SCOTUS: Will They or Won’t They?
First, from the AP:
— The Supreme Court took no action Tuesday in the case involving the District of Columbia’s ban on handguns.
The justices discussed the case at their private conference on Friday, but reached no resolution.
Four justices must vote to grant an appeal. The court does not always reach a decision the first time it discusses a case.
At issue is the capital’s 31-year ban on handguns, among the strictest gun-control laws in the nation. In March, a federal appeals court struck down the ban as incompatible with the Second Amendment.
The justices next meet on Nov. 20 to consider accepting appeals. Their decision could be announced then or when the court convenes for oral arguments on Nov. 26.
This possible case, of course, has newspaper op-eds all a-twitter. Bloggers like me, too. Writing in the LA Times, Robert A. Levy notes that there are several issues involved:
The first is the knotty question of whether the 2nd Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But in the aftermath of the Civil War, much of the Bill of Rights was considered “incorporated” by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the 2nd Amendment has not yet been settled. And that issue did not arise in Parker because the District of Columbia is a federal enclave, not a state.
The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that 2nd Amendment rights are absolute. After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.
Similarly, gun regulations can be imposed on some weapons (e.g., missiles), some people (e.g., preteens) and some uses (e.g., murder). Indeed, the appeals court acknowledged that Washington might be able to justify such things as concealed-carry restrictions, registration requirements and proficiency testing.
But the Constitution does not permit an across-the-board ban on all handguns, in all homes, for all residents, as in the case of the Washington ban (with the exception of current and retired police officers). Somewhere in the middle, regulations will be deemed constitutional even if the Supreme Court upholds the lower court.
Naturally there are many who believe that the Second Amendment only refers to state militias or the National Guard, not to individual ownership. Levy points out:
Significantly, the 2nd Amendment refers explicitly to “the right of the people,” not the rights of states or the militia. And the Bill of Rights is the section of our Constitution that deals exclusively with individual liberties.
Let’s say they (the High Court) affirms an individual right. USA Today offers a suggestion:
Even the appeals court that knocked down Washington’s law was at pains to say “reasonable restrictions” could still pass constitutional muster. Suggested examples included prohibiting drunks from carrying weapons and banning guns in polling places, surely a modest start.
Left unsettled, though, is just where the limits lie. Is there a difference, for example, between outlawing stingers that can shoot down airplanes and outlawing automatic weapons that can mow down children in a schoolyard?
If the court can draw a distinction, perhaps it can alter the nation’s paralytic debate over gun control. This page has long suggested that the proper starting point is registration of guns and licensing of their users. That does not infringe the rights of gun owners, but it can instill safety skills and avert tragedies such as last spring’s massacre by a mentally disturbed student at Virginia Tech.
Au contraire! Since when is a right subject to registration and licensing? Should editorial writers have to be registered and licensed to practice their right to freedom of speech? Shall we license book and magazine publishers?
In point of fact, some rights are registered, such as the right to vote, although that is mostly to prevent voter fraud. I’ve even seen suggestions that voters be “licensed” to ensure they have a rudimentary cognizance of what they’re voting for. That harkens back to the old days of the South and discrimination against blacks through a “poll tax.” For that matter, the public airwaves are licensed and highly regulated.
I predict that if the High Court agrees to hear the case, and they decide that the Second Amendment is an individual right, they will go to great pains to make sure that that right can be highly regulated. DC won’t be able to ban handguns anymore, but they’ll be able to raise so many hurdles to obtaining or carrying one that the people who need one the most — folks living in poor, crime infested neighborhoods — won’t be able to afford one.
Meanwhile, the Niagara Gazette says:
. . .And the Supreme Court should carefully consider the implications of this decision on state legislators and the judges who interpret and enforce those laws. A decision by the nation’s highest court upholding an individual affirmation of handgun ownership might have few practical effects beyond the law’s narrow purview, the District of Columbia. But the implications — a tacit approval for looser gun laws — could foster a judicial mindset that produces some very bad decisions down the road.
Sounds like they’re suggesting that SCOTUS ignore the constitutional questions of the amendment and instead focus on how it will effect local laws around the country. Is that really the standard they’d like courts to apply in their decisions?
9 Responses to “SCOTUS: Will They or Won’t They?”
on 14 Nov 2007 at 9:52 am # Sailorcurt
I know this is a silly point and is nit-picking, but I couldn’t help myself. I’m in an argumentative mood today.
