Tuesday, November 20, 2007

DC Gun Case Cert Grant

The Supreme Court granted cert today in the D.C. gun control case, now styled D.C. v. Heller. As I noted in an earlier post, this is not an unexpected development. One small wrinkle is that the Court took the somewhat unusual step of rewriting the question presented. The cert petition had phrased the question as follows:

Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.

The Court, in granting cert, reframed the question this way:

Whether the following provisions - D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 - violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

It's hard to know whether anything important turns on the difference in wording. The Court's question isn't especially one-sided, but it does focus, to an extent that the cert petition's question does not, on the militia issue.

As I expected, the case is already working its way into the 2008 Presidential campaign. Rudy Giuliani's website says of today's grant: "I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean." I couldn't find anything on the case on the Clinton, Obama or Romney sites, but it will be difficult for the candidates to remain silent for long.

Posted by Mike Dorf


egarber said...

This will be a good test of my theory that gun control is.a dead issue for Democrats. I know I heard Hillary in one debate say ownership is a constitutional right.

My guess is that most Dems will say it's possible DC went too far, but that there will still likely be plenty of room for "sensible regulation" if the lower (DC) ruling is upheld. And if Rudy has a problem with that explanation, it'll be easy to pull out his old quotes favoring gun control and opposing the NRA.

What I can say -- living in the south -- is that the Democratic candidate can forget about turning states purple if he / she comes out heavily defending DC.

egarber said...

In the bigger sense, there's another layer to the questions I think:

Is the same test -- whatever it ends up being -- applicable against individual states? Meaning that even if the ruling is upheld, does that mean a similar law would fail in a sovereign state (on different federalism footing than DC)? I guess I'm asking if any such ruling would necessarily be read to incorporate the 2nd Amendment.

Sobek said...

My prediction: the DC Circuit is upheld, majority by Kennedy, on extremely narrow grounds with lots of equivocation.

Mithras said...

I was in a small group discussion with some political science and law profs when the grant of cert was announced. The consensus around the table was (a) the court will find an individual right to own a gun (otherwise, why grant cert?) and (b) the level of scrutiny will be less than intermediate, so as to achieve a result very like the facts on the ground today. In other words, a total ban is out, but they'll use a balancing test for anything short of that.

I think the answer to egarber's second question is yes, this new right will be incorporated against the states. As far as I am concerned, this is great news for Democrats. What it does is force state and local republican officials to defend their existing regs. So the NRA will be off litigating cases across the country, expending their energy, and getting mad at Republican "gun grabbers". Comedy gold.

Sobek said...

Mithras, I think you misunderestimate the power of interest groups. Legal victories and defeats are both used to solicit more money to support the cause.

Just one example, immediately after Gonzalez v. Carhart, I got a flood of emails from pro-choice and pro-life groups, each insisting that the ruling meant I needed to cut them a check. The former, because (a) it was the only way to win back the rights the Supreme Court had just destroyed, and (b) the pro-lifers would now raise more money. The latter because (a) the pro-choice groups would now raise more money, (b) they needed to keep the momentum going, and (c) they needed to lobby state governments to enact laws under the new ruling.

Interesting how that works.

Benjam said...

i think the reference to the militia issue is indeed telling. the militia issue is the essence of the preamble. placing substantive content into that preamble is the legal deus ex machina by which the second amendment is rendered meaningless. it would seem to me that the court's recitation of the preamble in the question presented indicates some belief that the clause matters. that should give hope to gun control advocates. i'd be very surprised if the court used this case to establish an individual right. i'd actually be less surprised if the court uses this case to obliterate the second amendment.

Mithras said...

You're right about the fundraising thing. Clearly, the NRA and pro-gun control groups would both make hay if the Court holds there is an individual right. That's the nature of issue-advocacy nonprofits. What I meant was that the NRA would end up litigating cases against Republican AGs in jurisdictions across the country, which would change the political dynamic.

i'd actually be less surprised if the court uses this case to obliterate the second amendment.

Why now? The court has before now turned down cert in gun cases many times. So the decision to take this case almost certainly resulted from a change in personnel. Who do you think the gun-grabber is, Roberts or Alito?

Benjam said...

i wouldnt read too much into cert denials, especially in such an unsettled area of law. i get the feeling roberts could join bryer, ginsberg, souter and stevens. at the same time, if i were a gun-rights advocate, i wouldnt feel that comfortable with any of the conservative votes.

roberts and alito are both from the northeast and both have executive branch experience/ prosecutorial experience. roberts seems to me especially political and i think the NRA has lost its mojo in light of recent mass murders in blacksburg, columbine, and elsewhere.

Mithras said...

That's an interesting take. I guess we'll see. Alito voted against a Congressional ban on machine guns in 1996. But I agree with Sobek that Kennedy writes the opinion.

PG said...

Depending on your interpretation of the word "militia," giving the 2nd Amendment's preamble weight doesn't necessarily kill the individual right. It just may be an individual right that is exercised toward a specific goal. That's what makes the "private use" problematic; citizens who say they are keeping their guns to defend against the federal government's tyranny are perfectly in line with almost anyone's interpretation of the 2nd Amendment.

I'm doubtful that incorporation of the 2nd Amendment to apply against the state governments would be such a slam dunk on a Court that includes Thomas.

Laci the Chinese Crested said...

Let' see, Anyone here read U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996)? Rybar's attorney raised the Second Amendment Issue. Justice Alito only discussed the US v. Lopez, 514 U.S. 549 (1995) commerce clause challenge.

Does this mean anything?

Also, Justices Roberts, Scalia, Kennedy, And Alito are all Catholics and the Catholic Church has come out for gun control.

Add in Justice Kennedy is (was?) a militia member (California National Guard) and Justice Alito was Army reserve.

How will the two Citizen Soldiers take the holding of Miller v. US that the Second Amendment needs to be interpreted with the "obvious purpose to assure the continuation and render possible the effectiveness of such forces (militias organised according to Article I, Section 8)?

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