Balkinization: The Heller Case and the 2008 Election: Has the Supreme Court Helped the Democrats?

Comments:

Win or lose it hurts the Democrats, by raising the saliency of a losing issue they've been trying their best to duck. Sometimes literally by posing with dead ducks.

A ruling in Heller can't energize the gun control movement, because there isn't any gun control movement to energize, for any practical purpose. Just astroturf, funded by a few liberal foundations.

# posted by

Brett : 8:31 PM

One thing that I have not seen addressed in the commentary on Heller, but that I genuinely want to know: Let's say that the Supreme Court does just what you say it will. 2nd Amendment protects some individual right, subject to reasonable restrictions. Does anyone think this would lessen resistance to mandatory registration, ballistic fingerprinting, and similar measures?

Right now, proposals to implement those measures are typically met with claims that registration is the first step toward confiscation, and the next thing you know the Black Helicopters have imposed U.N. rule, etc. But if that final step--outright bans--were credibly removed, then registration couldn't be the first step on a slippery slope.

Or am I attributing too much rationality here? Did bans on prior restraint or viewpoint discrimination make people more or less willing to accept time/place/manner restrictions? Or, by reinforcing that this is a constitutional right, will it make anti-gun forces more reticent to compromise on something like this.

# posted by

Andrew : 8:44 PM

"Right now, proposals to implement those measures are typically met with claims that registration is the first step toward confiscation,"

Understandably so, since they do have a history of proving to be exactly that, both abroad, and in some jurisdictions here at home. (NYC, for instance.)

The problem is that you're not attributing enough rationality here: Gun owners are rationally aware that even if outright confiscation were barred, petty and not so petty harassment remains a very real threat.

# posted by

Brett : 9:07 PM

Further, you're failing to consider that gun owners, being well informed about firearms, recognize problems with these schemes that you don't notice, and which their advocates have reason to gloss over. Ballistic fingerprinting being a great example of this: It doesn't work! In practice, it's just another way to drive up the cost of firearms, in order to discourage ownership of them.

# posted by

Brett : 9:20 PM

I think it interesting the US Supreme Court has shown interest in this matter. It certainly is one of the most anachronistic appearing parts of a constitution written when fish ran aplenty in streams whose watersheds extended into mountains beyond which wagon trains had yet to find viable dirt trails into the Louisiana Territory or beyond. All one might have needed in those times to add some pluck to the most pacified of brave individualists in the colonies newly turned independent nation might have been a recalcitrant bear with a taste for one's farm animals, or brave enough to pilfer the larder of empty cabins, to demonstrate the need for personal arms. But the well ordered militia is a problematic concept in modern civilized terms, absolutely irrelevant to Times Square or the mall in any city. Yet, these cases incrementally addressing social malaise by banning arms handicap their advocates on both sides of argument. Additonally, there is likely a military argument that the well ordered militia, as National Guard, actually is what is helping regulars and mercenaries operate the occupation of Iraq currently.
Then we arrive at the spectacle of the conservatives appealing to common sense to justify a modern state which is based on surveillance and torture of its stateless enemies, and one recognizes how very scantily the veneer of society covers baser instincts.
There is hyperbole from the right seeking to find one liberal who will take a well considered stand against an individual right to own arms in these times. It is a conflicted issue at best, absent the rhetoric of blame and guilt.
I predict sociologic help agency strengthening encouraged by whatever the Supreme Court decides in this unripe matter, and a paucity of liberals willing to go to this particular mat over a ban of arms in a restive neighborhood with unique representational status, isolated by its geographic and governmentally deprived condition. Imagine selecting a few precincts for a gun ban in every metropolis which houses socioeconomically downtrodden.

# posted by

JohnLopresti : 9:28 PM

I don't see it.
The Supreme Court NEVER issues rulings broader than required to reach a result sought by either party. Here is can easily strike down the DC law as violating the Second Amendment without recognizing any 'right' to bear arms.

The issue on which cert has been granted has nothing to do (even by implication) with state militias or state and local legislation. The Court has only decided to hear a challenge to a federal law on firearms possession. So its ruling will only tell us whether these DC laws -- federal in nature -- violate the Second Amendment. However the Court rules on that question, its decision will have no implication on the ability, or not, of state and local governments to pass gun laws. The Supreme Court settled this point as far back as Presser v. Illinois in 1886 -- in case clarification ws required, especially in light of the 14th Amendment, by holding that the Second Amendment only restrains Congress (and it's delegees such as, here, DC). It does not restrain State and local governments. End of story.

