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hoffmang
10-04-2007, 4:28 PM
Alan Gura, Bob Levy, and company have filed their response to DC's request (http://www.gurapossessky.com/news/parker/documents/heller_cert_petition.pdf) for grant of Cert.

You can read the Cert Petition response here: http://www.gurapossessky.com/news/parker/documents/petition_response.pdf

Their blog posting on the subject is here:
http://dcguncase.com/blog/2007/10/04/33/

The Petition Response is very good reading.

-Gene

glockman19
10-04-2007, 4:39 PM
Thank You Gene

EastBayRidge
10-04-2007, 5:42 PM
Nice. I especially like their takedown of DC on the policy items. It's a slightly longer, footnoted version of "BULL***** !"

C.G.
10-04-2007, 6:01 PM
Thank you Gene, great read.:)

Liberty1
10-04-2007, 6:02 PM
http://www.gurapossessky.com/news/parker/documents/petition_response.pdf

The Petition Response is very good reading.

-Gene

I couldn't put it down! Time to read it again! DC and their ilk can go to the devil and shake themselves for all the good their transparent sham of an argument will do for them!

With Alan Gura, Bob Levy, and company's excellent research and case fillings I'll be shocked by anything less then a one sided victory for us! It might not happen, but I don't even see the left side of the court wishing to do damage to their other constitutional pet causes by a pro-"statist" position even on this issue. Gura mops the floor with DC's empty shell of an argument claiming to rely on "Miller" as anti individual.

DC is going down!

dfletcher
10-04-2007, 6:49 PM
In urging the court to grant DC's petition for cert, I believe our side just said - "Go ahead, make my day".......

taloft
10-04-2007, 7:35 PM
tagged for later reading.

odesskiy
10-04-2007, 7:38 PM
Really good indeed. Now here comes a stupid question. When should we expect SCOTUS to actually hear the case?

hoffmang
10-04-2007, 7:43 PM
SCOTUS is most likely to grant Cert on November 12. However, that's not a hard and fast date.

-Gene

Scarecrow Repair
10-04-2007, 8:54 PM
I have two questions about this response. Seems like they are framing the case as strictly based on the second amendment: is it unconstitutional to ban all functional firearms? They specifically say the state certainly has a right to regulate firearms, but they cannot completely ban them, and only allowing locked or disassembled firearms is equivalent to a complete ban.

I suspect that part of this emphasis on strict 2A grounds is to make it simpler for the court to accept the case, a convenient excuse for the reluctant justices to take the case without offending their own distrust of guns. But once the court takes the case, the justices can make whatever arguments and come to whatever conclusions they want. For instance, if the pro-gun justices sense that the anti-gun justices are wavering and likely to accept the basic 2A individual right argument, they may push for a more comprehensive and broader affirmation, even incorporating the 14th amendment, striking down all gun control of all kind, I suppose the sky is the limit -- suppose they get a 7-2 vote, with the anti-gunners conceding the 2A argument but dissenting from incorporation or striking down all gun control laws, in effect deciding that losing gun control is a better choice than losing a basic individual right.

Is this why this responses emphasizes the core 2A argument, a way of finagling the justices individual political leanings?

Secondly, I wonder how this could affect California's laws. If all the decision does is strike down DC's functional gun ban on grounds of being too absolute, even if they also incorporate the 14th, what effect would that have on California's laws? We have no absolute bans. Even the safe handgun ban isn't particularly heavy. Even the assault weapon ban isn't that onerous when compared to DC's absolute ban. The closest I can think of are those jurisdictions which have de facto no CCW, and those aren't written in law as no CCW, they just happen to come out that way.

So if the decision is narrow, or even includes incorporation, would this have any affect on California's laws?

odesskiy
10-04-2007, 9:10 PM
Good questions indeed. I'm very curious too.

dfletcher
10-04-2007, 9:48 PM
I think it's possible that San Fran's "your handgun must be locked" ordinance would be invalid. Or perhaps the state's "if you keep a gun and a child gets ahold of it ....." law would be similarly ruled invalid. Any thoughts?

hoffmang
10-04-2007, 10:08 PM
DC attempted to play a game of subterfuge and so our side is pushing the case back to the real and only question. The issue is that DC would like to try to claim that an outright ban/prohibition is a "reasonable control" when a real reasonable control is more like banning possession by violent felons.

This petition is not about the merits - its about what question(s) SCOTUS certifies. If SCOTUS were to certify the "DC is a state" question (which was one that DC wants), then the 14th amendment will oddly enough be squarely in front of SCOTUS. I don't expect them to. The thinking on limiting this to just the simple question of is the 2nd an individual right is to maximize the number of votes that we get in a ruling for our side.

