Today in Supreme Court History

Today in Supreme Court History: March 18, 2008

|The Volokh Conspiracy |

3/19/2008: District of Columbia v. Heller argued.

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  1. 2018? Isnt that a typo? It was 2008.

      1. Josh should change the name of his book to “100 Spreme Court Casses Everyune Shudd No”.

  2. And finally, we came to the end of that long era in American history with a helpless, disarmed citizenry, unable to buy guns to repel burglars and robbers, gangs bristling with Soviet-era Kalishnikovs marauding our neighborhoods, and black helicopters swooping down on dissenters, including many of our family members and loved ones, friends, co-workers, clergy, and carrying them off to (prison? firing squads? reeducation camps?), never to be seen again.

    1. That scenario probably would have been a little more livable than the situation in some neighborhoods in DC, Chicago, and Baltimore where people were completely disarmed and dealing with thugs with plenty of firepower, with a much less rational motivations, and a complete lack of the discipline of your hypothetical black helicopters and squads with kalishnikovs.

      You act like more freedom is a bad thing. The people of Washington DC and Chicago are freer now, they had lost a right that has been restored to them.

      And nothing bad happened.

      1. It is as if gun control failed to achieve its advertised purpose of disarming the street thug and the gangbanger.

      2. Violent crime had been going down for some years before the Heller decision. In fact, that’s why support for gun rights has increased: violent crime is down. When it goes up again, we will see more support for gun control.

        This is why people in high crime areas have always supported gun control, and it’s the people in low crime areas, whose fear of violent crime is not rational (I’m being polite here), who have always supported gun rights.

  3. captcrisis, and Kazinski, respectfully, each of you is positing a false alternative. Too much regulation, and no regulation at all, aren’t the only two choices.

    I support private gun ownership, just as I support private automobile ownership. That doesn’t mean I can’t support reasonable regulation to reduce the damage done by irresponsible or criminal car or gun owners.

    And no regulation will ever work perfectly, so perfection isn’t the standard. The question is whether a given regulation would leave us better off than we were before.

    1. Perhaps we can regulate guns by making it generally illegal to shoot people, with specified exceptions.

      Imagine if drive-by shootings were illegal.

      1. Perhaps we can regulate cars by making it illegal to hit pedestrians, all the while not regulating things like drunk driving, requiring vehicles to stop at red lights, speeding through school zones and the like. Or suspending or revoking the licenses (oh, are we even licensing drivers at all?) of people who have demonstrated they can’t be trusted to safely operate a motor vehicle. Maybe a 12 year old who wants to drive a Mack truck should be allowed to do so. I mean, so long as he doesn’t actually hit a pedestrian, we’re good, right?

        Michael, I know from reading previous posts of yours that you’re a very smart man, but on this issue, what you’re proposing is very, very not smart.

        1. It’s perfectly legal for a 12 year old to drive a Mack truck on private property.

          1. Was there anything at all in my comment that suggested that I was limiting it to private property?

            1. Well if we’re going with the guns/car analogy, any gun owner (blind, child, etc) could operate any sort of over-powered (high mag capacity) gun on private land.

              If a person wanted to operate on a public thorofare (DL=CCW) they’d be given a really easy test (in any language they desired) that is almost impossible to fail. This CCW would be valid in all 50 states and DC, and it’s renewal would be cheap and easy.

              1. The issue is not the specific minutiae of which regulations are or are not appropriate. The issue is that cars have all kinds of regulations without anyone claiming it’s a plot to confiscate cars, or that there’s some absolute right to car ownership that is violated by any of these regulations. (And yes, I am aware that the Second Amendment mentions guns but not cars, but that argument also misses the point.)

                Does the First Amendment protect my right to shout under your bedroom window through a bullhorn at midnight? It doesn’t? Oh. Maybe rights aren’t absolute, especially when other people have rights too.

        2. You have a point there.

          Perhaps it should be illegal to randomly discharge firearms wherever there are people around.

          1. It is. With several thousand firearms deaths a year, you can see how well that’s worked. So maybe it’s time to try something else.

        3. The distinction you’re missing is that car regulations are of behavior that is unintentional — we’re punishing people to deter carelessness. The sorts of gun regs that get bandied about, on the other hand, are not things reasonable citizens are careless about — because they go beyond simple misuse of a gun, that pretty much everyone agrees is misuse.

          So the proposed gun regs end up punishing things well-intentioned people don’t actually do — only people who already intended criminal behavior — and thus don’t actually deter behavior in the same way.

          1. Jeff, that’s true of some proposed gun regulations but not others. For example, requirements that gun owners take gun safety courses and keep their firearms in locked gun cabinets at home.

            But, again, the whole point of the car/gun analogy is not to compare the actual regulations themselves. Rather, it’s to point out that both cars and drivers are heavily regulated and yet nobody claims it’s a slippery slope toward vehicle confiscation, or that there’s a constitutional right to be completely free of all regulation, no matter how reasonable.

            1. Gun safety courses aren’t a terrible idea. I had to take one (sort of) for a deer-hunting license in Michigan. (But this isn’t the sort of minimal thing that gets put in legislation.) Requirements of locked storage get iffy, tho, because fundamentally guns are meant to be used — and one important (if infrequent) use is in defense of hearth and home. Can’t do that quickly with something you have to dig out of a safe, potentially under time pressure.

