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View Full Version : Has SCOTUS ruled on Parker/Heller vs DC.?


Adog5
09-03-2007, 9:35 AM
Didn't this case already finish? What was the outcome and how does it effect CA?

Librarian
09-03-2007, 9:39 AM
Didn't this case already finish? What was the outcome and how does it effect CA?

Not finished - request to court for certiorari will not even be submitted until Wednesday this week, then court gets to decide if they'll hear it.

wilit
09-03-2007, 9:42 AM
How long does SCOTUS have to decide whether or not they'll hear the case?

hoffmang
09-03-2007, 9:57 AM
All term (till next summer) but everyone expects them to decide to take the case in the first 60 days they have it - so expect some time before the end of October.

That will then create the schedule for the briefs on the merits to be filed and will tell all of us when we're taking a trip to DC for oral arguments.

-Gene

Liberty1
09-03-2007, 10:16 AM
we're taking a trip to DC for oral arguments.

-Gene

So to get a seat we camp out on the SCOTUS steps for a month and smell like some star wars fan!?! :eek:

EastBayRidge
09-03-2007, 10:37 AM
"So to get a seat we camp out on the SCOTUS steps for a month and smell like some star wars fan!?!"

Yup. AND you get to dress up as your favorite pro- or anti-gunner. I'm going as Sarah Brady in a JBT uniform !

Patriot
09-03-2007, 11:02 AM
If I remember anything from my HS ConLaw elective, the best move might be for SCOTUS to deny certiorari. I believe that's a tacit affirmation of the lower court's ruling. That would, I believe, lend a certain amount of credence to future gun control litigation. :confused: Less risk of an adverse SCOTUS ruling or one with unfavorable language. And SCOTUS can continue their happy "Switch in Time" tradition of trying to avoid hot button issues. :p

wilit
09-03-2007, 11:07 AM
If I remember anything from my HS ConLaw elective, the best move might be for SCOTUS to deny certiorari. I believe that's a tacit affirmation of the lower court's ruling. That would, I believe, lend a certain amount of credence to future gun control litigation. :confused: Less risk of an adverse SCOTUS ruling or one with unfavorable language. And SCOTUS can continue their happy "Switch in Time" tradition of trying to avoid hot button issues. :p

I've often wondered if they would do just this. There would be a LOT of political fallout on both sides of this debate regardless of what ruling they would hand down. How best to not rock the boat than to not even hear the case and let the lower court ruling stand. D.C. residents get their handguns and the rest of the US remains status quo.

hoffmang
09-03-2007, 11:29 AM
If Thomas thinks he has 5 votes, they will take the case. They almost took Silviera with a less favorable composition.

If they don't take the case then DC will be the place to attack all Federal gun laws regardless of your residence. That circuit split alone will mean that SCOTUS will want to rule.

-Gene

bulgron
09-03-2007, 12:49 PM
I fully expect SCOTUS to take the case, if only because of the difference in opinion between the various appellate courts.

I believe that if the court is even remotely in possession of intellectual honesty, then the resulting ruling will come down on our side, and better than 5-4 too. (For example, I expect Ginsberg to rule for an individual right, if only because in the past she's ruled that constitutional amendments should not be interpreted solely upon prefatory clauses. See Eldred v. Ashcroft.). However, this composition of the SCOTUS likes to rule narrowly, so don't expect the court to throw the doors wide open for RKBA.

But my expectation is that they will, at a minimum, rule that RKBA is an individual right. This all by itself will knock the foundation out from under the Brady Bunch's arguments for gun control.

BTW, does anyone know what it takes to get 14A incorporation? Assuming a favorable verdict for us, is it possible that incorporation will flow naturally from Parker, or will a second case be absolutely required to get it? And if a second case is required, what would such a case look like?

I've been casually researching the history of 14A incorporation, and as far as I can tell incorporation could happen directly as a result of Parker/Heller. But then again, Parker/Heller is about law in a federal jurisdiction, so maybe a 2A case has to be advanced to SCOTUS from one of the states in order to get incorporation?

Any lawyers out there who can shed light on how incorporation happens?

Piper
09-03-2007, 12:53 PM
Why do I get the impression that whatever decision they make is going to be anticlimatic?

I guress I'm going to have to go out and get arrested for concealed carry so I can have standing in the federal courts. Any attorneys willing to take this pro bono?

bulgron
09-03-2007, 1:15 PM
Do you actually have to break the law in order to have standing?

