The argument was terrible from people who have appellate advocacy experience. I may just be a lowly trial lawyer, but one has to be prepared for every possibility when one is before an American Appellate tribunal, which none of these men appeared to be. Maybe they were trying to take the middle ground. Maybe they were just not prepared.
I should say that I worked with one of Justice Ginsburg's clerks, Dan Z, in the mid-90s. That can give those in the know about DC's gun laws and enforcing them some idea of my interest and qualifications to comment on this topic. But that is an aside. As I have also said before, I do this more for myself than anything else.
I do believe that if this is a split decision that there will still be litigation until some form of consensus can be made on the topic. Additionally, Gura made too many concessions which were harmful to his case, one of which was the reliance on the courts as to who would be the interpreter of what laws are reasonable. This reliance on "reasonable" restrictions is a killer to any possibility of an individual right for several reasons.
First off, the Second Amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
That's "shall not be infringed" as Justice Stevens properly pointed out, not "shall not be reasonably infringed". Gura's and Clement's conceding that the right can be infringed in a reasonable manner hurts the argument, especially when one adds in that the Courts are to arbitrate this. We've had Miller for 70 years with loads of litigation, what sort of floodgate will saying there is an individual right bring about?
This is especially true in the area of machineguns, which Gura and Clement both said could be regulated. In fact, Gura says "the government can ban arms that are not appropriate for civilian use. There is no question of that." Specific instance is machineguns, to which Justices Ginsburg and Kennedy both point out that a machinegun makes more sense to have than a handgun. Not to mention that the RKBA websites all point to people wanting to remove the restrictions on machineguns.
The problem is that an individual right which shall not be infringed means that I can own a machinegun. I may have to register it, but I can still possess a machinegun. In fact, I can own a strategic nuclear weapon using the individual right theory. I am serious about filing a case with the Court that my right to own such a weapon is violated by weapons treaties if it does find an individual right to keep and bear arms.
All that is sort of off point since there are more esoteric points in the argument which I have alluded to before, but want to get into here. First one being Justice Alito and the Rybar decision. He has already been a party to a decision where the Second Amendment was in question and the individual right argument was raised and rejected by the court. This may not preclude him from finding an individual right here, but it also doesn't mean that he won't find a collective right.
Justice Alito raised two points in the argument: one being self-defence and the other being the plenary power of Congress over the militia. The self-defence issue could have been a "gimme" to Dellinger since Self-defence isn't mentioned in the Second Amendment, which is something I have been pointing out and was pointed out by Justice Stevens in the argument. Unfortunately, Dellinger's tactics were not the ones I would have taken which is that the Second Amendment is a collective right which does not include the concept of self-defence. The justices will have to do a "Roe v. Wade" and find an extra-constitutional right to make the Second Amendment cover self-defence.
Dellinger's tactic would have been that the law is constitutional unless the law infringes upon militia efficacy. The individual right position ultimately means that terrorists can have nuclear weapons. Which gets to another point that I will get to later on about military power being under Civilian control. Personal self-defence is not mentioned in the Second Amendment as it is in similar state constitutional provisions on the topic and is not a relevant issue to the matter. The Constitutional debates centred upon Congress's power over the militia, not self-defence which gets to plenary power. The fear was that the Federal Standing army would replace the State Militia.
Justice Alito raised the point that Congress has plenary power over the militia, which J. Stevens pointed out wasn't really true since the States could appoint officers. But, that was the issue the Second Amendment addressed, not an individual right to own firearms for any purpose. Self-defence is a common law concept and the choice of weapons that can be used for that purpose can be limited by law (see my post on self-defence).
OK, for those who have no idea of how appellate advocacy works, the Judges often take devil's advocate positions to argue. The trick is to teach and inform the court. Unfortunately, None of the advocates in this case seemed able to properly pursuade the Justices (or me) of their position. Too much concession on all sides. That is most harmful to Dellinger, not so harmful to Gura. Remember Gura would be stuck with arguing that terrorists are able to have nuclear weapons.
