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The Supreme Court Hears Second-Amendment Case

Tomorrow, the Supreme Court will hear oral arguments in District of Columbia v. Heller (07-290), a case which may see the Supreme Court determining whether or not the Second Amendment confers an individual right to own firearms.

The ScotusWiki has all the briefs and amici on the case. Unsurprisingly for a case of this importance, there are plenty of amicus briefs on both sides.

Ultimately, what this case may come down to is the appropriate standard of review. The Department of Justice concurs in the idea that the Second Amendment does give an individual right. However, the amicus brief for the United States argues that the standard of review should be less categorical than the one suggested by the Court of Appeals:

Although the court of appeals correctly held that the Second Amendment protects an individual right, it did not apply the correct standard for evaluating respondent’s Second Amendment claim. Like other provisions
of the Constitution that secure individual rights, the Second Amendment’s protection of individual rights does not render all laws limiting gun ownership automatically invalid. To the contrary, the Second Amendment, properly construed, allows for reasonable regulation of firearms, must be interpreted in light of context and history, and is subject to important exceptions, such as the rule that convicted felons may be denied firearms because those persons have never been understood to be within the Amendment’s protections. Nothing in the Second Amendment properly understood—and certainly no principle necessary to decide this case—calls for invalidation of the numerous federal laws regulating firearms.

Reading the tea leaves, I think it’s quite possible that the Supreme Court will follow the argument of the United States in this case. A holding that the Second Amendment does confer an individual right to gun ownership, but that a restriction on that ownership must merely pass something like a rational basis test, seems a very likely outcome to me. This Court is a very conservative court—and I mean that in the dictionary rather than the political sense. Chief Justice Roberts does not seem inclined to upset the apple cart and sweep away a wide variety of state and federal statutes by having the Court issue a broad holding. Rather, it seems more likely that the Court will remand this case back to the Court of Appeals for rehearing based on a new set of criteria.

If that happens, it’s not going to be an outright win for anyone. The NRA and gun-owners groups will not be happy with a standard of review that’s likely to see most restrictions on gun ownership upheld. Anti-gun groups like the Brady Center are not going to be happy with the Court saying that the Constitution protects the rights of gun owners. Yet in terms of the law, it’s the best way for the Court to avoid making sweeping changes in policy one way or the other.

The Second Amendment does give individuals the right to own firearms. The history and intent of the Second Amendment is difficult to rationally interpret in any other way. I don’t see the Court being split on that issue. The real issue may be the standard of review, and if the amicus brief from the United States has as much weight with the Court that I suspect it will, my rough guess is that this decision will result in a remand to the Court of Appeals with an instruction to determine whether the District of Columbia’s gun regulations meets the appropriate standard of review. It could well be that the result of this process is a confirmation that the Second Amendment does protect an individual right, but that the D.C. gun laws don’t violate the standard of review. If so, this controversy isn’t going to be settled by this case, but will continue on for some time.

8 responses to “The Supreme Court Hears Second-Amendment Case”

  1. Mark says:

    According to the threshold you held up for why we need to maintain a prohibition against prostitution in America….based on a “balance” of the assets versus liabilities that it presents society….should you not be siding with those trying to restrict gun rights as well? The negatives brought about by gun usage (at least outside of the “well-regulated militia”) certainly outweigh the positives. Is it practical which “naughty” goods or services to cherry-pick for criminalization versus celebration?

    As someone who generally ascribes to libertarianism outside of the economic sphere, I’m by no means personally in favor of most gun control measures, but it’s intellectually dishonest for you to legislate morality to control the supply-and-demand laws regarding prostitution, but not guns.

  2. Jay Reding says:

    1) The negatives brought about by gun usage do not outweigh the positives. We just hear more about the negatives than the positives. There are millions of guns in this country in the hands of law-abiding citizens that never cause a problem.

    2) There is a constitutional right to keep and bear arms under the Second Amendment. There is no constitutional right to prostitution.

    3) Prostitution involves the commodification of the human body itself, which as a Catholic I am opposed to on moral grounds.

  3. Mark says:

    “The negatives brought about by gun usage do not outweigh the positives.”

    What exactly are the positives? And don’t say to defend one’s self against other people carrying guns because that feeds the argument that the world would be better off without them entirely. Again, I’m not personally antigun, but the continued legality of these “killing machines” flies in the face of your “selectively legislate morality despite supply-and-demand laws” worldview.

    “There is a constitutional right to keep and bear arms under the Second Amendment.”

    There’s a constitutional right for a well-regulated militia to bear arms, but not individuals.

    “Prostitution involves the commodification of the human body itself, which as a Catholic I am opposed to on moral grounds.”

