D.C. Handgun Case to Be Heard This Week

The Supreme Court will hear oral arguments in the D.C. Handgun ban case, District of Columbia v. Heller, this week.

A decision isn't expected until the end of the Court's term in June. Will we get a definitive statement on the meaning of the Second Amendment?

Via Instapundit, here's a recent poll from USA Today on where Americans stand on the issue:

Nearly three out of four Americans — 73% — believe the Second Amendment spells out an individual right to own a firearm, according to a USA TODAY/Gallup Poll of 1,016 adults taken Feb. 8-10. Yet for decades, federal judges have seen the Constitution differently, allowing a range of gun-control measures imposed by governments seeking to curb gun violence."

TalkLeft is a strong supporter of the belief that the Second Amendment conveys an individual right to bear arms.

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    While I believe (none / 0) (#1)
    by Deconstructionist on Sun Mar 16, 2008 at 12:49:59 PM EST
    our positions on this issue are very close, I find it odd you would use popular opinion as a basis for supporting a particular view of the parameters of constitutional liberties. Isn't one of the primary principles supposed to be that certain rights must be protected from decisions based on transient popular opinion?

      Now in this case, you cite popular opinion to support an expansive view of one right but does that not lend support to those who would cite public opinion to support  more restrictive views of other rights?


    Nice point Decon, but (none / 0) (#2)
    by scribe on Sun Mar 16, 2008 at 01:01:44 PM EST
    popular understanding of the overall meaning of an amendment is important to understanding how far the judges interpreting the 2d Amendment have strayed.  

    I believe in a personal right.

    I think even the 1968 Gun Control Act was an abomination.  I have no problem with the 34 act (requiring registration of machineguns and sawed-offs - anyone who'd want to saw off a fine double-barrel, I want nothing to do with).

    I read the briefs - including a good number of those from amici (there are 67 of them, FWIW, possibly something of a record).  I think the personal-right side has a stronger argument.

    And, I'm deeply worried about what might happen if the justices rule "no private right".

    A gun is an inanimate hunk of metal, wood and/or plastic.  Without people intervening, it can lay there until the stars burn out.  It's the operators that I'm concerned about.  And, if the government-approved are the only "legal" operators, there is no guarantee of individual liberty left.

    But isn't that exactly the point? (none / 0) (#15)
    by sarcastic unnamed one on Sun Mar 16, 2008 at 02:21:51 PM EST
    anyone who'd want to saw off a fine double-barrel, I want nothing to do with
    Someone who's intention it is to do harm to you or yours would have profound second thoughts when confronted by you and your sawed-off double.

    I can think of no better defensive weapon, particularly at the close ranges that exist w/in one's own home.

    On the up-side, I think for the first time ever you and I are in almost complete agreement on something.


    I am not sure I would want to live in a city (none / 0) (#17)
    by Molly Bloom on Sun Mar 16, 2008 at 02:36:06 PM EST
    where a couple of hot heads with sawed off shotguns could relive the OK Corral. I don't believe I would want a member of my family dying as a result of a stray bullet, just because they were in the wrong place at the wrong time.

    Sawed off shotguns Ok? How about Thompson machine guns or whatever the modern equivalent is.

    I think Decon's more nuanced view may be a better one. A stronger  government interest (nuclear weapons, RPGs, sawed off shotguns etc.) makes some regulation valid.


    You live there now, (none / 0) (#18)
    by Deconstructionist on Sun Mar 16, 2008 at 02:48:42 PM EST
     unless you live alone on an island.

      One of the practical realities is that we can't put the genie back in the bottle at this late date because even if the court were to write the 2nd Amendement into meaninglessness (I'm not suggesting that will happen) there are millions of these weapons in circulation and it is likely just the type of people likely to play OK Corral with sawed-offs or hit you with a stray bullet from their full auto who would be would be among the  least likely to comply with more restrictive laws. (A good basis for believing that is that those sawed-offs are illegal under federal law now and full autos require a license that is not easy to obtain yet both are prevalent)

       I don't own a gun, but I have often though that the one thing that would be most likely to make me decide to get one would be belief I would not be able to get one legally in the near future.