In point of fact, some rights are registered, such as the right to vote, although that is mostly to prevent voter fraud. I’ve even seen suggestions that voters be “licensed” to ensure they have a rudimentary cognizance of what they’re voting for.
There is no right to vote enshrined in the US Constitution. It may be one of those ninth Amendment unenumerated rights; but, Article 1, Section 4 specifies that the States get to determine the “Manner” in which elections are held. If the states choose to allow, say, city mayors, to elect Senators and Representatives, they can do so. If they choose to allow county Sheriffs to select the Electors to cast that State’s Electoral College votes, they can do so.
The 15th and 19th Amendments preclude disallowing someone to vote based solely upon race or sex, the 24th prevents charging a tax to qualify to vote and the 26th preclude states from disallowing voting by persons under age 18…but they do not guarantee a right to vote. In other words, States are not required to allow popular votes, but if they choose to do so, race or sex cannot be used to disqualify someone, no tax can be charged to do so and no one over 18 can be precluded based upon age.
Land ownership, income, education level, the passing of a test etc could all conceivably be used as criteria for voting. Of course, under the 14th Amendment, that would reduce that State’s representation based upon the number of males over 21 not allowed to vote…but such criteria would not be technically unconstitutional.
I realize that several of the Amendments refer to “the Right to vote”…but that right is never enumerated, nor even implied, in anything other than the terminology used in those Amendments.
If voting is a right, what does that mean? Do we have the right to vote on EVERYTHING? Then what’s the point in the legislature? What’s the point in the Electoral College? I don’t remember getting to vote on the members of the Supreme Court…my right to vote was violated.
The “right to vote” is a misconception. There is no right to vote. Voting is a privilege extended by State legislatures to the citizens of their state.
on 14 Nov 2007 at 10:24 am # Gringo_Malo
“Reasonable restrictions” sounds like an infringment of the right to keep and bear arms to me. The analogies with the limits on freedom of speech are bad ones. Yelling fire in a crowded theater causes harm to others. Even so, we don’t deny free speech a priori to people whom we suspect might be inclined to abuse the right.
The mere possession of a concealed handgun harms no one. It doesn’t even harm brain-dead, hoplophobic liberals, because they don’t know it’s there. Should someone draw his handgun and harm another without justification, we have plenty of laws to punish him. Prior restraint is not only unnecessary, but incompatible with freedom.
Bearing in mind that our elite prefers unarmed peasants, we can probably expect a SCOTUS decision that hypocritically asserts an individual right to keep and bear arms, and then allows so many “reasonable restrictions” that the right becomes meaningless. In the Emerson case, the 5th Circuit affirmed an individual right to keep and bear arms but did not nullify the Lautenberg amendment and remanded Emerson for trial. I submit that we’d all be better off without a SCOTUS decision.
on 14 Nov 2007 at 10:29 am # scott
You posted the EXACT reason I HOPE the SC will deny cert -
“I predict that if the High Court agrees to hear the case, and they decide that the Second Amendment is an individual right, they will go to great pains to make sure that that right can be highly regulated”
Think about it, the SC can only MESS UP a PERFECT decision.
As much as we would like to believe the SC would take the case and declare - “The appeals court got it EXACTLY right” ain’t gonna happen.
The DC decision needs to stand exactly as it is. We should be happy with that and work towards other victories in other lower courts using the DC decision as ammunition.
Scott
Phx, AZ
on 14 Nov 2007 at 12:33 pm # Sailorcurt
The DC decision needs to stand exactly as it is. We should be happy with that and work towards other victories in other lower courts using the DC decision as ammunition.
Unfortunately, we have no control over that. The option to appeal was exercised by the government of DC, not our side. Granted, our side seemed eager for the challenge, but had no control over the decision made by the DC government.
Now that it has been appealed, we have no control over whether SCOTUS grants cert or not.
Whether we “should be happy” about the current state of affairs or not is irrelevant. It is beyond our control and the battle is not going to be over no matter what SCOTUS does. It is imperative that we be prepared to fight the battle in whatever form it eventually takes.
on 14 Nov 2007 at 1:05 pm # KCSteve
My hope lies with vanity (so it’s a powerful hope indeed).