Here's something that I'm thinking about doing:

1. Wait for the Parker ruling. Assuming it goes our way:

2. Consult with a really good attorney before doing anything. :D

3. Apply for a CCW from the Santa Clara County Sheriff's department.

4. Get turned down because no way will my good cause statement be good enough for them.

5. Sue the state, claiming that good cause statements are unconstitutional on 2A and probably 14A grounds. After all, why do I have to PROVE that I have the right to exercise my civil liberties? Do I have to have good cause in order to attend a Catholic church? How about good cause in order to be secure against unreasonable searches and seizures? No, the burden of proof should be on the state to show that I cannot exercise my 2A rights, and I should have the right to appeal if the state wants to try and make that case.

If that doesn't result in 14A incorporation, I don't know what will.

Of course, the 9th circuit could just go ahead and agree with me (in a pig's eye). The bigger danger is that SCOTUS would refuse to take the case, if it got that far.

hoffmang
09-03-2007, 1:19 PM
!4th incorporation may not require another case but its likely to. Here in the Ninth Circuit, even the anti-gun judges agreed that if the 2nd was an individual right it would be incorporated as it doesn't have the 1st's problems about "Congress shall make now law."

You can generally get standing by exhausting your procedural remedies like Heller did by applying and being denied in DC.

-Gene

Piper
09-03-2007, 3:55 PM
I'm thinking about now, that even if SCOTUS actually takes 190 years of unconstitutional precedent and completly trashes it to put the original intent back on track, California will still not allow their unconstitutional weapons laws to go down in flames without a fight. And you know they're going to use the bogus arguement that the California Constitution has no provision regarding firearms ownership. And somehow in their convoluted devious minds, they are going to try and argue the 14th amendment and limit damage to their totalitarian gun-control laws. So, not only am I not getting ready to pop corks in the Champagne bottles, I havn't even bought the Champagne.

Given the opinions that I've read from both liberal and conservative federal judges about the second being an individual right, it's very disappointing that they may not make a real commitment. I hope that I'm wrong.

bulgron
09-03-2007, 4:15 PM
I'm thinking about now, that even if SCOTUS actually takes 190 years of unconstitutional precedent and completly trashes it to put the original intent back on track, California will still not allow their unconstitutional weapons laws to go down in flames without a fight.

This goes without saying. Fighting the state is going to take a lot of money, although not as much as trying to flip elections or getting a proposition passed.

I think we're all going to have to be ready to help out financially with the eventual court cases if we want to see CA's gun laws fixed.

And you know they're going to use the bogus arguement that the California Constitution has no provision regarding firearms ownership.

Actually, IMO the gun grabbers in CA are screwed in that regard if Parker/Heller comes down for our side. I think that happens even without 14A incorporation. California Constitution, Article 3, Section 1: (http://www.leginfo.ca.gov/.const/.article_3)


The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.


Now, there might be some weasel room in that on the 2A, but I don't know how. If SCOTUS finds the 2A to be an individual right, then according to that section of the CA constitution, CA residents also have an individual right to keep and bear arms.

Up until now, that section of the CA constitution has been useless to us because the courts kept ruling that the 2A is a collective right.

See how important Parker/Heller really is to California?

So, not only am I not getting ready to pop corks in the Champagne bottles, I havn't even bought the Champagne.

If I was you, I'd at least be price-comparing champagne brands at this point.

Still a lot of hurdles to go, but the fight has never been brighter for gun rights in the state of California.

Piper
09-03-2007, 4:38 PM
The words I'm thinking about in the 14th amendment are "privileges", "immunities" and abridged. So, how do you turn a right into a privilege? And how do you define immunity along it's narrowest boundaries? And you know that they will argue that "reasonable" abridgement is permissable.

I've always played the devil's advocate, I found it always helps if I look at how I would attack an issue like this if I was on the opposing side. Since it's said that the second amendment only keeps the feds from infringing, I'm thinking this battle is going to be all about the 14th amendment.

bulgron
09-03-2007, 5:37 PM
I've always played the devil's advocate, I found it always helps if I look at how I would attack an issue like this if I was on the opposing side.

Any debating team will tell you that this is absolutely the right thing to do.

Since it's said that the second amendment only keeps the feds from infringing, I'm thinking this battle is going to be all about the 14th amendment.

