Supreme Court

[walangkatapat]

Got this link off of AR15.com: Statement of the Case starts on page 22:

http://www.scotusblog.com/wp/wp-content/up...dc-v-heller.pdf

Edited January 4, 2008 by walangkatapat

[outerlimits]

Got this link off of AR15.com: Statement of the Case starts on page 22:

http://www.scotusblog.com/wp/wp-content/up...dc-v-heller.pdf

hope there's not too many lawyers in be-land, but these guyz seem to have smoked something...

[Carlos]

The summary of D.C.'s argument begins on pg. 8. I need to read their full argument and will do so later. For the moment, suffice to say: I feel better about the outcome after reading the summary of their position.

Edited January 4, 2008 by Carlos

[el pres]

My .02. Due to the fact that our government is ran by as one would say ,"a bunch on empty skirts" I think the

ruleing will be very boring and nuetral. They will rule that it is an individual right but that any state or regional

government has the power to restrict, "REGULATE" that malitia of the people at their discretion.

Basically where we are right now!! They would not want to piss any group off right?

[warpspeed]

The summary of D.C.'s argument begins on pg. 8. I need to read their full argument and will do so later. For the moment, suffice to say: I feel better about the outcome after reading the summary of their position.

+1

And I'll leave it at that so that the thread shall remain open

[North]

http://armsandthelaw.com/archives/2008/01/...rnment_file.php

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"Quick read: Gov't says, yes, it's an individual right. BUT we join with DC in asking Court to reverse the DC Circuit, because it applied strict scrutiny to the DC law. It should only have applied an intermediate standard. That is, the legal position of the US is that DC CIrcuit was wrong, a complete ban on handguns is NOT per se unconstitutional, it all depends on how good a reason DC can prove for it. Some quotes:

"When, as here, a law directly limits the private pos-

session of “Arms” in a way that has no grounding in

Framing-era practice, the Second Amendment requires

that the law be subject to heightened scrutiny that con-

siders (a) the practical impact of the challenged restric-

tions on the plaintiff’s ability to possess firearms for

lawful purposes (which depends in turn on the nature

and functional adequacy of available alternatives), and

( the strength of the government’s interest in enforce-

ment of the relevant restriction.

The court of appeals, by contrast, appears to have

adopted a more categorical approach. The court’s deci-

sion could be read to hold that the Second Amendment

categorically precludes any ban on a category of “Arms”

that can be traced back to the Founding era. If adopted

by this Court, such an analysis could cast doubt on the

constitutionality of existing federal legislation prohibit-

ing the possession of certain firearms, including

machineguns. However, the text and history of the Sec-

ond Amendment point to a more flexible standard of

review."

:The determi-

nation whether those laws deprive respondent of a func-

tional firearm depends substantially on whether D.C.’s

trigger-lock provision, D.C. Code § 7-2507.02, can prop-

erly be interpreted (as petitioners contend, see Br. 56)

in a manner that allows respondent to possess a func-

tional long gun in his home.8 And if the trigger-lock pro-

vision can be construed in such a manner, the courts

below would be required to address the factual is-

sue—not fully explored during the prior course of the

litigation—whether the firearms that are lawfully avail-

able to respondent are significantly less suited to the

identified lawful purpose (self-defense in the home) than

the type of firearm (i.e., a handgun) that D.C. law bars

respondent from possessing.9

To the extent necessary, further consideration of

those questions should occur in the lower courts, which

would be in the best position to determine, in light of

this Court’s exposition of the proper standard of review,

whether any fact-finding is necessary, and to place any

appropriate limits on any evidentiary proceedings.

Moreover, even if the existing record proved to be ade-

quate, initial examination of those issues is typically

better reserved for the lower courts."

"CONCLUSION

The Court should affirm that the Second Amend-

ment, no less than other provisions of the Bill of Rights,

secures an individual right, and should clarify that the

right is subject to the more flexible standard of review

described above. If the Court takes those foundational

steps, the better course would be to remand. "

As I read this, the (Bush) Dept of Justice is asking that the Court hold it to be an individual right, but not strike the DC gun law, instead sending it back down to the trial court to take evidence on everything from how much the District needs the law to whether people can defend themselves without pistols and just what the DC trigger lock law means. THEN maybe it can begin another four year trek to the Supremes. That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns violates the Second Amendment, and contends that it might just be justified, it all depends on the evidence.

There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup."

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I don't like this.

Edited January 15, 2008 by North

[JFlowers]

Sounds like someone in the Bush Administration is playing games. Lets give the people a little of what they want and then push the whole thing back into the system where it will bubble about until we are out of here and out of the line of fire on this issue......

[ofcrfs242]

my .02 on what I see the outcome on this.

