Guns N' Justices

by publius

Via Volokh, I saw this excellent overview of what to look for in the Heller Second Amendment case by Professor Mike O'Shea at Concurring Opinions. The decision could come Monday.

There's a lot to chew over, but the upshot is that the Court seems poised to recognize some sort of individual right. The critical question will then become how broadly the Court reads that right. If it's broad enough, it could jeopardize a significant amount of federal gun legislation.

And that of course is the problem with overturning decades-old precedent -- it undermines everything that's been built "on top" of it (e.g., legislation, other precedents), thus creating a lot of collateral damage. That doesn't necessarily mean it's wrong to overturn settled precedent. It just means that there are good reasons to avoid doing so even when you think the initial case would have come out differently if you were considering it on a blank slate.

Comments

[Sebastian]

Well there is really very little precedent on point. So it isn't really overturning much precedent if there is an individual right recognized.

Your precedent concept has more force, I think , when dealing with less explicit rights. If you want to argue that we shouldn't overturn Roe (even if originally decided wrongly) because too much other precedent surrounds it, I think you might have a colorable argument though I would tend to disagree.

But when dealing with restricting explicit rights, the practice surrounding them shouldn't be as dispositive. If you got it wrong before, you have to fix it.

"If it's broad enough, it could jeopardize a significant amount of federal gun legislation."

That is an awfully big 'if'. I suspect that the Supreme Court isn't likely to construe the right as less amenable to restriction than say free speech, which still allows for all sorts of regulations. Do you disagree?

[John in Nashville]

I hope that the Supreme Court recognizes gun ownership as an individual right. I also hope that the Court doesn't make hash of that right in the manner that it has of the First Amendment.

Can you imagine the chaos that would be created by a ruling that the right to keep and bear arms is a fundamental, individual right, but Congress may legislate de facto prohibitions designed to ameliorate the so-called "secondary effects" of individuals' keeping and bearing arms?

[Kevin Baker]

But what if the precedent that's been built has been built on sand? Or more accurately, vacuum? Shouldn't such precedent be overturned? Take, for example the Miller decision, upon which so much precedent has been constructed. The 9th Circuit Court of Appeals Hickman v. Block court declared, "The question presented at the threshold of Hickman's appeal is whether the Second Amendment confers upon individual citizens standing to enforce the right to keep and bear arms. We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action."

I've read Miller. Nowhere in it is there language that says what the 9th Circuit states. In fact, the 9th Circuit mis-states what Miller actually held: "The
seminal authority in this area continues to be United States v. Miller, 307 U.S. 174 (1939), in which the Supreme Court upheld a conviction under the National Firearms Act, 26 U.S.C. S 1132 (1934), for transporting a sawed-off shotgun in interstate commerce. The Court rejected the appellant's hypothesis that the Second Amendment protected his possession of that weapon.
Consulting the text and history of the amendment, the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia. In a famous passage, the Court held that [i]n the absence of any evidence tending to show that the possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.The Court did not "uphold a conviction," it overturned the lower court's quashing of the indictment and remanded the case back to a lower court for finding - which never occurred. The Prosecution argued that Miller's lack of membership in a militia negated his Second Amendment claim, but the court rejected that, and instead discussed whether his weapon was or was not suitable for militia use - regardless of his enrollment in a "well regulated militia" - a question they could not decide, since no evidence was presented by a defense counsel that wasn't present.

But nowhere have I seen two prior Second Amendment Supreme Court cases overturned, either. Not U.S. v. Cruikshank (often misquoted) or Presser v. Illinois. Here are two quotes from Presser that never seem to get any District or Appeals Court love: "(I)n view of the fact that all citizens capable of bearing arms constitute the reserved military force of the national government as well as in view of its general powers, the States cannot prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security."

And the second: "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government."

Perhaps the judges of the 9th Circuit would like to tell me when Presser was overturned?

