionists, the Framers had no reason to limit local legislative authority to control weapons within the District to less than the authority a state would have.


There you have it: the 2nd Amendment shouldn't apply in DC because of the threat of armed insurrectionists.
9.4.2007 2:58pm
Tomm:
Here's a little more from the petition:

Among other things, the District responded to the chilling regularity with which handguns were taking the lives of children . . . Women were also suffering disproportionately from handgun violence: in 1974, every rapist in the District who used a firearm to facilitate his crime used a handgun.


That's a relief, it's all about protecting our women and children.
9.4.2007 3:06pm
Bob from Ohio (mail):

every rapist in the District who used a firearm to facilitate his crime used a handgun


Raping at rifle length might have been difficult.
9.4.2007 3:12pm
Tony Tutins (mail):
Whoa. In B, they appear to be arguing that DC is a state, and thus not subject to the Second Amendment in purely local legislation.

And in C, they conflate the ability to ban concealed weapons with the ability to ban concealable weapons. The issue as I understand it is defense of one's home, not carrying on the street.

More scariness: cites to the discredited work of Kellerman, who applied statistical models designed to study the spread of disease, to deaths where guns were used. As I recall, his statistics also showed you were more likely to die if you rented your home than if you owned a gun. And dog owners were less likely to die than other non-gun owners. Plus cites to the work of Hemenway, Wintemute, and Canadian gun grabber Wendy Cukier... shudder. Why not cite Bellesiles while they're at it?
9.4.2007 3:25pm
Malvolio:
every rapist in the District who used a firearm to facilitate his crime used a handgun
It is probably a fallacy to believe that a position must be false because the arguments employed by proponents of that position are so appallingly weak.

Still, it is hard to resist the sense that if this is the best the District could come up with, they must be wrong.
9.4.2007 3:26pm
33yearprof:
[quote] cites to the discredited work of Kellerman,... Plus cites to the work of Hemenway, Wintemute, and Canadian gun grabber Wendy Cukier... shudder. Why not cite Bellesiles while they're at it?[/quote]

Only the academic true believers, who "cook" or hoard their data, can make up stats that support DC's position. I suppose that says something.
9.4.2007 3:31pm
Malvolio:
It is probably a fallacy to believe that a position must be false because the arguments employed by proponents of that position are so appallingly weak.
Huh, look at that, it is a fallacy, even has a name: argumentum ad logicam, or the "fallacy fallacy".
9.4.2007 3:34pm
Tomm:
There are plenty of queer arguments in the petition and here is yet another.
The Council also found that the handgun is a criminal's weapon of choice. It cited national statistics showing that "handguns are used in roughly 54% of all murders, 60% of robberies, 26% of assaults."

The following paragraph reads
These dangers were even more pronounced in the District. Within its "totally urban" environment, handguns were used in a stunning 88% of armed robberies and 91% of armed assaults. App. 102a, 104a. In 1974, handguns were responsible for 155 of the record 285 murders in the District.

So as evidence that the dangers of handguns are especially pronounced in DC, they cite that 155 of 285 murders in 1974 were committed with handguns. This is an astounding ratio compared to the national average of 54 percent!
9.4.2007 3:35pm
AntonK (mail):
Perhaps the grant isn't pretty much a given. Glenn Reynolds doesn't think so:


I'm going to go out on a limb here and predict that the Supreme Court will deny certiorari on this case. I think that's likely because of the difficult position the Court would be placed in if it failed to find an individual right to arms under the Second Amendment. As Prof. Mike O'Shea wrote Concurring Opinions : How many Americans would view District of Columbia v. Parker as the most important court case of the last thirty years? The answer must run into seven figures. The decision would have far-reaching effects, particularly in the event of a reversal. Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker . . . That's a comparison between the Court's handling of the enumerated rights claim at issue in Parker, and its demonstrated willingness to embrace even non-enumerated individual rights that are congenial to the political left, in cases like Roe and Lawrence. "So the Constitution says Roe, but it doesn't say I have the right to keep a gun to defend my home, huh?" The Court's jurisprudence of unenumerated rights (with which I'm largely in agreement, by the way) would make it politically very difficult for the Court to eviscerate a clearly enumerated right to which many Americans attach great importance. At the same time, I don't think the Court is willing to affirm in Parker. If I'm right, a denial of certioriari is the only way for the Court to avoid a very difficult situation.

