Supreme Court

[Alan Meek]

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?

Cy,

I thought that the decision was expected to be released in July.

Alan

[mpolans]

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?

I'm not Carlos either, but it means Paul Clement is going to try to screw us out of a 'strict scrutiny' standard and SCOTUS is probably leaning toward agreeing with him. It's going to be another hollow "victory."

[chp5]

I'm not Carlos either, but it means Paul Clement is going to try to screw us out of a 'strict scrutiny' standard and SCOTUS is probably leaning toward agreeing with him. It's going to be another hollow "victory."

I really hope you're wrong!

Why would the second have lowered scrutiny than, say, the first? I don't get it . . .

[Carlos]

Decision expected in June or July. North's post on the prior page (page 8) quotes the central premise of the S.G.'s position. (quoted in part et the end of this post).

So, will the S. Ct. follow the S.G.'s suggestion and remand to the D.C. Circuit?

Possibly. Why? A few reasons I can think of:

1) The S.G. asserts that the D.C. Circuit did not employ the correct standard (strict v. mid level scrutiny), and therefore the outcome of the D.C. Circuit's analysis is flawed. But, the S.Ct. cannot simply take over for the D.C. Circuit and apply the "correct" standard suggested by the S.G.

Why?

Because the Supreme Court is an appellate body whose function is to adjudicate, not to create, a factual record and they typically review the record as it existed before the court below, in light of the arguments made on appeal. Therefore, the most prudent course of action could be to remand for further fact finding (question of fact) under the new standard given to the D.C. Circuit by the S. Ct. (question of law having been resolved).

I believe such an outcome would be unfortunate. But again, is it likely? Another thought:

2) Justices discuss and debate decisions during lengthy conferences. Like jury deliberations, these discussions are not public, and thus no one can verify the exact process. But it appears that compromise is common. A remand could resolve a possible impasse. Alternatively, Justices have the option of concurring, dissenting, or entering a combination of these dispositions. In addition, remands from the S. Ct. are extremely common.

3) Is there any cause for optimism here? The ONLY thing I can find is the following possible flaw in the S.G.'s reasoning:

"whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02, can properly be interpreted (as petitioners contend, see Br. 56) in a manner that allows respondent to possess a functional long gun in his home."

Problem is, the S.Ct. has already selected its OWN wording of the issue presented, and that issue squarely asks whether handguns are included in the 2nd amendment (provided its an individual right). The S.G.'s proposal seems to dodge the question - or at least posit that a ban on handguns is compatible with a finding that the 2nd amendment is an individual right -something which the S.Ct. seems unwilling to find if I read their question correctly.

In any event, here is the S.G.'s quote, thanks to North:

"When, as here, a law directly limits the private possession 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 restrictions 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 enforcement 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 prohibiting the possession of certain firearms, including

machineguns. However, the text and history of the Second Amendment point to a more flexible standard of

review.

The determination whether those laws deprive respondent of a functional firearm depends substantially on whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02, can properly be interpreted (as petitioners contend, see Br. 56)

in a manner that allows respondent to possess a functional long gun in his home. 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.

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 adequate, initial examination of those issues is typically

better reserved for the lower courts."

[austinkroe]

Good post Carlos. Thanks for the info.

Is anyone else thinking there may be a plurality opinion on this one? I think it would be yet another way for them to dodge the bullet on the national scale for this case.

[JThompson]

You can make all the guesses you want and none of it means shit until the court rules.

[Carlos]

You can make all the guesses you want and none of it means shit until the court rules.

Tell us something we don't know.

Update: Last shot fired by D.C.; they have filed their response brief (see link). Court rules do not permit a response. This is it folks!

Nothing surprising in D.C.'s brief. They had the nerve to cite to a March 4, 2008, editorial by Lawrence Tribe, a noted liberal law professor who reluctantly admits that the 2nd is an individual right, but who still urges the Justices to allow all manner of restrictions on gun ownership. I hope the Court resents D.C.'s attempt to tell them to follow a newspaper op-ed in interpreting the Constitution, even if the op-ed was authored by Lawrence Tribe.

LINK TO SCOTUSBLOG

I spoke with another be.com lawyer (as opposed to a range lawyer) about our side's prospects. The fact that the solicitor general took the position he did, coupled with the relatively minor fact that he was granted 15 minutes to argue (commonplace, but possibly meaningful) left us far less optimistic that the Circuit Court's decision would be affirmed as it stands (strict scrutiny).

My prediction: expect a remand. Strict scrutiny is likely off the table. Nevertheless, a S.Ct, declaration that the 2nd is an individual right is still a major win, considering that 11 of 13 Circuits now state individuals have NO right to own a firearm of any type.