For another example, try the 8th Circuit's U.S. v. Hale decision. In a special concurrence by Judge Beam, he wrote: "I concur in the result reached in Judge John R. Gibson's opinion in this matter. I agree completely with the portions dealing with Hale's hearsay and confrontation contentions. I also agree that Hale's possession of the particular weapons at issue in this case is not protected by the Second Amendment. I disagree, however, that Cases v. United States, 131 F.2d (1st Cir.1942); United States v. Warin, 530 F.2d (6th Cir.1976); United States v. Oakes, 564 F.2d 384 (10th Cir.1977) and United States v. Nelson, 859 F.2d 1318 (8th Cir.1988) properly interpret the Constitution or the Supreme Court's holding in United States v. Miller, 307 U.S., 59 S.Ct. 816, 83 L.Ed. 1206 (1939) insofar as they say that Congress has the power to prohibit an individual from possessing any type of firearm, even when kept for lawful purposes. Judge Gibson's opinion seems to adopt that premise and with that holding, I disagree." Judge Gibson's opinion took exception to Judge Beam's concurrence: The concurrence flies in the face of stare decisis in arguing that this court did not properly interpret the Second Amendment or Miller in Nelsen, which is consistent with our earlier decisions in Cody and Decker. The concurrence would also flout uniform precedent from other circuits, particularly since Nelsen cites and relies on Oakes and Warin, and Cody on Cases."

Apparently no sitting judge in Warrin, Oaks, Nelsen, Cody, Decker or Cases read Presser either. Suddenly, somehow, Congress had gone from being unable "to prohibit an individual from possessing any type of firearm, even when kept for lawful purposes" to somehow holding that power, just through some Appeals Court cases.

That's not how it's supposed to work, last time I read the Constitution.

Over the last 70+ years the courts have built a house of cards on a foundation of nothing but wishful thinking. It's time and past time for that house of cards to come crashing down.

[Brett Bellmore]

"And that of course is the problem with overturning decades-old precedent -- it undermines everything that's been built "on top" of it (e.g., legislation, other precedents), thus creating a lot of collateral damage."

Well, that's the problem with the Court spending 69 years deliberately refusing to take any case related to a basic liberty guaranteed in the Bill of Rights: A lot of unconstitutional laws can accumulate in that amount of time.

They created the mess, they ought to own up to their responsibility in the matter, and clean the mess up. Using their own institutional failure as an excuse to commit a blatant wrong would be an outrage. In fact, it would be dangerously outrageous, it wouldn't delegitimize the right to keep and bear arms, it would delegitimize the Court itself.

Anyway, I think the term you're searching for is "collateral repairs; Restoring enforcement of the actual meaning of the Constitution can't be considered "damage".

"I suspect that the Supreme Court isn't likely to construe the right as less amenable to restriction than say free speech, which still allows for all sorts of regulations."

It allows for all sorts of regulations, most of which don't resemble anything we'd call "gun control". You know of any laws regulating the paper capacity of printers, for instance? Barring people from buying two or more printing presses in the same month? Regulating how much paper and ink you can stockpile?

That's the sort of regulations of the press that would be analogous to gun control laws.

[majun]

I expect Scalia, the justice who feels that abrogating the right to Habeas Corpus is OK if you are protecting the country from Islamists, will come out very strong for the right of all Timothy McVeigh, or Dylan Klebold wannabes to keep and bear automatic weapons.

[Ben Alpers]

I'm always amazed how few people are willing to countenance the possibility that the Second Amendment says something other than what they want it to say. There are very few supporters of gun rights who believe that it doesn't confer an individual right or opponents of gun right who believe it does.

I think Sanford Levinson falls into the second camp. I can't think of anyone who falls into the first (though I'm anything but a specialist on this issue, so there may be people who have this view of whom I'm unaware).

Some of this is a reflection of how poorly drafted the Second Amendment is. Much of the legal argument boils down to debates over the scope of the amendment's introductory clause about "a well-regulated militia." Since this is the only amendment with such a clause, my understanding is there's very little jurisprudence about how to read it.

But in other ways, debates over the Second Amendment, which feature two sides both of whom think that the Constitution happens to say what they want it to say, are just slightly more exaggerated versions of most of our popular constitutional arguments.

Whatever one thinks of the text of the Second Amendment, the debate over it probably ought to turn one into a legal realist.

[Brett Bellmore]

The Second amendment is not badly drafted, if you understand the reasoning behind it. It's only if you're attempting to convert it into a non-right, or a right acceptable to modern sensibilities, that it becomes confusing.

Square pegs are rather poorly designed, if you're determined to drive them into round holes, too. And both sides want to drive this peg into a hole it's not shaped for.

The chief difference is that while the pro-gunners want a right that's more expansive than the right to standard infantry arms the 2nd amendment was actually written to guarantee, the anti-gunners don't want any sort of right AT ALL, and especially not the right the 2nd amendment guarantees.

The pro-gunners would like to ignore that militia clause, but they're not actually in conflict with it, because the right they want encompasses the right the 2nd amendment, militia clause included, aims at.

