Wednesday, September 05, 2007

DC Gun Case Cert Petition

The District of Columbia has now filed a cert petition with the Supreme Court, seeking reversal of the DC Circuit's March opinion in Parker v. District of Columbia. The petition is well executed, as one would expect the work product of Tom Goldstein, Walter Dellinger and their crew to be. It makes three central points in challenging the DC Circuit ruling:
First, as the overwhelming majority of circuit decisions conclude, the text and history of the Second Amendment establish that it protects weapons possession and use only in connection with service in state-regulated militias. That conclusion is supported by United States v. Miller, 307 U.S. 174 (1939), in which this Court unanimously directed that the Second Amendment “must be interpreted and applied” in view of its “obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces.” Id. at 178. Second, even if there is a right to possess and use weapons unrelated to militia service, the Second Amendment restricts only federal interference with state-regulated militias and staterecognized gun rights. Legislation enacted by the District does not implicate the Amendment. Third, in any event, the District law at issue in this case does not infringe whatever right the Second Amendment could be read to protect, because it is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun.
The petition as a whole follows this template, with most of the argument making the traditional case for the militia-focused view of the Amendment. Interestingly, the petition cites none of the scholarship of scholars advocating the "individual right" interpretation of the Second Amendment.

On the merits, I count four just about certain votes to reverse (Stevens, Souter, Ginsburg, Breyer), one likely vote to reverse on the merits (Kennedy), two likely votes to affirm on the merits (Scalia, Thomas), one probably leaning towards affirming (Roberts), and one unknown (Alito). I put Alito in the unknown category because I suspect that his long experience as a prosecutor makes him more of a law-and-order conservative on this issue than his more ideologically conservative brethren. But who knows how this will all play out? Like the Fifth Circuit in the Emerson case, the Supreme Court (or individual Justices) could say that in general the Second Amendment protects an individual right but that this law is justified, either because DC is a federal enclave (unlikely if they've already adopted the individual right view, because then they will have rejected the state militia view) or (more likely), on the ground that handguns are more dangerous (because easily concealed and transported) than long guns.

There's enough uncertainty about the ultimate outcome of the case that even with four votes to reverse on the merits, it's not clear to me there will be four votes to grant cert. One or more of these four might "defensively deny," i.e., vote to deny cert for fear that taking the case would result in affirming, thereby taking a bad DC Circuit decision and making it the law of the land. However, the unmistakable circuit split means that any such qualms will likely be overcome and so I expect the Court---after calling for a response and for the views of the Solicitor General---will take the case.

While I'm making predictions, I'll also predict that the Court's decision, which will probably be issued some time in late June 2008, will instantly become an issue in the Presidential election, regardless of how the case is decided. That in turn, is likely to benefit the Republican candidate, because gun rights types tend to be more single-issue voters than gun control supporters.


heathu said...

In your sentence:

On the merits, I count four just about certain votes to reverse (Stevens, Souter, Ginsburg, Breyer), one likely vote to reverse on the merits (Kennedy), two likely votes to affirm on the merits (Scalia, Thomas), one probably leaning towards affirming (Roberts), and one unknown (Alito).

Is there any significance to your use of the phrase "on the merits"? You have two likely to "affirm on the merits (Scalia, Thomas)" but "one probably leaning towards affirming (Roberts)" - so Roberts is likely to affirm but not on the merits? Or is the prefatory phrase "On the merits" at the start to be applied to all the justices that come later in the sentence?

I'm not trying to be cute and draw parallels to the structure of the 2nd Amendment itself, I'm just genuinely wondering if you see any of the justices ruling on this case for something other than the merits. (i.e. some procedural reason.)

egarber said...

I wonder how much tension Scalia and Thomas might feel -- in that it's hard to argue for a fundamental right to gun ownership without invoking substantive due process. And of course, such a philosophical interpretation means you're employing (in some or many ways) the same approach that leads to privacy rights.

Michael C. Dorf said...

Nothing significant: I just was distinguishing between voting for cert and voting on the merits (and forgot I had written "on the merits" at the beginning of the sentence).

As for egarber's point, as applied to the federal govt, they can say it's just the express second amendment, so no need to rely on sdp.

egarber said...

As for egarber's point, as applied to the federal govt, they can say it's just the express second amendment, so no need to rely on sdp.

Right. But would such a ruling be narrower than that of the circuit court? Or did the lower court basically rule the way you mention -- not making a broad claim about gun rights that are potentially applicable against the states?

If Scalia rules for something narrower, it would be pretty ironic if that's read in future cases as having over-ruled or limited a finding for a wider right.

(I of course am assuming Scalia would be pro-gun rights politically.)

Sobek said...

1. "...because I suspect that his long experience as a prosecutor makes him more of a law-and-order conservative on this issue than his more ideologically conservative brethren."

I don't understand the distinction you're drawing between "law and order" conservatives and any other kind. I don't know any police officers who support gun control. An ex-SWAT friend of mine got very excited when I told him I was thinking about buying a gun and offered advice and assistance. His theory is, the more law-abiding citizens who have guns, the less the bad guys will want to take chances.