From this Federalist Society debate.
9.4.2007 3:39pm
Brett Bellmore:
I understand that the anti-gunners have a hard row to hoe, given that they're stuck defending a blantent untruth, but looking over this stuff does anybody else get the impression that they're not even trying to make it look good anymore? I mean, they could have done better than THIS, given all the time they've had to muster arguments.
9.4.2007 3:41pm
Tomm:
Great phrase from the ruling:

precatory surplusage
9.4.2007 3:44pm
Bruce Hayden (mail) (www):
Perhaps the grant isn't pretty much a given. Glenn Reynolds doesn't think so

Or, maybe with a possible Democrat in the White House in a year and a half, this might be the best chance at affirming the individual rights position.
9.4.2007 3:48pm
Carolina:
Oh, Malvolio, since you are reading this thread, I'll add in a totally off-topic comment. I re-watched The Mechanic, and we were right. Crazy glue doesn't make an appearance in the movie at all.

Completely Different VC Thread Where Comments Involved F/X and The Mechanic And Which Has No Relation to This Discussion
9.4.2007 3:54pm
Simon Dodd (mail) (www):
Brett:
I'm half expecting the Court to refuse cert. despite the clear circuit split, just because this is a subject they don't want to tackle: They neither want to have their finger prints on killing the 2nd amendment off, nor want to uphold it.
Conceivably, it could be lose-lose for the court's liberal bloc. No doubt they don't like the ruling below, and want to overturn it. On the other hand, they're not going to vote to grant and risk converting this case into a nationwide individual rights opinion unless they're fairly certain of having five votes. But if they have the votes to reverse, they must know that if the biggest ruling the court hands down before the '08 election says that the 2d amendment doesn't protect the right to keep and bear arms, they virtually guarantee a Republican will still be nominating Supreme Court Justices for another four years.

Perhaps I'm being too machiavellian. ;)
9.4.2007 5:06pm
Happyshooter:
I am a single issue voter, and this is my issue.

The guys I know who share my hobby of shooting believe in gun rights more than soccer mom former BAs in Lit Studies believe in abortion rights.

They destroyed a gun company over selling out to anti-gun clinton, and gave control of the congress to the GOP after the 94 dem gun ban.

Most of them understand that--at least since roe--the supreme court is a legislative body.

I predict that anything that the liberals want out of that court will result in a massive swing towards right wing congressmen.
9.4.2007 5:30pm
Carolina:
It only takes four votes to grant cert. Whether these votes come from the left four who are upset about the DC Circuit ruling, or from the conservative four, who want a definitive pro-2nd Am. ruling, I just don't see how this doesn't get four votes for cert.

And I agree with Happyshooter, if somehow the Court were to vote 5-4 to reverse, many Democratic politicians will spend the next 10-20 years wishing the court had voted the other way as they contemplate their new life in the private sector.
9.4.2007 5:38pm
AF:
It takes 4 votes to take cert, so the "liberal bloc" can't prevent it. Unless Alito, Roberts, Scalia, or Thomas are part of the liberal bloc.
9.4.2007 5:42pm
amper:
I, too, fear that cert will not be granted inthis case, simply because of the political nature of the question. However, I still have hope that the Court *will* take up the case.

What amazes me about the DC petition is how much it relies upon reasoning that is clearly illogical and also contrary to consistent historical interpretation of the Second Amendment, but that it also continues to rely heavily upon Miller, a case in which using the reasoning of the majority opinion, would clearly have the exact opposite effect as it has been held to have had, in that it can be clearly demonstrated that the "short-barrelled shotgun" is of particular value to police and militia units, and can therefore be acknowledged by the Court to be an acceptable arm.

