Patterico's Pontifications


The Heller Case: Some Links

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 12:34 am

Tomorrow’s oral argument in the Heller Second Amendment case is going to be momentous. I had planned to give a briefing tomorrow morning — but why wait to have this discussion, when there are good links out there now?

Jan Crawford Greenburg says the line is already forming at the court — even though it’s very cold and windy at the Court. I hope everyone is courteous to each other; the prospect of squabbling between a bunch of Second Amendment advocates is vaguely troubling. Here is video of Greenburg’s report for ABC News, which is notable for two reasons: 1) it actually tells people about an instance of people using guns to defend themselves, which is rare for Big Media, and 2) it shows just how windy it is in D.C.!

Last night I watched a panel discussion regarding the upcoming argument. The panel has Carl Bogus, Dave Kopel, and John Payton, and is moderated by Dahlia Lithwick. I found it via Simon at Stubborn Facts, who found it via Howard Bashman.

To me, the modern debate essentially revolves around the “justification clause” — the clause of the Second Amendment that justifies the right set forth therein: “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 best piece of writing I have ever seen addressing the significance of that clause is this law review article by Eugene Volokh. Volokh identifies numerous “justification clauses” in various state constitutions, justifying rights as various as freedom of speech, the right to be tried in the county where a criminal offense occurred, and immunity from lawsuits for statements made during speeches and debates in the legislature. Many of the proffered justifications are no longer operative, but nobody thinks the rights have therefore disappeared. Volokh says:

These provisions, I believe, shed some light on the interpretation of the Second Amendment:

1. They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.
2. They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.
3. They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts’ judgment) it furthers the goals identified in the justification clause.
4. They point to how the two clauses might be read together, without disregarding either.

It’s an excellent piece, and any gun control supporter who relies heavily on the justification clause of the Second Amendment needs to grapple with Prof. Volokh’s argument if they are to be taken seriously.

29 Responses to “The Heller Case: Some Links”

  1. I’m not a lawyer, (Snide comments deleted), but I would suggest during the arguments that pevious rulings by the Supreme Court that have said that the police are not required to protect the individule.

    I seem to recall a few cases where people called 911 for help and the police either showed up hours later or never showed up at all.

    Simply put, if the courts rule in favor of the city, they will have rendered the people completely defenseless and with no recourse. As far as I’m concerned, the court would have destroyed any legitimcay it had and would need to be rebuilt.

    And I need coffee. :)

    evilned (429c11)

  2. I am strongly in favour of the individual right to bear arms. I was more open to the idea of gun control before this past summer, when one of my good friends had to defend his own life and the lives of three others with a shotgun he was keeping in his apartment.

    A man (high on something, likely PCP) broke down his apartment door with a knife and an intent to kill. The right to bear arms is the reason my friend is alive today and the other man is not.

    Joe M. (5d215f)

  3. Our esteemed host wrote:

    it shows just how windy it is in D.C.

    Were you referring to the weather with this?

    Dana (3e4784)

  4. The argument that I heard was that the Court would find that the Second Amendment conferred an individual right, but that it would be tested with something less than strict scrutiny, which would allow governments to be able to restrict the right without having to prove a compelling government need, creating, in effect, a right that can’t be enforced.

    Dana (3e4784)

  5. The trouble with those stuffed shirt eletists that run WASHINGTON D.C.(DISTRICT of CRINIMALS) is becuase their wealthy they think they have certian privages when all they are is abunch of liberal spoiled brat snot heads

    krazy kagu (89f761)

  6. Gun control has never been about facts or reason. It is an un-educated, emotional response to a problem that certain individuals have no stomach to confront, outside of the fact that the anticedents for gun-control are base racism arising from Reconstruction.

    Plus, evilned’s closing opinion is very wide-spread in non-elite circles, and could re-constitute the old “Impeach Earl Warren” movement that has basically mistrusted the Supremes since they knuckled under to the New Deal.

    Another Drew (f9dd2c)

  7. I’m hoping that the justification clause then allows me to do what peasants in many 3rd world countries can do .. have and use a AK-47.

    Neo (cba5df)

  8. EvilNed: The D.C. 911 system is skewered in the Buckeye Firearms Foundation brief: Click HERE! (note: PDF document). There’s even a section titled The District’s “911 System Is A Joke”. It would be funny, if it weren’t so sad.

