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JawBone
11-20-2007, 10:08 AM
www.scotusblog.com

COURT AGREES TO RULE ON GUN CASE

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if it, in the end, decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

The city of Washington’s appeal (District of Columbia v. Heller, 07-290) is expected to be heard in March — slightly more than a year after the D.C. Circuit Court ruled that the right is a personal one, at least to have a gun for self-defense in one’s own home.

The Justices chose to write out for themselves the question(s) they will undertake to answer. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.

ETA: Here is the way the Court phrased the granted issue:

“The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

rkt88edmo
11-20-2007, 10:10 AM
It will be interesting to see the questions

Bizcuits
11-20-2007, 10:13 AM
It will be interesting to see the questions

Yeap! This kinda scares me, as their way of using a political goat, on the other hand maybe they want to go for broke and make a name, finally putting to end the whole 2d Admen issue once and for all

:lurk5:

SemiAutoSam
11-20-2007, 10:15 AM
Excellent.

When they are done with that one then maybe they can go after the legality of the 16th. Or would the truth coming out on that issue jeopardise their paychecks ?

http://www.supremelaw.org/cc/boxer/index.htm
http://www.supremelaw.org/cc/boxer/benson.htm

Grakken
11-20-2007, 10:22 AM
What happens if our side loses? Will ths open the floodgates for more laws/bans? People around here act like this case is in the bag when it is not. Im sure the supremes play politics like any other scumbag politician.

kuhjäger
11-20-2007, 10:33 AM
What I am looking forward to is hearing the arguements in court itself. You can find them on Oyez.com usually.

DedEye
11-20-2007, 10:37 AM
March can't come soon enough!

Dr. Peter Venkman
11-20-2007, 10:38 AM
It could only be better if John Madden and Pat Summerall did a sideline commentary during arguments.

JawBone
11-20-2007, 10:39 AM
What I am looking forward to is hearing the arguments in court itself. You can find them on Oyez.com usually.

Hmmm. I'm going to plan a vacation to DC in March. I would love to hear the oral argument in person.

Do you think it will be to tough to get a seat in the gallery? :rofl2:

PanzerAce
11-20-2007, 10:39 AM
:party:

tiki
11-20-2007, 10:42 AM
The question is already set...


“The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

bg
11-20-2007, 10:42 AM
I got to tell ya, the way it was worded in one of the replies above, I have
a bad feelin' bout this..

violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

I wonder if the court will decide that the Nat'l Guard is a state militia and if
not belonging to it, private ownership is kaput ? I don't know...

odesskiy
11-20-2007, 10:51 AM
I got to tell ya, the way is was worded in one of the replies above, I have
a bad feelin' bout this..


I wonder if the court will decide that the Nat'l Guard is a state militia and if
not belonging to it, private ownership is kaput ? I don't know...

I hate to say it, but I'm with you. I have a really bad feeling in the pit of my stomach that SCOTUS is going to bend us over and give us a big fat ....

chico.cm
11-20-2007, 10:52 AM
I am glad that they are hearing the case.
If it goes bad, I'll just join the Guard and buy an ON LIST AR!

tiki
11-20-2007, 10:53 AM
I hate to say it, but I'm with you. I have a really bad feeling in the pit of my stomach that SCOTUS is going to bend us over and give us a big fat ....

Yes, I was thinking the same thing.

Fjold
11-20-2007, 10:54 AM
I got to tell ya, the way is was worded in one of the replies above, I have
a bad feelin' bout this..


I wonder if the court will decide that the Nat'l Guard is a state militia and if
not belonging to it, private ownership is kaput ? I don't know...

I actually feel better about it. Look at how they worded the question:

"Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

It seems to me that "violate the Second Amendment rights of individuals" has answered part of what we are insisting is correct, the second amendment affirms an individual's right to keep firearms for private use.

They seem to have already ruled out the Militiia requirement.

Charliegone
11-20-2007, 10:56 AM
I actually feel better about it. Look at how they worded the question:

"Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

It seems to me that "violate the Second Amendment rights of individuals" has answered part of what we are insisting is correct, the second amendment affirms an individual's right to keep firearms for private use.

They seem to have already ruled out the Militiia requirement.

Basically they are saying, whether it will be a individual right (like most of us believe) or it's a collective right (like the brady bunch, etc believe).

hoffmang
11-20-2007, 11:08 AM
This is an almost perfect question!

-Gene

Bruce
11-20-2007, 11:09 AM
I wonder if the court will decide that the Nat'l Guard is a state militia and if
not belonging to it, private ownership is kaput ? I don't know...


IIRC, they already heard that question back in the early 1990's. Michael Dukakis questioned the Reagan Administration's right to call up the Massachusetts National Guard and deploy them to Honduras for Contra training. SCOTUS ruled that the National Guard was part of the standing army and therefore a state governor could not stop a deployment by the federal government.

rbgaynor
11-20-2007, 11:13 AM
Here's a pretty even-handed article on the effectiveness of the DC gun ban that was published by of all organizations the Washington Post:

http://www.boston.com/news/nation/washington/articles/2007/11/18/effectiveness_of_dc_gun_ban_still_a_mystery/

bruss01
11-20-2007, 11:15 AM
The way it is worded, the Supreme court has set themselves up as follows:

1. It has to determine if a right of individuals to keep and bear arms apart from militia service even exists.

2. It then has to determine, if that right does indeed exist, whether the DC gun ban laws violate that right.

In making both of these determinations, it will be interesting to see what logic and reasoning is voiced, and what kind of precedent those arguments set for challenging other gun bans and restrictions.

I believe that this is an excellent framing of the core question at issue. We should get a pretty solid ruling out of this, one way or another.

tiki
11-20-2007, 11:17 AM
I actually feel better about it. Look at how they worded the question:

"Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

It seems to me that "violate the Second Amendment rights of individuals" has answered part of what we are insisting is correct, the second amendment affirms an individual's right to keep firearms for private use.

They seem to have already ruled out the Militiia requirement.

Yes, but, you can also read it as the right is for individuals who are part of the state-regulated militia, but, does it apply to those that are not.

The things that concern me about the way the question is phrases are:

1) They specify state-regulated militia. I fear them ruling that it only protects individuals who are part of the state-regulated militia, and using the state-regulated phrase to kill any lawsuits that claim we are all part of the militia.

2) They specify the keeping of firearms for private use in the home. So, I can also see them saying that you have a right to keep firearms in the home for protection, but, the state can regulate whether or not you can drive around with them or carry them.

I can make arguments that also sound good for us, but, I am late for bbq lunch and will add that later. :)

bulgron
11-20-2007, 11:18 AM
violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia


I know that I'm no lawyer, but I do have an english degree. :) That phrase seems to imply to me that individuals already have second amendment rights. That is, the way the question has been framed, it seems to concede that individuals have a right to keep and bear arms, but the real question is does the D.C. law infringe on those rights.

How can something violate the second amendment rights of individuals if individuals have no second amendment rights?

Am I reading too much into this?

Fjold
11-20-2007, 11:18 AM
Basically they are saying, whether it will be a individual right (like most of us believe) or it's a collective right (like the brady bunch, etc believe).


To me, they've have already said it. It's an indivdual right! The question says :

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia,..........

The key there is the term "the Second Amendment rights of individuals"

Charliegone
11-20-2007, 11:26 AM
To me, they've have already said it. It's an indivdual right! The question says :

Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia,..........

The key there is the term "the Second Amendment rights of individuals"

True, but couldn't that be also what Heller is arguing about (not what they believe necessarily)? The thing I find interesting is the state-regulated militia part..hmmm:D

Hunter
11-20-2007, 11:33 AM
Brady is a already at it as I just got this message via email. I wonder if our side has a "tax deductible defense fund" as they do?

Just minutes ago, the U.S. Supreme Court decided to take what could be the most significant Second Amendment case in our country's history.

Thanks to your support, your Brady legal team had already begun preparing for this announcement, but now our lawyers have swung into high gear to prepare our "friend of the court" brief.

We have a tidal wave of work to do in the weeks ahead and we need your help now.

This fight is so critical that we need to raise $50,000 by November 30. And since your gift will be going to our Brady Gun Law Defense Fund, it will be fully tax deductible!
We need your help today to build a strong Brady Gun Law Defense Fund to protect America’s gun laws. Please give today.

Earlier this year, a U.S. Court of Appeals struck down a gun law as violating the Second Amendment for the first time in American history. We believe this decision was judicial activism at its worst and was clearly wrong.

This legal case at its very core is the most important battle we have ever waged. The U.S. Supreme Court has the chance to reverse a terribly erroneous decision and make it clear that the American people can adopt restrictions on firearms in their communities.

