Snowflakes in Hell

SayUncle talks about how DC is digging its own grave.  To my mind, it’s not necessarily a gift to us that they are being obstinate, but a problem.  NRA needs to push Congress to set The District’s gun laws for them, and preempt city council from regulating firearms entirely.  We don’t want to be in a situation where we have a constant back and forth in the courts until eventually DC comes up with a regulation The Court will accept.  The next step should be going after the incorporation angle, using bans and regulations that are similar to Washington D.C.

Four justices of the Supreme Court of the United States were completely willing to read out part of the Bill of Rights because they don’t like the result that comes from it.  We can seek comfort that we got a five vote majority, but it’s a little close for my comfort.  Come this fall, we must do absolutely everything humanly possible to ensure that Barack Obama is defeated, or watch future courts retreat from the Heller ruling faster than you can shake a stick.  While Justice Stevens and Ginsburg are likely retirees under an Obama administration, it can’t be ruled out that Justice Scalia, or Kennedy, who are both getting up there in age, won’t end up leaving the court, or dying.  We absolutely must not allow Obama to win, or that could undo all of this.

The gun control movement will not take Heller lying down.  They are not going to crawl off into a corner and die.  This changes the game we’re playing, but it doesn’t end it.

The Court did not much address the issue of machine guns, but the “common use” test that it prescribes will be problematic.  However, I think The Court has set itself up for an intellectual bind.  Machine guns are not in common use, but that’s entirely because of the 1986 prohibition on new registrations preceded by 18 years of heavy regulations inder GCA 68, and decades of regulation prior to that under the National Firearms Act.  In short, machine guns fail the common use test because government regulations and prohibitions make them uncommon.   I think this is an argument that could be raised later that could possibly ease restrictions.

I think there’s ample language in the opinion to argue that the second amendment is incorporated against the states, and that will be the next step.   Chicago, New York, and I think, even Massachusetts and New Jersey’s licensing restrictions can be construed to meet the standard of “arbitrary and capricious.”  In fact, I would view this somewhat similar to “seperate but equal”  In that the Civil Rights movement was later able to argue that seperate can never be equal.   I think one could perhaps argue that licensing, or having to get the government’s permission, can always be subject to arbitrary and capricious standards.

On the “bearing” of arms, I think The Court leaves open the possibility, and perhaps even suggests the possibility that the state must allow some form of carrying arms for self-defense.  This would presumably mean openly carrying of arms being legal everywhere, with states still free to regulate wearing of weapons.  But I would argue that perhaps the states can regulate concealed firearms, they may not outright prohibit them, since, given changes in society since the 19th century, that amounts to the destruction of the right.

My opinion, having read Justice Scalia’s opinion on this case, is that Heller is better than I had hoped for.  I think this lays effective groundwork for taking this issue forward, and the lower courts are going to have a difficult time skirting around it.

I think The Court has argued that the state must permit some form of bearing arms for the purposes of self-defense.  Or at the least has left the possibility open for the future.  It seems that regulating concealed carry will be permitted.

I think the Heller opinion leaves the door wide open for incorporation, as far as I can tell.  I’m still reading.

The Court says:

Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.  Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.  Pp. 56–64.

Not that this does not mean The Court is endorsing licensing.  It’s saying it does not consider that, but presumed, because the issue wasn’t raised, that licensing would be sufficient for the purposes of relief for Mr. Heller.  They also demand the licensing must not be arbitrary or capricious.  Massachusetts licensing scheme, and New Jersey’s, would be under jeopardy here.  As would New York City’s.

Here’s some limitations prsented from the opinion:

Like most rights, the Second Amendment right is not unlimited.  It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Interesting.  Perhaps The Court will be willing to entertain open carry being constitutionally protected, while concealed carry remains something that may be licensed by the state.  But can it be outright prohibited?   Doesn’t seem to get into that.

The Supreme Court has ruled in the case of DC vs. Heller that DC’s ordinances are a violation of the Second Amendment.  This is a momentous occasion.  Let the celebrations begin.

While we may not follow our constitution to the letter, at the very least, the Bill of Rights means something, no matter how much the gun haters wish it didn’t.