This may mean that we don't get immediate impact on California gun laws. However - for those of you who read this closely - you'll note that even the most anti-gun judge in our Federal Circuit Court of Appeals (Rheinhardt, 9th) stated in a footnote to Silviera v Lockyer (a case about the constitutionality of the AWCA that we lost) that if the 2A is an individual right then it is incorporated under the 14th as all the arguments against that position rely on Barron v. Baltimore. That was a case from the just post Civil War era that said the 5th Amendment didn't apply to the City of Baltimore. That's not good law anymore.

For strategic reasons we'll need to be careful about how we go about next steps in California, but know that this can be a very big win - and if we win it (and I think we do) it will lead to pretty significant changes in California gun laws over the next five years.

No matter what, it will create more aircover for moderate Democrats to vote against stricter gun controls as they can blame the crazy conservative Supreme Court for why they will not support LCAV and Brady.

-Gene

hoffmang
10-04-2007, 10:14 PM
One other note.

One thing that will change is the balance of power between BATF and FFLs in California and throughout the US. Once FFL's are selling items that their buyers have a constitutional right to keep and bear, BATF is going to have a much harder time pursuing cases that are not clear and substantive criminal activities by an FFL.

-Gene

FreedomIsNotFree
10-04-2007, 10:27 PM
Oh, and lets not forget the commerce clause...

The Federal Government relies on it to push their agenda on the States....well, this could eventually be beneficial to out of State, out of CA, vendors that want to sell their products in CA.

Scarecrow Repair
10-04-2007, 11:44 PM
Hmmmm ... grist for the mill. Thanks, gents. Leads me to more questions, this time about DC's pathetic petition. It sure looks to me like their argument boils down to "We're the government, we can do whatever we want, regardless of the constitution." Seem like a bunch of budding national politicians there.

But seriously, their argument seems really weak to me, that they don't actually have an absolute ban since you can keep a disassembled firearm, and even use it, altho they slide around the fact that as soon as you try to use it as a firearm, you have to assemble it into an illegal working firearm ... or you can throw it at the bad guy. And they claim they have to have such a law because the end justifies the means, even when the facts show that they are farther from the end than they were when they started their illegal journey.

My first reaction is, are they using this ploy to seem so pathetic that the anti-gunners will take pity on them and vote their conscience rather than on logic? That itself would seem even more pathetic.

Or are they falling back on this argument because they don't dare argue the collective right interpretation? Is collective right so far out of fashion?

Which brings me to another more general question. What exactly is the collective right argument based on? Near as I can see, no one argued that until the 20th century when more and more people moved to cities and made more opportunities for grasping opportunistic unprincipled politicians. Aside from expediency, how do they get around the fact that if the second amendment were a collective right, it would be the only amendment setting out a natural right for governments to protect themselves from people? How do they get past all the obvious intent to be seen in all the discourse around the drafting and adoption of the constitution?

Then there's the matter of judging intent and the exact meaning of words. How much does that enter into the justices' legal arguments? I don't mean the personal ones in chambers, but the official ones they write up. I remember the one in California about how "loaded" has on obvious everyday meaning which trumps any artificial bogosity dreamt up by some ambitious DA: the court ruled that if the legislature had wanted to deviate so far from normal English, they could have, and since they didn't, it must not have been their intent to do so either.

I am really curious about how the collective argument came about, not from the propaganda view of they just hate guns, but its legal history and justification.

Scarecrow Repair
10-05-2007, 12:28 AM
http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

Interesting read. Long, but not as long as a book :-)

One section explains how "bear arms" can be taken as a collective argument. It says that all usage back in the day meant military service. No one said of a hunter that he bore arms, nor of a citizen wearing a knife. The term was a military term. And military implies collective and government controlled. At least that is one possible rationale for the collective interpretation.

But then why throw in "keep" -- if the arms belong to the government, why make it a right to keep them at your own home? A privilege, or the mere possibility for senior officers and noncoms, might make sense without "keep", but to use those two words together means that both apply to the same "people", and the only possible interpretation I can see is that it means keep arms for general purpose, not just to bear them when called upon. It still doesn't make any sense that this one particular "Bill of Right" would give the government a right over people. And the wikipedia article makes it clear that usage of "bear arms" in a non-military sense can be found, and that in formal contexts such as a legal constitution, it would not be surprising to use fancier words like "bear" in place of common words like "carry". Someone is lying about that, and since claiming the existence of non-military usage would be easier to disprove than the opposite, I know where my brain leads me.

At least that's what I get from this wikipedia article. How am I doing so far?

bulgron
10-05-2007, 1:23 AM
I am really curious about how the collective argument came about, not from the propaganda view of they just hate guns, but its legal history and justification.

It's a long and tortured story. I once read a legal review of it, but I can't find it on the web anymore.

The first time the collective rights theory pops up is from a Kansas state appellate court early in the 20th century. It was a complete fiction, an utter fabrication designed to give them the conviction that they wanted to hand down. Some number of decades later, that court reversed itself (and I think they apologized too) but by then the damage had been done. Once the theory entered into the body of law, anyone who wanted gun control jumped on it and started advancing it.