If the Supreme Court does not reverse the federal appeals court decision, gun laws everywhere could be at risk…

…from the long-standing machine gun ban…to the 1968 Gun Control Act…to the Brady background check law.

…to your local and state laws…like the ones in California and New Jersey banning military-style Assault Weapons… and many more.

If that happens, then your Brady Center will defend these laws in the courts as we have done so many times in the past against the attacks of the gun lobby. But now we must focus on the immediate challenge at hand as we prepare for the fight in the U.S. Supreme Court.

troyPhD
11-20-2007, 11:38 AM
I hope they simply answer yes or no to the question and leave it at that. No bull**** wishy-washy splitting the difference decision like affirming an individual right while still adding a clause regarding "reasonable restrictions."

aileron
11-20-2007, 11:53 AM
Wow.

State regulated militia, is a good question because we are all part of the unregulated militia, not the regulated, or select militia. The state governments has been neglecting the militia as it is, so we fall under unregulated.

It will be interesting to see how they phrase what the state regulated militia is.

That should pass with an affirmative, that the government cannot bar us the use of arms because the founders were dead set against standing armies and that we were all part of the militia, state regulated or not.

Also interesting is the mention of rights. Keep and Bear should come up as the rights protected under the 2nd.

That will be really interesting reading all on its own. Because from everything I have read, we are allowed to keep arms and more interesting to bear arms. Period. The government cannot infringe on my right to bear arms wherever I go. According to how the founders understood it.

I'm nervous, if they rule correctly we will be able to repeal most everything, if not... phew.

Man this is historical.


D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

stator
11-20-2007, 11:58 AM
The smart money should be betting on the Supreme Court ruling to maintain the status quo while getting the circuits inline. They really have not made any sweeping changes, or corrections as some would see it in the previous years.

They have stayed away from taking the abortion versus right to life issue headon. They have also maintained status quo on a similar challenge with Raich vs. Ascroft (inference versus literal conclusions).

Bottom line is that my first reading of SCOTUS granting of cert is there much wiggle room to maintain status quo but still get the circuits back in order.

One thing is clear though which the lack of any mention of state's rights in SCOTUS grant of cert. So, it looks as if pro-gun control arguments using the angle of the 2nd amendment only limits federal rights and not state's rights seem to be muted (another great example of this court emphasis on federalism). It will come down to a discussion as to how to balance collective rights (well-regulated militia) versions individual rights (people).

aileron
11-20-2007, 11:58 AM
So what happen with the cross petition. How do we know if that went through???

EDIT: Never mind


(The Court took no action on Tuesday on a conditional cross-petition, Parker, et al., v. District of Columbia, 07-335, an appeal by five District residents seeking to join in the case. The absence of any action may mean that the Court has decided not to hear that case. If that is so, it will be indicated in an order next Monday. The Court also may simply be holding the case until it decides the Heller case.)

dfletcher
11-20-2007, 12:04 PM
If I were on the Brady side, I would be dissappointed that the question as framed seems to presume a 2nd Amendment individual right and that possession in one's home is not limited to some self defense purpose.

Henry Bowman
11-20-2007, 12:26 PM
I actually feel better about it. Look at how they worded the question:

"Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

It seems to me that "violate the Second Amendment rights of individuals" has answered part of what we are insisting is correct, the second amendment affirms an individual's right to keep firearms for private use.

They seem to have already ruled out the Militiia requirement.As a lawyer, I'm not sure how to take this at all. The "Second Amendment rights of individuals who are not affiliated with any state-regulated militia" really does not presume individualrights at all. they could simply answer the questiion by saying there is no individual right. The "individuals who are not affiliated with any state-regulated militia" part doesn't bother me so much. Miller did address this question already. The words "state-regulated militia" bother me a lot. Where did this come from? Where in the 2A does is say "state-regulated"? Do they not understand what "reguated" means in context? Is this a way of distinguishing the 2A from application to DC, a non-state? I fear this opens the door to a major misinterpretation of "well regulated militia" to mean "state-regulated" which is not in the 2A at all.

FreedomIsNotFree
11-20-2007, 12:27 PM
Hmmm. I'm going to plan a vacation to DC in March. I would love to hear the oral argument in person.

Do you think it will be to tough to get a seat in the gallery? :rofl2:


A few years ago I was in D.C. visiting family. I decided to head down to the Supreme Court to hear some oral arguments. I got in line at 5am and barely made it in....and the cases before the court were not as profound, to the general public, or high profile as the 2nd Amendment.

I remember being so tired, from waiting in line, I nearly fell asleep....haha.

FreshTapCoke
11-20-2007, 12:28 PM
Ahhhh, there is not much that can happen now to dampen my day. :)

I am not worried much about the inclusion of the "regulated militia" portion in the question. Considering how much consternation the 2nd amendment has witnessed with the "right of the people" portion, I have no problem with them explicitly clarifying that this is not only in regards to individuals, but individuals not a part of a regulated militia.

Steyr_223
11-20-2007, 12:36 PM
If we win great! :)

If we lose...:(

"Question for LEOs and Active US Military, if Feds order confiscation of firearms"

http://calguns.net/calgunforum/showthread.php?t=73458

aileron
11-20-2007, 12:38 PM
As a lawyer, I'm not sure how to take this at all. .... Where in the 2A does is say "state-regulated"? Do they not understand what "regulated" means in context? Is this a way of distinguishing the 2A from application to DC, a non-state? I fear this opens the door to a major misinterpretation of "well regulated militia" to mean "state-regulated" which is not in the 2A at all.

Well, they better understand the word regulated as it was understood then. Not some stupid regulation as the bradites try to make it.

well regulated, as in well operating. Your right... sheesh, that makes me nervous.

AfricanHunter
11-20-2007, 12:41 PM
Here's an article from the AP/NYT;

http://www.nytimes.com/aponline/us/AP-Scotus-Guns.html?_r=1&hp&oref=slogin

Lashlarue
11-20-2007, 12:41 PM
As far I'm concerned the 2nd Amendment is redundant, the right of self defense is a god given right that falls in the same category as breathing, eating, or procreating! Self preservation is a part of the nature of man, in fact all anmals on this planet..

whit
11-20-2007, 12:45 PM
I don't know,

Seems to me we are tantalizingly close here.

What we all really want a positive ruling on is whether the individual needs to be a member of some organized (state or otherwise) militia in order to be allowed to keep weapons in the home.

In that case they would posit a question like, "Does the individual need to be a member of an organized militia in order to qualify under 2a to keep and bear arms in the home" or some such thing.

They have not certed that question though. They have come back with a much narrower question of whether the DC law violates some aspect of this situation.

They might indeed bite off the whole enchilada and rule on individual 2a rights, or they might just as well rule that the DC law, due to some odd technicality here or there, does or does not violate the situation, -- without ever addressing said situation.

JawBone
11-20-2007, 12:48 PM
"Question for LEOs and Active US Military, if Feds order confiscation of firearms"

Calm down. There is ZERO chance that SCOTUS will issue any Federal confiscation order as a result of this case.

Even if we "lose" - (i.e. 2A = National Guard) it will be a States' decide issue. Laws are already in place in CA allowing you to legally purchase a gun without 2A rights. Even with a "loss," those laws will have to be repealed/changed, which would be a long unpopular process.

Steyr_223
11-20-2007, 12:50 PM
"Calm down. There is ZERO chance that SCOTUS will issue any confiscation order as a result of this case. "

True..But it could be the tipping point against us..I hope I am wrong. However, I never under estimate the foolishness of my fellow man..

:)

paradox
11-20-2007, 12:54 PM
Hmmm. I'm going to plan a vacation to DC in March. I would love to hear the oral argument in person.

Do you think it will be to tough to get a seat in the gallery? :rofl2:

Public seats for Supreme Court arguments are first come first serve. I think there is a cutoff time for when you can begin standing in line, so you might have to wander around the capital mall through the night...

Bizcuits
11-20-2007, 12:57 PM
Brady is a already at it as I just got this message via email. I wonder if our side has a "tax deductible defense fund" as they do?


wow just me or does the brady bunch sound scared?

Paratus et Vigilans
11-20-2007, 1:00 PM
This is an almost perfect question!

-Gene

Agreed! They are going to decide what the "part before the comma" really means, and it's that "part before the comma" upon which all the antis have hung their argument against a "personal right" interpretation for lo these many years.

Also, I would fall out of my chair if SCOTUS were to find that it is NOT a personal right, given the way they've framed the question. We are going to WIN this!!!

I predict that about all they will leave undecided for the future is whether the 2nd is infringed by CCW licensing restrictions, and whether the right to "bear arms " includes a right to carry, open or concealed, and if so, whether that right is infringed by a LE agency refusing someone a CCW on any basis other than being a convicted felon or mentally unstable.

Yeah, I want a seat at oral argument as well!

