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.

[robertpaulsen]

"No, you misunderstood. I think it might be declared that the 2a protects a fundamental right, and it might be incorporated and used against state gun control laws, and I really don’t see what would be so bad about that."

Ah. Then I did misunderstand.

As to "what's so bad about that", it's what I brought up before. I'm concerned how the U.S. Supreme Court will interpret "keep", "bear", and "arms" and what they will consider to be an infringement.

If some State Supreme Court or even some Federal Appellate Court makes a screwy ruling, the damage is limited. Another "penumba of an emanation" ruling by the U.S. Supreme Court concerning the second amendment would affect everyone.

"To ask the question another way, when was the last time someone successfully mounted a 2A challenge to any law?"

Nunn v. The State of Georgia, 1846, is the only one I'm aware of.

[robertpaulsen]

"Is there really any requirement for the commerce being manufactured (putting aside the obvious problems with the idea of "manufacturing commerce") to actually be shipped interstate for Congress to assume authority to regulate it?"

Requirement? It's the definition.

Congress does not have the power, under the Commerce Clause, to regulate commerce unless it's "among the several states".

[tacticalogic]

Congress does not have the power, under the Commerce Clause, to regulate commerce unless it's "among the several states".

Can you give me a specific example of something that isn't "among the several states"? There seems to be some discrepancy between Congress regulating something as "commerce among the several states", and it actually being bought or sold across state lines.

[robertpaulsen]

"Can you give me a specific example of something that isn't "among the several states"?"

A farmer selling fruit from a fruitstand to passing motorists.

Why do you ask? You can't think of any? Do this have anything to do with handguns in DC?

Are you playing your gotcha games instead of debating the subject? Would you like me to start hitting the abuse key and reference your previous attempts at trolling, or will you settle down and make your point?

[tacticalogic]

You’re dancing around the issue of Congress banning firearms and ammunition under the New Deal “substantial effects” doctrine. If you think you’re being abused by my pointing that out, please report it.

[robertpaulsen]

"You’re dancing around the issue of Congress banning firearms and ammunition under the New Deal “substantial effects” doctrine"

If they are, then they're doing so under the power of the Necessary and Proper Clause, not the Commerce Clause. The Commerce Clause covers commerce "among the several states". I told you that.

Congress was using the substantial effects test 20 years before FDR, so don't sell me that "New Deal" and "packing the courts" bs. I ain't buyin'.

[robertpaulsen]

Correction.

Congress The U.S. Supreme Court was using the substantial effects test 20 years before FDR

[tacticalogic]

I don’t care if you buy it or not. If you’re going to report me, do it and be done.

[publiusF27]

I think what Rhenquist was saying could apply to aviation.

But, if there is some nexus between the intrastate and interstate channels, where one is dependent upon the other, then yes.

Such a connection doesn't exist with aviation? Are there court cases in which the feds have relied upon substantial indirect effects and aggregation to assert commerce power over aviation?

[publiusF27]

I'm concerned how the U.S. Supreme Court will interpret "keep", "bear", and "arms" and what they will consider to be an infringement.

No firearms law since 1846 has been considered an infringement, and we've got some burdensome and screwy laws in some places. I don't see how second amendment protection can get any weaker in terms of the kinds of laws that are allowed. I can certainly see how it could get better, or the current state of affairs could be ratified by the court. That would be bad, but in practice would change nothing, since the current state of affairs exists anyway.

There have been calls in Congress for the renewal of the AWB. Just because it expired does not mean it can't come back, but a favorable ruling from the SC might well mean that.

[robertpaulsen]

"Such a connection doesn't exist with aviation?"

I'd be surprised if there wasn't.

"Are there court cases in which the feds have relied upon substantial indirect effects and aggregation to assert commerce power over aviation?"

Only if it was challenged.

Look. My point is that your private, non-commercial intrastate flying is only regulated when you're having a substantial effect on the interstate commerce that Congress is constitutionally regulating. The same is true for guns and drugs.

Excuse me for being blunt, but it appears to me as though your objection is personal, not constitutional -- you don't think Congress should be regulating guns and drugs.

[robertpaulsen]

"No firearms law since 1846 has been considered an infringement"

Many, many have. Just not by the U.S. Supreme Court.

For example, all cases concerning state firearm laws presented to the federal appellate courts were rejected since the second amendment wasn't incorporated and didn't apply to the states. With incorporation, all of those cases can be retried.

All of the federal circuit courts can now hear cases regarding state gun laws, and all the federal circuit courts can give their opinion.

Well, we can probably count on the 5th Circuit and the DC Circuit to rule favorably. That leaves the 1st Circuit, the 2nd, the 3rd, the 4th, the 6th, the 7th, the 8th, the 9th, the 10th, and the 11th -- all of which have previously ruled a collective militia/state right.

2 against 10. Two say concealed carry is part of "to keep". Ten say it's not. It goes to the U.S. Supreme Court. Five justices decide for the whole country. I don't like the odds.

