McDonald v Chicago in

I have mixed views about the Chicago gun case. To put it best, I concur with the judgement. I am not a believer in "substantive due process", only procedural due process. I believe that the Bill of Rights was intended to apply to the states through the 14th Amendment's Privileges and Immunities provisions. I would have loved to have seen Slaughterhouse, Cruikshank, and Presser eliminated completely. SCOTUS did not address those cases which was a shame. I tend to agree much more with Justice Thomas's partly concurring and concurring in the judgment opinion. I do have strong biases against the Doe, Roe, and Casey cases however.

SCOTUS followed the current "selective incorporation" process, much the same way as the 1st amendment was passed on to the states.

I don't believe in the perfect being the enemy of the good, and overall this was good. I think it could be better, but this is a big improvement over crooks and cops being the only ones to have the guns. When only the police have guns, the result is a police state.

Regardless of that, one scary determination is that we are one judge away from losing this. Obama's Sotomayor is who we thought she was and took her Cruikshank support to SCOTUS. Ginsburg's civil liberty support ends at those she doesn't like. Stevens and Breyer are well known in their views and are no surprise. It is absolutely critical that a firewall is built to stop Obama from replacing one of the five.

This isn't over, not by a longshot.

Update in McDonald v Chicago (and list of Congress members who support the Chicago gun ban)

I most recently posted the filings and background on December 9th.

If those who are following the 2nd and 14th Amendment case McDonald v. Chicago,  also known as the Chicago Gun Case, click on the December 9th link above for background information and comments on the pro-side filings.

Before and after that, go to ChicagoGunCase.com for the primary sources and filings from all sides. It's a pro-2a website run by the attorneys for McDonald, but all the briefs are there.

Today, the anti-side's briefs are coming in. The NAACP and Brady groups officially aren't on "either" side, although their arguments favor Chicago, obviously with their long time anti 2nd Amendment stances.

The official anti's briefs are arriving today. Go to the Chicago Gun Case site linked above if you want to read them - or the pro-side.  They are.

Educational Fund to Stop Gun Violence - an offshoot of  CSGV, originally founded as the National Coalition to Ban Handguns. They still support a ban. They oppose incorporation of the 2nd Amendment, and strongly attack the founders reason for the 2nd amendment's safeguard against tyranny (calling it insurrectionist), and misread Federalist 46. Let's get one thing straight. It is a safeguard and DEFENSE against tyranny. Not bad results of elections or bad decisions of politicians. Nobody, not even most of the "militia groups" argue for that. This read more like a political rant against a strawman hypothetical situation than a legal brief, and it is a rather incoherent argument.

ADL - Similar to EFSGV, although much better argument written (even though I 100% disagree with it). At least they gave a public policy argument and use four whackos as an example to back it up. It doesn't have much to do with the case, but they even admit that, and argue what they consider judicial restraint. I don't agree with the brief, but I can respect it as decent work and a valid argument for one's client. Disagreement doesn't mean crap work.

US Conference of Mayors - Generally a simple pro-gun control arguments. I find this headline interesting. "The Second Amendment protects a largely obsolete 18th Century right."

"Public Health Organizations" - Remember why I bashed smoking bans and the people behind them? They don't want to stop with smoking. According to these people, anything they think is harmful needs to be banned or strictly regulated. These people remind me of Dr. Cacto, the villain in the movie Demolition Man (with Sylvester Stallone, Sandra Bullock, Denis Leary, and Wesley Snipes). American Public Health Association is behind this one. They regurgitate the discredited Arthur Kellermann anti-gun case control study out of King County, Washington.

States of Illinois, Maryland, and New Jersey through their Attorney Generals - Similar arguments to Chicago briefs.

Cities of Winnetka, Evanston, Skokie, and Illinois Municipal League.

Chicago Board of Education and the Joyce Foundation funded anti-gun groups (VPC, etc)

Cities of Baltimore, Columbus, Cleveland, Oakland, Richmond CA, Sacramento, San Francisco, Portland Oregon, Philadelphia, and Seattle, along with Crook, I mean Cook County Illinois.

Some prosecutors, including Kym Worthy in Wayne County, MI.



53 Congressmen and women support the Chicago Gun ban.

Gary Ackerman - D - New York 5th District (NY-05)
Tim Bishop - D - New York's 1st District (NY-01)
Robert Brady - D - Pennsylvania's 1st District (PA-01)
Lois Capps - D - California's 23rd District (CA-23)
Michael Capuano -  D - Massacusetts 8th District (MA-08)
Yvette Clarke - D - New York 11th District (NY-11)
William Lacy Clay - D - Missouri's 1st District (MO-01)
Gerald Connelly - D - Virginia 11th District (VA-11)
Joseph Crowley - D - New York 7th District (NY-07)
Elijah Cummings - D - Maryland 7th District (MD-07)
Danny Davis - D - Illinois 7th District (IL-07)
Diana DeGette - D - Colorado 1st District (CO-01)
Elliot Engle - D - New York 17th District (NY-17)
Sam Farr - D - California 17th District (CA-17)
Chaka Fattah - D - Pennsylvania 2nd District (PA-02)
Luis Gutierrez - D - Illinois 4th District (IL-04)
Miriam Hirono - D - Hawaii 2nd District (HI-02)
 Michael Honda - D - California 15th District (CA-15)
Steve Israel - D - New York 2nd District (NY-02)
Jesse Jackson Jr - D - Illinois 2nd District (IL-02)
Sheila Jackson Lee - D - Texas 18th District (TX-18)
Henry Johnson - D - Georgia 4th District (GA-04)
Patrick Kennedy - D - Rhode Island 1st District (RI-01)
Carolyn Kilpatrick - D - Michigan 13th District (MI-13)
James Langevin - D - Rhode Island 2nd District (RI-02)
John Larson - D - Connecticut 1st District (CT-01)
John Lewis - D - Georgia 5th District (GA-05)
Nita Lowey - D - New York 18th District (NY-18)
Carolyn McCarthy - D - New York 4th District (NY-04)

James McGovern - D - Massachusetts 3rd District (MA-03)
Carolyn Maloney - D - New York 14th District (NY-14)
Doris Matsui - D - California 5th District (CA-05)
Gregory Meeks - D - New York 6th District (NY-06)
George Miller - D - California 7th District (CA-07)
Gwen Moore - D - Wisconsin 4th District (WI-04)
James Moran - D - Virginia 8th District (VA-08)
Jerrold Nadler - D - New York 8th District (NY-08)
Grace Napolitano - D - California 38th District (CA-38)
Bill Pascrell - D - New Jersey 8th District (NJ-08)
Donald Payne - D - New Jersey 10th District (NJ-10)
David Price - D - North Carolina 4th District (NC-04)

Mike Quigley - D - Illinois 5th District (IL-05)
Charles Rangel - D - New York 15th District (NY-15)
Steve Rothman - D - New Jersey 9th District (NJ-09)
Lucille Roybal Allard - D - California 34th District (CA-34)
Bobby Rush - D - Illinois 1st District (IL-01)
Linda Sanchez - D - California 39th District (CA-39)
Janice Schakowsky - D - Illinois 9th District (IL-09)
Jose Serrano - D - New York 16th District (NY-16)
Louise McIntosh Slaughter - D - New York 28th District (NY-28)
Fortney Pete Stark - D - California 13th District (CA-13)
Edolphus Towns - D - New York 10th District (NY-10)
Debbie Wasserman Schultz - D - Florida 20th District (FL-20)
Anthony Weiner - D - New York 9th District (NY-09)
Lynn Woolsey - D - California 6th District (CA-06)

I noticed all of them were Democrats. Most of them are in safe seats, but in a good years, we can reduce these numbers. Connelly, Israel, Bishop and Price can all be beaten in a very good year. Maybe even McCarthy, but that's really pushing it. Connelly and Bishop are the best bets. 

SCOTUS to hear McDonald 2nd and 14th Amendment case

This case, McDonald v Chicago, is one of the biggest cases in SCOTUS (Supreme Court of the United States) history. It is the most important 2nd Amendment case in history, and one of the biggest in regards to the 14th Amendment. This is a rare direct shot against some bad precedence. In order to understand this case some background is needed.

Back in November of 07, I had a five part series over the history and interpretation, and of the 2nd Amendment by the courts. This was before the DC v Heller ruling.

Part 1 was an overview and a preview of DC v Heller (Then Parker v DC)

Part 2 was a focus on the original intent of the founding fathers.


Part 3 focused on the pre-Miller cases

Part 4 focused on the Miller case

Part 5 was a preview of DC v Heller


Those were written before the ruling on Heller. Other related posts I've had on Heller are these.

Amici

My comments on Heller


That leads to the current issue. Incorporation. The 2nd Circuit, led by now SCOTUS Justice Sonia Sotomayor ruled against it. The 9th circuit of all places, supports it under a due process claim. The 7th Circuit upheld the ban, setting up this case to be a SCOTUS showdown. The general history of incorporation is through "substantive due process" or "equal protection." The Privileges and Immunities clause is almost never used.

Soon, the Chicago Gun Case is being heard by SCOTUS. You can find all the background, the filings, and opinions at the Chicago Gun Case website run by the Second Amendment Foundation and Gura and Possessky law firm. Alan Gura was the attorney for Heller and he is back again for the McDonald case.

This case is similar to Heller in that it is a gun ban case regarding the 2nd Amendment. However, Heller was fighting federal law. McDonald is fighting a local ordinance which is a whole different matter. The precedent is long and bad going back to the post-reconstruction days following the Civil War.