Gene, when do we start on the Calguns amicus brief??? :D

yellowfin
11-20-2007, 1:10 PM
The wording of the question seems pretty iron clad. I'm not sure that even the best lawyers can twist, wriggle, and BS their way around that without the 9 top judicial people in the land seeing that it's bogus.

hoffmang
11-20-2007, 1:14 PM
Amicus briefs are under way :D

This is exactly the question that Gura and Levy wanted - simply is there an individual right to keep functional arms in the home.

Bearing arms is not in this case intentionally. Its based on the Tennessee supreme court line starting with Aymette that ended with Miller and the plan has always been to not go there yet.

-Gene

yellowfin
11-20-2007, 1:17 PM
Isn't it obvious that sidearms, particularly concealed, are the only practical way of BEARING arms in most places? I can think of no other amendment that is invalidated entirely by being in public.

edwardm
11-20-2007, 1:22 PM
So, who is up for a trip to DC for oral arguments?

I'll start begging the wife now.

DedEye
11-20-2007, 1:26 PM
Calm down. There is ZERO chance that SCOTUS will issue any Federal confiscation order as a result of this case.

Even if we "lose" - (i.e. 2A = National Guard) it will be a States' decide issue. Laws are already in place in CA allowing you to legally purchase a gun without 2A rights. Even with a "loss," those laws will have to be repealed/changed, which would be a long unpopular process.

Not to mention other states which have their own RKBA clauses in their state constitutions.

JawBone
11-20-2007, 1:28 PM
Amicus briefs are under way :D

This is exactly the question that Gura and Levy wanted - simply is there an individual right to keep functional arms in the home.

Bearing arms is not in this case intentionally...

...but IF it is decided we have an Individual right to Keep...well then it kinda necessarily follows that we have an Individual right to Bear, doesn't it? ;)

The "Bear" issue may essentially get decided, even though it is not at issue. So Genius.:D

paradox
11-20-2007, 1:30 PM
Amicus briefs are under way :D


Throw it up in its own thread!

We should collectivly draft and edit an amicus brief and send it in the name of calguns.net. Has the Supreme Court ever had an amicus brief from an internet forum before?

yellowfin
11-20-2007, 1:54 PM
So, who is up for a trip to DC for oral arguments?

I'll start begging the wife now.

I think I read that post the wrong way a couple of times...:eek::D

hoffmang
11-20-2007, 1:57 PM
Please explain "yet", in particular in light of the exact wording of the highlighted section:

...

Easy, they can rule on a question that is narrow.

For example, they could rule that the 2A guarantees the right to keep arms in the home only, but that absolutely everything else can be reasonably regulated, without any need for the regulation to pass any strict test. Let me construct a deliberately exaggerated scenario: Surely, an individual has the right to keep arms at home. But they can't ever take them out of the home, it can only come out of the gun safe if all doors and windows are locked with approved gun locks, and all the walls of the home need to be armor-plated to guarantee that a negligent discharge never gets outside of the home. To buy a gun, you have to prove your ancestorship back to the Mayflower, you have to endure a 10-year waiting period, the CLEO has to give you permission which is purely at his discretion, and the gun has to be conveyed from the only remaining federally-operated gun store and FFL at Frankford Arsenal under full military guard. And purchasing or possession of ammunition is full-out illegal. But if you can live with all that regulation, then the 2A guarantees that you can keep the arm at home.

If I were a supreme court justice, I would LOVE to get this particular monkey off my back, without giving the impression that I'm derelict in my duties.

Bzzt. DC tried to keep SCOTUS from asking about the requirement that long arms be unloaded/locked. However, SCOTUS is particularly reviewing whether § 7-2507.02 "Firearms required to be unloaded and disassembled or locked" is constitutional. As such, your hypothetical is actually in front of the court and will be ruled upon. The issue is, can one have functional long arms and handguns in the home for practical use in self defense.

I'm pretty sure we know the answer and the interesting debate is whether its 5-4 or 6-3 or better.

-Gene

Liberty1
11-20-2007, 2:03 PM
http://www.dcguncase.com/blog/

November 20th, 2007 by Alan Gura

Washington, D.C.—Today, the U.S. Supreme Court announced that it will hear the case of Heller v. District of Columbia, and decide whether the Second Amendment to the U.S. Constitution protects the right to own guns. At issue is a 31-year-old Washington, D.C. law banning handguns and requiring that all shotguns and rifles be kept unloaded and either trigger-locked or disassembled at all times. There is no exception for self-defense.

Alan Gura, lead counsel for the Heller plaintiffs said, “The Bill of Rights does not end at the District of Columbia’s borders, and it includes the right to keep and bear arms. After three decades of failure trying to control firearms in the District, it’s time for law-abiding city residents to be able to defend themselves in their homes. We are confident the Supreme Court will vindicate that right in Washington, D.C., and across the nation.”

Dick Heller, a District resident who works as an armed security guard protecting the lives of various government officials during the day but is forbidden by District law from keeping a handgun at home to protect himself, explained, “I want to be able to defend myself and my wife from violent criminals, and the Constitution says I have a right to do that by keeping a gun in my home. The police can’t be everywhere, and they can’t protect everyone all the time. Responsible gun ownership is a basic right we have as American citizens.”

The Supreme Court has not heard a Second Amendment case since 1939, when it issued a confusing and inconclusive decision in a case involving the interstate transportation of a sawed-off shotgun. The case ended before the defendant had the opportunity to establish whether sawed-off shotguns are covered by the word “arms” in the text of the Amendment. But regular shotguns, along with rifles and handguns, are precisely the kind of “arms” the Framers had in mind in drafting the Second Amendment. The District’s functional firearms ban defies the Framers’ obvious intent to ensure that the government could never disarm citizens in America, as other governments have done elsewhere.

Clark Neily, a public interest lawyer specializing in constitutional law cases and co-counsel to the Heller plaintiffs said, “The Second Amendment is every bit as much a part of the Bill of Rights as freedom of speech, freedom of the press, and freedom of religion. The framers of our Constitution made clear that the government has no more business disarming citizens than it has censoring them or telling them what values to hold sacred.”

“The citizens of Washington, D.C. − indeed, all Americans − deserve a clear pronouncement from the nation’s highest court on the real meaning of the Second Amendment,” stated Robert Levy, a senior fellow in constitutional studies at the Cato Institute and co-counsel to the Heller plaintiffs. Levy added, “Later cases will decide what gun regulations are constitutional, but an outright ban on all functional firearms clearly is not constitutional.”

Heller will likely be the highest-profile case on the Court’s docket this term, and it promises to be among the most closely watched constitutional law cases in decades. At stake is not just the question of whether people have a constitutional right to own guns, but also the Court’s willingness to stand up for rights that are clearly expressed in the Constitution, even when those rights are strongly opposed by a vocal minority.

Oral argument will most likely be scheduled for March or April, with a decision expected by June 2008.

SKG19
11-20-2007, 2:08 PM
I'm pretty sure we know the answer and the interesting debate is whether its 5-4 or 6-3 or better.

-Gene

Man I hope you're right!!

dustoff31
11-20-2007, 2:09 PM
Yes, but, you can also read it as the right is for individuals who are part of the state-regulated militia, but, does it apply to those that are not.

The things that concern me about the way the question is phrases are:

1) They specify state-regulated militia. I fear them ruling that it only protects individuals who are part of the state-regulated militia, and using the state-regulated phrase to kill any lawsuits that claim we are all part of the militia.

I'd say zero chance of this. Read the fed and state constitutions/laws defining the militia, and see who is NOT liable for militia service. Do you really think they are going to say women, senior citizens, and elected officials, and even themselves have no 2A rights?

bobfried
11-20-2007, 2:23 PM
If this plays out as I hope it will:

We can ignore Hillary and that MASADA will be mine, with all the features the founding fathers intended. I can't imagine them telling the Minute Men to pin and weld their powder flask and limit it to only 10 charge.

Can'thavenuthingood
11-20-2007, 2:25 PM
Where do we send funds? Who are our friends that will file briefs?

I'd say here https://secure.nraila.org/Contribute.aspx

Or here https://membership.nrahq.org/forms/donate.asp

Either way you go, they'll put it to good use and No the money you send to fight for your Rights is not deductible.
It appears only money used to TAKE your rights is deductible.

Vick

WokMaster1
11-20-2007, 2:50 PM
As been discussed many times before. The Bill of Rights are about individual rights, not the rights of any person who is in the National Guard or the NG itself. If you join the NG, your arse belongs to the State & Uncle Sam. Your rights will be limited. Your freedom of speech is out the door. What would happen if you tell your CO how you really feel about him or talk to the press & expose something that the Guard admin is trying to hide?

