Guns

Recently at Reason.tv: The High Stakes of the DC Gun Case

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Later today, the U.S. Supreme Court will announce its decision in District of Columbia v. Heller, the first major Court case about gun rights to be considered since the late 1930s. In the mid-1970s, the District of Columbia passed draconian gun-control legislation that effectively made it impossible for residents to legally own guns. Alan Gura is the lead attorney for seven plaintiffs who want to own guns for self-protection and other reasons. Gura and his associates have challenged the constitutionality of D.C.'s gun laws.

At the center of the case is whether the judiciary will recognize that the Second Amendment grants an individual right to own guns, a point conceded by virtually all historians and legal experts.

Gura recently sat down with reason.tv's Nick Gillespie to explain the high stakes of one of the most important and highly anticipated court cases in recent memory.

This nine-minute interview was shot and edited by reason.tv's Dan Hayes.

Click below to watch.

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NEXT: Recently at Reason.tv: Brian Doherty on the DC Gun Case

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  1. If the Supreme Court denies the individual right to own a firearm, I fear for its future as an institution. For 40 years people have watched the Court invent right after right nowhere mentioned in the text of the document. If the court can’t find for an individual right specifically enumerated in the Bill of Rights, then it will be revealed as nothing but another nakedly ambitious political institution. It will be one of the darkest days in the Court’s history.

  2. Nick’s black leather jacket must be at the cleaners.

  3. I’m hoping for a complete smackdown of the gun-grabbers and an endorsement of the holding of military arms by civilians, but in real life I’m telling myself it’ll be a uselessly nuanced decision that allows states to do whatever they want but gets rid of at least part of the DC gun ban.

  4. I’m not going to speculate, and I’m going to keep busy until it comes out.

    However, if it is a big win, I may have to buy a new gun to celebrate. I need a good over-under to replace my shitty Khan.

  5. Does that mean there are “virtually no” historians and legal scholars who argue for the group rights interpretation? That language seems a bit excessive. If there were no legal scholars arguing that side, it wouldn’t have been the predominant reading for the past several decades.

    I predict the court with find that there is an individual right, proclaim that there can be some regulation of firearms for a public purpose, declare that the DC law goes over the line, but provide little in the way of guidance for determining precisely where that line is, leaving it to be sussed out through legislation and challenges to legislation for years to come.

    40/60 they endorse a strict scrutiny standard for gun laws.

  6. Since it is Scalia who is probably going to write the decision for the majority, I am expecting a document that is full of tortured rationalizations that pays lip service to originalist ideas while not actually limiting state power in any significant way.

  7. Joe, what happened is that prominent liberal scholars who originally supported the group rights theory–Larry Tribe, Sanford Levinson, and Akhil Amar, for example–did some research. Then they came to the conclusion that it supports an individual right. (And kudos to them for intellectual honesty in acknowledging the evidence, even though they don’t like widespread gun ownership as policy matter.)

  8. I agree with you Joe. That is probably what they are going to do. This issue is going to be fought out in the courts over the coming years. I just can’t believe the court will be arrogant enough to claim there isn’t an individual right here.

  9. jbd,

    I agree that there has certainly been a trend in that direction. Heck, I’VE done that. Still, “virtually all/virtually none” seems to overstate things a bit. That’s all.

  10. It’s amazing that the Supreme Court is the one Washington government institution where there are absolutely no leaks.

  11. Later today, the U.S. Supreme Court will announce its decision in District of Columbia v. Heller, the first major Court case about gun rights to be considered since the late 1930s.

    I am on pins and needles awaiting this decision. I’ll bet the decision makes headlines around the world.

  12. I predict the court with find that there is an individual right, proclaim that there can be some regulation of firearms for a public purpose.

    Makeing the 2nd amendment a dead letter like the 4th, the 10nth, and the property clause of the 5th. A a defense attorney, I can smell new business there. A whole new set of examples of misconduct involving weapons.

    proving… it will be one of the darkest days in the Court’s history.

    I forget what the name of the test above rationally related test but below strict scrutiny test. I think they will use that one. I believe that is the test that they used for determining some civil rights cases involving gender issues. If that is true, then an institution that would not provide 1/2 of humanity with the strict scrutiny test, isn’t likely to give the concept of an ownership right all that much protection.

    So I would disagree with Joe and say 30/70 they endorse a strict scrutiny standard for gun laws.

  13. I forget what the name of the test above rationally related test but below strict scrutiny test. I think they will use that one. I believe that is the test that they used for determining some civil rights cases involving gender issues. If that is true, then an institution that would not provide 1/2 of humanity with the strict scrutiny test, isn’t likely to give the concept of an ownership right all that much protection.

    It’s called, I shit you not, “intermediate scrutiny”. The sort that deals with discrimination that does not affect a suspect class; things like gender or age discrimination (why we have men’s and women’s segregated bathrooms, for example). It would be hard to see how “gun owners” would be a distinct enough non-suspect class to trigger intermediate scrutiny.

    Either the court is gonna pull a Lopez and say, “sure, rational relation, but this DC shit is irrational” or go whole hog and whip out the strict scrutiny. If it is a broadly supported decision, it will be the first one (with perhaps a pointed concurrence or two); if it is a closely split decision, it is more likely to be the second.

  14. Gender isn’t a “suspect class?” I thought we had segregated bathrooms because they were found to pass the strict scrutiny standard. No?

  15. Troy may be on to something. Intermediate level scrutiny can allow a government action to stand if it furthers *important* governmental interests by *substantially* related means. Though I doubt that anyone thinks that guns are *like* gender (though in academia, there may be scads of hipsters who think that guns are all *about* gender), the better analogy is to time, place and manner restrictions on speech that are content-neutral, which are also thought of as involving intermediate level scrutiny (see porn zoning law cases).

