Glenn Reynolds & Brannon Denning on the Second Amendment After Heller,
at the Northwestern Law Review's Colloquy. Both Professors, in addition to their other claims to fame, have written a good deal of scholarship on the Second Amendment before, and even more on constitutional rights more generally. Much worth reading, and only 9 pages.
DC Denial
Although the semi-auto issue lives on -- Dick Heller reportedly owns not only a revolver, but a .45 ACP semi (which he keeps in Maryland), and the MPD Deputy Chief said anybody bringing in a semi would have it confiscated, and might be investigated and prosecuted later. I doubt the mere assertion of a police official in the newspaper would be enough to give standing to challenge D.C.'s mis-definition of semi-automatic firearms as prohibited "machineguns" by itself, but surely confiscation of your pistol when you try to register it -- with or without a follow-on prosecution -- would do the trick.
I am somewhat more confident than Reynolds &Brannon are that, assuming the courts find the Second Amendment is incorporated, at least some local firearms restrictions are eventually going to be thrown out. Probably starting with Chicago's de facto handgun ban and catch-22 registration scheme that Alan Gura already challenged. D.C.'s shockingly rejectionist attempt to "comply" with Heller can be litigated without the incorporation issue, and as soon as someone has the guts to show up at MPD headquarters with any self-loading pistol that uses a detachable magazine, the issue will be ripe.
If Fenty et. al. continue to be as obstructionist as they seem to be, ... denying any semi-auto with an 11 round+magazine as a machine gun, you have to present your gun but we may confiscate it if you do for carrying a "machine gun" in the city etc....
What are the potential remedies? Another 10 years of court cases to create a never ending series of confrontations and continuances, with one side using an unending supply of tax money to pursue their vision of a "gun free paradise" and the other relying on their limited personal resources and "the kindness of strangers"?
So, with Adrian Fenty (aided and abetted by Nickles and Lanier) ironically playing the part of George Wallace in the schoolhouse door, I don't foresee the US DoJ sending troops, ala Little Rock, to DC. So what real world steps are available to enforce the decision?
Here in Chicago Daley has already made it clear that he has absolutely no intention of making any changes in his Chicago ban.
OTOH, yesterday Evanston and two weeks ago Morton Grove raised their hands and said we will not fight the lawsuits from the NRA. At least a few public official types recognize the handwriting.
Why? Because it was a half-hearted revolution to begin with. There was some sympathy from the Sandra O'Connors of the world for disallowing direct federal regulation of state governmental activities (the New York v. United States / Printz doctrine) and for redefining noneconomic activities as affecting "commerce" so Congress could regulate it, but the votes were never there for imposing any sort of serious requirement that Congress' power is limited to INTERSTATE activity (let alone a more rigorous test of what "commerce" is which Clarence Thomas seems to be alone in advocating).
In other words, the revolution failed because they never had the votes for it to succeed. I suspect, by the way, that the more strident gun rights positions don't have the votes on the current court either.
JUDY WOODRUFF: “Peter Nickles, speaking for the district, this was blow to the district.”
PETER NICKLES, Attorney General, Washington, D.C.: “This was a blow. And I think it's a very bad decision, in that it throws off decades of precedent. All the circuit courts in the United States, as Marcia has said, came down the other way. The 1939 decision of the Supreme Court came down the other way.
“The district law has been in effect since 1976. And we have found that that law, which was instituted to deal with surging violence in Washington, D.C., has worked. You ask any cop on the beat or any guy in the fire department who goes into these homes, has it helped? They all agree it has helped.
“So now we have to deal with the fact that the Supreme Court 5-4, throwing off all this precedent, has found some clear meaning as to an individual right to bear arms, despite all the history involved. And now we're prepared to go forward and ensure that there is strict regulation of that right.”
Notice Nickles’ last sentence above.
(Transcript, video)
DC Home Rule exists at the sufferance of Congress. Already somebody has introduced (or is about to) yet another bill requiring DC to stop its nonsense; the more publicity the DC government antics get, the more chance this has of actually passing.
I love it when a principal shows up to answer my question about what's next?
Clearing the Air
July 18th, 2008 by Alan Gura
There’s been some confusion about how the Supreme Court’s decision is to be implemented, and what it means for DC’s registration system, going forward. We’d like to clear the air.
The handgun that Mr. Heller tried to register in 2002, the registration of which was ordered by the courts, is a nine-shot revolver. It is fully registerable under D.C. law as it stands today, and Mr. Heller will have it registered to him. We are not expecting the city to resist the registration of this firearm. Once the gun is registered to Mr. Heller, he can use it to defend his home.
There are significant, practical limits on the number of arguments that can be put together in one lawsuit. In our case, we chose to focus on the handgun and functional firearms bans – and that was plenty work for the courts to consider. Litigants do not have unlimited space in the briefing, or unlimited time in argument, and there is a significant strategic advantage – as we have demonstrated – in keeping constitutional litigation focused and narrow.
That does not mean that the rest of the D.C. Code with respect to firearms is constitutional. Much of it is not. But the entire code was not directly at issue in our case. It is our hope that Mayor Fenty and the City Council, or Congress, if the Mayor and City Council are unwilling to do so, sit down with their code books and the Supreme Court’s opinion, and make a serious effort to conform the former to the latter. If the political branches do not make the city’s firearm laws constitutional, then as we’ve seen, the courts will do it for them.
However, the judgment in this case relates only to the provisions that were struck down, and the city appears to be complying with the literal command of the judgment. Again, we do not believe that everything the city is doing is constitutional. Some of the city’s registration practices are clearly unconstitutional, as is the semi-auto ban. But these are not issues that can be resolved in the context of the current case.
The Supreme Court’s decision is a smashing victory for liberty, and it has made immediate practical impact on the Second Amendment rights of Washington, D.C. residents. Mr. Heller will have his handgun, lawfully, at home, and he can use it for self-defense should the need arise. That was the object of the case, and it has succeeded. We will continue to monitor the city’s behavior for compliance with the decision. And we are sure that in due time, all of the city’s unconstitutional practices will be altered, one way or another.
Two words: Trigger Locks.
Maybe I'm just being even more of a pinhead than usual, but somebody should explain how the District's emergency legislation does not directly violate the judgment of the Court (as opposed to dicta) by requiring that all firearms be kept unloaded and inoperable until AFTER an "immediate threat" has been "reasonably" perceived by the homeowner.
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