After the Civil War, there were three constitutional amendments known as the Reconstruction Amendments. They were the 13th, 14th, and 15th Amendments. The 13th eliminated slavery (the Emancipation Proclamation only eliminated it in Confederate States). The 15th addressed voting rights. The 14th Amendment is at issue in the McDonald case and reads as follows.

|'''Section 1.''' All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

'''Section 2.''' Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

'''Section 3.''' No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

'''Section 4.''' The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The two provisions are at the heart of this case. Due Process is the backup plan and the conventional argument. The home run argument is Privileges and Immunities. McDonald is going for the home run, as seen in his brief. This is a real ballsy brief to say the least. It is 91 pages and most of it is attacking 136 years of bad precedence going back to the infamous Slaughter-House cases. Much less of it addresses substantive due process, which is the more conventional argument these days.

One of the most universally condemned SCOTUS decisions was the Slaughter-House cases. Most conservative and liberal legal academics alike agree that it was a poor decision. Slaughter-House was an 1873 decision that gutted much of the 14th Amendment. Most of the case was not related to civil rights or even argued. However, the court went beyond what was expected of a case dealing with a New Orleans butcher industry. In the words of Justice Miller

In the case of Paul v. Virginia,24 the court, in expounding this clause of the Constitution, says that 'the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter [83 U.S. 36, 77] States under their constitution and laws by virtue of their being citizens.'

The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.

Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

In short, according to Slaughter-house, which has not been completely overturned, states can take away rights because a state citizen is different than a US citizen. The Slaughter-House line of cases lead to the Cruikshank and Presser cases which said that the Second Amendment applies only to the federal government.

From Cruikshank, Justice Waite writing the opinion:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter-House Cases, 16 Wall. 74.

And Cruikshank (1876) comes from Slaughter-House. It gets worse, much worse.

The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.

You read that right. The fist amendment protections are limited to the national government alone. "Bullshit," you say. Today, this is no longer the case, but that was the case in 1876. That is their view of the Bill of Rights. The same reasoning they used in the first amendment, applied to the second Amendment. That reasoning for the second amendment is still in affect today, and one of the favorite talking points among the left today. If you love Cruikshank, you better love all of it. I don't like any of it. Checks and balances in favor of freedom are good for our country.

More from Justice Waite and the Court:

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

And this.

The Fourteenth Amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.

Presser (1886) reaffirmed Cruikshank. Presser can be read here. The opinion was written by Justice Woods. It was still the Waite Court in that period. It repeats Cruikshank when it comes to the 2nd Amendment. The last case SCOTUS addressed regarding the 2nd Amendment and state laws is Miller v Texas, which did not raise a 14th Amendment objection. Bad move. They followed Cruikshank, and added this.

And if the Fourteenth Amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court. In Spies v. Illinois, 123 U. S. 131, 123 U. S. 180, objection was made that a certain letter was obtained from the defendant by an unlawful seizure, and the constitutional immunity was set up in the Supreme Court of Illinois, as well as in this Court, but it was not made on the trial in the court of original jurisdiction. It was held, both by the Supreme Court of Illinois and by this Court, that the defense should have proven that the letter was unlawfully seized by the police, and should then have opposed its admission upon the ground that it was obtained by such unlawful seizure. Said the Chief Justice:

"As the supreme court of the state was reviewing the decision of the trial court, it must appear that the claim was made in that court, because the supreme court was only authorized to review the judgment for errors committed there, and we can do no more. . . . If the right was not set up or claimed in the proper court below, the judgment of the highest court of the state in the action is conclusive, so far as the right of reviews here is concerned."

That is the binding precedence when it comes to the Second Amendment and state/local laws, at least until now. Presser, Cruikshank and Slaughter-House can be knocked out. McDonald is attempting to do just that, starting with Chicago.

The McDonald brief reads much like a history thesis, reintroducing John Bingham's thoughts who was the author of the first clause of the 14th Amendment. Much of the brief centers around the Northern originalist though in that period. John Bingham, Jacob Howard (Reconstruction Committee) and Thaddeus Stevens. It was understood and mentioned specifically by Stevens, that the Privileges and Immunities in the 14th Amendment referred to the Bill of Rights in the US Constitution. Obviously that includes the Right to Keep and Bear Arms. The Connecticutt Governor in 1866 was complaining of guess what...gun grabbing. Page 57 of the PDF file. - http://www.chicagoguncase.com/wp-content/uploads/2009/12/08-1521ts.pdf

McDonald asks the court specifically to overturn Slaughter-House, Cruikshank, and Presser. Charles Black (involved in Brown v Board of Education), who wrote "A New Birth of Freedom" (One of my textbooks I had to read) was cited in this brief. He stated that Slaugher-House was "probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court." I'd argue Dred Scott, but Slaughter-House is a close second. Most scholars would probably cite Plessy v Ferguson in 1896, but I doubt that would be around if it wasn't for Slaughter-House and its cousin, the "civil rights cases" of 1883.

This brief also argues for relief under substantive due process, but that's not the significant home run attempt here.

ChicagoGunCase.com has all of the filings on their site, including the Amici Curiae of interest groups and others.

The NRA brief argued more strongly for due process, but did mention Privileges and Immunities as an alternative.

The Cato Institute attacked Slaughter-House.

The liberal Constitutional Accountability Center supports McDonald as well in a quite strong brief.

The Conservative Center for Constitutional Jurisprudence (Ed Meese) also had a supportive brief for McDonald on Privileges and Immunity grounds.

The libertarian Institute for Justice agreed with both the liberals and the conservatives.

37 States including Michigan signed a brief supporting McDonald. Thank you Mike Cox. Members of Congress also signed a support brief. Levin and Stabenow did not sign this. What a shocker. However, Dave Camp, John Dingell, Pete Hoekstra, Thad McCotter, Candice Miller, Gary Peters (That shocks me with his State Senate record), Mike Rogers, Mark Schauer (another shocker), and Bart Stupak all signed it. Only Vern Ehlers, John Conyers, Sander Levin, and Carolyn Kilpatrick did not among out house reps. Those were mostly on due process arguments. A state legislature brief was filed. Some Michigan state reps signed on board that brief. Brian Calley, Kevin Elsenheimer, Rick Jones, Mike Lahti, Richard LeBlanc, Matt Lori, Andy Neumann, Paul Opsommer, Randy Richardville, and Joel Sheltrown all signed their names to supporting McDonald.

Others supporting McDonald are think tanks from all over the spectrum, law enforcement groups (public policy grounds), several professors, and some prosecutors.

The anti-gun Brady Campaign and anti-gun NAACP filed briefs in support of neither party. Brady is pushing for "rational basis" review instead of the proper strict scrutiny standard in protecting fundamental rights. The NAACP brief does not want Slaughter-House addressed in this case and focused on public policy reasons to implicitly support the ban.

There is some controversy with the attempt to take out Slaughter-House, even among libertarians. Some interesting commentary at Reason Magazine, as well as by Professors Olin Kerr and Randy Barnett at Professor Volokh's blog.

As someone who is not all that fond of substantive due process (neither Lochner nor the abortion cases) I happen to support Alan Gura and McDonald's gutsy move. The Privileges and Immunities clause has been neglected since the Slaughter-House line of cases. It needs to be overturned. Without Slaughter-House, there is no Cruikshank or Presser, which was worse. There might not even have been Plessy if it wasn't for Slaughter-House. I am mostly textualist in my interpretations, and originalist when there is any ambiguity. The 2nd Amendment is clear. The 14th Amendment is even clearer. The intent is clear and open for all to read. It's time that the Bill of Rights - ALL of them, are officially incorporated through the 14th Amendment's Privileges and Immunities clause. This is about the Bill of Rights, no more, no less.

Smoking and Judges

Two things here.

First, Mike Hatty is the newest circut judge here in Livingston County. I don't really know him that well and only met him a couple of times. From what I do know, he's a nice guy and a much better pick by Granholm than the last pick. Best of luck to Hatty. There will probably be much less dissention on this pick than the last one.

The ban on private businesses to control their smoking decisions passed the state house with exceptions for Detroit Casinoes, a special interest in their own right. This big government and anti-freedom measure passed 73-31. The good news is that Cindy Denby and Bill Rogers sided with freedom in their votes. We'll see what the Senate does. I hope they kill this thing and concentrate on the important stuff like the budget.

Lastly, The Right is trying to rile up the grassroots against Sotomoyer. I'm not ready to fire off both barrels on this just yet. Call it pragmatism on my part. I'm waiting and seeing more before I comment. There's an old saying that is running through my head. Take what you can get. There's 59 democrat votes in the senate so whoever picked will likely get in. I remember the fights over the AG position with Clinton. His first pick was Zoe Baird. His 2nd pick was Kimba Wood. Now those two may have ended up as awful picks, but could have have been worse than the Butcher of Waco, Janet Reno? Don't forget than thanks to Reno, we were stuck with Jamie Gorelick and Eric Holder who both have done as much damage to this country as Reno did. Hindsight is 20/20, but I'd rather have taken my chances with Baird or especially Wood than Reno.

I'd rather take my chances with a Sotomayer than a nutter like William O Douglas. My gut feeling is that she's another David Souter or John Paul Stevens, not a Douglas, or a William Brennan (who I respect, although disagree on most things outside of Criminal Procedure). My concern is that she's another functionalist lightweight like Sandra Day O'Connor, Anthony Kennedy, Betty Weaver (I'd vote for Cavanaugh over Weaver even though he's more liberal.), or Warren Burger. Burger especially, who I consider the worst SCOTUS judge in the past 30 years. I'm not confusing Burger with Earl Warren either.

