The 2nd Amendment and the US Supreme Court

[Drudgewire]

Anise Jenkins, president of a coalition called Stand Up for Democracy in D.C., defended the district's prohibition on handguns.

"We feel our local council knows what we need for a good standard of life and to keep us safe," Jenkins said.

Good point. When I think of cities that don't have crime problems, Washington DC is right there at the top of the list.

Dummy.

 

[Brown]

Oral arguments are sometimes not very good indicators of how justices will rule. In this case, I would be surprised if the oral arguments didn't give exactly an exact indication of the way the case will go, at least on the question of whether the Second Amendment protects individual rights.

Justice Scalia basically came out and said that he'd made up his mind before the argument even began. He behaved more like an advocate than a judge.

Justice Thomas, as is his practice, said nothing. Chances are that (in spite of concerns expressed by Justice Stevens) he will go with Justice Scalia.

Chief Justice Roberts and Justice Kennedy expressed plain preferences for the view that the Second Amendment created an individual right, and the only real question was whether the regulations infringed that right.

Going the other way, Justice Stevens seemed to have decided that the purpose of the Second Amendment was not to create an individual right.

Justices Souter, Ginsburg, Breyer and Alito were less transparent. Justice Alito, however, directed his questions only at the advocates arguing to uphold the ban, indicating that his vote is the crucial fifth vote on the constitutional question. (Justice Alito, more than any other justice, focused upon the interplay of constitutional provisions pertaining to the militia. Look for Justice Alito to write the majority opinion.) Justices Souter, Ginsburg and Breyer, even if they join in the result, are unlikely to join the other five justices in their rationale.

And what is the rationale? Well, this could be interesting. Justice Stevens clearly has a problem with the other justices' apparent lack of respect for the intent of the Framers. It is often said that the intent of the Framers is to be taken into account when interpreting constitutional provisions. One of the justices who supposedly champions the ability to "read the Framers' minds" and pronounce what they intended is Justice Scalia.

In the case of the Second Amendment, Justice Scalia and the others may be departing from this principle that they otherwise claim to think is important. Historically, the Framers' intent seems to be pretty clear. They were not concerned with individual rights. They were concerned with military matters. The historical record is very strong on this point. Furthermore, the notion of protecting an individual's right of self-defense was specifically proposed for inclusion, but the proposal rejected. How on Earth could the Court say that the amendment protects an individual's right to self-defense when the Framers considered and rejected that very concept?

If the remarks of Justice Scalia and Chief Justice Roberts are any indication, there will be an effort to impute to the Framers an intent that has scant overt historical support. Basically, the words of the amendment itself (which are the best indicator of the Framers' intent) do not restrict the rights to military matters. Had the Framers wanted to restrict the rights to the military context, they could have easily done so, but they didn't. Instead, the Framers may have felt that the right of self-defense was a non-controversial pre-existing right (having been endorsed by the great William Blackstone), and that the best way to ensure a robust militia is to make sure that there is guaranteed individual liberty to keep and bear arms. To be on the safe side, the guarantee is much broader than might have been necessary. But this broad guarantee makes sense, because tyrants generally do not take actions against militias directly; rather, they vitiate militias by keeping the citizens unarmed.

The key questions then, will be the (1) extent of the individual right, (2) the extent to which the right can be regulated by the government, and (3) the standards by which the court will determine whether a government regulation is valid. These are the real sticking points in this whole case, and these are the questions upon which unintended consequences may be quite serious. Further, the indicators from oral argument about how the justices will handle these issues is less than clear.

One possibility is to say that individual Second Amendment rights are just like other individual rights. If there is governmental action affecting them, the government better have a really damn good reason for doing so. This is formally called "strict scrutiny," and represents the highest level of justification the government must show. Speaking generally (and colloquially), courts apply the following standards, depending upon the circumstances and the rights involved: (1) a low level of scrutiny, in which the government must show that its actions are supported by a good reason, (2) an intermediate level of scrutiny, in which the government must show that its actions are supported by a really good reason, and (3) strict scrutiny, in which the government must show that its actions are supported by a really damn good reason. Under the really damn good reason standard, it's not clear that the District of Columbia has made a showing of a really damn good reason for its regulations.

