Life After Heller - More lawyers, more guns, some nunchuks, and the 14th Amendment

In a peculiar but not unprecedented turn of events, an anti-gun control plaintiff lost his case, last month's Nordyke v. King(pdf), but nonetheless managed to elicit a groundbreaking pro-gun rights declaration from the Ninth Circuit Court of Appeals.

In deciding that it was OK for California’s Alameda County to bar the possession of guns on county property—a law that quashed a gun show that had long been held on county fairgrounds—the Ninth Circuit affirmed that the Second Amendment does control state and local actions as well as federal ones. That was a step farther than last year's decision in District of Columbia v. Heller(pdf), when Supreme Court declared authoritatively for the first time that the Second Amendment did indeed protect an individual right to bear arms. That decision concerned only federal actions.

It’s not unusual for an important gun rights principle to be embedded in a decision upholding a gun law. In fact, that outcome has a positive historical pedigree. The same thing happened in the groundbreaking 2001 Fifth Circuit case, U.S. v. Emerson, where the court declared that the individual right to possess weapons existed in principle (as distinct from some collective right connected with militia membership). But the opinion also said that the particular statute at issue, which barred individuals currently under restraining orders from owning weapons, did not violate the right.

What mattered for the future of gun rights was not whether the plaintiff won his challenge (he didn’t). What mattered was that Emerson created a split in judgment over what the Second Amendment meant among the federal judicial circuits. That laid the groundwork for the Supreme Court to take up the question in Heller. Similarly, what’s most important for the future of gun rights jurisprudence with Nordyke is not whether Alameda County will once again see gun shows on its property (it won’t) but that the decision creates a clear circuit split on whether or not the Second Amendment applies, through what’s called “incorporation” via the 14th Amendment, to state and local actions.

Thus, even though the particular gun show operators who fought Nordyke lost, they won a great victory for the gun rights cause and almost certainly laid the ground for a future Supreme Court case. This year has already seen another federal circuit case, the Second Circuit’s Maloney v. Cuomo(pdf), which involves a New York ban on nunchuk possession, declare that the Second Amendment does not apply to states or localities. This has been the standard position on Second Amendment incorporation in the federal courts. The plaintiff in Maloney intends to petition for certiorari from the Supreme Court. The Nordyke plaintiffs can’t, since the particular issue on which they lost, a government’s ability to ban or restrict guns on government property, is not an issue on which there is a circuit split the Supremes need to resolve.

Nordyke’s stroll through the court system was long and twisted and the plaintiffs used a variety of legal arguments to try to overthrow the county’s ban. The line of reasoning by Judge Diarmuid F. O’Scannlain in Nordyke has proved particularly interesting as it has attempted to follow the 14th Amendment’s call that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

Elements of the federal Bill of Rights might be said to apply to states and localities in at least two ways, and most of the Bill of Rights has already been thus applied. But until Nordyke, the Second Amendment had been glaringly left out. For non-lawyers, the way the 14th Amendment ended up being parsed in Nordyke, and most other cases, might seem peculiar, but here’s how it went.

O’Scannlain declared that the Second Amendment is not one of the “privileges or immunities of citizens of the United States,” precisely because the right is one of “those general civil rights independent of the Republic’s existence,” and not a peculiar possession of Americans as Americans. Peculiarly, it is too important to be imposed on the states via the 14th Amendment by the "privileges or immunities" clause.

Luckily, there is another way. Though you might think “due process” refers merely to the ways or procedures by which government deals with our rights, courts have come to believe in something called “substantive due process.” The Due Process Clause “guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint,” as explained in 1997’s Washington v. Glucksberg.

Thus, as O’Scannlain wrote in Nordyke, if the Second Amendment right is “fundamental, meaning ‘necessary to an Anglo-American regime of ordered liberty’…then the Fourteenth Amendment incorporates it.” And using reasoning analogous to how trial by jury was incorporated on states and localities in the 1968 Duncan decision, he held that the Second Amendment also must be incorporated.

The decision in Nordyke, much like Heller, laid out in convincing detail that the right of self-defense through weapons protected in the Second Amendment is indeed “deeply rooted in this Nation’s history and tradition....The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty."

Still, since Heller’s outline of that right kept it rooted in self-defense in the home, O’Scannlain nonetheless decided that Alameda County could keep its ordinance banning weapons on county property since that restriction did not unduly restrict the core element of the gun possession right as Heller interpreted it.

While the New York Times would have you believe Heller has had few meaningful after-effects, gun rights scholar David Kopel sums up well how significant the decision has been already:

Moving forward, a series of interesting and potentially game-changing new legal challenges have been launched in Heller’s wake. A sampling of a few:

• With the help of the National Rifle Association (NRA), Heller plaintiff Dick Heller is challenging the way D.C. has redesigned its gun control laws post-Heller. As the NRA explained in a press release, “Under the current D.C. law, prospective gun owners are required to pass a written test graded at the sole discretion of the Metropolitan Police Department. They must also have vision better or equal to that required to get a driver’s license (even for those who just want to possess a collector’s item), submit employment history for the past five years and surrender all handguns for ballistics testing, among other restrictions.” Heller and the NRA think those limitations on a recognized constitutional right should not stand.

• The Seventh Circuit Court of Appeals will be hearing in late May a set of legal challenges(pdf) to various Chicago area gun restrictions that amount to a total restriction on handgun possession and use in the home. Both victorious Heller lawyer Alan Gura and the NRA are involved, with various earlier cases having been combined on appeal on the court’s order.

• Tracey Hanson, one of the original six plaintiffs in what ended up as the Heller case, has reunited with Gura in March to sue D.C. over the fact that the city's narrow roster of approved guns barred her from registering her own handgun because of its color.

• The Second Amendment Foundation and other plaintiffs filed in late April a suit in California challenging that state’s arbitrary list of “approved” guns—a list manufacturers have to pay a fee to appear on. As the press release announcing the suit stated, quoting attorney Alan Gura, “A handgun protected by the Second Amendment does not need to appear on any government-approved list and cannot be banned because a manufacturer does not pay a special annual fee.”

• The Second Amendment Foundation also in late March sued Attorney General Eric Holder, as their press release announcing the suit summed up, “seeking an injunction against enforcement of a federal law that makes it impossible for American citizens who reside outside the United States to purchase firearms while they are in this country.”

With the precedents of Heller and Nordyke, and with various unreasonable gun rights restrictions under skilled legal fire, the future of Second Amendment jurisprudence is brighter than it has been in living memory. Justice Souter’s retirement doesn’t change the gun rights balance of power at the Supreme Court—he was a Heller dissenter, and undoubtedly whoever replaces him would have been as well.

But because Heller very explicitly set limits on how far the Court's gun rights thinking would go (and indeed the Nordyke court relied on that limiting language to uphold Alameda’s gun possession restrictions), some believed it was going to be a complete dud. It is possible that gun jurisprudence will stay stuck in a very narrow groove, with courts deciding across the board that if a law doesn’t clearly and directly and entirely prevent someone from defending themselves in their home with a common weapon then the Second Amendment has been properly honored. But it seems far more probable that Heller will end up reshaping the landscape of American liberty.

Ninth Circuit Judge Ronald Gould nicely laid out the ambiguity facing the courts in his Nordyke concurrence: “The problem for our courts will be to define, in the context of particular regulation by the states and municipalities, what is reasonable and permissible and what is unreasonable and offensive to the Second Amendment.” That’s a vague mandate, and different courts will make different decisions under different circumstances. But after Heller and Nordyke, even if they lack a magic bullet to shoot down unnecessarily restrictive gun laws, courts have the proper core principles laid out. That’s far more than the gun rights community could have said even a year ago.