My advice to the right on Sotomayer. Don't fire off just yet, unless you are sure of the consequences. With 59 Democrat votes, this needs to go to an up or down vote. Save the fillibuster for someone like Cass Sunstein or a clone of William O Douglas. I'm not saying that Republican senators should vote for her, but they should wait and see until after the hearings, and they need to bring this to an up/down vote. The last thing I want to see is to trade off a Souter liberal for a Cass Sunstein or Erwin Chemerinsky radical, just as we were stuck with Janet Reno, Jamie Gorelick, and Eric Holder.

Obama picks Sotomayor for SCOTUS

I don't know a lot about her outside the fact that she's currently on the 2nd Circuit Appeals. At least she has a lot of judicial experience and has a record. With Obama, I can almost say for 100% certain we won't get a strict constructionist. I think this choice could have been worse based on what I've seen so far. Granholm. Sullivan. Sunstein.

From what I do know, this is probably intended as a save pick to save Obama a headache from court politics. The GOP can not afford to anger American voters of Latin American ancestry. Sotomayer has had judicial experience as well.

Right now, I'm holding my fire on whether this should be a fight the GOP picks. We should wait and see for now, and take a closer look at her record before getting the pitchforks out.

Chrysler, Specter's defection (good riddance), Pennsylvania grassroots v estabishment, Souter

A lot of major things have gone on the past week that I haven't posted about because of my time constraints.

First, Chrysler declared bankruptcy. Who knows what will happen. It's now in the hands of a judge. In Bankruptcy court, judges are a blind draw, and they drew Arthur Gonzalez (who was also the judge in Enron and Worldcom). At least they didn't draw a rookie. Judges have a lot of discretion in bankruptcy law, and there's a lot of speculation on what will happen, as well as a lot of people running their mouths. I have little to almost no knowledge of bankruptcy law, so I won't be making any predictions here. I'm not happy with some of the actions taken by the Obama foreign car loving task force, but that's no longer the big issue here with this filing.

Secondly, Arlen Specter took the path of less resistance for 2012 and switched parties.

A bunch of FOOLS are yapping about this being the social issues and the far right, yadda yadda yadda. Bullshit. The GOP establishment in DC supported him, and was going to do so against Toomey again. The RNC supported him. The NRSC supported him. Bush campaigned for him in the last election. So did the more conservative senator at the time Rick Santorum (at the cost of some of his base). The NRA endorsed him. Against Toomey. That would likely happen again. Most DC establishment will back the incumbent. Period. Most PACS will support an incumbent unless there's a bad history on those issues. That wasn't changing in 2010.

It is not new that Specter had some union support. It is not new that Specter was pro-abortion to a degree. It is not new that Specter was not a social conservative at all. That was not held against him here. He had a lot of Washington support, and would have had it from the Republican establishment, even from conservatives. He's actually been generally good on firearms issues for someone from Philly, so that's not been an issue with him. The NRA endorsed him - even against Toomey. This isn't new, and wasn't changing in 2010.

Specter did not switch parties because the Republican culture in Washington DC disliked him. They didn't and they supported him. Senator John Cornyn of Texas was one of his biggest backers, and he's the head of the NRSC. Specter switched parties because the primary voters in Pennsylvania had enough of his 30 years and Washington and are about to send him home. What was the straw that broke the back? It wasn't social issues. It was the big spending. We have had ENOUGH of the big spending. The grass roots has had enough. We had enough of the bridges to nowhere, the Bush spending, and the Obama spending that is 100 times worse than even the Bush spending. Specter is a big part of the problem. See ya. DO let the door hit you on your way out.

Now I'm not a big fan of purges. However, there needs to be a limit. Part of the major problem with the GOP the last eight years is that they acted like democrats on the fiscal issues outside of tax cuts. Tax cuts work great, but they need to be accompanied by spending cuts. The problem is credibility. Every single time the republicans try to run as democrat-lite, it KILLS us. There needs to be difference between the parties. Now I don't expect every Republican candidate to be a cookie cutter. The Mark Kirk distict in Illinois North Shore could not be won by an ideal Republican candidate in another somewhat democrat leaning district, Michigan's 1st (Stupak) They would get killed in each other's district. I understand that.

However, there needs to be a minimum standard for Republican candidates. Low taxes, lower spending and less government. Voters at the minimum, should be able to expect that from the Republicans. This is the worst aspect of Bush's presidency. We no longer are known for less government. That needs to change, and change fast.

Third, Pennsylvania's primary. Hotline said it best. STAY AWAY FROM MY (their) PRIMARY This is the one that's pissing me off. Right now, both the NRSC and DSCC is rumored to be playing games in this primary. First off Pat Toomey has won a democrat leaning house district three times. His seat voted for Gore and I believe Kerry at the same time it voted for Pat Toomey and Charlie Dent. Pat Toomey replaced a democrat, Paul McHale. He won that district by 10 points. Pat Toomey did not represent the Lancaster or York suburbs. He represented the Leigh Valley in Eastern PA. Allentown and Bethelem. He won that seat in 98, 2000, and 2002 - despite Gore and Ed Rendell. Pat Toomey is not a joke candidate, and he has won independent and democrat votes.

The NRSC is rumored to push one of their own candiates. I hope that backfires on them if they do so. This is a choice for Pennsylvanians. We have primaries in this country for a reason. We do not have coronations. After seeing the results of Washington based politics in the GOP over the last eight years, it's been a disaster. Time to step aside and let the experts take over. The voters in the primary election. You people in the NRSC were a DISASTER in 06 and 08 with your games. My advice to republicans reading this. Until they prove otherwise, don't donate a dime to NRSC/NRCC and only give to candidates.

Many democrats there are not happy that the Democrat leadership is supporting Specter in their primary. They don't trust him either. Specter is out for Specter. Period. He switched because the Republican voters in Pennsylvania had enough of him and were going to vote for Pat Toomey. They had enough of the spending. So he's going to take his chance in the democrat primary. We'll see how they like a candidate who was a major supporter of the war, the death penalty, the Patriot Act, and Clarence Thomas. Why should the democrats vote for Specter, when they can get a real democrat in the primary?

If both establishments run their people, I hope they both lose the primary, just to send a message. These fools still haven't gotten yet. It's the Peter principle in action.

Fourth - The retirement of Souter. Many on the right believe the sky is falling and some are posting ridiculous speculation that the pick will be Bill Ayers or someone like that. That's ridiculous. Won't happen.

This isn't the worse case scenario. On an ideological basis, he's probably the 2nd or 3rd most left wing (behind Breyer who is the Scalia of the left and MAYBE Stevens). Souter is also 69 years old, the youngest of the liberal wing. Souter could have possibly served another 10-20 years if he wanted with today's life spans. The one real bad thing of his retirement IMO is the 4th Amendment implications with the cases like Arizona v Gant possible going the other way. Souter was the swing vote on that issue.

On the Liberal side
Stevens is 89
Ginsburg is 76 (and fighting Pancreatic Cancer, good luck to her there)
Breyer is 70
And Souter is retiring at 69

On the Generally Conservative side
Scalia is 73
Thomas is 60
Roberts is 54
Alito is 59

And the swing vote, Kennedy, is 72

The worse case scenario Obama can do is put someone crazy on there in philosophy like Cass Sunstein, Erwin Chemerinsky, or Harold Koh and who is about 45 years old or so. The second worst case scenario is appointing Granholm who is about as qualified to be a SCOTUS justice as I currently am based on experience. More than likely Obama will be picking someone from the far left (difference than crazy far left like Sunstein) and between 50-55. I hope it's not one of Reno's crew (Eric Holder, Seth Waxman or Jamie Gorelick) or the Chermerinsky crowd. We'll see what happens.

Volokh has some good discussion about this

NRA to expose gun grabber Obama

The NRA has a fairly lenient policy when it comes to guns. You can screw up a couple of times and still get a good rating. Even multiple times if you vote right on a couple of major bills, like Joe Schwarz did. The Cult of Obama's record is horrific however, and the NRA needs to kick Jim Jones' ass. He's a con man, but it's for this con job to be exposed.

From Politico

“Our members understand that if Barack Obama is elected president, and he has support in the Senate to confirm anti-gun Supreme Court nominees, [the District of Columbia v. Heller decision] could be taken away from us in the future,” Chris Cox, head of the NRA’s political arm, told Politico.

That is the number one key. Obama voted against John Roberts. Obama voted against Samuel Alito. Those two made the difference in that decision. Now what did Obama say about SCOTUS nominees?

From MSNBC, hardly a conservative site.

Obama hinted that the court's recent decision in Gonzales v. Carhart -- which upheld a ban on partial-birth abortion -- was part of "a concerted effort to steadily roll back" access to abortions. And he ridiculed Justice Anthony Kennedy, who wrote that case's majority opinion. "Justice Kennedy knows many things," he declared, "but my understanding is that he does not know how to be a doctor."

Obama also won a laugh at the expense of Chief Justice John Roberts, saying that judgments of Roberts' character during his confirmation hearings were largely superficial. "He loves his wife. He's good to his dog," he joked, adding that judicial philosophy should be weighted more seriously than such evaluations. "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

The Supreme Court justice's job is simple. It is to read the Constitution, read the law, and interpret it. Justice is supposed to be blind. It is not supposed to be legislative, or to even care what the criteria is. The other criteria is more important at Circuit Court level when it is time to dole out sentencing.

