SCOTUS to hear Second Amendment case (District of Columbia v. Heller)

[A18]

Cert. granted; the reformulated question is as follows:

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

See SCOTUSblog for more.

[bullmoose88]

Always got to look at the stautes first...

§ 7-2502.02. Registration of certain firearms prohibited.



(a) A registration certificate shall not be issued for a:


(1) Sawed-off shotgun;

(2) Machine gun;

(3) Short-barreled rifle; or

(4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976, except that the provisions of this section shall not apply to any organization that employs at least 1 commissioned special police officer or other employee licensed to carry a firearm and that arms the employee with a firearm during the employee's duty hours or to a police officer who has retired from the Metropolitan Police Department.


(b) Nothing in this section shall prevent a police officer who has retired from the Metropolitan Police Department from registering a pistol.


§ 22-4504. Carrying concealed weapons; possession of weapons during commission of crime of violence; penalty.



(a) No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed. Whoever violates this section shall be punished as provided in § 22-4515, except that:


(1) A person who violates this section by carrying a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon, in a place other than the person's dwelling place, place of business, or on other land possessed by the person, shall be fined not more than $5,000 or imprisoned for not more than 5 years, or both; or

(2) If the violation of this section occurs after a person has been convicted in the District of Columbia of a violation of this section or of a felony, either in the District of Columbia or another jurisdiction, the person shall be fined not more than $10,000 or imprisoned for not more than 10 years, or both.


(b) No person shall within the District of Columbia possess a pistol, machine gun, shotgun, rifle, or any other firearm or imitation firearm while committing a crime of violence or dangerous crime as defined in § 22-4501. Upon conviction of a violation of this subsection, the person may be sentenced to imprisonment for a term not to exceed 15 years and shall be sentenced to imprisonment for a mandatory-minimum term of not less than 5 years and shall not be released on parole, or granted probation or suspension of sentence, prior to serving the mandatory-minimum sentence.

[Хahar 🤔]

James Madison really screwed up with the wording of the 2nd Amendment. It seems to be a sentence with two unrelated independent clauses.

[A18]

Though it does appear that way to the modern reader, context matters. The militia conceived of was a "populist" body, composed essentially of all able-bodied white males. The Militia Act of 1792 defined the militia to include (with a few exceptions) "each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years."

I say "was," rather than "is," only because we (the public) no longer conceive of a militia in those terms. But though it may surprise or even startle some, the United States Code still speaks in much the same terms.

10 U.S.C. §311: "The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard." The classes of the militia are "the organized militia, which consists of the National Guard and the Naval Militia" and "the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." (Many modern state statutes include women in the definition of the militia.)

Hence the solution to our puzzle. To protect the right of the individual to keep and bear arms was to provide for the preservation of an armed populace, from which our body of citizen-soldiers would be drawn. It, in turn, would protect the freedom of the country; standing armies (and "select militias," as our National Guard would aptly be termed) were too dangerous to be trusted.

As the Supreme Court said in United States v. Miller, "The debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators ... show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ... 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."

The right is thus broader than the opening salvo might seem to justify, but the relation is not nearly as attenuated as it might first appear. The study of history in law, like the fear of God in life (Proverbs 9:10), is the beginning of wisdom.

[True Federalist (진정한 연방 주의자)]

James Madison really screwed up with the wording of the 2nd Amendment. It seems to be a sentence with two unrelated independent clauses.

Depends on whether you read the version passed by Congress:
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.

Or the version sent to the States for ratification:
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.

Without the extra comma, the text is clearer.  In any case, don't blame Madison alone.  His original version read:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

[Kaine for Senate '18]

James Madison really screwed up with the wording of the 2nd Amendment. It seems to be a sentence with two unrelated independent clauses.

Depends on whether you read the version passed by Congress:
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.

Or the version sent to the States for ratification:
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.

Without the extra comma, the text is clearer.  In any case, don't blame Madison alone.  His original version read:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

I'd say that third version is the clearest, it also settles the debate, since it says explicitly the right to bear arms shall not be infringed.

[Sam Spade]

should have the decision in another minute or so.

[Sam Spade]

DC gun ban invalidated.  Heller affirmed.  Individual right and all that.  5-4 decision.

More on the opinion when I have it - the details are quite important.

[Sam Spade]

btw, only one opinion on each side.  Scalia wrote the majority.  No ambiguity for now.

CORRECTION:  There are two dissenting opinions, but no concurrences

[minionofmidas]

Without the extra comma, the text is clearer.  In any case, don't blame Madison alone.  His original version read:
The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

That makes it sound even more as if the "right of the people to keep and bear arms" is just a weird 18th century wording for the "right of towns, counties etc to maintain their own militia/watch/police force". (of course Philip has just explained why that is.) Also, I like the "in person" bit... so a conscientious objector could be forced to hire a substitute?

[A18]

The opinion can now be found here.