Long Live the Bill of Rights! Long live the Second Amendment, the individual right of Americans to keep and bear arms.  The Brady Campaign, VPC, CeaseFire PA, and others, can get down and kiss our collective asses for ever trying to con Americans into believing it was only a collective right.

Mr. Gura, Mr. Levy, and many others who’s life’s work brought this to fruition, we don’t just owe you a drink, we owe you a whole damned liquor store.

Unless Chief Justice Roberts is pulling our leg, today will be the day.  Stay tuned for details.  Don’t bite your nails down too far.

UPDATE: The Court will begin releasing opinions at 10.  In the mean time, Scotusblog has some interesting polls on their live blog coverage here.

UPDATE: This will be a momentous day for gun owners, no matter what the decision.  From here on out, things will be different.  This is the biggest day for those who care about the second amendment, probably ever.

UPDATE: The Court releases cases apparently according to seniority, so we’ll be dead last is Scalia is indeed the writer the Heller opinion.

UPDATE: I’m as giddy as a school girl.

UPDATE: Squirming in my seat here.

UPDATE: The case of Heller v. District of Columbia is AFFIRMED!

UPDATE: Scalia wrote the majority opinion.  Ginsburg, Stevens, Souter and Breyer dissented.  This case fell along ideological grounds, with the liberals dissenting.

UPDATE: Apparently there are two dissenting opinions.  This is a 5-4 ruling.  Closer than I would have liked, but a win, nontheless.

UPDATE: I will get the opinion, and read it, and give you my take as soon as I have time.

Clearly this person is an expert in constitutional law, all the modern scholarship that provides powerful evidence that he’s wrong be damned.  I should also note that Justice Scalia has to get four other justices to agree with him in order for his opinion to be the majority opinion.  Dave Hardy, who is a real expert in these matters, talks about possible methods of interpretation in Heller here.

Bryan Miller shares his thoughts on Heller:

Know what? I’d consider [a ruling favoring Heller] a victory for public safety, for common sense and for the gun violence prevention community. Why? It would remove the debate about guns and gun violence from the static and useless 2nd amendment arena and put it squarely in the ‘reasonableness’ arena, unencumbered by the 2nd amendment argument that the gun industy and lobby and chicken-hearted legislators and pols hide behind. I’m totally comfortable placing debates and decisions about gun legislation and laws in that arena, where the issue of public safety will be supreme.

I hate to break it to Bryan, but this isn’t going to end the debate.  It’s just going to alter it, and whether he wants to admit it or not, this shifts the debate considerably in our favor.  Yes, the gun issue will end up settling in an area where neither side is entirely happy, but if the second amendment is treated as an individual right, it going to be the gun control movement that’s most unhappy.  Most rights are not subject to a “reasonableness” test, but to strict scrutiny, and even if The Court adopts an intermediate level of scrutiny, the burden is still on gun control advocates, not those of us who claim our liberty.

As has been stated before, if prohibition is off the table, there’s a good chance many of the supporters in the gun control movement, who hate guns and want to see them banned outright, are going to give up on the issue.

Again, we play the waiting game.

UPDATE: The Court is releasing opinions.

UPDATE: The Court just vacated the punative damages in the Exxon Valdez incident. “In Exxon, the judgment is vacated and remanded.   The Court divided depending on the issues.   The Court divided equally on whether maritime law permits punitives for the acts of agents (Alito not participating).   The Court deemed the punitives excessive based on maritime common law, holding the punitives should be equal to the compensatories.”

UPDATE: Kennedy v. Louisiana, the Court reversed and remanded a low courts upholding the death penalty for child rape. “The Kennedy v. LA decision holds that the death penalty for child rape is unconstitutional if the defendants’ acts were not intended to cause death.”

UPDATE: Interesting cases today, but I want Heller, dammit!

UPDATE: At least one more decision is coming.

UPDATE: Last opinion coming now.

UPDATE: Last case involved tribal law.  Damned Indians!  This must be revenge for us stealing their land.   No Heller today.

This is all just speculation, but interesting.  First from Dave Hardy, who says that it’s good news if Scalia writes the opinion, as appears likley.  Second is from Bitter, and third the Volokh Conspiracy, here and here.

Smart people have said today is going to be the day.  I’m going to be a contrarian and suggest that they will put it off until later in the week.  Stay tuned for updates as The Court starts releasing opinions.