Back to the Politico article:

Since 2000, Democrats have made a conscious decision to avoid alienating gun owners and Second Amendment enthusiasts, as many in the party believe a NRA-stoked backlash cost Al Gore his home state of Tennessee , as well as West Virginia and Arkansas, in the 2000 presidential election. In the days leading up to Election Day four years ago, Democratic nominee Sen. John F. Kerry (Mass.) even went so far as to symbolically court gun owners, donning camouflage and hoisting a 12-gauge in what turned out to be a goose hunt in more ways than one.

The democrats haven't changed. While you have a few friendlies in rural and some social conservative and economic populist areas, along with a few schitzo types like Harry Reid and Pat Leahy who can go either way, most in congress and leadership are staunchly anti. Pelosi, Schumer, Conyers, Kennedy, Kerry, Obama, Clinton, Lautenberg, Boxer, and Feinstein for starters. They still run the show. What has changed is that these same people know that gun grabbing is a loser and will give politispeak in an attempt not to scare gun owners while they continue to vote anti-rights.

“Sen. Obama has always believed that the Second Amendment protects the right of individuals to bear arms and will uphold the constitutional rights of law-abiding gun owners, hunters and sportsmen as president,” said spokesman Tommy Vietor. “Sen. Obama also believes that we can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals.”

That's a pile of crap. I'm not drinking your flavor-aid, Jim, I mean Barack. First off son, Obama voted against Roberts and Alito. Secondly, he never signed the amicus brief supporting the end of the DC ban (McCain who isn't perfect, did). Jim Jones voted in 2005 or 2006 (ban on firearms lawsuits amendment) to give the attorney general power to ban all rifle centerfire ammunition that may possibly penetrate a vest (That's all of them except a .22 as vests protect against pistol rounds, not rifle rounds. Obama also supported junk lawsuits against firearms manufacturers. As a state senator he voted against supporting immunity for those who defended themselves in their homes with a firearm. Lastly, as a candidate for state senator he supported a total ban - like the one challenged in court right now in Chicago.

As far as the DC gun ban goes, Obama has had more positions on this issue than the guests on the Maury Povich or Jerry Springer shows. Besides that questionaire he filled out supporting a handgun ban, there's these statements.

February 15th in Milwaukee:

There's been a longstanding argument among constitutional scholars about whether the Second Amendment referred simply to militias or whether it spoke to an individual right to possess arms. I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation....I think that local jurisdictions have the capacity to institute their own gun laws...The City of Chicago has gun laws, as does Washington, D.C. I think the notion that somehow local jurisdictions can't initiate gun safety laws to deal with gang-bangers and random shootings on the street isn't borne out by our Constitution.

Bans are not common sense regulations, and unless you are real stupid for a constitutional law professor, you know what "Right of the people" means. I don't think he's stupid, and is instead trying to deceive us. Is this a new kind of politics? No, Obama the con man gives us the same ole song and dance, straight from the Mark Mellman (dem strategist) playbook on gun issues.

If Obama replaces any of the five justices who backed Heller, you can kiss the 2nd Amendment goodbye in a legal sense, and we'll just have to become outlaws instead.

After reading DC v Heller

I wish I could find the text that I can cut and paste, but I can't. I'll refer to pages as we go here. Before I go on, I have to say that any decision with the word "hooligan" in it isn't all bad....

I'm not celebrating this decision. I am flatly amazed that four justices on this court did not respect the constitution. I shouldn't be, but how can those four who claim that abortion is a "fundamental right"(not in the constitution, but a major expansion of substansive due process born from the infamous Lochner case in the early 1900's) and turn around and say that the DC ban on functional firearms in the home is constitutional. We are one justice away from losing the 2nd Amendment. I hope every single gun owner realizes that, looks at which justices went our way and also look at the justices that went against us, and look at the appointers of them, and the votes for and against them. We are still playing defense. This was an aggressive defense here, but it was still defense.

Now as for this case, Scalia hit a home run. He first mentioned that the Constitution was intended to be understood by ordinary Americans, much as the Federalist Papers were back around 1787. This excludeds the technicalities as meanings that us present and future lawyers love to use so much in our arguments.

One of the most important things mentioned (page 3) was that the militia was the purpose - not the limiting clause. The operating clause is the "Right of the people" to keep and bear arms shall not be infringed. What is central to Heller's argument is that the Right of the People have the same meaning in the 2nd Amendment as it does in the rest of our constitutional rights. They are not individual rights in one spot and so called "collective rights" here.


The second part is a discussion about the meaning of the terms keep arms and bear arms with Justice Stevens, the main dissenter.

The third part is the operative clause. Page 19. It started with mentioning the English Common Law origin of the right, similar (but using different sources) so what I did in my five part preview of this case. He used the Stuart Kings in Britain as an example, and later mentioned the obvious - what King George III tried to do to the Colonists.

He then on page 25 goes to the "Well regulated militia". and "security of a free state." The militia is us, as the law plainly shows. I'm not referring to "Michigan Militia" either, but the constitutional militia. He goes on and mentions more of the history behind the amendment and its application. One of the more interesting references is "Bleeding Kansas." Bleeding Kansas was the "Civil War" before the Civil War. One compromise gone bad was the admission of Kansas into the union. There was a precarious balance between slave states and free states. The 36'30 latitute was the line between slave states and free states in the Louisiana purchase with the exception of Missouri. The Kansas-Nebraska Act, signed by Franklin Pierce who is usually considered the worst president in history, let the people themselves decide if they wanted a free or slave state. It sounded great on paper, but it became a partisan war between the two camps. Anti-slavery Jayhawks (where the name Kansas Jayhawks comes from) fought the pro-slavery forces mostly from Missouri. It was the Civil War before the Civil War. Massachusetts abolitionist and senator Charles Sumner mentioned the right to keep and bear arms in his speech and ripped South Carolina representatives for trying to disarm the abolitionists in Kansas. Two days later he was infamously whacked over the head with a cane and injured severely.

Scalia later (page 40) cites case law before and after the Civil War, and mentioned constitutional scholars such as Thomas Cooley and others. It then addresses the Miller case and Stevens "interpretation" of the Miller case. Page 49. Keep in mind that Miller was not overturned today. Scalia correctly mentions that in the Miller case, the problem is that the Jack Miller (who did not show up to court) did not convince the court that a sawed off shotgun was a MILITIA related weapon. It was the weapon that was important.

Scalia briefly mentions the weapons themselves, only to say that the weapons protected are ordinary equipment militia members would keep in common use and mentions about the 1933 Class III law. I'm not sure about that part however. I think Scalia here is trying to avoid getting the 1986 ban on new machine guns tossed out on this precident. Page 52-55. I wonder if that was left in there to keep Kennedy as part of the five, but that's speculation.

On page 56, he mentions the case itself with Heller. It mentions that total handgun bans are wrong and violate the right to self-defense. Licensing (to own and carry in the home) was allowed as constitutional (I may not like it on a personal level, but the precident for licensing and registration as unconstitutional is a very tough sell as a LEGAL issue since opposition is based on speculation of government nefariousness or costs through fees).

The most important part of the decision outside of the ruling itself is on page 63. I was looking mostly for the standard of review. In the simplist terms without studying my old con law notes - Strict Scrutiny is for "fundamental rights" (burden on government), then there is the rare intermediate (balancing mostly), and the common rational basis review (burden on petitioner). Scalia equated it to the censorship of unpopular speech. It's wrong. Period. No balancing test needed.

Lastly Scalia mentions the concerns about violence and says that many measures are constitutional, but blanket bans are not - and it is not the role of the judiciary to declare the 2nd Amendment extinct.

Overall, I think it was a great opinion. I would have gone with the strict scrutiny standard on its review, but that's probably my only difference. I encourage everyone to read the opinion itself, and also read the dissents by Stevens and Breyer. I do not agree with them at all, especially Breyer's living constitution claim, it is still something we all should read.

One last thing.

This does not address any other federal or state gun laws. The Chicago and New York gun bans are not thrown out. They are state laws and non-federal local ordinances which have their own systems. DC was a federal law. In order for the 2nd Amendment to be applied to the states, it has to be "incorporated" under the 14th Amendment. That is a separate matter, so be extremely careful if you think you can carry there. Don't be a test case and get yourself arrested.

On that note for the non-lawyers - don't get angry with Scalia and the Court for not addressing those other laws. They could not rule on them because those laws were not challenged. Only the DC federal law was challenged and ruled on appeals. Licensing was not challenged either. Courts do not rule on what is not challenged. Keep in mind than Alan Gura's client was not us - we the peope - it was Dick Heller, and his fidiciary duty was to restore Heller's rights - which he did.

Overall this was a good decision and the best we could have gotten. I can't complain outside of four justices who turned their back on the constitution and freedom.

Why I am flip-flopping from my 2006 view and am voting for McCain

Look at the DC v Heller 2nd Amendment decision.

For - Scalia (Reagan appointee), Kennedy (Reagan), Thomas (GHWBush), Alito (GWBush), and Roberts (GWBush)

Against - Stevens (Ford), Souter (GHWBush), Ginsburg (Clinton), Breyer (Clinton)

McCain voted for Thomas, Alito, Kennedy (who isn't always right, but I think is better than conservatives give him credit for), and Roberts.

Obama voted against Roberts and Alito. Considering we were one vote away from the 2nd Amendment going completely down the crapper, this reinforces my current decision to hold my nose and vote for McCain.

DC Heller Case: Circuit Court Decision is AFFIRMED - DC gun ban overturned

I'm getting my information from SCOTUSblog

The decision is in. According to SCOTUS and the Supreme Court, the overturning of the DC gun ban has been AFFIRMED in a 5-4 decision. Justice Scalia wrote the opinion and was joined by Kennedy, Alito, Roberts, and Thomas. Justice Breyer wrote the dissent. Ginsburg, Souter, and Stevens also dissented.

