View Full Version : Ghost of Thomas Jefferson on D.C. v. Heller

12-04-2007, 5:58 AM
I'm lost on where the 14th is added in this case, but its pretty accurate otherwise. I'm not so hopeful they would add the 14th, but hey, I'm all for it. :D

I've been telling people pretty much this for awhile now; that this is one of the biggest civil rights cases in our times. That we are talking about whether the bill of rights means what it says, whether people have any rights what so ever. Also whether the bill of rights remains a palladium of liberty or a dead letter.


Monday, December 3, 2007
The Ghost of Thomas Jefferson on the D.C. v. Heller case

The following is a guest post regarding the DC v. Heller case by an author simply noted as The Ghost of Thomas Jefferson. Note the mention of the ATF cases as they regard to this case:

On November 20, 2007 the United States Supreme Court made a historical decision regarding Constitutional Rights. The case, District of Columbia v. Heller, being the first case successfully appealed to the Supreme Court based on the Second Amendment since the flawed and unresolved case of US v. Miller circa 1939, had the result of shocking the political landscape across the nation.

In May of 2007, the DC Court of Appeals overturned a lower court ruling that had favored the 1976 ban on handguns in the city. The city appealed to the en banc court in the hopes that they would reverse the appeals decision. This did not happen. The en banc court upheld the appeal decision based on Second Amendment grounds leaving the District of Columbia in an unenviable position.

This set the stage for the resulting appeal to the United States Supreme Court. From this point on precedence was being set. The court, unable to reach a satisfactory outcome during the first discussion regarding cert, tabled the issue until a meeting could be arranged with all parties involved. This meeting took place on the morning of November 20, 2007.

During this gathering, the Court clarified the question for simplification to the issue and in doing so, broadened the question setting the stage for a far reaching decision. The initial appeal from the District of Columbia was based solely on the perceived right of the city to restrict the ability of the citizens to possess handguns of any type. Along with this was the perception forwarded by the District of Columbia that the Court was overstepping the Constitutional bounds of law based on the District being a Federal property and not a state.

The initial plaintiff in the case, Mr. Heller responded not with a request for denial but with a separate appeal requesting that the lower court ruling be upheld, and that the Supreme Court define both the sentence and meaning of the Second Amendment.

In response to the dual appeal, the Supreme Court gathered with the parties of the case and formulated a single Constitutional question that would satisfy the underlying issue at hand. Taking three sections of law covering registration of handguns, carry of unlicensed handguns, and mandatory storage and disassembly of long guns, the Court expanded the scope of the case.

This expansion has set the stage for a Constitutional ruling that will either result in the incorporation of the Second Amendment under the Fourteenth Amendment or a flurry of challenges to the validity of the remainder of the Bill of Rights. The thought behind this is based on the controversy surrounding the two stances on the Second Amendment. One being the “Collective Rights” stance put forth by various scholars and special interest groups. The theory behind this stance is that the “militia clause” dictates that the right is held by the States rather than the individual due to the perceived control of militia activity by the States. The counter argument is the “Individual Right” stance. This stance is based upon the phrase “The right of the people to keep and bear arms, shall not be infringed.”

If the Court upholds the latter argument, the end result will be a dramatic change in the basis of firearms laws nationwide. It would not be unreasonable to expect all restrictions on firearms based on function, physical characteristics, place of origin, or caliber to be ruled unconstitutional. This would leave the Government severely restricted in the ability to regulate or prohibit access to almost all types of small arms and other weapons covered under the Second Amendment.

Should the Court overturn the lower court ruling based upon the formulation of the question and the appeal by the District of Columbia, then the fundamental understanding of the language of the Constitution is challenged. The definition of “The People” will be changed leaving open the likely possibility that all rights enumerated in the Amendments of the Constitution being revisited in the Courts. Such a decision would affect the entire Bill of Rights and thousands of laws protecting the citizens of the United States.