-- Provide the quote that concerns you, and I'll point out ... Just because the opinion did not rule on M-16s does not mean it ruled against them. --

My comments in []. My view is that Circuit Courts will run with this, and SCOTUS won't agree to hear a case where the Circuit Courts are in agreement.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." [All of Scalia's conclusions in this vein depend on the scope of government regulatory power being congruent with "in common use," which is downright handy when the government can regulate things out of common use] We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." [1) notice the stated historical prohibition is on carrying, not on keeping, and 2) cites omitted, but they do not support a conclusion that the US government can constitutionally ban the private possession of a dangerous and unusual weapon, let alone Scalia's outcome that it can constitutionally ban a small arm in common use by the military]
It may be objected that if weapons that are most useful in military service--M-16 rifles and the like--may be banned, then the Second Amendment right is completely detached from the prefatory clause. [Here he seems to be saying that the government may ban M-16s and weapons that are useful in military service] But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. [Notice he does not probe the scope of "lawful weapons possessed at home" at the time of the Second Amendment's ratification] It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. [Unusual is not the measure, and even if it was, "highly unusual" in this instance is bootstrapped from government restriction] Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. [He neutralizes the Miller Court's statement -- "weapon [that] is any part of the ordinary military equipment or [which] use could contribute to the common defense [is in the scope of 2nd amendment protection]" -- without explanation]

Here's more of Scalia's bullshit from Heller.

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. [Yeah, and so were short barrel shotguns, and so, application of Miller in light of the missing finding of fact would result in holding the 1934 NFA unconstitutional in light of the 2nd amendment. Scalia dodges this obvious conclusion in an easy case (Miller is so simple, even a cave-man can get it right)] ...
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. [Read Miller yourself. Scalia is directly, and blatantly, completely reversing what Miller says.]

Here's another one, where he shows rank dishonesty in a concise statement that (man, this guy has brass balls) even includes a cite to the language that shows his conclusion to be wrong!

Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the possession or use of a [short- barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Had Miller shown, on remand, that short barrel shotguns has some reasonable relationship to the preservation or efficiency of a well regulated militia, the ruling below (the 1934 NFA is unconstitutional in light of the 2nd amendment) would have been AFFIRMED. In Miller, the logic was that if a short barrel shotgun has a Militia use, then it IS protected. Miller didn't find the type of weapon at issue was not eligible for 2nd amendment protection. The Court said "absent evidence, WE CAN'T SAY."

I find Scalia's read of Miller to be startling, so startling in fact, that I conclude it is a deliberate act of LYING. If Congress had any balls, it would impeach the entirety of SCOTUS over this. Oh wait, I forget, Congress is by nature gun-grabbing too. If the gun-friendly public had any sense, it would be outraged over the rank dishonesty and misrepresentation that Scalia spouted in Heller. But no, they got the "individual right" bone, and feel just great about it.

-- I think in the Miller case, the Supreme Court tried to use this standard though they came to the wrong conclusion. Their standard was what weapon would a soldier/militiaman be using. However, they incorrectly believed that a shotgun is not a weapon of a soldier/militiaman so it could be regulated/banned. It was a wrong conclusion because a shotgun has indeed been used many times in combat by soldiers for varying reasons. --

The Miller court's conclusion was "absent evidence [that this weapon is any part of the ordinary military equipment or [which] use could contribute to the common defense], we cannot say [that it is in the scope of the 2nd]." They send the case back down for a factual finding. Had the fact finding been that a short barrel shotgun is any part of the ordinary military equipment or could contribute to the common defense, then the 1934 NFA is unconstitutional.

Come 2009, Scalia turned that upside down with blatant lies and incredibly transparent illogic. IOW, the Miller Court got it right, and the Heller Court was making shit up from whole cloth.

Cboldt said: "Here's more ... from Heller."

In order to read Heller fairly, I think you need to realize that Scalia and the Court were under an obligation to preserve Miller if a correct decision in Heller was consistent with it.

Scalia is not saying that he agrees with Miller. But if one is bound by Miller, then one must take into account what it said.