    Ranten N. Raven (240170)

  9. Dana #4,

    Gun lawyers have been afraid of something like that since Planned Parenthood v. Casey which applied a balancing test while purporting to impose a compelling state interest. It could be a mess, like abortion law, with case by case litigation for decades to come. One bright spot is that O’Connor is gone and none of the Justices now on the Court are as consistently statist as she was.

    nk (34c5da)

  10. Anyone know where on the internet I can go tomorrow to listen to this?

    Scott Jacobs (d3a6ec)

  11. As I understand them, these were the facts.

    A company of British regulars in the early morning of April 19th, 1775, approached Lexington MA, when church bells began to toll. Adams and Hancock dressed quickly, saddled their horses and rode into the night. 39 American colonists took their muskets and moved toward the meeting house. Leaders formed the colonists in a skirmish line on the town green.

    When the redcoats approached, the commander ordered the colonists to lay down their arms and disperse. They did not. He had his troops to fire a warning volley then a second volley into the defenders, killing three who died in view of their homes. Others scattered as the British searched for their rebels then marched west-northwest toward Concord.

    Minutemen in Concord crossed the North Bridge, opened the armory, and quickly loaded small arms, canon, shot and powder into wagons and transporting the materiel into the countryside. Remaining minutemen formed on the west side of the bridge and awaited the British, in lines perpendicular to the narrow wooden bridge. There was melting snow on the ground and the maples were still dormant.

    The redcoats marched up the road between rock walls and bare fields. Turning left down a gentle slope toward the stream, they moved to the narrow bridge. As the British crested the structure, the Americans fired. At the foot of the bridge are four graves, two Americans and two British. Thus began our first civil war.

    Go to Lexington and Concord (recommended between June and September).

    The framers of the Constitution live through these times understanding the need for an armed citizenry. It was about Lexington and Concord.

    arch (74ee8a)

  12. That’s a non-starter, arch, because these days the Minutemen would get a cruise missile on top of them launched from a submarine off of San Diego.

    There are a lot of good arguments for the Second Amendment but the ability to wage war against the United States government is not one of them.

    nk (34c5da)

  13. Dana #4, you are conflating two different standards. There are three established standards in all, strict scrutiny, heightened/intermediate review, and rational basis review. Strict scrutiny requires, as you said, that the challenged law be narrowly tailored to a compelling government interest. Intermediate review, as recommended by the Clement brief, would require the challenged law to be “substantially” related to an “important” government interest. And rational basis review merely requires it to be rationally related to a legitimate government interest.

    The third option is, as you said, essentially a right that can’t be enforced. If the Supremes rule that way, the Second Amendment would be good for its propaganda value, but that would be about it. If, however, they adopt the intermediate position, DC’s handgun ban will almost certainly be struck down since the connection between banning handguns and controlling crime is tenuous, at best, certainly no better than the reasons VMI and the Citadel gave for excluding female cadets (discrimination by sex is subject to intermediate review also).

    The real difference between the tests is not what would happen to extreme gun laws like DC’s, which would flunk any halfway decent test, but to other, more sensible but arguably overbroad gun laws. Take, for example, the federal lifetime ban on gun ownership by most convicted felons. Banning gun ownership by felons has a much clearer relationship to controlling violent crime than banning it for the population in general, so it probably would count as being “substantially” related to a government interest that is not only “legitimate” or “important,” but “compelling.” It is not, however, narrowly tailored to that goal, as a less restrictive policy of temporarily banning gun ownership for violent felons would presumably work just as well. So it’s difficult to see that rule surviving strict scrutiny.

    NK #12: never underestimate the power of guerrillas. If a few well-placed cruise missiles were all it took to quash a rebellion, all former Soviet republics and former East Bloc nations would be part of the Soviet Union, and the insurgency in Iraq would have ended a long time ago.

    Xrlq (62cad4)

  14. There is no individual right to bear arms in the constitution. Citizens, in the manner of a well armed militia, have the right to bear arms.

    The professor needs to take remedial english comp classes

    Every state and local municipality has read this and interpreted it correctly – the gunnuts at the NRA have not

    Personally, I could care less either way, its stupid to remove guns and its stupid to let people as a consstitutional right own AK47’s with banana clips.

    Therein lies the rub as they say

    But there never has been nor will there ever be a constitutional right to unlimited gun ownership

    its conditional on the well regulated state militia

    Thats why those guys wrote it and thats what they meant

    The good professor ruins his own argument by arguing that municipalities could use other articles of self rule set forth in the constitution as proof that he was incorrect.