But the anti-gunners find themselves in conflict with the entire amendment, because they don't want any sort of right AT ALL, and especially not a right to military arms.

They're both wrong, but the anti-gunners are more wrong.

[Brett Bellmore]

By the way, the right the pro-gunners want, a right to non-militia arms, would almost certainly have been viewed by the founders as falling under the 9th amendment's guarantee of unenumerated rights, since it was widely assumed and respected at the time. So when you put the 2nd together with the 9th, the pro-gunners turn out to be entirely right.

[Kevin Baker]

Brett:

I'd be perfectly happy with a legal recognition that the Second Amendment protects an individual right to standard infantry arms. Where, then, would you want to draw the line? The Barrett M82 .50 caliber rifle? The M249 Squad Automatic Weapon (SAW) or the M252 81mm mortar? And how do you justify that line?

But if the American citizen has a right to keep and bear an M4 Carbine (select-fire 5.56NATO assault rifle) or an M14 Designated Marksman's Rifle, an M9 Beretta or a 1911, then what sense does it make to restrict that same person from owning and carrying a 2" barreled .38 Special revolver?

[Michael Cain]

Can you imagine the chaos that would be created by a ruling that the right to keep and bear arms is a fundamental, individual right, but Congress may legislate de facto prohibitions designed to ameliorate the so-called "secondary effects" of individuals' keeping and bearing arms?

I'm perfectly happy with an individual right to keep and bear arms. OTOH, I'm also in favor of local jurisdictions being able to establish reasonable restrictions on the discharge of such weapons. For example, anyone who discharges a firearm in a crowded urban setting should be required to defend that action. Was life or property at stake? Did the shooter consider what else might be in the line of fire?

[stonetools]

@baker:
My guess is that the Supreme Court would like to create a right that would allow the possession of the rifle ( which would gladden the hearts of target shooters) but would maintain the restrictions on ordinary citizens getting the SAW ( a heavy machine gun that can fire armor piercing bullets), mortars and for that matter plastic explosives. They also would like to leave room for local jurisdictions to ban short barreled revolvers that are easy to conceal and combat knives ( lethal in close combat). Clearly, its going to take some masterful judicial tap dancing to create such a right. We will see just how good Justice Roberts ( the likely opinion writer, IMO ) really is.

[JiminyJilliker]

Michael Cain:
No matter what happens with Heller, state and local restrictions on gun ownership and/or use will be unaffected. The case only affects restrictions imposed by the Federal government.

Of course, if an individual right is found, a challenge to state restrictions will likely come up shortly.

[Joe]

This misses the point.

The Supremes in effect waived any real interpretation of the 2A. There is no real "precedent" on point. Presser was from an age where the BOR weren't incorporated. Miller (a tax case anyway), where the owner didn't even show up, cries out for some clarification. And, D.C. very well might raise some special concerns.

[BTW, I'm with Brett as to the 9A. Also, the 14A as to states]

Where's the precedent? If the Supremes never deal with an issue and a law raises it, should they just ignore it or something because it might be somewhat messy? Adding insult to injury.

To the degree Miller suggests some regulation is acceptable (and dicta suggests some sort of individual right is involved), I'm unsure if a ruling would really threaten federal law as broadly as some fear (or hope). This includes the fact that the courts draw lines some think arbitrary.

After all, even today, federal law has recognized some general individual right (at one point, expressly) and most states have some form of a reasonable regulation right via their own constitutions.

[Bernard Yomtov]

a right to non-militia arms, would almost certainly have been viewed by the founders as falling under the 9th amendment's guarantee of unenumerated rights, since it was widely assumed and respected at the time. So when you put the 2nd together with the 9th, the pro-gunners turn out to be entirely right.

By "non-militia" arms do you mean things like handguns?

I doubt it was widely assumed that individuals had an unlimited right to own cannons, say, or other weapons more powerful than muskets.

[pseudonymous in nc]

The Second amendment is not badly drafted, if you understand the reasoning behind it.

Reasoning that seems familiar to anyone who's worked in a drafting committee: to allow Virginians and New Yorkers to walk away from it and think that their state constitutions have been reflected in the federal text, in spite of those state constitutions saying entirely different things about their civilian militia.

In short, they handed the Supreme Court a turd on a plate that has been pushed around for much of the past century rather than offer up tasting notes. If there's any tried-and-tested jurisprudential model to follow in Heller, it's to keep pushing it around the plate.

[pseudonymous in nc]

Fixing italics.

[pseudonymous in nc]

now?

[hilzoy]

Now?