DC appeals Parker case to SCOTUS

[Bubbles]

I can't speak for legaleagle, but I have heard privately that Souter will vote correctly because he recognizes that if gun rights go down in DC then by logical extension so do voting rights, and that's a hot-button issue with him. No, I was not told about the logic involved, merely that would be the reason he would vote to uphold the appellate court ruling.

 

[woof]

I'm going to bet that scotus does not hear the case, although I hope they do and there is a clear confirmation. I can't see more than a couple justices agreeing with something as convoluted as the 2nd amendment does not apply to DC. Aside from that I'd still like to know: if the 2nd amendment does not provide an individual right then what right does it provide, and to whom?

 

[Sam Adams]

Ya know --- If the antis believe that our Founding Fathers couldn't have imagined what weapons would evolve, one must look back in retrospect and note that many of them saw the evolution of the rifle and pistol from a dream with touch holes, to match locks, and on to flint locks. Before that there was the bow and arrow, sword, spear, rocks, torches and pitchforks. Some lived into the 19th Century and saw revolvers.

That'd have to be one of the most absurd, least likely to be agreed with, arguments that I could think of.

If I was a Supreme Court Justice, I'd ask: "So, if the Founding Fathers couldn't have imaged what weapons would evolve (and therefore wouldn't have wanted to protect the RKBA for the new arms), then neither could they have imagined the telegraph, telephone, radio, TV, the internet, high-speed presses, copying machines, faxes, satellite transmission of data, etc., etc. Is that correct Counsellor? Because they either had a total lack of imagination or none at all, and your version of things would eliminate 1st Amendment protections from virtually all means of communication now used on a routine basis. Are you SURE that you want to take this position?"

Frankly, it is such a stupid argument, such a guaranteed loser, that I can only think of 1 that is worse:

If DC appeals on the basis that the 2nd does not apply to DC would that also indicate that "they" do not think the rest of the BOR applies in DC?

Right. So that means that DC can establish an official church, ban free speech, try you for violations of the law with a gun pointed at the back of your neck, torture you into a confession, and execute you for littering. Sure, that argument will hold water - when pigs fly.

IMHO, we're going to have this case heard, and we're going to win. The effects on the rest of the established cases on many and varied BOR cases will be turned on its head otherwise.

And IF we lose, then we are really no worse off - because the gun ban mutants have been trying to pass laws for the last 73 years, and the courts have generally upheld them, on the very basis of the 2nd being a "collective right" (whatever that animal may be). Further, it will unify gun owners as NOTHING else could - because there'd be NO hope of a later USSC decision to save us from a ban. The NRA would double its membership within a year, the 2008 election would become much more about the USSC and would result in a wholesale slaughter (politically speaking ) of anti-gunners.

But I still think that we're going to win - and the next case will involve the Title 18, Section 922(o) ban on post-'86 full auto registrations...which will also go our way.

 

[legaleagle_45]

Sam Adams wrote:

Right. So that means that DC can establish an official church, ban free speech, try you for violations of the law with a gun pointed at the back of your neck, torture you into a confession, and execute you for littering. Sure, that argument will hold water - when pigs fly.

Of course the argument made by the dissent is much more sophisticated than that. The entire opinion, including the dissent can be read here:

http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf

Here is what I deem the relevant portions of the dissent concerning the argument that the 2nd does not apply to DC:

The Supreme Court has long held that “State” as used in the
Constitution refers to one of the States of the Union.... In fact, the Constitution uses “State” or “States” 119 times apart from the Second Amendment and in 116 of the 119, the term unambiguously refers to the States of the Union....Although “the Constitution is in effect . . . in the District,” .... as it is in the States, “[a] citizen of the district of Columbia is not a citizen of a state within the meaning of the constitution.”... Accordingly, both the Supreme Court and this court have consistently held
that several constitutional provisions explicitly referring to
citizens of “States” do not apply to citizens of the District.... On the other hand, the Supreme Court and this court have held that the District can parallel a “State” within the meaning of some constitutional
provisions.... Ultimately, “[w]hether the
District of Columbia constitutes a ‘State or Territory’ within the
meaning of any particular statutory or constitutional provision
depends upon the character and aim of the specific provision
involved.”... The Second Amendment’s “character and aim” does not
require that we treat the District as a State. The Amendment
was drafted in response to the perceived threat to the
“free[dom]” of the “State” posed by a national standing army
controlled by the federal government... .The
Second Amendment, then, “aimed” to secure a military balance
of power between the States on the one hand and the federal government on the other. Unlike the States, the District
had—and has—no need to protect itself from the federal
government because it is a federal entity created as the seat of
that government... To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State
within the meaning of the Second Amendment. Under United
States v. Miller, 307 U.S. at 178, the Second Amendment’s
declaration and guarantee that “the right of the people to keep
and bear Arms, shall not be infringed” relates to the Militia of
the States only. That the Second Amendment does not apply to
the District, then, is, to me, an unavoidable conclusion.

