Heller v. DC - Your Gun Rights Case

Couple questions BB, from your Lyle Denniston scotusblog post.

Wait…what? I was under the impression that we had a constitutional right to self defense. Perhaps not stated in so many words per se, but there. This confuses me. And somehow, worries me.

  1. [quote]Fifth, what kinds of guns does one have a constitutional right to possess, even if that right is limited to one’s own home? The opinion gives some hints - “weapons typically possessed by law-abiding citizens for lawful purposes” - but the most that one can say with confidence is that pistols, easily loaded and easily handled, are definitely within the right of possession, in operable condition in the home, for self-defense.

Is a rifle something one can constitutionally have at home, even though not readily useable if one is suddenly attacked? Or a repeating pistol? The opinion does not say for sure. [/quote]

Ok, now part of this I can understand—so called ‘assault weapons’ etc. Certainly it should be detailed as to whether or not you could legally store an M60 for “home defense”. But this seems to be asking a somewhat absurd question–rifles?? According to the Scalia opinion, “weapons typically possessed by law-abiding citizens for lawful purposes”, rifles and shotguns both quite easily fall under that definition/guideline, as both are routinely used for hunting and or simple target/clay shooting. This summary makes it seem as if there were some question as to whether they should be allowed.

Perhaps I’m being naive, but following the “common sense” or “rational basis” guide, it seems to be quite obvious to me. I fail to understand how this can be a serious question except as regards heavy artillery and ‘assault weapons’. Example- a “repeating pistol” is really nothing more than a semi-automatic pistol. Which represents the vast majority of handguns today. We’re not talking about a full auto pistol here, or if the author MEANS to talk about a fully automatic pistol, he is clearly confused as to the correct term.

[quote]Aragorn wrote:
Couple questions BB, from your Lyle Denniston scotusblog post.

SCOTUSblog post:

  1. It also seems to mean (though this is only implicit) that there is, for the first time, a constitutional right to self-defense - or, at least, a common-law right of self-defense that is close to being of constitutional rank.

Aragorn wrote:
Wait…what? I was under the impression that we had a constitutional right to self defense. Perhaps not stated in so many words per se, but there. This confuses me. And somehow, worries me.[/quote]

There is a common-law right of self defense, which has been codified in most jurisdictions, but it has never been a Constitutional right previously - unless it was a necessary implication of the right to keep and bear arms, which was confirmed as an individual right after a hundred years of progressive assault.

[quote]SCOTUSblog post:
2) Fifth, what kinds of guns does one have a constitutional right to possess, even if that right is limited to one’s own home? The opinion gives some hints - “weapons typically possessed by law-abiding citizens for lawful purposes” - but the most that one can say with confidence is that pistols, easily loaded and easily handled, are definitely within the right of possession, in operable condition in the home, for self-defense.

Is a rifle something one can constitutionally have at home, even though not readily useable if one is suddenly attacked? Or a repeating pistol? The opinion does not say for sure.

SCOTUSblog post:
Ok, now part of this I can understand—so called ‘assault weapons’ etc. Certainly it should be detailed as to whether or not you could legally store an M60 for “home defense”. But this seems to be asking a somewhat absurd question–rifles?? According to the Scalia opinion, “weapons typically possessed by law-abiding citizens for lawful purposes”, rifles and shotguns both quite easily fall under that definition/guideline, as both are routinely used for hunting and or simple target/clay shooting. This summary makes it seem as if there were some question as to whether they should be allowed.

Perhaps I’m being naive, but following the “common sense” or “rational basis” guide, it seems to be quite obvious to me. I fail to understand how this can be a serious question except as regards heavy artillery and ‘assault weapons’. Example- a “repeating pistol” is really nothing more than a semi-automatic pistol. Which represents the vast majority of handguns today. We’re not talking about a full auto pistol here, or if the author MEANS to talk about a fully automatic pistol, he is clearly confused as to the correct term.[/quote]

I haven’t gotten that far into the opinion yet, but from a few comments I’ve read it seems that the court (appropriately, given the controversy at hand) only ruled on the DC handgun ban, so the parameters of allowable restrictions remain an open question as far as it goes.

