Gunfighter

Hoff · Joined: 28 Jun 2007 Posts: 526 Location: Warrior Nirvana

I will post information on the progress of the Heller case as it happens. Here is yesterdays:

FOR IMMEDIATE RELEASE
Full contact info at end

DATELINE: Washington, D.C. 3/18/08

Recovering from the Whirlwind of the Day

Heller Case Goes Better Than Expected

by Alan Korwin, Co-Author
Supreme Court Gun Cases

The bottom line is, I think we’re going to be OK.

When Justice Kennedy flat out said he believes in an individual right
under the Second Amendment, there were no gasps in the hush of the
High
Court, but you could tell the greatest stellar array of gun-rights
experts ever assembled, all there in that one room, breathed a sigh
of
relief -- we had five votes to affirm the human and civil right to
arms.

The transcript will be a key for analysis going forward until June,
when the decision is expected, and I’m working without the benefit of
that
at the moment. Digesting the fleeting and immensely complex speech
that took place for one hour and thirty-eight minutes a few hours
ago,
it’s hard to see how any line of thought could be strung together to
support the idea that the D.C. total ban on operable firearms at home
can be
seen as reasonable regulation, even though Mr. Dellinger, the city’s
attorney, tried to suggest it was. He was shot down on this
repeatedly,
found no quarter from any of the Justices, though several found room
to
move on what amounts to reasonable restrictions.

And it is easy to see, from the non-stop rapid-fire comments and
questions of eight of the Justices (Thomas asked nothing, extending
his
legendary running silence), how even the most permissive standard of
review
imaginable for gun-ban laws, could tolerate the District’s level of
intolerance toward some sort of right to keep and bear arms.

That would give the pro-rights side what it so sorely wants – an
admission that the Second Amendment protects something for “the
people,” and
the rest of that pie can be baked later.

Dellinger tried to suggest that rifles, shotguns and handguns had
different usefulness, actually implying rifles are better for self
defense
in an urban home, because handguns were so inherently bad or
dangerous
that cities had a legitimate interest in banning them, but the Court
wasn’t buying it, and noting that D.C.’s ban banned everything.

Packed into that short rabidly intense section, the Justices examined:

* Original intent, and actions and writings of the colonies at the
time
of adoption;

* The meanings of the words, though not to the extent some people had
anticipated;

* Separability of the terms keep and bear, whether they represented
one
right or two, how one could exist without the other, if they had
civilian meanings or military ones, if you are “bearing” arms to go
hunting
and more;

* The scope of the right covered, and whether personal or military
protections stood alone, dependent or had preference over each other;

* The “operative” and and preamble clause, and their relationship,
meaningfulness, and interactivity with each other;

* The types of weapons that might be covered by the term “arms,”
accepting the idea that some weapons fall outside a sense of militia
arms,
like “plastic guns” (that’s what they were called) that could escape
airport metal detection, or “rocket launchers” (actually a commonly
used
modern militia arm in some countries experiencing insurgencies, a
point
that did not come up), and especially machine guns, a repeated point
which the Justices did not resolve, especially since it has become
the
standard issue firearm for our modern armed forces and confused the
Miller
doctrine of commonly used arms;

* The rise and meaning of strict scrutiny, a doctrine that evolved
around the First Amendment and had no actual root in the Constitution,
and
whose actual definition was fluid and with little consensus.

Scalia asked if permissible limits could restrict you to one gun, or
only a few guns, or if a collector couldn’t complete a set like a
stamp
collector because of a quantity restriction, and then launched into a
demonstration of his familiarity with firearms by suggesting a need
to
have a turkey gun, and a duck gun, and a thirty-ought-six, and a
.270,
which sent Thomas into a fit of off-mic laughter that other observers
missed because they were focused on Scalia;

Noting that Massachusetts in colonial times regulated the storage of
gunpowder (it had to be kept upstairs as a fire precaution), Breyer
asked
if there isn’t a lineage to permissible restrictions, and the Court
generally agreed. The point of contention, and it would not go away,
was
where that line was drawn, and again and again the D.C. absolute ban
was found violative in its absoluteness. The decision to test the
protection of 2A against this law in particular was a brilliant
stratagem.