Interesting angle: the briefs make abundantly clear that whatever the central purpose of the 2nd is determined to be, it will NOT be "sporting" use. How so? The "militia" referred to in the 2nd is either 1) a state militia, like the national gaurd, which has nothing to do with hunting, or 2) the militia refers to individual citizens who own firearms, but by using the term "militia", the founding fathers would have been referring to certain types of arms, such as those types of arms suitable for "security" as mentioned in the 2nd. These types of civilian-owned "militia arms" might also have had other uses including: second: self-defense and a very distant third: hunting. So, if individuals have any right to own and bear firearms, the FIRST arms we get to keep are military-style guns.

Thus, could such a decision gut government restrictions that are based on "sporting" purposes?

Maybe.

Like what?

-import regs. Guns, including some Glocks, are banned from import because they are not "sporting" enough for the government. That might be unconstitutional.

-Aspects of NFA: some guns are heavily restricted because they are not "sporting" enough - like Alex Wakal's USAS-12 shotgun (wrongly ID's in this month's Front Sight), which the gov determined is a "destructive device" even though its as suitable as a Saiga for our sport.

It might just turn out that the government could restrict or ban hunting guns and olympic target guns, while protecting your right to own ARs and AKs. We should know by June.

Edited March 11, 2008 by Carlos

[Carlos]

THERE IS HOPE!

The Solicitor General is rumored to be considering amending his position when he actually faces the Justices during oral argument! Here is the article:

March 13, 2008

The Administration's Gun Battle

By Robert Novak

WASHINGTON, D.C. -- Preparing to hear oral arguments Tuesday on the extent of gun rights guaranteed by the Constitution's Second Amendment, the U.S. Supreme Court has before it a brief signed by Vice President Cheney opposing the Bush administration's stance. Even more remarkably, Cheney is faithfully reflecting the views of President George W. Bush.

The government position filed with the Supreme Court by U.S. Solicitor General Paul Clement stunned gun advocates by opposing the breadth of an appellate court affirmation of individual ownership rights. The Justice Department, not the vice president, is out of order. But if Bush agrees with Cheney, why did the president not simply order Clement to revise his brief? The answers: disorganization and weakness in the eighth year of his presidency.

Consequently, a Republican administration finds itself aligned against the most popular tenet of social conservatism: gun rights that enjoy much wider support than opposition to abortion or gay marriage. Promises in two presidential elections are abandoned, and Bush finds himself left of Democratic presidential candidate Sen. Barack Obama.

The 1976 District of Columbia statute prohibiting ownership of all functional firearms a year ago was called unconstitutional in violation of the Second Amendment in an opinion by Senior Judge Laurence Silberman, a conservative who has served on the D.C. Circuit Court for 22 years. It was assumed Bush would fight Washington Mayor Adrian Fenty's appeal.

The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court. The solicitor general argued that Silberman's opinion supporting individual gun rights was so broad that it would endanger existing federal gun control laws such as the bar on owning machine guns. The president could have ordered a revised brief by Clement. But under congressional Democratic pressure to keep hands off the Justice Department, Bush did not act.

Cheney did join 55 senators and 250 House members in signing a brief supporting the Silberman ruling. While this unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional legislative branch role as president of the Senate.

That has not lessened puzzlement over Clement, a 41-year-old conservative Washington lawyer who clerked for Silberman and later for Supreme Court Justice Antonin Scalia. Clement has tried to explain his course to the White House by claiming he feared Justice Anthony Kennedy, the Supreme Court's current swing vote, would join a liberal majority on gun rights if forced to rule on Silberman's opinion.

The more plausible explanation for Clement's stance is that he could not resist opposition to individual gun rights by career lawyers in the Justice Department's Criminal Division (who clashed with the Office of Legal Counsel in a heated internal struggle). Newly installed Attorney General Michael Mukasey, a neophyte at Justice, was unaware of the conflict and learned about Clement's position only after it had been locked in.

A majority of both houses in the Democratic-controlled Congress are on record against the District of Columbia's gun prohibition. So are 31 states, with only five (New York, Massachusetts Maryland, New Jersey and Hawaii) in support. Sen. Obama has weighed in against the D.C. law, asserting that the Constitution confers individual rights to bear arms -- not just collective authority to form militias.

This popular support for gun rights is not reflected by an advantage in Tuesday's oral arguments. Former Solicitor General Walter Dellinger, an old hand at arguing before the Supreme Court, will make the case for the gun prohibition. Opposing counsel Alan Gura, making his first high court appearance, does not have the confidence of gun-owner advocates (who tried to replace him with former Solicitor General Ted Olson).