Thus the importance of elections and USSC appointments… =-)

[quote]Zap Branigan wrote:
Should have been 9-0. The fact that 4 voted against the obvious intent of the 2nd amendment shows how incredibly biased they actually are. Scary if Obama appoints a couple to the USSC. [/quote]

As satisfied as I should be with this decision, Im am deeply disturbed by how close we came to an overturn of the orginalist (ie real) interpretation of the 2nd amendment. The four dissenting “justices” are frauds. There presence on the court is offensive and shows how far down the slope we have fallen.

Its also disturbing to listen to some of the DC political hacks already spouting how they are going to end-run around this ruling just to get their own way. The one rep from DC I heard outright said that this decision doesnt mean anything and people in DC still dont have a right to handgun possession. I understand grandstanding, but at some point, there needs to be a serious look at contempt charges and some of these clowns going to jail. The rule of law demands it.

I am very interested in how this plays out for any attempted federal assault weapons ban reauthorization or in states that still have such worthless legislation. The next few months will be very interesting.

Aragorn:

Further to my point on a 100 years of progressive assault on the correct individual-right view:

http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214542806
[i]
[Jim Lindgren, June 27, 2008 at 1:00am] Trackbacks
Reuters on the “New Right” in Scalia’s opinion in Heller.–

James Taranto has some fun at Justice Stevens’s expense and then quotes and criticizes an amazing passage from Reuters ( Bill of Rights or Bill of Goods? - WSJ ):

Reuters’s spin - in a news story no less - is outrageous. The individual right to own a gun is not a “new right.” It predates the 2d Amendment and was the interpretation given by a few early commentators on the 2d amendment. The individual right to arms has persisted at least as a substantial theory for over 300 years.

That the 2d Amendment protects only a collective right of states was a view expressed by no framer or early commentator. It was mentioned rarely before the Civil War and became a popular theory only in the 20th century. Although it was very commonly held by modern academics until about 10 years ago, finally even historians had to face the fact that no framer or early commentator ever said that the 2d Amendment protected a collective state’s militia right and some early commentators had expressed an individual rights view of the 2d Amendment.

So about 10 years ago, scholars began to adopt a new theory - the civic rights view. Under the civic rights view of the 2d Amendment, the right is nominally an individual one, but the state is free to determine who may exercise it. That is the “new right” that was put forward in the historian’s brief and the “new right” that Justice Stevens tried to introduce into the Constitution in his dissent. Although again no framer or early commentator ever expressed this civic rights view - and it was virtually unheard of until a decade ago - it at least is not directly contrary to some of the evidence of an individual right, since the civic rights view has a minor individual rights component.

If Justice Stevens’s dissent had prevailed and it had become the law of the land, that would have been a “new right,” since almost no one had ever heard of this interpretation of the 2d Amendment until scholars largely invented it fairly recently.[/i]

It’s a good decision as long as the constitution isn’t amended… and that’s not likely to happen.

However, as I’ve argued before, look for gun ownership or usage to eventually become subject to regulations – similar to how driving a car is available to everyone, but regulated.

One of these days maybe the government will figure out that it’s job is a to help the law abiding and inconvenience the criminals, not the other way around!

Post Heller, the NRA is going to be filing more lawsuits - but given the time they take to wend through the court systems, I hope the USSC will still have individual-rights-friendly justices in the majority…

[i]Gun advocates’ other weapon: lawsuits
On the heels of the Supreme Court ruling, the NRA and other groups prepare to challenge gun laws in California and other states.
By Maura Dolan
Los Angeles Times Staff Writer

9:05 PM PDT, June 26, 2008

Emboldened by Thursday’s U.S. Supreme Court ruling affirming the right of individuals to own handguns, advocates said they would immediately challenge a San Francisco law that prohibits guns in public housing and sue other cities nationwide to overturn gun restrictions.

The California lawsuit, which the National Rifle Assn. said it would file in federal court in San Francisco today, was one of several legal challenges that gun rights groups said they would pursue in the wake of the court decision.