This is especially true if one takes J. Scalia's comments about "well-regulated". This is a total misinterpretation of that term. Military force was to be under Civilian control. The Militias during the War for Independence were never out of the control of some authority whether it was Crown or Revolutionary/Provisional/Continental/traitor's tribunals/whatever you what to call them. Examples:
The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, December 12, 1787
That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: and that the military shall be kept under strict subordination to and be governed by the civil powers.
Article XIII of the Virginia Declaration of Rights.
That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
The New York convention broke up the right into three paragraphs:
That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.
In Federalist 29, Hamilton spoke of the militia being regulated by the Federal Government: "If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security....What plan for the regulation of the militia may be pursued by the national government, is impossible to be foreseen."
Sure, this is "Monday Morning Quarterbacking" but my point is that there has never been any form of military power which is outside the law. When Blackstone, St. George Tucker, or other contemporary sources mention the militia, it is kept under law. I want to quote Story since J. Scalia says he mentions an individual right and it's a pretty short piece:
§ 1889. The next amendment is: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.
Actually, this sounds more collective in its nature as the Second Amendment right is a system of "discipline" requiring "organisation". This also mentions the issue of Standing army. Now, wouldn't there be a mention of the topic of self-defence in this gloss if this were an aspect of the Second Amendment? Again, the topic of self-defence is conspicuously absent. On the other hand, the topic of standing armies is raised by Story. The problem is that Dellinger wasn't as well versed in the proper literature to present his case and ends up with his dick waving in the wind.
But not as badly as Gura does in this excerpt:
But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?
JUSTICE SCALIA: You want to say yes.
JUSTICE BREYER: Now, why?
JUSTICE SCALIA: That's your answer.
JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.
MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable, and it actually fails any standard of review that might be offered under such a construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Cases back in 1942 -- that was a handgun case where the First Circuit examined the restriction on the carrying of the 30-caliber revolver.
By the way, Cases v. United States, 131 F.2d 916 (1st Cir. 1942) followed the "Collective Right" interpretation:
The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. United States v. Cruikshank, 92 U.S. 542, 553, 23 L.Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 29 L.Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L.Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S.Ct. 816, 83 L.Ed. 1206.
Not the best thing for Gura to have pulled from his hat to support his case.
Now, if the Gura, Levy, and Solicitor General crowd want to have their cake and eat it too, they have to concede that they are trying to overrule local legislatures. Also, Chief Justice Roberts made this comment about standards:
Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those?
I'm not sure why we have to articulate some very intricate standard.
The problems is that comparing the First and Second Amendment is "comparing apples and oranges". They are two different things and I snipped out CJ's comment about the First Amendment picking up baggage over time. Which is a perfect point in Dellinger's favour which he was too (your choice of term here) to have used during argument. We have a standard under Miller (broken record time):
The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
To summarise still yet more even yet another time, the Second Amendment must be interpreted as a whole. the declaration, that is “A well regulated Militia, being necessary to the security of a free State", and the guarantee, the "right of the people to keep and bear Arms, shall not be infringed” bit, need to be interpreted as a whole. There is loads of legal doctrine behind this. For example, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), discusses how none of the language of the Constitution can be considered "surplusage". The Constitution was written in a considered fashion and what was written must be considered essential to its interpretation.
This means a total ban on firearms in civilian hands is not unreasonable if it does not impair the efficacy of the militia/national guard. To quote Sandidge v. United States, 520 A.2d 1057, 1058 (D.C. 1987), which was precedent in DC prior to Parker:
"....After a jury trial, appellant was convicted of carrying a pistol without a license, D.C.Code ' 22-3204 (1981), possession of an unregistered firearm, id. ' 6-2311, and unlawful possession of ammunition, id. ' 6-2361....We now hold that D.C.Code '' 6-2311, 6-2361, and 22-3204 (1981) do not violate the second amendment. We affirm appellant's convictions....We agree with numerous other courts that 'the Second Amendment guarantees a collective rather than an individual right.'....The purpose of the second amendment is 'to preserve the effectiveness and assure the continuation of the state militia.'.... Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia."