I was wrong in my predicition that it would have multiple opinions, concurrances, and dissents. There was only one opinion for the majority, and two different dissenting opinions.

I have to read the decision closely to see how much of a win or loss for freedom this decision is. I'm cautiously optimistic right now, but I want to see the standard of review and the rest of this before I can call this a victory.

Also in other news - the Millionaire Amendment of the Campaign Finance Laws (BCRA) is ruled unconstitutional. That's one I need to read as well in my spare time - Davis v FEC. I forgot about that decision with the hype on Heller.

SCOTUS Watch (Death Penalty)

Nothing so far on the Heller case.

One interesting case out is a death penalty case. First off, I'd to state that I am against the death penalty, but at the same time do not consider it cruel and unusual punishment. I'm against it on different grounds. I do not want to see an innocent person executed, and I have concerns about some DA's being in the mold of Mike Nifong and use the always high profile death penalty cases for political purposes and push for convictions despite the evidence not being there. Keep in mind that the Duke LaCrosse players had access to one thing that not everybody has access to - top level attorneys. That is my opposition to the death penalty.

SCOTUS overturned the death penalty in matters of child rape on 8th Amendment grounds. I do disagree with the decision and do not consider it cruel and unusual punishment for child molestors as it is historically one of the major felonies that brought the death penalty as a punishment. In the old days, almost all felonies were death penalty cases, and that went too far the other way. 1800's Britain had a death penalty case for stealing a loaf of bread. The punishment didn't fit the crime.

Much of the anti death penalty push on the courts comes from the legacies of Justices Brennan and Marshall who thought the death penalty was unconstitutional in all cases. Literally. Now there a major precident by the Burger Court (although Burger himself backed it) SCOTUS for considering the death penalty unconstitutional completely (which is why Charles Manson is still alive), and then overturning it - but only in cases of murder (death penalty for rape was renedered unconstitutional by the Burger Court). Rehnquist and Roberts courts are for it in limited cases, and this continues down that road with the upholding of the lethal injection in Kentucky, and now this decision the other way.

I need to read the decision fully, and I can see an argument made for it, but what bothers me is the judicial code changing of cruel and unusual punishment to refer to the penalty itself (unless it really is an unusual punishment - such as the death penalty for "honor" crimes like in Middle East) and not the method of the penalty. Cruel and Unusual punishment would be the burning at the stake, hung, drawn, and quartered, other torture like the rack, necklacing, lynch mobs, etc etc. Mostly Cut and dry cases with heavy suffering. A good case can be made for the still used gas chamber being disallowed on those grounds as it takes a long time for the convicted to die, and most states eliminated it.

Does the punishment fit the crime? It is "cruel and unusual" for a child molester (victim under 12) to get executed? I don't believe so, and it was not uncommon for rapists in general to be executed up until the 1960s. It was considered a capital crime along with murder, treason, and things like that. Certainly not "cruel and unusual" in the sense that the average person then or now would think of as cruel and unusual." In these cases, I'm more concerned about innocents being executed than the punishment itself.

I'll read this decision later. I'm still waiting for the DC gun case.

DC v Heller arguments start tomorrow

From the Legal Times, the Plaintiff Attorneys have a column with a sneak preview of their argument.

Armed for Liberty
Alan Gura and Robert A. Levy


03-17-2008



Two hundred years ago, the rights secured by the first 10 amendments were so widely accepted that many of the Framers considered a Bill of Rights unnecessary. Yet the Anti-Federalists wisely insisted on a Bill of Rights, fearing that fundamental tenets of individual liberty might later be deemed inconvenient, impractical, or even dangerous.

The Constitution’s words have since weathered constant assaults from miscreants who would suppress speech, control our private lives, or deny due process — usually in the name of public safety and the greater good.

The prohibitionist attack on Second Amendment rights is thus familiar, even if the arguments against the right to keep and bear arms are demonstrably false. In District of Columbia v. Heller — a case in which we will present oral argument on Tuesday, March 18 — the Supreme Court should recognize some basic truths.

The Second Amendment is an integral part of the Bill of Rights. Read in the same familiar, straightforward manner as other constitutional provisions, it secures a meaningful individual right, a sphere of individual autonomy into which the state may not intrude without good reason and great care. Acknowledging this right does not spell anarchy, but it does mean that law-abiding adult citizens are entitled to keep ordinary functional firearms, in their own homes, for self-defense.

Gun prohibitionists bristle at the notion that private gun ownership is a social good, but their policy arguments are both unpersuasive and irrelevant.

Drug-warriors and terror-warriors advance similar arguments for truncating Fourth Amendment rights. Some moralists have little use for the establishment clause. Others would compromise the free exercise clause. But courts do not declare those constitutional provisions obsolete or undesirable.

Nor should the Supreme Court treat the Second Amendment as if it did not exist. First and foremost, the Supreme Court resolves questions of law — and as a matter of law, Heller is not a close call.

THE PEOPLE’S RIGHT

The Second Amendment guarantees a “right of the people.” The “people” protected by the Second Amendment, as well as by the First and Fourth Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, are all the same: individual members of the American community.

Recognizing that truism, the city and its fellow prohibitionists have abandoned the “pure” collective-rights Second Amendment theory — which secures only a right of states to arm an organized militia. Instead the city has adopted the “sophisticated” or “hybrid,” but equally wrong, collectivist view: that the Second Amendment guarantees rights to individuals, but only when they are serving in a state-controlled military organization.

Imagine a right — intended, in part, as a deterrent to oppressive government — that can be exercised only when, where, and in the manner that government directs.

The collectivist vision seeks support by claiming, first, that “bear arms” has an exclusively military meaning. Yet “bear arms” was often used in a nonmilitary context. Various 18th century state constitutions secured the people’s right “to bear arms in defense of themselves and the state,” including Pennsylvania in 1776 and Kentucky in 1792. And James Madison, author of the Second Amendment, introduced a hunting bill in the 1785 Virginia Legislature, drafted by Thomas Jefferson, which differentiated between “bearing a gun” privately and doing so “whilst performing military service.” Other examples of “bearing arms” appear throughout framing-era literature and legislative enactments — too many to support the prohibitionists’ narrow views.

Moreover, gun prohibitionists conveniently ignore the word “keep,” which plainly relates to nonmilitary activity. “Keep” and “bear” in the Second Amendment are different concepts, like the Sixth Amendment’s guarantee of “speedy and public” trials. Keeping a handgun in a D.C. home is not the same as bearing a weapon on the District’s streets. Heller is about the former, not the latter.
(snip)

The rest of the column is at the link.

This is one of the most significant cases in US History. The only three recent cases on this level are the Gratz case (Affirm Action), Bush v Gore, and Kelo (eminent domain) cases. There is little precent with only the US v Miller case, and there Miller's side didn't show up to SCOTUS, so there was no chance for a good victory there, only a vague case cited by both sides.

This will be an interesting case to follow.

DC v Heller Update, response amici is in

Thanks to Heller's attorneys Alan Gura, Bob Levy, and Clark Neily for updating us all on the SCOTUS case.

www.dcguncase.com is the official site for the Plaintiffs (now respondant) in the challenge to DC's gun ban. Some interesting developments here.

This is one of the few times Dick Cheney and Bush publically disagreed on an issue. Cheney supports Heller in this case. Bush's justice department wants things both ways on this issue by supporting "individual rights", but opposing strict scrutiny.

55 Senators support Heller. 250 Congresscritters support Heller. As expected, Carl Levin and Debbie Stabenow do not support freedom. Almost ALL of the senators supporting this are Republicans. Only Bob Casey, Ben Nelson, Russ Feingold, Blanche Lincoln, Tim Johnson, Ken Salazar, Jon Tester, and Jim Webb signed on for the democrats among the senators. One shocker on the GOP side for me was George Voinovich who is strongly anti-gun. The house was a little more bi-partisan, but still strongly Republican. Of the Michigan Delegation, Dave Camp, Pete Hoekstra, Mike Rogers, John Dingell, Bart Stupak, Candice Miller, Thad McCotter, Joe Knollenberg, Fred Upton, and Tim Walberg signed it. Vern Ehlers, John Conyers (who signed with the gun grabbers), Carolyn Kilpatrick, Dale Kildee, and Sander Levin did not sign it.

The states are more bipartisan with less of the "Washington Democrat" (different than many states' dems) poison influence that hangs around. 31 States support Heller, including Michigan thanks to Mike Cox.

Several advocacy groups and law professors supported Heller, most of them with some sort of libertarian or conservative leanings, but not exclusively the case.

Both sides have their briefs up, and it's listed here under case filings. I recommend reading all of them if you get a chance. They took the Solicitor General to task heavily in their brief in their push on strict scrutiny.

George W Bush betrays gun owners and stabs the Constitution in the back

The Amici in favor of Washington DC in the DC v Heller Second Amendment case have been filed. They are all here at the website of the lawyers for Heller. Most are not surprises. The leftists have all filed for DC in favor of the ban. Janet "Butcher of Waco" Reno, Eric Houlder, and Seth Waxman, most of the Clinton admin officials all support the DC gun ban. So do the gun control groups, the leadership of the ABA, leading leftist professors like Saul Cornell and Erwin Chemerinsky, big cities like New York, Chicago, and San Francisco and the usual suspects. That doesn't irk me. I expect that from them.


I didn't expect the Bush Administrations department of justice to file an amicus brief. You can read it here. It tries to have things both ways, but if anyone tries to spin this as pro-gun, they are mistaken or lying. It does us no favors whatsoever.

