Wednesday, November 21, 2007

Part 1 - SCOTUS and The 2nd Amendment ruling (DC v Parker Preview)

When it comes to elections, I am a one issue voter in the end. This issue was the only reason why I voted for Bush in 2000. It was a major issue why I voted for him in 2004 (the other being John Kerry as a person). It is the biggest issue for me in 2008 as well.

I am a one issue voter. The issue is the SCOTUS. Supreme Court of the United States. Some may disagree, but it is the most powerful branch of government. It wasn't always the case, as President Lincoln ignored Chief Justice Roger Taney on habeas corpus during the Civil War, and Andrew Jackson alledgedly said "John Marshall has made his decision, now let him enforce it!" That probably would not happen today. The reason SCOTUS is so powerful is its persuasive authority.

That's not to say it is perfect. The Supreme Court is extremely political and has an activist streak. I went into detail about SCOTUS here and do not want to rehash everything except to say that it needs to go back to its pre Lochner and pre-Roe/Doe roots.

One of the big reasons for SCOTUS being an issue is coming up probably by next June. From SCOTUS Blog

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

The city of Washington’s appeal (District of Columbia v. Heller, 07-290) seeking to revive its flat ban on private possession of handguns is expected to be heard in March — slightly more than a year after the D.C. Circuit Court ruled that the Second Amendment right is a personal one, at least to have a gun for self-defense in one’s own home. (The Court took no action on Tuesday on a conditional cross-petition, Parker, et al., v. District of Columbia, 07-335, an appeal by five District residents seeking to join in the case. The absence of any action may mean that the Court has decided not to hear that case. If that is so, it will be indicated in an order next Monday. The Court also may simply be holding the case until it decides the Heller case.)

The Justices chose to write out for themselves the constitutional question they will undertake to answer in Heller. Both sides had urged the Court to hear the city’s case, but they had disagreed over how to frame the Second Amendment issue.

Here is the way the Court phrased the granted issue:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The original case is Parker v DC, but was renamed for appeal as DC v Heller. I'll have my own contribution on that particular case later as well as 2a legal history.

From a political standpoint, I think this is one of the biggest rulings in the past 20 years. The other is "Planned Parenthood v Casey." Yes, I think this is bigger than Kelo (eminent domain) and bigger than Bush v Gore. Part of the reason is timing. This case will be decided in 2008, bringing gun control as a major issue in politics. Advantage POSSIBLY to the republicans, depending on the nominee. I will say that I am flat out shocked at Rudy's comments.

Rudy Giuliani made the following statement today regarding the Supreme Court’s decision to review the Court of Appeals ruling in Parker v. District of Columbia:

"I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean."

That certainly goes against his history as mayor of New York. Thompson said this:

Here’s another reason why it’s important that we appoint judges who use the Constitution as more than a set of suggestions. Today, the Supreme Court decided to hear the case of District of Columbia v. Heller.

Six plaintiffs from Washington, D.C. challenged the provisions of the D.C. Code that prohibited them from owning or carrying a handgun. They argued that the rules were an unconstitutional abridgment of their Second Amendment rights. The Second Amendment, part of the Bill of Rights, provides, “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.”

The District argued, as many gun-control advocates do, that these words only guarantee a collective “right” to bear arms while serving the government. The United States Court of Appeals for the District of Columbia Circuit rejected this approach and instead adopted an “individual rights” view of the Second Amendment. The D.C. Circuit is far from alone. The Fifth Circuit and many leading legal scholars, including the self-acknowledged liberal Harvard law professor Laurence Tribe, have also come to adopt such an individual rights view.

I’ve always understood the Second Amendment to mean what it says – it guarantees a citizen the right to “keep and bear” firearms, and that’s why I’ve been supportive of the National Rifle Association’s efforts to have the DC law overturned

Thompson has been more consistent on this issue, although the NRA didn't do much on the DC law (which I addressed before and I'll get into again later).

Romney Statement:
"It is my hope that the Supreme Court will reaffirm the individual right to keep and bear arms as enshrined in the Bill of Rights and protect law abiding gun owners everywhere. To further guard this fundamental liberty, as President, I will take care to appoint judges who will not legislate from the bench but will instead strictly interpret the Constitution."

No statements from the others, but it's generally clear on who supports freedom. On the GOP side, Mike Huckabee, Duncan Hunter, and Ron Paul are all solid in their history on the 2nd Amendment issues. On the democrat side, only Bill Richardson has any positive history on this issue.

Part 2 will cover the history of the 2nd Amendment from the founders. Part 3 will cover the courts. Part 4 will cover the DC v Heller (Parker v DC) case.


The Real Sporer said...

Very astute. We absolutely must maintain the WH, at all costs.

Hillary's judiciary would change America much for the worse. The worst vision that a R could have about, say Rudy, still produces a far more traditional, orignial intent and conservative judiciary than Hillary's best scenario.

We got Breyer and Ginsburg with a D president and a D Congress. Can you imagine what we would get with a Democrat congress.

Jared said...

From Noon-2pm on Wednesday, December 5, the Michigan State University College of Law Federalist Society Chapter will be hosting a town-hall meeting on the Parker v. DC case and the individual right to bear arms provided by the 2nd Amendment. The event will feature Alan Gura, lead counsel for the plaintiffs in this case. Anybody is welcome to attend, and if you want more information I would be happy to give it to you. Just email me at

Laci the Chinese Crested said...

“[T]he National Rifle Association is always arguing that
the Second Amendment determines the right to bear
arms. But I think it really is people’s right to bear arms in a
militia. The NRA thinks it protects their right to have Tefloncoated
bullets. But That’s not the original understanding."

—Robert H. Bork, Former Federal Appeals Court Judge

Yes, Robert Bork, that screaming liberal Judge.
(3/14/89, Distinguished Lecture Series, UC-Irvine)

When did Conservative come to mean idiotic in the United States?

Republican Michigander said...

Professor Bork always has had a strong anti-libertarian side to him. That's not an insult to him, just stating a fact. That's part of the reason the NRA also happened to oppose Bork's nomination to SCOTUS. He's supportive of censorship as well. He is consistant, and I respect that about him, although I do disagree. On guns though, he's ignorant.

"Teflon coated bullets" is a bit of hysteria created by the media jackals at NBC which greatly overestimated the penetrating power of those bullets, which were intented to reduce wear on the barrels.

I can throw back liberal professors Sanford Levinson and Lawrence Tribe on the 2nd Amendment as well, let alone the standard conservative/libertarians like Glenn Reynolds and Eugene Vokluch (sp).

BTW - I prefer labs to Chinese Cresteds....