But the consequences of such a ruling may be extensive. There are a lot of weapons regulations, both state and federal, and if each has to be independently supported by a really damn good reason, then these regulations may be in a shambles. This is why the Solicitor General urged "intermediate scrutiny."

 

[SDC]

No, the Constitution is the supreme law of the land.

Yes, but:

1/ how it is interpreted has always been in flux. (Hence amendments).

2/ the constitution specifically says that many issues are reserved to the states to decide.

As with so many things, the devil, or god (depending on the quote) is in the details.

 

[Drudgewire]

2/ the constitution specifically says that many issues are reserved to the states to decide.

I know you were asking generally, but at least in this case that'd be a moot point since it provides for issues not delegated to the United States by the Constitution. This one is.

 

[Polaris]

Yes, but:

1/ how it is interpreted has always been in flux. (Hence amendments).

2/ the constitution specifically says that many issues are reserved to the states to decide.

As with so many things, the devil, or god (depending on the quote) is in the details.

However when regulations by the states conflict with the US Constitution, the US Constitution trumps the states. Supremacy Clause.

 

[Rob Lister]

Oral arguments are sometimes not very good indicators ...

... This is why the Solicitor General urged "intermediate scrutiny."

Brown, you did a phenomenal job of reporting and summarizing this case. Thanks.

For the benefit of those (me) not well versed in the drafts that led to the final amendment, could you perhaps report on those? I'm interested in the reason that this amendment, unlike any other, included a reasoning. I understand it was for the purpose of compromise, but I want to know the reasoning of those for whom the compromise was necessary.

 

[SDC]

States and federal: sure (to Drudgewire and Polaris). But there has been an endless series of debates, back to the beginning of the republic and no doubt as long as it exists, over the meaning of specific parts of the constitution, and including state vs federal powers. Hence amendments, and hence endless Supreme Court hearings and decisions.

While it appears as though in this case the Supremes will say something which moves the 2nd amend argument forward (meaning that there will be changes as a result), I'll bet dollars ... uh, euros to donuts that no final, clear resolution of the larger debate is imminent. I would be surprised, for example, if CCW became an exclusively federal matter as opposed to one handled locally/ state-by-state, or indeed one in which any given state's rules have to be applied in any other state. (I only bring up CCW because it seems a relatively clear matter. My feeling is that I don't want Michigan rules to prevail in New York in this matter, but people in Michigan can do as they please. When I lived there I didn't notice much difference because of the expansion in rights.)

It's all good theatre, though. I'm increasingly coming to the point of view that theatre is the whole point in politics.

 

[Rob Lister]

I know you were asking generally, but at least in this case that'd be a moot point since it provides for issues not delegated to the United States by the Constitution. This one is.

Actually, a case could be made that it indeed does relate to the states. If it is decided that the purpose of the 2nd A. is for the benefit of militias, and since militias are solely a function of the state, then individual gun rights come down to the needs of the individual state militias. Since the constitution does not specifically address gun ownership otherwise, then the (otherwise gutted) 10th amendment applies.

 

[Brown]

Read Dahlia Lithwick's take from Slate. She apparently was present at the argument. She was kinder to Mr. Gura than was I, saying that he was not as muddled as the transcript suggests:

Alan Gura represents D.C. gun owners, and a lot of folks had doubts about him, given that today was his first appearance at the high court. I see no evidence of wobbliness beyond the fact that just 12 seconds into his presentation, Scalia barks, "Talk a little slower; I'm not following you."

Ms. Lithwick also reports some courtroom activity that did not appear in the transcript. One of Justice Scalia's remarks (that high gun crime is a justification for fewer gun laws, rather than a jusitification for tigher controls), drew a hiss from a spectator.