The cause needs help from Clement in his 15 minute oral argument, but not if he reiterates his written brief. The word was passed in government circles this week that Clement would amend his position when he actually faces the justices -- an odd ending to bizarre behavior by the Justice Department.

http://www.realclearpolitics.com/articles/...gun_battle.html

""

end quote

[chp5]

Carlos - thanks again for your updates on this important topic.

[North]

Thanks Carlos, you sure helped a bad day get better.

[davidwiz]

The US Supreme Court has a history of issuing decisions that make things more murky rather than provide a definite ruling. I highly doubt that there will be an ruling that either side likes.

Most likely the ruling will be something like this: the DC gun ban will be overturned, the 2nd Amendment is about individual rights rather than collective (they might not even make a decision about this issue), but that the states and gov't are able to enact gun control laws (but, as always, the USSC will not go further than that and say what forms of gun control are constitutional, leaving that issue for another day). If this type of ruling occurs, not much has changed, except for the residents of DC.

[Carlos]

Most likely the ruling will be something like this: the DC gun ban will be overturned, the 2nd Amendment is about individual rights rather than collective (they might not even make a decision about this issue), but that the states and gov't are able to enact gun control laws (but, as always, the USSC will not go further than that and say what forms of gun control are constitutional, leaving that issue for another day). If this type of ruling occurs, not much has changed, except for the residents of DC.

Hi David,

While I do not disagree with your prediction (how could I?) I do disagree with your statement: "not much has changed" (if the S.Ct. finds an individual right to own firearms).

Why?

Currently, there is no individual right to own a firearm under our Constitution. Of the 13 Federal Courts of Appeals, (the ones who actually interpret laws) 11 of the 13 have determined that there is no individual right to own a firearm. One of the only two Courts who think you do have a right to own a firearm is the D.C. Circuit, where the reality is that most guns are effectively banned. Believe what you want about your right to own a gun; the fact is, that right does not exist. Our opinions are meaningless because its the Federal circuits who determine the law and gun prosecutions follow the law handed down from the Circuits.

NOW you see why the Supreme Court case of D.C. v. Heller (to be argued on Tuesday) is so important.

Today, we own only the guns, but we have no right to them. In Heller, we stand to actually obtain the individual right to own our firearms. That right might be important as we WILL have new president in 2009.

Regards,

D.

[mpolans]

Most likely the ruling will be something like this: the DC gun ban will be overturned, the 2nd Amendment is about individual rights rather than collective (they might not even make a decision about this issue), but that the states and gov't are able to enact gun control laws (but, as always, the USSC will not go further than that and say what forms of gun control are constitutional, leaving that issue for another day). If this type of ruling occurs, not much has changed, except for the residents of DC.

Hi David,

While I do not disagree with your prediction (how could I?) I do disagree with your statement: "not much has changed" (if the S.Ct. finds an individual right to own firearms).

Why?

Currently, there is no individual right to own a firearm under our Constitution. Of the 13 Federal Courts of Appeals, (the ones who actually interpret laws) 11 of the 13 have determined that there is no individual right to own a firearm. One of the only two Courts who think you do have a right to own a firearm is the D.C. Circuit, where the reality is that most guns are effectively banned. Believe what you want about your right to own a gun; the fact is, that right does not exist. Our opinions are meaningless because its the Federal circuits who determine the law and gun prosecutions follow the law handed down from the Circuits.

NOW you see why the Supreme Court case of D.C. v. Heller (to be argued on Tuesday) is so important.

Today, we own only the guns, but we have no right to them. In Heller, we stand to actually obtain the individual right to own our firearms. That right might be important as we WILL have new president in 2009.

Regards,

D.

Yes, but as we discussed before, even if it's found to be an individual right, there's still the incorporation issue. And, as much as I'd love to see them go with a strict scrutiny standard of review instead of something less, I just don't think Clement will be able to get up at oral arguments, say, "Just kidding!" and unring that bell. If it's found to be an individual right and they go with intermediate scrutiny, we're pretty much right back where we started. Heck, its conceivable that a DC residents might still face a gun ban under such a ruling.

[walangkatapat]

Hope for the best, prepare for the worst.

[warpspeed]

What is so cool about all this is that the system is finally working like it should.

When the Appeals Courts disagree the SCOTUS is suppose to settle it as one unified decision. It will be very interesting to read the for and against after it is all done to get a view into how they will come up with their decisions.

[Miranda]

been following this a while.

I am very surprised this challenge to DC's handgun ban has taken so long to get to this point.

that is background for the reason I post

Ummm the least resolution is the most like out come.... I think.

and I find my self wondering what would it take to get the

S.Ct. to decide on the issue?

Forgive me the new word in this.

Isn't this an infringement question?