The court will rule that DC is ot a state but a possession of the United States, therefore they can ban handguns. I believe they will limit their decision to that and not even broach the possibility that other states or municipalities could do the same. The more they limit their decision the fewer number of groups they will piss off. Just my thoughts.

[Genghis]

Put your money on the Court finding that the 2A does recognize some sort of individual right, but subject to some degree of regulation. I think the chances of the Court flatly saying it's not an individual right are remote. So the key to this case will likely be the level of scrutiny. Strict scrutiny = fewer gun control laws pass the test. Intermediate or lower level of scrutiny = more laws pass the test. I'm hoping the justices will rely on the long line of 1st Amendment cases that apply strict scrutiny, and look even closer at prior restraints on the right.

If the Court applies any level of scrutiny lower than strict scrutiny, you can expect most courts to defer to Congress and state legislatures and allow most gun control laws to stand. This would be the exception that guts the rule, effectively leaving us with no right to keep and bear arms.

[Carlos]

I was extremely disappointed in the administration's filing. I probably should not comment further though.

Factually, I located the following list of amicus briefs (i.e. "friend of the Court" or put another way: "we want to weigh in even though its not our case"). These briefs are available on the SCOTUSBLOG

These are in favor of the "petitioner" or D.C. - meaning they are OPPOSED to the finding that the 2nd applies to individuals. Note that the briefs by "Members of Congress" and the mayors only represent CERTAIN members/mayors. It is interesting, but not surprising to see who is listed on those briefs.

Amicus briefs for D.C. available in guns case

Saturday, January 12th, 2008 10:59 am

Click the following links below to read the amicus briefs filed yesterday in support of the petitioner in the upcoming case District of Columbia v. Heller (07-290).

American Academy of Pediatrics

American Bar Association

American Public Health Association, et al.

Brady Center to Prevent Gun Violence, et al.

City of Chicago

Coalition of civil rights groups

D.C. Appleseed Center for Law and Justice, et al.

District Attorneys

Former Department of Justice Officials

Historians

Major U.S. cities and the U.S. Conference of Mayors

Members of Congress

NAACP Legal Defense & Educational Fund

National Network to End Domestic Violence, et al.

New York and other states

Professors Erwin Chemerinsky and Adam Winkler

Professors of criminal justice

Professors of linguistics

Violence Policy Center and various police chiefs

[XRe]

I was extremely disappointed in the administration's filing. I probably should not comment further though.

I know what you mean - any substantial comment I could/would make on that would end up with this thread closed, so....

[Carlos]

From SCOTUSblog.com: Oral arguments set for Tuesday, March 18 in Heller v. D.C. They have reserved an entire day to hear arguments. Here is the announcement:

"The Supreme Court, releasing Tuesday its calendar of oral argument for the session beginning March 17, set Tuesday, March 18, as the day for oral argument in the Second Amendment case — a test of what the Constitution means when it guarantesd a “right to keep and bear arms.” The argument is the only one scheduled for that day; the case is District of Columbia v. Heller (07-290). The March calendar includes a total of 12 cases, with one day to include three cases — Monday, March 24. The morning arguments are at 10 and 11 a.m.; the afternoon argument will begin at 1 p.m."

On another note, the Wall Street Journal published an editorial, titled: "Misfire at Justice" which criticizes the administration's brief in the Heller case; here is the LINK TO WALL STREET JOURNAL or try:

http://online.wsj.com/article/SB120096108857304967.html.html

Here is part of the article, from the link above:

"The amicus brief filed by Solicitor General Paul Clement agrees with this part of the D.C. Circuit ruling. But then it goes on a bender about violent felons wielding machine guns, urging the Supreme Court to reject the legal standard applied by Judge Silberman. Instead, the SG invites the Supremes to hand down an elaborate balancing test that would weigh "the strength of the government's interest in enforcement of the relevant restriction" against an individual's right to bear arms.

This is supposedly necessary because of this single phrase in Judge Silberman's 58-page ruling: "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" (our emphasis). This has alarmed the lawyers at Justice, eliciting their dire warnings that somehow Judge Silberman's logic would bar the regulation of M-16s, felons with guns, or perhaps even Sherman tanks.

This is bizarre. The key word in Judge Silberman's opinion is "ban." His opinion readily concedes that regulating guns and banning them are not the same. He explicitly notes that felons may be barred from owning guns without implicating the Second Amendment and points out that weapons of a strictly military nature are not encompassed by the right to bear arms. Nothing in Judge Silberman's opinion precludes reasonable restrictions on weaponry.