CAUTION the above is heavily edited by me in an attempt to cut out the fat and expose the meat. Reference is made to the entire dissent if you have the time or inclination.

Legaleagle_45

 

[jlbraun]

But I still think that we're going to win - and the next case will involve the Title 18, Section 922(o) ban on post-'86 full auto registrations...which will also go our way.

Indeed. And them I'm going to buy my PKM.

 

[woof]

Sounds to me like that argument for DC being exempt still rests on the premise that the 2nd is about militias and only about militias and that any rights it confers are only in the context of militias. If that argument prevails we have bigger problems than DC. If it doesn't prevail thaen the argument becomes one of the right of the government of DC to deny its citizens rights that the 2nd provides to all other citizens of all states. I don't see that getting very far.

 

[Old Fuff]

To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment.

Under United States v. Miller, 307 U.S. at 178, the Second Amendment’s Declaration and guarantee that “the right of the people to keep and bear Arms, shall not be infringed” relates to the Militia of the States only.

Interesting. How would he explain this?

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Where in the statute is there any mention of a "state militia." The militia is the Militia of The United States.

http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00000311----000-.html

 

[legaleagle_45]

Old Fuff wrote:

How would he explain this?

He would not say a word, but SHE might say something about the Constitution being the supreme law of the land and not controlled by any statutes which may or may not be passed by Congress.

 

[damien]

leagleagle 45 wrote:

6-3 in favor of individual right.

So then, intermediate scrutiny or strict scrutiny?

 

[everallm]

Old Fuff,

By Federal statute, the militia would also have to include all non citizen, permanent residents as they are required to register for selective service as well.

LegalEagle

Supposing the appeal to SCOTUS both goes ahead AND is favourable to the individual right.

Will this federal interpretation be automatically binding upon and overrule State and local laws that in effect, deny this right to citizens. For example New York City/Chicago and their "vigorous " interpretation on firearm ownership, New Jersey/California and their vigorous limitations?

 

[legaleagle_45]

Everallm wrote:

Supposing the appeal to SCOTUS both goes ahead AND is favourable to the individual right. Will this federal interpretation be automatically binding upon and overrule State and local laws

No. The next battle will be over a legal issue known as incorporation, and that battle would be several years away.

Unfortunately, I am not as optomistic as to the incorporation battle as I am with the individual rights battle. Specifically, while Scalia is a supporter of the individual right theory, he has indicated just the opposite when it comes to incorporation. In cases of this type, where Scalia leads, Thomas invariably follows. Under the best of circumstances I only count 4 votes for incorporation, the final tally might even be less than that.

 

[legaleagle_45]

Damien wrote:

So then, intermediate scrutiny or strict scrutiny?

intermediate

 

[ServiceSoon]

and the next case will involve the Title 18, Section 922(o) ban on post-'86 full auto registrations...which will also go our way.

Sam Adams for congress!

 

[Bartholomew Roberts]

Ginsburg is my surprise 6th justice. Why? Take a look at her dissent in United States v. Muscarello, 524 U.S. 125 (1998).

I see your dissent and counter with her concurrence from Staples:

"The Government, however, does not take adequate account of the "widespread lawful gun ownership" Congress and the States have allowed to persist in this country. See United States v. Harris, 959 F. 2d 246, 261 (CADC) (per curiam), cert. denied, 506 U. S. ___ (1992). Given the notable lack of comprehensive regulation, "mere unregistered possession of certain types of [regulated weapons]--often [difficult todistinguish] from other, [non regulated] types," has been held inadequate to establish the requisite knowledge. See 959 F. 2d, at 261."

More on the Parker/Heller Court Pool

Ginsburg might surprise me yet; but I'd rank her behind Kennedy and Souter for being likely to do so.

In cases of this type, where Scalia leads, Thomas invariably follows.

Hmmm, I'll disagree with that one as well. For example Gonzales v. Raich... Thomas will certainly follow Scalia where they share similar ideas; but he is certainly comfortable with striking out on his own as well. I don't think he will go for the incorporation argument suggested by the city. Besides, in the end, the incorporation argument is just delaying the day of final reckoning a short while longer since suits against federal gun laws may be brought in D.C. from anywhere in the country.