Basically, the process went like this:

- 1939 the Supreme Court hears Miller. The justices at the time were eager to support Roosevelt's "New Deal" so they apparently didn't want to overturn a conviction that was brought on NFA grounds. So they dodged the question, but they did it by looking at the prefatory militia clause in the amendment, and then saying that they didn't know if the firearm in question --a sawed off shotgun -- could be regulated under the 2A because they didn't know if it had usefulness to a militia. Note that the Supreme Court NEVER said ANYTHING about a collective right.

- In 1941, a New York court (again, working from memory here, so I might have some of these details wrong) is faced with the knowledge that virtually ANY firearm has usefulness to a militia, which means that NO ARMS can pass the Miller test. This is brought to their attention thanks to what's going on in WWII with special forces and European resistance fighters. So they basically say of the Miller test, "Harrummph! The court couldn't have meant that." And they then proceeded to reinterpret Miller so as to arrive at the ruling that they wanted.

- Somehow or another, this case was either never appealed, or was never overturned by a higher court. Certainly the Supreme Court never set the record straight. So now this extension of the Miller test makes it into case law, and becomes a precedent that other courts can use.

- And so it goes, one court after another using some other court's newly twisted interpretation of Miller, each one extending from the interpretation of the one that came before them, until we arrive at the situation we have today. And all along, the Supreme Court never bothers to, or never has the opportunity to, correct the lower courts.

This is fundamentally the prime example of judicial activism. Basically, a bunch of judges didn't like guns, thought that good social policy should allow gun control, and so they little by little ate away at the 2A until it was effectively a dead letter.

But since about 1989, there has been increasingly rigorous legal scholarship performed on the second amendment, and the legal community (with a few hold-outs) has pretty much been saying, "Yep, it's an individual right."

Fast forward to 2007 and the Parker/Heller case, and looking at the D.C. arguments on the appeal, almost anyone has to agree that they're making an insanely weak argument. Why? Because once you pick at the threads of the collective rights argument, it falls apart like the cheap, rotten fabric that it is. There's just no way under the constitution to make an argument for gun control, especially gun control as draconian as is implemented in D.C.

So D.C. just waves their hands, makes some disingenuous arguments, and hopes that either no one will notice, or that the Supreme Court will take pity on them and simply refuse to hear the case.

I don't know, they still might get the pity thing. But I wouldn't bet on it.

Something SCOTUS needs to remember is that if the lower courts can turn an enumerated right like the 2A into a dead letter, then they can do it to ANY of the enumerated rights. So while some of those justices might believe that gun control is good social policy, I really hope they take a broader view of this and ask if that good social policy is worth the future damage their opinion could have on the remainder of the bill of rights.

Scarecrow Repair
10-05-2007, 7:02 AM
So D.C. just waves their hands, makes some disingenuous arguments, and hopes that either no one will notice, or that the Supreme Court will take pity on them and simply refuse to hear the case.

So what legal scaffolding will be used by those justices who vote against the individual rights interpretation? Or will they latch on to some other part of the case for their dissent? I am guessing here that they will try to at least appear legally rigorous, altho if memory serves, Scalia voted against overturning the Texas sodomy law with some comment that a pure legal interpretation would require overturning it, but sodomy was so inherently immoral that he would not do it. If the dissenters aren't quite so brash as to admit that, they will have to find some tiny little spurious point to hang their argument on.

CCWFacts
10-05-2007, 7:33 AM
a pure legal interpretation would require overturning it, but sodomy was so inherently immoral that he would not do it

It'll be some logic like that that it comes down to.

That logic is so inherently immoral and dishonest that it makes me want to puke, but I'm not a Supreme Court justice so that doesn't help us.

bulgron
10-05-2007, 7:59 AM
So what legal scaffolding will be used by those justices who vote against the individual rights interpretation?

A few weeks ago I had a long talk with a lawyer friend of mine about Heller. He's not into guns (although he also doesn't fear and loathe them), nor has he reviewed any of the Heller briefs (I have since forwarded them to him). But he said that in general the Supreme Court can get real slippery when a case has the potential to affect the social status quo in a big way. Heller is just such a case.

His belief is that SCOTUS will find some way to rule that doesn't require them to make a hard pronouncement on the individual right aspect of the 2A. Or, having made such a pronouncement for the individual right, to find a way to allow the states to continue what they're doing with regard to gun laws -- perhaps by failing to incorporate, for example.

"Expect the unexpected" was his advice, again, based on the historical behavior of the court. What'll happen is that the lawyers will go before the court, and the court will start asking really strange, off-the-wall questions. If the lawyers object, the court will say something like, "Yeah, yeah, we understand the arguments in your briefs very well. Now let's talk about this."