“I expect there will be a significant number of California laws challenged because there have been a significant number of irrational and counterproductive laws passed in the state in recent years,” said Chuck Michel, the NRA’s chief attorney, who also represents other gun rights groups.

Hours after the Supreme Court ruling came down, two groups sued Chicago over its handgun ban, which is similar to the District of Columbia law the high court struck down. In addition, the NRA said it would file a lawsuit against Chicago today and would also sue surrounding cities that ban handguns.

“We are currently going over statutes at the local, state and federal level,” NRA chief lobbyist Chris W. Cox said. “I am certain there will be challenges to all sorts of statutes as we move forward.”

California, considered to have the most restrictive gun laws in the country, is a particularly attractive target for lawsuits by the gun lobby. Cox said the NRA was considering action against another San Francisco law that requires gun owners to store their guns in locked containers or use trigger locks.

Other California laws that gun rights groups plan to scrutinize include the state’s ban on assault weapons, the permitting process for carrying a concealed weapon in Los Angeles and San Francisco, and restrictions in Los Angeles on gun retailers, Michel said.

Some lawsuits were prepared in advance of the Supreme Court ruling. “The decision today was not entirely unanticipated,” he said.

He said gun advocates hope the lawsuits will lead to a broader ruling that the right to have a firearm at home for self-defense is not limited to places falling under federal jurisdiction, such as Washington, D.C. The high court did not decide that question, because the law affected only the District of Columbia.

Gun control supporters said they would vigorously fight the challenges.

Juliet Leftwich, senior counsel for the Legal Community Against Violence, a San Francisco-based lawyers group, said the group was putting out a call for pro bono lawyers to help fight the lawsuits. She said the help from outside lawyers would allow advocates to continue to push for new restrictions.

“We are concerned the resources are going to be diverted to the defense of laws already on the books,” she said.

Leftwich said it was “an open question” whether the two San Francisco gun laws would be struck down. Thursday’s ruling said government could continue to prohibit guns in schools and in government buildings, but also said that individuals have the right to keep guns for self-defense.

San Francisco prohibits any firearm or ammunition in buildings controlled by the city, including in its public housing projects, and its law on gun storage does not contain an exception for keeping a loaded gun in a nightstand, Leftwich said. Opponents could argue that the laws prevent individuals from defending themselves.

A spokesman for the San Francisco city attorney’s office said he could not comment on any litigation until it was filed.

Kay Holmen, president of the California chapters of the Brady Campaign to Prevent Gun Violence, said most California cities have some gun restrictions. The group rates states on a scale of 1 to 100. The higher the score, the more restrictive the state’s laws. The group gave California a score of 79, the highest in the U.S.

California requires mandatory background checks on all firearm purchasers, limits handgun purchases to one a month, prohibits the manufacture and sale of guns that have not passed certain safety tests, requires handgun purchasers to obtain a safety certificate after passing a written test and performing a safe-handling demonstration, imposes a 10-day waiting period on purchases, maintains records of handgun purchases, and prohibits the sale of large-capacity ammunition magazines, among other restrictions, according to the Legal Community Against Violence.

The group said guns killed or injured more than 7,700 Californians in 2005, the last year for which it has statistics.

“Here in Los Angeles, not a lot of concealed-gun permits are issued,” Holmen said. “We tightened the restrictions on guns here.”

Holmen said she expected that an anticipated challenge to the state assault weapons ban would fail. “An individual has a right to own a gun, but that doesn’t mean there is an individual right to own any gun,” she said.

As the NRA prepared to sue San Francisco, its leaders also were looking closely at a law in New York City that restricts the carrying of guns outside the home, Cox said.

“The only people who have permits to keep a firearm for self-defense outside the home are the mayor’s rich buddies from Wall Street, his celebrity friends and his political cronies,” Cox said.

He said the litigation would show that the right to bear arms under the 2nd Amendment “is a right as sacred and special as the 1st Amendment, the 4th Amendment and any other amendment.”[/i]

[quote]vroom wrote:
It’s a good decision as long as the constitution isn’t amended… and that’s not likely to happen.

However, as I’ve argued before, look for gun ownership or usage to eventually become subject to regulations – similar to how driving a car is available to everyone, but regulated.

One of these days maybe the government will figure out that it’s job is a to help the law abiding and inconvenience the criminals, not the other way around!
[/quote]
The huge difference is driving a car isn’t a right, it’s a privilege.

[quote]tom63 wrote:
The huge difference is driving a car isn’t a right, it’s a privilege.
[/quote]

Sure, but that’s not the point. Whether or not something is a right or a privilege, the government is always able to put reasonable restrictions in place.

Even the recent decision reflected on this fact.

For example, with respect to the lawsuit referenced in BB’s most recent post, it may very well be appropriate to restrict gun ownership in PUBLIC housing. Nobody is forcing people to live in public housing – and if they do live in a house that someone else owns they might reasonably have to abide by the rules set by the landlord.

Similarly, if you drive your car on a private track, you won’t have to abide by many of the rules in place on public highways. Unfortunately, you probably won’t be able to actually go very far.

Given the ownership right protected in the constitution it’s a matter of voting for officials that have a gun stance that reflects the majority of the populace. Damn, it’s simple democracy. Most people apparently don’t want the wild west anymore…

The system isn’t broken if the majority doesn’t agree with you and does things you don’t like – within the confines of the constitution anyway.

Good piece from one of my favorite libertarian Constitutional scholars:

http://online.wsj.com/article/SB121452412614009067.html?mod=opinion_main_commentaries

[i]

News Flash: The Constitution Means What It Says
By RANDY E. BARNETT
June 27, 2008; Page A13

Justice Antonin Scalia’s majority opinion in yesterday’s Supreme Court decision in District of Columbia v. Heller is historic in its implications and exemplary in its reasoning.

A federal ban on an entire class of guns in ordinary use for self-defense - such as the handgun ban adopted by the District of Columbia - is now off the table. Every gun controller’s fondest desire has become a constitutional pipe dream.

Two important practical issues remain. First, will this ruling also apply to states and municipalities? That will depend on whether the Supreme Court decides to “incorporate” the right to keep and bear arms into the 14th Amendment. But in the middle of his opinion Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.

My prediction: This ruling will eventually be extended to the states.

Second, how will the court deal with firearms regulations that fall short of a ban? The majority opinion strongly suggests that such regulations must now be subjected to meaningful judicial scrutiny. The exact nature of this scrutiny is not clear, but Justice Scalia explicitly rejects the extremely deferential “rationality” review advocated by Justice Stephen Breyer.

Most likely, gun laws will receive the same sort of judicial scrutiny that is now used to evaluate “time, place and manner” regulations of speech and assembly. Such regulations of First Amendment freedoms are today upheld if they are narrowly tailored to achieve a truly important government purpose, but not if they are really a pretext for undermining protected liberties.

My prediction? Because gun-rights groups like the NRA have so successfully prevented enactment of unreasonable gun laws, most existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed - whose aim is to impose an “undue burden” by raising the cost of gun production, ownership and sale - would likely be found unconstitutional. All gun regulations - for example, safe storage laws and licensing - will have to be shown to be consistent with an effective right of self-defense by law-abiding citizens.

Justice Scalia’s opinion is exemplary for the way it was reasoned. It will be studied by law professors and students for years to come. It is the clearest, most careful interpretation of the meaning of the Constitution ever to be adopted by a majority of the Supreme Court. Justice Scalia begins with the text, and carefully parses the grammatical relationship of the “operative clause” identifying “the right to keep and bear arms” to the “prefatory clause” about the importance of a “well-regulated militia.” Only then does he consider the extensive evidence of original meaning that has been uncovered by scholars over the past 20 years - evidence that was presented to the Court in numerous “friends of the court” briefs.

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” - the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” - or the original principles “underlying” the text - to negate its original public meaning.

Of course, the originalism of both Justices Scalia’s and Stevens’s opinions are in stark contrast with Justice Breyer’s dissenting opinion, in which he advocates balancing an enumerated constitutional right against what some consider a pressing need to prohibit its exercise. Guess which wins out in the balancing? As Justice Scalia notes, this is not how we normally protect individual rights, and was certainly not how Justice Breyer protected the individual right of habeas corpus in the military tribunals case decided just two weeks ago.