 

[Old Fuff]

Legaleagle45:

He would not say a word, but SHE might say something about the Constitution being the supreme law of the land and not controlled by any statutes which may or may not be passed by Congress.

SHE, then:

A similar statute was on the books in 1939 when the Miller case was heard. I presume the Court would have been aware of the Militia of the United States, which was created in 1792. In Miller, the Court also went to great lengths to describe the civilian make-up of the militia, and the requirement that the members provide their own weapons, and that they remained in their custody, as opposed to a government armory.

 

[DKSuddeth]

and the next case will involve the Title 18, Section 922(o) ban on post-'86 full auto registrations...which will also go our way.

As much as i'd like to see this actually happen, we will not see, in our lifetime, a lifting of the closed registry. Unless we were to get 6 more justices with Thomas' bent, popular opinion will politically sway the USSC to use the necessary and proper clause to inhibit civilian ownership of new machine guns.

 

[legaleagle_45]

Bartholomew Roberts wrote:

Ginsburg might surprise me yet; but I'd rank her behind Kennedy and Souter for being likely to do so.

I count on Kennedy to make 5, everything else is just gravy. I still make it 6-3 in the office pool, and I still win even if Souter is the 6th and not Ginsburg

Bartholomew Roberts wrote:

I don't think he will go for the incorporation argument suggested by the city.

I have been doing a little research on the dissent. To be honest, when it first came out, her first paragraph disgusted me so much, I turned my brain off and did not examine the rest of what she had to say with even an ounce of credibility. Her opening remarks were similar to the concurring opinion in Emerson. She asserted that the majority opinion was mere dicta... EXCUSE ME??? In Emerson, the dicta argument at least had a modicum of merit, but NOT in Parker. They necessarily had to determine an individual right in order to find the DC law unconstitutional.... Her claim of "dicta" was so unfounded I found it hard to imagine her as a lawyer, let alone a federal appeals judge!!!

Now that I have put that rant behind me... One way to address her assertion which was not mentioned by the majority is to point out all them analog 2nds sitting in state constitutions at the time of the ratification.... Think about that argument in light of what she was asserting. It completely blows it out of the water.... IMHO

Bartholomew Roberts wrote:

Besides, in the end, the incorporation argument is just delaying the day of final reckoning a short while longer since suits against federal gun laws may be brought in D.C. from anywhere in the country.

Agreed... actually my nightmare is that SCOTUS would throw it out sua sponte based on standing, leaving us all with a big disappointment. However, the DC circuit is empowered to hear all cases from wherever involving matters of federal law, so it is now merely a matter of time. It will come in my lifetime anyway...

 

[Gray Peterson]

No. The next battle will be over a legal issue known as incorporation, and that battle would be several years away.

Actually, no. The framework of DC's legal argument in the Heller case is that incorporation means that the 2nd amendment doesn't apply to DC because it's a state and therefor not subject to incorporation. Jeff Knox actually discussed this extensively during a VCDL meeting.

Here is my prediction:

SCOTUS will rule this on a 6-3 vote in favor of Heller. By it's very definition it's a keep case not a "bear" case. I argue that "bearing arms" means generally openly carrying (which has been subject to more constitutional protections than concealed carry).

This launches a tidal wave of lawsuits against specific bans:

California's PC 12031, which bans open carry inincorporated cities and no discharge zones.

Illinois 720 ILCS 5/24-1, insofar as it applies to vehicle carry, most especially to subsection (a)(10) of that law.

The open carry bans as it exists in the states that currently have a ban (SC, FL, TX, OK, NY, AR).

New Jersey, Maryland, and Massachussett's licensing system that requires a may-issue license to open carry (either to strike down the licensing requirement or make it to where licensing must be shall-issue).

These specifically addresses state carry bans. There are other issues (such as California, New York, and Massachusetts AWCA's) I am not addressing.

 

[Old Fuff]

The framework of DC's legal argument in the Heller case is that incorporation means that the 2nd amendment doesn't apply to DC because it's a state and therefor not subject to incorporation.

Didn't you mean to say, "not a state?" Otherwise I don't understand what you're saying.

 

[LawBot5000]

I really wish people who don't understand would read before posting. This case doesn't deal with incorporation. Incorporation and questions about the scope of the right still have to be addressed in future cases, regardless of how this one turns out.