2. You suggest that the Second Amendment might apply differently to the District because it is a "fededral enclave." Can you explain that to me? To the extent the 2d Amend. to the federal Constitution applies to the states, it is only through 14th Amendment incorporation. It applies directly to federal land such as the district. How is that an argument for less 2d Amend. protection for the District?

3. Do you know of any statistics that show handguns are more dangerous than rifles and shotguns? I thought the gun control lobby was more concerned with the "scarier" automatic rifles
and such.

4. I haven't read the DC Circuit opinion so I can't address egarber's follow-up question, but I don't see any need for substantive due process when the 2d Amend. takes care of the issue. IIRC, the Second Amendment has never been specifically incorporated into the 14th, so if Scalia wants to read an expansive right it would probably be inconsistent with his general approach.

egarber said...

2. You suggest that the Second Amendment might apply differently to the District because it is a "fededral enclave."

The way I interpret it is that even if one subscribes to an individual rights view (I do, btw), the context of the second amendment only involves federal interference with either *state* militia activity or *state* recognized rights. It doesn't necessarily stand to reason that it recognizes an inherent individual right anywhere. In this view, where there's no state, there's no second amendment implication.

Of course, I could be wrong -- after all, I predicted that the Braves would make the playoffs after the Tex trade (uggggh) :)

Carl said...

the context of the second amendment only involves federal interference with either *state* militia activity or *state* recognized rights.

I always assumed the use of "State" in the 2A referred to something like the nation-state rather than the individual states.

egarber said...

Carl, that may be true as a matter of intent. I don't know one way or another.

However, if we assume a single word repeated throughout the constitution must mean the same thing (isn't that a standard rule of construction?), your interpretation would seem to create problems from a construction standpoint.

In other words, if "state" means individual sovereign states everywhere else -- not allowed to make treaties, not allowed to deprive rights, powers not delegated are thus retained by, etc -- it seems arbitrary in this one instance to give it a different meaning.

I might be missing something though.

Carl said...


Your maxim of interpretation cuts both ways. Why did the authors use "a free state" to refer to the individual states when elsewhere they use such locutions as "the several states" or "each state" or just "the states"? Moreover, why did they feel the need to characterize these states as free. Were some of the individual states not free?

A much more natural reading is that they were using the term in the broad sense that had been common among political philosophers long before the colonies had becomes "states" and that they were stating a general proposition about democratic political entities, pointing out that they must protect themselves from outside military threats to preserve their democratic character.

Even supposing that they were referring to the individual states, however, it doesn't follow that the 2A doen't apply within federal enclaves. After all, there is nothing to suggest that the people whom they believed must be guaranteed the right to bear arms to preserve the freedom of the states must be citizens of a state and not a federal enclave. Surely "the people" of the United States is not meant to exclude such unfortunates.

Carl said...

To follow-up to myself:

Moreover, why did they feel the need to characterize these states as free. Were some of the individual states not free?

I suppose the preamble would be best read as follows: "A well regulated militia being necessary for maintaining the freedom of a state...." Even so, this doesn't explain the variance in grammatical form. I would submit that where the text does not unambiguously refer to the individual states that the term is being used in its traditional sense.

Countertop said...

You said - "I count four just about certain votes to reverse (Stevens, Souter, Ginsburg, Breyer)"

Thats certainly interesting but I'm wondering if you're basing this on past gun control decisions or just because you expect the court to split along normal onservative/liberal lines (which I expect you are).

Ginsberg has expressed on a couple of occaisions what can only be interpreted as her support for an individual rights view of the 2nd Amendment. Souter as well, as disappointing for Republicans as he's been elsewhere, is at worst unclassifiable on this matter with prior decisions indicating he could go either way.

Kennedy would be leadning towards affirming. I have Alito, Roberts and Thomas strongly affirming and would say if any of the usual conservative votes were unknown that would be Scalia.

At the end of the day, I suspect we will see a 7-2 (and very possibly a 9-0) affirmation of the DC Circuit. Of course though, I agree with you that I don't think this case goes up - far too heated of a political issue at this stage.

Mark said...

While I'm just a layman, I believe that this review has failed to consider that the case actually addresses the natural right of citizens to life (if not liberty) and that in turn is based on the natural right to defend oneself.

The USA in particular places a high value on the life of one, and every, citizen.

From a practical standpoint, military officers and law enforcement officers are provided with handguns because they are the definitely the best firearm and defense in close encounters - which is precisely where most citizens would find themselves as the victims of criminals, whether inside or outside their homes.

Rifles, on the other hand, are typically the infantryman's firearm because it is more effective at longer range. A shotgun is more effective at quite short ranges.

To deny a citizen access to a handgun - the best defensive firearm - puts him / her at a distinct disadvantage vs. a criminal - espeically if the citizen is elderly, handicapped, or female.

If a citizen's natural right to life and natural right to defend himself is to have any significance and meaning in the law, then the practical ability to defend oneself with a handgun must be both recognized and protected.

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