Scalia correctly points out that one possible reading of Miller is that machineguns are protected [ and some concealable handguns might not be ]. He correctly points out that the Miller Court decision was consistent with the idea that short-barreled shotguns were not protected. The actual outcome of Miller is that the decision regarding the shotgun was never decided and therefor the law passed by Congress to prohibit such shotguns remained in effect.

Much depends upon the truth of the statement regarding "the historical tradition of prohibiting the carrying of dangerous and unusual weapons".

You and I and Scalia all recognize that a proper reading of Miller could make the ban on machineguns unConstitutional. The analysis of Miller which resulted in Heller is that Miller was incorrect to limit the scope of the right to ONLY Militia purposes.

A small step from Heller would be a decision regarding so-called "assault weapons". Certainly the self-loading center-fire rifle of military design is the direct descendant of the Revolutionary musket. There is no way that a Supreme Court should find that such a rifle is not protected.

Then it is another extremely tiny step to recognize that a select fire rifle is both useful to a Militia and would be the rifle of choice given the fact that the descendant of the musket described above can be manufactured for about two dollars more with a select-fire switch, without giving up any of its prior functionality.

What seems like a giant step to the anti-gunners is really just two tiny steps away, even with Miller's now-overturned narrowing of the scope of the protected right.

My concern with the future state of Heller is that it does not address the other "destructive devices" that should be protected. At such time as any conflict with a tyrannical government begins, Americans will be at a disadvantage in having to develop and manufacture such devices from a starting point of zero inventory. That was certainly not our Founder's intentions.

But I would encourage you to recognize that Scalia tossed out the narrowed scope of Miller and might yet be forced to deal with what is actually a very powerful ruling in Miller regarding the types of weapons protected.

The first atomic weapons yielded the equivalent of about 20 thousand tons of TNT. I see no indications that the "dangerous or unusual weapons" of which Scalia speaks would have precluded a manufacturer of arms from possessing twenty thousand tons of black powder in the years immediately following the Revolution.

Cboldt quotes Scalia from Heller: "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

The key words here are "typically" and "lawful".

These words make it very easy for a later Scalia to find that so-called "assault weapons" ARE typically found in the home ( I own several ) and they have many lawful uses and would be the preferred weapon to perform Militia service.

I don't see any impediment here to a later ruling much to the advantage of pro-gunners. Both the dangers and the utility of "machineguns" are exaggerated by anti-gunners and pro-gunners alike. The distinction between "centerfire, magazine-fed, military pattern rifle" and "machinegun" is so slight that there is a man in prison today, I believe, whose firearm malfunctioned, supposedly transforming the former into the latter. Such an occurrence ought to convince a man of Scalia's intellect that there is no distinction between the two that would justify protecting one and not the other. Nor would such distinction justify imprisonment for accidently possessing such a rifle.

-- He correctly points out that the Miller Court decision was consistent with the idea that short-barreled shotguns were not protected. --

That's not a correct pointing out. The Court, in Miller concluded "we cannot say." It did not conclude "short-barrel shotguns are not protected."

The logic that SCOTUS set out in Miller was that arm that is any part of the ordinary military equipment or [which] use could contribute to the common defense is protected.

If Scalia wanted to overturn Miller, he should have done so instead of lying his ass off. He's making a mockery of the legal process, and establishing himself as an outcome oriented hack.

Now, for the law being "what it is," I agree. The NFA is, by fiat and "magic" now constitutional. The government can ban private ownership of select-fire weapons, thanks to Scalia. I totally disagree with your conclusion that Supreme Court should find that the self-loading center-fire rifle of military design is not protected. Scalia directly asserted that m-16s may PROPERLY and CONSTITUTIONALLY be kept from the public. "See Miller" he says, where SCOTUS did just that for short barrel shotguns. That is, the 1934 NFA is Constitutional, so says Scalia. Get over it.