You just can't reason with people who live their lives in fear of themselves and their responsibilities as sovereign individuals.
9.4.2007 5:54pm
Brett Bellmore:
Since Scalia, in his "A Matter of Interpretation", expressed the opinion that nobody would shed a tear when the Court got around to finally killing the 2nd amendment off, and since there are nearly 70 years of laws on the books, and Scalia is also known to have a lot more reverence for precedent than the actual Constitution, he might well be part of that block for purposes of THIS case. At least, I wouldn't want to bet against it.
9.4.2007 5:58pm
David Huberman (mail):
Two comments:

- SCOTUS will grant cert here because of the Circuit Court's ruling (and refusal of en banc review). Moving further afield, I think the ruling is likely to be on very narrow grounds, ultimately focusing on the "types of guns" argument. SCOTUS will not address the individual rights question. If I'm correct, then 4-4-1 won't be the math.

- I've been commenting since Parker v. DC showed up that this case has a very unique element: DC isn't a state, and can't assert a states' rights argument. Or maybe they can. The District's unique legal standing is an issue, and one which doesn't seem likely to be ignored. I think it could, potentially, color this case so as to make any opinion's impact minimal.
9.4.2007 6:08pm
AF:
However Scalia votes on this cert petition, he's just not part of the Court's "liberal bloc."

As a liberal who thinks the DC Circuit got it right, I hate the timing of this case. Hopefully the Democratic presidential candidate will be smart enough to support the Second Amendment here. I'm not holding my breath.
9.4.2007 6:11pm
AF:
David, are you suggesting the Court will assume for purposes of argument that the Second Amendment protects the individual right to bear arms and is applicable to DC, but nevertheless uphold DC's handgun ban? That's an implausible position. Which doesn't mean the Court won't adopt it.
9.4.2007 6:19pm
David Huberman (mail):
AF: What I was suggesting was the Court could decide that banning handguns, but allowing shotguns or rifles, is or is not acceptable under the Second Amendment. They could decide that without ever touching the individual rights question explicitly.

Reading the preceding paragraph, however, I see the logical flaw. You probably can't get to the narrow issue without making a determination of the individual rights question. And the DC petition cedes the point, too, very quickly moving past the individual rights argument and moving straight to the "our law protects our citizenry and hasn't been successfully challenged for 150 years".
9.4.2007 6:31pm
Tony Tutins (mail):
Scalia is also known to have a lot more reverence for precedent than the actual Constitution

In Employment Division v. Smith, Scalia seriously weakened protections for the free exercise of relition, supporting his position with precedents back to 1879, yet interpreting the precedent in Sherbert extremely narrowly. Scalia is authoritarian, not libertarian.
9.4.2007 6:34pm
Tomm:
@Tony
Are you saying members of the Native American Church should be able to use peyote based on 1st Amendment claims?

I think anyone should be allowed to use peyote, but that would first require a change in drug laws.
9.4.2007 6:40pm
Brett Bellmore:

Hopefully the Democratic presidential candidate will be smart enough to support the Second Amendment here.


I don't think there are any current candidates for that nomination who can [u]plausibly[/u] claim to support the Second amendment. They can [i]say[/i] they support it, but why would anybody believe it? Gun owners don't have that short of memories.
9.4.2007 7:00pm
Dilan Esper (mail) (www):
I think a grant is likely. But I have to say, it isn't certain. You know, there's a reason why the Court hasn't been taking any Second Amendment cases since Miller, even when they have bubbled up from the lower courts. Perhaps the justices don't really want to decide this issue. Even in cases of clear circuit splits, nothing forces them to hear cases.
9.4.2007 7:23pm
PersonalResponsibility:
I would think that the SCOTUS has to rule against an individual right in order to uphold the handgun ban... if they use the Miller test (is it in common use / useful to the militia) as precedent. Since modern high capacity handguns are quite common, and in regular use by the military, they pass the Miller test easily. Incidentally: the short barreled shotgun also passes the Miller test (they were used in trench warfare, and even now are used clearing caves and structures in the MidEast). Read Miller carefully, and you'll see that the case hinged on the fact that such evidence/argument was not presented before the court - not that such evidence was wrong or didn't exist.
Now, whether you agree with any of that or not, (of even if I've somehow got it wrong), any decision not explicitly confirming an individual right flies boldly in the face of 400 years of private gun ownership in America - from Jamestown, right up until the present. Any decision that ignores that will make the SCOTUS simultaneously a laughing-stock and a pariah.
9.4.2007 7:28pm
Tony Tutins (mail):
No more strict scrutiny for limitations on the free exercise of religion. Government can proscribe what religious faith prescribes, or prescribe what religious faith proscribes. If the draft is reinstated, conscientious objectors should be worried.
9.4.2007 7:48pm
Tony Tutins (mail):
read Miller carefully, and you'll see that the case hinged on the fact that such evidence/argument was not presented before the court

