II Am Grand Slam


S&W commemorative revolver

Within weeks of SCOTUS ruling Dick Heller had a II Am right to possess a pistol for self-defense, the District of Columbia informed him the right doesn’t extend to semi-auto pistols after it rejected his permit application for his 1911 .45, because the District considered such firearms to be too similar to machine guns.

Only someone who has shot neither would make such a foolish assumption.

After being denied a right to register his semi-auto handgun, Heller was successful in submitting a .22 revolver for registration. However, if Heller is successful in gaining a permit to keep his .22 revolver in his home, it will have to be disassembled and trigger-locked and/or kept in a safe. This requirement (although it does include an assembly exception while it is being used against an intruder in the home) seems to treat as dicta Justice Scalia’s admonition that the “District’s requirement … that firearms in the home be rendered and kept inoperable at all times … makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.” Dist. of Colum. v. Heller, No. 07-290, slip op. at 58 (June 26, 2008) (emphasis added).

Looks like it won’t be long before Heller II is foisted back upon the court system.

* * * UPDATE * * *

Looks like Dick Heller was equally displeased with the District’s new gun permit regulations, seeing as how he sued the District once again yesterday based, in part, on its disallowance of semi-auto handguns and its requirement that all firearms be kept disassembled and trigger-locked.

Thx to DC Dicta, the DCist, WaPo, and HotAir

Zzzzzzzzz

Namely, Justice Ginsburg, who reportedly fell asleep during the reading of the dueling Heller opinions yesterday at SCOTUS.

And as a commenter correctly points out over at Volokh, this is not the first time Justice Ginsburg has been slumber-challenged in the Courtroom. Back in 2006, during the oral arguments in the Texas redistricting case (League of U. Latin Am. Citizens v. Perry, 548 U.S. 399 (2006), Justice Ginsburg apparently snoozed long enough for the Court artist to capture it for posterity.

In her defense in both instances however, anyone who could stay awake through the redistricting mess was likely chemically-imbalanced, and Justice Ginsburg had no doubt read every word of the 154 pages of opinions in Heller, so there wasn’t any great need for her to remain conscious during the reading of the summaries.

Thx to Volokh and the BLT

OG--original guarantee

A hurriedly-compiled list of some of Justice Scalia‘s (“AS”) most cogent and bombastic (read benchslap-tastic) points is recounted below. Justice Stevens (“JPL”) wrote a dissent vainly attempting to combat AS on AS’s home court of originalist historical context, and Justice Breyer (“SGB”) authored a dissent devoted to supporting the D.C. (the “District”) gun ban itself. Notably, AS reserves his harshest criticism for JPL (calling him “dead wrong” at one point). See Dist. of Colum. v. Heller, No. 07-290, slip op. at 5-6 n.5 (June 26, 2008).

Part II of the opinion delves into amazingly intricate detail as to what is the meaning of the II Am. AS begins by acknowledging that the II Am. is divided into a prefatory clause (the “well-regulated militia” portion favored by collective right proponents) and an operative clause (the “right of the people” portion favored by individual right proponents). AS makes clear that a prefatory clause may operate to clarify the operative clause, but it cannot “limit or expand the scope of the operative clause.” Id. at 4. He chides JPL for suggesting that such a construction would impermissibly render the prefatory clause without effect, because:

[A] court has no license to make [a clause] do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

Id. at 4 n.3. Such a construction, AS explains, would illogically “cause the prologue to be used to produce ambiguity rather than just to resolve it.” Id. at 5 n.4.

AS next turns to the individual nature of the right, reminding the dissenting Justices that the other two times the phrase, “right of the people” is used in the Bill of Rights (I & IV Ams.), it is uncontested that such language confers an individual right.

Examining the substance of the right, AS explains:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search, … the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Id. at 8 (emphasis added) (citations omitted).

AS positively disassembles JPL and the District’s construction of the phrase, “bear Arms:”

In any event, the meaning of “bear arms” that [the District] and [JPL] propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed …. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once:“weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Id. at 13 (emphasis added) (citations omitted).

AS was apparently less swayed by the amicus brief filed by a group of linguists than was JPL, remarking:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Id. at 15 (emphasis added).

AS is also unmoved by JPL’s creative grammatical interpretation of the II Am.:

[JPL] believes that the unitary meaning of “keep and bear Arms” is established by the [II Am.]’s calling it a “right” (singular) rather than “rights” (plural) …. There is nothing to this.

Id. at 18 (emphasis added). AS adds in a footnote:

Faced with this clear historical usage, [JPL] resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established …. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution ofthe United States” is not a whit different from a promise “to supportand defend the Constitution of the United States.”

Id. at 18 n.14 (emphasis added).

Unsurprisingly, when JPL attempts to broadside AS on his own turf—that of interpreting legislative history—AS is blunt: “[JPL] flatly misreads the historical record.” Id. at 30. I think the most revealing barb aimed at JPL by AS is also the most prescient. Replying to JPL’s insistence that commentary subsequent to the ratification of the II Am. somehow bore upon the understanding of those who ratified it, AS is brilliant (as usual):

Before proceeding, however, we take issue with [JPL]’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task …. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding …. “Postenactment legislative history,” … a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote.

