Heller links and updates

[GigaBuist]

The court will begin arguments on Tuesday, March 18, at 10:00am.

 

[CZ 75 BD]

Misfire at Justice

Today's WSJ

http://online.wsj.com/article/SB120096108857304967.html?mod=opinion_journal_main_stories

The Second Amendment's right to bear arms has rarely been considered by the Supreme Court, but this year the Court is hearing a case that could become a Constitutional landmark. So it is nothing short of astonishing, and dispiriting, that the Bush Justice Department has now weighed in with an amicus brief that is far too clever by half.

The case concerns a D.C. Circuit decision that overturned a Washington, D.C., law denying a handgun permit to plaintiff Dick Heller. Judge Laurence Silberman wrote for the majority that when the Second Amendment says "the right of the people to keep and bear arms, shall not be infringed," it means exactly that. He added that "the Second Amendment protects an individual right to keep and bear arms" (our emphasis), and is not limited to people serving in a modern "militia" such as the National Guard, as some gun-control advocates maintain.

The amicus brief filed by Solicitor General Paul Clement agrees with this part of the D.C. Circuit ruling. But then it goes on a bender about violent felons wielding machine guns, urging the Supreme Court to reject the legal standard applied by Judge Silberman. Instead, the SG invites the Supremes to hand down an elaborate balancing test that would weigh "the strength of the government's interest in enforcement of the relevant restriction" against an individual's right to bear arms.

This is supposedly necessary because of this single phrase in Judge Silberman's 58-page ruling: "Once it is determined -- as we have done -- that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them" (our emphasis). This has alarmed the lawyers at Justice, eliciting their dire warnings that somehow Judge Silberman's logic would bar the regulation of M-16s, felons with guns, or perhaps even Sherman tanks.

This is bizarre. The key word in Judge Silberman's opinion is "ban." His opinion readily concedes that regulating guns and banning them are not the same. He explicitly notes that felons may be barred from owning guns without implicating the Second Amendment and points out that weapons of a strictly military nature are not encompassed by the right to bear arms. Nothing in Judge Silberman's opinion precludes reasonable restrictions on weaponry.

More ominously, if Mr. Clement's balancing test were adopted by the High Court, it would be an open invitation to judges nationwide to essentially legislate what is or isn't proper regulation. The beauty of Judge Silberman's standard is that it carved out wide Constitutional protections for arms -- such as "most" hand guns and hunting rifles -- that Americans now own and that might reasonably have been anticipated by the Founders. The Bush Justice Department is instead inviting the Supreme Court to uphold an individual right to bear arms in principle but then allow politicians and judges to gut it in practice.

The District of Columbia has argued that it has a strong governmental interest in a near-total handgun ban. To support its claims it has trotted out all manner of emotive appeals and dubious sociology to attenuate the right protected by the Second Amendment. Justice's balancing test would invite thousands of judges to allow fact-finding on the need for gun control and then issue what would essentially be their own policy judgments. This is precisely the kind of activist judicial nightmare that President Bush himself claims to oppose.

So why would his own Solicitor General do this? The speculation in legal circles is that Mr. Clement is trying to offer an argument that might attract the support of Anthony Kennedy, the protean Justice who is often the Court's swing vote. But this is what we mean by "too clever by half." Justice Kennedy would be hard-pressed to deny that the Second Amendment is an individual right, given his support in so many other cases for the right to privacy and other rights that aren't even expressly mentioned in the Constitution. No less a left-wing scholar than Laurence Tribe has come around to the view that the Second Amendment protects an individual right for this very reason. Mr. Clement is offering a needless fudge.

The D.C. Circuit's opinion in Heller is forceful, clearly reasoned and Constitutionally sound. By supporting that decision and urging the Supreme Court to validate it, the Bush Administration had the opportunity to help the Court see its way to a historic judgment. Instead, it has pulled a legal Katrina, ineptly declining even to take a clear view of whether Mr. Heller's rights had been violated. It dodges that call by recommending that the case be remanded back to the lower courts for reconsideration.

The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case. Is anybody still awake at the White House?

 

[ctdonath]

Can someone explain these additions to the docket?

Jan 25 2008 Record received from the U.S.C.A. for the D.C. Circuit. (1 box)
Jan 28 2008 CIRCULATED.

 

[Bartholomew Roberts]

The January 25-28 entries are just the record from the D.C. Circuit Court of Appeals being received and circulated (26th and 27th are a weekend - so they received it probably Friday afternoon and then circulated it to the other Justices the next Monday).

 

[Kharn]

I found an interesting blog regarding Heller, written by Mike O'Shea:The Three Steps in D.C. v. Heller

First three paragraphs (the blog is quite long and in-depth, so I wont copy it here)

It’s a pleasure to be back at Concurring Opinions. I much enjoyed guest blogging here last summer, and the management has been kind enough to invite me back for a few months to cover firearms law issues during the pendency of District of Columbia v. Heller, the landmark Supreme Court case on the Second Amendment right to arms. I’ll cover the briefing, the oral argument on March 18, and the decision, which will probably be issued at the end of the term in June. I also hope to discuss some other firearms law topics such as ConocoPhillips v. Henry, a legal challenge to an Oklahoma law giving employees the right to store their self-defense guns in their locked cars while at work.

On to Heller. I commented on the certiorari briefing during my stint last fall with the fine folks at PrawfsBlawg. This post discusses the merits brief filed by D.C. as petitioner. We’re waiting for Mr. Heller’s merits brief next week, and then his crowd of amici in the week to follow.

The general character of the District’s merits brief is what you’d expect of a lead brief in a Supreme Court case of this magnitude — polished, efficiently written, and in many respects reflective of skilled and thoughtful advocacy. What I want to do here is consider the litigating stance of the District in light of the “pressure points” in Heller — the key moves that each side is asking the Supreme Court to make.

