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The Story of District of Columbia v. Heller:

Reason's Brian Doherty, has an excellent article telling the fascinating story of the origins of the lawsuit that eventually resulted in the Supreme Court's decision in District of Columbia v. Heller. Brian shows how the suit was initiated and carried forward by a small group of libertarian activists and lawyers, sometimes in the face of surprising skepticism by the NRA and other gun rights supporters.

I differ slightly with Brian in so far as I think he may overstate the extent to which Heller will actually result in increased protection for Second Amendment rights. For the reasons I set out in this Legal Times article, I think that Heller's impact may well turn out to be extremely limited. Still, the Heller litigation was at least an important symbolic victory in so far as it led the Supreme Court to recognize for the first time that the Second Amendment establishes an individual right for gun owners as opposed to a "collective right" limited to militia members.

theobromophile (www):
Levy also has an article about the case - and its background, bickering with the NRA, etc - in last month's Engage magazine.
11.20.2008 1:26am
Letalis Maximus, Esq. (mail):
The NRA had a right to be skeptical. Heller lost at the district court. The vote at the circuit was 2-1. And the vote at the Supreme Court was 5-4. It simply doesn't get any closer than that and the make-up of a circuit panel can hardly be predicted years in advance of actually getting there. The switch of one vote, just one, at the circuit or Supreme Court and it would've been over.

And to those who think we're out of the woods, I have but one thing to say. Bowers v. Hardwick.
11.20.2008 5:21am
Happyshooter:
The NRA was more than right to try to avoid the case.

We only 'won' by one vote, and the decision leaves lots of room for anti-freedom judges to quash us under their jack-boots.

For Letalis' point, I predict that the Obama will appoint several new justices, who will then grab the nearest gun case and ban all guns in private hands by fiat--with some narrow exceptions for guns the ultra rich like to shoot.
11.20.2008 8:30am
PersonFromPorlock:
The other side of Heller is that it's now permissible to license individual rights. Journalism licenses, anyone?
11.20.2008 9:04am
Sarcastro (www):
I have figured out how Obama's going to make the SCOTUS ban all guns by replacing only liberal justices. When Ginsberg and Stevens retire, Obama is going to replace them with Super Justices who get 2 votes!

Bowers stood for 17 years. Historically it may seem we're in a heckuva big treeless area, but I think I see a tree way over there! Not out of the woods I say!

See, liberals judges hate stare decisis. It's kinda like Justice Thomas' Constitutional jurisprudence, only with less evidence it exists. That's cause it's a big secret till we wake up and all our guns are gone!
11.20.2008 9:13am
cboldt (mail):
-- the Second Amendment establishes an individual right --
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The second amendment reiterates a pre-existing right, and reasserts the point that Article I does not empower Congress to pass a law infringing the pre-existing right of the people to keep and bear arms. The right to keep and bear arms is not a grant from the government to the people. It is the people keeping their foot on the neck of the government.
11.20.2008 9:52am
cboldt (mail):
-- We only 'won' by one vote --
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I heartily concur with "won" being in scare quotes. The majority in Heller asserts the law in such a way that it tramples all over the 2nd amendment. In particular, it turns Miller on its head, legitimizing decades of bogus interpretation of the case and paving a clear path for government to make firearms possession an onerous (to the point of likely "illegal") undertaking.
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It's no matter, if the people prefer to be subjects rather than superior to those who govern them, then they deserve what's coming.
11.20.2008 9:57am
U.Va. Grad:
And to those who think we're out of the woods, I have but one thing to say. Bowers v. Hardwick

Social conservatives: the people who think the biggest threat to the nation is the possibility that someone, somewhere, might be having sex.
11.20.2008 10:04am
cboldt (mail):
as opposed to a "collective right" limited to militia members.
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Even that view isn't restrictive, depending on how one construes the word, "militia." Historically, the militia was the fraction of the population that was willing and able to wield deadly force. Quakers and Mennonites would be excluded. But if "militia" is roughly translated to mean "those people who will fight for their personal freedom," then the limiting effect of saying "only those people who are willing to fight may keep and bear arms" is tantamount to protecting an individual right. Any individual who possesses the will and ability to wield deadly force is self-proclaimed a member of the militia.
11.20.2008 10:05am
Sebastian (mail) (www):
When the case was originally getting started, even I was skeptical. But it's one of those things, at some point, you know you're not going to stop it, so you better get on board and hope the captain of the ship knows how to navigate the channel. They did in the case of Heller. Two things, I think, helped make this case win. One, O'Connor retired. That's meant that Kennedy was the only swing vote. The second thing I think was that Levy assembled a very competent legal team, who put together a great case.

