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I found this today. Good read that gives you an overall look at what's been happening with Parker/Heller. :D

http://prawfsblawg.blogs.com/prawfsblaw ... t-87626846

Wednesday, October 24, 2007

What Happened in Heller, Chapter I: The Certiorari Briefing

Pauca sed matura; yeah, that's the ticket. Hello, all. Despite an awesomely delayed start to my stint here at Prawfs, let’s see if I can put a couple of ripe thoughts across in the final quarter.

I've opined before that if the U.S. Supreme Court grants certiorari in District of Columbia v. Heller, the so far successful Second Amendment challenge to the District of Columbia's ban on handguns and functional long guns, then Heller will be the biggest case of the Term. Bigger than Guantanamo, bigger than lethal injection protocols, even bigger than Medellin. The scope of the constitutional issues raised -- what is the basic meaning of a whole provision of the Bill of Rights? -- and the sheer intensity of popular concern with gun rights and gun control will propel Heller to the center of this Term, and indeed of the early legacy of the Roberts Court.

Briefing on certiorari is now complete. The District and the respondent have filed their principal cert briefs, and the District has filed a reply in support of the petition. Unusually, both the District as petitioner and the D.C. resident who prevailed below (Mr. Heller) have urged the Supreme Court to take up the case. The Court will likely decide whether to grant certiorari in November. [UPDATE: SCOTUSBlog reports that the Court will consider the Heller petition on Nov. 9, and could rule on the petition by Tuesday, Nov. 13th.]

There are also several amicus curiae briefs, all in support of certiorari.

Finally, some of the D.C. residents who were plaintiffs below have filed a cross-petition for certiorari asking the Supreme Court to reverse the D.C. Circuit's holding that they, unlike Heller, lacked standing to raise Second Amendment claims.

Thoughts on the cert briefing and the case to date:

1. Audience. Attorneys briefing cases that are of interest only to judges and legal specialists write differently than attorneys who know they are writing for the eyes of a broader public. The audience for this case is vast. You could already begin to see the influence of that audience when the case (then captioned Parker v. D.C.) was before the circuit court. It is very noticeable in the cert petition briefing, and will take on even greater prominence in the merits briefing if the Supreme Court grants certiorari. Thus, the District's petition ended with a condemnation of the D.C. Circuit's decision as "particularly cold-hearted" because it refused to permit a complete ban on handguns, which the District argues cause "devastation" and are "the weapon overwhelmingly used" to commit violent crimes. The District closed on a dramatic note, urging: "Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die."

This led to some fireworks, as Heller rejoined, in a section of his response brief tartly titled "Citizens Under Criminal Attack Are Not Required to Stand By and Die Awaiting Police Protection," that the District has no legal obligation to ensure the safety of its citizens, and has vigorously litigated its own lack of liability in suits involving urban riots, failure to prevent crime, failure to protect witnesses, and police misconduct. "In the meantime," Heller concluded,

people need not stand by and die waiting for Petitioners to provide a safe city in which to live. The Second Amendment guarantees to citizens something that Petitioners have expressly and consistently disclaimed any legal obligation to provide: an effective means of preserving their lives.

I can only report my own reactions, admittedly those of a gun rights supporter, to such preliminary skirmishing. This struck me as a very effective response to the District's rhetoric -- enough so that I wonder whether there was some post hoc regret by petitioners' counsel about the choice of language in the petition.

2. The Question Presented. There is a big threshold dispute about how whether the Court should accept the District's formulation of the question presented. The District is trying to frame Heller as a case about whether handguns may constitutionally be banned when a citizen "may lawfully possess a rifle or shotgun to protect himself." Pet. at 28. But one of the challenged provisions of D.C. law requires all lawfully registered firearms in the home to be kept "unloaded and disassembled or bound by a trigger lock or similar device," D.C. Code 7-2507.02, which renders them useless for self-protection. The D.C. Circuit invalidated this provision as well, on the theory that even if Mr. Heller were permitted to possess a handgun, the provision would prohibit him from having his pistol available in a usable condition.

Yet the District's petition asserts in a footnote that it "does not ... construe [7-2507.02] to prevent the use of a lawful firearm in self-defense." Pet. at 7 n.2. The District's reply brief (Repl. at 5-6) makes its position clearer: all firearms must be kept both unloaded and disabled (locked or disassembled). But if an "emergency" arises -- presumably, though the District is opaque here, a threat of "imminent bodily harm" of the sort that would provide the basis for an affirmative defense of self-defense under general D.C. criminal law -- then, although the D.C. Code does not say this, courts would, or should, imply an affirmative defense to liability for possessing an unlawfully loaded and functional firearm under the D.C. Code. In theory, this could permit an otherwise lawful firearm to be used for self-defense against that threat, including by firing it against the threat.