This is a stab in the back. We go out as the swing vote, hit the doors, upset Gore in Tennessee and New Hampshire in 2000 and defeat John Kerry in Ohio, Missouri, Virginia, and other close states. This is our thanks. This is our biggest case in 70 years for all the marbles, and the Bush administration helps the worst city in the country for our 2nd Amendment rights on a case involving a total firearms ban. This isn't about automatic weapons or even those ugly guns the media calls so called "assault weapons." This is about basic pistols and working shotguns.

The Bush administration wants to remand this back to the lower court for more proceedings so the court can decide if a pistol is a "militia weapon." It says it supports the Second Amendment, but opposes strict scrutiny or heightened scrutiny. Those bolded words are the key here.

Here's a very simplified version of con law 101. There are three major types of scrutiny. Strict Scrutiny, Intermediate scrutiny, and rational basis review.

Under Strict Scrutiny, government needs a compelling reason for the law to be upheld. The burden of proof is on the govenment. You see this standard often in racial cases, abortion cases, substansial due process, and state laws regulating interstate trade (protectionism within states). Laws rarely pass a strict scrutiny standard.

Intermediate scrutiny is more complicated and probably would not apply here as it is rarely used. (some gender cases is where it applies)

Under rational basis review - almost all laws are upheld (with the exception of Lawrence v Texas, Romer v Evans, US v Lopez, and Printz v US) The two issues there were laws against sodomy, gay rights, and ironicaly, two gun cases (1000 ft from a school ban, part of the Brady Bill) Most laws are given rational basis review treatment. Heavy deference is given to legislatures under that type of review. Burden of proof is on Heller then, not the government. There is a somewhat of a movement towards "rational basis with teeth" as my Con-Law professor mentioned referring to the Romer v Evans case, but it's still extremely rare to overturn a law subject to rational basis review.

What is wrong is how this can be subject to anything other than strict scrutiny. If we have all these expanding "substansial due process" rights under the 5th and 14th amendment as the court says we have over the last 40 years (Griswold, Roe v Wade, Doe v Bolton, etc etc) and anything related to those, as well as all fundamental rights, are given strict scrutiny from the courts. Outside of abortion which impacts a seperate human being directly, that's the right treatment for these laws. If anything related to discrimination and protectionism is given strict scrutiny. How can the 2nd Amendment - specificly mentioned in the Constitution - not be given the same treatment regarding strict scrutiny? For the Bush administration to push for denying strict scrutiny to our rights, which unlike "abortion", is written out specificaly in our constitution, is a slap in the face to all of us gun owners across the country.

The Bush administration's brief is saying that we have a right to keep and bear arms, but it is not a FUNDAMENTAL right. It's a right that should be treated the same way the 10th amendment is treated in their eyes. Lots of restrictions. Bush admin has some good writers on their team, I'll give them that much, but this filing sucks and I'm going to be giving some people a real earful on Monday.

This is wrong. Damn wrong.

DC v Heller 2nd Amendment update

This is the case formerly known as Parker v DC. DC appealed to SCOTUS so they are now listed first (Plaintiff in error/appellant) while Heller is listed 2nd. Heller is the only original plaintiff with standing, so his name goes on there first.

From SCOTUS BLOG - DC files their brief against Dick Heller

It's a PDF file.

Also related to the case. The former DC attorney arguing the case, Alan B Morrison (Of advocacy group Public Citizen) was fired. Walter Dellinger, former acting solicitor general for two years under Bill Clinton, replaces him. Both are experience attorneys practicing before SCOTUS.

I have not read the file yet in depth. It's 79 pages.

The attorneys for Hellerhave their own blog site here. along with all the public documents so far related to the case posted on their site.

Part 5 - SCOTUS and the 2nd Amendment ruling (DC v Heller Preview)

After four parts regarding precident and background, we now get to the current case.


Part 1 was an overview
Part 2 focused on the original intent and the founding fathers
Part 3 focused on early court cases before the Miller case
Part 4 focused on US v Miller and later cases.

This is part 5 and focuses on the current case, DC v Heller. It was originally Parker v DC but was renamed due to court proceedings which I'll get to later. When someone says Heller case or the Parker case, they are referring to the same thing.

First of all, the best site the internet regarding information on this case is Gura and Possessky P.L.L.C. Alan Gura is the lead counsel in this case and uploaded all the public documents to his website. They also operate a blog titled DC Gun Case. Robert Levy and Clark Neily are also part of "The Parker Team." Levy is a senior fellow of the CATO Institute. Clark Neily is from the Institute for Justice.
Both of them are libertarian leaning organizations. The Institute for Justice and the Cato Institute are not involved in the cases however. Levy is paying for this himself because he does not want to be beholden to anyone on this.

The players:
Robert Levy - Levy was looking for a lawsuit since 02. Surprising to some, he's not a gun owner, but is strongly pro-2nd Amendment, as well as the rest of the constitution. He saw the shift in academic opinion on the 2nd Amendment, even among some liberals such as Laurence Tribe, the Emerson case, and John Ashcrofy shifting government's opinion and thought it was time for a challenge with the right case. He wanted a narrow case, and DC was the best place for it due to jurisdiction issues, as well as a total ban.

Dick Heller - A security guard who is armed while on duty, but not allowed to own a gun at home. His claim passed the standing challenge and won and is now in the Supreme Court. (and why the case was renamed DC v Heller) The other plaintiffs, including Parker, had their cases dismissed due to lack of standing.

Shelley Parker - A resident of a crime ridden neighborhood in DC. She wants a firearm to protect herself from drug dealers in her neighborhood. She was the lead plaintiff in the case, then Parker v DC.

Washington DC - Defendant for their law banning all pistols registered after 1977, and only allowing long guns which are not assembled, or having a trigger lock installed on them at all times. They may only be assembled and functional for recreational shooting. Moving a gun (including inside the home) is illegal without a special permit that is usually unavailible.

Anthony Williams - Then mayor of DC. Defendant due to enforcement of unconstitutional laws

There were four other plaintiffs as well. All cases were dismissed for standing outside of Heller because Heller tried to register a firearm and had standing because of that.

One things these people all have in common. They are good test cases. They are not criminals, nor are they members of "militia groups", etc etc.

Notice that I didn't mention the NRA. Gura and Levy took them to task and for good reason. They didn't want to go to court and wanted this to go through congress instead, so they tried to mess with the case. Here's the ABA journal article on it.They brought their own case which got defeated based on standing issues) They are on board now, but the credit here goes to the plaintiffs and the three lawyers behind this.

A list of the motions and pleadings are all here at Gura and Possessky.
The case was filed in 2003 under the name Parker, et all vs District of Columbia, et all - shortened to Parker v DC.

There were fights on standing. That is finalized in appeals.

The Brady Center formerly known as Handgun Control, VPC, filed amicus briefs in favor of DC.
The American Civil Rights Union and Heartland Institute filed amicus briefs in favor of Parker.

In 2004, the District Court ruled in favor of Washington DC stating that:

Because this Court rejects the notion that there is an individual right to bear arms separate and apart from service in the Militia and because none of the plaintiffs have asserted membership in the Militia, plaintiffs have no viable claim under the Second Amendment of the United States Constitution. Thus, plaintiffs' complaint must be dismissed and their Motion for Summary Judgment denied as moot.

The plaintiffs appealed to the DC Circuit of the US Court of Appeals. Heller was the only with standing here, and the court said that the other plaintiffs did not have an injury as they did not face imminent prosecution. Heller was denied a license for his gun, and had standing. That's why the case will later be renamed DC (Appellant) v Heller (Appelle).

The amicus briefs were plenty.
For the Plaintiffs:
Texas AG Greg Abbot
Solicitor General Ted Cruz
Alabama AG Troy King
Arkansas AG Mike Beebe
Colorado AG John Suthers
Florida AG Charlie Crist (now governor)
Georgia AG Thurbert Baker
Michigan AG Mike Cox
Minnesota AG Mike Hatch
Nebraska AG Jon Bruning
North Dakota AG Wayne Stenehjem
Ohio AG Jim Petro
Utah AG Mark L. Shurtleff
Wyoming AG Patrick J. Crank
The above all joined the Texas AG's amicus brief

Other amicus briefs for Parker were filed by:
The Second Amendment Foundation (heavily involved in Emerson case)
Congress or Racial Equality
American Civil Rights Union
NRA (finally joined)

For the DC appellees:
Massachusetts AG Thomas Reilly, Maryland AG Joseph Curran, New Jersey AG Zulima Farber all joined in an amicus brief
New York and Chicago City Attorney's office
Brady Center and City/County of San Francicso joined.

The Appeals Court Ruled:
1. Five of the six plaintiffs did not have standing to sue (against)
On the Second Amendment itself:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia

On Whether the 2nd Amednment applies to DC.

The District does not argue, nor could it, that even if the Second Amendment confers an individual right, that right is enjoyed only by the residents of states (that would mean that citizens of the United States who lived in territories, such as the Northwest Territory, prior to their acceptance as states, did not enjoy a constitutional right). In any event, the Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District. See O'Donoghue v. United States, 289 U.S. 516, 539-41, 53 S.Ct. 740, 77 L.Ed. 1356(1933) (quoting Downes v. Bidwell, 182 U.S. 244, 260-61, 21 S.Ct. 770, 45 L.Ed. 1088 (1901)). “The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the aegis of the Constitution.... If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Constitution.” Id. at 541, 53 S.Ct. 740. Rather, the District's argument amounts to an appendage of the collective right position. It is only if one reads the prefatory language as limiting the operative clause to a guarantee about militias that one ever arrives at the question whether the guarantee is confined to state militias.