6172crew
11-20-2007, 2:57 PM
Seeing how the Feds restricted sales of class 3 firearms in 1934 and 1986 I wonder if they will say whether this should be setup more like short barreled shotguns and rifles?

As it is now you can build a SBR/SBS and pay the tax but the machine guns are limited to what was reg'd in both bans, Im sure there are lot more machine guns out there that would qualify for a stamp if the laws were changed.

tgriffin
11-20-2007, 3:00 PM
Wonderful news! This made my day. 11 days ago I started a DROS. I pick up that shotgun today and here out it will be my reminder of the historical event that happened.

I think the wording is near perfect.

Gene,

I think the whiskey is going to be on me.

Liberty1
11-20-2007, 3:01 PM
...rights of individuals who are not affiliated with any state-regulated militia...

My take on this is that they are just indicating that the question doesn't involve individuals affiliated with state-regulated militias like the California National Guard or the California State Military Reserve. By not including those individuals, who are subject to discipline by the state and told what, when, and how they keep and bear arms, the SC is clarifying to whom the question at hand is directed - normal Joes.

I don't see this as a negative for us. In fact it might remove the membership in a militia argument DC was pushing.

To further clarify it seems to me reasonable for a state to "regulate" the "incorporated militia - NG" and the "unincorporated militia", males 17-45yo, during times of service but not when acting as private persons. This makes good military since to me as you don't want your militia (Incorportated or unincorporated) showing up upon summons claiming the right to bear different calibers out side of the "standard" arms and ammunition used by the regulars.

hoffmang
11-20-2007, 3:02 PM
Dave Hardy is agreeing with the thought that the wording of the question takes the pure collectivist interpretation off the possibles and only leaves a potential Saul Cornell/sophisticated collective rights model versus a straight individual right:

http://armsandthelaw.com/archives/2007/11/thoughts_on_par.php

-Gene

berto
11-20-2007, 3:13 PM
wow just me or does the brady bunch sound scared?

Their entire purpose of being is to sound scared. They operate on creating fear and then ramping up that fear. No fear of guns = no money = no Brady Bunch.

otteray
11-20-2007, 3:19 PM
I'm pretty sure we know the answer and the interesting debate is whether its 5-4 or 6-3 or better.

-Gene

In support of your statement, hasn't SCOTUS historically been supportive of the individual right to keep and bear arms, as indicated in the following article? http://www.apfn.org/apfn/2nd.htm

WokMaster1
11-20-2007, 3:20 PM
Time to book a chartered flight to DC for Calgunners, a tour of DC would be nice, too. Just to remind ourselves what a great country we live in.

Any travel agents here?:D

MedSpec65
11-20-2007, 3:23 PM
What happens if our side loses? Will ths open the floodgates for more laws/bans? People around here act like this case is in the bag when it is not. Im sure the supremes play politics like any other scumbag politician. I think we're in good shape. Rendering a "Collective" definition as a final decision could make millions of law-abiding armed Americans instant criminals at the hands of ignorant capricious State legislators. The Country would go through a crisis similar to the effects of the Volstead Act of January 29, 1920; maybe something even worse. These people on The SCOTUS are a lot brighter than that.

hoffmang
11-20-2007, 3:47 PM
Gene,

I think the whiskey is going to be on me.

I'm looking forward to that!

In support of your statement, hasn't SCOTUS historically been supportive of the individual right to keep and bear arms, as indicated in the following article? http://www.apfn.org/apfn/2nd.htm

I've posted my analysis of what I think is going to happen based on these Justice's own rulings in the past both here on CGN and on my blog:
http://www.hoffmang.com/archives/000716.html#000716

-Gene

SemiAutoSam
11-20-2007, 4:19 PM
Just remember begging the wife for ORAL does not constitute oral arguments.

So, who is up for a trip to DC for oral arguments?

I'll start begging the wife now.

FreshTapCoke
11-20-2007, 4:30 PM
Time to book a chartered flight to DC for Calgunners, a tour of DC would be nice, too. Just to remind ourselves what a great country we live in.

Any travel agents here?:D


A stop at the National Archive to view the Bill of Rights is definately on my schedule for that trip.

When will we know what the docket schedule is so we can plan our trips?

Wulf
11-20-2007, 4:59 PM
How long after the oral arguments before a decision is rendered?


Also, is there any room in this process to correct the "absence of any evidence" that a short barreled shotgun has some "reasonable relationship" to a well regulate militia?

Librarian
11-20-2007, 5:12 PM
How long after the oral arguments before a decision is rendered?

Dave Hardy suggests By the way, on timing:

Petitioner's brief, that of DC, is due 45 days from the grant, or January 4 by my count.

Parker side's brief is due 30 days after that, or about February 3.

DC has 30 days to reply, or around March 5.

The Court is now booking arguments for March, so I'd guess an argument in late March. Alan Gura (http://dcguncase.com/blog/) continues the time line Oral argument will most likely be scheduled for March or April, with a decision expected by June 2008.

.22guy
11-20-2007, 5:34 PM
As been discussed many times before. The Bill of Rights are about individual rights, not the rights of any person who is in the National Guard or the NG itself.


+1. That sums up my whole view of this issue. But will the supremes see it that way? We'll find out. It's my personal opinion that they will sidestep the issue.

AJAX22
11-20-2007, 5:43 PM
If we get to that point, I'm certain there will be build parties to alter our old lowers so that they 'comply' with the new legislation.

If that day ever comes I'll probbably cry tears of pure joy.



If we win, Allison will be made right, all our lowers will be expensive paperweights..........:eek:















Because who is going to want a lower that can't have a FA parts set installed with our restored 2A rights!:p

eckerph
11-20-2007, 5:46 PM
Let's say this goes in our favor, what changes would we see? Could Cali AW and handgun laws go bye bye?

bg
11-20-2007, 6:10 PM
State regulated militia, is a good question because we are all part of the unregulated militia, not the regulated, or select militia. The state governments has been neglecting the militia as it is, so we fall under unregulated.
Just to throw another wrench into it...Wouldn't it be an even more anxious
matter if the draft were in use...

Jeeeez..Can you imagine just how much money will in play regarding the firearms
industry and things associated with lawful firearm use if the court rules this
a collective right ?

bulgron
11-20-2007, 6:17 PM
Let's say this goes in our favor, what changes would we see? Could Cali AW and handgun laws go bye bye?

I think it's too early to speculate. It really depends on what their finding actually says.

For example, if they don't incorporate then we have a whole other argument that we've got to make before we can go after CA's gun laws.

hoffmang
11-20-2007, 6:20 PM
I doubt SCOTUS will directly incorporate, but I don't think incorporation is going to be nearly as hard as others had feared. Most of the fear around incorporation was that it would be used as a scape goat to evade a square holding on individual rights. With a square holding in hand, I don't think incorporation will be much of a barrier. The other side doesn't like having to directly agree with much of the racist rulings that didn't incorporate the BOR early on.

-Gene

wilit
11-20-2007, 6:29 PM
What if SCOTUS throws us all for a loop and doesn't find the 2A is either a collective right or an individual right, but rather has been misread this entire time. What if the 2A really means, "the right to arm bears?" Oh man, we'll all be hosed then.

http://www.emasoft.net/public/ljournal/fumoffu.jpg

MedSpec65
11-20-2007, 6:32 PM
I doubt SCOTUS will directly incorporate, but I don't think incorporation is going to be nearly as hard as others had feared. Most of the fear around incorporation was that it would be used as a scape goat to evade a square holding on individual rights. With a square holding in hand, I don't think incorporation will be much of a barrier. The other side doesn't like having to directly agree with much of the racist rulings that didn't incorporate the BOR early on.

-GeneCould you elaborate about what "Incorporate" in legalese means in this context? Also, "BOR"? Thanks, Gene.

Scarecrow Repair
11-20-2007, 6:38 PM
What if SCOTUS throws us all for a loop and doesn't find the 2A is either a collective right or an individual right, but rather has been misread this entire time. What if the 2A really means, "the right to arm bears?" Oh man, we'll all be hosed then.

Those of us with hairy hairy backs are going to have a laugh on you hairless freaks.

DrjonesUSA
11-20-2007, 7:02 PM
Could you elaborate about what "Incorporate" in legalese means in this context? Also, "BOR"? Thanks, Gene.


BOR = Bill Of Rights.

Incorporate = http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29

Incorporation of the Bill of Rights is the legal doctrine by which portions of the U.S. Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment. Most of those portions of the Bill of Rights were incorporated by a series of United States Supreme Court decisions in the 1940s, 1950s, and 1960s.

Though the Bill of Rights was originally written to limit only the power of the federal government, the Supreme Court has ruled that most of its guarantees protect citizens against state governments. Some have suggested that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source of incorporation, but the Privileges or Immunities Clause has not been used to incorporate the Bill of Rights. This has meant that the Due Process Clause was the means by which incorporation occurred.