Dellinger either deliberately misled the Court, or didn’t understand
the D.C. ban law (as hard to believe as that is, and it could come
back
to bite him), because, in trying to make it appear less odious than
it
was, he:

* Suggested D.C. would carve out an exception for an operable gun if
it
were used in self defense -- which the law flatly does not abide (and
a point thoroughly undercut by Heller’s attorney Alan Gura, who
pointed
out the District had such an opportunity twice and did not do so, and
in fact did the opposite);

* For use in self defense, a gun could be easily and quickly unlocked
and brought to bear, a point undercut by Chief Justice Roberts who
had
to fight to get an admission that the gun had to be reloaded as well,
since the D.C. law banned loaded and unlocked arms;

* That lead to a wonderful exchange in which Dellinger said a gun can
be simply unlocked quickly -– he actually said he could do it in
three
seconds, after demonstrating a poor understanding of how a lock
(available at a “hardware store” nearby) fits on a gun with or
without
“bullets” in it;

* That lead to Scalia asking about turning a dial to find “3” and then
turning it the other way to find the next number;

* To which Roberts noted that, don’t you first have to turn on the
light having heard the sound of breaking glass, and then find your
reading
glasses -- which got the biggest audience laugh of the day (there
were
only a few other soft chuckles during the proceedings);…

OK, I recognize that this is a bit disjointed, and I’m working on an
unfamiliar machine, at the end of a grueling endurance test that
involved
outrageous hours, little sleep, lousy diet, dire cold, miles of up
and
downhill walking, and I’m getting pretty hungry. I’ll do a better job
over time, but I wanted to share some inside scoop you might not
otherwise get. Let me, before pausing for some chow (which we’ll have
to go
out and find), convey some ambience.

Guests of the Court were ushered into the ground floor early on,
milling around (line waiters including my friend Bob were prepped on
the
white marble steps outside). It was a who’s who inside and non-stop
on-your-toes meet and greet. John Snyder, lobbyist for CCRKBA/SAF, had
read my
blog entry from last night, and introduced me to the companion on his
lobby bench… D. Heller, of the Heller case.

A nice mild mannered guy, “I just want to be able to keep my guns.” He
said when they started this in 1994, they had no idea what they were
getting into, and in 1997 they began entertaining the idea that it
could
go all the way and started raising funds. Now it had taken on a life
of
its own and barely involved him. At 9:30 last night, he walked the
wait-to-get-in line and passed out cough drops. No one knew who he
was. He
sat just behind me in the Courtroom. I lucked into the second row.

Directly in front of me was… Mayor Fenty, and I sat in the bright
reflected light of his pate. He turned, and in typical smiling
politician
fashion extended his hand, shook mine, and said warmly, “It’s nice to
see
you” as if we knew each other. Well at least, I knew him. One seat to
my right was Ann Dellinger, the city’s lawyer’s wife, who turned out
to
be fascinating and a wealth of information. In a few moments, the
mayor relinquished his eat to the D.C. Chief of Police, but she didn’t
turn
and say hi. Heady stuff. Everybody was a somebody.

Familiar faces were strewn about – there’s David Hardy on the other
side of the aisle, and Bob Dowlut had a front row seat. Stephen
Halbrook,
one of my co-authors on Supreme Court Gun Cases had an early spot on
the Supreme Court bar-members line, and my other co-author, Dave
Kopel, who
previously told me he would not be attending, turned out to be a
last-minute addition to the Respondant’s table at the head of the
Courtroom.
People who I think were on a better “tier” than I, like Joe Olson,
Clayton Cramer and others, didn’t luck into a seat and listened to
disembodied voices from the lawyers lounge outside the Courtroom.

Three calls for “sshhh” from a clerk at the front instantly dropped
the
growing anticipatory cacophony to silence which then ramped up gently
until the next hiss for quiet. Three minutes to go and a call for
silence left everyone with their own thoughts until a tone sounded,
the
aides signaled us to rise, God Bless This Court was spoken, and we
were
underway.

By a stroke of luck, Justice Thomas was assigned the reading of a
decision of a prior case, and we got to hear his baritone voice, which
often
remains mute throughout. New members of the Supreme Court bar were
sworn
in, and Justice Roberts asked Mr. Dellinger to begin, which he did
promptly.

More later.

Alan.