This is a very limited case about a very limited point of Constitutional law. If the DC laws are struck down, then, yes, some federal firearms legislation will be called into question. But all state and local legislation -- such as the similar city ordinance in Chicago -- will be free from Contitutional challenge.

So I predict a ringing affirmation of the continued validity of Presser which on the one hand defuses the gun issue nationwide, while at the same time striking down the federal law.

DAJ Hilton

# posted by

???? : 11:15 PM

Republicans support various types of gun regulations. Warren Burger, a conservative, supported the "collective rights" view. Democrats quite often support an individual rights view. The major Dem candidates for President (including Edwards) did in 2004.

If the Dems have any policy it is probably reasonable regulation. They as a whole simply would not be appalled if some basic right to own -- with regulation -- was the result. In fact, the D.C. ruling listed various regulations that were acceptable, some the NRA probably have problems with.

If you go the SCOTUSBlog, you can see the Supremes phrased the question to be argued to be if a person at home -- outside of a state regulated militia -- has his/her rights violated by the law at hand.

I think the 2A as such considers all citizens to be members of the militia, potentially or in active service. But, anyway, I also think the 2A is a pretty limited way to protect gun rights. By design, it focuses on one aspect.

If we are going to be concerned with people outside of the state regulated militia anyway, why not base things on some general fundamental rights principle? Blacks and women who raise equal protection concerns highlight the potential.

In fact, since the question asked emphasizes guns "in the home," privacy rights seems like one way to go. If the home is a special place privacy-wise, so would protecting it.

# posted by

Joe : 11:17 PM

carlor ... in Presser's day, the Bill of Rights as a whole was not applied to the states.

If an individual right is held to exist, it would logically be fundamental, and have some application to the states under the doctrine that grew up since then. They might try, but limiting it to the federal gov't is pretty tricky.

In fact, I'm a bit surprised they took the case. It only applied to D.C. A follow-up hearing limited its terms somewhat. And, though the circuits disagree on the meaning of the 2A, it really has not led to some major split in actual cases. The 5th UPHELD the reg. in question.

# posted by

Joe : 11:28 PM

It is interesting that the prevailing opinion among liberal academicians is that the Supremes will recognize that the Second Amendment protects an individual right to keep and bear arms. I wonder if this is a result of the scholarship over the past 15 years or simply an assumption that the five "conservatives" will vote against D.C.

Given his history, no individual right proponent should assume Kennedy's vote. I can easily see him sacrifice the Second Amendment to stare decisis.

However, the Court's reformulated question asking about keeping arm in one's own home does appear to be formulated to achieve an individual rights result.

# posted by

Bart DePalma : 6:14 AM

"In fact, I'm a bit surprised they took the case. It only applied to D.C."

But D.C. is the district where the federal government lives; Once THAT district held the 2nd amendment to be an individual right, anyone anywhere in the country could sue in D.C. to get a federal gun law overturned.

Next up, obviously, was going to be the federal ban on new machine guns... When you combine Miller's test concerning military utility with the District's conclusion it's an individual right, striking down a ban on ownership of the exact same arms we're handing out to our soldiers is something of a slam-dunk, logically.

"If the Dems have any policy it is probably reasonable regulation. "

If voting records in Congress are any guide, the problem is what Democrats consider "reasonable": Something not far short of D.C.'s absolute ban.

# posted by

Brett : 6:26 AM

Historian Saul Cornell's "A Well Regulated Militia" takes an approach quite different from constitutional law scholars on both sides of the issue. I would be interested in responsible critiques of Cornell by such scholars. Right now I am convinced that the historians have the edge over the constitutional law scholars on the original meaning/understanding of the Second Amendment.

# posted by

Shag from Brookline : 6:49 AM

Right now I'm convinced, based on the fact that Bellesiles was given the Bancroft award for historical writing after his book on how there wasn't any gun culture to speak of in the founding era was exposed as a work of fiction, that historians as a group aren't to be trusted on any subject with current political implications.

And Saul Cornell isn't a disinterested scholar, he's a paid propagandist for the gun control movement; Pretending that it's constitutional is his job. He runs their main propaganda mill.