UPDATE: Not today folks.  Chief Justice Roberts, you are such a tease.  From SCOTUSBlog: “The only opinion remaining from the March sitting is Heller.   The only Justice without a majority opinion from that sitting is Justice Scalia.”

There’s a good chance it could be today.  Stay tuned for details.

UPDATE: The Court will begin announcing opinions at 10AM today.  This is the next to the last day in the session when opinions will be announced.  Monday the 23rd will be the last day.

UPDATE: The court has begun to release opinions.  One announced so far, and is not Heller.

UPDATE: Bitter hopes it’s released Monday, so she has time to work on something she’s doing related to Heller.  I’m hoping for today, because I have a meeting on Monday at the time the Supreme Court is releasing decisions.

UPDATE: Three opinions so far.  No Heller.

UPDATE: Not today.  Sorry folks.

UPDATE: There’s Monday, but also the possibility of Wednesday or Tuesday of next week.

The Brady Campaign is always quick to remind us that while an overwhelming number of Americans support the second amendment, there are still a lot of people that support some vague thing called “gun control.”  Rachel Lucas points to some interesting polling on the first amendment, in regards to “hate speech”.

88% “guard” free speech but only 53% have any sort of a clue as to what that means. Since it would be silly to imagine that as time goes on, more people will get the clue, I’m guessing that in another few decades, we’ll have laws just like France and Canada. Awesome.

The poll basically shows that while 88% believe in the first amendment, only 53% oppose laws regulating “hate speech”, with 28% favoring it, and 19% undecided.  I don’t share Rachel’s pessimism about things going downhill from here, however.  We’ve shown that public support for the second amendment can be enhanced when people start understanding the issue.  I don’t see why the first amendment has to be exempt from that.

The VPC are expecting a grand victory against the vile forces of the NRA.

The Supreme Court has announced something big for 10AM today.  Monitor SCOTUS blog, who will be covering it live.

UPDATE: It’s unusual for The Court to announce on Thursday, so that’s what driving the spectulation this might be it.

UPDATE: So far no Heller.  They’ve released a Habeus ruling on Guantanamo.  Maybe that was the big deal that caused them to release this special.   Stay tuned.

UPDATE: Looks like the Guantanamo case is the big news for the day.  The smart money was on the 23rd for the release.  We will have to wait.

Continuing a thread that started with my post about police rifles, I wanted to note that what I’m speaking of is not what interpretation of the second amendment is most correct historically, but which interpretations protect the widest array of firearms that the federal judiciary would adopt.

Note that there is no way the federal judiciary is going to accept a standard that laws regulating any kind of arm is by default unconstitutional.  There will be lines drawn with certain classes of arms being protected, and certain classes not being protected.  We have it on pretty good authority, both from Alan Gura, and various other folks with legal knowledge in the issue, that it is extremely unlikely that the federal judiciary will even rule that automatic firearms are protected arms under the second amendment.

So I think it behooves us to think of a standard that the federal judiciary will accept that nontheless, protects an awful lot of firearms.  My “common police use” standard wasn’t meant to be an all inclusive rule, just one way to think about the problem.  For instance, Bryan Miller’s crown jewel, the New Jersey Smart Gun ban would fail the common police use test, since police are exempted from it.  The beauty of the test is that it forces politicians to seriously consider actions like what Chicago may be doing.  If it can be shown that M4s are in common use in police departments, the constitutional case for restricting them starts getting weak.  Certainly magazine size limits and bans on so called “assault weapons” would not pass this test already.

That’s not to say I think the “common police use” test should be the only one.  I would propose a three fold test to determine whether the arm is protected under the second amendment:

1. Is the arm usable for personal self-defense, or
2. It has a function in the preservation of or practicing skill at arms, and
3. It is of a type or functional variant of a firearm in common police or civilian use.

Type or functional variant makes this pretty broad, so many types of firearms fall into this.  This test also doesn’t shut the door forever on machine guns, but nor does it directly address whether they are protected.  It’s also a bit stronger than the “common civilian use” test that the court alluded to, since pretty obviously that would close the door on machine guns.

But this is only meant to be a standard of interpretation for what is an arm under the second amendment.  At some point we also have to address what constitutes an infringement.

