Gunfight at the Supreme Court

Brian Doherty | December 3, 2007

The New York Times profiles Robert Levy, the legal eagle behind the D.C. v. Heller Supreme Court case this season regarding D.C.'s ban on private handgun ownership that might settle (or possibly kill off) the Second Amendment question once and for all. The story discusses the catch-22 he faced in finding plaintiffs with standing, and how some of the leading Usual Suspects in the gun rights fight, like the National Rifle Association, didn't want him to rock the boat.

Previous Heller blogging with many useful links on the case's background, which began as Parker v. D.C.

Comments

|12.3.07 @ 11:33AM|#

Be careful what you wish for.

Other Matt|12.3.07 @ 11:38AM|#

It will be interesting.

The Wine Commonsewer|12.3.07 @ 11:54AM|#

J sub, prescient, aren't you?

When Penn was going to sue TSA for grabbing his crotch he decided against it out of fear that he'd lose and set a legal precedent. NRA might be thinking the same thing.

I don't see this case going well at all. Better stock up boys.

|12.3.07 @ 12:13PM|#

Let's hope it goes better than Kelo.

LibertyPlease|12.3.07 @ 12:16PM|#

I'm not wildly optimistic, but am glad the case will be heard. The odds of a favorable ruling seem better than even. Then we need to move on to the issue of state limitations being illegitamate.

In case it goes the other way, I am stocking up.

|12.3.07 @ 12:21PM|#

I'd love to stock up more, but with ammo prices so high it's rather difficult.

|12.3.07 @ 12:32PM|#

This is actually a very interesting case that actually poses a fairly narrow question.

First, this a case about D.C., so the question about whether the 2A is "incorporated" into the 14A and applies to the states is not raised.

Second, the question the Court took cert on is whether the 2A protects a collective or an individual right.

There is lots and lots of room for the Court to affirm it protects an individual right, while firmly punting the question of the extent to which that right is subject to regulation and leaving the door wide open for all kinds of regulation. I am pretty confident this is where the Court will land.

|12.3.07 @ 12:50PM|#

RC Dean, I think you're right. And I wouldn't be troubled by a ruling recognizing that the right to bear arms is subject to reasonable time, place, and manner restrictions. After all, even the right to free speech is subject to such restrictions.

An acknowledgement by the Court that an individual citizen has a protected right to bear arms will be a huge victory for our side. Proposed restrictions will have to be narrow and carefully justified. We can live with that. The other side can't, because they really have been trying incrementally to restrict the right out of existence.

|12.3.07 @ 1:08PM|#

Wayne LaPierre, the N.R.A.'s chief executive officer, largely confirmed that characterization. "There was a real dispute on our side among the constitutional scholars about whether there was a majority of justices on the Supreme Court who would support the Constitution as written," Mr. LaPierre said.

Considering that voters keep electing presidents who have no intention of supporting the Constitution in its entirety, especially that picky 10th Amendment, it's surprising that the presidents have appointed and got confirmed even a bare majority of justices who will support a portion of the Constitution as written.

Russell Seitz|12.3.07 @ 1:15PM|#

Too bad NY Times Editor Raymond isn't around to weigh in on the case --
http://adamant.typepad.com/seitz/2007/04/punchy_editoria.html

|12.3.07 @ 1:29PM|#

The NRA won't back any cases if they think they might possible lose. That parts understandable. But NEITHER will they back any pro-2nd candidates, or state initiatives or referendums, if they think they might possible lose. That is just plain old fashioned two-faced politics.

|12.3.07 @ 1:34PM|#

There is lots and lots of room for the Court to affirm it protects an individual right, while firmly punting the question of the extent to which that right is subject to regulation and leaving the door wide open for all kinds of regulation. I am pretty confident this is where the Court will land.

I share RC's confidence. I predict the Court will find that there is an individual right, that some regulation is allowable, but that DC's regulations go too far.

Given Roberts' character, I don't expect a great deal of clarity about exactly what rights the 2nd protects, or what regulation is allowable.