On whether it allows a ban on pistols

D.C.Code § 7-2502.02 FN18 prohibits the registration of a pistol not registered **170 *400 in the District by the applicant prior to 1976. FN19 The District contends that since it only bans one type of firearm, “residents still have access to hundreds more,” and thus its prohibition does not implicate the Second Amendment because it does not threaten total disarmament. We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted. Once it is determined-as we have done-that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them. See Kerner, 107 S.E. at 225 (“To exclude all pistols ... is not a regulation, but a prohibition, of ... ‘arms' which the people are entitled to bear.”). Indeed, the pistol is the most preferred firearm in the nation to “keep” and use for protection of one's home and family. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 182-83 (1995). And, as we have noted, the Second Amendment's premise is that guns would be kept by citizens for self-protection (and hunting).

Finally, on requiring guns to be unloaded:

Finally, there is the District's requirement under D.C.Code § 7-2507.02 that a registered firearm be kept “unloaded** and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.” This provision bars Heller from lawfully using a handgun for self protection in the home because the statute allows only for use of a firearm during recreational activities. As appellants accurately point out, § 7-2507.02 would reduce a pistol to a useless hunk of “metal and springs.” Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a “functional” firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense justification. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional

In summary:

For the foregoing reasons, the judgment of the district court is reversed and the case is remanded. Since there are no material questions of fact in dispute, the district court is ordered to grant summary judgment to Heller consistent with the prayer for relief contained in appellants' complaint.

DC Appealed. The en banc hearing (entire panel) was denied by the DC appeals court. DC appealed to SCOTUS, which will hear the case. What is SCOTUS going to do? That is the question of the ages. The official question is narrow.

The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 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?

If I had to bet money, I suspect this will follow Emerson to a large degree with a balancing test with Justice Kennedy writing the opinion in a 5-4 or maybe 6-3 decision with several concurring/dissenting opinions ranging for Stephens backing a total ban and Thomas saying nearly all of them are unconstitutional.

I'm cautiously optimistic about this. I would however have one more justice retire, preferably Stephens or Breyer before this is heard. With 08 and a democrat controlled senate, this may be the best chance for the 2nd Amendment to be properly decided. One piece of good news is that unlike in Miller, Heller and his counsel are showing up to the hearings.

Lastly, this case will probably be heard in 2008, just in time for the presidential election. This can make things real interesting, and if the candidates line up properly, may just wake up the conservative base one more time and give the GOP a lucky second chance unless an anti-gunner in nominated (and Bill Richardson is the democrat's pick)

Part 4 - SCOTUS and the 2nd Amendment ruling (DC v Heller Preview)

This is Part 4 in a series of 5 on the 2nd Amendment.

Part 1 was an overview. Part 2 was on the original meaning of the 2nd Amendment. Part 3 was early court cases. Part 4 is on the US v Miller Case and its legacy. Part 5 will be on the DC case.

The New Deal changed much of landscape of American politics, as well as the courts. At that time, the courts were activist. At first, they were activist against the states. They struck down most of the New Deal legislation. That wasn't always a bad thing. However, they struck down laws they didn't like on the state level on 14th Amendment grounds. They were economicaly libertarian, and while I may agree with that to a degree, cases like Lochner set bad precident to go in all different directions. FDR pushed his court packing scheme, but backed off when "a stich in time saved nine" and one of the other block switched to his side, making the mass expansion of government power suddenly "constitutional." Later you had more expansions (not ALL of it bad - Brown v Board of Education was a good decision) under the Warren and Burger Courts. The Rehnquist and Roberts courts seem to be moderating the expansions to some degree.

US V Miller was an 8-0 decision in 1939. Was it judicial activism? I can't say since it was that bad of a case. I don't blame the judges as much for this as they didn't have much to work with. I blame the test case. Miller was the worst possible test case of all. There are several reasons for that.

Jack Miller and Frank Layton were suspected bank robbers accused of violating the NFA act, still in effect today. They transported a sawed off shotgun across state lines. A Sawed Off Shotgun is a Class III firearm. It required a $200 tax (a LOT of money back then) on Class III firearms and registration with the BATF. Miller and Layton were charged, and fought on 2nd Amendment Grounds. The district court tossed the case out on 2nd Amendment grounds.

The case was appealed to SCOTUS. FDR's adminisration gave their brief which can be seen at guncite. It started with Cruikshank and then gave birth to what is known as the "collective right" theory saying that there is no right to keep and bear arms except for "state militias." The arms also had to be either public defense or military uses.

On the brief for Miller, we have.....nothing. Zip. Zilch. Zero. Nada. Layton plea bargained beforehand, and Miller was dead. He, nor his counsel, were at the Supreme Court. The case was also remanded to trial court, and never completed because there was no longer a case with Miller being dead. You start with a shady character, use him as a test case, and then not have him show up for whatever reason at the SCOTUS hearing, and combine that with a hostile administation (although nothing compared to Carter or Clinton), and this isn't going to be good. Combine all of that, and there is going to be bad precident.

Findlaw has the opinion.

Appeal from the District Court of the United States for the Western District of Arkansas. [307 U.S. 174, 175] Mr. Gordon Dean, of Washington, D.C., for the United States.

No appearance for appellees.

You can't win if you don't show. As far as the 2nd Amendment precident goes...

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The main part of the opinion is that the firearms protected by the 2nd Amendment have to be related to the militia. Miller did not have the opprotunity to prove that a sawed off shotgun can be a militia related weapon. (Was used in World War I). As far as Aymette v Tennessee, it can be found here and stated this: (Bowie Knife)

The right to keep and bear
arms for the common defence is a great political right. It
respects the citizens, on the one hand, and the rulers on the
other. And, although this right must be inviolably preserved, yet
it does not follow that the legislature is prohibited altogether
from passing laws regulating the manner in which these arms may be
employed....(snip)

In the former part of this opinion we have recurred to the
circumstances under which a similar provision was adopted in
England, and have thence deduced the reason of its adoption, and
consequently have seen the object in view when the right to keep
and bear arms was secured. All these considerations are left out
of view in the case referred to, and the court confine themselves
entirely to the consideration of the distinction between a law
prohibiting the right, and a law merely regulating the manner in
which arms may be worn. They say there can be no difference
between a law prohibiting the wearing concealed weapons and one
prohibiting the wearing them openly.

We think there is a manifest distinction. In the nature of
things, if they were not allowed to bear arms openly, they could
not bear them in their defence of the state at all. To bear arms
in defence of the state is to employ them in war, as arms are
usually employed by civilized nations. The arms, consisting of
swords, muskets, rifles, etc., must necessarily be borne openly; so
that a prohibition to bear them openly would be a denial of the
right altogether. And, as in their constitution the right to bear
arms in defence of themselves is coupled with the right to bear
them in defence of the state, we must understand the expressions as
meaning the same thing, and as relating to public, and not private,
to the common, and not the individual, defence.

But a prohibition to wear a spear concealed in a cane would in
no degree circumscribe the right to bear arms in the defence of the
state; for this weapon could in no degree contribute to its
defence, and would be worse than useless in an army. And, if, as
is above suggested, the wearing arms in defence of the citizens is
taken to mean the common defence, the same observations apply.

To make this view of the case still more clear, we may remark
that the phrase, "bear arms," is used in the Kentucky constitution
as well as in our own, and implies, as has already been suggested,
their military use. The 28th section of our bill of rights provides
"that no citizen of this state shall be compelled to bear arms
provided he will pay in equivalent, to be ascertained by law." Here
we know that the phrase has a military sense, and no other; and we
must infer that it is used in the same sense in the 26th section,
which secures to the citizen the right to bear arms. A man in the
pursuit of deer, elk, and buffaloes might carry his rifle every day
for forty years, and yet it would never be said of him that he had
borne arms; much less could it be said that a private citizen bears
arms because he has a dirk or pistol concealed under his clothes,
or a spear in a cane. So that, with deference, we think the
argument of the court in the case referred to, even upon the
question it has debated, is defective and inconclusive.

SCOTUS sited the above in the US v Miller case regarding sawed off shotguns.
However, when it comes to militias, this was mentioned in Miller:

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.

Keep in mind, this was AFTER the National Guard was formed. "All males physically capable" "Body of citizens". Even without Miller showing up, this was what SCOTUS mentioned. Lastly was this regarding the shotgun.

Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

With decisions like that, I'd love to be able to get into a Delorean, go 88MPH, and go back to 1939 to argue this case. Miller didn't go as far as the government wanted. It did not mention "collective right" or "state militia" as being seperate from the citizenry. It was however misinterpreted in its legacy, making this bad precident for its somewhat vagueness (not to mention Miller and his counsel not showing up).

The Legacy of Miller

The First Circut in an appeal regarding several cases and punted this for the most part.

The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "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 right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. (p.922)United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S.Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.

In the case last cited the Supreme Court, after discussing the history of militia organizations in the United States, upheld the validity under the Second Amendment of the National Firearms Act of June 26, 1934, 48 Stat. 1236, in so far as it imposed limitations upon the use of a shotgun having a barrel less than eighteen inches long. It stated the reason for its result on page 178 of the opinion in 307 U.S., on page 818 of 59 S.Ct., 83 L.Ed. 1206, as follows: "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia. However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,--almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,--is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result. Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.

The 6th circuit (here) had a real nasty legacy. Stevens v US in 1971 completely misinterpreted this.

We turn now to the consideration of whether Congress has the power to prohibit the possession of a firearm by a convicted felon. Since the Second Amendment right ‘to keep and bear Arms' applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm. United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206. Stevens asserts, however, that Congress is without constitutional power to deny him this privilege. We hold that Congress has this authority under the commerce clause.