Since the 14A is what extends the federal BoR to all Americans, I think you're right. I just don't know what court case will actually address 14A incorporation. Certainly there's no end of possibilities to seek 14A incorporation. We'll just have to keep trying different avenues until we get it.

One hopes that Parker/Heller results in 14A incorporation immediately, but since it's a case about federal jurisdiction, I suspect that it won't. Therefore the best possible attack is for someone to sue over an outright ban on keeping or bearing arms. The lawsuit can come out of Chicago's ban on gun registration. Or it can come out of CA's ban on open carry in incorporated areas. Or it can come out of CA's assault weapon ban. Does MA have an assault weapon ban? If so, a 14A challenge can come from there too.

The possibilities are endless, assuming a favorable ruling on Parker/Heller.

Librarian
09-03-2007, 5:52 PM
Check the Federalist Society (http://www.fed-soc.org/debates/) - hat tip to David Hardy, Arms and the Law (http://armsandthelaw.com/archives/2007/09/lengthy_debate.php).

Piper
09-03-2007, 6:36 PM
Well, let's see then. Since the second amendment is a right only under federal law and there is only a mention of a privilege under the 14th amendment, the 14th says that California can make the right to keep and bear arms a privilege. So now we will have permits to purchase and own a firearm since we don't fall under federal law exclusivly. In otherwords, Washington D.C. is under federal law exclusivly and California has it's own laws.

How's that for a start at getting into their tyranical brains?

bulgron
09-03-2007, 7:02 PM
The California State Constitution states that the US Constitution is the Supreme Law of the land. Under the US Constitution, the people; that is, individual US citizens; have the right to keep and bear arms, and this right shall not be infringed. Therefore, under the California State Constitution, the people of California have the right to keep and bear arms and this right shall not be infringed.

Ergo, just about every gun control law currently on the books within the State of California is unconstitutional under the California State Constitution.

All assuming a favorable Parker ruling, that is.

Anyway, how's that for making the gun grabber's collect heads explode?

Piper
09-03-2007, 7:20 PM
Okay, let's have fun with this.

While it's true that the California Constitution acknowledges the supremecy of the U.S. Constitution, there is precedent that says the second amendment is directed toward the federal government from restricting arms. And since the 14th amendment is also part of the supreme law of the land (the U.S. Constitution), and since the 14th amendment says that states shall not abridge "privileges and Immunities", but there is also established precedent that allows "reasonable" regulation of those privileges, and while the state is not barring ownership of arms, the 14th amendment allows how those arms can be possessed. Because of this, the state deems reasonable regulation to be proper licensing of private arms so as to prohibit those that are considered unfit to possess arms. Also, since carrying concealed does not restrict possession but only reasonably limits how a firearm can be carried, concealed carry regulation is reasonable under the 14th amendment.

Hmmmmmm, computer tennis?

bulgron
09-03-2007, 8:06 PM
Because of this, the state deems reasonable regulation to be proper licensing of private arms so as to prohibit those that are considered unfit to possess arms. Also, since carrying concealed does not restrict possession but only reasonably limits how a firearm can be carried, concealed carry regulation is reasonable under the 14th amendment.

Hmmmmmm, computer tennis?

Unfortunately, I am forced to conclude that the state will have the constitutional right to both license private arms (under the guise of reasonable regulation) as well as ban or otherwise limit the concealed carry of an arm.

However, "reasonable regulation" cannot be read as to constitute an outright ban of an arm, nor can it be read so as to constitute a ban on any type of carry or ownership for entire classes of people, nor can it be read to allow a specific class of individual to have more of an RKBA right than others. I do not see how any of those things can be construed to be a "reasonable regulation" of an essential civil liberty.

The California AW ban is therefore unconstitutional because it constitutes an outright ban on certain types of firearms for certain classes of California citizens. First, it is unconstitutional because it is not a reasonable regulation; there is no regulatory procedure by which the common citizen can access these types of arms. Secondly, it is unconstitutional because it allows a specific class of citizen -- Law Enforcement Officers -- to have access to those arms even in their off-duty private life, while preventing ordinary citizens a regulatory path by which they may legally do the same.

The current California CCW laws are also unconstitutional. First, it requires CA citizens to prove why they should be allowed the constitutionally-protected right to bear arms. Since when is a citizen required to show why he or she must be allowed the ability to exercise a civil liberty.
In fact, this state of affairs is exactly backwards from the way civil liberties are supposed to work.

