Saturday, March 15, 2008

Second Amendment Under Supreme Court Gaze in DC Case

Amendment 2 - Right to Bear Arms. Ratified 12/15/1791. Note

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.

Actually, we'll have to check that punctuation. As we thought there was controversy about the punctuation, too.


Supreme Court mulls ‘right to bear arms’
By Patti Waldmeir in Washington

Published: March 18 2008 20:20 | Last updated: March 18 2008 20:20

The US Supreme Court appears ready to rule that Americans have a constitutional right to keep a gun in their home for self-defence, a ruling that could help Republicans in the upcoming presidential election.

Hearing the most important gun rights case in nearly 70 years, the justices on Tuesday spent 98 minutes engrossed in a lively debate about British and American legal traditions relating to the right to bear arms, especially in self-defence.

By the end of Tuesday’s session, it appeared clear that a majority of the court would rule that the US constitution protects the right of individual Americans to “keep and bear arms” – but that federal, state and local governments will retain some powers to regulate firearms.

At issue in the case is the constitution’s second amendment, which includes ambiguous language about gun rights. It says “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 justices sparred over whether those words guarantee the right of individual citizens to bear arms, or only the collective right to bear arms in a state militia.

A majority of the nine justices, including the crucial “swing” justice Anthony Kennedy, who often holds the balance of power on the court, appeared to believe the amendment guaranteed an individual right to weapons.

The American Constitution Society for Law and Policy hosted a panel discussion of The Second Amendment in the Supreme Court. C-Span re-broadcast the event. Featured were panelists

Carl T. Bogus , Roger Williams University
Dahlia Lithwick , (moderator)
Another panelist was David Kopel
NAACP ... another panelist

The programming will be rebroadcast next Saturday. Check C-Span schedule.

Post: [David Kopel, March 15, 2008 at 2:21am] Trackbacks
American Constitution Society panel on DC v. Heller Moderated by Dahlia Lithwick of Slate, the panel features a discussion with John Payne (formerly of the D.C. Corporation Counsel's office; attorney of record on the Brady amicus brief, and currently head of the NAACP LDF), Carl Bogus (Prof. of Law at Roger Williams, and lead author on a pro-DC amicus brief of some historians) and me. The debate was held at the National Press Club, in Washington, D.C.; the video and audio are available

Kopel posts a link includes video to American Constitution Society

The Second Amendment in the Supreme Court

Selected material

January 18, 2008
The Federal Government’s Brief in the D.C. Gun Ban Case: A Glass That Is More Than Half Full
by Todd F. Gaziano and Andrew M. Grossman
WebMemo #1775
Although some thoughtful lovers of liberty have lamented the half-empty aspects of the U.S. Solicitor General's recently-filed brief in the D.C. gun ban case (District of Columbia v. Heller), the portion that is full is legally far more significant in securing Second Amendment rights in the arena that counts most: the Supreme Court. On careful analysis, the brief's departures from sound principle are internally inconsistent and otherwise not particularly effective. Americans should recognize the importance of the government's concessions to individual liberty and ignore its predictable, bureaucratic attempt to defend existing federal laws. That is what the High Court is most likely to do.

Reason to Rejoice

It is no minor event when the national government clearly and forcefully admits to the highest court in the land that Americans enjoy a constitutional right that has been hotly debated for years, especially when that constitutional right is a limit on the government's own power. That is what the Department of Justice's chief litigator did in a brief filed last week in the Supreme Court case testing the constitutionality of the Washington, D.C., gun ban...

...What the Solicitor General Concedes

The Solicitor General's brief states the government's position in no uncertain terms. The Second Amendment, it says, "protects an individual right to possess firearms unrelated to militia operations."[4] As the brief explains, this right is apparent in the amendment's plain text, its location in the Bill of Rights, and historical practices at the time of its drafting.

Americans of all stripes know that this has been the central issue underlying the Second Amendment for decades. The competing school of thought was that the Second Amendment only protected "militia rights," which in turn were wholly subject to government regulation. The U.S. government sided with the decisive weight of recent scholarly research and the more recent court cases that have seriously examined the constitutional question. That trifecta (government, scholarly, and court opinion) is going to be hard for the Supreme Court to ignore...

Excerpts From Friend-of-Court Briefs
The D.C. gun case exposes strange bedfellows and internal rifts in the administration
By Emma Schwartz
Posted March 7, 2008

Dozens of organizations have weighed in on both sides of District of Columbia. v. Heller, the landmark U.S. Supreme Court case that will consider whether the Second Amendment protects an individual's right to bear arms...

...Although the Justice Department supports an individual's right to own a gun, it has urged the Supreme Court to remand the lower court's decision. Yet a key Bush administration official, Vice President Dick Cheney—acting in his capacity as a member of Congress—has come down in favor of Heller. A bipartisan group in Congress—55 senators and 250 representatives—has supported Heller, although 18 representatives filed in support of the city...

NRA site includes links to

Amicus briefs filed in support of Heller
Amicus briefs in support of Washington D.C.

District of Columbia v. Heller
On March 18, 2008, the U.S. Supreme Court will hear oral arguments in District of Columbia v. Heller. The Court announced its decision to take the case in which plaintiffs challenge the constitutionality of the District's gun ban last Fall. The District of Columbia appealed a lower court’s ruling last year affirming that the Second Amendment of the Constitution protects an individual right to keep and bear arms, and that the District’s bans on handguns, carrying firearms within the home, and possession of loaded or operable firearms for self-defense violate that right.

In March, the U.S. Court of Appeals for the D.C. Circuit held that “[T]he phrase ‘the right of the people,’ when read intratextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual.” The D.C. Circuit also rejected the claim that the Second Amendment does not apply to the District of Columbia because D.C. is not a state.

The case marks the first time a Second Amendment challenge to a firearm law has reached the Supreme Court since 1939.
W.'s Gun Battle
by Robert Novak
Posted: 03/13/2008 Print This

Preparing to hear oral arguments Tuesday on the extent of gun rights guaranteed by the Constitution's Second Amendment, the U.S. Supreme Court has before it a brief signed by Vice President Cheney opposing the Bush administration's stance. Even more remarkably, Cheney is faithfully reflecting the views of President George W. Bush.

The government position filed with the Supreme Court by U.S. Solicitor General Paul Clement stunned gun advocates by opposing the breadth of an appellate court affirmation of individual ownership rights. The Justice Department, not the vice president, is out of order. But if Bush agrees with Cheney, why did the president not simply order Clement to revise his brief? The answers: disorganization and weakness in the eighth year of his presidency.

Consequently, a Republican administration finds itself aligned against the most popular tenet of social conservatism: gun rights that enjoy much wider support than opposition to abortion or gay marriage. Promises in two presidential elections are abandoned, and Bush finds himself left of Democratic presidential candidate Sen. Barack Obama...

Also see

No comments: