Category: 2nd Amendment

David E. Young e-mails that he has a page up commenting on the pro-DC briefs filed in the Heller case.   Oral arguments are going to be held in this case March 18th, which is coming up pretty quickly.

Rustmeister points out a blogger who has problems parsing english sentences.  You can imagine which english sentence he’s talking about.

In the Wall Street Journal.  Tribe is a well respected constitutional scholar, so this isn’t a minor deal.  He’s come out in favor of an individual right in his book on constitutional law, so this is somewhat of a surprise. Heller’s attorneys seem to be a bit surprised too.  Tribe says:

But nothing I have discovered or written supports an absolute right to possess the weapons of one’s choice. The lower court’s decision in this case — the D.C. Circuit Court of Appeals found the District’s ban on concealable handguns in a densely populated area to be unconstitutional — went overboard. Under any plausible standard of review, a legislature’s choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.

So we can interpret other liberties in the Bill of Rights to apply depending on geography and population density?  Drugs are a scourge of the inner cities as well.  Would Professor Tribe support standard of review for the fourth amendment which would allow house to house searches for drugs in urban areas, while leaving the fourth amendment well enough in tact in rural areas?  I think most of us here would agree the fourth amendment is already subject to too lienent a standard of review.  I see no reason to do the same to the second.

Worse than that, it would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government’s uniquely powerful role as governor of the nation’s capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.

Fort Knox is a military installation.  Is Professor Tribe attempting to argue that it would be appropriate to apply martial law over The District? I would hope not.

UPDATE: Dave Kopel has more.

The audio tapes of the Heller case will be released on March 18th, the same day as oral arguments in the case, according to the WaPo.

… and spend the evening reading Kevin’s long but good tome on the history that’s lead us forward to Heller.

Just noticed the following update on the Heller case:

Feb 28 2008 Motion for leave to file amicus brief filed by Wisconsin. (Distributed)

This Wisconsin Attorney General had to seek permission from the Wisconsin legislature to join the amicus brief for state Attorneys General.  Needless to say this took time, and the Wisconsin legislature didn’t get around to acting until it was past the deadline.  Here’s hoping the Supreme Court grants the motion, and we can get Wisconsin on board.

I originally saw this from Michael Bane, but didn’t get around to it until today.  Looks like the Supreme Court granted a motion to allow the solicitor general to argue on the side of Washington DC for an addition 15 minutes over the time alloted for DC’s attorneys.   Dave Hardy weighs in on this too:

Hard to read much into it, beyond the fact that it gives a tactical advantage to DC. 45 minutes of argument for reversing D.C. Circuit, only 30 of argument for affirmance. DC can probably figure the SG won’t use a lot of time arguing for the individual right. The key to the SG getting where they want to go is standard of review, intermediate rather than strict scrutiny, so that’s where the SG will spend his time. DC can cut back on argument over standard of review — which might have occupied half their time, and more than half if they appeared to be losing on individual right — and use the time elsewhere.

So Bush’s Solictor General is not only going to file the brief, but he’s going to argue in front of the Supreme Court against gun owners! Am I surprised?  No.  Bush’s strategy has been to throw gun owners token gestures, but to do nothing, or actively screw us on stuff that really matters.

Do I regret voting for the bastard?  No.  Because if we had been stuck with 8 years of Al Gore, or Kerry, the outcome of this case would be a foredrawn conclusion, and that conclusion would be we’d flat out lose.  The Socilitor General is offering The Court the option of handing us a win on the individual rights count, but handing DC a win in terms of getting the case remanded, and forcing us to go through this process all over again.

I fully believe if the case is remanded, the district court will uphold DC’s ban as a reasonable exercise of governmental power to limit the second amendment.  We will have to appeal, possibly winning at the circuit court again, and the fight will continue.  But the Supreme Court probably won’t touch another gun case for a while, letting the lower courts hash through the new precident.  End result is nothing changes much, but it’s an individual right.  The real danger is a strongly anti-gun president stacks the court with justices who would be willing to overturn or severely restrict the scope of the second amendment post Heller, and when the next case goes before The Supreme Court, we end up with a constitutional right that’s individual and not collective, but still doesn’t mean anything.

More from Dave Kopel, an interview with Joe Olsen of Academics for the Second Amendment.  They talk about ASA’s amicus brief filed in the Heller case.

Bob Levy, one of the guys behind Heller, takes the Bush Administration to task for it’s brief filed on the side of Washington D.C.

From the docket for DC v. Heller:

Feb 11 2008     Motion of the Solicitor General for enlargement of time for oral argument, for leave to participate in oral argument as  amicus curiae and for divided argument filed.
Feb 11 2008     Motion of Texas, et al. for leave to participate in oral  argument as amici curiae and for divided argument, and, in the  alternative, for enlargement of time for oral argument filed.

So the Solicitor General is asking for oral arguments to be extended, so he has a chance to present the Administration’s position.  I asked Dave Hardy what this meant, and he replied:

[An] enlargement of time, which probably means neither side was willing to give him theirs.(Understandable, when you’ve only got 30 minutes, and this guy is only half on your side).

The plot thickens. I’m going to hope The Court denies the motion, but I suspect the SG will get to present his position.