D.C. v. Heller
By Pejman Yousefzadeh Posted in Law | Second Amendment — Comments (16) / Email this page » / Leave a comment »
Coming into today, I thought that the Court was primed in the Heller case to affirm that the Second Amendment is an individual right. But I thought that the Court would adopt the position taken by Solicitor General Clement stating that while the Second Amendment should be deemed an individual right, the right should only be protected by an intermediate standard of review. Such a standard would state that Second Amendment rights could be regulated if the regulation had a substantial connection to an important government interest, with the burden being on the government to show the connection.
Instead, after reading this and this, I am beginning to believe that there are five votes for Vice President Cheney's position, which states that Second Amendment rights ought to be protected by the highest possible standard of Constitutional scrutiny, one which states that regulations are only valid if they are deemed necessary to further a compelling state interest with no less restrictive means available to further the compelling state interest. Again, it would be the burden of the government to show that its regulations met this standard. And you don't have to be a lawyer to examine the language of the two competing standards to see which one would be harder for any governmental regulation to overcome. Justice Breyer appears ready to provide a sixth vote in favor of the proposition that the Second Amendment protects an individual right, though he seems to favor the intermediate scrutiny protections advocated by the Solicitor General. But a majority of Chief Justice Roberts and Associate Justices Scalia, Kennedy (Kennedy!), Thomas and Alito appear to be ready to go further and if the decisions track the tone and tenor of the oral argument, they will.
It should be noted that of all of the Presidential candidates, only John McCain supports recognizing the Second Amendment as affording an individual right with strict scrutiny protections. He signed on to the very same amicus brief Vice President Cheney signed onto. For voters interested in preserving and enhancing Second Amendment protections, that ought to mean something huge.
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D.C. v. Heller 16 Comments (0 topical, 16 editorial, 0 hidden) Post a comment »
That oftentimes, the Justices ask questions that are designed to answer the concerns others may have.
"At times one remains faithful to a cause only because its opponents do not cease to be insipid." --Friedrich Nietzsche
I really hope you are right, because I, too, came away from the oral feeling that Roberts was going to, if nothing else, at least punt the issue of scrutiny down the road. I do agree that we are rock solid on the individual rights issue, which oddly enough Kennedy seemed to be the most fervent supporter of (see his "Miller may be deficient" comments).
As I said here, there's a significant difference between activist justices vs. strict constructionist justices. This ruling will show why it's important that we have sane justices, not superlegislators, on the Court.
I can't see Alito and Scalia going for strict scrutiny and Thomas winding up at a lesser standard. Oral arguments are not conducive to divining Thomas's position because he virtually never speaks.
The key here is not really the level of scrutiny - it is the individual right. That in itself would be a huge step by the Court. Once you have that declaration, the standard of review is much less critical. First, the Court often ignores its own alleged standard if it decides it doesn't want to follow it - though that was much more likely under O'Connor, who was a fan of balancing tests. Second, the standard is much more easily adjusted over time according to the composition of the Court. Standards are not a matter of constitutional interpretation in the way that reading an individual right into the Second Amendment would be. A future Court, seeking to undo the individual right is going to have to come up with a very solid and compelling reason for why this Court was wrong in so holding.
If we can get a holding of an individual right, we can definitely move things in the right direction. While strict scrutiny is almost impossible to satisfy (meaning you can have virtually no restriction), intermediate scrutiny does not leave much room for success either. In the end, we might wind up with a standard akin to the one the Court uses for abortion regulations - "undue burden" - which would mean that only a few regulations would be allowed.
if they do adopt Cheney's take?
In other words, if they take the stance that you are saying, does that eliminate everything?
Another question is whether or not it would be best to have a 6-3 vote in favor of it being an individual right with some "reasonable" restrictions allowed than a broad 5-4 decision.
It seems that a 6-3 that allowed "reasonable" restrictions would be best.
It would give a solid majority to put the main principle to bed for now. It would also NOT enflame the anti-gun people to the level that removing all gun laws would have.
There aren't any. The only legitimate restriction would be related to actions taken with that right, not the exercise of the right itself.
As for the felon and gun situations, why should a felon be denied the possession and usage of firearms - especially a non-violent felon? If he is in prison, that is a completely different situation, and has nothing to do with this case. If not, then we presume (wrongly often, but the presumption is still there) that he has paid his debt and is no longer a danger. If so, why should his access to firearms be restricted?
Oh, let's see...they went above and beyond in breaking the law, they have proven themselves to be (in some way, shape or form) to be a menace to society, and (since you also included violent felons in this) many have proven that they aren't above using firearms in the commission of dangerous and deadly crimes?
And, on the whole "debt to society" thing...we restrict the right to vote when it concerns felons. A debt to society does not get paid in full whenever they step outside prison walls. They have to report it to most employers. Many leave on parole and have to check in with parole officers as the board deems fit.
Maybe on the most non-violent felons, I would see your point. And don't take this as a personal insult, but being inclusive of violent criminals as well as the guy who committed embezzelement would seem to be...for lack of a better term...dumb.