Alan Korwin, Co-Author
Supreme Court Gun Cases
Bloomfield Press
Scottsdale, Arizona

Lodge2004 · Joined: 15 Jul 2007 Posts: 43 Location: Humble

Great summary!

Yesterday was definitely a once in a lifetime event. I watched the live transcript on Scotusblog and listened to the audio as soon as it was released. It was exciting to hear the back and forth of the judges and attorneys. It felt like the SCOTUS judges had a better grasp of the meaning of the 2A than the attorneys who were arguing both sides of the case.

DarthReed · Joined: 11 Jul 2007 Posts: 28 Location: Redmond, Washington

Although the fine points of the eventual final decision could be less than ideal, this case is great reminder about why the outcome of elections matter! If any random, "environmentally-friendly" Nobel laureate were nominating the justices that formed this court, in all likelihood we would be MUCH less happy with the outcome... if the Supremes took the case at all. No matter how much you dislike the candidates in any election, staying home only helps the one you like least.

Semper_Fi

Thank you for the post Hoff and it's clear that the anti-gun crowd is less than pleased with yesterday's SCOTUS direct and indirect comments and questions.

Let Freedom Ring...

Hoff · Joined: 28 Jun 2007 Posts: 526 Location: Warrior Nirvana

I Thank you guys for responding. Its good to hear from DartReed as well.
Hoff

Hoff · Joined: 28 Jun 2007 Posts: 526 Location: Warrior Nirvana

Here is the link to the supreme court transcripts, all 110 pages.
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-290.pdf
Hoff

Hoff · Joined: 28 Jun 2007 Posts: 526 Location: Warrior Nirvana

Gun Law Update -- Flash -- Heller Case Affirmed!
Gun Law Update -- Flash -- Heller Case Affirmed!
Gun Law Update -- Flash -- Heller Case Affirmed!

by Alan Korwin, Co-Author
Supreme Court Gun Cases
http://ww.gunlaws.com
June 26, 2008

5 to 4 Decision Saves Gun Rights In America
5 to 4 Decision Saves Gun Rights In America

D.C. Gun Ban Is Unconstitutional and Overturned
D.C. Gun Ban Is Unconstitutional and Overturned

Second Amendment Protects an Individual Right Unconnected with Militia
Service, and is preserved by a single vote

Use of firearms for traditional lawful purposes such as self defense at
home is a protected right

The history, precedents, scholarship and wording of the Second
Amendment support the Court's decision

The idea that a lawful firearm at home must be locked or disassembled
prevents a core legal use of self defense and is unconstitutional.

The High Court instructs D.C. to let Heller have a firearm at home.

BUT:

The Second Amendment like most rights is not an unlimited right and
some 'longstanding restrictions' on what you can carry, where you can
carry (schools and government buildings are mentioned), concealed carry,
existing laws regarding felons or the mentally ill, and laws "imposing
conditions and qualifications on the commercial sale of arms" are
permissible.

Because Heller conceded at oral argument that a gun license would be OK
if it wasn't arbitrary or capricious, a D.C. license would satisfy his
request for relief, the Court tells D.C. it must permit him to register
his handgun and must issue him a license to carry it at home. Any other
possession or use appears to not be directly addressed, including
carrying it to or from home. Conditions for such registration and
license are not addressed, and are apparently left up to the city.

Lack of time frame on D.C. to act to remedy Heller's situation, and
lack of directions on what they should do could lead to bizarre results
or endless delays and further legal action. The cost, duration and
conditions for Heller's (and other residents') license are unknown,
skeptical guesses aren't pretty. Mayor Fenty has already said in a
"news" conference they won't allow semi-automatics, the most popular
sidearm and standard issue for the armed forces.

Full-blown gun bans around the nation are now in jeopardy, but there
are few of those. Challenges to other laws, and proposals for new laws
are likely, as the debate continues unabated. There are no time frames
for action, which will fall to legislative process and court cases, and
will likely take years.

Support for specified gun controls is dangerously great, but will be
met with also great supports for individual rights to arms, self defense
and lawful gun use.

Both sides get something; Antis are expected to simply walk away from
concocted "collectivist" inventions and promote the "reasonable,
common-sense goal" of more and stronger gun-control laws, many of which
are expressly supported in the opinion, to limit rights Americans
currently enjoy.

