The Volokh Conspiracy

What happened on the cross petition?

This could be the biggest SCOTUS case since Roe v. Wade or Kelo v. New London.

Doesn't this question pre-judge the issue to some degree? I thought one of the key arguments on respondents' side (though not the only argument) was that the "state-regulated militia", as understood in 1790, included pretty much everybody.

The "every healthy male's in the militia" militia of 1790 was not a state-regulated militia.

A mouse:
Right, there have always been two categories of "the militia", the "every healthy male" unregulated militia, and the "regulated militia". The unregulated militia is the raw material for the regulated militia. A population of armed healthy males was considered a necessary precursor to a drilled, (semi) disciplined trained fighting force. Especially back in the day when the government didn't have an unlimited pocketbook and a standing army was considered a dangerous luxury.

Henry,
I think the phrase "not affiliated with any state-regulated militia" is unique to the DC case. One of the primary arguments DC is making is that the second amendment does not apply to DC because it is not a "free state".

Kazinski: I don't think the armed citizenry was labeled the "unregulated militia" by the Framers; consider, for instance, the Militia Act of 1792, which treated all adult white males 17 to 45 as members of the militia, and mandated training, weapons possession, and the like -- certainly what would have been called "regulations" in the language of the time. Likewise, 1700s laws for "regulating the militia" dealt with the able-bodied white male citizenry generally. The smaller fighting force would have been called a "select militia."

In my fantasy world, the Court writes a brief opinion by a 9-0 vote declaring the Second Amendment to be an individual right, voids the D.C. law and leaves it at that. Trying to decipher the Second Amendment as a historical or originalist matter (or their neo counterparts) is a fool's game.

I fear that in the real world of justices with varying degrees of self-importance or arrogance, the vote will be more like 3-3-2-1, with this law being invalid, and leaving everyone mystified. Roberts has shown little ability or interest in uniting the Court on major issues.

Student, the standing issue asks whether there was an injury at all. The merits looks at whether there is a constitutionally cognizable remedy for the injury.

Bpbatista, At the risk of making a wild guess and describing them as a prediction, I think this case will not break down on ideological lines. This typically happens when the Court looks at issues they have hardly ever been examined before. Granholm v. Heald (states' prohibition on alcohol importation) is the best example of this-it had Kennedy joined by Scalia, Souter, Ginsburg, and Breyer. Frankly, I'm more worried about Roberts than Kennedy.

Student: Even if the Second Amendment creates no personal right, the folks in this case still have a right to sue; it just means they'll lose on the merits. "Not having a right that helps you out" is distinct from "not having standing."

Most likely scenario in my view is that the Court finds an individual right but immediately begins carving it up in the same way that the First Amendment has been carved up. In the end, neither side will be happy (except insofar as it keeps the fundraising till full).

Since this is about possessing a firearm in the home vs. the right to carry on your person in public, this may very well be a 6-3 or better case.

But may be the the right to self-defense, which has surely got to be an unenumerated right if there is one, is not necessarily a Second Amendment right.

EV,
It always pretty hazardous to debate with an expert, especially when you haven't done much research of your own, but doesn't the phrase "regulating the militia" itself imply that the militia is something that exists, even before it is regulated? Nor would you expect even in the 1790's that every healthy armed male would drill with the regulated militia, there would be just too many urban dwellers to train them all, and in the sticks many would be too remote to drill with a "regulated militia". I will concede the fact that the militia act of 1792 does state that every able bodied man be enrolled in the militia, but there is no actual requirement that they be drilled, only that they arm themselves.

Does anyone else think it matters if they use the version that says "free state" as opposed to "free State"? The former seems like it would have to apply to the entire nation, republic, or whatever other synonym you'd use for clarity, where as the latter would refer to the "State(s)" as in the sixth and tenth amendments.

IANAL, but I have been following this case since the DC Court of Appeals issued its ruling last year.

In high school, I spent an entire year in an "enriched" government class where we spent time studying and debating the Constitution and Amendments. My opinions on the subject formed pretty early. I believe the 2nd Amendment protects an individual right to keep and bear arms, and I hope the Supreme Court rules that way. I don't foresee a 9-0 decision by any means. It would be nice if the individual rights interpretation gets a solid majority. A plurality opinion either way will only muddle the waters even more.

Just my opinion. Some assembly required, your mileage may vary.

Kazinski - a fuller version of the Militia Act of 1792 is here; that link shows

That every citizen, so enrolled and notified, ... shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

The Act appears to assume 'company days'and does specify

...It shall be the duty of the Commanding Officer as every muster, whether by battalion, regiment, or single company, to cause the militia to be exercised and trained, agreeably to the said rules of said discipline.

I think that falls just short of requiring a muster but I fail to see how any level of militia could get along entirely without one. (Current Individual Ready Reserve (IRR) are prior-service and thus 'trained'.)

Johns,
Exactly, the act doesn't say that there is any requirement to actually be called out to train and exercise. Let alone any minimum number of days or hours of training. I would imagine in practice that the majority of the 'militia' never trained, but that is a mere impression, and probably differed widely from jurisdiction to jurisdiction.

I also think while the concept of the militia is an interesting debate showing how widely the term was defined, the operative clause of of the 2nd amendment uses a even more inclusive term "the right of the people". That is about as broad as you can get.

Judge Hall opinion from the '90s which the Reinhardt opinion reaffirms.

Perhaps Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)?

We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action.