The reason the District's position has engendered confusion is that the concession is close to meaningless as a practical matter. Such a firearm will still be useless in most defensive scenarios. The point is intuitive. The District requires that the gun be kept both unloaded and disabled until an "emergency" arises. When someone kicks in your door at 3 a.m., however, there will simply be no time to (1) retrieve your shotgun, then (2) unlock it (which key was it?) and (3) load it (one shell at a time) in time for you to be able to use it as intended -- i.e., as a firearm. (And by the way, that's assuming you didn't "disassemble" it, cf. D.C. Code 7-2507.02.) This is consistent with the interpretation of 7-2507.02 that the D.C. Circuit adopted in its opinion invalidating that provision, and in its order denying plaintiffs' motion to issue the mandate in part.

Some of the Justices may know enough about firearms to appreciate these practicalities at a glance. Justice Scalia was on the rifle team as a teenager and Justice Thomas grew up in rural Georgia. No doubt the respondent and/or amici will take steps to educate the other Justices about the facts if certiorari is granted.

3. The Specter of Incorporation. The issue of Fourteenth Amendment incorporation is lurking in the background in Heller. No issue of incorporation is directly presented by the case. The Bill of Rights is generally understood to apply directly to D.C., as it does to the federal government (which exercises direct supervision over D.C.), without need of the intermediation of the 14th Amendment. Indeed, the Supreme Court held in the 19th century that the Second Amendment is not incorporated against the states. Thus Heller does not squarely raise the question of whether, say, the City of Chicago may continue to ban handguns without violating the Constitution. It does , however, squarely raise the question of whether a Congressional handgun ban would violate the Constitution, and that is certainly importance enough.

Heller's cert respsonse brief is fairly low-key on incorporation, focusing its historical analysis on antebellum sources of constitutional meaning. Its one explicit nod to the issue is a remark that "while federal courts have not subjected state laws to Second Amendment review for lack of incorporation ... that anomaly will presumably be addressed in a future case." Resp. at 17 (emphasis added) (citing a 9th Circuit opinion asserting that older Supreme Court cases refusing to incorporate the 2d Amendment rest on a "thoroughly discredited" approach).

Still, state and local governments are paying attention. If the Supreme Court takes Heller and affirms, incorporation will be one of the next battlegrounds. The amicus briefing in the D.C. Circuit brought out a fascinating regional split between the 13 midwestern, mountain, and southern states, led by Texas, who urged the court to adopt a strong individual-rights conception of the Second Amendment; and the smaller group of mostly coastal states and cities (plus Chicago; Idaho was mistakenly listed on this brief but did not join it) who urged that the DC gun ban be upheld.

I have long had some sympathy with the idea of a robust Second Amendment individual right that is nevertheless not incorporated against the States: in essence, treating the Second as a "strong federalism" provision , an individually justiciable restraint on Congress and the federal administrative state analogous to the Commerce Clause limitations recognized in United States v. Lopez. So I watch this issue with particular interest. If the Court grants certiorari, we can expect another "roll call" of states submitting amicus briefs on the merits. Indeed, the State of New York (again on behalf of a coalition of "blue" states including Illinois, Maryland and Hawaii) has already weighed in with an amicus brief in support of certiorari. I have only had time to read New York's brief once, but it struck me as focused and effectively written, probably the best pro-control brief to be filed before the Supreme Court in the case so far.

4. A Personal Note. I confess an atypical personal interest with respect to the certiorari petition in Heller: I will have the privilege of teaching a seminar course on Firearms Law & Policy at OCU Law in the spring of 2008. This was scheduled well before the D.C. Circuit's decision in Parker jolted the issue of constitutional arms rights to the front of the headlines. So although a law school seminar is obviously of miniscule importance compared to the massive constitutional, political, individual, and institutional stakes in Heller ... nevertheless, as a teacher, I admit that the prospect of this landmark Supreme Court case being argued while I am teaching a seminar directly on topic leaves me almost giddy at the thought of such academic serendipity. Like teaching a course on the right to counsel during the pendency of -- no, not Gideon -- but Johnson v. Zerbst.