Where in Miller did it say that? The good news is that case was negitively cited twice.

The 8th Circuit said this regarding false statements in purchasing a firearm. Cody v US.

We find no merit in the contention that § 922(a) (6) violates appellant's Second Amendment right to bear arms. Since *37 United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), it has been settled that the Second Amendment is not an absolute bar to congressional regulation of the use or possession of firearms. The Second Amendment's guarantee extends only to use or possession which “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id. at 178, 59 S.Ct. at 818. See United States v. Synnes, 438 F.2d 764, 772 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657 (1972); Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942), cert. denied sub nom., Cases Valazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943). We find no evidence that the prohibition of § 922(a) (6) obstructs the maintenance of a well regulated militia.

It all came from Miller. SCOTUS in 1980 in a dicta footnote (by Harry Blackmun) did affirm Miller, but that was argued on 5th Amendment Grounds. Things start to heat up later. With the rise in gun control movement from the 60's to today, we see a lot more changes in judicial philospohy in academia, and among the public.

US v Verdugo-Urquidez in 1990 was a 4th Amendment case, but it kickstarted the "Right of the people" argument.

The Fourth Amendment provides:


*265 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to “the people.” Contrary to the suggestion of amici curiae that the Framers used this phrase “simply to avoid [an] awkward rhetorical redundancy,” Brief for American Civil Liberties Union et al. as Amici Curiae 12, n. 4, “the people” seems to have been a term of **1061 art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law ... abridging ... the right of the people peaceably to assemble”) (emphasis added); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”) (emphasis added). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words*266 “person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

US v Lopez overturned the law that prohibited firearms within 1000 feet of a school zone. It was overturned on commerce clause grounds. (Related to 10th Amendment)It was a 5-4 decision with Stephens, Souter, Ginsburg, and Breyer dissenting. Stephens said this on his own.

Guns are both articles of commerce and articles that can be used to restrain commerce. Their possession is the consequence,*603 either directly or indirectly, of commercial activity. In my judgment, Congress' power to regulate commerce in firearms includes the power to prohibit possession of guns at any location because of their potentially harmful use; it necessarily follows that Congress may also prohibit their possession in particular markets. The market for the possession of handguns by school-age children is, distressingly, substantial.FN* Whether or not the national interest in eliminating that market would have justified federal legislation in 1789, it surely does today.

Justice Thomas in 1997 said this in the 10th Amendment case Printz v US where part of the Brady Bill was struck down. IT was also a 5-4 decision. Same people dissented here as in Lopez.

Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that “substantially affect” interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from “prohibiting the free exercise” of religion or “abridging the freedom of speech.” The Second *938 Amendment similarly appears to contain an express limitation on **2386 the Government's authority. That Amendment 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.” This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment.FN1 If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections.FN2 As the parties did *939 not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries § 1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment.

Those decisions could be interesting to see what could happen in the Parker and Heller case as it is the only gun cases SCOTUS has ruled on recently. As far as the Second Amendment goes, there are three recent cases - three main ones that come to light.

The first is US v Emerson. The second is Silveira v. Lockyer which is a Stephen Reinhardt Special. Thank you Jimmy Carter.

US v Emerson was a 3-0 decision with two opintion. The anti-2a concurrence was a Clinton judge. The district court opinion ruled for Emerson on 2nd Amendment grounds. The Appeals overruled the case, but affirms an individual right to keep and bear arms. Findlaw has the case

US v Emerson first distinguished three models. The Collective rights model, "sophisticated collective rights", and individual rights (also known as standard) model. The Court says:

The government steadfastly maintains that the Supreme
Court's decision in United States v. Miller, 59 S.Ct. 816
(1939), mandated acceptance of the collective rights or
sophisticated collective rights model, and rejection of the
individual rights or standard model, as a basis for construction
of the Second Amendment. We disagree.

The court then examines Miller.

Miller reversed the decision of the district court and
"remanded for further proceedings." Id. at 820. We believe it
is entirely clear that the Supreme Court decided Miller on the
basis of the government's second argument-that a "shotgun having
a barrel of less than eighteen inches in length" as stated in
the National Firearms Act is not (or cannot merely be assumed to
be) one of the "Arms" which the Second Amendment prohibits
infringement of the right of the people to keep and bear-and not
on the basis of the government's first argument (that the Second
Amendment protects the right of the people to keep and bear no
character of "arms" when not borne in actual, active service in
the militia or some other military organization provided for by
law"). Miller expresses its holding as follows:

I already posted what was cited earlier when I looked at the Miller decision.

Nowhere in the Court's Miller opinion is there any reference
to the fact that the indictment does not remotely suggest that
either of the two defendants was ever a member of any organized,
active militia, such as the National Guard, much less that
either was engaged (or about to be engaged) in any actual
military service or training of such a militia unit when
transporting the sawed-off shotgun from Oklahoma into Arkansas.
Had the lack of such membership or engagement been a ground of
the decision in Miller, the Court's opinion would obviously have
made mention of it. But it did not

It then goes on exam the term "militia" and said that Miller was neutral on individual vs collective rights.

These passages from Miller suggest that the militia, the
assurance of whose continuation and the rendering possible of
whose effectiveness Miller says were purposes of the Second
Amendment, referred to the generality of the civilian male
inhabitants throughout their lives from teenage years until old
age and to their personally keeping their own arms, and not
merely to individuals during the time (if any) they might be
actively engaged in actual military service or only to those who
were members of special or select units.

We conclude that Miller does not support the government's
collective rights or sophisticated collective rights approach to
the Second Amendment. Indeed, to the extent that Miller sheds
light on the matter it cuts against the government's position.
Nor does the government cite any other authority binding on this
panel which mandates acceptance of its position in this
respect.(21) However, we do not proceed on the assumption that
Miller actually accepted an individual rights, as opposed to a
collective or sophisticated collective rights, interpretation of
the Second Amendment. Thus, Miller itself does not resolve that
issue.(22) We turn, therefore, to an analysis of history and
wording of the Second Amendment for guidance. In undertaking
this analysis, we are mindful that almost all of our sister
circuits have rejected any individual rights view of the Second
Amendment. However, it respectfully appears to us that all or
almost all of these opinions seem to have done so either on the
erroneous assumption that Miller resolved that issue or without
sufficient articulated examination of the history and text of
the Second Amendment.

It takes a textual approach on the meanings of people, bear arms, and keep arms, as well as ""A well-regulated Militia, being necessary to the security of a free
State." It's long, but important reading and can be found at Findlaw. Lastly, it looks at the history with the federalists and anti-federalists, as well as state constitutions and early history regarding the right to keep and bear arms.

The final decision is this

We reject the collective rights and sophisticated collective
rights models for interpreting the Second Amendment. We hold,
consistent with Miller, that it protects the right of
individuals, including those not then actually a member of any
militia or engaged in active military service or training, to
privately possess and bear their own firearms, such as the
pistol involved here, that are suitable as personal, individual
weapons and are not of the general kind or type excluded by
Miller. However, because of our holding that section 922(g)(8),
as applied to Emerson, does not infringe his individual rights
under the Second Amendment we will not now further elaborate as
to the exact scope of all Second Amendment rights.
(SNIP)
Error has not been demonstrated in the district court's
refusal to dismiss the indictment on commerce clause grounds.

For the reasons stated, we reverse the district court's
order granting the motion to dismiss the indictment under the
Fifth Amendment.

We agree with the district court that the Second Amendment
protects the right of individuals to privately keep and bear
their own firearms that are suitable as individual, personal
weapons and are not of the general kind or type excluded by
Miller, regardless of whether the particular individual is then
actually a member of a militia.(66) However, for the reasons
stated, we also conclude that the predicate order in question
here is sufficient, albeit likely minimally so, to support the
deprivation, while it remains in effect, of the defendant's
Second Amendment rights. Accordingly, we reverse the district
court's dismissal of the indictment on Second Amendment grounds.

That was more due to Emerson not being the most upstanding citizen which can be read in the decision.


The 9th Circuit's opinion of Silveira v Lockyer contradicts Emerson.

Stephen Reinhardt wrote:

In 1999, the State of California enacted amendments to its gun control laws that significantly strengthened the state's restrictions on the possession, use, and transfer of the semi-automatic weapons popularly known as "assault weapons." Plaintiffs, California residents who either own assault weapons, seek to acquire such weapons, or both, brought this challenge to the gun control statute, asserting that the law, as amended, violates the Second Amendment, the Equal Protection Clause, and a host of other constitutional provisions. The district court dismissed all of the plaintiffs' claims. Because the Second Amendment does not confer an individual right to own or possess arms, we affirm the dismissal of all claims brought pursuant to that constitutional provision.

Because the Second Amendment affords only a collective right to own or possess guns or other firearms, the district court's dismissal of plaintiffs' Second Amendment claims is AFFIRMED. Because the off-duty officer provision is supported by a rational basis, the district court's dismissal of plaintiffs' equal protection claim challenging that provision is also AFFIRMED. However, because no rational basis exists for the retired officers exception, we REVERSE the district court's dismissal of that claim and direct that judgment be entered for the plaintiffs in that regard. The constitutional challenges to the validity of the California Assault Weapons Control Act are all rejected, with the exception of the claim relating to the retired officers provision

Reinhardt ripped the emerson case in his decision. Love or hate his work, it's binding in the 9th Circuit. It's in PDF format on Findlaw and the 9th Circuit appeals cite.

Until Parker, the two most recent 2a related cases directly contradicted each other within a short period. That leads to Part 5 and the current case.