# posted by

Brett : 7:18 AM

Saul Cornell addresses not the gun culture but the militia and its role back when. I'm interested in responsible challenges of constitutional law scholars to the details provided by Cornell regarding the militia. Should the role of historians be meaningless because of the missteps of one historian? How might such a test be applied with respect to the missteps of so many constitutional law scholars on both the left and the right over the years?

# posted by

Shag from Brookline : 8:25 AM

Politics off the bench--and on. As Posner wrote a few years back:

"It is no longer open to debate that ideology...plays a significant role in the decisions even of lower court judges when the law is uncertain and emotions aroused. It must play an even larger role in the Supreme Court, where the issues are more uncertain and more emotional and the judging less constrained."

Richard Posner, "Foreward: A Political Court," 119 Harv. L. Rev. 32, 48-9 (2005).

# posted by

dah : 9:57 AM

"Once THAT district held the 2nd amendment to be an individual right, anyone anywhere in the country could sue in D.C. to get a federal gun law overturned."

A resident of NY with no connection to the district can sue in DC to get a federal law overturned if the DC Circuit decided on the general subject?

Likewise, the courts tend to go slowly. Even the DC Court, as I said, listed various regulations that it deemed probably legitimate. The idea federal machine guns would be the next test case is a pretty big leap.

As to voting records, the Dems controlled Congress about a half decade, including thru various Democrat presidents. Where are all these federal laws akin to the DC law at issue? Or the need for a R. president to veto said bans?

# posted by

Joe : 1:23 PM

Yes, I'm curious, Brett. We know you have strong opposition to what Democrats consider reasonable firearms restrictions. What, if anything, would you consider reasonable regulation?

# posted by

Essayist-Laywer : 2:50 PM

"A resident of NY with no connection to the district can sue in DC to get a federal law overturned if the DC Circuit decided on the general subject?"

Yup. Because the federal government has that connection.

"What, if anything, would you consider reasonable regulation?"

A fair question. Keeping in mind that, as a matter of enumerated powers doctrine, the federal government isn't entitled to enact even reasonable firearms regulations outside of the District of Columbia, and land it buys with the permission of state legislatures, let's discuss what a state governments are entitled to regulate.

I would say that state governments are clearly entitled to regulate aspects of firearms use which involve disproportionate danger even if due care is taken. To give an example of this sort of reasonable regulation, a state might reasonably demand that you use only frangible ammunition indoors, outside of specially constructed structures such as gun ranges.

# posted by

Brett : 3:37 PM

Due, of course, to the danger ordinary ammunition poses to innocent bystanders who happen to be on the other side of a wall, out of your view. ;) Frangible ammunition being intended to not penetrate ordinary building walls...

In a First amendment context, the government could not note that you could kill somebody by hitting them over the head with a printing press, and accordingly ban the sale of printing presses that aren't made of foam rubber. Why should it be able to ban you from owning weapons capable of killing, if they're not in fact going to wrongly kill unless you set out to do so? The government isn't entitled to ban you from exercising a civil liberty on the assumption that you exercise it with malign intent.

But a weapon which is unreasonably likely to cause a death you don't intend, and thus which poses a danger to the innocent even if you don't act malignly, that is something which could be subject to regulation.

But, not banned outright, unless there were no circumstances under which you could safely use it. Because if there is a way to use it safely, then banning it outright comes back to that assumption of malign intent that the government is barred from making in the case of civil liberties.

Far too many of the 'reasonable' laws gun control advocates are in favor of do not ban inherently dangerous activities, but merely restrict the rights of the innocent on the theory that doing so will sometimes obstruct acts of deliberate malice. The represent an assumption of evil intent on the part of somebody seeking to exercise a civil right, a serious no no.

# posted by

Brett : 4:23 PM

But, not banned outright, unless there were no circumstances under which you could safely use it. Because if there is a way to use it safely, then banning it outright comes back to that assumption of malign intent that the government is barred from making in the case of civil liberties.

Far too many of the 'reasonable' laws gun control advocates are in favor of do not ban inherently dangerous activities, but merely restrict the rights of the innocent on the theory that doing so will sometimes obstruct acts of deliberate malice.

So a weapon should not be banned unless there is no way for a non-malicious person to use it safely? Frankly, I see some problems here. For instance, some firearms can fire three rounds a second. How to you "safely" fire three rounds a second? I am not satisfied with the argument that it does not matter whether a civilian has any legitimate reason to fire three rounds a second, it is his civil right to own a gun that does so even if he never uses it.