[publiusF27]

Look. My point is that your private, non-commercial intrastate flying is only regulated when you're having a substantial effect on the interstate commerce that Congress is constitutionally regulating. The same is true for guns and drugs.

It could also be regulated as utilizing channels and instrumentalities of IC if you ask me. Aviation is just a bad example for this discussion.

Child labor laws, affirmative action programs, farm subsidy programs, many other subsidy programs, and yes, drugs provide better examples for a discussion of how interstate commerce power relates to guns. It's about so much more than guns and drugs for me. We've talked a little about Morrison in the past, and about then-judge Roberts saying indigenous California toads don't affect interstate commerce. Wickard has come up, and that's in part about farm subsidies, but many other subsidies also rely on commerce power. We talked quite a bit about assisted suicide and commerce power in the Oregon case. It's about the size and scope of the federal government for me, and I'm not the one to blame if gungrabbers follow in the legal trails blazed by drug warriors. I can't help it if Raich decided Stewart. ;)

BTW, at the end of that revised opinion in the Stewart case, Judge Kozinski said this:

[8] 4. Stewart also contends that the Second Amendment guarantees him the right to possess machineguns, as well as the right to possess firearms generally despite his prior felony conviction. We previously held that this claim is squarely precluded by Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), and Raich did nothing to change that. See Stewart, 348 F.3d at 1142 (quoting Silveira, 312 F.3d at 1087).

Heller could do something to change that. We could find out whether regulating the possession of weapons by felons is OK under "strict scrutiny" and we could also find out whether the regulation of homemade machine guns under the commerce power withstands that test for non-felons.

The second amendment hasn't been an impediment to gun control. A favorable ruling could change that, and even an unfavorable one would likely generate some legislative response, as happened after the Kelo case, and would only ratify the current state of second amendment protection for the individual right to bear arms.

[publiusF27]

For example, all cases concerning state firearm laws presented to the federal appellate courts were rejected since the second amendment wasn't incorporated and didn't apply to the states. With incorporation, all of those cases can be retried.

But if someone is going to the federal government asking for protection of second amendment rights, and gets turned away because there is no such federal protection, that's the end of the road. That's a good thing? I can go to the feds and say that my state is somehow violating my first amendment rights, and they might tell my state to cut it out. I can't go to the feds and say that my state is somehow violating my second amendment rights, because I only have the right to a pointed stick as far as the feds are concerned. Why would it be so terrible if we could attack state laws as infringements on the 2A? The cases can be retried, and the gungrabbers can lose.

2 against 10. Two say concealed carry is part of "to keep". Ten say it's not. It goes to the U.S. Supreme Court. Five justices decide for the whole country. I don't like the odds.

If I live in one of the ten, I'm already living under a collective/militia interpretation, meaning things really can't get worse. Roberts, Alito, Scalia, Thomas, and... who?

Kennedy. He respects sound scholarship, and the attorneys for Parker/Heller have done their homework. The 2A was intended to protect a fundamental individual right to keep and bear arms, and I think they should take the case and that our side can win that argument.

[robertpaulsen]

I don’t disagree. I just think you’re being overly optimistic, that’s all.

[robertpaulsen]

"Why would it be so terrible if we could attack state laws as infringements on the 2A?"

It's not the attack. It's the result.

My point is that in 10 out of the 12 circuits you're attacking gun laws where the appellate courts are not friendly. They're going to rule against you.

Yes, you're no worse off. But now that Circuit Court is on record for that gun issue, and the U.S. Supreme Court will have to take that into consideration in the future when they make their decision on that issue.

"If I live in one of the ten, I'm already living under a collective/militia interpretation, meaning things really can't get worse."

Those ten had no say on the concealed carry issue. Those were state decisions, not federal.

But once incorporated, those concealed carry laws can be challenged in federal court.

[xsrdx]

the second amendment protects all weapons for all persons for all uses from infringement by all levels of government; federal state and local.

Exactly!

[publiusF27]

But once incorporated, those concealed carry laws can be challenged in federal court.

We might lose the argument that they are protected under the 2A, but how could state concealed carry laws suffer beyond that from 2A incorporation? The 2A says nothing that could be used to prohibit states from allowing concealed carry, and I don't see how even the most creative court could find that state concealed carry laws violate the 2A. How would a state CWP law be challenged under an incorporated 2A? The only possible challenge I can think of would be one saying concealed carry is none of the state's business, and we should be allowed to carry concealed with no permit, as in Vermont.

Use my state as an example. What exactly might happen to Florida's CWP laws under your scenario? How would it get challenged, on what basis, and what might happen to jeopardize our laws?

[Mojave]

Looks like you’re ashamed of your “militia”.

[Mojave]

You'll notice I was talking about soldiers vs. militiamen, not state vs. federal

Federal soldiers vs. state "militiamen".