I'm not Gene, nor do I play him on TV, but I thought I'd take a stab at responding.

Personally, I don't understand the entire concept of incorporation; some retard at one point actually argued that the federal government can't violate the BOR, but state governments could?? So at one point, technically, the feds could not sell you into slavery for fear of violating your rights, but the state governments could sell away??

Librarian
11-20-2007, 7:02 PM
Could you elaborate about what "Incorporate" in legalese means in this context? Also, "BOR"? Thanks, Gene.
BOR == Bill Of Rights, 1st 10 amendments

'incorporate' == theory that federal constitutional restrictions also restrict state and lower governments. First amendment has been 'incorporated' against the States, by SCOTUS decisions. Second has not. Longer theory is that the 14th Amendment was intended to apply the BOR against the states, all at once.

hoffmang
11-20-2007, 7:14 PM
I think Dr. Jones is doing a quite fine job playing me on Calguns!

Before the 14th amendment, the BOR didn't apply directly to the states. For example, some States had an established State religion. After the Civil War, the 14th Amendment was intended to make the protections that citizens had from the Federal government apply to State governments as well. Some Courts didn't want to face that fact because then States wouldn't be able to oppress blacks. Almost all of the BOR, except the Second Amendment, has since been clearly held to restrain the States.

-Gene

MedSpec65
11-20-2007, 7:18 PM
Thanks for educating me drjonesUSA and Librarian. Interesting. Now I'm wondering if this mechanism was used by the National Lawyer's Guild in the '40's to effectively perform an end run around Congress and enable the Judicial Branch to de facto ENACT LAW. Am I making too large a leap? I know the Guild was involved in setting the stage for activist judges to subvert our legal system but I've never been able to figure out exactly how they did it. Oh, thanks also Gene, we were posting simultaneously

Stan_Humphries
11-20-2007, 7:24 PM
The issue of incorporation probably won't be argued, and definitely shouldn't be reached by the court (lest it be mere dicta).

The Equal Protection Clause of the Fourteenth Amendment does not apply to the District because the Fourteenth Amendment’s prohibition against infringement on civil rights applies only to the actions of states. Bolling v. Sharpe, 347 U.S. 49 (1954). Without a state legislature to potentially infringe upon the rights of District Citizens, the Equal Protection Clause has no meaning.

That said, the crucial individual protections against federal infringement extend to the citizens of the District through the Fifth Amendment. Adarand Constructors Inc. v. Pena, 515 U.S. 200, 201 (1995) (quoting Buckley v. Valeo, 424 U.S. 1, 96 (1976)); American Towers, Inc. v. Williams, 146 F. Supp. 2d 27 (D.D.C. 2001). The Supreme Court has already noted that “Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” Pena, 515 U.S. at 201.

The issue in Heller regarding the District of Columbia will be simple enough. The District is a federal territory that derives it's governing authority directly from Congress, and Congress retains the position of being the final legislative arbiter of the District. The Second Amendment was originally and undeniably intended as a restriction upon federal lawmaking. Thus, if Congress is restricted from infringing upon the right to keep and bear arms, it cannot grant the District of Columbia the ability to do so.

Bottom line, even if the Court says: "It's an individual right to own any armament you can imagine." - there is still caselaw that says that the privileges and immunities of the several states does not incorporate the Second Amendment. United States v. Cruikshank, 92 U.S. 542 (1875).

So hope for the best on the Individual vs. Collective ruling, but realize that even if the "right of the people" is indeed a right held by individuals, this case will not undo any state regulation of ownership. There will need to be another case and another 3 years before the issue of incorporation properly reaches the court.

falawful
11-20-2007, 7:47 PM
So who is the militia, then?

Already answered:

United States Code
TITLE 10 - ARMED FORCES
SUBTITLE A - GENERAL MILITARY LAW
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA

--------------------------------------------------------------------------------

U.S. Code as of: 01/19/04
Section 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.


I'd expect that the 14th would make this basically everybody.

hoffmang
11-20-2007, 7:51 PM
The issue of incorporation probably won't be argued, and definitely shouldn't be reached by the court (lest it be mere dicta).
Don't underestimate how wide ranging the Dicta may be here.



Bottom line, even if the Court says: "It's an individual right to own any armament you can imagine." - there is still caselaw that says that the privileges and immunities of the several states does not incorporate the Second Amendment. United States v. Cruikshank, 92 U.S. 542 (1875).

Even Reinhardt realizes (footnote 17 on page 24) in Silviera v. Lockyer (http://www.ca9.uscourts.gov/ca9/newopinions.nsf/661116A4ECB1A7BE88256C8600544DCB/$file/0115098.pdf?openelement) that Cruikshank (http://supreme.justia.com/us/92/542/case.html) is bad law and that no honest court of the modern era would want to rely upon it as it is both a son of Barron v. Baltimore (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=32&invol=243) and the case itself was letting a bunch of whites off for a massacre of over 100 blacks. That also follows what the 5th Circuit held vis-a-vis incorporation in Emerson.

As such, I think incorporation will be a cake walk.

-Gene

bulgron
11-20-2007, 8:04 PM
As such, I think incorporation will be a cake walk.

-Gene

Yes, but it will require at least one other case to get it.

It seems like challenging CA's assault weapon ban might be a really great case to use to seek incorporation. :D

Or will the lawyers that be (whoever they are) go for the backdoor and use CA Constitution Article 3, Section 1 to throw out the AW ban? :D

hoffmang
11-20-2007, 8:14 PM
Yes, but it will require at least one other case to get it.


That case may already be kicking around the 9th Circuit Court of Appeals. Think about Alameda gun shows...

-Gene

bulgron
11-20-2007, 8:19 PM
That case may already be kicking around the 9th Circuit Court of Appeals. Think about Alameda gun shows...

-Gene

I'll have to take your word for it, given that I'm doing a poor job of tracking the gun rights cases in play in this state.

Got a link?

aileron
11-20-2007, 8:41 PM
I'll have to take your word for it, given that I'm doing a poor job of tracking the gun rights cases in play in this state.

Got a link?

Try reading the amici brief here

http://www.gurapossessky.com/news/parker/documents/nordyke_amici.pdf

Something is already in play.


Amicus curiae GOLDEN STATE SECOND
AMENDMENT COUNCIL is an independent firearms rights
organization dedicated to the advancement of the right to keep
and bear arms in California.
Amici herein have an especially keen interest in the
outcome of this case, as Nordyke v. King, 319 F.3d 1185
(2003), reh'g en banc denied at Nordyke v. King, 364 F.3d
1025 (2004), cert. denied at Nordyke v. King, 543 U.S. 820
(2004) is once again pending in the Ninth Circuit Court of
Appeals. [Case No.: 07-15763]

EDIT: Side note, I just got back from shooting as a small celebration. :D

falawful
11-20-2007, 8:57 PM
The other thing that I hope gets straightened out is the perception of the 1939 case of US v. Miller.

As I recall, that case upheld the NFA's ban on sawed off shotguns, because they were not militia weapons.

Here's the catch though, they reasoned that sawed off shotguns were not militia weapons, thus individuals did not have the right to own them. As I recall, the court reasoned that individuals only have the right to own MILITIA or MILITARY weapons as inferred from the second amendment.

Miller was a bootlegger, who was killed or skedaddled and there was no argument of the case before the court. One wonders what effect competent legal representation would have had, particularly in light of the fact that shotguns were issued in WWI to US troops some of which were undoubtedly sawed-off in the field or whatever. Thus making a sawed off shotgun.... a militia weapon.

I can't help but think of all this and lament what a poor lawyer that *** was in the Silveria case.

dustoff31
11-20-2007, 9:17 PM
As I recall, that case upheld the NFA's ban on sawed off shotguns, because they were not militia weapons.

I may well be wrong But I think what they said was "We don't whether it is or it isn't." And remanded the case to the lower court.

I really think the militia angle is being overplayed. I think they will try to stay away from that for a couple of reasons. Not the least of which is, as I mentioned earlier, there is no way on earth they are going to say that most women, men over 45, and others exempt from militia service (including themselves) have no individual 2A rights.

artherd
11-20-2007, 9:22 PM
*****in, Amicus Brief forthcoming.

stag1500
11-20-2007, 10:01 PM
I hope this isn't a duplicate post, but here it is anyway...

Doesn't the Militia Act of 1792 (the second one) grant us citizens the right to own the same weapons that the military has? (After all, men who were conscripted into the militia were required to purchase their own muskets). So while sawed off shotguns may be banned by the NFA because they are not considered militia weapons, shouldn't the ownership of M16's, M14's, M60's, etc... be protected?

Stan_Humphries
11-20-2007, 10:06 PM
Don't underestimate how wide ranging the Dicta may be here.