And is this rule limited to firearms? (The Second Amendment says "arms," not "firearms.") Is it my Second Amendment right to own a hand grenade? And, if so, how would I "safely" use one?

# posted by

Essayist-Laywer : 6:49 PM

"How to you "safely" fire three rounds a second?"

That's three rounds per trigger pull, not per second. Any semi-automatic firearm can be fired at three rounds a second, just by pulling the trigger that often...

Did you actually think through that question before asking it? Because the answer IS kind of obvious...

By not pointing it at anybody when you pull the trigger.

I mean, how did you think people 'safely' fire guns that only shoot one shot per trigger pull? By sacrificing a stick of beef jerky to the god of gun safety? They do it by being careful where they point the blasted gun!

The same general principle applies to hand grenade safety, only you need more room.

"The Second Amendment says "arms," not "firearms."

That's true, and one of the issues the Supreme court will eventually have to tackle, if it's not going to take a razor blade and remove this amendment from the Bill of Rights.

For my part, I find the evidence that the term "arms" was a term of art referring to the common equipment of a soldier persuasive.

# posted by

Brett : 7:45 PM

And what about the special meaning of to "bear arms"? Apparently back when, to "bear arms" was not the same as, say, merely the ability to carry the arms; rather, that it had reference to the militia as then understood.

# posted by

Shag from Brookline : 8:24 PM

True, to "bear" arms has military implications. I'm not sure that advocates of gun control are going to find much comfort in an individual right to band together and train in small arms tactics, though that's a fairer reading of the 2nd amendment than some right to hunt deer.

# posted by

Brett : 9:28 PM

This comment has been removed by the author.

# posted by

Joe : 10:18 PM

All right, Brett, so you apparently believe the Second Amendment establishes a basic civil libertarian right to own and use hand grenades, so long as you throw them in a safe direction. What would be an example of a weapon that could be legitimately banned because it can never be used safely. (And, as a general fan of free markets, who would be able to afford such a weapon anyway?)

# posted by

Essayist-Laywer : 12:21 AM

A moderately interesting development. I'll merely point out a few things.

One, the 2d amendment does not give anyone the right to own arms or to use them. Perhaps a minor distinction, perhaps not.

Two, DC is in a rather unique position since it is not a state (recall the introductory portion of the 2d amendment) and since it is ultimately controlled by Congress. The Court may very well rule that DC did not have the power to enact the gun ban on the basis that Congress did not give them the power to do so. That would avoid the 2d amendment issue altogether.

Three, if the Court decides to rule on the 2d amendment issue, it still might not apply to regulation by the states. This is because application of (some of the) provisions of the Bill of Rights apply only indirectly to the states via incorporation through the 14th amendment. That is not an issue in DC's case, since the federal government has plenary powers over DC--as well as the territories.

Four, it will be interesting to see how the opinions turn out. If the opinions of the conservative members of the Court can be read broadly enough to suggest that states cannot regulate "RKBA" (right to keep and bear arms) they will be essentially reading the introductory clause of the 2d amendment out of the Constitution. That, of course relates to "well-regulated" state militias, which, of course, are mostly regulated by the states, according to Article I.

# posted by

raj : 5:07 AM

Hey, Raj, long time, no see.

So, your position is that an amendment, part of the Bill of Rights, which includes the phrase "right of the people", guarantees nothing that bears the slightest resemblance to a right, and everybody who thought otherwise, and said so, for the first century and a half after it's ratification, is obviously wrong?

I'm curious, Raj; Have you actually read the Parker decision? Because they did include at least a little reasoning to the contrary.

Anyway, the Court could very well rule as you suggest. It would, however, be so unambiguously a naked act of constitutional usurpation that we'd probably end up with a great deal of civil unrest, possibly even a civil war. This is NOT an amendment the Supreme court should be messing with, spiking this one would be the last straw for way too many citizens.

# posted by

Brett : 6:20 AM

Thank you for the welcome, Brett.

It would be helpful if you would provide a little more information about the Parker decision that you referenced. Maybe the entire caption (including court and year) and if it's online maybe a URL.