This is a key issue that must be addressed by the Supreme Court leaving their options very limited in scope. Given the possible crisis such a ruling would create, it would be very likely that the court will find unanimously for Heller upholding the meaning of the People in the Constitution. The phrasing of the question brought forth by the Court suggests that the status of the Second Amendment will be addressed as well. Incorporation as a civil right under the Fourteenth Amendment would resolve many post decision issues that would arise from this case.

Case law dating back more than a century and a half would reinforce incorporation of the Second Amendment as the proper and correct approach. This would also rectify the unresolved issue left in US v. Miller (1939) where the decision and remanding back to the lower court for clarification has left the issue unanswered.

While District of Columbia v. Heller is fundamentally a Second Amendment case, issues such as right to privacy, freedom to assemble, freedom of speech, and others are all at risk with this suit. Political ramifications aside, the security of the nation may rest on the decision the Court hands down as well due to the current threat of terrorism.

On the political front, this case will also have an impact on the validity of sections of law such as the Hughes Amendment (US 18 Section 922 (o)) based on Interstate Commerce. It will also prohibit the ability of State and local governments to regulate firearms to a great degree.

Documentation from the era of the founding of the United States suggests that control of arms was a critical factor in the revolution as much so as taxation without representation was. The question must be asked, as repugnant as the possibility may be, will the citizens respond with violence should the Court find in favor of the District of Columbia? While it may seem unthinkable, the possibility must be addressed due to the fervor and deep passion involved with the issue of the Second Amendment. Another reason this is important is that should violence result from a poor decision by the Court, would this leave the nation vulnerable to unforeseen adversaries? Again, as distasteful as this may be, it must be addressed by the Court.

The possibility of the Court taking notice of enforcement actions by the Government is high due to questionable cases such as US v. Weaver (1992), US v. Wrenn (2005), US v. Kwan (2007), and US v. Stewart (2003) where the basis of the arrests brought forth a question of violation of constitutional rights. Other factors that must be considered are actions taken against citizens with questionable justification. An example of such a controversial instance would be the standoff between Federal Agents and David Koresh along with his followers. In US v. Kwan, question of the legitimacy of the evidence brings forth a crucial question of objectives and conduct by the Government. That the Court may allow this to weigh in on their decision may be of great concern to some parties in the United States Government but will be a landmark of the legal system to the average citizen. Given the latitude the Court has when referencing documentation and other cases, the likelihood of any of these cases or similar cases being a key component to the decision is very great. The post decision repercussions regarding this would be far reaching and paramount to the future conduct of the Government when dealing with the citizens.

In conclusion, the District of Columbia v. Heller case, without the controversial aspect of the other plaintiffs who were found to be without standing in the lower court, will be one of the most important cases to ever come before the United States Supreme Court. The ramifications of the decision to be handed down sometime in the year 2008 will affect the nation in many ways that are separate from the issue of the Second Amendment. This decision may impact the international scene as well due to the world wide trade of arms and technology and the continuing efforts by international organizations to create a monopoly on force of arms. How this decision will impact the ability of the enemies of the United States to operate within its borders is unknown but history has shown time and time again that an armed populace secure in the ability to use arms in the defense of self and community have always been a detriment to crime and criminal abuse by a government.

With warmest regards-

The Ghost of Thomas Jefferson

12-04-2007, 7:59 AM
The author makes several mistakes in his analysis. It appears he only thinks in terms of "either-or" instead of multiple possibilities, which is more plausible when discussing what SCOTUS might do.

The question to be addressed in this case, reworded by the court itself is;

Whether the following provisions D.C. Code secs. 7-2502.02 (http://weblinks.westlaw.com/Find/Default.wl?DB=DC%2DST%2DTOC%3BSTADCTOC&DocName=DCCODES7%2D2502%2E02&FindType=W&AP=&fn=_top&rs=WEBL7.11&vr=2.0&spa=DCC-1000&trailtype=26)(a)(4), 22-4504 (http://weblinks.westlaw.com/Find/Default.wl?DB=DC%2DST%2DTOC%3BSTADCTOC&DocName=DCCODES22%2D4504&FindType=W&AP=&fn=_top&rs=WEBL7.11&vr=2.0&spa=DCC-1000&trailtype=26)(a), and 7-2507.02 (http://weblinks.westlaw.com/Find/Default.wl?DB=DC%2DST%2DTOC%3BSTADCTOC&DocName=DCCODES7%2D2507%2E02&FindType=W&AP=&fn=_top&rs=WEBL7.11&vr=2.0&spa=DCC-1000&trailtype=26) 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?