.....

Even Reinhardt realizes ... that no honest court of the modern era would want to rely upon [Cruikshank]as it is both a son of Barron v. Baltimore and the case itself was letting a bunch of whites off for a massacre of over 100 blacks. . .

As such, I think incorporation will be a cake walk.

-Gene

If the Supreme Court decides to address the issue of incorporation in Heller it will permit any of the circuit courts who have ruled against an individual rights interpretation to disregard such discussion as gratis dicta, and therefore not binding authority. And they would be justified in doing so. Incorporation is not merely unnecessary to any holding in Heller, it is entirely out of place.

That is partially what makes this case such a great vehicle for a Supreme Court decision on the Second Amendment - even if there is an individual right protected, the case itself will not invalidate any state regulations, nor obligate any lower courts to do so. It's almost like a practice round.

Subsequent cases may indeed decide the issue of Second Amendment incorporation, but Heller will not do so in any authoritative manner (short of some odd declaration that D.C. is a state). I respect your confidence on the ease of incorporation victory, but you would do well to consider that dictum by a court likely to be 5-4 (or in my best guess, 4-1-4) are vulnerable not only to disregard or challenge by lower courts, but also to subsequent definitive rulings by a Court composed of different justices. The cry of “stare decisis” made to an unsympathetic court can be disregarded when, by definition, the issue at hand has not been decided.

Experimentalist
11-20-2007, 10:22 PM
... so you might have to wander around the capital mall through the night...

DO NOT DO THAT!!!

Sorry to shout, but the D.C. area is one bad place to wander around. I personally know one person who was mugged at gun point there, and a different person who was mugged and put into the hospital. Both within the last year. And each of them was visiting on business travel, not living there as residents.

Stay safe folks.

hoffmang
11-20-2007, 10:24 PM
Subsequent cases may indeed decide the issue of Second Amendment incorporation, but Heller will not do so in any authoritative manner (short of some odd declaration that D.C. is a state). I respect your confidence on the ease of incorporation victory, but you would do well to consider that dictum by a court likely to be 5-4 (or in my best guess, 4-1-4) are vulnerable not only to disregard or challenge by lower courts, but also to subsequent definitive rulings by a Court composed of different justices. The cry of “stare decisis” made to an unsympathetic court can be disregarded when, by definition, the issue at hand has not been decided.

I'm well aware that the definition of dicta is that it's not binding but the reality of Supreme Court dicta - especially if its in a widely affirmed opinion - is that it serves as proverbial writing on the wall. There are quite a few examples where the dicta in a majority opinion has basically become a rule applied in all of the circuits.

That said, the actual issue post an individual rights Heller/Parker ruling is likely to be settled here in the 9th Circuit very quickly as both sides in our circuit appeals court recognize that Presser, Cruikshank, and Barron v. Baltimore are not good law.

Also, I don't agree that we'll see 4-1-4. That question didn't get redrafted with 4 no votes floating around the chambers. Maybe 4-2-3 but that's still 6 for the core issue...

Why don't you see Ginsburg or Souter voting for? Also, people who should know think Kennedy, but my reading of his past writings doesn't look as good to me. My analysis: http://www.hoffmang.com/archives/000716.html#000716

-Gene

MudCamper
11-20-2007, 10:35 PM
My prediction is we're going to have a quadruple win.

1 - They will clarify that the Milita is not the National Guard
2 - They will state that the 2A is an individual right
3 - They will clarify that Keep means buy and own
4 - They will clarify that Bear means carry and use

BUT, they will say that the right isn't absolute. They'll say the states can regulate it to some degree.

FreedomIsNotFree
11-20-2007, 10:55 PM
I believe that SCOTUS will give us a narrow victory.

They will agree with Heller, that 7-2502.02 (a)(4), the ban on handguns not owned prior to 1976 is unconstitutional. I believe they will reach this decision with the least amount of dissent, if any.

Their ruling on 22-4504 (a), the law against open/concealed carry, will be very interesting, and may have profound implications here in CA...of course after years of additional litigation. This portion of the question will be much more difficult.

7-2507.02, the law that requires all firearms to be unloaded and disassembled will get the smackdown with, again, little to no dissent.

I believe SCOTUS will give great deference to States, in regards to their laws, so long as they dont have outright bans such as D.C. We will likely see the current free states, those will limited or minimal gun laws currently on the books, have their laws loosened. No more Fed tax stamp for this or that...etc..etc.

But those of us in States that currently have strict gun control laws will be left with them, so long as they do not constitute outright bans. This is where the CA "Assault Weapons" ban may face its toughest test. I believe we will, again, have access to "assault weapons" legally, but with strict controls such as we have with handguns today.

hoffmang
11-20-2007, 10:56 PM
Mud,

I'll agree with 1 through 3 but not 4 and then I'll agree with your conclusion. I think the Justices are going to duck/ignore bear on this case.

-Gene

Addax
11-20-2007, 11:21 PM
Wiki.. Not sure if it is relevant to this thread, but I keep seeing the word Militia used in some of the posts, so I thought this could help..

http://en.wikipedia.org/wiki/Militia_%28United_States%29

falawful
11-20-2007, 11:25 PM
Not sure that they'll ignore bear, as the DC law has no allowance for one to take a pistol to get repaired for example.

This really is an interesting case. Particularly for California, as I'd think incorporation concerns are moot. As I recall, there is an article within the CA constitution that the "United States Constitution is the supreme law of the land". Would this language not forcefully incorporate ALL amendments then?

Have there been decisions from cases that originated in CA within the 9th Circus or that made it to the USSC where selective incorporation was at issue or was a deciding factor?

Scarecrow Repair
11-21-2007, 12:00 AM
This is an almost perfect question!

-Gene

Reading it as an ill-informed layman, it seems to cover the outright handgun ban, the working long arms ban, and something to do with carry.

I am curious as to how it could have been better AND how it could have been worse. IIRC, DC wanted to ignore the long arms ban, and the appeals court refused to overturn the long arms ban immediately. How much bearing does this have? Is it another example of DC shooting (!) themselves in the foot?

hoffmang
11-21-2007, 12:09 AM
DC wanted to ignore the "carry inside your home" and the long gun issue. They had tried to disingeniously claim that banning handguns was reasonable as long as you could own (non functional) long arms in your home.

Plus, the question doesn't have much room for the whole "is DC a state or does the amendment apply to DC" argument set.

-Gene

TheDM
11-21-2007, 3:31 AM
My prediction is we're going to have a quadruple win.

1 - They will clarify that the Milita is not the National Guard
2 - They will state that the 2A is an individual right
3 - They will clarify that Keep means buy and own
4 - They will clarify that Bear means carry and use

BUT, they will say that the right isn't absolute. They'll say the states can regulate it to some degree.

5 - They know with the approval polls as they are, if they don't go the way of the above 4, they are going to have to come to each of our homes and take them. Of course that will not be pretty. Something Mr. Heston says comes to mind here. The first attempt that involves resistance on the part of a citizen defending himself and his rights as established by the actual Constitution, will be the "Second shot heard round the world".

Your all correct about it needing to be done, it's been a long time coming. I'm just not as optimistic. They have attempted to remove parts of the 1st and have almost obliterated the IV th V th, VI th, VII th, and VIII th. As Han Solo said, "I've got a bad feeling about this Chewi". I've even thought of this being positive myself. Just remember, with the Patriot acts they way they are, if they do rule it no longer a right, they can simply come into your homes and take them while your at work, and not tell you.

It was done before, during Katrina, and in Iraq, and while this administration was in DC. I honestly half expected the President to call up the State of Louisiana and tell them that you can't do that, but he didn't. That was the day my optimism died. The courts later, of course, found the Katrina issue to be unconstitutional, but that is not a remedy when people are bashing down your door.

Hopefully for the Nation's sake, I'm just a certified pessimist.

TheDM
11-21-2007, 3:50 AM
I hope this isn't a duplicate post, but here it is anyway...

Doesn't the Militia Act of 1792 (the second one) grant us citizens the right to own the same weapons that the military has? (After all, men who were conscripted into the militia were required to purchase their own muskets). So while sawed off shotguns may be banned by the NFA because they are not considered militia weapons, shouldn't the ownership of M16's, M14's, M60's, etc... be protected?

I think you have found a very important precedent, but not for the point you are trying to make, but a better one! I'm a layman too, and I could be totally off here, but this ACT to me seems to establish that the "militia" contains every able man of The United States 18-45 years of age, when it is determined to be needed for the defense of the nation, in a time of national threat. Which means, that when there is no national threat, "we the people" are the people as referenced in the 2nd amendment of the Bill or Rights, and in times of a national need for defense, "We the people" become the "Militia" governed by our President but regulated by the states as defined in the 2nd amendment of the Bill or Rights.