# posted by

raj : 9:58 AM

Parker is the DC case that's been appealed to the Supreme court as Heller. This should bring you up to speed:

I have to say that I was rather disappointed with the anti's efforts in this case; I mean, sure, they're wrong, but their legal arguments scarcely even rise to the level of graceful hand waving anymore.

I think maybe their hearts aren't in it.

# posted by

Brett : 10:51 AM

This comment has been removed by the author.

# posted by

Joe : 11:15 AM

Do I sense that some of the commenters might be secretly harboring application of a sort of Cy Pres doctrine as a means of updating the Second Amendment without going through the amendment process? Isn't it possible that even with the originalist view a provision in the Constitution might become obsolete over time?

# posted by

Shag from Brookline : 11:22 AM

It came to me that the DC Cir. only decides matters for their own circuit. So if residing in NYC could even raise a claim there, the ruling would only apply to the DC Circuit, even respecting federal law.

As to enumerated powers, many enumerated powers touch upon fundamental liberties -- including this one -- which is why so many wanted a BOR in the first place. The feds can heavily tax firearms. They can regulate their sale as to mail order and the net.

They can regulate carrying them over state lines or in interstate accomodations. etc. Brett probably thinks the commerce clause has been abused, but it still has bite.

As to "keep and bear," it seems sensible to apply this to police functions (police dept. btw not really around in 1789), including home defense.

I think cheap shots about hand grenades a bit shallow. Free speech? Hey you must believe in child porn or blasting soundtracks at homes at 2AM.

As to the "antis" not having their heart in it, given the narrowness of the question, they might realize a likely result is going to be narrow (again, you can read the lower ct opinion -- they listed various regulations that they thought 'reasonable')

[With libs like Tribe and Sandy Levinson writing in support of some individual right, "antis" have problems anyway.]

I think owning a gun is among the fundamental rights, but as to the particular amendment in question, it is interesting more isn't said about the great standing army, the "select" militia serving it in ways few framers would support, and how "the people" as a whole is not respecting its overall principles.

When "militia" duties are served by police forces, a small part of the state serving in reserve units, and so forth, the core concerns of the 2A is not in practice ... even if you had a secure right to own a workable handgun in your urban home.

# posted by

Joe : 11:32 AM

Joe wrote: "It came to me that the DC Cir. only decides matters for their own circuit. So if residing in NYC could even raise a claim there, the ruling would only apply to the DC Circuit, even respecting federal law."

Actually, it's even more limited than that. It's only an ordinance of the municipal government of the District of Columbia that is challenged in this case. That's all that it's about. The ruling will apply to anyone and everyone who happens to within the ambit of that municipal ordinance -- i.e., about 500,000 people who live, work, and/or reside in DC. Otherwise, our own local gun laws -- or local state constitutional provisions prohibiting gun laws - will go on in effect regardless of how this case comes out.

Remember, the Second Amendment only applies to the federal government. This is the consistent opinion of the Supreme Court over many decades. Yes, they could change that some day. But the Heller case doesn't give them any reason to do so -- since it challenges a FEDERAL law, where we know that the Second Amendment applies.

The similar municipal ordinance in Chicago that prohibits handgun ownership will go on being valid however the Court decides Heller.

That is a no-brainer.

# posted by

???? : 11:39 AM

As to another comment ...

The minority in the DC ruling tried the "not a state" route.

The special power over the district has a bit of bit, but "free State" is quite arguably a term of art of political philosophy, reflecting the idea that in a republic, the citizenry is armed. The word "state" alone is used other places.

Ironically, in Dred Scott, Taney noted that the BOR applies to the territories, including the right to own firearms. Having a gun for self defense was also thought important by framers of the 14a, for obvious reasons.

Basically every provision btw has been applied to the states other than the 2A, grand jury and 7A. The 3A in effect was too ... see reference in Griswold.

As to that, the privacy of the home provides a safe harbor for many rights; see Lawrence v. Texas. I think it emininently sensible to include having guns for self defense. This might include more safeguards than Brett wants, but c'est la vie.

But, enough. I said too much.

# posted by

Joe : 11:42 AM

As to C's reply.

The 2A has been generally interpreted not by federal courts in recent years to secure an individual right. If the SC says otherwise, a liberty interest would exist that could be raised in some future case against the states as well.

This would be done via the 14A. The SC would have to explain why the 2A in particular should not be incorporated. Again, incorporation developed long after Presser. This would be a bit difficult. After all the 1A talks about "Congress" and the 14A's concerns included protection of blacks and one's own person.