Which gets to the coup de grace: The right "of the people". Dellinger was totally unprepared for this which makes me wonder what he was doing with his time, but. The term "people" is a term of art, which is the only real significance of Verdugo-Urquidez. The Fourth Amendment phrase "the people" seems to be a term of art used in select parts of the Constitution, and contrasts with the words "person" and "accused" used in Articles of the Fifth and Sixth Amendments regulating criminal procedures. This suggests that "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U. S. 260, 264-266. People is not individual but can best be defined as representative of the group, which gets to my "we the people" comment.
Let's analyze the word "people" in the second amendment. It has been claimed that this word necessarily means each adult citizen in America. Let's look at how the word "people" is used in the preamble of the Constitution. "We the People of the United States....do ordain and establish this Constitution for the United States of America." It clear that the word "people" in this context is being used in a collective sense. Obviously, not every adult citizen in America was involved in writing the Constitution. Likewise, saying that the Russians have nuclear weapons does not necessarily mean that each Russian owns a nuclear weapon. The word Russians is being used here in a collective sense. Saying that the people have the right to bear arms does not necessarily mean that each adult citizen has a right to bear arms.
Akhil Reed Amar, a leading scholar of constitutional law and author of The Bill of Rights: Creation and Reconstruction, explains that the word people is used in a collective sense in the US Constitution.
"But the libertarian reading must contend with textual embarrassments of its own. The amendment speaks of a right of 'the people' collectively rather than a right of 'persons' individually. And it uses a distinctly military phrase: 'bear arms.'....The rest of the Bill of Rights confirms this communitarian reading. The core of the First Amendment's assembly clause, which textually abuts the Second Amendment, is the right of 'the people'--in essence, voters--to 'assemble' in constitutional conventions and other political conclaves. So, too, the core rights retained and reserved to 'the people' in the Ninth and Tenth Amendments were rights of the people collectively to govern themselves democratically. The Fourth Amendment is trickier: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.' Here, the collective 'people' wording is paired with more individualistic language of 'persons.'"
Which takes us to this exchange between Gura and JJ. Scalia and Souter:
MR. GURA: Well, certainly, there were many people who were not eligible for militia duty, or not subject to militia service, who nevertheless were expected to, and oftentimes did, in fact, have guns.
JUSTICE SCALIA: Which shows that maybe you're being unrealistic in thinking that the second clause is not broader than the first. It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved.
The principal purpose here is the militia, but the -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms.
Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it's -- it's broader than the first clause?
MR. GURA: Well, we do acknowledge that, Your Honor.
JUSTICE SOUTER: Then why have the first clause? I mean what is it doing -- I mean what help is it going to be?
And before you go off and say Justice Kennedy may be sympathetic to the individual right camp, I want to point out this question to Gura about the above questioning: "Could it also be simply to reaffirm that the provisions in the main text of the Constitution remain intact?" I assume that J. Kennedy is referring to Article I, Section 8.
The major problem is that the individual right hinges on two things: one, the right of "the people" referring to individuals and, two, the interjection of the common law concept self-defence into the Second Amendment where it's not mentioned. Additionally, you have to interject standards which are constitutional constructs where they don't exist. Also, you have to remove the preamble from the Second Amendment and say it is not relevant. This means that there is language which is surplusage which is contrary to Constitutional interpretation.
The real death blow would be that changing the interpretation from the current "collective right" to an individual right would require defining the standard. Actually, making a standard where none existed when the collective right standard is already accepted legally. While it is a popular opinion that the Second Amendment covers many things which are totally outside its scope and even Constitutionally impossible, the reality is that it is to ensure the efficacy of the militia. This has been its legally accepted meaning. As I said, Dellinger had a position of power which he squandered which is stare decisis and the collective right standard.
I am not so certain the Court will find for an individual right, and there are lots of outside of court material that the justices will consider, one being the various briefs: in particular those of the ABA, District Attorneys in support of the petitioner, and former DoJ officials that suggest exactly what I do here. There is also the policy which must be considered. Do the justices wish to overturn, or at least brutally shake up, the current legislation regarding firearms. The justices must be aware of the amount of litigation which will follow a finding of an individual right. Part of Gura's case was that the court must shape the contour of the individual right. Another thing is that the Court becomes arbiter of legislation and the legislative process, which is something the court is loath to do. Even more salient, is it wise to overturn firearms legislation given the cost of gun violence in the United States?
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