PDA

View Full Version : Paper i did for my law class


tombinghamthegreat
05-04-2010, 10:02 PM
There are some spelling errors that I got marked down on. Should have proofread but was writing 3 other long papers at the same time. This was done in APA format. I also did a PowerPoint presentation...then had the class give their commentary

District of Colombia v. Heller

Abstract

This Supreme Court ruling in District of Colombia v. Heller for the first time in seventy years took up the Second Amendment question: does it protect an individual right to own a firearm or does it only applies to the government? What do these words mean: “A well regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed?” This literature will review the facts of the case, why is it controversial, what future cases will result of this ruling and address the effectiveness of the ruling.

District of Colombia v. Heller


In June 26, 2008, the Supreme Court handed down a 5-4 ruling that for the first time upholding that individual citizens had a right to own a firearm and striking down DC gun ban. For the first time the Supreme Court defined, what the amendment means. In recent decades, political leaders have responded to the increase in crime in some of the major cities by either restricting or in places like Washington DC outright banning the use and ownership of firearms by private individuals. This literature review addresses the legal controversy surrounding Heller case by proposing these questions:

1. What is the procedural history of the case?

2. What are the facts and ruling of the case?

3. What was the reasoning the judges used in the case?

4. What effect has this ruling have on American history and society? What makes this controversial?

5. What are the future impacts it will have on the Supreme Court decisions?

6. Is the Supreme Court correct and why?

To understand the debate over the second amendment, one needs to look at the Supreme Court ruling in the Heller case and the Constitutional impact it has had.

What is the procedural history of the case?

The brief procedural history of the case is a join suit filled with Heller and other plaintiffs under Parker v. District of Columbia in 2004. The district court dismissed the case, which lead to an appeal to the District of Columbia Circuit Court. The Circuit Court sided with Parker in overturning the lower courts that D.C. gun laws were in violation of the Second Amendment. Because of the ruling, the district appealed to the Supreme Court and of the six people who filed suit, Heller was the only one that was giving standing for the case at the Supreme Court level. Since he was the only one giving standing the case name was changed to District of Columbia v. Heller. Alan Gura and Paul D. Clement representing Heller argued the Supreme Court case. Walter Dellinger represented Washington DC in the case.

What are the facts and ruling of the case?
The facts of the case are that the District of the Colombia banned handguns and enacted a number of strict regulations on firearms in 1976 due to a rise in crime. Any long guns that that were already legally owned before the 1976 ban were to be registered and rendered non-operational. By that mean, they were to be unloaded and disabled by a trigger lock or complete dismantlement with no exception, not even for self-defense (DC ST 1981 § 6-2372). A separate permit process was required just to have the firearm legally functional. Dick Anthony Heller, a special police officer had applied for a permit to keep his gun home and a permit to have a functional firearm in his house. His permit was later denied by the District of Columbia (DC v. Heller at 2786). The result of being denied the permit leads to the police officer, Heller to join in as one of the plaintiffs under Parker v. District of Columbia, which leads to the Supreme Court.
The majority of the Court, written by Scalia, an originalist, ruled that individuals have a right to “possess and carry weapons in case of confrontation” (DISTRICT OF COLUMBIA v. Dick Anthony HELLER. 128 S.Ct. 2783, at 2797 c.). Scalia ruling spent most of his time attacking Steven and Breyer’s dissenting opinion, more specifically their argument for the collective view of bearing arms and how the U.S. v. Miller case is applied. The majority held that the second amendment protected an individual right, that banning handgun possession not constitutional, and that laws that render legal firearms to remain disabled were not constitutional (D.C v. Heller at 2785). The majority goes on to say that, there is a long-standing historical background around the second amendment supporting individual gun ownership outside of militia service (Heller at 2804).

In the majority opinion, it is argued that, like the first amendment, the second amendment is not absolute. The government can constitutionally enforce bans on people who are mentally ill or felons, establish reasonable qualifications on the commercial sale of firearms, and ban the presence of firearms in sensitive place such as schools and federal buildings (Heller at 2787).
In the oral arguments with Dellinger, Chief Justice Roberts asks, “What is -- what is reasonable about a total ban on possession?” (DC v. Heller oral argument at 19). Scalia in writing the majority ruled that a total ban on firearms is not reasonable. That the US government cannot ban “commonly used” weapons that would be protected under the Second Amendment. Scalia use United States v. Miller as an example of what firearms would not be protected although Miller did not address an individual or collective view. Scalia shows that there is a history of the government banning “dangerous and unusual” weapons, in this case the federal gun control act that was in place in 1934 of requiring saw-off shotguns, machine guns and other types of firearms to be strictly regulated by the federal government. The Court goes on to say that the district ban on entire class of weapons (in this case, handguns) for lawful self-defense is unconstitutional, along with the requirement that firearms have to rendered nonoperational (DC v. Heller at 2787).