              “Nobody claims it’s a slippery slope” because people like cars, and their general value is universally acknowledged. But it is extremely evident that’s not universally the case — it’s nowhere close — for guns. Beto O’Rourke said what a significant portion of people actually think. He was a major-party candidate for Senate who came fairly close to winning, so I don’t think I’m just nutpicking. And it’s just not possible to view, say, California’s ever-tightening gun restrictions as anything other than an attempt to slowly boil the frog in the cookpot. Requiring background checks, permits, and fees to buy ammunition? C’mon, we’re not stupid.

              “there’s a constitutional right to be completely free of all regulation, no matter how reasonable” is a strawman. A few kooks might think that, but picking them is nutpicking, IMO.

              One way the stalemate might be broken: if the obviously anti-gun side of the equation demonstrated good faith, and clear non-insistence on total bans, by offering something in exchange for some regulation. For example: ask for so-called universal background checks, and in exchange agree to concealed-carry reciprocity. But the ratchet they want only works in one direction. And the Second Amendment side are not fools.

    2. Well if I ever saw a single study that showed tougher gun laws ever reduced crime i might reassess my position.

      Wait, I am lying, I won’t reassess my position, and I will tell you why: my constitutional rights don’t exist on some balancing test of how comfortable people are with me exercising my rights.

      But lets maybe find some middle ground about what other constitutional rights we can give up to make us safer, here’s my list and the order i think they would be most effective in keeping us safe:
      – Get rid of the 4th amendment. Police could reduce the crime rate with wiretaps on demand, and search anywhere anytime without a warrant. And they could get a lot of illegal guns off the street too.
      – Scrap the self incrimination bit in the 5th amendment, that would help by getting a lot of obviously guilty perps off the street.
      – Scrap the right to trial by jury in the 6th amendment, lets just trust the judge on this.

      Because if we want to start scrapping our Constitutional rights to make us safer, the second amendment should be close to the bottom of the list in terms of effectiveness.

      1. Are you an absolutist with respect to the Second Amendment — no regulation?

        Are you an absolutist with respect to any other constitutional right(s)?

      2. Kazinski:

        Did you happen to notice that I said nothing about “get rid of”, or “scrap” the Second Amendment? What I said was the two absolutist positions aren’t the only alternatives. So you promptly went back to taking an absolutist position.

        None of the other constitutional examples you gave are absolute either, and no one seems to have a problem with balancing rights in other contexts because they understand that other people, and society, have rights too. It’s not a case of balancing your rights with my comfort level; it’s a case of balancing your rights with my rights that happen to directly conflict with your rights. When rights are in conflict, they get balanced.

        1. “None of the other constitutional examples you gave are absolute either, and no one seems to have a problem with balancing rights in other contexts”

          Well the 4th amendment specifically says “reasonable” searches are allowed, so let’s start there with your proposals to cut back on the 4th amendment.

          In contrast the 2nd amendment text is pretty absolutist that the right to keep and bear arms shall not be infringed. So if you do believe that reasonable restrictions on on constitutional rights are justified, then let’s hear your proposals for cutting back on the 4th amendment first, which all ready allows for “reasonable” searches.I

          I’m glad we’ve found some common ground.

          1. The Fourth Amendment already provides the police with plenty of wiggle room, what with the doctrine of inevitable discovery (if they would have found it anyway it’s admissible), the doctrine of exigent circumstances (if a police officer can plausibly claim it was an emergency it’s admissible), and various other exceptions that have been carved out. I would actually favor tightening up Fourth Amendment protections in some cases. But as we both agree the Fourth Amendment isn’t absolute, let’s talk about the Second instead.

            Within the context of a well regulated militia, the right to keep and bear arms may not be infringed. (Yes, I know, in 1789 every male between certain ages was a member of the militia. But since that’s not the case today, that’s not relevant. Plus you’ve skipped over that “well regulated” part.) Outside the context of a well regulated militia there is still a common law right to private ownership of firearms that predates the Second Amendment, so even if the Second Amendment were to be repealed I’m not sure complete gun confiscation would be permissible.

            But that doesn’t mean it can’t be regulated. Would you allow for private ownership of nuclear weapons? If so, you’re a nut and have a nice day. If not, then we both agree there’s a line that can be drawn; we just disagree as to where.

            1. A well regulated militia being necessary for the security of a free state had a purposes, but no functional force. It was a preamble to the amendment, having as much force in modifying what follows as the preamble to the constitution itself. But it also has an important purpose to explain why it was a federal concern in the constitution to preserve a right to keep in bear arms. It refers back to the militia clause: To provide for organizing, arming, and disciplining, the Militia. Thus abandoning the prohibition that the people could not could not be disarmed by the state fulfilled a vital federal function that could not be infringed by Congress or the states.

              Trying to use the prefix of the second amendment to justify infringements in the right to keep and bear arms is just hand waving.

              1. Kazinski, if that were true, then there was no reason to include the militia clause at all. In fact, it’s counter-productive. Simply saying that the right to keep and bear arms shall not be infringed would be sufficient to ensure private gun ownership, while not adding confusion on the part of readers like me who think the Amendment has something to do with the militia.

                The reason the Second Amendment was passed is that there was concern that federal overreach would overwhelm the states, and the states needed their own militias for their own defense.

                It is a basic rule of statutory (including Constitutional) interpretation that it will not be interpreted in a way that any portion of it is of no effect. Your interpretation renders the first half of the amendment to have no effect; you even acknowledge as much. If the first half of it were repealed, there would be no practical change in the result; private gun ownership would still be protected.

    3. The problem is the gun rights side opposes -all- regulation.

      Like you said, we can regulate guns like automobiles. You have to pass tests to get a drivers license. But something similar for owning guns (as we gun control people have been advocating for years)? Noooooo!

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