Over at The Daily Kos.  I think this is one thing we can all agree on:

I know liberal couples who give each other pocket size copies of the Constitution for Christmas.

Ask liberals to list their top five complaints about the Bush Administration, and they will invariably say the words “shredding” and “Constitution” in the same sentence.  They might also add “Fourth Amendment” and “due process.”  It’s possible they’ll talk about “free speech zones” and “habeus corpus.”

There’s a good chance they will mention, probably in combination with several FCC-prohibited adjectives, the former Attorney General Alberto Gonzales.

So.

Liberals love the Constitution.  They especially love the Bill of Rights.  They love all the Amendments.

Except for one: the Second Amendment.

Read the whole thing.  Another mistake a lot of folks on the left make is assuming we gun owners don’t care about this administration’s abuse of other civil liberties, or that we love the former attorney general, rather than thinking he’s as much of a weasel as they do.  I have known few gun owners who are entirely happy with the Bush Administration.

Democrats need to understand that the gun vote is not lost to them, and the way to get it back is not through sham endorsements or transparent pandering.  They way to get it back is to cease supporting gun control.

Dave Kopel had front row seats at Heller oral arguments, sitting at the attorneys table with Alan Gura.  Go read his accounting of it.

Dave Hardy’s documentary is going to be shown at the Backlot Film Festival in Culver City, California.  It will be this Saturday at 10AM, and tickets are only five dollars.  Dave is asking folks in the area if they wouldn’t mind showing up, because the more people that show up, the more chance there is of media coverage.

Southern California is a little far from my neck of the woods to make the trip, but I hope folks in California will be able to make it.

From Barack Obama campaign spokesperson Jen Psaki:

Barack Obama believes the Second Amendment creates an individual right, and he greatly respects the constitutional right of Americans to bear arms.  He also believes that the Constitution permits state and local governments to adopt reasonable and common-sense gun-safety measures.

This was their answer in regards to the question of why Barack Obama, if he’s such a supporter of the second amendment, didn’t sign onto the Congressional brief with 55 other colleagues asking the Supreme Court to find the DC gun ban violates the second amendment.  We can only assume that DC’s gun laws are “reasonable” and “common sense” in the senator’s eyes.

Bitter has a bit up that talks about NAACP’s litigation strategy to attack Jim Crow, and points out the parallels to what gun owners will not be facing now that we’re executing a litigation strategy to restore the second amendment.  At least I hope there’s a strategy.  If there’s not, we need one.

This is reprinted from subguns.com, but I think it’s important for everyone to read this:

The solution to 922(o) will have to be political in the end. The fact is, outside the gun community, the concept of privately owned machine guns is intolerable to American society and 100% of all federal judges. If I had suggested in any way — including, by being evasive and indirect and fudging the answer — that machine guns are the next case and this is the path to dumping 922(o) — I’d have instantly lost all 9 justices. Even Scalia. There wasn’t any question of that, at all, going in, and it was confirmed in unmistakable fashion when I stood there a few feet from the justices and heard and saw how they related to machine guns. It was not just my opinion, but one uniformly held by ALL the attorneys with whom we bounced ideas off, some of them exceedingly bright people. Ditto for the people who wanted me to declare an absolute right, like I’m there to waive some sort of GOA bumper sticker. That’s a good way to lose, too, and look like a moron in the process.

I didn’t make the last 219 years of constitutional law and I am not responsible for the way that people out there — and on the court– feel about machine guns. Some people in our gun rights community have very…. interesting…. ways of looking at the constitution and the federal courts. I don’t need to pass judgment on it other than to say, it’s not the reality in which we practice law. When we started this over five years ago, the collective rights theory was the controlling law in 47 out of 50 states. hopefully, on next year’s MBE, aspiring lawyers will have to bubble in the individual rights answer to pass the test. I know you and many others out there can appreciate that difference and I thank you for it, even if we can’t get EVERYTHING that EVERYONE wants. Honestly some people just want to stay angry. I’m glad you’re not among them.

You want to change 922(o)? Take a new person shooting. Work for “climate change.”

Thanks,
Alan

He’s right.  You have to sway public opinion if you want traction on that issue.

Hat Tip to SayUncle for discovering this.