What was the reasoning the judges used in the case?

The five judges, who represented the majority in this case, were using Original Jurisprudence. They tend to have conservative leanings, unlike the four liberal judges, who use an interpretive view of the Constitution. Due to the controversial 5-4 ruling, Scalia ruling was spent attacking Steven and Breyer’s dissenting opinion.
Scalia went as far back as English common law to demonstrate the pre-existing right to bear and carry arms. Scalia uses the time between Restoration and the Glorious Revolution where King Charles II and James II during this time used militias to disarm political opposition. This ended up causing the English Bill of Rights to say that, “That the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law” (DC v. Heller at 2798). Scalia points out that this is the predecessor to our second amendment, which he uses as a counterargument against Steven’s argument that there is no pre-existing right and the term of bear arms only applies to military service.

Scalia, as a strict constitutionalist then points to what the intent of the framers had in adding the amendment. The intent he argues clearly point to an individual view of gun ownership in that three other second amendment proposals when the bill of rights was drafts all strongly implied a individual right to firearms (DC v. Heller at 2804).
In reviewing the framers intent, the term militia was defined as all males that were physically capable of being used for defense of the state. The anti federalists strongly distrusted the federal government, feared a standing army and feared one day it would disarm the population. Due to that fear, the Constitution was designed; more specifically this amendment was designed to prevent Congress from infringing on the pre-existing right to arms. States ended up following suit by writing in forms of arm bearing rights into their constitution (DC v. Heller at 2799 - 2803).

These facts from what Scalia argues that most legal scholars of the 18th-19th century had an individual rights view of bearing arms. Scalia quotes in the ruling, who he says was the most famous for the individual view, judge and professor Thomas Cooley who states, “Among the other defenses to personal liberty should be mentioned the right of the people to keep and bear arms .... The alternative to a standing army is ‘a well-regulated militia,’ but this cannot exist unless the people are trained to bearing arms….” (P. 2812). In the ruling, Scalia mentions that the amendment does not need to be reinterpreted to cover modern day commonly used arms, but applied much as the first amendment is applied to cover modern day media.
Scalia main argument that the law as stated secures a right bear arms, which is different approach the dissenting opinion, written by Stevens. He argues that the scope of the amendment only secures the collective right of the states to raise a militia and has nothing to do with private ownership. His main argument he uses throughout his dissenting opinion is United States v. Miller (1939), which he points that the federal government has the right to regulate private arms and in this case ban them in the interest of public safety. He cites a number of lower court decisions have used the interpretation that Miller supported a collective view (DC v. Heller at 2823).
In Breyer’s dissent, he agrees with Steven's collective rights argument that the government can restrict privately owned arms. His dissent though brings up the history of past laws that were designed to regulate private ownership and use in the 18th and 19th century. Breyer on pages 2857- 2860 discusses the amount of crime involving handguns, which is considered a preferred weapon by criminals. Since he argues that is the case in urban environment, local and states have a duty to deal with the health, safety and welfare. Since the government has the responsibility to care then in the interest of public safety DC, the government can regulate, even ban arms. He goes on to argue that DC laws are reasonable since the district only banned handguns and there were still long guns that were legally owned.

tombinghamthegreat
05-04-2010, 10:02 PM
cont

What effect has this ruling have on society? What makes this ruling controversial?

Since the case is very recent, the full effects on society are still unknown and it has mixed views depending on which view is used to analyze this case. Therefore, at this current time the ruling has nullified the laws in the District that were deemed unconstitutional such as the ban on handguns and requiring firearms to be locked up. As a result the District had to rewrite the laws but there is still an issue if the current laws still unreasonable. There still are a number of restrictions such as firearm registration, safety-training requirement and other restrictions on firearms. One of the laws in question is the district ban on carrying firearms under Palmer v District of Columbia.
The Palmer case along with a series of other cases across the nation brings into question what is reasonable gun regulation on the over 200 million guns in the US (BBC 2003). Can a city enact strict firearm laws or is the right that the local, state or federal government cannot take away? This debate has drawn in mixed views in the U.S. where in nearly major news story both sides voiced their opinion. One on side gun control advocates cite Breyer dissent in DC v. Heller that “(the ruling will) jeopardize constitutionality of gun laws throughout the nation" (Mears 2008). Gun control groups not only disagree with the outcome but also fear that this ruling will lead to more firearm related deaths and current gun laws being overturned.