Cboldt said: Had it been a short-barrel shotgun (prohibited, and therefore uncommon except to LEO and the military), Scalia would have found it outside of "typical" "lawful" possession.

Perhaps. What evidence do you have that Scalia would find unlawful a centerfire, magazine-fed, military pattern rifle? Also, what makes you believe that Scalia would support a limit on shotgun barrel length of 18 inches? When faced with having to draw a line, it is much easier to see that there is no place to draw such a line; and certainly no guidance within the Second Amendment to do so.

I certainly share the wish of many that the Heller decision had said even more than it did to protect the right.

But let's also remember all the people who were convinced after the Heller decision that it would not endanger any gun control laws.

Since then four of five Chicago jurisdictions have repealed their bans, San Francisco repealed their ban on guns in public housing, the Ninth Circuit has discovered an individual right to keep and bear arms (which invalidates many of their prior decisions), and lawsuits are sprouting like mushrooms after a spring shower.

There's a long way to go in this process and Heller is just the beginning. By the time it ends, anti-gunners will be hard-pressed to find a good place to focus their fears. So much will be legal that they may well tire of caring about the rest.

Also, how can you be so confident that the Supreme Court won't take a case in which the prosecution hasn't had to prove any criminal intent, in which ammunition selection was critical to felonious transfer, and in which a protected right was transformed into a felony by mechanical failure?

Cboldt said: Had it been a short-barrel shotgun (prohibited, [ ... ] Scalia would have found it outside of "typical" "lawful" possession.

Another point occurs to me. Scalia wrote the Heller opinion, but it is not "Scalia's opinion". It is the concurring opinion of the five justices who voted for it.

To suggest that it is completely Scalia's opinion is to suggest that Scalia had to make no concessions whatever to Kennedy in order to get the majority. It may well have been Kennedy's demand that the decision leave intact the NFA 1934. Would you expect Scalia to leave the DC ban in place simply because he can't get all of his own opinion into the decision?

For all we know, Scalia, Thomas, Alito, and Roberts may all have been smirking while they read the description of Miller as having decided the facts concerning a short-barreled shotgun.

When my daughter was in high school, the teacher attempted to claim that the Second Amendment was a "collective right". I had armed my daughter with much knowledge to challenge such a thing and she was supported by a majority of her classmates. Ten years from now it may be commonplace to teach that IT IS an individual right. Intelligent students will then have a better oppportunity to consider how long a shotgun barrel can be, unprejudiced by liberal nonsense.

You may be impatient with the glacial pace of change. I actually had dismissed the idea of seeing anything like the Heller decision in my lifetime. And now, less than a year later, the Ninth Circuit has already incorporated it against the state and local governments. In another year, I expect that Kalifornia will be shall issue for concealed carry.

-- Also, what makes you believe that Scalia would support a limit on shotgun barrel length of 18 inches? --

Second one first -- he said this limit was established in Miller. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Notice that he characterizes the short barrel shotgun as not typically possessed by law-abiding citizens for lawful purposes. Part of the reason for that is that they are tightly regulated, as are select-fire firearms.

-- What evidence do you have that Scalia would find unlawful a centerfire, magazine-fed, military pattern rifle? --

None, provided the weapon lacks a select-fire facility. However, if it's in the scope of 922(o), (e.g., as M-16s are), then I take him at his word in Heller, where SCOTUS will "recognize another important limitation on the right to keep and carry arms ... " then specifically names the M-16.

-- I certainly share the wish of many that the Heller decision had said even more than it did to protect the right. --

Scalia could have left the misconstruction of Miller and the talk about M-16s entirely unstated, and especially could have omitted the "We also recognize another important limitation on the right" rhetoric. District Courts are already lifting Scalia's language as direct support for finding 922(o) constitutional, where the application of Miller would have found 922(o) unconstitutional. Circuit Courts will endorse upholding the constitutionality of the law, again relying on the plain language of Heller, and SCOTUS will deny cert. There will never be a District or Circuit Court that will find any objection to 922(o), the post-1968 auto-fire ban, etc. We're stuck with those unconstitutional turkeys forever, all "thanks" to Scalia.