I can understand why NRA was skeptical at first. I seem to recall I came on board as a blogger before they did. But once they figured out this was going forward no matter what they did, they contributed to the case in some pretty powerful ways, including getting a majority of Congress to sign onto an Amicus brief. That's one of those things only NRA can do, and I think it made an impression.
11.20.2008 11:05am
Smallholder (mail) (www):
Happyshooter wrote:


The NRA was more than right to try to avoid the case.

We only 'won' by one vote, and the decision leaves lots of room for anti-freedom judges to quash us under their jack-boots.

For Letalis' point, I predict that the Obama will appoint several new justices, who will then grab the nearest gun case and ban all guns in private hands by fiat--with some narrow exceptions for guns the ultra rich like to shoot.



Dude, put down the kool-aid.

And Ilya, you let the mask slip a bit, no? Admitting that Miller didn't acknowledge an individual right, contra-the happy shooting spinmeisters?
11.20.2008 11:23am
cboldt (mail):
-- Admitting that Miller didn't acknowledge an individual right, contra-the happy shooting spinmeisters? --
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The District Court held that section 11 of the ['National Firearms Act' approved June 26, 1934] violates the Second Amendment. It accordingly ... quashed the indictment [against Miller]. ...
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In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.


Notice the logic of the Supreme Court in Miller focuses on the nature of the weapon, and not on whether or not Mr. Miller himself was "a member of the militia."

... the Militia comprised all males physically capable of acting in concert for the common defense.
11.20.2008 11:44am
Melancton Smith:
Correct. Miller was long mis-cited as denying the individual right so the effect with regards to the large body of jurisprudence that relied on it was that it denied the individual right.
11.20.2008 2:13pm
James Gibson (mail):
Cboldt your putting forth the bellisiles version of history.

The militia in the time of the founding fathers was every available man between the age of 18-45 who wasn't deaf, blind, crippled, or Quaker. To say that that was only "the fraction of the population that was willing and able to wield deadly force" is highly erroneous as shown by the number of references to militia men not wanting to serve during the war of 1812. Militia returns for the period up to the war of 1812 show upwards of 60% of that portion of the population on the militia rolls. If you want to call it a fraction you can but then again anything below 100% is a fraction.
11.20.2008 2:21pm
Ilya Somin:
And Ilya, you let the mask slip a bit, no? Admitting that Miller didn't acknowledge an individual right, contra-the happy shooting spinmeisters?

I never claimed that it did. On the other hand, I also don't think that it ruled against the existence of an individual right. Rather, Miller sidestepped the issue.
11.20.2008 2:26pm
cboldt (mail):
-- To say that that was only "the fraction of the population that was willing and able to wield deadly force" is highly erroneous as shown by the number of references to militia men not wanting to serve during the war of 1812. --
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I don't disagree. My comment "willing to fight" was meant to distinguish between those actually in service, from a larger of body that comprises those capable of (and not morally opposed to) service.
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Given that one is physically capable of fighting, one would not have to be pressed into service in order to a member of the militia.
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The contention that I reject is that a person must be enrolled or signed up as part of a state's organized military reserve in order to be in "the militia." One obtains the status of being part of the militia [in general] by having possession of the physical ability to bear arms, and lacking objection on pacifist religious grounds.
11.20.2008 3:21pm
Brett Bellmore:
The NRA was right that the odds were against us with Heller. Where they were wrong was in thinking that,

1. They were ever going to get better.

Even after '94, in which gun owners were largely responsible for catapulting the GOP into power, we got practically nothing from the GOP, and both Dole AND Bush ran in favor of increasing gun control. The GOP is only as pro-gun as it thinks it has to be, and that's not very pro-gun. Supreme court justices are nominated accordingly. Look at how many members of the minority in the Heller decision were nominated by Republicans.

And,

2. That the issue would never reach the Court unless we brought it there.

Sooner or later the Supreme court was going to take a 2nd amendment case, and if it wasn't a carefully crafted test case brought by 2nd amendment defenders, it was going to be a carefully crafted test case by gun controllers, designed to lose. And once the Supreme court ruled against us, it was going to be game over.

If you have no way out of the game, and we don't, you take your best shot even if it isn't very good.
11.20.2008 6:25pm
RPT (mail):
And if Saxby Chambliss loses in Georgia, Obama is going to take all of your guns anyway! Immediately! That's what he said!
11.20.2008 7:36pm
Oren:
None of the Heller majority are going to retire. We'll get precisely as much striking-down of guns laws as Anthony Kennedy wants, and not an iota more.
11.21.2008 12:26am
Happyshooter:
None of the Heller majority are going to retire.

Yes, in the next 8 years at least one will die or be unable to functions. Then we will lose it all.
11.21.2008 12:46pm