    Concur, and I note that (none / 0) (#20)
    by scribe on Sun Mar 16, 2008 at 03:12:41 PM EST
    when I went to law school, I lived on campus.  On a warm summer night, one could hear the drug dealers lighting up the night with their Uzis a mile or two away.  One time, in the middle of a class on appellate practice (given by a federal circuit judge) a couple of us (raised in the country) in the classroom jumped so noticeably that we got chewed out for interrupting him.  Why?  A shotgun went off a couple blocks away and the windows were open.  Dealers, again.

    I didn't like it, but it, too, passed.  It's the misuse of firearms which is the "evil" to be addressed, and that's by appropriate legal remedies against the persons who actually misuse them - and not by disarming the overwhelming majority of other people who don't.


    OK Corral (none / 0) (#26)
    by MKS on Sun Mar 16, 2008 at 05:57:41 PM EST
    The Earps were attempting to enforce a gun ban in Tombstone....

    The right to bear arms relates to the defense of a free state, so why would the Second Amendment not protect an individual's right to have RPGs?  Why just draw the line at weapons that provide personal protection instead of those that would be really meaningful in terms of repulsing an invasion from a foreign force?.....


    The federal government (none / 0) (#30)
    by Deconstructionist on Mon Mar 17, 2008 at 07:55:41 AM EST
     is expressly granted the power to control national defense. Even the most rabid pro-gun  2nd Amendment commentators don't attempt to argue the Amendment's purpose was to allow for freelance actions in the name of national defense. It's more plausible by far to argue that one of the rationales was to allw for individuals to defend themselves against the government if it turned tyrannical and not in lieu of the government in case of foreign invasion.

      Now, using THAT rationale, could someone really really extreme argue they should be free to have any weapon they can afford just in case the government decided to start violent oppressing them? Sure, argue away, but i think most courts applying a balancing tests would find that societies interest in not having unbalanced people with weapons of mass destruction outweighs the individual's interest in being as prepared as possible for a mere eventuality.


    Molly, you don't dig guns. Fair enough, (none / 0) (#29)
    by sarcastic unnamed one on Sun Mar 16, 2008 at 10:46:41 PM EST
    nothing I say will likely change your mind.

    But, just for the record, suggesting that shotguns fire bullets and then conflating sawed-off shotguns with nuclear weapons, makes one question just how much knowledge you actually have about the subject at hand.

    Also, no one suggested, afaik, that there should not be some regulation.

    That said, like almost every non-election topic here on TL, the issue seems to boil down to one of degrees.

    Yes, there should be some regulation of arms. Where that line should be drawn is the crux of the debate.


    How much actual knowledge about (none / 0) (#33)
    by Molly Bloom on Mon Mar 17, 2008 at 09:10:50 AM EST
    the workings of a firearm  do I need to know they are dangerous in the wrong hands? And I know shotguns have a spray due to birdshot or buckshot. The exact workings of a shotgun? Never used one.

    Its my understanding that those with a working knowledge of shotguns think they sawed off variety is dangerous. I think its because it sprays in a wider pattern and is more likely to hit innocent bystanders. Correct me if I am wrong. Always up to learning more.

    I don't dislike guns per se. I have actually fired a rifle. More than once. But I don't claim to be an expert or even particularly knowledgeable about the exact workings of all guns.  I can't bring myself to shoot an animal, but  I eat meat. My cousins were all hunters on my mother's side. Some where bow hunters as well. They even took me out in the woods with them deer hunting. I liked being in the woods. I couldn't bring myself to shoot the deer.

    I've eaten venison. I've eaten my nephews' venison. Love buffalo.

    My position is closer to Decon's above. I can live with an individual's right to bare arms. I do think a balancing test is reasonable and the usual formula is the higher the government interest, the more valid the regulation.  You may agree. I know  NRA types who think all regulation is a slippery slope. You want a shotgun, be my guest. How useable for hunting is a sawed off one?

    If you are going to use a gun for protection, I think it reasonable you not use one which increases the possibility of an innocent bystander getting hurt. That would seem to rule out a sawed off shotgun among other things.