    And yes, Joe, the gender cases tend to treat gender issues as calling for intermediate level scrutiny.

    And Elemenope, I think you want to say “pull a Romer” not “pull a Lopez.” Better analogy.

  16. Anybody know what time they usually announce/publish these things?

    Can catch the early release here, when they publish it to the intertubes.

  17. 10 AM eastern, Guy. IE, right now.

  18. Troy may be on to something. Intermediate level scrutiny can allow a government action to stand if it furthers *important* governmental interests by *substantially* related means. Though I doubt that anyone thinks that guns are *like* gender (though in academia, there may be scads of hipsters who think that guns are all *about* gender), the better analogy is to time, place and manner restrictions on speech that are content-neutral, which are also thought of as involving intermediate level scrutiny (see porn zoning law cases).

    A good point. They may try to weasel out this way. It would make for very, very bad law though (much like the time/place/manner speech restrictions are bad law).

    Thanks for the reminder on Romer v. Evans. You’re right, it’s a tighter analogy, though I almost get the sense from Kennedy that he is just making fun of the Colorado amendment by saying “your shit wouldn’t even stand up to rational relation, never mind strict scrutiny. That’s how f’ed up it is!”, and not necessarily that rational relation would be the proper standard to apply.

  19. 10 AM eastern, Guy. IE, right now.

    Thank you. Good thing the TV is near my desk at the office, but all that is on is election crap right now.

  20. Heller affirmed.

  21. I think Nigel @ 9:02 and tarran @ 9:13 are on target.

    I think we can the optimistic/realistic expectation is that intermediate scrutiny, which needn’t (conceptually) be tied to a specific class of individuals, but rather to the activity being regulated.

  22. Scotus Blog says they affirmed and individual right and there are no concuring opinions. Very interesting.

  23. 5 to 4 for the plaintiff, i.e. pro second amendment.

  24. Via Foxnews and the associated press: the court struck down the gun ban and declared that the 2nd ammendment is an individual right.

  25. In other Amendment II news, Sen. Obama’s campaign clairifies a statement by one of the campaign staff from last year.

    Seems the rumor floated that Sen. Obama thought the DC Gun Ban was constitutional was a mistake.

    Break-

    Heller decision, thanks guys, YEAAAAA!!!

  26. The 2nd Amendment is an individual right.

    Sorry, haters. Go back to parsing your commas for the next time around.

  27. Fuck yeah. Now let’s see how sharp the ruling is.

  28. I want to read the opinion, but thank God. Thank God!! Now, watch the crime rate drop in DC after people can buy guns and see all of the parsing that goes on among gun grabbers about how there were “other reasons” for the drop in crime.

  29. Like most rights, the Second Amendment right is not unlimited.
    It is not a right to keep and carry any weapon whatsoever in any
    manner whatsoever and for whatever purpose: For example, concealed
    weapons prohibitions have been upheld under the Amendment
    or state analogues. 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. Miller’s holding that the sorts of weapons protected are those
    “in common use at the time” finds support in the historical tradition
    of prohibiting the carrying of dangerous and unusual weapons.
    Pp. 54-56.
    3. The handgun ban and the trigger-lock requirement (as applied to
    self-defense) violate the Second Amendment. The District’s total ban
    on handgun possession in the home amounts to a prohibition on an
    entire class of “arms” that Americans overwhelmingly choose for the
    lawful purpose of self-defense. Under any of the standards of scrutiny
    the Court has applied to enumerated constitutional rights, this
    Cite as: 554 U. S. ____ (2008) 3
    Syllabus
    prohibition-in the place where the importance of the lawful defense
    of self, family, and property is most acute-would fail constitutional
    muster. Similarly, the requirement that any lawful firearm in the
    home be disassembled or bound by a trigger lock makes it impossible
    for citizens to use arms for the core lawful purpose of self-defense and
    is hence unconstitutional. Because Heller conceded at oral argument
    that the D. C. licensing law is permissible if it is not enforced arbitrarily
    and capriciously, the Court assumes that a license will satisfy
    his prayer for relief and does not address the licensing requirement.
    Assuming he is not disqualified from exercising Second Amendment
    rights, the District must permit Heller to register his handgun and
    must issue him a license to carry it in the home. Pp. 56-64.

    From the summary at the front of the opinion

  30. At the center of the case is whether the judiciary will recognize that the Second Amendment grants an individual right to own guns, a point conceded by virtually all historians and legal experts.

    Careful there. The Bill of Rights doesn’t “grant” a damned thing. It is a non-exhaustive list of pre-existing rights.

  31. Sweet non-existent Jesus, I didn’t think it would take 157 pages of Scalia and Stevens verbally beating the shit out of one another to get there.

  32. Scalia is mostly right, but Stevens does make a good point re: the way “people” is interpreted is inconsistent by Scalia’s formulation, since e.g. felons are part of the “people” for free speech but not for bearing arms. Scalia hung a great deal of his decision on parsing “people” as meaning the entire body politic, but then backtracks significantly when applying it to the 2nd.

  33. Elemenope:
    There’s a tactical reason for rational basis review in Romer. Its an Equal Protection case. If it were strict scrutiny, that means sexual orientation classifications are *generally* suspect, and a constitutional right to gay marriage (and oh so much else besides) would follow fairly quickly, and Kennedy in Romer didn’t want to paint himself into that corner. So I see the choice of review standard as designed to preserve flexibility for future issues.

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