However this act, the 2nd part that was referenced, also expired two years after it was passed, so it no longer applies. More importantly this definition does define the difference between the Militia and The People, only 1 year after the Bill of Rights was ratified, and therefore the governing body still contained the people that helped write and ratify the Constitution. Therefore, it's MUST reflect the "Original Intent and Spirit" of the 2nd amendment of the Bill or Rights.

It appears to me you have actually found the true meaning of the 2nd amendment of the Bill or Rights, that the "People" and the a state regulated "Militia" are one and the same.

Someone with a legal back ground please tell me if I'm full of hooey. I'm not yet through my 2nd cup of joe.

The funniest thing about this, is that technically one could also view this as a Federal Mandate, that the 5.56 round is not sufficient for defense of the country, because each bullet is not 1/18th of a pound :) But I digress.

FreedomIsNotFree
11-21-2007, 12:16 PM
What will be interesting to see, is if SCOTUS holds over their decision until after the election, or if they drop the proverbial A-Bomb in June prior to the election.

I believe the Dems must be worried. Gun bans, and other such legislation, has hurt them in the past....they have admitted as much.

Which reminds me, at the next Dem debate, what do you think the chances are one of the "moderators" asks a Heller related question? Not too likely I would imagine.

bulgron
11-21-2007, 12:53 PM
What will be interesting to see, is if SCOTUS holds over their decision until after the election, or if they drop the proverbial A-Bomb in June prior to the election.

I believe the Dems must be worried. Gun bans, and other such legislation, has hurt them in the past....they have admitted as much.

Which reminds me, at the next Dem debate, what do you think the chances are one of the "moderators" asks a Heller related question? Not too likely I would imagine.

There's some thinking that Heller might help the Dems. Upholding Parker means that a Bill Clinton-style AW Ban is probably not constitutional. Ergo, it becomes safer for some gun owners to vote Democrat.

I'm not saying I agree with this analysis; I'm just parroting what I've heard elsewhere.

FreedomIsNotFree
11-21-2007, 1:07 PM
There's some thinking that Heller might help the Dems. Upholding Parker means that a Bill Clinton-style AW Ban is probably not constitutional. Ergo, it becomes safer for some gun owners to vote Democrat.

I'm not saying I agree with this analysis; I'm just parroting what I've heard elsewhere.


Well, thats why holding over the decision may be problematic for Dems. The question will be raised during the campaign. Where do they stand..etc..etc.

Additionally, if SCOTUS does hand down their decision before the election, what will Dems say?....Surely, they cant go on record in support of the decision, assuming it goes in our favor. The dems will have to say something similar to what the Brady's are saying....activist judges....etc..etc..etc...and how they are going to bring change...such as Constitutional Amendment...etc..etc.

There are many ways this could play out....we'll just have to grab our popcorn and enjoy the show.

hoffmang
11-21-2007, 1:08 PM
I've even thought of this being positive myself. Just remember, with the Patriot acts they way they are, if they do rule it no longer a right, they can simply come into your homes and take them while your at work, and not tell you.
You are forgetting that in all but 6 states (California being one of the 6) there are rights to arms in the State Constitutions. As such, the right of the people in those states is well protected.



It was done before, during Katrina, and in Iraq, and while this administration was in DC. I honestly half expected the President to call up the State of Louisiana and tell them that you can't do that, but he didn't. That was the day my optimism died. The courts later, of course, found the Katrina issue to be unconstitutional, but that is not a remedy when people are bashing down your door.

Hopefully for the Nation's sake, I'm just a certified pessimist.
You are being a pessimist. The case against the Katrina gun confiscations is being won by our side and the court is fully siding with us against the LA and the USA.

-Gene

elenius
11-21-2007, 3:42 PM
The funniest thing about this, is that technically one could also view this as a Federal Mandate, that the 5.56 round is not sufficient for defense of the country, because each bullet is not 1/18th of a pound :) But I digress.

lol, where does this number come from? 1/18th of a pound is 389 grains. Few rifles would be up for it, but a 1oz (438 grain) 12ga slug would do it! :D

TheDM
11-21-2007, 3:54 PM
lol, where does this number come from? 1/18th of a pound is 389 grains. Few rifles would be up for it, but a 1oz (438 grain) 12ga slug would do it! :D

That number comes from the mandate that the musket ball ammunition you were supposed to buy according to that act must be no less than 1/18 of a pound. It really says that! It's in sec I, it's kinda cool actually.

The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.
I. (snip)"all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound" (more snippage)

These are the kinds of thoughts that come to mind when you research law on your first cup of coffee at 5am in the morning:)

elenius
11-21-2007, 4:00 PM
That number comes from the mandate that the musket ball ammunition you were supposed to buy according to that act must be no less than 1/18 of a pound. It really says that! It's in sec I, it's kinda cool actually.

The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.
I. (snip)"all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound" (more snippage)

These are the kinds of thoughts that come to mind when you research law on your first cup of coffee at 5am in the morning:)

They should update that law. I'd be ok with a mandate that everyone keep an M16/M4 at home, especially if they'd subsidize it and provide free practice ammo to keep us in the unorganized militia "well regulated" ;)

TheDM
11-21-2007, 4:09 PM
You are forgetting that in all but 6 states (California being one of the 6) there are rights to arms in the State Constitutions. As such, the right of the people in those states is well protected.



You are being a pessimist. The case against the Katrina gun confiscations is being won by our side and the court is fully siding with us against the LA and the USA.

-Gene

Hope you're right, there are state laws protecting search and seizure too, didn't seem to affect the PATRIOT acts, and some states did try.

As I stated, action after the fact, regardless of how favorable, does not, and will not address boots kicking in your front door.

Scarecrow Repair
11-21-2007, 5:49 PM
What will be interesting to see, is if SCOTUS holds over their decision until after the election, or if they drop the proverbial A-Bomb in June prior to the election.

Can they hold it off that long? This term ends in June or July; don't they have to issue their decision by then? I didn't think they could hold cases over from one term to the next.

artherd
11-21-2007, 6:06 PM
The funniest thing about this, is that technically one could also view this as a Federal Mandate, that the 5.56 round is not sufficient for defense of the country, because each bullet is not 1/18th of a pound :) But I digress.

AUTOMATIC FOR THE PEOPLE!
http://files.uzitalk.com/reference/shoots/princeton2003/barrett.jpg

5968
11-21-2007, 7:08 PM
I can not wait to see the outcome of this.

MedSpec65
11-21-2007, 11:29 PM
I can not wait to see the outcome of this.Me too. Knowing we never get the government we really want, I believe we'll never get the SCOTUS decision we really want. This issue comes very close to being squarely addressed. It will be interesting to see how the Justices dance around it. A compromise decision with mitigating factors such as The District not being a State could simply further muddy the whole debate and lead to years of more litigation to zero in on the heart of the issue. Just hope for the best. This is the best Court I've seen in forty years. Might be the best chance we'll have for a long time.

M. Sage
11-21-2007, 11:35 PM
1/18 of a lb? Wouldn't that be an 18 gauge? :p

TheDM
11-22-2007, 5:07 AM
1/18 of a lb? Wouldn't that be an 18 gauge? :p


Did a little digging. Here is one rifle that was used early in the revolution, provided by the French.

Fires a 450 grain .69 cal musket ball, that fits the 1/18 of a pound, plus a little :)
Here is some unverifiable history:

http://www.11thpa.org/charleville.html

Here is a firing reproduction you can buy, it costs about what an AR costs, but you don't have to go through an FFL to buy a muzzle loader, at least not in Kansas anyways. This is more of a handcrafted piece of art rather than a factory made firearm. I'd love to shoot one.

http://www.davide-pedersoli.com/ArmiCategoria.aspx?CategoriaId=220&lang=en

M. Sage
11-22-2007, 9:50 AM
Did a little digging. Here is one rifle that was used early in the revolution, provided by the French.

Fires a 450 grain .69 cal musket ball, that fits the 1/18 of a pound, plus a little :)
Here is some unverifiable history:

http://www.11thpa.org/charleville.html

Here is a firing reproduction you can buy, it costs about what an AR costs, but you don't have to go through an FFL to buy a muzzle loader, at least not in Kansas anyways. This is more of a handcrafted piece of art rather than a factory made firearm. I'd love to shoot one.

http://www.davide-pedersoli.com/ArmiCategoria.aspx?CategoriaId=220&lang=en

Cool stuff.

HowardW56
11-22-2007, 10:57 AM
I am reading it the same way you are....

I know that I'm no lawyer, but I do have an english degree. :) That phrase seems to imply to me that individuals already have second amendment rights. That is, the way the question has been framed, it seems to concede that individuals have a right to keep and bear arms, but the real question is does the D.C. law infringe on those rights.