More ominously, if Mr. Clement's balancing test were adopted by the High Court, it would be an open invitation to judges nationwide to essentially legislate what is or isn't proper regulation. The beauty of Judge Silberman's standard is that it carved out wide Constitutional protections for arms -- such as "most" hand guns and hunting rifles -- that Americans now own and that might reasonably have been anticipated by the Founders. The Bush Justice Department is instead inviting the Supreme Court to uphold an individual right to bear arms in principle but then allow politicians and judges to gut it in practice.

The District of Columbia has argued that it has a strong governmental interest in a near-total handgun ban. To support its claims it has trotted out all manner of emotive appeals and dubious sociology to attenuate the right protected by the Second Amendment. Justice's balancing test would invite thousands of judges to allow fact-finding on the need for gun control and then issue what would essentially be their own policy judgments. This is precisely the kind of activist judicial nightmare that President Bush himself claims to oppose.

So why would his own Solicitor General do this? The speculation in legal circles is that Mr. Clement is trying to offer an argument that might attract the support of Anthony Kennedy, the protean Justice who is often the Court's swing vote. But this is what we mean by "too clever by half." Justice Kennedy would be hard-pressed to deny that the Second Amendment is an individual right, given his support in so many other cases for the right to privacy and other rights that aren't even expressly mentioned in the Constitution. No less a left-wing scholar than Laurence Tribe has come around to the view that the Second Amendment protects an individual right for this very reason. Mr. Clement is offering a needless fudge." (article continues - see link above).

[Carlos]

Mr. Heller, via his attorney Robert Levy, filed his brief today; amici to follow.

Here is the PDF OF BRIEF

or try:

http://www.gurapossessky.com/news/parker/d...s/07-0290bs.pdf

You might be particularly interested in section 4 (IV): "THE STANDARD OF REVIEW IN SECOND AMENDMENT CASES IS STRICT SCRUTINY"

Edited February 4, 2008 by Carlos

[Carlos]

LINK TO AMICUS BRIEFS IN FAVOR OF AN INDIVIDUAL RIGHT TO OWN ARMS from Scotusblog

Key among the briefs is the brief signed by a majority of BOTH houses of Congress and VP Cheney (bucking the Solicitor General's/president's official view).

The fact that majorities of both houses of our elected representatives support our side in Heller suggests that those who oppose an individual right (i.e. favor banning guns) are really voicing a unpopular, minority, and rather radical position.

Interesting list of groups weighed in on "our" side, including:

Academics

Academics for the Second Amendment

Alaska Outdoor Council

American Center for Law and Justice

American Civil Rights Union

American Legislative Exchange Council

Association of American Physicians and Surgeons

Buckeye Firearms Foundation, et al.

Cato Institute and Professor Joyce Lee Malcolm

Center for Individual Freedom

Citizens Committee for the Right to Keep and Bear Arms

Congress of Racial Equality

Criminologists

Disabled Veterans for Self-Defense

Eagle Forum Education and Legal Defense Fund

Former Justice Department officials

Foundation for Free Expression

Foundation for Moral Law

GeorgiaCarry.org

Goldwater Institute

Grass Roots of South Carolina

Gun Owners of America

Heartland Institute

Institute for Justice

International Law Enforcement Educators and Trainers Association

International Scholars

Jeanette Moll

Jews for the Preservation of Firearms Ownership

Joseph B. Scarnati, III, President Pro Tempore of the Pennsylvania Senate

Libertarian National Committee

Liberty Legal Institute

Major General John D. Altenburg, et al.

Maricopa County (Ariz.) Attorney’s office

Members of Congress and Vice-President Cheney

Mountain States Legal Foundation

National Rifle Association

National Shooting Sports Foundation

Paragon Foundation

Pink Pistols

Retired military officers

Rutherford Institute

Second Amendment Foundation

Southeastern Legal Foundation

State Firearms Associations

Texas and other states

Virginia1774.org

Women state legislators and academics

D.

PS In another interesting move, the S.Ct typically hears 2 or even 3 arguments per day. In the Heller case, they have reserved the entire day for argument, suggesting they view this matter in a serious light.

Edited February 14, 2008 by Carlos

[Catfish]

Thanks Carlos. I for one really appreciate your insight on this.

[Carlos]

More than welcome.

One other interesting thing I noticed: certain states decided to join in on a brief that lists Texas as the principle author. The states backing Heller are (note: list incomplete - *!&%$# PDF file!)