    Fair enough. (5.00 / 1) (#35)
    by sarcastic unnamed one on Mon Mar 17, 2008 at 02:49:43 PM EST
    As long as you are able to accept that some other people think it reasonable to be able to defend themselves, their family, their home, etc., to the best of their ability, and that excessive precautions to attempt protect against the possibility of accidents should not trump one's right and ability to defend one's self.

    As I said, it's a matter of degrees.


    Actually, I was being a little snarky (none / 0) (#19)
    by scribe on Sun Mar 16, 2008 at 03:05:57 PM EST
    b/c sawing off a fine double barrel is such a crime against taste that it should not be tolerated and its practitioners should be ostracized.  All that notwithstanding the fact that such a weapon is, as you say, probably the most effective one for home-defense (assuming one places no value on being able to hear in the future).

    I fully agree (none / 0) (#3)
    by Deconstructionist on Sun Mar 16, 2008 at 01:07:39 PM EST
     that the "collective right" theory is contrary to the plain meaning of the 2nd amendment. I also think its adherents must ignore or distort the historical context in which it was rstified to support a collective right interpretation if we were to concede the text is ambiguous.

      I'm just saying  I don't think whether 73% of the people responding to a poll support an individual or collective right should matter and that implying it does ight lend credibility to those seeking rulings establishing  less expansive parameters with regard to other constitutional rights.

    I think the vast majority of people might not (none / 0) (#6)
    by scribe on Sun Mar 16, 2008 at 01:19:35 PM EST
    be able to articulate "individual right" or "collective right", but if one were to ask them what the 2d Amendment means, that same majority would say:  "I can have a gun and use it for appropriate purposes, if I want."

    Which, summarized, is the core of the argument in the Senators' and Representatives' (and Deadeye) amicus brief, as to what the core meaning of the right to keep and bear arms was, for about 50 years prior to the adoption of the Constitution.

    For once, I'm agreeing with Deadeye.


    Yes, (none / 0) (#9)
    by Deconstructionist on Sun Mar 16, 2008 at 01:33:25 PM EST
     but even if the majority of the people felt the 2nd amendment meant only members of a government sanctioned body should be allowed to possess firearms, the suprem court should still base it's decision on the Bill of rights and not the majority preference.

      If I came across  polls showing either that 73% of the peoole felt a warrant should be required to search a home in all circumstances without exception or one where 73% of the people felt the 4th Amendment should be read to allow for warrantless search and seizure of a home  whenever the police had good faith reason to suspect the search would uncover evidence of drug dealing, I would not consider either a salient factor a court to consider.


    Fair enough - but (none / 0) (#11)
    by scribe on Sun Mar 16, 2008 at 02:01:28 PM EST
    the warrant requirement (and 4th Amendment, generally) has been the subject of tens, if not hundreds of S.Ct. cases over the years.

    The 2d Amendment - not so.  I think people's understanding - both in 1789 and now - is pretty salient or at least entitled to weight.  I'd even go so far as to say the 1789 understanding (probably a broader right than we might see advocated today) might be entitled to more weight.


    True (none / 0) (#13)
    by Deconstructionist on Sun Mar 16, 2008 at 02:07:23 PM EST
      but I'm not convinced that the "accuracy" of public opinion is much influenced by the number of court cases considering a subject.

      In any event, I fail to see how people's understanding of a constitutional principle should be entitled to weight by a court in interpreting or appplying it. That line of reasoning would seem to suggest that if one side did a better job of propagandizing the court should consider that as a afactor in its favor, even if it was false propaganda.


    In this case, the paucity of decisions (none / 0) (#14)
    by scribe on Sun Mar 16, 2008 at 02:19:26 PM EST
    and the fever-hot partisanship on this issue make for real trouble, if 73 percent of the people are suddenly told "you're wrong".  It's not as though we're cutting (or adding) a minor corner on the warrant requirement.  This is a whole new field for constitutional exposition - and one in which a lot of people have a lot invested - personally and emotionally.