-- Since then four of five Chicago jurisdictions have repealed their bans, San Francisco repealed their ban on guns in public housing, the Ninth Circuit has discovered an individual right to keep and bear arms (which invalidates many of their prior decisions) --

Wowee - we can keep handguns at home! The 9th Circuit decision found an individual right (so did the dissent in Heller, FWIW, but they construed it to be "any individual can join the organized militia"), then ruled against the plaintiff and said gun shows at the public fairgrounds is one of those "restricted spaces" described in Heller.

-- Also, how can you be so confident that the Supreme Court won't take a case in which the prosecution hasn't had to prove any criminal intent, in which ammunition selection was critical to felonious transfer, and in which a protected right was transformed into a felony by mechanical failure? -- The case would have to be a loss to the defendant at the Circuit Court level, and SCOTUS would have to care. The Oloffson case, for example, will never get to SCOTUS. Plus, the 922(o) law doesn't include an "intent" element. I don't think the number of people who will wrongly lose years of their lives will amount to the slightest concern at the SCOTUS level. At that level, the meaning of "give a damn" is not the way that mere mortals think of life. These folks are gods unto themselves.

-- Another point occurs to me. Scalia wrote the Heller opinion, but it is not "Scalia's opinion". It is the concurring opinion of the five justices who voted for it. --

JUSTICE SCALIA delivered the opinion of the Court.

-- For all we know, Scalia, Thomas, Alito, and Roberts may all have been smirking while they read the description of Miller as having decided the facts concerning a short-barreled shotgun. --

If so, that's not a good thing. SCOTUS decisions are serious business, not a time to "get funky with old rulings" and convert a case where the charge was dismissed on account of the law being unconstitutional into "Miller was convicted." You can correct the bias and stupidity of your daughter's teachers in your daughter's mind, but SCOTUS justices are handing down THE LAW for the entire US of A, and that law is enforced by government agents who are more than happy to use the deadly force given to them by the people.

If the concessions that Justices have to make, in order to get something that is clearly in the constitution and history (and was clearly found so back in 1939), take the form of utter fabrications, then the system of "law" is demonstrably corrupt.

-- You may be impatient with the glacial pace of change. --

I'm impatient with blatant lies that are promulgated in order to obtain an outcome. Obviously, I tolerate mistakes, etc., but Miller is a VERY easy case, and out of my 1L class, NOBODY misunderstood its holding or premise. That 9 of 9 SCOTUS justices got it wrong is inexcusable - yet they will say (and this is another big fat charade) "this error doesn't matter because it doesn't affect the outcome in Heller." Yeah, but it's going to affect a mess of cases in the future.

That 9th Circuit incorporation (and the rest of the country will follow) is useful to the extent of the substantive right. As of Heller, the substantive right is "you can keep a pistol at home, for self-defense." That's what the 2nd amendment has been reduced to, and yes, it pisses me off.

Cboldt said: As of Heller, the substantive right is "you can keep a pistol at home, for self-defense." That's what the 2nd amendment has been reduced to, and yes, it pisses me off.

I don't think that is true at all. The Heller decision establishes the narrowest possible scope of the protected right, but doesn't come anywhere near the entire scope.

Lower courts have been given the green light to recognize that its a right to "keep and bear", not just to "keep".

I'm also puzzled by your attitude toward the fact that Scalia, Thomas, Alito, and Roberts may have had to compromise to get Kennedy's vote.

Would you rather that cert was denied? Would you rather that Kennedy had sided with the four libs and found a right with no scope at all?

It took a lot of cases to move from "separate but equal" to the situation we have now. But any black person who saw the requirement of integrating the schools as the end of the discussion would have been quite wrong. Brown vs. Board of Education addressed only the narrowest of issues, but the consequences have been profound.

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