Posted by Michael O'Shea on October 24, 2007 at 05:59 PM in Constitutional thoughts | Permalink

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Dear Dr. O'Shea:

Many thanks for a well-written, accurate summary of what has transpired in Parker v DC and DC v Heller. You are almost certainly correct in stating that this case has a vast audience. I too have been following the case closely, and the major points you covered are spot-on.

Thanks also for commenting on the "spectre of incorporation." I feel that Heller was wise to mention, but not belabor, this issue. While only somewhat relevant, perhaps if nothing else, the mention will place the issue of 2A incorporation out on the radar screen. This is a subject in which I have personal in addition to constitutional interest; I live in Illinois and work in Chicago - a state and city with some of the most restrictive firearm regulations (and prohibitions) in the nation. Each year, no less than one dozen bills aiming to further restrict firearm ownership are introduced (nearly always by Chicago legislators) into the IL state senate and house. The IL state constitution ("SECTION 22. RIGHT TO ARMS) reads: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." Although this guarantee is more explicit than the federal for omitting militia reference, the right to arms is, in Illinois, "subject to police power." Because state police power is subject to the state legislature, and because the second amendment (US constitution) is not [yet] incorporated, Illinoisans effectively have ZERO protection from government infringement on their right to keep and bear arms; the state of Illinois is not constitutionally limited on this issue. Surely, this cannot stand much longer. There are just too many interested, intelligent, and motivated people following these issues - they will eventually force these issues, and prevail (in my admittedly biased prediction).

I trust you will continue to keep your readers informed by summarizing the proceedings. Thanks also for allowoing me to comment semi-ambiguously. Best regards to you and keep up the good work.

Posted by: Carl in Chicago | Oct 25, 2007 12:40:05 PM

In your penultimate pararaph you have expressed the opinion that the 2nd amendment should not necesarily apply to the states but only the federal government.

Please explain the difference in my rights as a citizen of the United States protected by the 2nd amendment as specified in the 14th amendment and the power of my state to 1)void my rights as a US citizen and how those rights can, under your statement, 2) also differ from state to state. Also, the effect on my right to travel from state to state without giving up basic rights.

There would appear to be a conflict between saying I have a right as a US citizen but that the right can be abrogated by my state of residence.

Posted by: Tom | Oct 25, 2007 7:27:15 PM

Yours is a fair question, Tom. Let me say just a bit about it here.

For the last century or so, the Supreme Court has handled questions of incorporation by looking to the Due Process Clause of the 14th Amendment. Its thinking has been that the 14th DP Clause incorporates, i.e., renders applicable against the states, some, but not all, of the guarantees in the Bill of Rights. And when confronted with a specific question of incorporating this or that provision of the BoR, the Court has engaged in a fairly ill-defined inquiry that has taken different forms, but basically boils down to whether the right is sufficiently "fundamental" that it should be applied against the states as a matter of due process.

When applying this inquiry in the 20th century, the Court has usually chosen to incorporate particular provisions against the states, though not always.

Suppose the Court takes up anew the question of Second Amendment incorporation (revisiting its 19th century decisions refusing to incorporate the 2A). The Roberts Court so far has been pretty reluctant to overturn constitutional apple carts, preferring not to overrule major precedents if it can be avoided. If, then, the Court sticks with its traditional, due process based, "selective incorporation" approach to the 14th Amendment, then it is possible that the Court could decline to incorporate the Second.

This is partly because there is language in the 2A (the reference to militias and to "a free State") that arguably suggests that the Amendment is particularly focused on preventing federal encroachment on arms rights that would undermine sources of resistance to federal power; and partially because the due process selective incorporation framework is simply so vague that no outcome would be surprising.

But on the other hand, the Court could rethink its approach to incorporation when it takes up the incorporation of the Second. It could overrule the Slaughter-House Cases, and shift the focus of the incorporation inquiry to the Privileges or Immunities Clause of the Fourteenth Amendment, as Justice Black, Justice Thomas, and many other jurists and scholars, before and since, have urged it to do. If the Court chooses to address the question of Second Amendment incorporation through the P or I Clause, then I agree with you, the historical record will make it extremely difficult for them to avoid incorporating the Second against the states.

I don't want to say too much more, since I'm writing an article about this stuff. But let me leave you with a suggestion as to why arms rights proponents might actually embrace, or at least accept, the non-incorporation of the Second as a policy matter. I'll boil it down into a single, concrete scenario.

Suppose in 2010 there's a sufficient majority in Congress to pass a renewal of the 1994 federal semi-auto ban (the "Assault Weapons Ban") that sunsetted in 2004. Under which circumstance do you think gun rights supporters are more likely to be able to convince the federal courts to invalidate all or a significant part of this statute as a violation of the Second Amendment?

