High court to look at ban on handguns

McClatchy-Tribune ^ | Nov. 9, 2007, 12:18AM | MICHAEL DOYLE

[cbkaty]

Justices to decide whether to take up case on strict limits approved in D.C.

WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.

Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia's stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.

"If the court decides to take this up, it's very likely it will end up being the most important Second Amendment case in history," said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.

Henigan predicted "it's more likely than not" that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.

Lawyers are swarming.

Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.'s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it.

From a victim's view: Tom Palmer considers the case a matter of life and death.

Palmer turns 51 this month. He's an openly gay scholar in international relations at the Cato Institute, a libertarian research center, and holds a Ph.D. from Oxford University. He thinks that a handgun saved him years ago in San Jose, Calif., when a gang threatened him.

"A group of young men started yelling at us, 'we're going to kill you' (and) 'they'll never find your bodies,' " Palmer said in a March 2003 declaration. "Fortunately, I was able to pull my handgun out of my backpack, and our assailants backed off."

He and five other plaintiffs named in the original lawsuit challenged Washington's ban on possessing handguns. The District of Columbia permits possession of other firearms, if they're disassembled or stored with trigger locks.

Their broader challenge is to the fundamental meaning of the Second Amendment. Here, commas, clauses and history all matter.

The Second Amendment says, "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."

Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.

"The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice," New York and the three other states declared in an amicus brief.

Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual's right to possess guns.

Clashing decisions

Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.

The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.

If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court — as they then did — they could give the court's conservative majority a chance to undermine gun-control laws nationwide.

[ctdonath2]

I'm not talking about soldiers. I'm talking about members of a well regulated state militia.

So far your explainations have resulted in a distinction without a difference. Both are agents of the state, selected by the state, using state equipment, carrying out state orders.

[Mojave]

It seems that federal bureaucrats think of ordinary citizens as street criminals.

[Mojave]

So far your explainations have resulted in a distinction without a difference.

There's no difference between state governments and the federal government?

Anarchist tripe.

[Mojave]

The sky is just like a navigable river

Cite, please.

[publiusF27]

BUT, I'm saying the second amendment doesn't do that today. Futhermore, even if the Heller court rules it an individual right for every citizen, that still won't put an M-16 in every household.

It's a step along the way. Do you see any potential benefits to having the SC hear the Heller case?

[publiusF27]

That was an opinion on the nature of flight, not a legal opinion about what courts have said. As a flight instructor, I found my job much, much easier if the student was already into boating.

I don’t know much of anything about aviation case law, and whether they have looked to the substantial effects and aggregation principles to justify federal regulation. I’m just saying they wouldn’t have to look so far to satisfy me. The air is like a river. It’s a channel of commerce, and can be subject to federal regulation.

[publiusF27]

Just a ping to point out that my post 1046 is in response to this as well as in response to Mojave.

[tacticalogic]

That’s how you’ve chosen to characterize the members of the militia.

[Mojave]

That was an opinion on the nature of flight, not a legal opinion about what courts have said.

So any legal comparison to navigable water in the Constitution is meritless.

[Mojave]

That’s how you’ve chosen to characterize the members of the militia.

Are they members of the militia or aren't they?

[crickets]

[cbkaty]

[robertpaulsen]

"Do you see any potential benefits to having the SC hear the Heller case?"

Only the one I mentioned: If they find that the second amendment protects an individual right and they don't incorporate.

Since that decision only affects DC residents and still allows the federal government to regulate their weapons and require registration, it's a very small benefit.

Nowhere near what there is to lose.

Do you see it any differently?

[tacticalogic]

We’re having a discussion on the Second Amendment, the right to keep and bear arms, and the how it applies to the militia. Your contribution to that discussion is going to be to present images and snarky comments to paint the militia in the most negative, prejudicial and detrimental way possible. Carry on.

[publiusF27]

So any legal comparison to navigable water in the Constitution is meritless.

Cite, please?

[robertpaulsen]

"Both are agents of the state, selected by the state, using state equipment, carrying out state orders."

Your choice of words is inflammatory and you know it. You phrased it that way to get a reaction and you know it.

That makes you a troll. And I told you I'm not going to play your game.

[publiusF27]

I do see it differently. I think a favorable ruling could spark challenges to quite a few federal gun control laws, and some could succeed. Could 922 (o) survive a “strict scrutiny” test? How about a renewed “assault” weapons ban?

[tacticalogic]

Your choice of words is inflammatory

Apparently being an "agent of the state" is not a good thing.

[Mojave]

Cite, please?

You already admitted that you had none. Nothing equals nothing.

[Mojave]

Are they members of the militia by your definition?

Simple question.

[crickets]

[publiusF27]

OK, I'll try to bring this little sidetrack back to guns.

In the Lopez decision, Rhenquist wrote:

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (" `[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' " (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917)). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g., Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 ("[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C. § 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce

I'm never quite sure what Mojave is saying, but RP, you seem to be suggesting that neither of the first two categories of activity would allow the feds to regulate aviation, and they must resort to the third category. I don't think they need to do that. I think either of the first two applies to airplanes. Do either of you disagree?