Kharn

 

[husbandofaromanian]

I can't decide how I want this to turn out. If they interpret correctly, we would be able to own any type of weapon and they will simply add a new ammendment canceling the 2nd just like they did with prohibition.

If they abuse their power and declare the 2nd is not an individual right (even though it's part of the bill-of-rights) our form of government is over and no longer worthy of fighting for, or supporting in any matter as far as that goes.

If they declare that the 2nd only applies to the federal government and not the states, I guess some states will feel free to ignore the 1st ammendment as well.

If they search for a middle ground that everyone can live with, I don't know how they are going to be able to do that. If they decide on the muzzleloading only concept, I would ask them to modify that to single-shot-only allowing the use of modern powders.

 

[Mazeman]

Heller Brief Released

Link Is Here

Very well written.

Some juicy stuff, asking the Court to apply a "strict scrutiny" standard in judging gun laws begins on page 54.

 

[Mike OTDP]

I thought it was well written, but am a little leery of the amount of argument spent on the potential for revolution...I have always thought that line of argument, however valid, works against us a bit.

I also was hoping for some sort of "bolt from the blue" that would clinch the case...maybe in the amicus briefs.

 

[green-grizzly]

I had the same thought as Mike after reading it. Putting militia and revolution together on the same page discomforts government employees.

The Heller team probably would have been better off emphasizing the privacy in the home angle, an approach that some of the more liberal justices would be sympathetic with. Or maybe going over gun control's historic roots in racism.

 

[Mike OTDP]

I think some of the amicus briefs may cover that. Also, I think that the filings with the DC Circuit also get reviewed. I understand that Gura & Co. covered the racism angle pretty extensively in those.

 

[yokel]

Of course, the subject of the context of the Second Amendment during the colonial and Revolutionary years is exceedingly relevant.

 

[Mike OTDP]

Yup. It's probably the most persuasive part of the brief.

 

[jgullock]

Georgiacarry.org files Amicus brief

GCO has filed an amicus curiae with the Supreme Court of the United States in support of respondent Dick Heller.

The brief has made it onto the linked website of Scotus. GCO's is but the second amici for the respondent to have done so. The American Legislative Exchange was first. Enjoy!

 

[Rabid Rabbit]

I recognize my bias towards the respondents but after reading a number of the briefs on both sides the anti side seems to be a lot of whining about we like it this way, convoluted logic (VPC) and the Govt. needs to control people arguments. I was really disappointed in the ABA brief I was expecting a well thought out piece, but was disappointed. It seems all these years of arguments and thought within the gun community may finally pay off. The Georgia carry one is very interesting.

 

[madmike]

If they interpret correctly, we would be able to own any type of weapon and they will simply add a new ammendment canceling the 2nd just like they did with prohibition.

Wow. That quite an interesting theory. "simply add an ammendment(sic)."

I'm still looking at how the timing of this SUCKS for the Dems for this election year

 

[madmike]

Rabbit: Yes, I noticed that too. "But we waaaaaaant it! It's our laaaaaaw! How can you tell us not to pass a law we want?"

 

[Al Norris]

BUckeye Firearms Association and 6 Private Investigatory Agencies have filed their brief.

This brief appears to focus solely upon the inadequacies of the DC Police Force.

 

[Bubbles]

No links yet, but over half a dozen amicus curiae briefs came in today.

 

[green-grizzly]

NRA brief: http://www.nraila.org/media/PDFs/nra_amicus_heller.pdf

 

[Librarian]

Scotusblog has a bunch of the amici briefs

* American Legislative Exchange Council
* Association of American Physicians and Surgeons
* Buckeye Firearms Foundation, et al.
* Criminologists
* Disabled Veterans for Self-Defense
* Foundation for Free Expression
* GeorgiaCarry.org
* National Rifle Association
* Rutherford Institute

 

[green-grizzly]

Scotusblog has more briefs, including the Pink Pistols!

Cheney joined the Congressional brief in support of Heller.

 

[ArmedBear]

And some more (Congress on Racial Equality is the best one, NAACP amicus noted for irony):

http://volokh.com/archives/archive_2008_02_03-2008_02_09.shtml#1202493629

 

[Megistopoda]

Master List of pro-Heller amici

This is a master list of the "friend of the court" briefs that have been filed on behalf of Dick Anthony Heller in this landmark and historic Supreme Court case.

As of right now, 23 briefs have been filed. And they are not even due until Monday, 11 February.


Vice President Cheney, 55 Senators, 250 Members of Congress
Criminologists, Social Scientists, and Claremont Institute
National Rifle Association
Cato Institute, Prof. Joyce Lee Malcolm
Second Amendment Foundation
Buckeye Firearms Foundation, Private Security groups, et al.
American Legislative Exchange Council
American Association of Physicians and Surgeons
Pink Pistols, Gays and Lesbians for Individual Liberty
Jews for the Preservation of Firearms Ownership
Women State Legislators, Academics
Georgia Carry
Congress of Racial Equality
Disabled Veterans for Self-Defense, Kestra Childers
Alaska Outdoor Council, et al.
Libertarian National Committee
Paragon Foundation
Grass Roots of South Carolina
Suzanna Hupp, Liberty Legal Institute
Rutherford Institute
Foundation for Free Expression
Virginia 1774
Military Officers, American Hunters and Shooters Association

 

[madmike]

The Military Officers one--I read it and cheered, though apparently some people think it's a bad alliance. Looks like a brutal winner to me.

 

[LoneStranger]

I thought both sides were limited to 20 briefs, how come 23?