Perhaps the most disturbing aspect of Ms. Lithwick's column is this:

I sometimes fall for the old line that there's no such thing as politics at the high court; there are merely different interpretational tools. Not today. Today we have four liberals rediscovering the beauty of local government and judicial restraint and five conservatives poised to identify a fundamental personal right that will have judges mucking about in gun cases for years to come. After all these years of deep conservative suspicion of turning over policy matters to the courts, the Roberts Court has fallen in love with a new constitutional right. And while they don't seem much concerned about how the judges will manage it, they've just about ensured that judges around the country will soon be ruling in gun cases the way they used to rule on speeding tickets.

My concern is similar, but I would put it in a slightly different way. The Court in recent years is risking becoming a caricature. A cynic looks at the Court and says that this business about "applying the law" is a bunch of nonsense. On certain issues of individual rights, what matters is the outcome: the Court decides the outcome first, then retrofits the law to reach this result. (The super-cynic would say that the Court has always done this, but this indicates a serious lack of scholarship on the super-cynic's part.) Cases like this one enforce the cynical view. Certain justices are "in the pocket" of certain interests, and will vote in particular ways without regard to the actual merits of the cases. Consistency with precedent does not matter. Consistency with one's own published opinions does not matter. Consistency with other areas of law does not matter. The fact that the lower courts will be confused all to hell does not matter. What matters mainly is the outcome, and the rest can be spun.

This is almost the very definition of bad jurisprudence.

And if we remember the Roberts and Alito confirmation hearings, this is exactly the sort of thing that the Senators--from both parties--were worried about.

Regardless of the convictions of the various justices that they are applying the law as they see it, they must be mindful to avoid the impression that they may be making upon the citizens: that what wins cases is not whether you've got a good case, but whether your side has more buddies on the Court.

 

[pgwenthold]

Perhaps the most disturbing aspect of Ms. Lithwick's column is this:My concern is similar, but I would put it in a slightly different way. The Court in recent years is risking becoming a caricature. A cynic looks at the Court and says that this business about "applying the law" is a bunch of nonsense. On certain issues of individual rights, what matters is the outcome: the Court decides the outcome first, then retrofits the law to reach this result. (The super-cynic would say that the Court has always done this, but this indicates a serious lack of scholarship on the super-cynic's part.) Cases like this one enforce the cynical view. Certain justices are "in the pocket" of certain interests, and will vote in particular ways without regard to the actual merits of the cases. Consistency with precedent does not matter. Consistency with one's own published opinions does not matter. Consistency with other areas of law does not matter. The fact that the lower courts will be confused all to hell does not matter. What matters mainly is the outcome, and the rest can be spun.

This is almost the very definition of bad jurisprudence.

I wonder if Thomas has any belief at all in the concept of "precedent." It seems that his standard answer is, "Well, that is the way the courts have always interpreted the law, but I think they were wrong."

 

[Brown]

For the hell of it, here are a few predictions about the oral argument....

So how did I do on my predictions? Meh. Some partial hits, and the biggest hits were too damn easy. The Court's own security was not specifically mentioned, but elements familiar to the Court (metal detectors and portable, conceal-able weaponry) were. No one suggested that metal detectors impinged upon anybody's rights.

The "intent of the Framers" was mentioned many times, but it was really Justice Breyer who discussed at length how today's weapons differ from those in days of yore, although others discussed the topic as well.

Dueling was not mentioned. Other concerns of the day, namely fighting bandits, bears and those pesky Indians, were mentioned several times.

The concept of the right to use was touched upon, but there didn't seem too much sympathy for the notion that citizens are permitted unilaterally to decide to change their government by shooting people.

The famous truism oft-associated with the NRA was not mentioned.

 

[Brown]

I wonder if Thomas has any belief at all in the concept of "precedent." It seems that his standard answer is, "Well, that is the way the courts have always interpreted the law, but I think they were wrong."