The number one thing we can be sure of about the members of the Supreme Court is that they want to be remembered - preferrably in a good way but I’d wager most of them would take what they can get.
A strong ruling against the Second Amendment risks civil insurrection. They’d be remembered but in a very bad way. I suspect they don’t want that.
A strong ruling for the Second Amendment will PO a lot of the people whose opinions they care about - including big chunks of the .Gov. But in the long run they’d probably be remembered favorably, so it’s tempting.
A weak decision either way is no better (for them) than a non-decision.
I think the delay is because they’re dithering around trying to decide if they can have a positive enough decision to ensure their immortality withouth doing too much damage to their situations now. In other words, they know what the answer is “shall not be infringed” is pretty easy to parse. But it’s political suicide so the question is how to set things up so they get the credit for saying ‘yes’ while actually saying ‘not really, or at least not while we’re still around’.
If they can come up with what they think is a winner then they’ll grant cert. If not, they’ll take the wimpy way out.
on 14 Nov 2007 at 1:34 pm # straightarrow
“What restrictions on gun possession and use would be permissible? Almost no one argues that 2nd Amendment rights are absolute. After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.”-Levy
Let’s examine that statement. In answer to the first sentence which is a question, the answer is “NONE” that is what “…shall not be infringed.” means.
Then it is followed with a non-sequitir as logical reasoning used as justification for infringements which are not allowed. The subject was changed from the exercise of rights which are guaranteed by our constitution to the commission of crimes which is not. That shift in the dialogue works only on the stupid. Unfortunately, there are many more of them than the intelligent.
Since the exercise of rights and the commission of crimes are not even peripherally related that makes this argument as justification for denial of rights invalid. No sane man can see it any other way.
However, for the sake of argument let’s assume that fraudulent argument has merit. Can it not also apply to the second amendment? Of course it can.
To paraphrase: “…………… After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.” Let’s change it to read “………
After all, under the second amendment, the right to keep and bear arms does not protect murder, robbery, or unwarranted harm to others.”
Isn’t that statement just as true? Yes. So, even granting faux legitimacy to their own argument, only reaffirms the fact that rights cannot be restricted. Criminal acts can be and should be, but rights cannot be restricted in expectation of abuse.
They lose this debate any time they engage someone with the presence of mind to point this out.
We lose the debate through surrender when we stand there in dumb silence because we have not done our mental homework and don’t call them on the falsity of their argument, nor point out that even if that argument were legitimate it speaks for us, not them.
Shame on people on our side who are only irritable about this issue, but too lazy or too afraid of ridicule to think it through and fight the damn fight.
There is not a defensible reason to be only irritable, we should be enraged enough to call them out.
on 14 Nov 2007 at 5:10 pm # teqjack
Speech regulation in accord with the First Amendment is almost entirely after the fact (as is nearly all crime fighting): seeming exceptions are in turn mostly about preventing recurrence of previous behaviour.
Mostly, I think regulation under the 2nd should be the same. I would be uncomfortable, but also admiring in a way, if a neighbor had a self-propelled 155mm howitzer - unless I thought it was intended for actual violence against anything but prepared/prepaid/prearranged targets.
My thinking is admittedly fuzzy. But while I do not own a gun, I do not want guns banned - I do want criminal users/owners banned - but with some leeway, as in the case of a parolee who almost went to jail for “possession” of a handgun which he had taken from a crook robbing the store he was working at and handed to the responding police but didn`t after the local paper headlined his case.
on 15 Nov 2007 at 11:01 am # Gringo_Malo
teqjack,
Be careful of slippery slopes. An unconstitutional federal law forbids felons (anyone convicted of an offense punishable by imprisonment for more than one year) to possess a firearm. Not all felons, however, are murderers and armed robbers. It’s quite easy to become a felon in this country without doing violence to anyone or, in some cases, without doing any actual harm to anyone.
According to libertarian author and activist Claire Wolfe, Americans are subject, on average, to eleven million pages of laws and regulations that have the force of law. This is more than any of us could hope to read in a lifetime, even if he had nothing else to do. Not even lawyers know the law nowadays. It would be foolish to assume that your rights won’t be denied because you’re law-abiding. How much law have you read?
on 15 Nov 2007 at 1:12 pm # chrisb
As to your last question, the answer is yes. The liberals use the courts to affect policy that the public would never accept otherwise. They don’t care if the SCOTUS does it job correctly.