What this will promote are arguments formerly precluded by circuit-level rulings that the right didn't apply to individuals. This will create further circuit splits over the scope of the right and whether it is incorporated or not. Years later, the supreme court will address these questions. The gains from this particular lawsuit will be limited at best.

There will be no challenge against the various CA bans, at least not any guaranteed successful ones. The CA government will no longer argue "2nd amendment doesn't guarantee any right" but instead argue "it doesn't guarantee a right enforceable against California" and "it doesn't apply to scary guns because the founders didn't intend for scary guns to be protected." Both of these arguments are obviously empty, but so was their original argument and that has stood without correction for decades.

The biggest benefit of the case going our way is that it might scare the NRA out of fundraising mode and start to move things forward in terms of getting stuff repealed. A lot of people should be questioning why the NRA not only didn't bring this lawsuit themselves but repeatedly attempted to derail it.

 

[everallm]

The SCOTUS appeal will look into the issue of the interpretation of the individual versus collective right.

Since this relates to the exact wording as well as intent of the amendment, will this also have to address the specific definitions of

1. What is the militia
2. Who are the members of the militia
3. What are the rights and responsibilities of the individual of the militia
4. What can and cannot the militia hold as arms

The reason I ask is partially to address the point raised on the post '86 FA restrictions as well as the other issues such as magazine capacity restrictions, you can or cannot have a collapsible stock on a rifle etc.

I articulated my reasoning on this a while ago where the amendment relates to

The people are the militia be it organised or not.
The militia's envisaged by the founding fathers were to defend the peoples, Constitution and states of the Republic.
To be able to undertake their duties, the individual members of militia had access to personally own those military weapons or systems that the an individual can use. Not artillery, bombards, or other crew served weapons.

Also with regard to the issue of incorporation post SCOTUS, isn't there already sufficient established law, since the 14th amendment, requiring states to accept those rights as delineated in the Bill of Rights that this issue would be moot?

 

[legaleagle_45]

LawBot5000

LawBot5000 wrote:

I really wish people who don't understand would read before posting. This case doesn't deal with incorporation. Incorporation and questions about the scope of the right still have to be addressed in future cases, regardless of how this one turns out.

Blame that on me. I noted that one of the assignments of error likely to asserted by DC would be that the 2nd Amend, regardless of whether it is an individual right, does not apply to DC. I termed it a "reverse incorporation" argument:

http://www.thehighroad.org/showpost.php?p=3670864&postcount=221

Perhaps a better term would be "inverse incorporation" to dovetail "inverse condemnation". The argument in the dissent asserting such "inverse incorporation" can be found here:

http://www.thehighroad.org/showpost.php?p=3672146&postcount=229

Hope that explanation clears up the confusion, but for the record:

IT IS NOT AN "INCORPORATION" ARGUMENT!! Incorporation relates to whether the specific guarantee in the 2nd Amend (or other provisions of the BoR's) are binding upon state governments. The argument in Heller is that, because DC is not a state, the restrictions upon federal power to encroach upon the 2nd Amend vis a vis DC, are not implicated. Better?

 

[legaleagle_45]

everallm wrote:

Also with regard to the issue of incorporation post SCOTUS, isn't there already sufficient established law, since the 14th amendment, requiring states to accept those rights as delineated in the Bill of Rights that this issue would be moot?

No. SCOTUS has adopted what is known as "selective incorporation". Certain portions of the BoR's have been held inapplicable to the states. Some antigun groups cite Presser v. Illinois, 116 U.S. 252(1886) as authority for the proposistion that the 2nd is not binding upon the states, but this case was decided before SCOTUS began the process of selective incorporation, so it is not authority for that proposistion whatsoever... Some portions of the BoR's which SCOTUS has specifically held are not applicable to the states via selective incorporation are:

1.) That portion of the Fifth Amendment dealing with Grand Jury indictment;

2.) Seventh Amendment.... Jury trial in civil cases in which value of controversy exceeds $20.

 

[ctdonath]

About a week to go, guys. DC will most likely reveal their argument a few days early, as the formal appeal has to be there on the 8th - in hand-delivered, offset-press form.

Any word on the required & likely sources of the content of the text?

 

[woerm]

dc reply?

anyone want to bet they ask for another extension?

Look at the process in the origional case the DC legal beagles kept running over time, all the time and the ct just kept granting extensions.

If a private party had done that there would have been contempt charges and the plaintiff would have been granted their motions, and probably relief w/o any trial at all.

buuut this is DC and it is called the Logic free zone for several reasons.:banghead:

r