How can something violate the second amendment rights of individuals if individuals have no second amendment rights?

Am I reading too much into this?

bruss01
11-22-2007, 11:26 AM
1/18 of a lb? Wouldn't that be an 18 gauge? :p

Yes, by definition a "gauge" is the number of lead balls of a given diameter required to make up one pound, as in:

12 lead balls = 1 lb equates to the diameter of those balls being "12 gauge" diameter

20 lead balls = 1 lb equates to the diameter of those balls being "20 gauge"

So yes, although there is no common shotgun designated as "18 gauge" a lead ball weighing 1/18th of a pound would technically be the diameter of a "18 gauge" shotgun bore, if one were ever devised.

bwiese
11-22-2007, 11:45 AM
That phrase seems to imply to me that individuals already have second amendment rights. That is, the way the question has been framed, it seems to concede that individuals have a right to keep and bear arms, but the real question is does the DC law infringe on those rights.

How can something violate the second amendment rights of individuals if individuals have no second amendment rights?

Am I reading too much into this?

No. I note the same thing - that in their formulation of the question, they acknowledged the right exists.

While the phrasing of this question is not fully indicative of detailed matters in a decision, I do think its formulation had significant thought put into it and I think it (favorably) crossed one bar for us already - i.e, bypassing of collective rights "National Guard" BS.

artherd
11-22-2007, 12:37 PM
Bill & bulgron; I noticed the same thing...

BigDogatPlay
11-22-2007, 6:12 PM
I'm thinking that we are going to get a solid affirmation of individual rights out of this, as others have stated. But I alos think that it will not immediately overturn every gun law in the land. Instead it will take many years of new court challenges that are based on the precedent of an individual right.

<< snipped >>

We will probably have to be more coordinated and focused than before, even though we'll have the winning team, or else we'll wind up like the Apollo Program which started with a huge achievement, and ended with no one paying attention any more. We have to make sure our side keeps paying atention after a win, as the war will not be won, just a major battle.

+1 on both of the above.

The war will not end, either way, with a ruling on Heller. If we win, and I am confident we will get a pretty good loaf out of it, it will be up to us to keep hammering at the bad law out there because the fight will not be done.

In my mind Heller could be for us the same as Churchill opined after victory was acheived in Egypt in WW 2....

This is not the end; it is not even the beginning of the end, but it is, perhaps, the end of the beginning."

aileron
11-22-2007, 7:31 PM
In my mind Heller could be for us the same as Churchill opined after victory was acheived in Egypt in WW 2....

"This is not the end; it is not even the beginning of the end, but it is, perhaps, the end of the beginning."



I always liked Churchill. :)

Anonymous Coward
11-22-2007, 8:57 PM
So what's the expected ruling on § 22-4504 (a) in the question?

Do you guys think the SCOTUS will give the DC citizens the right to concealed carry? CCW licenses seem to work similar to california (chief of police approves on good cause statement)

§ 22-4504. Carrying concealed weapons; possession of weapons during commission of crime of violence; penalty.

(a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in § 22-4515, except that:

(1) A person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon, in a place other than the person's dwelling place, place of business, or on other land possessed by the person, shall be fined not more than $5,000 or imprisoned for not more than 5 years, or both; or

(2) If the violation of this section occurs after a person has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or another jurisdiction, the person shall be fined not more than $10,000 or imprisoned for not more than 10 years, or both.

1911su16b870
11-22-2007, 9:13 PM
“The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

I just do not see how the SCOTUS justices could not unaminously agree that the DC codes violate the 2A rights of individuals private firearms use in their own homes.

But then again I view the 2A context the same way as Penn and Teller! :shrug:

Scarecrow Repair
11-23-2007, 8:23 AM
So what's the expected ruling on § 22-4504 (a) in the question?

Do you guys think the SCOTUS will give the DC citizens the right to concealed carry? CCW licenses seem to work similar to california (chief of police approves on good cause statement)

I believe it only relates to carry within your house, not outside in public. But I could be wrong.

Anonymous Coward
11-23-2007, 10:35 AM
I believe it only relates to carry within your house, not outside in public. But I could be wrong.

Could be, but the law says "other than the person's dwelling place, place of business, or on other land possessed by the person".

Mentioning both "for private use in their homes" and "22-4504 (a)" in the question is somewhat ambiguous. But since it's mentioned wouldn't the SCOTUS give an opinion on it?

triaged
11-25-2007, 10:09 PM
...But since it's mentioned wouldn't the SCOTUS give an opinion on it?No. They rule one way or the other on this case and those 2 questions only. Other lesser courts will read their opinions and decide if CCW would be under the scope of Heller...at least that is my understanding of how our legal system works.

trinydex
02-13-2008, 7:25 PM
March can't come soon enough!

http://www.scotusblog.com/wp/wp-content/uploads/2008/01/petitioners-brief-in-dc-v-heller.pdf

?

CCWFacts
02-13-2008, 7:43 PM
Reading the petitioners' and their amicis' briefs, they all come down claims of expediency: "We need this law because statistics show that so-and-so many people are victims of gun violence..." And then they also throw in tortured sentence parsing and re-interpretation. Neither of those things are legally persuasive. I hope.

hoffmang
02-13-2008, 8:49 PM
Zombie thread strikes again... Mmm... Brains...

:7:

-Gene

Liberty1
02-25-2008, 10:20 PM
http://armsandthelaw.com/

http://www.supremecourtus.gov/orders/courtorders/022508pzr.pdf

Heller: ruling re oral argument
Posted by David Hardy · 25 February 2008 03:01 PM
Today the Supreme Court issued an order:

1) The motion of Heller & the Texas Solicitor General, to divide argument and give Texas ten minutes of Heller's time is denied.

2) The (US) Solicitor General's motion for 15 minutes of argument is granted.

Hard to read much into it, beyond the fact that it gives a tactical advantage to DC. 45 minutes of argument for reversing D.C. Circuit, only 30 of argument for affirmance. DC can probably figure the SG won't use a lot of time arguing for the individual right. The key to the SG getting where they want to go is standard of review, intermediate rather than strict scrutiny, so that's where the SG will spend his time. DC can cut back on argument over standard of review -- which might have occupied half their time, and more than half if they appeared to be losing on individual right -- and use the time elsewhere.

UPDATE: it ought to be noted that when the SG asks for argument, he gets it. Maybe he may have gotten turned down in the past, but I've never heard of it happening. I don't know what percent of motions for divided argument are granted, but it may not be high (hard to split up 30 minutes very well). So this may just be SOP, with a tactical outcome that benefits DC. Oh, and Heller's attorney, Alan Gura, goes first. Where the SG comes in I'm unsure. In theory, Alan can reserve time for a rebuttal, thus going first and last. In practice, it's hard, because you have Justices asking questions from all sides.

Hat tip to reader Jack Anderson.

aileron
02-26-2008, 6:20 AM
http://armsandthelaw.com/

http://www.supremecourtus.gov/orders/courtorders/022508pzr.pdf

Not good. :(

SKG19
02-26-2008, 2:13 PM
Could be taken another way...Maybe wanting to hear the anti-gunners side more means that they have more work to do convincing the justices.

The other thing is maybe it's standard to give the current administration time in SCOTUS cases if they want it. I don't know...just a thought.

tgriffin
02-26-2008, 2:51 PM
http://armsandthelaw.com/

http://www.supremecourtus.gov/orders/courtorders/022508pzr.pdf

I dont think this is really a big deal. I think its actually a good thing for us. I think it speaks of the strength of our position, and that SCOTUS feels D.C.'s brief is weak enough to necessitate additional time to make a case based on their position.

EDIT: also... as I understand it, SCOTUS rarely appears BLATANTLY one-sided or unfair in any procedural matter. There is a reason for this, which will be apparent soon me thinks.

aileron
02-26-2008, 4:45 PM
I dont think this is really a big deal. I think its actually a good thing for us. I think it speaks of the strength of our position, and that SCOTUS feels D.C.'s brief is weak enough to necessitate additional time to make a case based on their position.

EDIT: also... as I understand it, SCOTUS rarely appears BLATANTLY one-sided or unfair in any procedural matter. There is a reason for this, which will be apparent soon me thinks.

I hope you guys are right about this. I would of denied US Solicitor General's request. Putting fear, or politics in law, not good.

1911_sfca
02-29-2008, 5:59 PM
Could be taken another way...Maybe wanting to hear the anti-gunners side more means that they have more work to do convincing the justices.

On the face of it, I'd go with this interpretation. Of course that's what I want to believe, too. :)

Shotgun Man
02-29-2008, 6:03 PM
On the face of it, I'd go with this interpretation. Of course that's what I want to believe, too. :)

Every time we resurrect this zombie thread I get a heart attack because it is all caps with 2 exclamation points.