I should mention that I disagree that this will happen in Heller, and I have a lot of reasons for thinking so. In fact, I even bet the guy good money that the court will not do that and will in fact strongly uphold Heller. I have to do that, you see, because I think that if Heller isn't upheld, then that spells the end of our constitution. If every court in the land dead-letters the 2A, then what's the point of a Bill of Rights in the first place? Or the larger constitution? Just make it up as you go, according to the political whims of whomever is in power, and that's that. I mean, isn't that what the courts have been doing with the 2A for all these years?

Anyone with a shred of intellectual honesty, and who has studied this to any real depth, has to admit that the 2A is an individual right available to every law abiding, peaceful US citizen and therefore outright bans, at the very least, of arms is unconstitutional. If the court rules based in law, we will win. If the court is motivated by something other than law, we will lose. It is that simple.

But then I can be a rather black-and-white, blunt sort of a fellow where it comes to gun rights. Who knows what a slippery court might decided to do.

Anything can happen. Anything.

tgriffin
10-05-2007, 8:06 AM
My area of expertise and education is not squarely within this realm, but I feel I have a somewhat educated opinion and guess as to how this will play out. As many have speculated, I believe that SCOTUS will not provide a clear cut ruling about the 2nd amendment. I just cant see them being that federally "heavy handed". I believe that it will be very hard for SCOTUS to rule in a way that threatens all gun control, which a broad, unfocussed interpretation of the 2nd as "an individual right which shall not be infringed" would do. What I think we will have at the end of the day will be a ruling that acknowledges individual right, but places the responsibility of determining what is to be considered "well regulated" upon the individual states. I do not expect them to elaborate further than that. I know Thomas is a staunch supporter of states rights, as well as others. I think the above would be the most reasonable, desirable, and most importantly politically feasible outcome possible. It would be foolish to hope that any single event could eradicate gun control as we know it. The above outcome would give us, as been mentioned here many times before, "Son of Heller/Parker" abilities to begin challenging laws at the state level based upon the acknowledgement of the 2nd as an individual right. There has been alot of discussion regarding the 14th, which I believe the court will not ignore but rather sidestep by 1. considering for intents and purposes DC a "state" and 2. acknowledging individual states rights to determine reasonable regulation. All that being said, I see a victory in our future, possibly not the one we all hope it will be, but a step in the right direction none the less towards the equality and rights we deserve as Americans.

My humble, political science minor influenced, opinion of what I believe to be a realistic outcome of Parker vs DC.

paradox
10-05-2007, 8:13 AM
What I think we will have at the end of the day will be a ruling that acknowledges individual right, but places the responsibility of determining what is to be considered "well regulated" upon the individual states. I do not expect them to elaborate further than that.

That would be hard to do seeing how Washington D.C. isn't a State...

CSDGuy
10-05-2007, 8:50 AM
That would be hard to do seeing how Washington D.C. isn't a State...

Although this is technically true, at least in terms of the Federal Firearms Laws (with which we're so familiar with the travel parts but there are more of...) the District of Columbia is treated exactly as if it was a state.

paradox
10-05-2007, 9:06 AM
Although this is technically true, at least in terms of the Federal Firearms Laws (with which we're so familiar with the travel parts but there are more of...) the District of Columbia is treated exactly as if it was a state.

If the District of Columbia was treated exactly as a state, the federal government wouldn’t be in charge of their budget and they would have two senators and voting members of congress. The United States Supreme Court won’t just gloss over the fact that DC isn’t a state and act like it was. That would be even more of a bombshell decision than a 2A individual right ruling.

CSDGuy
10-05-2007, 9:22 AM
If the District of Columbia was treated exactly as a state, the federal government wouldn’t be in charge of their budget and they would have two senators and voting members of congress. The United States Supreme Court won’t just gloss over the fact that DC isn’t a state and act like it was. That would be even more of a bombshell decision than a 2A individual right ruling.

D.C. is not in all ways treated like a state. I am merely stating the fact that in certain cases, D.C. is treated the same as a state. It does not mean that D.C. is in fact, a state. Just that for purposes of that section, it is treated as one.
18 USC 921
Sec. 921. Definitions

(a) As used in this chapter--
(1) The term ``person'' and the term ``whoever'' include any
individual, corporation, company, association, firm, partnership,
society, or joint stock company.
(2) The term ``interstate or foreign commerce'' includes commerce
between any place in a State and any place outside of that State, or
within any possession of the United States (not including the Canal
Zone) or the District of Columbia, but such term does not include
commerce between places within the same State but through any place
outside of that State. The term ``State'' includes the District of
Columbia, the Commonwealth of Puerto Rico, and the possessions of the
United States (not including the Canal Zone).

Oh, and do note that in this very same chapter... is where you can find 18 USC 922, 926, 926A... among others.

Wizard99
10-05-2007, 10:27 AM
In reading through arguments from both sides. It seems to me that the arguments put forth by DC were so thin and convoluted that it borders on incompetence by their lawyers. This makes me think that they were trying to get away with filing for cert and hoping that the Supreme Court would not grant cert.
This would allow them to placate the left wing supporters, (Hey we tried) but minimize the damage from the appeals court ruling. Because if they go to the USSC and loose the affects will be larger than if they hadn't appealed. But of course they had to appeal to placate the extreme left of their party.