    People of Jewish faith are opposed to eating ham sandwiches on moral grounds. Should those be illegal too?

  4. Jay Reding says:

    What exactly are the positives? And don’t say to defend one’s self against other people carrying guns because that feeds the argument that the world would be better off without them entirely.

    Which would be a silly argument, unless you want to argue that one can magically wave a pixie wand and make all guns disappear. The principle problem with gun control laws is that criminals don’t follow them, which gives the criminals and advantage that law-abiding citizens would not.

    Again, I’m not personally antigun, but the continued legality of these “killing machines” flies in the face of your “selectively legislate morality despite supply-and-demand laws” worldview.

    Well, by opposing slavery one is “selectively legislating morality despite supply-and-demand laws”, but I rather doubt you’re advocating for a repeal of the Thirteenth and Fourteenth Amendments…

    Guns are part of the American experience, and the most obvious use for them is the one you missed—hunting. You can’t honestly tell me that you grew up in Southern Minnesota and never once went hunting, can you?

    There’s a constitutional right for a well-regulated militia to bear arms, but not individuals.

    For one, that argument is almost certain to lose in the Supreme Court, and even the “liberal” Justices didn’t seem to keen on it. Secondly, it’s a self-contradicting argument. The militia in Colonial parlance was every able-bodied male in the country. You can’t simultaneously argue that there’s no individual right to own weapons and then argue that the Founders intended for the militia to be able to have weapons. The militia and the people were the same thing in those times.

    Try reading some of the amicus briefs that contain the history. Many of them are not terrifically technical and very easy to follow.

    People of Jewish faith are opposed to eating ham sandwiches on moral grounds. Should those be illegal too?

    Except the eating of pork doesn’t involve the commodification of the human person, whereas prostitution does.

  5. Mark says:

    “Which would be a silly argument, unless you want to argue that one can magically wave a pixie wand and make all guns disappear.”

    No more than one can wave a pixie wand and make all prostitution go away. That’s the slippery slope of singling out certain naughty products and activities for criminalization and not others. Neither guns nor prostitution will go away in the event of criminalization, so why should one be outlawed and not the other?

    “You can’t honestly tell me that you grew up in Southern Minnesota and never once went hunting, can you?”

    I did go hunting on several occasions. I’ll repeat for the third time I’m NOT antigun. I’m simply playing devil’s advocate here and juxtaposing your libertarian gun argument with your anti-libertarian prostitution argument as evidence of conservative disingenuousness on these matters.

    “For one, that argument is almost certain to lose in the Supreme Court, and even the “liberal” Justices didn’t seem to keen on it. Secondly, it’s a self-contradicting argument. The militia in Colonial parlance was every able-bodied male in the country. You can’t simultaneously argue that there’s no individual right to own weapons and then argue that the Founders intended for the militia to be able to have weapons. The militia and the people were the same thing in those times.”

    My interpretation of the “well-regulated militia” language in the 2nd amendment is rooted in a foundation of paranoia of Big Government and the need for the peasantry to be armed in defense of it. I’m not personally invested in that interpretation, however, and certainly respect the opinions of those who interpret the language the way you do. But even if your interpretation is in fact historically correct, is the right to “bear arms” limitless? Does the right “of the people” to be armed grant them permission to an arsenal? To carry concealed weapons on one’s person onto another’s private property? To handguns? To semiautomatics? To bazookas? To Sherman tanks? Do we ever reach a line where the “right to bear arms” is not absolute and/or infinite? Or are the Founding Fathers rolling over in their graves to see their language supporting a musket-wielding National Guard interpreted as constitutionalized rights for convicted felons to walk down the streets of Minneapolis at night packing a Glock 9 under their shirt?

    “Except the eating of pork doesn’t involve the commodification of the human person, whereas prostitution does.”

    But it does involve the commodification of pigs, which could be just as immoral to people of other faiths as commodification of humans is to “Catholics”. If we’re gonna justify the criminalization of prostitution based on your faith-based morality, why is it wrong to criminalize other activities based on other people’s faith-based morality?

  6. Jay Reding says:

    No more than one can wave a pixie wand and make all prostitution go away. That’s the slippery slope of singling out certain naughty products and activities for criminalization and not others. Neither guns nor prostitution will go away in the event of criminalization, so why should one be outlawed and not the other?

    So why outlaw slave drivers? After all, there’s a market for slaves—sadly, even here in the US. Why should we then outlaw slavery? After all, we certainly can’t pick and choose what “naughty products” to criminalize, can we?

    Hell, let’s have heavily-armed prostitutes sending their slaves out to buy meth… after all, we daren’t pick and choose what thing to outlaw…

    I did go hunting on several occasions. I’ll repeat for the third time I’m NOT antigun. I’m simply playing devil’s advocate here and juxtaposing your libertarian gun argument with your anti-libertarian prostitution argument as evidence of conservative disingenuousness on these matters.