There will be little "final result" and the struggle will continue at
every level.

A loud sigh of relief for recognition of an individual right was heard
nationwide, but so was hope for creative new limits on the rights of the
people to keep and bear arms. Both sides will be busy issuing demands,
"definitive" statements, and arguing their side with vigor. Only one
side will be concerned with preserving the right of the people to keep
and bear arms in an uninfringed manner.

Four Justices joined in a 46-page dissent expected from Stevens, and
three joined a separate 44-page dissent by Breyer, making the dissents
longer than the 64-page majority opinion.

Stevens quickly abandons the individual v. collectivist theories,
saying of course there is an individual right, and focuses on perceived
historical errors and allowable gun-rights limitations. It clings to the
militia-purpose argument for the Second Amendment.

Breyer objects on two grounds -- that the Second Amendment is about the
militia and not self defense, and that gun controls are "within the
zone" of legislative action. He argues that a total ban on handguns in
high-crime areas is a "permissible legislative response." This is a very
hasty sketch of the dissents in the interest of an early posting of the
findings.

My analysis of the complete decision and dissents is ongoing and will
be released soon.

CAUTION: Quickly surveyed news reports show, as predicted, little news
and plenty of opinion are being shoveled; pretty (or handsome) talking
heads in front of the Supreme Court building are making it up as they go
with little depth of understanding of what just happened; promotion of
"acceptable" gun control a common theme; ignorance of guns and gun
issues abound; loops of gun pictures and target practice proliferate;
few of the factual points in the headlines above are included.

No one has read the entire opinion yet, so all comments are subject to
revision and likely contain errors, omissions and oversights, lack of
nuance, reasoned projections, etc.

Scalia wrote the majority opinion as expected

----

Less than three hours ago, the U.S. Supreme Court released its 157-page
decision in District of Columbia v. Heller, the landmark case on the
Second Amendment.

The Court affirmed the decision of the Circuit Court below it,
overturning the D.C. gun ban, and recognizing an individual right to
keep and bear arms.

The Court's official summary is readable and short, and provides the
best early review of the case. Here it is.

----

SYLLABUS (Summary)

NOTE: The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of
the reader.

SUPREME COURT OF THE UNITED STATES

DISTRICT OF COLUMBIA ET AL. v. HELLER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

No. 07–290. Argued March 18, 2008—Decided June 26, 2008

District of Columbia law bans handgun possession by making it a crime
to carry an unregistered firearm and prohibiting the registration of
handguns; provides separately that no person may carry an unlicensed
handgun, but authorizes the police chief to issue 1-year licenses; and
requires residents to keep lawfully owned firearms unloaded and
dissembled or bound by a trigger lock or similar device.

Respondent Heller, a D. C. special policeman, applied to register a
handgun he wished to keep at home, but the District refused. He filed
this suit seeking, on Second Amendment grounds, to enjoin the city from
enforcing the bar on handgun registration, the licensing requirement
insofar as it prohibits carrying an unlicensed firearm in the home, and
the trigger-lock requirement insofar as it prohibits the use of
functional firearms in the home.

The District Court dismissed the suit, but the D. C. Circuit reversed,
holding that the Second Amendment protects an individual's right to
possess firearms and that the city's total ban on handguns, as well as
its requirement that firearms in the home be kept nonfunctional even
when necessary for self-defense, violated that right.

Held:

1. The Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within the home. Pp.
2–53.

(a) The Amendment's prefatory clause announces a purpose, but does not
limit or expand the scope of the second part, the operative clause. The
operative clause's text and history demonstrate that it connotes an
individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court's interpretation of
the operative clause. The "militia" comprised all males physically
capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in order to
disable this citizens' militia, enabling a politicized standing army or
a select militia to rule. The response was to deny Congress power to
abridge the ancient right of individuals to keep and bear arms, so that
the ideal of a citizens' militia would be preserved. Pp. 22–28.

(c) The Court's interpretation is confirmed by analogous arms-bearing
rights in state constitutions that preceded and immediately followed the
Second Amendment. Pp. 28–30.

(d) The Second Amendment's drafting history, while of dubious
interpretive worth, reveals three state Second Amendment proposals that
unequivocally referred to an individual right to bear arms. Pp. 30–32.