    A "collective right" decision is just the kind of result that will move voters to vote Republican  - to counteract all them left-wing judges.  That will be notwithstanding the fact that a majority throughout this case's course are Republicans, have been appointed by Republicans and some, like the author of the majority opinion in the DC Circuit - Silberman - have long since been viewed as Republican fixers.

    All the average guy is gonna know is "them judges wanna take my guns" and given thirty years of Republican propaganda that it's the liberal judges - they'll blame it on Democrats.


    It's hardly suddenly (none / 0) (#16)
    by Deconstructionist on Sun Mar 16, 2008 at 02:25:32 PM EST
     because, as weakly reasoned a case as it may be,  Miller is the case under which inferior courts have been operating for 70 years. The change would actually be to overrule Miller with regard to the collective right precedent and hold the right is an individual one and directing courts to consider future cases under that rubric.

       I  expect that Miller will be overruled and the Court will hold the 2nd Amendment establishes an individual right. As i wrote on one of the threads last year when the court announced it will take the case, I'm of the opinion the closer and more controversial portion of the opinion will which level of scrutiny is to be applcable.



    I hope you're right. (none / 0) (#24)
    by scribe on Sun Mar 16, 2008 at 05:39:10 PM EST
    And I hope they apply strict scrutiny, or at least intermediate.

    strong supporter? (none / 0) (#4)
    by white n az on Sun Mar 16, 2008 at 01:11:31 PM EST
    without limitations by local rule?

    An "individual right" (none / 0) (#7)
    by Deconstructionist on Sun Mar 16, 2008 at 01:19:56 PM EST
     is not synonymous with an "absolute right."

      What is being addressed is really the starting pointr and interests to be balanced in the inquiry as to whether any specific piece of legislation passes muster (no pun intended).


    And the standard by which the right's (5.00 / 1) (#8)
    by scribe on Sun Mar 16, 2008 at 01:26:06 PM EST
    restrictions are to be measured:  "strict scrutiny", "Reasonable basis" or "intermediate scrutiny".

    If it's reasonable basis, there will likely be no change in the current regulatory scheme, though the DC laws would (since they amount to prohibition) have to be tossed.


    Jeralyn, I would welcome a future (none / 0) (#5)
    by oculus on Sun Mar 16, 2008 at 01:17:18 PM EST
    post by you as to how your interpretation of the Seonc Amendment fits in with your legal criminal defense work.  

    ah, another reason I like Talk Left (none / 0) (#10)
    by Plutonium Page on Sun Mar 16, 2008 at 01:41:20 PM EST
    TalkLeft is a strong supporter of the belief that the Second Amendment conveys an individual right to bear arms.

    I'm new enough here that I didn't realize that until now.

    A good rule of thumb on this site (none / 0) (#12)
    by scribe on Sun Mar 16, 2008 at 02:02:38 PM EST
    is that the positions follow pretty closely the idea of "tiny islands of government power in a sea of individual liberty."

    And not the other way around.


    If gun ownership is an individual right... (none / 0) (#21)
    by mike in dc on Sun Mar 16, 2008 at 05:06:08 PM EST
    ...does the State still have the ability to proscribe gun ownership by ex-felons who have completed their sentences, including probation and parole?

    My big question is (none / 0) (#22)
    by splashy on Sun Mar 16, 2008 at 05:10:02 PM EST
    Whether people should have a right to live somewhere, ANYWHERE, that is gun-free?

    Do we always HAVE to be forced to have to have people with guns around here in the US, or should some people be allowed to have areas where there are no guns?

    Should people have that choice, or do the people that are for guns trump everyone else's choice?

    I wonder about that, even though I live in an area where EVERYONE has guns, most have several, and we have a couple ourselves. People hunt in our area, and it's considered the norm to have guns. I don't find it a problem personally, and am glad that in a pinch we could feed ourselves or protect ourselves.

    I'm not against guns, obviously, but my sense of freedom leads me to think that those that want to be free of guns should be able to have SOME place where they can do so. Is there any such place here in the US, or have the gun advocates taken that all away?

    It's like freedom from religion. It seems to me that people should be able to make some kind of choice.