    Oh well – but hey its UCLA :)

    EricPWJohnson (d2733c)

  15. Well Eric, if you’re just fine with the only people having access to firearms being the government, that’s your bag.

    My gun will stay by me, regardless of the decision

    Scott Jacobs (d3a6ec)

  16. Scott,
    youu have a gun legally, not because of your personal interpretation of the constitution, but because you and your fellow citizens voted in a government that recognized that a “well regulated militia” is a good thing (which I agree with)

    Thats why you have a gun

    EricPWJohnson (d2733c)

  17. Also,

    And the day that “the government” as you put it, is not made up of the people, means we no longer have the right to vote

    EricPWJohnson (d2733c)

  18. The professor needs to take remedial english comp classes

    Notwithstanding this smug pronouncement of yours, professional grammarians have opined that the Amendment as written protects an individual right. In modern English, the sentence would read: “Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” That doesn’t mean that the right is dependent on the articulated necessity.

    Patterico (4bda0b)

  19. 17. There is no guarantee the “government” will represent the people’s will and respect individual freedoms, especially when dealing with leftists. They have already diluted our votes, and have found ways to get around them. Just ask Obama when he loses this summer. An armed citizenry is necessary to protect individual rights when faced with leftists in power.

    xray (8cfb7a)

  20. Patterico

    I stand by the good professors complete lack of a sound argument – he obvviously gave a well articulated answer to a question he did NOT understand

    As the sentence you just quoted meant. the “well-regulated militia” didn’t occur by happenstance.

    I sympathise greatly on this issue – other than the fact its a dead one

    EricPWJohnson (d2733c)

  21. xray

    then the rights of a well armed minority willing by force and terrorism to defeat the will of a “leftist” majority is what was meant by that sentence?

    So that gives a right – no a duty for any minority to rise up and overthrow the government by force?

    you see where this is leading

    EricPWJohnson (d2733c)

  22. Eric, you’d do well to actually read the Second Amendment before embarrassing yourself further. You seem to be working off the Brady/ACLU version, which reads:

    A well-regulated militia, blah blah blah see, I told you it’s about militias, blah blah blah don’t bother reading the rest, nyah nyah neener nyah.

    Contrary to popular myth, that version of the Second Amendment was never ratified. The one that was ratified has an operative clause in addition to the justification clause on which you seem to have fixated. The operative clause reads:

    the right of the people to keep and bear Arms, shall not be infringed.

    The meaning of this clause is pretty straightforward and well understood by most, just not you. So let’s focus on the area in which you are having trouble. Is it your position that individual citizens aren’t “people,” that guns aren’t “arms,” or that “shall not be infringed” means “never existed in the first place?” One of those three must be true – or you must be full of crap. So which is it?

    Xrlq (62cad4)

  23. The Constitution guarantees the right to life, liberty and property.

    The first amendment guarantees the individual’s freedom of religion, speech, press, peaceable assembly and redress of grievances.

    The second, the right to keep and bear arms. Unless clerics must obtain permits to preach, people obtain licenses to speak, and newspapers be required to get government permission to print, I should not need some bureaucrat’s approval to own a weapon. In fact, the second amendment defines a special property right – to keep and bear arms.

    arch (74ee8a)

  24. All well and good, but the real question is: what does BELDAR think?

    otcconan (201ac6)

  25. One of those three must be true – or you must be full of crap. So which is it?

    At this moment, you are my favorite person ever…

    Scott Jacobs (fa5e57)

  26. Patterico #18:

    In modern English, the sentence would read: “Because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

    Er, I think its actually more understood to read:

    In modern English, the sentence would read: “Because a well equipped militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

    EW1(SG) (84e813)

  27. Or perhaps “administered.” Either way, “regulated” is a stumbling block for many who read it as a referring to the modern Armed Forces we have today under control of the state.

    Bugger. Could use some of that tea that got dumped in that harbor…

    EW1(SG) (84e813)

  28. EW1(SG), at the time, “well-regulated” had a meaning closer to “well trained” or “well ordered”.

    Some traces of that old use of “regulated” still exist such as with “regulator” clocks.

    EricPWJohnson, your pronouncement is amusing only because you pretend to understand Professor Volokh’s argument while obviously not having bothered to read it. Your claims that english grammar requires your interpretation were well dealt with in his article which you’ve obviously not read. Your claim that your interpretation matches the intent of those responsible for writing it has been long demolished by actually reading their writings in explanation of it.

    SPQR (26be8b)

  29. SPQR 28:

    at the time, “well-regulated” had a meaning closer to “well trained” or “well ordered”.

    Indeed. I’m not entirely sure that rewriting it today that the essential meaning even can be conveyed, as martial history has made some significant changes in definitions of modern states, and, for that matter, liberty.

    EW1(SG) (84e813)

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