I think what we will most likely see from the USSC is a ruling that the second ammendment is an individual right subject to regulation. I don't think they will even address the issue of incorporation, and they will leave the issue of what constitutes valid regulation to a future court to decide.
This would give them the cover to prevent rapid changes in the status quo by requiring many more years of litigation to resolve all of the issues. But I don't think they can honestly skirt the central issue of the 2nd amendment being an individual or collective right if they do grant cert.

My 2 cents.

hoffmang
10-05-2007, 10:29 AM
Yes Scarecrow - DC's arguments are that poor. Absent strong advocacy on our side, DC claiming a police power to ban handguns might have more of an argument than "the people means the state" in the 2A.

As to the "bear" argument, I always like this little piece of evidence:

Jefferson drafted a bill which Madison proposed to the Virginia legislature in 1785 punishing a game-law violator if he should "bear a gun out of his inclosed ground, unless whilst performing military duty." The minority report following the Pennsylvania convention of 1788 declared "that the people have a right to bear arms for the defense of themselves . . . or for the purpose of killing game." from http://www.independent.org/newsroom/article.asp?id=397 and other sources.

Our side is asking for two and only two rulings out of SCOTUS and I kind of expect them to stay so limited. The 2A is an individual right and a complete ban on handguns and functional long arms in the home is a violation of that right. Intentionally left open are whether the right is incorporated against the states and what level of scrutiny gun controls should have applied.

The strategic reasoning is that this allows us the highest chance to have the most votes our way on the core issues at hand. We could have 9-0 on the two main issues with a 4-3-2 concurring opinions where 4 incorporate 3 take a stance that not much else would be invalidated by the 2A and 2 think only full bans interfere with police power...

The bickering on the court is not likely to be about the individual right. Its going to be about the scope of the right and Gura et al. are trying to stay away from that issue this time around.

-Gene

5968
10-05-2007, 10:43 AM
Tagged!!!

rkt88edmo
10-05-2007, 10:48 AM
Anyone with a shred of intellectual honesty, and who has studied this to any real depth, has to admit that the 2A is an individual right available to every law abiding, peaceful US citizen and therefore outright bans, at the very least, of arms is unconstitutional. If the court rules based in law, we will win. If the court is motivated by something other than law, we will lose. It is that simple.

But then I can be a rather black-and-white, blunt sort of a fellow where it comes to gun rights. Who knows what a slippery court might decided to do.

Anything can happen. Anything.

SCOTUS has definitely turned out some very odd and wrongheaded rulings colored by opinions and personal prejudices over time, I just hope this one won't be one of them.

tteng
10-05-2007, 11:35 AM
Would 'state militia' leads to 'state as in voting member of congress'? GOP/conservative won't like that.

tgriffin
10-05-2007, 11:50 AM
That would be hard to do seeing how Washington D.C. isn't a State...

CSDGuy's response is accurate and reflects well the concepts my opinion was based upon.

Gene,

I understand why Gura has, and was very smart to, position himself in the way that he has. I acknowledge that the scope of rulings sought, as presented, is limited to the two parts you mention. I hope you will concede however, that regardless of the circumstances brought forth and ruling's sought, the potential ramifications (that go well beyond the narrow scope and circumstance) will influence SCOTUS. What I'm saying is that we should not anticipate this case being ruled upon solely upon its merits. I don't believe even SCOTUS capable of complete idealistic determination of black and white constitutionality absent of social and/or political conscience and influence.

To be blunt, I don't think SCOTUS has the balls to do the right thing and rule outright the 2nd an individual right. They have in the past, and I believe will again, find the path of least resistence and avoid rocking the boat anymore than absolutly necessary, regardless if it is the right thing to do. God I hope I'm wrong, but I'm not confident that those among The Nine whom we believe to be in support have the courage and conviction to risk their legacy and favorable place in history upon an issue which could truely rock the foundations of American (liberal) societies entrenched dogma regarding society and firearms. With so much at stake, SCOTUS cannot be completly unbiased.

bulgron
10-05-2007, 12:38 PM
To be blunt, I don't think SCOTUS has the balls to do the right thing and rule outright the 2nd an individual right. They have in the past, and I believe will again, find the path of least resistence and avoid rocking the boat anymore than absolutly necessary, regardless if it is the right thing to do. God I hope I'm wrong, but I'm not confident that those among The Nine whom we believe to be in support have the courage and conviction to risk their legacy and favorable place in history upon an issue which could truely rock the foundations of American (liberal) societies entrenched dogma regarding society and firearms. With so much at stake, SCOTUS cannot be completly unbiased.

I fear that you're right, but I also think there are reasons why SCOTUS might "have the balls" (as you put it). Someone once said to me that SCOTUS likes to follow the culture. That is, they make rulings that conform with the cultural direction that society seems to be going in.