Id. at 32 (emphasis added). In one fell swoop, AS calls out the jurisprudentially liberal wing of the Court’s central tenet of juristic philosophy. Masterful.

AS easily sweeps aside JPL and the District’s contention that United States v. Miller, 307 U.S. 174 (1939) could be read to support only a militia’s right to bear arms because:

Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen …. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Id. at 50 (emphasis added).

One of my favorite passages is a subtle dig at JPL’s professed concern for the judiciary at the expense of the citizenry:

As for the “hundreds of judges,” … who have relied on the view of the Second Amendment [JPL] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

Id. at 52, n.24 (emphasis added). Game … set … match.

AS concludes by discounting the faux concern raised by SGB that the majority opinion “leav[es] so many applications of the right to keep and bear arms in doubt,” reminding his colleague that:

[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.

Id. at 63 (citations omitted).

AS’s second-to-last sentence in the opinion is a skillfully-drafted and subtle rebuttal of the use of the Court by his jurisprudentially liberal colleagues—past and present—to juristically abrogate the Constitution based on modern constructions of ancient legal precepts. In it he concludes that, while the political or cultural viability of the II Am. in modern society:

[I]s perhaps debatable, … what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Id. at 64 (emphasis added).

Also of note, AS cites not to just one, but two three of Professor Volokh‘s articles in the majority opinion. That is a very rare honor indeed, but also an undisputedly well-deserved one by Professor Volokh. See id at 3, 11 n.8, 24.

Also, one of the cites is to Texas’s very own Review of Law & Politics, congrats.

* * * UPDATE * * *

More quotes from the majority opinion less of the benchslapping variety can be found at SCOTUSBlog.

Thx to the Heller majority, and as always, to Justice Scalia for his intellect and wit

Say hello to my little friend!

SCOTUS just announced it has affirmed the D.C. Circuit’s decision striking down the District of Columbia’s gun ban.

More details on the text of the opinion (how far it goes in upholding an individual right to bear arms, etc.) as they become available.

* * * UPDATE * * *

From SCOTUSBlog:

10:13 Ben Winograd –
The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg. We will provide a link to the decision as soon as it is available.

10:13 Tom Goldstein – Second Amendment protects an individual right to possess a firearm.

(emphasis added).

* * * UPDATED UPDATE * * *

No plurality and and two dissents (so should be fairly clear precedent).

* * * MORE UPDATES * * *

From SCOTUSBlog:

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed

* ** Read the opinion HERE * * *

Thx to SCOTUSBlog

Rise it has

I have yet another book to add to my summer reading list, Steven Teles’s The Rise of the Conservative Legal Movement.

Professor Zywicki has a great review of it over at Volokh.

Thx to Volokh

II Am. beatch

Robert Barnes has this excellent article in this morning’s Washington Post recapping the oral argument (noting many of the same exchanges I highlighted yesterday).

As promised, the audio from the oral argument is available here (in Real Player format).

*** UPDATE ***

A non-Real Player audio link is available here.

Thx to the Washington Post and How Appealing

The Nine

It’s always a dangerous business to attempt to intuit what an appellate panel is thinking from their questions at oral argument, but here it goes nonetheless.

Jess Bravin, the Wall Street Journal‘s SCOTUS correspondent has some postgame analysis over at the WSJ Law Blog. Most encouraging to me (an individual right proponent) from his observations, however, is this recap of Justice Kennedy‘s line of questions:

Kennedy frequently raised the imagery of frontiersman in the 18th and 19th century that had to protect their property from outlaws. And if that’s what the Second Amendment is about, it was hard for him to draw rules for regulation, especially one as sweeping as D.C’s.

For the full transcript of the oral argument, see here.

*** UPDATE ***

More excerpts from the oral argument (read below and you’ll see four likely strong votes to affirm, assuming Justice Thomas is a solid fifth vote (because he famously rarely asks questions during oral argument–probably to avoid just such silly supposition as I am engaging in here)):

CJR:

If you’re right, Mr. Dellinger, it’s certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say “the right of the people”? In other words, why wouldn’t they say “state militias have the right to keep arms”?

***

If the militia included all the people, doesn’t the preamble that you rely on not really restrict the right much at all? It includes all the people.

Transcript of March 18, 2008 Oral Argument in D.C. v. Heller, Cause No. 07-290, 4:11-16, 4:24-5:2.

What is — what is reasonable about a total ban on possession?

***

So if you have a law that prohibits the possession of books, it’s all right if you allow the possession of newspapers?

***

The regulation –the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it’s all right to ban handguns.

Id. at 18:17-18, 18:24-19:1, 19:11-16.