1. When the Second Amendment is not incorporated, so that such a holding leaves state and local governments free to adopt their own regulations on the covered weapons, so that the courts can say, "This is an area the Constitution leaves up to the States, not to Congress or the discretion of the BATFE. Our holding today, by invalidating the federal statute, allows jurisdictions as different as Montana and NYC a corresponding freedom to differ on whether, and how extensively, modern firearms should be regulated."

or

2. When the Second Amendment has been incorporated, so that the courts cannot strike down the federal ban without thereby holding that every jurisdiction in the country -- Manhattan, Chicago, Marin County, whatever -- must forthwith allow the sale and possession of AR-15s with regular-capacity, 30-round magazines.

- MPO

PS: The kind comments above impel me to note that I am not a "Doctor," unless it's a Juris Doctor. I have an M.A. but not a Ph.D. Law teaching is one of the few fields where (though this is growing rarer) there are still "Prof. So-and-So"s who are not also "Dr. So-and-So"s!

Posted by: Mike O'Shea | Oct 25, 2007 10:02:48 PM

Dear Mike:

I think the reaction to the briefs really does come down to your political leanings. To me, the respondents' brief was throughly unpersuasive on the tort immunity point. D.C. was raising the argument that handguns will result in more dead citizens, and the response is . . . the inability of those dead citizens to sue D.C. for tort liability? An immunity that, I should note, is legally bulletproof and thus a complete waste to time to question. I could see the rhetorical point, but it was so marginal to me that I found it bordering on the irrelevant.

An additional point to note: the issue has special saliance to D.C. residents, including all the judges involved in this case. The salience, of course, could go both ways, as indicated by the decision of the D.C. Cir. But does 70-year-old Justice Kennedy feel safer knowing he has a constitutional right to carry a gun that he likely won't be able to aim properly, or safer knowning that the D.C. government can take the gun away from his potential assailant?

Posted by: DC resident | Oct 25, 2007 10:15:47 PM

DC Resident - Just how good a job has DC done taking away the guns of the 'potential' assailants? Do you think your every neighbor is just another potential assailant that only lacks a gun with which to come after you? Kind of cynical.

Mr. Shaw,
What do you think of the historical research that indicates that the intent of the 14th was to include the 2nd? Also, how many people today regard their State citizenship versus their U.S. citizenship the same way that the citizens in the 1790s did? In many ways we need to protect ourselves from our State and municipal governments as much as our Federal government. Oh and if 'Militia' and 'free State' was purely a Federal term, why did it get written into several state constitutions around the same time?

Posted by: dwlawson | Oct 25, 2007 10:40:04 PM
 

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Man my eyes are going cross eyed reading that stuff. I get more info from reading the posts going back and forth.
 

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One thing I have not found anyone mention is what will happen if SCOTUS grants the cross petition?

Does SCOTUS then decide the entire group or just Heller and send the rest back to the lower court saying they have standing?
 

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Thoughtful post and a lengthy response

So far, the 2nd amendment has not been "incorporated" by the Supreme Court partially because of the scarcity of 2nd Amendment decisions since the 1930's. Since D.C. is regarded by the Constitution as a creature of the federal government, any D.C. gun ban only implicates the original Bill of Rights limits on federal power and not the 14th amendment's limits on state government powers.

The 13th, 14th, and 15th amendments were directed at remedying several different Supreme Court decisions issued under the late Marshall and Taney courts. The 13th, 14th and 15th Amendments specifically reversed the Supreme Court's Dred Scott and Barron v. Baltimore decisions. These decisions placed regulating slavery beyond the national government's control (Dred Scott), concluded that slaves could never be considered "citizens" under the Constitution (Dred Scott), and decided that the 5th Amendment protections of property only applied to the federal government and not the states . Thus, Congress reversed these decisions by amendment. The 13th eliminated slavery, while the 15th made sure that the freed slaves could vote in state and federal elections. The 14th amendment made citizens (both state and federal) of those born within the boundaries of the U.S. Citizens (and to some degree non-citizens) were given the 5th Amendment's Bill of Rights protections regarding due process protections of life, liberty and property, equal protections under the law , and privileges and immunities of U.S. citizens to protect them from the actions of state legislatures. It also enabled Congress to enforce this clause through lawmaking.