In order to determine if the D.C. laws violate the constitution, the court must decide if the 2nd is an individual right and whether membership in a state-regulated milita is necessary in order to protect the RKBA. The must also determine if handguns and (what) other kinds of firearms may be covered or excluded.

They could decide that militia membership is not necessary, but also find that for the purposes of the amendment handguns are not a significant part of military arms of the kind needed to wage battles. This is just one possibility of how the court could split the decision in an attempt to throw a bone to each side.

No serious scholar of the constitution expects the court to find a new meaning for "the people" in this decision. Indeed, I think most would be stunned if they did. The court would have to go well out of its way to show how this conclusion was reached. More likely is the court could find some linkage to militia service to hang part of their hat upon as a way of limiting the right.

But the author errs when he assumes that affirming the District court's decision would allow us to expect all restrictions on firearms based on function, physical characteristics, place of origin, or caliber to be ruled unconstitutional. This does not follow, for the government may regulate commerce, specifically imported commerce. Likewise, the right will not be found to be absolute and some regulation tolerated for "a compelling interest" -- such as prohibiting explosive shells or cartridge guns larger than .50 caliber.

Incorporation as a civil right under the Fourteenth Amendment would resolve many post decision issues that would arise from this case.
This may well be true, however the court is under no obligation to make a ruling on the incorporation of the 2nd. Remember, they formed the question to be addressed and it is specifically directed at the D.C. gun laws. Because D.C. is not a state, they can sidestep the incorporation issue wholesale and wait for another case to show up (in several years).

The questionable cases cited by the author will undoubtedly be appealed if the court rules in favor of Heller. To SCOTUS, these cases would only serve to show the potential damage (to rights of the people) is real and that enforcement can be overzealous. But the author implies the Court may do something about these previous cases itself, which is very unlikely.

Most importantly, the author completely misses the need for the Court to rule that the 2nd Amendment, like the 1st, 4th, 5th et. al., are fundamental rights. Unless the Court makes that ruling, new laws will not have to pass "strict scrutiny" which requires not only a compelling government interest but that the law be narrowly tailored to acheive the specific result defined in their compelling interest.

For example, think of the NICS process. The compelling interest is to keep criminals and the mentally insane from acquiring firearms. To narrowly define this process, you must give ID information and the NICS gives an approval or denial. But the law says if NICS can't confirm you, they can delay your purchase up to 3 days, which denies your exercise of the right tomorrow. The likely outcome would be the court ruling that 60 minutes is not too long for you to wait to balance against the government's interest. But failure to approve or deny in that time means you take your new gun home. If the government later finds you should have been denied, it becomes an enforcement action.

Certainly waiting periods will become a thing of the past, as will requiring a fee to "register" the gun with an agency. It's doubtful that a fee may be imposed for any kind of "safety" or "gun owner ID" card that is required before purchase. These would amount to a tax on the exercise of a right.

One gun a month laws would also disappear as the government cannot restrict how often you exercise your rights. One might even argue that sales tax would be unconstitutional.

But don't expect states to give up easily. There's no doubt in my mind that CA, IL, MA, MD and NJ will fight to retain their laws, useless as most of the are, and drag each case out as long as it can through appeals.

12-04-2007, 4:17 PM

But don't expect states to give up easily. There's no doubt in my mind that CA, IL, MA, MD and NJ will fight to retain their laws, useless as most of the are, and drag each case out as long as it can through appeals.

I predict that whatever the Supreme Court decides, CA will simply ignore it and pretend it never happened, just like the Harrot decision.

Scarecrow Repair
12-04-2007, 4:44 PM
I predict that whatever the Supreme Court decides, CA will simply ignore it and pretend it never happened, just like the Harrot decision.