Yes, considering that only the government filed briefs in Miller, the anti-gunners make too much of it. The USSC should grant cert just to benefit from our adversarial justice system.
9.4.2007 7:55pm
Carolina:
Brett Ballmore:


Since Scalia, in his "A Matter of Interpretation", expressed the opinion that nobody would shed a tear when the Court got around to finally killing the 2nd amendment off


Ehh, that seemed very out of character for Justice Scalia, known as a second amendment supporter, so I pulled my copy off the shelf.

Scalia, on pages 42-43, is arguing against the "living Constitution" proponents who claim that polities evolve in the direction of ever increasing freedom. He says ". . . there will be few tears shed if and when the Second Amendment is held to guarantee nothing more than the state National Guard." That is a rhetorical point about popular sentiment on the Second Amendment -- that in general, the voting public does not the Second Amendment as critical like the founders did. It is not a prediction of what the Supreme Court would say, and most definitely not a prediction of how Scalia would vote.

Further, so that there is no doubt, Justice Scalia states explicitly what his view of the Second amendment is at n.13, pp.136-37: "my [Scalia's] interpretation of the Second Amendment as a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense." That's about as plain as he could possibly be.

This is the second or third time I have seen someone here on the VC use that earlier quote out of context to claim Scalia is somehow soft on the Second Amendment. He is not.
9.4.2007 7:55pm
Brett Bellmore:

That is a rhetorical point about popular sentiment on the Second Amendment


Yes, it's a wildly mistaken rhetorical point about popular sentiment. In fact, it's hard to express how out of touch somebody would have to be to think that point correct.

Scalia knows what the 2nd amendment means, of this I'm confident. What I am not confident of, is that this will prove decisive, when many thousands of existing laws hang in the balance, and he labors under a bizzare misapprehension about how many people value the 2nd amendment.

There are things Scalia demonstrably holds more important than being right.
9.4.2007 9:52pm
dwlawson (www):
This case is a win-win-push.

If they grant cert and uphold, we have our 2A SC decision at last and can proceed to challenge the non-incorporation of 2A to the States.

If they don't grant cert, kiss all Federal bans goodbye. This means no Federal AWB. Bye Bye HR1022. Anyone anywhere in the US can sue the US in DC with that ruling as law.

If they grant cert and overturn, we are back where we are now. Any State or City is free now to pass whatever gun control laws their constituents can stomach. I don't see States with CCW losing it, or other free States suddenly passing gun laws their constituents don't already support.
9.4.2007 11:02pm
Carolina:
Brett,

Justice Scalia has plainly said what he believes the Second Amendment means. If you have information or some source that suggests he will vote contrary to his beliefs, I'd love to know what it is. He's about the last justice whose vote would be influenced by popular sentiment, so I am really curious where the suspicion is coming from . . .
9.4.2007 11:57pm
Simon Dodd (mail) (www):
Brett, if the general public care so little about the bill of rights, wouldn't it be peculiar that the Democrats have have bet on the hope that the public will buy their arguments about this administration hollowing out the Fourth Amendment?
9.5.2007 12:04am
ReaderY:
Doesn't strike me as a bad strategy -- Supreme Court briefs have page limits; one might as well try and get the message across early and often. The Supremes might ignore the extra plugs, but they might not do any harm. In a really obvious case, it's probably doubtful the Court would turn down cert just because they thought the relevant parts of the brief too short and other matter too long.
9.5.2007 1:30am
dwlawson (www):
Actually if SCOTUS does rule against the Second Amendment (though I don't see that happening) it might cause such a massive blowback that we could win far more legislatively than we could judicially.