Those questions will end up back in front of the Court over the next couple of decades.

BTW, people who write about how obvious and induspitable is the meaning of a statement whose meaning is widely disputed are wanking.

LibertyPlease|12.3.07 @ 2:11PM|#

..After all, even the right to free speech is subject to such restrictions.

er, only speech which causes harm is regulated, not all speech which may be used to cause harm. Nor are there effectively bans on speech like there are firearms.

The 20,000+ gun laws mostly serve to fight pre-crime. Causing harm isn't required to be prosecuted, merely owning the tool is.

That is rediculous.

We don't need gun law one. Murder is illegal, the 20k+ gun laws are superfluous and infringe lawful use.

|12.3.07 @ 2:22PM|#

Given Roberts' character, I don't expect a great deal of clarity about exactly what rights the 2nd protects, or what regulation is allowable.

As a big fan of incremental development of the common law, I'm not so sure that's a bad thing.

|12.3.07 @ 2:36PM|#

We don't need gun law one. Murder is illegal, the 20k+ gun laws are superfluous and infringe lawful use.

I'm a radical on this. After serving their time (prison and parole/probation) all convicted felon's rights, including the right to bear arms, should be restored. I'm a bleeding heart liberal that way.

LibertyPlease|12.3.07 @ 2:54PM|#

I'm a radical on this. After serving their time (prison and parole/probation) all convicted felon's rights, including the right to bear arms, should be restored. I'm a bleeding heart liberal that way.

That doesn't seem radical at all. If sombody causes harm, clear laws should dictate an appropriate prison term. Once that person is released they should be a full citizen again.

If someone is so dangerous they can't be trusted as a full citizen, prove it in court and keep them in prison. Otherwise, leave 'em alone with their life, liberty, and free to pursue happiness.

|12.3.07 @ 3:27PM|#

If someone is so dangerous they can't be trusted as a full citizen, prove it in court and keep them in prison. Otherwise, leave 'em alone with their life, liberty, and free to pursue happiness.

I welcome another member to the bleedig heart faction in libertarianism.

|12.3.07 @ 4:21PM|#

I would be happy if the court were to find that infringements on the 2nd Amendment must pass a strict scrutiny test.

My guess is that the court is not likely to overturn the seventy years of bad precedent set in US vs. Miller, but will try to rule in a way that they will perceive as "reasonable" while not rocking the boat too much.

So, DC's ban will probably be ruled unconstitutional, and this may have positive repercussions for places like Chicago, but I doubt it means I'll be able to mosey down to my local Gonne Shoppe and purchase, say, an MP5 with the giggle switch.

LibertyPlease|12.3.07 @ 4:27PM|#

....MP5 with the giggle switch.

Man I want one! I know where to get one (hot), but it is not legal, practically ensuring it will find a criminal home, rather than mine.... go gun laws!

|12.3.07 @ 4:52PM|#

I doubt we'll see the complete repeal of the NFA, however, I'd like to see the 1986 supply cap repealed for full-auto weapons.

Also, I'd love to see the NFA's regulations of sound moderators done away with in light of all of the scientific research that has shown that exposure to loud noises can cause hearing damage.

Evidently they weren't terribly aware of that fact in 1934.

|12.3.07 @ 5:10PM|#

RC,

As a big fan of incremental development of the common law, I'm not so sure that's a bad thing.

Ditto. I want my Supreme Court to operate like it's driving on sheet ice: No Sudden Movements.

Cactus|12.4.07 @ 3:20AM|#

The court will either call it a collective right or endorse restrictions. The historical context will be disregarded to further the goals of the state. There is ample, overwhelming and unambiguous evidence of the purpose and historical context of the second amendment. The court will just ignore it and play dumb.

Which leaves Madison yet again somewhat of a prophet:
"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."
James Madison

It doesn't matter what they rule. I know what it means, history knows what it means and the founding fathers knew what they were writing and why. The fact that 9 black robed tyrants decide that it doesn't mean what it says doesn't change facts.