Month: July 2008

Another Guest Post

This is interesting. According to SCOTUSblog:

Hits. In five and a half years, we’ve never had more than 100,000 hits on SCOTUSblog. Yesterday, though, we had our first 100,000 hit day. And then our first 200,000 hit and 300,000 hit day. By the end of the day, we had over 370,000 hits, and 240,000 nominally “unique” visitors (though, as Tom mentioned, that’s an imperfect count because it counts repeatedly the many people whose computers don’t accept cookies). We’re still amazed that our servers held up.

LiveBlog. According to our LiveBlog software provider, Coveritlive – who offer a terrific (and free) product, by the way – we had about 20,000 LiveBlog viewers during the hour and eighteen minutes that we had the LiveBlog open, including 10,000 unique viewers who stayed for more than five minutes. Over 6,000 people have replayed the LiveBlog since we ended it.

The opinion. We can track how many times the opinions are downloaded from our servers, which are above and beyond the web hits cite above. Wednesday was certainly a big day at the Supreme Court, and we saw over 8,500 downloads of the decision in Kennedy v. Louisiana and over 6,000 downloads of Exxon v. Baker. We expected, then, something in the neighborhood of a few tens of thousands of downloads of the Heller decision, since we knew it would be popular.

But we were way off. All told, from the moment we posted the opinion at around 10:22 am through the day yesterday, the opinion was downloaded over 93,000 times from our servers. Because of the rise of the Internet and the accompanying ease of distributing the Justices’ own words, there seems a good chance that Heller is on track to be one of the most widely read Supreme Court opinions by the general public of all-time.

And I’ve had not one, but two people send me essays via email, asking me to post them if I found them worthy.

Here’s guest essay #2 by blogosphere commenter RAH:

Heller, Its Implications and Expected Influence
By RAH

First of all this was a very narrow case, because for decades people were scared the Supreme Court would say it was not an individual right. We all knew that it was because it so clearly states that, but there had been several Circuit Court cases that said it wasn’t. These were the collectivist rights interpretations. The first break was the Emerson case, which was really a case about guns owned by people who had a restraining order but had permutations of the 2nd amendment. The research done by that Court led to the DC Circuit Court decision. The DC Circuit Court was well documented and really a landmark decision and since it was in DC and where really important cases often end up.

In order to make this as sure as bet as possible, several candidates were picked and were clean good, decent citizen; not criminals. Their stories were sympathetic and no one could feel that if they lost, they deserved it. That got rid of the animus to criminals caught and trying to get out via the 2nd amendment. Even so they barely got through on the standing issue.

Third, no other complications of incorporation were allowed to derail the central question: “does the 2nd Amendment protect individuals?” DC laws were not a complete ban on the private right to keeps firearms and handguns. Cop and retired cops were ok to have guns. DC did not have a reputation of prosecuting legitimate self-defense cases with a shotgun. There was such an instance about a year or two ago when a resident defended himself in the home with a shotgun and he was not prosecuted for failure to have it in a disassembled condition. DC did have a handgun ban and this case was targeted against the handgun ban. It included the onerous restrictions on the functionality of long arms just to prevent DC from saying they do allow self-defense capability. Handguns have been the target of anti-gun organizations for 30 years, not long arms. It is only in recent years that certain long arms and many common ones been slated for banning as shown by NJ this year. So this case included questions asked about long arms and handguns. DC conceded the long arms. The trigger lock requirement was a throwaway issue that the Heller team expected to lose. But by the grace of God the DC actual statute said the gun had to be disassembled and could not be move from room to room. That was so offensive that the trigger locks got thrown out.

If you had a case that argued trigger locks were unreasonable without the heinous obstructions on the very functionality and movement of the long arm that DC statute had, I am sure they would have been considered reasonable. NO case prior to this actually tried to get rid of trigger locks as a requirement. In fact the idea of making a gun inoperable by internal trigger locks or fantastic future tech that would only allow the owner to use was being debated in several state houses. In fact trigger locks were just accepted as a given since I had not heard of any state once they were instituted, that took them away. This ruling gets rid of them lock, stock and barrel.

So, a clean case with basically a single question and a throwaway question. Should have been a slam-dunk for individual rights. But Supreme Court had been ducking this for decades and no one was sure the Supremes wanted to take on a political hot potato.

But the DC circuit made it a very intriguing case with their extraordinary ruling. I believe that Alito, Roberts, and Scalia wanted to hear the case to make their mark for history. Plus Scalia has been concerned since early 1990’s we would lose this question with the strange rulings coming out. Thomas was on the pro gun right side and Alito had indicated that he thought machine guns in a previous case were protected.