In the 1870's, the Supreme Court reacted by effectively limiting the reach of the 14th Amendment on state government actions through the so-called Slaughterhouse and Civil Rights cases. However, starting with the protection of property rights and then First Amendment protections, the Supreme Court gradually applied most of the Bill of Rights protections (1-10th Amendments) to actions of state and local governments. Thus, even a city council may not limit the right to free speech which is enforced by both state and federal courts.

But, the "selective incorporation" doctrine has been that certain rights under the Bill of Rights as understood by the federal courts do not require states to grant the same identical protections. Thus, states do not have to have unanimous guilty verdicts in criminal trials, (6th Amendment) require indictments through grand juries (5th Amendment), or conduct criminal trials with only a twelve person jury (6th Amendment).
 

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Gunstar1 said:
One thing I have not found anyone mention is what will happen if SCOTUS grants the cross petition?

Does SCOTUS then decide the entire group or just Heller and send the rest back to the lower court saying they have standing?
They could do a number of things. They could GVR (grant, vacate, & remand) on the cross-petition, which would put the standing issue back in the Circuit, but the other case would be live. They could grant the cross petition and sever the arguments. They could grant the cross petition and have the standing arguments in the first part of the hour. They could grant the cross petition and schedule two hours of argument. Or, perhaps even likely, they could grant the cross-petition and reinstate the Parker group in a brief per curiam opinion or even order. They could even just issue an order, paraphrased of course: Cross-petition granted, Seegars overruled in light of Smith v Jones, US Sup Ct ...
 

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The decision will be reached on Nov 9 and most likely leaked, with every gun board getting the news about five minutes after the leak.

The decision will be officially published on Tuesday, Nov 13. Normally it would be published on Monday, but that's a Federal holiday (Veteran's Day).
 

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As has been mentioned before, it should also be noted that in this particular instance, the Court will have to decide how to word the question(s) upon which it grants cert. That choice of questions could well signal a great deal about the outcome itself.
 

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Reading the Appeals Court Decision right now, and yes I am constantly refreshing SCOTUSblog from time to time, as are many others I imagine. :)
 

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slabertooch said:
Reading the Appeals Court Decision right now, and yes I am constantly refreshing SCOTUSblog from time to time, as are many others I imagine. :)
Well, since you are reading it:
Notice the Court of Appeals, in dicta, stated that the Second Amendment is not absolute, and thus the right could be regulated, and they offered some examples of the types of things that could be regulated. One of them was "concealed carry." Does this imply that, in Judge Silberman's view, the District of Columbia cannot regulate openly carried firearms without violating the Second Amendment?
 

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It would appear to be the case, however the District could place reasonable restrictions on the open carry of firearms:

1: pistol must be contained in a holster that has a folding cover flap that secures to the holster.
Rebuttal: a pistol contained in a complete holster, would be concealed, thus violating the law, by attempting to comply with the law.

2: Pistol must be openly carried on your head.

3: Pistol must be openly carried mexican style.

4: etc, etc

5: Persons carrying firearms openly, must declare to all persons in the immediate area, verbally, that they are carrying a firearm.
 

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Did they make some "reasonableness" distinction? I recall them simply discussing that some things could be regulated and then some examples. Mostly location and concealed carry, IIRC.
 

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Finally, there is the District’s requirement under D.C. Code § 7-2507.02 that a registered firearm be kept “unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.†This provision bars Heller from lawfully using a handgun for self protection in the home because the statute
allows only for use of a firearm during recreational activities.

As appellants accurately point out, § 7-2507.02 would reduce a pistol to a useless hunk of “metal and springs.†Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a “functional†firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense justification. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. 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.
And
with a “well regulated Militia.†The registration of firearms gives the government information as to how many people would be armed for militia service if called up. a gun grabbers wet dream, which would require the repealment of current anti-registration laws.

Reasonable firearm proficiency testing would both promote public safety and produce better candidates for military service.
but wouldn't the government be required to provide that training?

Personal characteristics, such as insanity or felonious conduct, that make gun ownership dangerous to society also make someone unsuitable for service in the militia. Cf. D.C. Code § 49-401 (excluding “idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime†from militia duty). On the other hand, it does not follow that a person who is unsuitable for militia service has no right to keep and bear arms.

A physically disabled person, for instance, might not be able to participate in even the most rudimentary organized militia. But this person would still have the right to keep and bear arms, just as men over the age of forty-five and women would have that right, even though our nation has traditionally excluded them from membership in the militia.
 

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We won't know if they granted cert until Tuesday :(

Further orders out of Friday’s private Conference will be released at 10 a.m. Tuesday. Monday is a holiday at the Court.
 
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