Regardless of Heller, we need to pursue this legislatively as that is the only way to get what we want.
9.5.2007 1:47am
David M. Nieporent (www):
ReaderY: I'm confident that if the Supreme Court takes this case, there will be more amicus briefs filed than there are handguns in Washington. I don't think page limits will be an issue.
9.5.2007 7:15am
Gildas (mail):
Actually if SCOTUS does rule against the Second Amendment (though I don't see that happening) it might cause such a massive blowback that we could win far more legislatively than we could judicially.

Absolutely. Consider for a moment that the Protection of Lawful Commerce in Arms Act contains a clause that says [paraphrasing] 'Congress finds that the 2A protects an individual right to keep and bear arms, irrespective of whether someone is a member of a militia'.

Now, that was a controversial law - several moderate Democrats voted against it because of the Tort reform aspect to it. Nevertheless, it passed by 2 votes shy of 2/3ds in the Senate and 7 votes shy of 2/3ds in the House.

In a world where SCOTUS overturns the DC circuit I can see that same language reappearing as a constitutional amendment and (with a bit of a push from gunowners) passing pretty quickly.

And then - 38 states to ratify, 40 with Right to Carry. I don't think ratification would be a big deal.
9.5.2007 8:40am
TZiese:
I frankly find it bizzare that many of us assume that "supporting the Second Amendment" is the same as "supporting an interperetation of the Second Amendment that guarantees an individual right to bear arms." The one doesn't follow from the other.

I'm generally a supporter of gun rights, but I'm not sure the Constitution guarantees it. Surely if the Second Amendment guarantees a personal right, and if that right shall not be infringed, does the government therefore not have the power to prevent grenades or machine gun emplacements? Bombs? How about allowing the mentally ill to own ordinary handguns? (The mentally ill don't lose their free speech or due process rights, why would they lose their personal arms-bearing rights?)

This is an honest question. If the Second Amendment doesn't prevent states (and DC) from enacting some arms restrictions, where in the Constitution do states (and DC) get that authority, in seeming contravention of the Second Amendment?
9.5.2007 8:47am
George Lyon (mail):
TZiese:

If you read Parker you will see that Judge Silberman addressed the bombs, RPGs, tanks, nuclear weapons argument. As for machine guns, they are legal under federal law to possess if one jumps through the right hoops and they are otherwise legal under local law. For example, a Virginia resident may own a federally registered machine gun.

Judge Silberman also addressed the fact that all rights have limits. Felons and mentally ill persons who are a danger to themselves and others, and children don't have the right to keep and bear arms.

Even though the First Amendment reads: "Congress shall make no law..." that is no law abridging the right of free speech, not no law abridging free speech. Just as you cannot shout fire in a crowded theater (unless there is a fire), there are legitimate limits that can be placed on the right to keep and bear firearms. Most current restrictions on firearms would survive Parker. I doubt the prohibition on possessing a weapon in a national park would survive, especially for concealed carry permit holders. A federal ban on high capacity semi-auto weapons may or may not pass constitutional muster. I personally think it would not contribute to public safety, but believe it would likely be upheld if it were not otherwise arbitrary. DC in practice bans all semi-auto weapons with a detachable magazine no matter what the number of rounds that can be contained in the magazine. I think that would likely fail, but a ban on high capacity magazines in and of itself would likely be upheld. What affirmance of Parker (Heller) would do is require courts to engage in the business of balancing legitimate, compelling government interests against an individual right to keep and bear arms. Courts do this balancing all the time when dealing with other fundamental rights.