I note that outside of a few hold-out states, the overwhelming trend in the United States is for firearm rights to be liberalized. That is, people can own the firearms that they choose, up to and including so-called assault weapons, CCW statutes are becoming more open and less subject to societal discretion, open carry in many places is now protected as a right so that a permit isn't even required, I hear about castle doctrine laws popping up all over the place, background checks in many states are now performed instantly, and so on and so forth.

In other words, if SCOTUS rules our way, they'll just be following the direction of 4/5ths of the United States. Does it "take balls," I wonder, to issue a ruling that conforms to the political reality of most of the country? I actually think it doesn't. But then, I'm not a Supreme Court justice. :D

tgriffin
10-05-2007, 1:03 PM
I fear that you're right, but I also think there are reasons why SCOTUS might "have the balls" (as you put it). Someone once said to me that SCOTUS likes to follow the culture. That is, they make rulings that conform with the cultural direction that society seems to be going in.

I note that outside of a few hold-out states, the overwhelming trend in the United States is for firearm rights to be liberalized. That is, people can own the firearms that they choose, up to and including so-called assault weapons, CCW statutes are becoming more open and less subject to societal discretion, open carry in many places is now protected as a right so that a permit isn't even required, I hear about castle doctrine laws popping up all over the place, background checks in many states are now performed instantly, and so on and so forth.

In other words, if SCOTUS rules our way, they'll just be following the direction of 4/5ths of the United States. Does it "take balls," I wonder, to issue a ruling that conforms to the political reality of most of the country? I actually think it doesn't. But then, I'm not a Supreme Court justice. :D

Well put sir! I wholeheartedly hope your right. My only concern is while the majority of the country may be on our side, some of the most influential cities (SF, LA, NYC, in fact most urban centers), states (CA, NY, DC), and dare I say people/politicians are/will be against this, and to put it mildly, they control the media, and the media has a certain measure of control over the populous.

My intent is not to disparage those involved nor cast doom and gloom. I intend only to warn against underestimating our opponents and becoming complacent up to and even if we win Heller.

bulgron
10-05-2007, 1:29 PM
My only concern is while the majority of the country may be on our side, some of the most influential cities (SF, LA, NYC, in fact most urban centers), states (CA, NY, DC), and dare I say people/politicians are/will be against this, and to put it mildly, they control the media, and the media has a certain measure of control over the populous.


All those influential politicians, and the media, really have going for them is fear, uncertainty and doubt. Their entire argument is based on emotional appeals, backed up by the thinnest of logic.

SCOTUS, on the other hand, is supposed to issue ruling based on law, not emotion; based on solid logic and real research, not on hand-waving and wishful thinking.

If they do what they're supposed to do, they should rule more our way than not.

But even in the presence of a great, grand slam victory on Heller, you are correct in that we can never let our guard down. The people who are pushing gun control are doing so because they hate America's freedoms. And they will never stop, so we can never stop resisting their every efforts.

Our forefathers thought their freedoms were secure and so they relaxed. Now look at the situation our country is in ....

hoffmang
10-05-2007, 1:46 PM
2E88,

I don't think your being cynical/skeptical in the right direction. If SCOTUS gives us anything but a win, it will strengthen the Rebuplican ability to win the whitehouse. That would lead to making it much more likely that another conservative justice is added to the Supreme Court. The Justices can do that math and understand that dynamic well. As such, the most spineless thing for those on the court who are not our full supporters to do is to rule that the 2A is individual, and that there is no basis for DC to ban all functional firearms outright leaving what the actual scrutiny is an open question.

That removes opposition at the margin to a Democrat winning the White House and virtually guarantees that the more liberal justices can retire while being replaced with a fellow liberal. That's the game SCOTUS is going to play - not some other game that has them denying an enumerated right while trying to find unenumerated rights.

I'm confident enough of my prediction that I'm willing to put some money on it.

-Gene

bulgron
10-05-2007, 2:25 PM
That removes opposition at the margin to a Democrat winning the White House and virtually guarantees that the more liberal justices can retire while being replaced with a fellow liberal. That's the game SCOTUS is going to play - not some other game that has them denying an enumerated right while trying to find unenumerated rights.

I'm confident enough of my prediction that I'm willing to put some money on it.

-Gene

What a fascinating opinion. I'd agree with you, except that I don't see this next election being about guns, regardless of what goes down with Heller. People are going to be voting based on the Iraq war, universal healthcare, which set of politicians are making them angriest, and some will vote based on what God (a minister) tells them to do.

But I don't see the gun vote being swayed one way or another based on what Heller does. I mean, I personally intend to back Ron Paul no matter what, until he isn't around anymore.

I don't think ANYONE in the gun debate trusts the other side to back off just because Heller goes one way or another.

Surely the SCOTUS justices can see that....

hoffmang
10-05-2007, 3:09 PM
I don't think ANYONE in the gun debate trusts the other side to back off just because Heller goes one way or another.