[minionofmidas]

10 U.S.C. §311: "The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States  (...) (Many modern state statutes include women in the definition of the militia.) (...)

As the Supreme Court said in United States v. Miller, "The debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators ... show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ... 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."

Gee, I hope they're not throwing that piece of logic to the wind. Old people like MODU and disabled people like J.J. clearly have no constitutional right to bear arms based on this. (although of course the 45 cutoff is arbitrary and could easily be found unconstitutional.)

[Sam Spade]

157 pages....  May take me a while.

[A18]

Gee, I hope they're not throwing that piece of logic to the wind. Old people like MODU and disabled people like J.J. clearly have no constitutional right to bear arms based on this. (although of course the 45 cutoff is arbitrary and could easily be found unconstitutional.)

To be clear, the point is not that the "right of the people" is confined to such men. The point, rather, is that it was perfectly logical for the framers to associate an armed civilian populace with the preservation of a well-regulated militia.

"[T]he people" is a broader body, nonetheless.

[J. J.]

10 U.S.C. §311: "The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States  (...) (Many modern state statutes include women in the definition of the militia.) (...)

As the Supreme Court said in United States v. Miller, "The debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators ... show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ... 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."

Gee, I hope they're not throwing that piece of logic to the wind. Old people like MODU and disabled people like J.J. clearly have no constitutional right to bear arms based on this. (although of course the 45 cutoff is arbitrary and could easily be found unconstitutional.)

No, it says that I don't have to join the Militia.  I wouldn't suggest that al Qaeda count on me opting out.

[minionofmidas]

Gee, I hope they're not throwing that piece of logic to the wind. Old people like MODU and disabled people like J.J. clearly have no constitutional right to bear arms based on this. (although of course the 45 cutoff is arbitrary and could easily be found unconstitutional.)

To be clear, the point is not that the "right of the people" is confined to such men. The point, rather, is that it was perfectly logical for the framers to associate an armed civilian populace with the preservation of a well-regulated militia.

"[T]he people" is a broader body, nonetheless.

And yet they continue to allow numerous exceptions - for felons, for the mentally handicapped (expressly mentioned as not reversed by this decision), historically for slaves and even free Blacks - that is to say, for anybody not conceived to be a potential member of the militia. If "the people" meant "all the people" here, certainly these exceptions wouldn't pass muster either?
Of course, there weren't many elderly people living alone when the Constitution was framed, so the matter would likely have simply escaped the framer generation's notice.
But it might be worth testing - the court has left DC's requirement to license your gun untouched (Heller didn't sue against that) and "merely" ordered them to license everybody. What if DC refuses to license persons not physically fit due to old age?

Which brings me to the point where the court's and my own ways certainly part:
I'm not buying the court's weird claim that the right to armed individual self-defense is somehow enshrined in the Constitution. Which is probably what they would strike any age-ist provision down on.

[Sam Spade]

Important language for next case (p.51, n.23):

With respect to Cruikshank's continuing validity on incorporation, a question no presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and not engage in the sort of Fourteenth Amendment inquiry required by our later cases.  Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

[minionofmidas]

Important language for next case (p.51, n.23):

With respect to Cruikshank's continuing validity on incorporation, a question no presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and not engage in the sort of Fourteenth Amendment inquiry required by our later cases.  Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

What's that mean?

[Sam Spade]

Important language for next case (p.51, n.23):

With respect to Cruikshank's continuing validity on incorporation, a question no presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and not engage in the sort of Fourteenth Amendment inquiry required by our later cases.  Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

What's that mean?

The next case will involve a state or local law making handguns practically illegal.

[Sam Spade]

Important language for next case (p.51, n.23):

With respect to Cruikshank's continuing validity on incorporation, a question no presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and not engage in the sort of Fourteenth Amendment inquiry required by our later cases.  Our later decisions in Presser v. Illinois, 116 U.S. 252, 265 (1886) and Miller v. Texas, 153 U.S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

What's that mean?

The next case will involve a state or local law making handguns practically illegal.

And I should add that, barring Kennedy movement, that little snide aside means that the right will probably be incorporated as well.

[Torie]

Maybe.

[Sam Spade]

Maybe.

I said, barring Kennedy movement.  Henceforth, the "maybe" is obvious.

[Sam Spade]

Maybe.

After thinking some more, I suspect it will be incorporated through the DP clause (the standard way).  The precedent against, although explicit, I just don't think is that strong.

After all, Scalia explicitly rejected rational-basis and any sort of balancing test for the 2nd amendment and Kennedy did not part ways one bit.  That suggests that he favors stronger judicial scrutiny in general.

Anyway, we will know in a couple of years.

[A18]

For anyone who's interested, I have posted the first part of a commentary on Heller here.

The post turned out considerably longer than I wanted it to be--and that was after cutting out the discussion of some ambiguities in Justice Stevens's dissent. But to be very brief, I think the majority made too much out of its individualist reading of "the people," which scarcely establishes a "strong presumption" that the right is exercised individually.