A Question of whether or not the right given in the second amendment has been infringed?

I can see the individual right interpretation/concept has a place in the answer...

this right is pretty clear to me

the resolution of the American Civil war

pretty much put paid the concept that the RTBA is not a state and collective right...

so that leaves only individual rights here.

miranda

[davidwiz]

Yes, but as we discussed before, even if it's found to be an individual right, there's still the incorporation issue.

Very true, the 2nd has never been incorporated into the 14th, like a lot of the other Bill of Rights have. For those of you playing at home, that means that the 14th Amendment, which was basically forced down the Confederate States' collective throats at the end of the US Civil War so that the original Bill of Rights was binding upon the states.

However, not all of the Bill of Rights have been incorporated into the 14th Amendment, such as the 2nd, 3rd, 5th, 7th and 8th. But, a lot of state's constitutions contain some or all of these rights. More info here.

[davidwiz]

While I do not disagree with your prediction (how could I?) I do disagree with your statement: "not much has changed" (if the S.Ct. finds an individual right to own firearms).

Why?

Currently, there is no individual right to own a firearm under our Constitution. Of the 13 Federal Courts of Appeals, (the ones who actually interpret laws) 11 of the 13 have determined that there is no individual right to own a firearm. One of the only two Courts who think you do have a right to own a firearm is the D.C. Circuit, where the reality is that most guns are effectively banned. Believe what you want about your right to own a gun; the fact is, that right does not exist. Our opinions are meaningless because its the Federal circuits who determine the law and gun prosecutions follow the law handed down from the Circuits.

NOW you see why the Supreme Court case of D.C. v. Heller (to be argued on Tuesday) is so important.

I know that Heller is important. My point was, that even if the USSC holds that the 2nd is an individual right, in all likelihood, they are going to say that it isn't an absolute right, and that there can be some regulation of firearms. The Court will end there, and not say what types of firearm regulation is constitutional, leaving the issue for another day - which is where we are now - hence my statement that nothing really would have changed. If this is the result, then there is going to need to be more litigation in many different federal districts for this issue to reach the USSC court again so that the USSC can "clarify" WTF they meant.

At best, the Court will void the DC handgun ban, which would be good.

[BigDave]

Today, we own only the guns, but we have no right to them. In Heller, we stand to actually obtain the individual right to own our firearms. That right might be important as we WILL have new president in 2009.

Regards,

D.

Ummm...so if it isn't enumerated, it isn't a right? Is that what we're getting at? While property ownership isn't explicit, you would have to deal with the 5th and 14th in terms of the gov't ever thinking of arbitrarily taking them away, right?

Edited March 17, 2008 by BigDave

[Alan Meek]

Today, we own only the guns, but we have no right to them. In Heller, we stand to actually obtain the individual right to own our firearms. That right might be important as we WILL have new president in 2009.

Regards,

D.

Ummm...so if it isn't enumerated, it isn't a right? Is that what we're getting at? While property ownership isn't explicit, you would have to deal with the 5th and 14th in terms of the gov't ever thinking of arbitrarily taking them away, right?

Dave,

What I think Carlos (Doug) was trying to say here is although we have a right to firearms ownership, we have had a judicial system that their opinion was we do not have an individual right.

Alan

[BigDave]

Today, we own only the guns, but we have no right to them. In Heller, we stand to actually obtain the individual right to own our firearms. That right might be important as we WILL have new president in 2009.

Regards,

D.

Ummm...so if it isn't enumerated, it isn't a right? Is that what we're getting at? While property ownership isn't explicit, you would have to deal with the 5th and 14th in terms of the gov't ever thinking of arbitrarily taking them away, right?

Dave,

What I think Carlos (Doug) was trying to say here is although we have a right to firearms ownership, we have had a judicial system that their opinion was we do not have an individual right.

Alan

Great point. A bit of tunnel vision on this end.

[itento]

I understand that the audio of the oral argument will be available tomorrow. Does anyone know where?

[SteveZ]

both guntalk.com and downrange.tv said that they'll have audio tomorrow/wednesday

[Alan Meek]

also watch scotusblog they will have also have info

[walangkatapat]

Today, we own only the guns, but we have no right to them. In Heller, we stand to actually obtain the individual right to own our firearms. That right might be important as we WILL have new president in 2009.

Regards,

D.

Ummm...so if it isn't enumerated, it isn't a right? Is that what we're getting at? While property ownership isn't explicit, you would have to deal with the 5th and 14th in terms of the gov't ever thinking of arbitrarily taking them away, right?

Dave,

What I think Carlos (Doug) was trying to say here is although we have a right to firearms ownership, we have had a judicial system that their opinion was we do not have an individual right.

Alan

Activist judges.