In politics, you have your word and your friends; go back on either and you're dead. (Rule #11 of the public policy process)
violent felons. What about non-violent? Do they have any lesser right to self-defense than others? You do realize that many crimes have been renamed as felonies that used to be either lesser crimes or no crime at all. It no longer takes going "above and beyond" to be a felon, it only takes making a mistake in some cases now. You realize that in some states, possession of a gun on a school campus is a felony? What if my dad came to pick me up at school one day and forgot that he had gone shooting and still had a gun in the car (just an example, he never did this)? Do you believe that he went above and beyond and gave up every right?
As far as violent felons, if they are that dangerous they should either be in prison for life or be dead. In either case, they shouldn't be out on the streets. Rights don't apply in prison.
With respect to felons and guns, there is most likely a compelling state interest that may survive the application of a strict scrutiny standard.
"It would also NOT enflame the anti-gun people..." that makes me wonder about Kennedy. "The Justices read the papers, too." I can't see any of the Kelo types inventing a whole new "Right of self defence." doctrine.
Speaking of which, while I heard much of the "danger" of handguns, I heard nothing of the DC law's shopkeeper and security officer exemptions, which tacitly admit that the handgun is the best self-defence weapon, too. Maybe it's in the briefs.
What do you consider "reasonable"? It probably differs from what I believe, and that is based on the meaning of "shall not be infringed". How many anti-gun themes are truly reasonable and backed up by factual data? How many times has the "Dodge City" argument been raised in debates about shall issue concealed weapons laws; even though, since 1987 there have been no "Dodge City" style shootouts due to these laws, only reduced crime. The anti-gun folks use the "reasonable" line in the same unreasonable way they use the "common sense gun laws" line. In addition, I'm not worried about enflaming anti-gunners, since they seem always to be enflamed about something, anyway.
It is a capital mistake to theorize before one has data. Insensibly, one begins to twist facts to suit theories instead of theories to fit facts. Sherlock Holmes
I didn't get the feeling Kennedy was going for strict scrutiny. He critized Miller, but I think that was from a perspective of focusing on the wrong aspect of the language rather than a statement about the level of scrutiny to be used. I'd wager four people would be on board with strict scrutiny, kennedy and beyer would be on board with intermediate scrutiny, and souter, ginsberg, and stevens would use some reasonableness standard.
That would make the de facto rule strict scrutiny, as it would be the plurality I suppose. This will be interesting.
I sense a similar outcome. It seems like there will be a majority opinion via concurrence. Again, it is quite possible that they do not resolve the scrutiny standard, since the ban will most likely be viewed as unreasonable at any level of scrutiny by a majority of the Justices. That being the case, some of Justices may decide to leave certain tangential issues alone, which is what Roberts seemed to be insinuating with his question.
The issue that will be decided is whether the Second Amendment is an individual right or a collective right of regulated militias. Once and hopefully for all, the Supremes will kill all the fallacious liberal arguments regarding the application of the Second Amendment to well regulated militias. If I never hear a liberal bring up that horse manure again, I’ll be quit pleased.
This is an interesting and important case, and the give and take of oral arguments makes a rewarding 90-minute read. Full transcript (120 pgs, double-spaced) of oral arguments here.
It seems clear that the "militia" introductory clause in the Second Amendment was bound up in 18th Century distrust of centralized power and standing armies. Given the colonies' experience with British oppression, enforced by a standing army augmented with mercenaries, this is hardly surprising. An armed populous was a check on abusive central power in two ways: first its ability to constitute an ad-hoc militia (as in Lexington and Concord), and second to act as individuals to resist oppression.
As an example of the latter, how might German history have been different if their midnight raids rounding up Jews had resulted in an accumulating list of Gestapo casualties from fire fights?
In Revolutionary times, there wasn't much of a gap between military and civilian arms technology, at least as compared to today. True, 18th Century professional armies had cannon, and a clear training advantage, but their light arms were still single-shot muzzleloaders.
Today the military-civilian gap is huge. The standard-issue military light arm is fully automatic -- a technology almost entirely illegal in civilian hands. And the disparity only begins there. If today's professional US armed forces chose to oppress our own people, and those people attempted to recreate the armed resistance of Lexington and Concord, the outcome would be a one-sided massacre.
Of course, if a second Civil War erupted in the US, professional military forces would soon encounter IEDs, and other asymmetrical-warfare tactics demonstrated in Iraq.
Having opined that civilian armed resistance against military professionals is highly problematic, the same need not be said for Gestapo-like irregular forces. Modern police SWAT teams do indeed have exotic weaponry unavailable and illegal to civilians but, lacking heavy weapons, armor and air power, they could nevertheless pay a high price for attempted oppression.
So the check-and-balance deterrent to oppression that is the Second Amendment is not, in my view, obsolete.
Bellinghamster
I don't like that Roberts is willing to accept strict scrutiny based off what he said at oral arguments. From Lyle Dennison:
The Chief Justice, signaling that he would like to pare down the task the Court faces in deciding the case, told the Solicitor General: “I wonder why in this case we have to articulate an all-encompassing standard. Isn’t it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can’t take the gun to the marketplace and all that, and determine how…this restriction and the scope of this right looks in relation to those? I’m not sure why we have to articulate some very intricate standard.”
From that quote I don't see any reading which would show that the Chief is willing to accept strict scrutiny. I sure as hell hope that I am wrong, but I am resigning myself to a flimsy intermediate standard where outright bans are going to be about the only thing which won't pass scrutiny.