(e) Interpretation of the Second Amendment by scholars, courts and
legislators, from immediately after its ratification through the late
19th century also supports the Court's conclusion. Pp. 32–47.

(f) None of the Court's precedents forecloses the Court's
interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553,
nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the
individual-rights interpretation. United States v. Miller, 307 U. S.
174, does not limit the right to keep and bear arms to militia purposes,
but rather limits the type of weapon to which the right applies to those
used by the militia, i.e., those in common use for lawful purposes. Pp.
47–54.

2. Like most rights, the Second Amendment right is not unlimited. It is
not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose: For example, concealed weapons
prohibitions have been upheld under the Amendment or state analogues.
The Court's opinion should not be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally
ill, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms. Miller's holding that
the sorts of weapons protected are those "in common use at the time"
finds support in the historical tradition of prohibiting the carrying of
dangerous and unusual weapons. Pp. 54–56.

3. The handgun ban and the trigger-lock requirement (as applied to
self-defense) violate the Second Amendment. The District's total ban on
handgun possession in the home amounts to a prohibition on an entire
class of "arms" that Americans overwhelmingly choose for the lawful
purpose of self-defense. Under any of the standards of scrutiny the
Court has applied to enumerated constitutional rights, this
prohibition—in the place where the importance of the lawful defense of
self, family, and property is most acute—would fail constitutional
muster. Similarly, the requirement that any lawful firearm in the home
be disassembled or bound by a trigger lock makes it impossible for
citizens to use arms for the core lawful purpose of self-defense and is
hence unconstitutional. Because Heller conceded at oral argument that
the D. C. licensing law is permissible if it is not enforced arbitrarily
and capriciously, the Court assumes that a license will satisfy his
prayer for relief and does not address the licensing requirement.
Assuming he is not disqualified from exercising Second Amendment rights,
the District must permit Heller to register his handgun and must issue
him a license to carry it in the home. Pp. 56–64.

478 F. 3d 370, affirmed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C.
J., and KENNEDY, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a
dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined.
BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and
GINSBURG, JJ., joined.

Poll results from SCOTUSblog:
Poll results from SCOTUSblog:

Who's watching the Court's results in real time today--
Lawyer 19%; Student 13%; Other 68%
Owns no guns 26%, one 6%; two 4%; more 63%
NRA member 47%; not 53%
Watching for Heller 95%; other 5%
Pleased with decision 86%; No 14% (before details were released)

My firm Bloomfield Press is preparing a book on the Heller case, as a
supplement to the 92 cases in "Supreme Court Gun Cases" by Kopel,
Halbrook and Korwin (released in 2003). It will contain the complete
text of Heller with all key portions highlighted throughout and a
plain-English description of all holdings and dissents. The same
treatment has already been prepared for the three gun cases before
Heller (Brosseau, Small, Castle Rock) to keep the body of work
unabridged.

Plus: The summarized arguments proposed in all 66 Heller amicus briefs
(19 anti-rights, 47 pro-rights), extensive background, commentary by
leading experts, and summaries of all 96 gun-related cases that have
been heard by the High Court, making this a stand-alone edition. The
gun-related issues in all 96 cases are also presented as answered
yes-or-no questions for easy reference. Advance orders will be taken
when we know what the page count will be, hopefully before the end of
July.

In the meanwhile, -- if you want to help make a difference,
take a look at my page on Tactics That Work:
http://www.gunlaws.com/Tactics%20That%20Work.htm

To see prior issues of my media watchblog, Page Nine:
http://www.gunlaws.com/PageNineIndex.htm

For researched info on News Media Bias:
http://www.gunlaws.com/NewsAccuracy.htm

See my latest papers, news, Updates and more:
http://www.gunlaws.com/newstuff.htm

To find a law anywhere in the country,
use our widely acclaimed National Directory:
http://www.gunlaws.com/links/index.htm

You can check out our growing line of Specialty Books
and DVDs for gun owners and supporters of freedom:
http://www.gunlaws.com/books.htm

And finally, for logical, common-sense, reasonable
positions on gun issues, try my Position Papers:
http://www.gunlaws.com/updates.htm

Alan.

--

Alan Korwin
Bloomfield Press
"We publish the gun laws."
4848 E. Cactus, #505-440
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1-800-707-4020 Orders
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