Quote (psw @ Sun, Jun 29 2008, 08:27pm)
I have a serious question for everyone.
In thinking through the Heller decision that was handed out last week by SCOTUS, I have become stumped on whether guns should be regarded as (1) a prosthesis or (2) an instrument? And what would be the implications of either?
For those of you not knowing this case I copied an wiki version to help clarify your opinionsDistrict of Columbia v. Heller, 554 U.S. ___ (2008) is a legal case in which the Supreme Court of the United States held that the Second Amendment to the United States Constitution protects an individual's right to possess a firearm for private use. It was the first Supreme Court case in United States history to address directly whether the right to keep and bear arms is a right of individuals or a collective right that applies only to state-regulated militias.
On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).[1] The Court of Appeals had struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, and determined that handguns are "Arms" that may not be banned by the District of Columbia (Washington, D.C.), also striking down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock."
Contents
[edit] Background
In 2002, Robert A. Levy, a Senior Fellow at the Cato Institute, began vetting plaintiffs with Clark M. Neily III for a planned Second Amendment lawsuit that he would personally finance. Although he himself had never owned a gun, as a Constitutional scholar he had an academic interest in the subject and wanted to model his campaign after the legal strategies of Thurgood Marshall, who had successfully led the challenges that overturned school segregation.[2] They aimed for a group that would be diverse in terms of age, race, and economic background. They eventually picked Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, George Lyon and Dick Heller. Before the case, Levy knew only Tom Palmer, a colleague from the Cato Institute, and none of the six knew each other.[3]
Previous federal caselaw pertaining to the question of an individual's right to bear arms included United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
[edit] District Court
In February 2003, the six residents of Washington, D.C. filed a lawsuit in the District Court for the District of Columbia, challenging the constitutionality of provisions of the Firearms Control Regulations Act of 1975, a local law enacted pursuant to District of Columbia home rule. This law restricted residents from owning handguns, excluding those grandfathered in by registration prior to 1975 and those possessed by active and retired law enforcement officers. The law also required that all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock."[4] The District Court dismissed the lawsuit.
[edit] Circuit Court of Appeals
On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson, Thomas B. Griffith and Laurence H. Silberman formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court's opinion and Circuit Judge Henderson dissenting.
The court's opinion first addressed whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller—who applied for a handgun permit but was denied—had standing.
The court then held that the Second Amendment "protects an individual right to keep and bear arms", saying that the right was "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)." They also noted that though the right to bear arms also helped preserve the citizen militia, "the activities [the Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." The court determined that handguns are "Arms" and concluded that thus they may not be banned by the District of Columbia; however, they said that Second Amendment rights are subject to reasonable restrictions.
The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:[5]
“ Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional. ”
[edit] Henderson's dissent
In dissent, Judge Henderson wrote:
“ To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v. Miller, 307 U.S. at 178, the Second Amendment's declaration and guarantee that "the right of the people to keep and bear Arms, shall not be infringed" relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.[6] ”
[edit] Petition for rehearing
In April 2007, the District and Mayor Adrian Fenty petitioned for rehearing en banc, arguing that the ruling creates inter- and intra-jurisdictional conflict.[7] On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.
[edit] The Court's decision
Both the defendants and the plaintiffs petitioned the United States Supreme Court to hear the case. The Supreme Court agreed to hear the case on November 20, 2007.[8] The court rephrased the question to be decided as follows:
“ The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? ”
This represented the first time since the 1939 case United States v. Miller that the Supreme Court had directly addressed the scope of the Second Amendment.[9]
[edit] Amicus curiae briefs
Because of the controversial nature of the case, it garnered much attention from many groups on both sides of the gun rights issue. Many of those groups filed amicus curiae (friend of the court) briefs, about 47 urging the court to affirm the case and about 20 to remand it.[10]
A majority of the members of Congress[11] signed the brief authored by Stephen P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress.[12] Vice President Dick Cheney joined in this brief, acting in his role as President of the United States Senate, and breaking with the George W. Bush administration's official position.[11] Republican candidate for President and Arizona Senator John McCain also signed the brief. Democratic candidate and Illinois Senator Barack Obama did not.[13]
A majority of the states signed the brief of Texas Attorney General Greg Abbott advising that the case be affirmed, while at the same time emphasizing that the states have a strong interest in maintaining each of the states' laws prohibiting and regulating firearms.[14][15][16]
A number of organizations signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice[17] and Attorneys General of New York, Hawaii, Maryland, Massachusetts, New Jersey, California, and Puerto Rico.[18] Additionally, friend of the court briefs to remand were filed by a spectrum of religious and anti-violence groups,[19] a number of cities and mayors,[20] and many police chiefs and law enforcement organizations.[21]
[edit] Oral argument
The Supreme Court heard oral argument in the case on March 18, 2008. Both the transcript[22] and the audio[23] of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor General Paul D. Clement allotted 15 minutes to present the federal government's views.[24] During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.[25]