Surely the SCOTUS justices can see that....

Uhm - hate to disagree with you but the voters in the middle would really like a way to continue to punish the Republicans. As such, Parker/Heller takes guns off the table in a way that Roe took abortion off the table (allowing such things as unions to support Reagan.)

If SCOTUS goes badly for Parker/Heller do you really think that it will not energize the pro gun movement to work MUCH harder to make sure that the next Justices are Republican appointees? Think it through. The Justices will even if you don't because they know that the marginal active voters win elections. The NRA has proven its ability to make gun issues decide elections.

Ron Paul doesn't get to play in this game beyond an ability to be Perot (if he ran third party) and assure a Clintonian victory.

-Gene

tgriffin
10-05-2007, 3:12 PM
2E88,

I don't think your being cynical/skeptical in the right direction. If SCOTUS gives us anything but a win, it will strengthen the Rebuplican ability to win the whitehouse. That would lead to making it much more likely that another conservative justice is added to the Supreme Court. The Justices can do that math and understand that dynamic well. As such, the most spineless thing for those on the court who are not our full supporters to do is to rule that the 2A is individual, and that there is no basis for DC to ban all functional firearms outright leaving what the actual scrutiny is an open question.

That removes opposition at the margin to a Democrat winning the White House and virtually guarantees that the more liberal justices can retire while being replaced with a fellow liberal. That's the game SCOTUS is going to play - not some other game that has them denying an enumerated right while trying to find unenumerated rights.

I'm confident enough of my prediction that I'm willing to put some money on it.

-Gene

Gene,

First and foremost, please make clear the terms of your proposed wager. I'd consider it a win-win situation, as I truly hope you're right (except for that a win could cement a Dem whitehouse). I would consider my dollars or other means of wager (I have a weakness for Laphroaig, an interest we share if I recall, yes?) well spent to have the opportunity of celebrating Heller's victory in good company.

Second, indeed there are many factors for SCOTUS to take into consideration, the impact upon the presidential elections certainly being high among those in terms of importance. Im sure the political casualties of the term following Clinton's 94 ban will not have been so soon forgotten. I make my predictions having observed and not forgotten how unpredictable SCOTUS can be, especially with this high number of stakes and factors (not to imply that you have either). Please don't for a moment think that I hope to be correct in my predictions, regardless of whether I suspect them to be true. Consider my speculations, if you will, my proverbial "knocking on wood". Perhaps my tinfoil tophat is on too tight.

Prove me wrong, I'll gladly bring the water and malted barley.

-Tom

Glock22Fan
10-05-2007, 3:42 PM
(I have a weakness for Laphroaig, an interest we share if I recall, yes?)

I KNEW I was mixing with cultured people; this proves it. Oh, that pronounced Islay flavour! (I deliberately spelled flavour the British way).

tgriffin
10-05-2007, 3:43 PM
What a fascinating opinion. I'd agree with you, except that I don't see this next election being about guns, regardless of what goes down with Heller. People are going to be voting based on the Iraq war, universal healthcare, which set of politicians are making them angriest, and some will vote based on what God (a minister) tells them to do.

But I don't see the gun vote being swayed one way or another based on what Heller does. I mean, I personally intend to back Ron Paul no matter what, until he isn't around anymore.

I don't think ANYONE in the gun debate trusts the other side to back off just because Heller goes one way or another.

Surely the SCOTUS justices can see that....

While I agree with you that war and health care are topics of particular importance in this election cycle, I disagree almost entirely regarding the importance of Heller specifically and firearms in general in the next election. Firearms have consistently been a issue of great importance not only to moderates and conservative, but to ALL voters, both ardently for or against guns. Seldom is political capitol of such magnitude and significance left off the alter of issues come campaign day. Heller is gaining steam within the media. The main stream media is already presenting the story from various perspectives to gauge where each of their markets stand and to determine how best to present the issue as soon as it becomes mainstream news.

Heller presents the opportunity of a turning point for our society. I firmly believe a well armed polite society presents the best means for which our country to evolve past a culture of irrational fear to a more stable era of emphasis on responsibility and self-reliance within society. To me, that would have tangible effects on ALL issues facing our society, including health care and war. Not to mention my ability to insure the future of ALL my rights, if the ballot box and soapbox don't continue to work. For me, that makes Heller and firearms one of the most important issues in the next election. I think that quite a few people in this country will agree with me.

hoffmang
10-05-2007, 3:53 PM
Gene,

First and foremost, please make clear the terms of your proposed wager. I'd consider it a win-win situation, as I truly hope you're right (except for that a win could cement a Dem whitehouse). I would consider my dollars or other means of wager (I have a weakness for Laphroaig, an interest we share if I recall, yes?) well spent to have the opportunity of celebrating Heller's victory in good company.
...
Prove me wrong, I'll gladly bring the water and malted barley.


My thoughts are this.