On the other side, pro gun advocates cheered the ruling and in the CNN article mention plans of filing suits immediately against Chicago and San Francisco. Pro gun groups though argue that the NRA is not aggressive enough in overturning the laws in more restrictive states. Which has lead to smaller, more loosely organized groups (similar to the tea party movement) to further promote gun rights in the courtroom after Heller was decided. One example is the calguns foundation that educates people on the current laws including on how to acquire legally semi automatic rifles (which was considered outright banned in 2006) and files suits within the state of California to expand gun rights (O'Connell 2010).
These pro gun groups at times find themselves with conflict with not only the state governments such as California but with law enforcement. In an interview with( Deleted Name for privacy) on April 12 said that most of their legal advice on firearm laws is received though training bulletins from the District Attorney office. He said that he has not received any new bulletins of the ruling since at this time since it only affects the District. In response to the question how far does an individual right to bear arms goes: “his personal view is that people should be able to possess firearms and be allowed to keep them in their residences.” Such restrictions of mandating all firearms to be locked up would be unreasonable. In response to the Chicago case and incorporation, he was not sure what the impact would be since it is the DA job to notify law enforcement of changes. Although he agreed that, the District laws were too strict he viewed that people should not be able to open carry firearms in public as what is been occurring recently since it would be an issue of public safety. I would assume was referring to the recent event where about 100 people in Walnut, CA legally open carried unloaded firearms with loaded magazines to restaurant (Bluestein 2010).
What are the future impacts it will have on the Supreme Court decisions?

One of the reasons why this case has had a large constitutional impact in American society is because this case brings up the issue of what is reasonable regulations on firearms and how far could states go in regulating arms. The court ruling only said that the District of Columbia could not make unreasonable regulations. This has started a wave of lawsuits across the U.S. on a number of gun regulations. The issue is although the Heller case ruled in a individual rights view, the extent of that view is unknown (O'Connell).Which is why already with two years of the ruling had the Supreme Court redresses the gun issue in McDonald v. Chicago. The future cases and political battles, such as the one in Chicago, are not arguing whether or not an individual right to bear arms exist, but instead about how far does it go.
McDonald v. Chicago involves an older man; Otis McDonald wants to own a handgun for self-defense. The problem is, in Chicago, the city has gun laws similar to Washington DC. By that, the city has a handgun ban, a strict licensing requirement, and has similar requirements as DC had in that firearms has to be locked up, making it difficult to use a firearm legally for self-defense. The debate is can the Supreme Court judges use the fourteenth amendment incorporate the Heller ruling to the states and local governments.
There is a divide in the fourteen-amendment argument, that it could be argued under the Privileges and Immunities Clause (argued by Alan Gura) or the Due Process Clause (argued by Paul Clement). To make this case even more controversial Gura, in order to argue privileges and immunities, is bringing up the slaughterhouse cases, which despite criticism still considered valid case law for the past 140 years. It is expected that the same majority of five justices that gave Heller its ruling will also rule in favor of McDonald, but these questions remain: how far the ruling will go and what part of the fourteenth amendment will be used? The oral arguments were already heard March 2, 2010 and the court ruling is due in the next month or two addressing the fact can state and local regulations such as Chicago law be deemed constitutional (McDonald v. Chicago 130 S.Ct. 48, 174 L.Ed.2d 632). This ruling may not be the end since there are a number of gun related cases that are pending due to the McDonald ruling (Denniston 2009).
It is still unclear how the courts will apply Heller on the laws that are constitutionally in question, but it is expected that the Supreme Court will over the next decade hand out rulings based off this court ruling. The future court cases could be very similar and to Roe v. Wade (and just as controversial) and the cases afterward such as Planned Parenthood v. Casey. Where in Casey they reaffirmed Roe v. Wade, but introduced the “Undue Burden” test and “viability”. Under the undue burden test in Casey, only one of the laws in Pennsylvania, notifying the husband requirement was considered invalid while the other laws where upheld. Under McDonald (and possibly other upcoming cases), the court has to decide if they are to reaffirm Heller and set up a similar “undue burden” test to apply to firearms (The Oyez Project, Planned Parenthood v. Casey, 505 U.S. 833 (1992)).