So what larger lessons does Heller teach? First, the differing methods of interpretation employed by the majority and the dissent demonstrate why appointments to the Supreme Court are so important. In the future, we should be vetting Supreme Court nominees to see if they understand how Justice Scalia reasoned in Heller and if they are committed to doing the same.

We should also seek to get a majority of the Supreme Court to reconsider its previous decisions or “precedents” that are inconsistent with the original public meaning of the text. This shows why elections matter - especially presidential elections - and why we should vet our politicians to see if they appreciate how the Constitution ought to be interpreted.

Good legal scholarship was absolutely crucial to this outcome. No justice is capable of producing the historical research and analysis upon which Justice Scalia relied. Brilliant as it was in its execution, his opinion rested on the work of many scholars of the Second Amendment, as I am sure he would be the first to acknowledge. (Disclosure: I joined a brief by Academics for the Second Amendment supporting the individual rights interpretation; one of my articles was cited by Justice Scalia and another by Justice Breyer in his dissent.)

Due to the political orthodoxy among most constitutional law professors, some of the most important and earliest of this scholarship was produced by nonacademics like Don Kates, Stephen Halbrook, David Kopel, Clayton Cramer and others. Believe it or not, Heller was a case of nearly first impression, uninhibited by any prior decisions misinterpreting the Second Amendment.

Last but not least, tribute must be paid to the plaintiffs - Shelly Parker, Dick Anthony Heller, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, and George Lyon - who went where the National Rifle Association feared to tread, and to their lawyers Robert Levy, Clark Neily, and lead counsel Alan Gura. I was privileged to witness Mr. Gura argue the case - his first Supreme Court argument ever - and he was outstanding. Heller provides yet another reminder of the crucial role that private lawyers play in the preservation of our liberties.


Mr. Barnett, a professor at Georgetown Law, is the author of “Restoring the Lost Constitution: The Presumption of Liberty” (Princeton, 2004).[/i]

[quote]BostonBarrister wrote:

Justice Scalia’s opinion is the finest example of what is now called “original public meaning” jurisprudence ever adopted by the Supreme Court. This approach stands in sharp contrast to Justice John Paul Stevens’s dissenting opinion that largely focused on “original intent” - the method that many historians employ to explain away the text of the Second Amendment by placing its words in what they call a “larger context.” Although original-intent jurisprudence was discredited years ago among constitutional law professors, that has not stopped nonoriginalists from using “original intent” - or the original principles “underlying” the text - to negate its original public meaning.
[/quote]

I’ve never heard of this distinction before. Sounds interesting. Anyone have an understanding of this?

http://lsolum.typepad.com/legaltheory/2007/10/semantic-and-no.html

http://lsolum.typepad.com/legaltheory/2007/10/cornell-on-orig.html

Short answer: “original intent” tries to get at subjective intent of certain individuals involved in drafting or adopting, which is supposed to give a definitive answer to the meaning of the Constitution, whereas “original public meaning” tries to get an understanding of how the public understood the Constitution at the time it was passed, but also accounts for the fact that certain concepts - for example, equality - had a contested meaning in public at the time of passage. Thus “original public meaning” gives the judiciary a more interpretative role in cases in which the original public meaning is unclear - though the judges are still required to look back to original public meaning and try to discern it to guide any interpretation.

Talking heads were going crazy about this decision last night. MSNBC was painful to watch - Dan Abrams especially (hardly abnormal for him though). Kept asking where the Militia meeting in D.C. would be.

Fucking ridiculous

We’re going to end up with a situation like Mexico: guns are banned but citizens will have them anyway and won’t call the cops when trouble happens.

Interesting take on the decision

A Somewhat Skeptical Take on Heller

Radley Balko | June 26, 2008, 4:37pm

I hate to pee in the pool, here, but I’m having a hard time getting too excited about today’s decision.