# posted by

Joe : 11:57 AM

Hmmm . . as to Joe's comments above, I take the point but have to disagree again quite strongly.

Your view that Incorporation happens UNLESS there is an argument why it shouldn't is 100% the opposite of what a strict constructionist Court would say and not even consistent with the Warren Court's practice. As with any other new right, the burden in on the litigant advancing it to establish that they are entitled to it; not the other way around. The last time the Supreme Court considered the question of whether the Second Amendment applied to the States, it held that it did not. If someone wants to reverse that view, then the burden is on THEM to prove their entitlement; the burden is not on the Court to defend itself. If only Supreme Court litigation was that easy!

As the Court has always been clear, not all of the Bill of Rights has been incorporated (made applicable to the States); each instance of alleged incorporation needs to be reviewed on a case by case basis. The case for incorporating the Second Amendment and making it apply to the States -- hasn't arisen (successfully) yet; and Heller clearly is not it, since it involves a challenge to a federal law.

The Supreme Court does not 'have to explain why the Second Amendment is not incorporated.' Someone who disagrees with the Court's holding in Presser v. Illinois and other cases, which are still precedent, has the burden of explaining why the Second Amendment HAS been incorporated, if that is really their claim.

Remember the Supreme Court doesn't have to explain anything to anyone. And the idea that a conservative Court would take up this novel idea (that it had to explain itself before it could apply the Second Amendment as originally, and unvaryingly applied over two centures) seems remote in the extreme.

And as for the history -- well, it is clear that Incorporation did NOT develop long after Presser (1886), as claimed above. Just read the case. The Court there very clearly rejects an Incorporation argument. It holds that the Second Amendment does not apply to Illinois laws. Can't be more clear than that.

The only historically valid claim is that Incorporation did not SUCCEED until long after Presser. Until later Supreme Courts felt the urge to create new rights on their own. But the Incorporation theory certainly existed in 1886 as the Presser opinion demonstrates. Mr. Presser raised it. He just didn't succeed.

Yes, the Petitioner in Presser probably didn't cite the 14th Amendment to support his Incorporation argument, but that is neither here nor there. Constitutional law is not a game, where you are penalized for asserting a valid right but failing to put your finger on the right reason. The Court's determination that you failed to claim a valid right is final and is precedential -- until a later Court reverses course.

The Supreme Court may do that some day. But I wouldn't bet on a conservative court doing so.

# posted by

???? : 12:41 PM

The last time the Supremes decided the question as to states, Presser, was in the 1880s. A few years earlier, it held incorporation didnt hold as to the 1A either.

The doctrine is very different now. It is anachronistic to cite Presser, which did not single out the 2A. Likewise, what BOR provisions decided in recent years (again the 2A was not) is NOT applied to the states?

The grand jury and civil trial provisions. That's it. The 3A really was not even brought up, but once when it was by the 2Cir, it too was considered incorporation. Griswold cited it as protected under privacy rights as well.

To forestall confusion, I realize the SC has to be convinced. But, logically, if they hold an individual right is involved, it usually is applied these days across the board.

The courts would have to a reason to single out an individual right as only applied to the federal gov't. This is usually not done these days.

# posted by

Joe : 5:52 PM

I have to wonder whether Joe has even read Presser v. Illinois. "The Supreme Court did not single out the 2A" he says. Bizarre. Here's a two-sentence excerpt to give a flavour of the Court's extended discussion -- 'singling out' if you will -- of the Second Amendment issue:

"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. [102] 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."

This case is still precedent. It is not 'an anachronism' just because it is old; there are many older cases often cited by the Court. Nor is it an 'anachronism' just because liberal theorists of the Court would disagree with it.
That is at the core of the whole revolution in jurisprudence that the current more conversative Court is bringing about -- the rolling back of invented judicial doctrines like 'incorporation'. Do not be surprised if some day the Court actually holds in a First Amendment case, that well, actually the word 'Congress' in the First Amendment means 'Congress'. If someone wants to change that they can amend the Constitution directly to do that; not obliquely and with smoke and mirrors through 'incorporation' under the Fourteenth Amendment.