Did the court decide correctly?

It is clear that the twenty seven-word amendment gives individuals a right to own
firearm for a number of reasons, as the majority in this case ruled. The fact it was a 5-4 ruling was a surprise, since this issue was argued less off what the amendment means and more on political ideology. The real debate should have been to what extent does the second amendment goes in protecting an individual right to a firearm and what is reasonable regulation. It is clear that historically that the right to own a firearm was not only written into the constitution as a tool for self preservation or protection of private property but as a tool to limit the powers of the federal government, as mentioned in the Federalist Papers in response to the fear of a more powerful federal government.
Judge Scalia, who wrote the majority in the case, said, “We are aware of the problem of handgun violence in this country … The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns… But the enshrinement of constitutional rights necessarily takes certain policy choices off the table….” (Heller 2822). It would appear that a ban is not needed to reduce crime and such policies constitutionally are off the table much like banning people right to an attorney in the interest of public safety would be unconstitutional. Law banning criminals or mentally defective people from arms, enforcement of other criminal laws would be a more effective measure against crime than an unconstitutional law that would be overturned by the courts. Not to mention that there is a lack of evidence that such regulation such as a ban on handguns actually reduces crime, since the district face a major increase firearm related deaths and crime exceeding most major cities in the 1990s.

It would be obvious that most would agree that there is a long-standing history of regulating “dangerous and unusual weapons” by pointing to U.S. v. Miller which gives the government reasonable powers in the interest of public safety to ban weapons such as explosives or other weapons that are not needed for self defense at the time (Heller 17:128). The most commonly used firearm for self-defense in the U.S. is handguns due to their reasonable cost and easy to use functionality, which allows the user to have a gun in one hand and to call the police with the other hand (Heller 2819). Given that as the fact, the court correctly overturned the ban on handguns and the ban on forcing people to keep their firearms disabled.
The court mentions in their opinion how M16 and similar firearms might be considered “dangerous and unusual” constitutionally. Despite the court not giving a definite answer on this issue, they did not distinguish fully automatic firearms that are currently heavily regulated and uncommon and semi automatic type military rifles. Semi Automatic rifles are commonly found in most gun stores and common for Americans to own (O'Connell). It would appear that if the Supreme Court takes up case involving semi-automatic rifles, it would be covered under “commonly used” test, considering how many are owned by individuals (the exact amount is unknown due to a lack of records kept on firearms).
It would appear that the Supreme Court could have easily written their position this and a number of other issues, but it is understandable why they did not, since it was not the relevant to the case. The Supreme Court effectively though leave the opportunity open for McDonald v. Chicago to not only to expand gun rights at the state level but give a chance for the court to review the Privileges or Immunities Clause (McDonald v. Chicago 130 S.Ct. 48, 174). This review could lead to the slaughterhouse cases to be overturned, which would help expand other rights that have not been incorporated to the states.
In conclusion, the Supreme Court ruled in District of Columbia v. Heller that individuals had a right to a firearm, which effectively set up the ruling to allow for laws that are unreasonable to be overturned.

tombinghamthegreat
05-04-2010, 10:05 PM
References

Article 29: Each person has responsibilities to the community and others as essential for a democratic society BBC (2003)
http://www.bbc.co.uk/worldservice/people/features/ihavearightto/four_b/casestudy_art29.shtml

DISTRICT OF COLUMBIA et al., Petitioners, v. Dick Anthony HELLER. 128 S.Ct. 2783, 171 L.Ed.2d 637, 76 USLW 4631, 08 Cal. Daily Op. Serv. 8060, 2008 Daily Journal D.A.R. 9613, 21 Fla. L. Weekly Fed. S 497 (West Law)

DISTRICT OF COLUMBIA et al., Petitioners, v. Dick Anthony HELLER 2008 WL 731297 (Oral Argument) Oral Argument (Mar. 18, 2008) (West Law)
Lott ,John R., , More Guns, Less Crime, (June 1, 1998) University Of Chicago Press

Lyle Denniston (2009) Nordyke v. King http://www.scotusblog.com/2009/04/second-amendment-extended/