    The problem with that argument is that there’s no equivalence between the two. Alllowing the trade of guns is not the same as allowing the trade of human beings. One is an inanimate object, the other is a sentient being.

    My interpretation of the “well-regulated militia” language in the 2nd amendment is rooted in a foundation of paranoia of Big Government and the need for the peasantry to be armed in defense of it.

    You keep calling citizens of this country “peasants.” Then again, that’s perfectly consistent with your politics…

    I’m not personally invested in that interpretation, however, and certainly respect the opinions of those who interpret the language the way you do. But even if your interpretation is in fact historically correct, is the right to “bear arms” limitless? Does the right “of the people” to be armed grant them permission to an arsenal?

    The Ninth Circuit related it back to the weapons that would have been recognized at the time of the Founders—basically meaning small arms like rifles, shotguns, or handguns. None of the parties are advocating for an unlimited right to own weapons.

    But it does involve the commodification of pigs, which could be just as immoral to people of other faiths as commodification of humans is to “Catholics”.

    It’s a bit obtuse to argue that humans and pigs are equal…

    If we’re gonna justify the criminalization of prostitution based on your faith-based morality, why is it wrong to criminalize other activities based on other people’s faith-based morality?

    Fine then. Let’s embrace the Jewish tradition—except that gets us the to the same place as the Catholic one. Ditto the Muslim tradition. There’s a reason why most cultures view prostitution as taboo—because it’s harmful to society.

  7. Mark says:

    “So why outlaw slave drivers?”

    Those working for George Steinbrenner ask the same thing every day. Seriously though, the distinction is pretty obvious. Prostitution is a pastime in which all parties consent (obviously excluding forced prostitution which nobody is advocating…and would most likely be easier to smoke out if mainstream prostitution was legalized) while slavery involves servitude of a nonconsenting party.

    “Hell, let’s have heavily-armed prostitutes sending their slaves out to buy meth”

    Let’s leave Ted Haggard out of this.

    “None of the parties are advocating for an unlimited right to own weapons.”

    Actually alot of people are advocating for that….and fighting against laws that restrict the number of annual (or monthly) firearms purchases because they “violate their second amendment right to bear arms”.

    “Fine then. Let’s embrace the Jewish tradition—except that gets us the to the same place as the Catholic one. Ditto the Muslim tradition. There’s a reason why most cultures view prostitution as taboo—because it’s harmful to society.”

    Nice jujitsu here. The point is that if we use the personal morality born from our faith to carve out criminal law, as you suggest we do based on your own Catholic disapproval of commodification of the human body in prostitution, we end up legislating one person’s morality even if it’s not shared by another. The worst possible argument that can be made about the criminalization of prostitution (or anything for that matter) is the one you made about it contradicting the teachings of your faith.

  8. Jay Reding says:

    Those working for George Steinbrenner ask the same thing every day. Seriously though, the distinction is pretty obvious. Prostitution is a pastime in which all parties consent (obviously excluding forced prostitution which nobody is advocating…and would most likely be easier to smoke out if mainstream prostitution was legalized) while slavery involves servitude of a nonconsenting party.

    Recall in my earlier post that places like Amsterdam, which have tolerated prostitution for years, still have serious problems with human trafficking. Besides, as I wrote earlier, once you accept that the state has a right to determine if both parties truly consent, you’ve already ceded the ground that it’s no longer a matter of government concern. Nor does that fix all the other problems with prostitution.

    Actually alot of people are advocating for that….and fighting against laws that restrict the number of annual (or monthly) firearms purchases because they “violate their second amendment right to bear arms”.

    Name one party that is fighting for people to have heavy arms. If there are, they’ve not submitted a brief here, nor has the D.C. Circuit entertained such a notion.

    Restricting the number of purchases of legal weapons may be a violation of one’s Second Amendment rights, but that depends on what the standard of review is and how restrictive those rules are.

    Nice jujitsu here. The point is that if we use the personal morality born from our faith to carve out criminal law, as you suggest we do based on your own Catholic disapproval of commodification of the human body in prostitution, we end up legislating one person’s morality even if it’s not shared by another. The worst possible argument that can be made about the criminalization of prostitution (or anything for that matter) is the one you made about it contradicting the teachings of your faith.

    Of course, there isn’t a single major world religion that doesn’t condemn prostitution. If it were put up for a vote, I rather doubt that there’d be a widespread movement to make it legal either. Society has already reached a consensus on the issue and decided to ban it—and while Democratic politicians may not like that, there’s very little chance that those laws will change any time soon.