Secondly, CA's CCW laws grants government officials the power to arbitrarily deny a right -- the right to bear arms -- based upon the personal whims of that government official. This is hardly in keeping with the phrase, "shall not be infringed"! While an outright ban on CCW might pass constitutional must, it can do so only if the ban is applied evenly to all peoples AND some other form of carrying arms is available to the people.

Thirdly, the laws as currently stated provide no means of appeal in the face of this ability of a government official to arbitrarily infringe on their right to bear arms. So now we have a right that government is ordered to not infringe, but that right can be arbitrarily denied, and all without an individual's right to appeal the decision. Again, this is the exact opposite of what a civil liberty is supposed to do.

The result of this law is a de-facto ban on concealed carry, which is hardly reasonable, especially in light of the fact that the state of California also denies most of it's citizens the ability to carry (bear) arms openly.

Finally, California's CCW laws are unconstitutional because, once again, they allow for a favored, protected class -- again, LEO -- to exercise CCW even in their off-duty hours, and even in retirement, while millions of law-abiding Californians are denied a viable regulatory path by which they can do the same.

How am I doing?

Ball's in your court. :D

Piper
09-03-2007, 9:33 PM
Not bad so far. But try this on for size.

You forget the word "privilege", and that really is the key. If a right can be reduced to a privilege, then permission can be reduced to whatever level the governing body deems reasonable. So long as a person can possess and bear private arms (i.e. to a range or other legal fuction) the state has fulfilled its obligation to not infringe on the second amendment.

So, what did the framers of the 14th amendment mean by privileges and immunities. We would have to go back to 1868 and understand how those two words were used. If the two words in conjunction with each other conveyed a personal right, why didn't they just say that? It's kind of odd that they didn't just say that everyone that is a U.S. citizen is accorded the rights under the U.S. Constitution. That I suppose is the million dollar question.

tango-52
09-03-2007, 9:45 PM
Aren't privileges and immunities two seperate things. Why wouldn't the 2nd Amendment be considered an immunity under the 14th? "..the right of the people to keep and bear arms shall not be infringed" sound like that right should be immune from attack. Just like the immunity against unreasonable search, etc.

Piper
09-03-2007, 9:54 PM
Well, by modern standards, I would say yes. But again, I'm wondering what was meant by those two words in 1868. It's like saying gay now and gay in 1868. The meanings aren't the same.

If you think about how privilege is used today, it's used to convey permission as in "driving a car is not a right, it's a privilege." If you look at the modern definition of privilege, it says right or immunity. So, because we are notorious for screwing up the King's English, words are given new meanings over time.

hoffmang
09-03-2007, 10:03 PM
I think you all need to read the dissents (http://notabug.com/kozinski/silveira_v_lockyer) to the denial of rehearing en-banc of Silveira v. Lockyer. I've pointed out in a previous thread here that even Judge Reinhardt who authored the majority anti-gun opinion admitted that if the Second was an individual right it would be applied by the 14th.

Also note that incorporation may not come in California. It may come in Chicago or New York City based on either of those circuits. It wouldn't be binding on the 9th, but it would be strongly persuasive for a sister circuit to so hold.

-Gene

Kestryll
09-03-2007, 10:05 PM
I changed the name of the thread so no one else logged in after a three day weekend like I did and think "WTH did I miss!!??!!

Piper
09-03-2007, 10:29 PM
Unfortunately, I only have the dissenting opinions right now. Someone else on another thread talked about how judges on the 9th circuit looked at the second as an individual right, and I thought that was interesting considering all the other stuff they've done.

Oh well, this is just an excercise in playing the devil's advocate, so I'm fighting for arguements to present against RTC. I hate being on the wrong side, it's alot of work to think up crazy arguements against common sense.

hoffmang
09-03-2007, 11:24 PM
Found it:
Silveira v. Lockyer (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf)

Read Reinhardt's footnote on page 20/21 of the PDF to see what even he has to say about incorporation.

-Gene

bulgron
09-03-2007, 11:24 PM
You forget the word "privilege", and that really is the key.

You make two mistakes with regards to the 14A.

First, I argue that the 14A is irrelevant in the State of California thanks to California State Constitution, Section 3, Article 1. The 2A, and indeed all of the BoR, applies directly to CA residents even without the application of the 14th amendment.

But ignoring that, you should re-read the text of the 14th amendment. Specifically, the key phrase is this:


No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States


The keyword is 'or'.

The State cannot abridge the privileges of the United States Citizens.

The State also cannot abridge the immunities of United States Citizens.

The 2A is an immunity; perhaps the only absolute immunity absolutely spelled out in the US Constitution BoR, since it is the only amendment that forcefully declares this right shall not be infringed. Sounds like an immunity to me. Therefore, the 14A can never be read to reduce the 2A to a privilege because the 2A can not ever be considered to be a privilege in the first place.

Further, if you want to argue the 2A is a privilege that the State may meet with minimal effort (such as taking a gun to a gun range meets a minimum obligation for RKBA), then you have to also argue that the entire BoR is a privilege that can be met with minimal effort by the State. For example, 1A protections for freedom of speech can therefore be met by simply allowing someone to write a letter, carrying it in a sealed and locked container to a designated location, and tacked to a bulletin board within that location.

Thanks for playing devil's advocate on this, btw. I know what a headache it can be.

Librarian
09-04-2007, 10:11 AM
Found it:
Silveira v. Lockyer (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf)

Read Reinhardt's footnote on page 20/21 of the PDF to see what even he has to say about incorporation.

-GeneOnly after determining the amendmentís scope and purpose can we
answer the question whether individuals, specifically the plaintiffs here,
have standing to sue. Thus, as a practical matter, the choice of jurispruden-
tial approach makes little or no difference. Because we held in Hickman
that the absence of an individually enforceable Second Amendment right
resulted in a lack of standing, we follow our precedent and decide the case
on that basis here.
In Hickman, we did not rely on our earlier decision in Fresno Rifle &
Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992), that the
Second Amendment is not incorporated by the Fourteenth and does not
constrain actions by the states, although we noted in dictum that had
standing existed, Fresno Rifle would be applicable.

Hickman: This case turns on the first constitutional standing element: whether Hickman has shown injury to an interest protected by the Second Amendment. We note at the outset that no individual has ever succeeded in demonstrating such injury in federal court. The seminal authority in this area continues to be United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court upheld a conviction under the National Firearms Act, 26 U.S.C. S 1132 (1934), for transporting a sawed-off shotgun in interstate commerce. The Court rejected the appellant's hypothesis that the Second Amendment protected his possession of that weapon. Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia. In a famous passage, the Court held that

[i]n the absence of any evidence tending to show that the possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

307 U.S. at 178 .5 The Court's understanding follows a plain reading of the Amendment's text. The Amendment's second clause declares that the goal is to preserve the security of "a free state;" its first clause establishes the premise that wellregulated militia are necessary to this end. Thus it is only in furtherance of state security that "the right of the people to keep and bear arms" is finally proclaimed. 6

Following Miller, "[i]t is clear that the Second Amendment guarantees a collective rather than an individual right." United States v. Warin, 530 F.2d 103, 106 (6th Cir.), cert. denied 96 S.Ct. 3168 (1976); see also Thomas v. Members of City Council of Portland, 730 F.2d 41, 42 (1st Cir. 1984) (same, citing Warin); United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (cited with approval in Lewis, 445 U.S. at 65 n.8) (same). Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed.

[ Footnote 10 ] Moreover, even if we determined that Hickman had standing to sue for violation of the Second Amendment, his suit would nevertheless fail because the Second Amendment is not incorporated into the Bill of Rights. Fresno Rifle & Pistol Club, Inc. v. Van De Kamp, 965 F.2d 723 (9th Cir. 1992).

Fresno Rifle: In this view we join the Seventh Circuit, which considered
arguments similar to those plaintiffs make in this case, and held
that Cruikshank and Presser are still controlling. See Quilici v.
Village of Morton Grove, 695 F.2d 261, 269-70 (7th Cir.1982)
(upholding local ordinance prohibiting possession of handguns in
village; Presser is still "good law," especially in light of Su-
preme Court's rejection of theory "that the entire Bill of Rights
applies to the states through the fourteenth amendment"), cert.
denied, 464 U.S., 863, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983). Until
such time as Cruikshank and Presser are overturned the Second
Amendment limits only federal action, and we affirm the district
court's decision "that the Second Amendment stays the hand of the
National Government only." Fresno Rifle, 746 F.Supp. at 1416.
[footnote 9]