McDonald v. Chicago
130 S.Ct. 48, 174 L.Ed.2d 632, 77 USLW 3691, 78 USLW 3013, 78 USLW 3137, 78 USLW 3169, 2009 Daily Journal D.A.R. 14,361 Westlaw

Melonie Heron, Ph.D.; Donna L. Hoyert, Ph.D.; Sherry L. Murphy, B.S.; Jiaquan Xu, M.D.; Kenneth D. Kochanek, M.A.; and Betzaida Tejada-Vera, B.S.; Division of Vital Statistics

Center of Disease death rates 2006
http://www.cdc.gov/nchs/data/nvsr/nvsr57/nvsr57_14.pdf

Mears, Bill High court strikes down gun ban CNN(June 26, 2008) http://www.cnn.com/2008/US/06/26/scotus.guns/index.html

O'Connell, Vanessa Heller’s Offspring: A Look at the New Generation of Gun-Control Suits: Palmer v District of Columbia (2009)
http://blogs.wsj.com/law/2010/03/30/hellers-offspring-a-look-at-the-new-generation-of-gun-control-suits/

O'Connell, Vanessa Gun Advocates Open a New Front (2009) The Wall Street Journal http://online.wsj.com/article/SB10001424052748704508904575192162324152350.html?m od=WSJ_hpp_MIDDLETopStories

Parker, Jeffrey S. Journal of Law and Economics, Vol. 44, No. 2, Part 2, Guns, Crime, and Safety: A Conference Sponsored by the American Enterprise Institute and the Center for Law, Economics, and Public Policy at Yale Law School (Oct., 2001), pp. 715-723 The University of Chicago Press http://www.jstor.org/stable/725854

Parker v. District of Columbia 128 S.Ct. 2994, 171 L.Ed.2d 910, 76 USLW 3683, 76 USLW 3095 Westlaw

The Oyez Project, Planned Parenthood v. Casey , 505 U.S. 833 (1992)
available at: (http://oyez.org/cases/1990-1999/1991/1991_91_744)
Warren v. District of Columbia 444 A.2d 1 D.C., 1981. December 21, 1981 Westlaw

Washington DC statue, DC ST 1981 § 6-2372 Westlaw

cj cake
05-04-2010, 10:18 PM
Do you have a link to the PowerPoint?

Sam
05-04-2010, 11:11 PM
umm...is there a canned brief for this case somewhere? :rolleyes:

What school do you go to and how did the professor react?

tombinghamthegreat
05-05-2010, 1:24 AM
What school do you go to and how did the professor react?

California Lutheran University. The teacher when i gave my speech asked me to go into detail when i was explaining privileges and immunities to the other students. Said it was controversial when i was done, gave brief commentary on the debate and how it overturned cases (had held a collective view) that relied on US v. Miller. I did a similar paper on the same subject for another one of my classes this semester and it went well

At the end of my powerpoint i had to ask the class 2 questions. One subject was a student ask from my view should a AW ban be valid. I mentioned how the majority mentions m16s might not be protected but that the court did not distinguish full auto and semi auto rifles. I explained that semi auto rifles would meet the commonly used requirement when it will come into the courts in the future. Also explained that semi autos in the US are very common, even in the state of CA...mentions very briefly how to acquire them.
Do you have a link to the PowerPoint?

No but i will try to post it some how online later....

ned946
05-05-2010, 5:08 AM
No but i will try to post it some how online later....

Cool.
I could never ben a lawyer. I think you'll do well! :)

...so many words....

gtturborex
05-05-2010, 6:06 AM
Nice write-up!! That is something I couldn't do.

snobord99
05-05-2010, 8:01 AM
Not too bad for undergrad work :thumbsup:

Californio
05-05-2010, 9:32 AM
The Cal LU Zoo. I have a degree from there:) Nice write-up.

tombinghamthegreat
05-05-2010, 4:11 PM
Here i put the PowerPoint in a pdf file.

NorCal MedTac
05-05-2010, 7:12 PM
Nice work.

tombinghamthegreat
05-06-2010, 3:09 PM
The Cal LU Zoo. I have a degree from there:) Nice write-up.

what degree did you receive at clu?

Californio
05-06-2010, 6:57 PM
what degree did you receive at clu?

Business Administration and Accounting.

In my day it was CLC and the only degree that concerned the law was Administration of Justice. The Dallas Cowboys still did their summer training at the LU in those days.