As to the point that 'The courts would have to a reason to single out an individual right as only applied to the federal gov't'. well, no, actually they don't have to have a reason; not when the Constitution set up the federal system in that way. Maybe it wouldn't seem so confusing to you if you would focus on the reality that the courts do not create, or even recognize, 'rights'. They recognize LIMITATIONS on governments and governments' abilities to infringe rights. In Heller, the Court is being asked to hold that the DC government has exceeded the limits of its ability to curb the rights (if any) that the residents of DC have to own guns. In Presser, the Court was asked to hold that the State of Illinois had exceeded the limits of its ability to curb the rights of citizens of Illinois to own guns. But, as the Court recognised in Presser, THERE ARE NO Constitutional limits on the ability of the State of Illinois to curb any gun rights that citizens of Illinois might possess. There are only Constitutional limitations on the ability of Cogress, should it attempt it, to curb the Illinois gun rights, if any there are.

The Supreme Court does NOT simply apply 'rights' across the board between the federal and state systems of law, as you claim. A vast range of things that some consider fundamental 'rights' are not enjoyed in the federal system; the whole ability to challenge a criminal conviction on constitutional grounds through a statutory habeas corpus remedy is withheld from residents of the District of Columbia, for example, while it is considered a fundamental right for all other Americans residing in the 50 states. Many other discrepancies exist.

After the Court determines Heller, we will simply have a new wrinkle on the already existing two-tier system by which citizens of the states have the potential right to bear arms (if their state law gives it to them), while residents of DC do not. There is nothing unusual about that two-tier system. That's how our federal government was set up. And it was set up that way for a reason -- to control the power of the central government. Not to control the power of States, through creating 'rights'.

# posted by

???? : 9:37 PM

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.

U S v. CRUIKSHANK, 92 U.S. 542 (1875)

This, C., is my point. Presser cannot be taken in a vacuum (I read the case btw*). It is one of many opinions in the late 19th and early 20th century that held that the BOR does not apply to the states. That is, its protections are not among the P&I etc. secured by the 14A.

This is no longer the way things are done. Case by case, the provisions were applied. This was sensible. In fact, various framers of the 14A said themselves that they thought the BOR were among the 'privileges and immunities' protected by said amendment.

Having a gun for self defense included. If not more so, since freeman needed means of self-defense. Now, you might not like how the doctrine developed. This is fine. But, a two tiered liberty approach is irregular these days. Kennedy, the swing vote, simply doesn't support it.

[Thomas and Scalia has suggested the 2A also applies to federal law overall; see, e.g., Thomas' concurrence in Printz v. U.S. So, they would not limit its reach to DC either. State law might be different for them.]

Applying past experience, my thought is that the betting person would tell ya that some individual right to own a firearm can not be easily cabined to D.C. or federal territory.

Again, I'm using reasoning here, how it would logically follow. The SC in practice can do whatever it wishes really. My pt is that given current doctrine, applying an individual right to the states -- if one is found here -- logically follows.

There is no 'obligation' to do anything. I'm not that presumptious.

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* Interestingly, a framer of the 14A was involved on Presser's side.

# posted by

Joe : 11:20 PM

if the court holds to an originalist position,should it not also apply heller to contemporaneous weaponry at the time the amendment was written? muskets and flintlocks for all...

# posted by

Unknown : 1:19 AM

Lynn asks, 'if the court holds to an originalist position,should it not also apply heller to contemporaneous weaponry at the time the amendment was written? muskets and flintlocks for all...'

The answer is simple: no. An originalist Court (like at least 4/9 of this one) knows that legislatures decide things such as which weapons would be covered by any alleged 'right to bear arms' just as an originalist Court would know that individual 'rights' of this kind are created by legislatures, state constitutions, and common law -- not by Supreme Court decisions.

The whole point of having originalist judges is to get the Court out of the right-making business. That is for the States and the People, as the last of the Bill of Rights amendments make clear, not for the Supreme Court. Thank goodness, we have at least 4 judges now who are against making stuff up as they go along. And that would include making up distinctions as to which weapons and which kinds of weapons such a right to bear arms would apply to.

Just as an originalist Court will not be making up any new 'rights to have an abortion', or 'rights to life', or 'one-man/one-vote' rights that are not in the Constitution and certainly were not imagined at the time of its adoption -- such a Court will not be creating any 'rights to bear arms'. It will keep the federal government from taking AWAY those rights -- which is what the Second Amendment instructs it to do -- but that is all.

# posted by

???? : 6:54 AM

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# posted by

Unknown : 12:14 PM