Justice Thomas is not alone, here. Justice Scalia, too, has been criticized for cavalierly setting aside precedent merely because he finds it inconvenient. In this particular case, Justice Kennedy seemed to be dismissive of precedent, too:

JUSTICE KENNEDY (to Gen. Clement): I agree that [supreme court case] Miller is consistent with what you've just said, but it seems to me Miller, which kind of ends abruptly as an opinion writing anyway, is just insufficient to subscribe -- to describe the interests that must have been foremost in the framers' minds when they were concerned about guns being taken away from the people who needed them for their defense.
...
JUSTICE KENNEDY (to Mr. Gura) : Well, you're being faithful to Miller. I suggest that Miller may be deficient.

 

[LTC8K6]

Perhaps I'm a bit ignorant, but is that really true?

I think so. I don't think we argue much about who the rest of the BOR applies to, just the 2A.

 

[WildCat]

Justice Thomas is not alone, here. Justice Scalia, too, has been criticized for cavalierly setting aside precedent merely because he finds it inconvenient. In this particular case, Justice Kennedy seemed to be dismissive of precedent, too:

Sometimes precedent is wrong. Plessy vs. Ferguson anybody?

 

[SDC]

I think that for this reason they will set guidelines as to what extent laws could restrict gun ownership. I suspect they'll say that weapons that kill indiscriminately - for example bombs and machine guns - will be allowed to be restricted or banned. I don't think total handgun bans will be allowed. What they will allow as far as carrying weapons in public will be interesting to see. I'm going to predict they will allow states to restrict carrying in public, but not in one's own home.

Bolded by me.

How about when walking about one's house, naked, with the blinds open?

(I'm sorry not to be serious. I can't help it.)

More seriously... I expect folks out there in the rest of the country think that New York city residents are gunning one another down in the streets routinely, but the fact is (by the stats) this is a per capita low-crime location. I dread the notion of out of towners (as always, I will refer to Michiganders) packing heat here while on vacation, and blazing away at squirrels and such like they do at home in the Upper peninsula. Heck, they've even got wild boars there (evidently recently imported from Europe, wouldn't you know).

 

[SDC]

Sometimes precedent is wrong. Plessy vs. Ferguson anybody?

I hope the lawyers among us will admit that correct precedents are the ones they personally prefer. Just like with everything else in this life. Good = I like it. Bad = I don't like it.

 

[WildCat]

I dread the notion of out of towners (as always, I will refer to Michiganders) packing heat here while on vacation, and blazing away at squirrels and such like they do at home in the Upper peninsula. Heck, they've even got wild boars there (evidently recently imported from Europe, wouldn't you know).

I think the squirrels in Central Park are safe from Michiganders... it's the cheeseheads you should worry about.

 

[Drudgewire]

More seriously... I expect folks out there in the rest of the country think that New York city residents are gunning one another down in the streets routinely, but the fact is (by the stats) this is a per capita low-crime location. I dread the notion of out of towners (as always, I will refer to Michiganders) packing heat here while on vacation, and blazing away at squirrels and such like they do at home in the Upper peninsula. Heck, they've even got wild boars there (evidently recently imported from Europe, wouldn't you know).

My new "First Freedom" (NRA's political magazine) is celebrating Michigan's 6 years of reduced firearms fatalities and crime rates to go along with the six years they've had concealed carry. Of course this is all arbitrary but it's nice to see my birth state get a little love.

 

[Bikewer]

One of the things I do not recall hearing in all the discussion was this; has the DC ban had any appreciable effect one way or the other on crime rates, homicide rates, etc?

It seems to me that DC is pretty well known as a high-crime area, with the ban in place. If so, it appears to have little effect, at least on criminals.

 

[Drudgewire]

One of the things I do not recall hearing in all the discussion was this; has the DC ban had any appreciable effect one way or the other on crime rates, homicide rates, etc?

It seems to me that DC is pretty well known as a high-crime area, with the ban in place. If so, it appears to have little effect, at least on criminals.

I was checking crime stats on DC this morning and they seem to rise and fall like the tides. One year they're way up, the next year they're down but overall violent crime rates rise, and then there's the declining population which means it would require math to make a real argument and I don't like math so I stayed the hell away from it.

If anyone else wants to try and make heads or tails of it I was looking at these numbers.