CHIEF JUSTICE ROBERTS: So how long does it take if your interpretation is correct how long does it take to remove the trigger lock and make the gun operable.
MR. DELLINGER: You place a trigger lock on and it has the version I have a few that you can buy them at 17th Street hardware has a code like a three digit code. You turn to the code and you pull it apart. That’s all it takes. Even —
JUSTICE SCALIA: Turn on the lamp next to your bed so you can, you can turn the knob at 3-22-95 so
CHIEF JUSTICE ROBERTS: Is it like that is it a numerical code.
MR. DELLINGER: Yes.
CHIEF JUSTICE ROBERTS: So then you turn on — many you pick up your reading —
MR. DELLINGER: That’s right. Let me tell you why at the end of the day this doesn’t, this doesn’t matter. For two reasons. The lesson.
CHIEF JUSTICE ROBERTS: It may not matter but I’d like tomorrow idea about how long it takes.

Id. at 82:6-83:2.

AMK:

And so in effect the amendment says we reaffirm the right to have a militia, we’ve established it, but in addition, there is a right to bear arms.

***

And this makes, it does –I think you’re write right in the brief to say that the preface shouldn’t be extraneous. This means it’s not extraneous. The Constitution reaffirms the rights, reaffirm several principles: The right of the people to peaceably assemble, the right to be secure in their homes, the Tenth Amendment reaffirms the rights, and this is simply a reaffirmation of the militia clause

Id. at 5:24-6:2, 6:4-11.

And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there’s a general right to bear arms quite without reference to the militia either way.

Id. at 13:19-23 (emphasis added). Bingo, game over folks. Right here, Justice Kennedy shows his cards, and an individual right has the fifth vote.

Well, you are being faithful to Miller. I suggest that Miller may be deficient.

Id. at 62:3-5 (emphasis added). “[Stare decisis]? We don’t need no stinkin’ [stare decisis].”

AS:

I don’t see how there’s any, any, any contradiction between reading the second clause as a — as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed.

***

The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

Id. at 7:8-13, 7:19-21.

Blackstone thought it was important. Blackstone thought it was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.

Id. at 8:22-9:2.

JUSTICE SCALIA: — that is common for the people to have. And I don’t know — I don’t know that a lot of people have machine guns or armor-piercing bullets. I think that’s quite unusual. But having a pistol is not unusual.
MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are —
JUSTICE SCALIA: How many people in the country?
MR. DELLINGER: Well, there are 300 million, but whether that’s common or not, but the —
JUSTICE SCALIA: I don’t think it’s common.

Id. at 22:6-18 (emphasis added). Boo … Yah.

Doesn’t “well regulated” mean “well trained”? It doesn’t mean — it doesn’t mean “massively regulated.” It means “well trained.”

Id. at 26:7-9 (emphasis added). One gets the feeling Justice Scalia has been waiting for this oral argument for a long, long time.

I don’t understand that. What would that be — that you can, if you have time, when you hear somebody crawling in your — your bedroom window, you can run to your gun, unlock it, load it and then fire? Is that going to be the etch exception?

Id. at 42:12-16.

All the more reason to allow a homeowner to have a handgun.

Id. at 77:24-25.

JUSTICE SCALIA: You mean you can’t have any more arms than you would need to take with you to the militia? You can’t have — you can’t have, you know, a turkey gun and a duck gun and a 30.06 and 270 and, you know, different hunting guns for different.
MR. DELLINGER: Well —
JUSTICE SCALIA: You can’t do that? I mean a State could say you don’t —
MR. DELLINGER: Of course you could do that.
JUSTICE SCALIA: You’d have to have a 12 gauge and that’s it.
MR. DELLINGER: And like the District that allows that, as every State does. There are —
JUSTICE KENNEDY: I — at least to me the question is, what would be the constitutional basis for insisting on Justice Scalia’s suggestion that you need a number of guns? You have argued, it seems to me, that the District or a government could prohibit just what he said, unless you needed one to take to the militia.
MR. DELLINGER: I do not know why that would pass the reasonableness scrutiny that this law would because a powerful, overwhelming case could be made that you’re eliminating the one type of weapon — this law is — is designed only for the weapon that is concealable and movable, that can be taken into schools and on to the Metro, can be easily stolen and transmitted among —
JUSTICE KENNEDY: I’m asking about the constitutional standard you apply to a hypothetical statute which would prohibit the guns Justice Scalia described. What is your position as to the validity of such a hypothetical law?
MR. DELLINGER: Would you apply this standard. You would ask whether the ban is one that’s carefully balanced and considerations of gun ownership ….

Id. at 86:17-87:25 (emphasis added). Even more reason to really like Justice Scalia; does anyone think for a second that Justices Breyer, Ginsburg, or Stevens have any clue what a 30.06 or a 270 is? Love to have seen the blank looks on their faces when Justice Scalia threw that analogy out there.

SAA:

JUSTICE ALITO: Your argument is that its purpose was to prevent the disarming of the organized militia, isn’t that correct?
MR. DELLINGER: That is correct.
JUSTICE ALITO: And if that was the purpose, then how could they — how could the Framers of the Second Amendment have thought that it would achieve that person, because Congress has virtually plenary power over the militia under the militia clauses?

Id. at 10:17-25.

[A]t least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that’s most commonly used for self-defense and even as to long guns and shotguns they require at least what the code says without adding a supposed loss that might be produced in a subsequent case that even as the long guns and shotguns they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?

Id. at 41:13-23.

Thx to the WSJ Law Blog

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