    Disarm the police (none / 0) (#23)
    by Abdul Abulbul Amir on Sun Mar 16, 2008 at 05:20:36 PM EST

    Does this wish for areas free of guns mean the police must be disarmed?

    You have that right .... (none / 0) (#31)
    by Deconstructionist on Mon Mar 17, 2008 at 08:02:01 AM EST
     to the extent  you can afford it. You can buy as much private property as you can afford either yourself or in concert with other like-minded people and you can control your property as you see fit.

      Of course, very few people can afford to do that and the ones who bear the brunt of random and or mistargeted violence are the least likely to be able to do it.

      Perhaps you should seek investors for a gated community with high walls and security gates (unarmed guards, of course) and market it to  well to do anti-gun folks.


    So, you have to be wealthy to be gun free? (none / 0) (#36)
    by splashy on Tue Mar 25, 2008 at 12:54:07 AM EST
    Is that the way it is?



    The Court of Appeal (none / 0) (#25)
    by MKS on Sun Mar 16, 2008 at 05:44:39 PM EST
    ruling was 2-1 in favor of the Second Amendment being a collective right.....

    Maybe Kennedy is the swing vote again.....Scalia could be an interesting vote...."well regulated militia" is part of the text.  Who knows....maybe there will be a hybrid ruling:  There is an individual right, but the D.C. ban passes muster in light of that right, or some portion of that ban is okay...

    I do not support the Second amendment (none / 0) (#27)
    by MichaelGale on Sun Mar 16, 2008 at 06:15:15 PM EST
    as an individual right to bear arms.  As a Democrat, it is one of the few issues I have to live with when I am in such disagreement with this issue.

    I have a history with learning and using firearms  and had a long history with the NRA. I believe that "individual right" has been so corrupted making the Second Amendment meaningless to society as a whole.

    I do not believe nor do I support that the Second Amendment is an individuals right to bear arms as  it is interrupted in the present.

    "Supporting" (none / 0) (#32)
    by Deconstructionist on Mon Mar 17, 2008 at 08:10:03 AM EST
     a view as to what the Amendment means should NOT be dictated by what you believe the best policy would be. Deciding what a provision means should be based on what was written (and sometimes why it was written) and not on whether the provision fairly interpreted and applied results in the best policy.

      Personally, I think the 2nd Amendment does clearly establish and indvidual (but, again, not absolute) right to possess firearms. on the other hand if that would lead to specific application cases where what I consider reasonable regulations were being ruled unconstitutional I would loudly advocate repeal of the 2nd Amendment and ratification of a different Amendment which would allow for such regulation as is reasonable and prudent in modern, urban circumstances.

      I object to intellectual dishonesty and deviation from principle to achieve a desired goal, not the reasonable regulation of firearms. If we play dishonestly and without principles in pursuit of something we want we give license for others to do the same for things they want-- and maybe I don't.



    DC handgun case (none / 0) (#28)
    by Fitasc on Sun Mar 16, 2008 at 08:53:13 PM EST
    USA Today did a online poll in Nov. attached to a story about the DC case but I don't think they liked the result it was 97% YES to "Does the Second Amendment give individuals the right to bear arms?"

    These Are Natural Rights (none / 0) (#34)
    by expertlaw on Mon Mar 17, 2008 at 11:16:46 AM EST
    TalkLeft is a strong supporter of the belief that the Second Amendment conveys an individual right to bear arms.

    Then you believe wrong. But before anybody goes jumping down my throat, what I'm objecting to is the idea that the Bill of Rights conveys substantive rights. While it can be said to convey procedural rights, such as the right to indictment by grand jury, the Bill of Rights is properly viewed as an iteration of certain rights the framers considered people to already possess. (See, e.g., Federalist Paper No. 84.)

    The danger in viewing the Bill of Rights as "conveying" rights, or in ignoring the Ninth Amendment, is that the Bill of Rights is misused to limit or constrain the rights of the people. (e.g., "There is no right to privacy.") Concern for that, of course, is the primary reason the Federalists opposed a Bill of Rights, and ultimately insisted upon the inclusion of the Ninth Amendment.