A very interesting question is whether DC could continue to prohibit everyone except law enforcement officers from carrying handguns. Although DC law allows the Chief of Police to issue carry permits, the Chief apparently never does so. If there is a right to keep arms, there should be a right to bear them as well, but Parker does not address that, other than in the home, holding there is a right to carry a hand gun in the home for protection. In my view, the ability of the Chief to deny carry licenses in DC for any or no reason, would not survive a Parker challenge, but I doubt that would require DC to become a shall issue jurisdiction.
9.5.2007 11:18am
W. J. J. Hoge:
Of course, if Congress asserted its authority and the members voted in line with the laws in their home states, DC would be a shall issue jurisdiction.
9.5.2007 12:38pm
Tony Tutins (mail):
Assuming this Supreme Court rules in accordance with the Miller decision, as a member of the unorganized militia (by virtue of being a male between 17 and 45), I expect to be able to own "the ordinary military equipment": currently a (full-auto, obviously) M-16, and an M-9 pistol with its standard 15 round magazine.
9.5.2007 1:32pm
Spartacus (www):
I don't think there are any current candidates for that nomination who can [u]plausibly[/u] claim to support the Second amendment. They can [i]say[/i] they support it, but why would anybody believe it? Gun owners don't have that short of memories.

Try this;
also here. Fred.
9.5.2007 1:40pm
Spartacus (www):
Brett: sorry, I misread the post you were responding to. However, Fred is the only R with a chance of winning with a solid 2d amend. position.
9.5.2007 1:42pm
tcg:

I expect to be able to own "the ordinary military equipment": currently a (full-auto, obviously) M-16, and an M-9 pistol with its standard 15 round magazine.


Actually, you'd only get three-round burst fire on that M-16, not full auto. Sorry to be the one to burst that dream of yours... :) You could, however, go for the M249 SAW instead. It'd be way more intimidating to see you laying at the top of your stairs waiting for a home intruder with one of those than standing there with an M-16.
9.5.2007 4:58pm
Tony Tutins (mail):
Sorry to be the one to burst that dream of yours

Ah, I see that change was made in 1981.
9.5.2007 5:21pm
PersonalResponsibility:
"The mentally ill don't lose their free speech or due process rights, why would they lose their personal arms-bearing rights?"

You answered your own question: through due process, the same way perps are relieved of their right to life. The mentally ill can be declared mentally incompetent and relieved of their liberty - nothing new there. Institutionalization is out of favor at the moment (it's why there are so many loonies walking the streets!), but using due process to take away civil rights is done every day.

Refusal of arms to the mentally incompetent, children, and criminals is already covered by the national instant check. This case cannot be reasonably expected to change that; primarily because this case doesn't challenge the instant check. For that matter, this case doesn't even challenge DC's onerous registration requirements. This case is about as pure as you can get in that it challenges only DC's total prohibition on handguns, and it's total prohibition on operable firearms of any kind.

Rather disappointingly to me, the case doesn't even challenge DC's rather laughable 'machine gun' definition that (as pointed out above) is used by the MPD to ban ownership of SEMI-auto arms with removable magazines. That is, even if common sense prevails in this case, other DC laws still on the books would still be used to ban everything but revolvers and a very few (antique) fixed magazine semi-auto pistols. Sorry Tutins, no M9, M11, or 1911 for you!

Now the court could, I imagine, choose to address this grievous infringement in their decision, but I'm not holding my breath.
9.5.2007 6:25pm
PersonalResponsibility:
"This is an honest question. If the Second Amendment doesn't prevent states (and DC) from enacting some arms restrictions, where in the Constitution do states (and DC) get that authority, in seeming contravention of the Second Amendment?"

Well, IANAL, but my [blunt] answer to your question would be: "Nearly seventy years of bad precedent, starting with Miller"

So, the trick is for the SCOTUS to decide this case in favor of an individual right, without upsetting that rather big apple cart (20,000+ other gun laws). That's where the legal gymnastics come in. And that's why you have a few guys out there predicting that they won't take the case. Because this case is so pure, and the plaintiffs so clean, they are over a barrel.
9.5.2007 6:48pm
Tony Tutins (mail):
my [blunt] answer to your question would be: "Nearly seventy years of bad precedent, starting with Miller"