Walter E. Dellinger of the law firm O'Melveny & Myers, also a professor at Duke University Law School and former Acting Solicitor General, argued the District's side before the Supreme Court. Dellinger was assisted by Thomas Goldstein of Akin Gump Strauss Hauer & Feld, Robert Long of Covington & Burling and D.C. Solicitor General Todd Kim. The law firms assisting the District worked pro bono.[26]
Alan Gura, of the D.C.-based law firm Gura & Possessky, was lead counsel for Heller, and argued on his behalf before the Supreme Court.[27] Robert Levy, a senior fellow at the Cato Institute, and Clark Neily, a senior attorney at the Institute for Justice, were his co-counsel.[28][29]
[edit] Decision
On June 26, 2008, by a 5 to 4 decision, the Supreme Court upheld the federal appeals court ruling, striking down the D.C. gun law. Justice Antonin Scalia, writing for the majority, stated, "In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense ... We affirm the judgment of the Court of Appeals."[30] This ruling upholds the first federal appeals court ruling ever to void a law on Second Amendment grounds.[31]
The Court based its reasoning on the grounds:
* that the operative clause of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed"—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny, based on the bare meaning of the words, the usage of "the people" elsewhere in the Constitution, and historical materials on the clause's original public meaning;
* that the prefatory clause, which announces a purpose of a "well regulated Militia, being necessary to the security of a free State", comports with the meaning of the operative clause and refers to a well-trained citizen militia, which "comprised all males physically capable of acting in concert for the common defense", as being necessary to the security of a free polity;
* that historical materials support this interpretation, including "analogous arms-bearing rights in state constitutions" at the time, the drafting history of the Second Amendment, and interpretation of the Second Amendment "by scholars, courts, and legislators" through the late nineteenth century; and
* that none of the Supreme Court's precedents forecloses the Court's interpretation, specifically United States v. Cruikshank (1875), Presser v. Illinois (1886), nor United States v. Miller (1939).
However, "[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Court's opinion "should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Therefore, the District of Columbia's handgun ban, which "amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense," and the requirement that any firearm in the home be disassembled or bound by a trigger lock, which "makes it impossible for citizens to use arms for the core lawful purpose of self-defense," is ruled unconstitutional.
The opinion of the court, delivered by Justice Scalia, was joined by Chief Justice John G. Roberts, Jr. and by Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.
[edit] Issues addressed by the majority
The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural (i.e., not appearing in the Constitution or Amendments) right of self-defense.
The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; however, rhetorical impact is provided by the Court's linguistic assertion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings...."
With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment--a purpose not previously articulated by the Court--and the "in common use at the time" prong of the Miller decision: since handguns are in common use for legal purposes by civilians in the US at this time, their ownership is protected.
The Court applies as remedy that "[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."
The Court held as constitutional certain limitations on the right to keep and bear arms: "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
The Court also left in force limitations on the private ownership of machine guns. In doing so, it elevated the second prong of Miller ("common use"), which protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which does not protect machine guns: "It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home." The Breyer dissent notes: "According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun."
The Court, in discussing Miller, quotes from the United States brief filed in that case: "The final section of the brief [argued in part] that 'weapons which are commonly used by criminals,' such as sawed-off shotguns, are not protected." The use of this passage seems to leave open the legal ban of certain classes of arms if they can be shown to be "commonly used by criminals," but only if (presumably) they are simultaneously not in common use for legal civilian purposes or not useful to a well regulated militia.
The Court leaves expressly unaddressed which of the three levels of judicial scrutiny (strict scrutiny, intermediate scrutiny or rational basis) should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: "[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." The Breyer dissent notes: "[A]ny attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry...."
[edit] Dissenting opinions
In a dissenting opinion, Justice John Paul Stevens stated that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law".[32] Stevens also stated that the amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense" which was present in the Declarations of Rights of Pennsylvania and Vermont.[33]
The Stevens dissent seems to rest on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that Congress has not considered its gun-control laws (e.g., the National Firearms Act) unconstitutional. The dissent concludes, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."
Justice Stevens' dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
Justice Breyer filed a separate dissenting opinion, joined by the same dissenting Justices, which sought to demonstrate that, starting from the premise of an individual-rights view, the District of Columbia's handgun ban and trigger lock requirement would nevertheless be permissible limitations on the right.
The Breyer dissent looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that "guns were 'responsible for 69 deaths in this country each day.'"
With these two supports, the Breyer dissent goes on to conclude, "there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." It proposes that firearms laws be reviewed by balancing the interests of Second Amendment protections against the government's compelling interest of preventing crime.