I win: 6 or more Justices agree with 2A is an individual right and DC's ban violates it or more (note that this includes more than 6 or split decisions where its 4-2-3 for our side or better).

You win: 5 or less Justices say the 2A is an individual right and DC's ban violates it.

The wager is a bottle of Laphroaig and an evening somewhere to enjoy some of it (meal expenses our own.)

Huge win, I'm drinking on you - Small or no win, you're drinking on me. Ivan or Kes referees if we have any issues.

-Gene

tgriffin
10-05-2007, 3:59 PM
I KNEW I was mixing with cultured people; this proves it. Oh, that pronounced Islay flavour (I deliberately spelled flavour the British way).

Good man! If you make it up my way we should nose our way through a couple fingers!

Culture I have,
its years I lack,
I'll have most any whiskey,
that ain't Johnny' Black.
Truth be told,
naught will usually do,
but Laphroaig,
wonderful caramel
Islay dew.

tgriffin
10-05-2007, 4:10 PM
My thoughts are this.

I win: 6 or more Justices agree with 2A is an individual right and DC's ban violates it or more (note that this includes more than 6 or split decisions where its 4-2-3 for our side or better).

You win: 5 or less Justices say the 2A is an individual right and DC's ban violates it.

The wager is a bottle of Laphroaig and an evening somewhere to enjoy some of it (meal expenses our own.)

Huge win, I'm drinking on you - Small or no win, you're drinking on me. Ivan or Kes referees if we have any issues.

-Gene

Terms and wager gladly accepted!

At worst (best?), major legal victory, good whiskey and company on my dime.

At best (worst?), there is a silver lining to every cloud, good whiskey and company.

Regards,

Tom

Scarecrow Repair
10-05-2007, 4:12 PM
Uhm - hate to disagree with you but the voters in the middle would really like a way to continue to punish the Republicans. As such, Parker/Heller takes guns off the table in a way that Roe took abortion off the table (allowing such things as unions to support Reagan.)

Interesting idea. I can see that ... A Parker win makes worries about gun control much less important and makes voting Democrat a lot safer. That won't fool the progunners into voting against an individual right, but it might soften the gun grabbers into feeling less backed into a corner and sooth their consciences.

But on the other hand, might not the gun grabbing losers start down the path of vengeance like the Roe losers did? They seem to have thought of nothing else these 30 years. An amendment is harder to get around than a mere court decision, but still ... 20-30 years could see tremendous swing in the court back to gun grabbers. Or maybe there would be enough studies to prove a drop in crime that the validity of self-defense would be confirmed for a long long time. I guess that's too far in the future to make any plans for :-)

1911_sfca
10-06-2007, 2:16 PM
What a great brief. This shows, once again, what a poor adversary DC is in this case, and the respondents sure didn't pass up any opportunities to rub it in with some good jabs.

If anything, I think the respondents might be making it a bit *too* easy to overlook the important and deeper questions on the part of the court. With such a weak opposing argument, why narrow things so early? But I'm sure they have their reasons.

Bravo!

Glock22Fan
10-07-2007, 9:46 AM
I hope that SCOTUS is aware of this quote (my emphasis):

"Firearms stand next in importance to the Constitution itself. They are the people's liberty teeth keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference. When firearms go, all goes, we need them every hour." George Washington, Address to 1st session of Congress

Subvertz
10-07-2007, 10:35 AM
Can I steal that one for my sig?

Glock22Fan
10-07-2007, 10:37 AM
Can I steal that one for my sig?

Why not, I "stole" it from JerichoGirl on another website.

I think it is safely out of copyright.

hoffmang
10-07-2007, 11:36 AM
If anything, I think the respondents might be making it a bit *too* easy to overlook the important and deeper questions on the part of the court. With such a weak opposing argument, why narrow things so early? But I'm sure they have their reasons.

This isn't the merits brief. This is only a brief in response to DC's request for review. The merits brief and the supporting Amici is going to be a tour de force of the history and fabric of the Second Amendment over the last 325 years. However, our side wants to keep this simple to maximize the total number of votes for us.

No, 325 is not a typo.

-Gene

Scarecrow Repair
10-07-2007, 2:05 PM
THowever, our side wants to keep this simple to maximize the total number of votes for us.

I suppose one could take it back a lot farther in English law, one way or the other. But I digress...

What really puzzles me is, if DC's case really does boil down to whether or not the 2A is an individual right, what logic will the dissenters use? Will they actually argue it is a collective right, or will they wiggle and dodge and rely on sleight of hand? -- "Look, a shiny object!"

aileron
10-07-2007, 6:40 PM
This isn't the merits brief. This is only a brief in response to DC's request for review. The merits brief and the supporting Amici is going to be a tour de force of the history and fabric of the Second Amendment over the last 325 years. However, our side wants to keep this simple to maximize the total number of votes for us.

No, 325 is not a typo.

-Gene

Its going to be a very fun read indeed. :D