BRIEF OF THE STATES OF TEXAS,

ALABAMA,

ALASKA,

ARKANSAS ,

COLORADO ,

FLORIDA,

GEORGIA,

IDAHO,

INDIANA,

KANSAS,

KENTUCKY,

LOUISIANA,

MICHIGAN,

MINNESOTA,

MISSISSIPPI,

MISSOURI,

MONTANA,

NEBRASKA,

NEW HAMPSHIRE,

NEW MEXICO,

NORTH DAKOTA,

OHIO,

OKLAHOMA,

PENNSYLVANIA,

SOUTH CAROLINA,

SOUTH DAKOTA,

UTAH,

VIRGINIA,

WASHINGTON,

WEST VIRGINIA,

WYOMING

Edited February 14, 2008 by Carlos

[XRe]

31 states on that list (which is incomplete?)... Pretty convincing, to me.... of course, I'm not on the Supreme Court, either, so....

[Carlos]

2 interesting developments in the case:

1) Oral argument set for March 18, BUT they denied TX' request to argue and granted the anti-gun solicitor general's argument time - indicating at a minimum they are interested in hearing out his position that strict scrutiny does not apply and that the case ought to be remanded. Here is the story, thanks to the legal times:

Gun Case Argument Schedule is Set

By Tony Mauro

Legal Times

February 25, 2008

In a brief order on today's order list the Supreme Court dashed the hopes of gun rights advocates who hoped to have two lawyers and additional time arguing their cause before the Supreme Court when it hears arguments in the historic case D.C. v. Heller on March 18.

Without explanation, the Court denied the motion of Texas Solicitor General R. Ted Cruz for argument time on the side of Alan Gura of Gura & Possessky, who has argued the pro-Second Amendment position from the start of the case.

But the Court did agree to give Solicitor General Paul Clement 15 minutes to argue, in addition to the 30 minutes for each side in the case.

The Court's action can be read as a small but not insignificant victory for supporters of D.C.'s handgun control ordinance at issue in the case.

Cruz had argued to the Court that he should be heard on behalf of 31 states favoring a broad view of the Second Amendment, because Solicitor General Paul Clement's brief in the case is "contrary" to the position of gun rights supporters. While Clement supports an "individual right" view of the Second Amendment, he advocates a standard of review that critics say will allow too many gun regulations to stand. Clement also urged vacating and remanding the lower court ruling of the U.S. Court of Appeals for the D.C. Circuit in the case, the first ever to strike down a gun regulation on Second Amendment grounds. Walter Dellinger of O'Melveny & Myers, who will argue in defense of the D.C. handgun ban, had opposed the Texas motion, but supported Clement's request for added argument time.

It is very common for the Court to say yes to a request from the solicitor general for argument time as amicus curiae no matter where he stands. As for states, in recent years they have won argument time with greater frequency — four times last term alone — though this term the success rate has been lower. One factor working against Texas in the D.C. case is that states are not unanimous on the Second Amendment issue; New York, joined by Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico, filed a brief on the gun control side.

So, even though Clement's brief lends support to both sides, the net effect of today's Court action is that the justices will hear 45 minutes of advocacy from those who want the lower court ruling eliminated, and 30 minutes from those who want it upheld.""

2) In another development, Montana is warning that if the S.Ct. does not affirm the individual right of citizens to own guns, then Montana's agreement to join the USA could be invalid (wild stuff here - but they are NOT kidding about this).

Here is the LINK or try:

http://www.washingtontimes.com/apps/pbcs.d.../757685551/1002

Edited February 25, 2008 by Carlos

[XRe]

I think I'm moving to Montana, cold or not!

[chp5]

I think I'm moving to Montana, cold or not!

I'm right behind you!

[1911user]

Let's not derail this into a Montana thread. It has stayed mostly on-topic and open so far.

Edited February 25, 2008 by 1911user

[Carmoney]

Click the following links below to read the amicus briefs filed yesterday in support of the petitioner in the upcoming case District of Columbia v. Heller (07-290).

If anyone in this shooting community happens to be a member of any of those listed organizations that support the District's position, I want to personally invite you to disavow and disassociate yourself from it.

This is exactly the reason why I refuse to join the American Bar Association. I won't financially support, and I certainly will not be a member of, an organization that supports virulent gun control. Piss on 'em.

[chp5]

This is exactly the reason why I refuse to join the American Bar Association. I won't financially support, and I certainly will not be a member of, an organization that supports virulent gun control. Piss on 'em.

Agreed. I was a member for only one year after graduation. Then I got smart . . .

Edited February 26, 2008 by chp5

[chp5]

1) Oral argument set for March 18, BUT they denied TX' request to argue and granted the anti-gun solicitor general's argument time - indicating at a minimum they are interested in hearing out his position that strict scrutiny does not apply and that the case ought to be remanded.

Carlos - besides what your wrote above, do you read anything into that development?

Also - any idea when the Court will issue an opinion?

[XRe]

Carlos - besides what your wrote above, do you read anything into that development?

I'm not Carlos... but I'm wondering the same thing. I took it to mean that the Court might already be leaning in a direction....