I wonder ... there's that part of the CA constitution which explicitly says that the US constitution applies. They could get away with the current shenanigans because the 9th circuit has ruled that the US 2nd amendment is a collective right, but they won't be able to hide behind that if SCotUS rules individual. I don't know how much of the current situation is a house of cards, likely to all collapse once the 2nd is declared an individual right, but it will certainly shake things up.

12-04-2007, 5:55 PM
Heller will most likely not comment on incorporation beyond dicta. However, for lots of reasons I've posted here before, I think incorporation is not going to be hard.


12-05-2007, 7:12 AM
Heller will most likely not comment on incorporation beyond dicta. However, for lots of reasons I've posted here before, I think incorporation is not going to be hard.


I would just like to see this rubbed in the 9th circus face. However, they have been overturned so many times now I guess they are use to it now.

12-05-2007, 8:10 AM
The Ninth circuit has a new top dog ... and he is quite the firebrand.

12-05-2007, 9:34 AM
The Ninth circuit has a new top dog ... and he is quite the firebrand.

Meaning what? That he's actually agrees with the Constitution?

(I happen to think that the Justices on the 9th all understand the Constitution perfectly well -- but I don't think they like it very much....)

12-05-2007, 9:34 AM
The new chief judge of the 9th, Alex Kozinski, was the very vocal dissent in Silviera and is quite on the pro 2A side. However, his chief judgeship only gives him a very small amount of influence of judicial outcomes.


12-05-2007, 10:05 AM
I would certainly hope that he is pro 2nd Amendment. After all, he comes from Romania and is the son of Holocaust survivors.

12-05-2007, 11:11 AM
Here is a copy of Kozinski's dissent in Silveira as the 9th circuit site doesn't seem to be working: http://www.robertwrose.com/2003/05/kozinski-dissent-from-silveira-v.html


12-05-2007, 1:35 PM
Interesting point he brings up about United States v. Miller, 307 U.S. 174 (1939). If the 2nd Amendment is not an individual's right, then individuals do not have standing to bring a case about firearms before the Supreme Court. Therefore, since the Supreme Court was willing to hear the case about Miller's sawed-off shotguns, then it holds that the Supreme Court viewed the 2nd Amendment as an individual's right. Otherwise they would have rejected it right off the bat.

12-05-2007, 1:41 PM
The sheer ponderousness of the panel's opinion -- the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text -- refutes its thesis far more convincingly than anything I might say. The panel's labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it -- and is just as likely to succeed.

Dang, I just love it when justices flowery language like that. :D

12-05-2007, 3:50 PM
Yea, I read it today during lunch, its a thing of beauty. I never laughed so much reading an opinion, he really slammed them, loved the gum ball wrapper comment. He just kept them coming throughout the dissent.

12-05-2007, 3:54 PM
As I've been saying, the 9th Circuit is not completely lost on the 2A. Also, Kozinski and Rheinhardt (the author of the opinion Kozinski is dissenting from above) agree that if Rheinhardt is wrong and the 2A is individual it is certainly incorporated.


12-05-2007, 4:02 PM

In keeping with the spirit of the following my daughter is, as I type, happily plinking away with her air rifle in the back yard as I watch her - it's pleasantly ironic I was reading the following when she asked if she could. I said yes and she grabbed her shooting glasses, her rifle and a water jug as her target. What a proud papa I am! :D

From the other dissenting opinions in Silveira - pg 6011 para. 2:

An effective militia requires not only that people have guns,
but that they be able to shoot them with more danger to their
adversaries than themselves. Standing next to a nineteen year
old who for the first time has a loaded gun in his hands is like
taking a fifteen or sixteen year old for his first driving lesson.
And if no one knew how to shoot except designated shooters,
a military supply unit of new recruits would be as helpless as
if no one knew how to drive except designated drivers. Just
as military mobility is enhanced by near-universal civilian
knowledge of how to drive, likewise military effectiveness is
promoted by widespread civilian shooting skills (and, we
shall see, Congress has so decided and provided for civilian
firearms training).