I'd go back to Presser v. Illinois, which stated the 14th Amendment did not mean the states were bound by the 2nd Amendment. Of course that was long before the USSC held that the 14th amendment required states to respect any of the enumerated rights in the Bill of Rights. Under the doctrine of selective incorporation, states can't take away our freedom of speech, press, religion, etc. etc., even if their constitutions don't guarantee us those freedoms. But incorporation happened case by case, right by right, year by year, in a process extending well into the 1960s.
9.5.2007 7:21pm
PubliusFL:
Tomm: Note also the equivocation. They show how the "dangers were even more pronounced in the District" by comparing the rate of handgun use in "robberies" and "assaults" nationwide to the rate of handgun use in "armed robberies" and "armed assaults" in DC.
9.5.2007 8:55pm
dwlawson (www):

Just as you cannot shout fire in a crowded theater (unless there is a fire), there are legitimate limits that can be placed on the right to keep and bear firearms.


True, and you can't fire your gun in a crowded theater either (unless in self-defense).

You also can't fire your gun at someone (attempted murder) and you can't kill someone with a gun (murder) except in self-defense.

Sound like reasonable restrictions to me.
9.5.2007 11:47pm
therut:
I really do not see what the big thing is. I mean the USSC has done bold things before to support individual freedom.. Why all the wringing of hands over the individual right to keep and bear arms? Most on this blog know gun control does little to nothing to prevent crime so why get the least little bit nervous if the USSC stuck down all but 2 or 3 regulations on firearms. It is not as though many of the laws are good policy nor have they been around for a long time. Why should the USSC go wobbly on the 2nd? You would think by now they are grown up enough to not care a fig about the elite and the MSM and their whinning and moaning. And who really cares if someone as dishonest as Saul Cornell is found to be wrong by the hightest court in the land. And just think of how liberal foundations like the Joyce Foundation could better spend their money. I think if they would do what the Constitution demands they might win back some credibility that they are lacking with the citizens of this country.
9.6.2007 12:10am
Happyshooter:
Assuming this Supreme Court rules in accordance with the Miller decision, as a member of the unorganized militia (by virtue of being a male between 17 and 45), I expect to be able to own "the ordinary military equipment": currently a (full-auto, obviously) M-16, and an M-9 pistol with its standard 15 round magazine.

M-4 version of the M-16 is current Army issue, that means not only the machine gun ban will have to be struck down, but also the barrel length restriction (M-4 is a 14.5" barrel)
9.6.2007 9:55am
PersonalResponsibility:
"I'd go back to Presser v. Illinois, which stated the 14th Amendment did not mean the states were bound by the 2nd Amendment."

Well, gun prohibition groups would certainly like people to believe that, but I would suggest reading Dave Kopel's take on Presser (I'm no constitutional scholar). To my [layman] reading, the Presser decision actually makes it crystal clear that the states can't disarm the people (because it would undermine the unorganized militia), while it does find that laws against 'brandishing' a weapon are well founded. That is, it simply says that unruly or criminal behavior with guns isn't protected by the 2nd Amendment. So, while Presser may very well be bad precedent, it doesn't say what the gun banners want it to say, and isn't an obstacle to an individual right to arms.
9.6.2007 1:12pm
Tony Tutins (mail):
To my [layman] reading, the Presser decision actually makes it crystal clear that the states can't disarm the people

That would not be the common interpretation of Presser. For example, some 30-40 years ago, when the village of Morton Grove, Illinois, banned handgun possession, a Seventh Circuit panel ruled that the Second Amendment did not apply to the states (municipal action being considered to be state action), and that one's gun rights came from one's state's constitution. Because the Illinois Constitution made the right to keep and bear arms subject to the police power (health, welfare, safety, etc.), the court thought a total handgun ban was an appropriate use of the police power.
9.6.2007 9:41pm
PersonalResponsibility:
"That would not be the common interpretation of Presser."

Then I suppose I must accept your proposition that Presser is bad precedent, or at the very least, commonly abused, in light of this passage from the Opinion of the Court in Presser:

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

How the Seventh Circuit could read that as being in support of a total handgun ban is beyond logic. Then again, I find that a lot of what the anti's proffer is beyond logic...
9.7.2007 1:25pm