Justice Antonin Scalia’s opinion avoids any decision on incorporating the Second Amendment to the states, and his history suggests a strong reluctance to incorporate individual rights.

Scalia’s opinion does interpret the Second Amendment as an individual right, but only for self-protection, and only in the home. The concept of the Second Amendment as a bulwark against an overly oppressive government seems dead.

In the past, when Scalia’s limited government principles have conflicted with his law-and-order instincts, law and order has won handily. He’s been a happy federalist when it comes to allowing states to infringe on individual rights, but will bring down the hammer of the federal government on states that defy the feds by giving their citizens a bit more freedom.

As Jacob Sullum noted earlier, Scalia also goes out of his way to note that the “individual right” the Court found today doesn’t undo onerous regulations on the sale of guns, leaves untouched bans on “unusual or dangerous” weapons, and doesn’t overturn existing bans on concealed carry.

So what’s the real practical effect of today’s ruling? Seems to me, it’s limited to the following:

�?� A future Congress is barred from passing a uniform federal ban on handguns or rifles in the home. Just about any other federal regulation would probably still be okay, provided it meets the minimal Commerce Clause test in U.S. v. Lopez.

�?� The 600,000 residents of Washington, D.C. and residents of other federal protectorates now have the constitutional right to own a handgun, provided they meet a set of conditions put forth by the city council�??the limits of which will be litigated at a future date. Also, even this right for this small group of people extends only to handguns or rifles kept in the home.

Any other city, state, or locality may still pass a gun law just as restrictive as the one struck down in D.C. And even the D.C. city council can still make its citizens jump through a number of hoops before allowing them to own a handgun.

Today’s ruling gave the right a rhetorical victory (remember, elections are “all about the judges!”), but I’m not sure what it accomplished in actually protecting Second Amendment rights.

To be fair, Scalia explains that Heller was basically a case of first impression, and there’s much to still work out through litigation. But given the narrow reach of his opinion, I guess I’d just caution against too much optimism that any new litigation will come out the right way.

[quote]Magnate wrote:
Talking heads were going crazy about this decision last night. MSNBC was painful to watch - Dan Abrams especially (hardly abnormal for him though). Kept asking where the Militia meeting in D.C. would be.

Fucking ridiculous[/quote]

I caught part of that this morning. I haven’t been so disgusted with Abrams since he kept playing that video of his boyfriend whining, leave Britney alooonneeee

It sucks that living in a democratic society isn’t about letting everyone do exactly whatever the fuck they want at any point in time, doesn’t it?

[quote]Sifu wrote:
Magnate wrote:
Talking heads were going crazy about this decision last night. MSNBC was painful to watch - Dan Abrams especially (hardly abnormal for him though). Kept asking where the Militia meeting in D.C. would be.

Fucking ridiculous

I caught part of that this morning. I haven’t been so disgusted with Abrams since he kept playing that video of his boyfriend whining, leave Britney alooonneeee[/quote]

Did you catch Olbermann saying that the 2nd amendment means we have a right to militia type weapons from the 1790s. He listed a few different muskets saying that’s what we should be allowed to have while doing his worst person in the world shtick.

[quote]vroom wrote:
It sucks that living in a democratic society isn’t about letting everyone do exactly whatever the fuck they want at any point in time, doesn’t it?
[/quote]

Yeah. Good thing we don’t live in one. We live in a Constitutional representative republic where we our inalienable rights enumerate in said Constitution supposedly respected, including those of self defense.

[quote]PRCalDude wrote:
Yeah. Good thing we don’t live in one. We live in a Constitutional representative republic where we our inalienable rights enumerate in said Constitution supposedly respected, including those of self defense. [/quote]

Well, maybe you should be allowed to own your own personal nuclear weapons… in case an enemy army tries to invade your house?

Get a grip.

Hello strawman, and hello angry interjection.

Vroom, you are plainly off your rocker in this case. No one even remotely suggested that we should have access to all those crazy silo stored warheads for “home defense”. So far, no one for that matter is even coming close to suggesting we be able to stockpile other full assault style weapons.

No doubt that will come in time, but for now you’ve got no legs to stand on with that inane statement.