Kennedy was uncertain, but it really sounded this was personal to Kennedy, that he was personally afraid of an attack in his home and he wanted the right to shoot back without fear of getting charged in DC. I expect Kennedy has a residence in DC or at least has a personal fear of home invasion. Souter lives in New Hampshire and is a stubborn old coot, and he knows he is safe where he lives. No personal reason there to declare it is an individual right. Stevens and Breyer are too liberal and swayed by getting the right societal results. Ginsburg knows well this is an individual right, but she is pro gun control. (Ed.: Interesting side-note. Souter was mugged while jogging in May of 2004. I guess the old saw that “A conservative is a liberal who’s been mugged” doesn’t hold water.)

The militia preface is just a purpose, and individual ownership of arms fulfills that purpose. This goes hand in glove. But the arguments were surprisingly strong in previous cases and the scholarship that pushed the agenda of a collective right, which seems to be law-speak. Thankfully DC totally screwed up in the arguments before the DC Circuit Court. Plus, DC is not a state but a part of the federal government and as such, the militia right of the states to protect against the federal government does not apply.

Even with all that to support us, it was 5-4. Thus the strength of the emotional argument of the cities that in order to be able to govern themselves they have to be able to regulate the use of dangerous tools that really are making havoc with the abuse use by criminals. The Supreme Court has always been very respectful of the legislature’s abilities to govern a city, and public safety is a strong emotional argument.

In order to make sure that Scalia had the control of the opinion without a lot of confusing concurrences and differing opinions that will just mess up future cases, he gave a few throw-away lines like “reasonable restrictions,” like that was in the original militia acts that prevented felons, drunkards and crazy folk. In fact he deleted drunkards and left in women and children by implication by not explicitly disallowing them. This leaves the issue of age restrictions up to various legislatures where public opinion can argue that issue. Any statute is easier to overturn than what is stated in a Supreme Court decision.

He gave a bit away by very vague and later deniable restrictions on “unusual and dangerous.” This was to relieve fears that the 1934 Act was imperiled. But he never said that machines guns are not covered by the 2nd. I thought that was very sly. Unusual and dangerous could be RPG’s and Bazookas, not the standard M4. You have to admit less people have RPG’s and Bazookas than machine guns. Plus the 1934 act allows machine guns and only taxes them to avoid that act being challenged as violating the 2nd. But the 1986 law is very exposed to challenge. That is a total ban of a class of arms that are common, just based on year or manufacture. That is capricious and arbitrary. This also shuts down the “assault weapons” bans since they are not unusual or dangerous as compared to hunting rifles.

Since registration was not argued, they could not decide that. Previous case law has indicated that you cannot license or register a right. This should be easily challenged on same grounds that you can’t register a specific religion or newspaper or speech. He only allowed that Heller could register since Heller did not claim that was violation of his 2nd amendment right. Possibly Levy did not want to add too many questions to reduce chances of failure and confusion. That is easily left to another day and case. A side note is that Heller wanted to keep his work weapon to take home at night and he is a federal judicial security guard. They usually are using semi auto Glocks or Beretta 92F’s. DC was explicitly ordered to give Heller his license, and if his gun is a semi-automatic, that gets rid of DC’s desperate rear guard action of banning semi-automatics. (Ed, note: Not without another lawsuit.)

Also, Scalia left in a very broad definition of arms, which encompasses anything from edged weapons, nunchuks, and tasers or anything a person could use or throw. Please see the relevant section on pg 7:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

This includes state’s prohibition of body armor for civilians and non-police

Once incorporation is won, we can use this definition to change a lot of unnecessary restrictions in state laws.

The carry provision is on pg. 11:

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia.

Thus, carry is also explicitly stated in the decision as part of the 2nd amendment. I really like that he used Ginsburg’s definition of carry which had carry in a variety of forms from pg 10:

In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion.)

The ability to carry was thus defined and protected despite DC attempts to think otherwise. That is why he gave the ability for legislatures to regulate concealed carry. Beside that has already been a traditional state privilege as evidence by the many states that have legalized CCW.

The term keep was also defined on pg. 8:

Thus, the most natural reading of ‘keep Arms’ in the Second Amendment is to “have weapons.”

That demolished any future attempt to ban the ability to keep handguns and other arms.

Scalia gave the pro and con of incorporation with the definite implication that all of the Bill of Rights has to be incorporated against the States. It was like he gave the primer for the next case.

Scalia gave us everything we asked for and plus. He could not argue other facets because they were not part of the case, but he did give directions for those.

So future cases are the incorporation and bans in town and localities. Philly just lost any chance of a ban even if they could have got it past the PA legislature. This also gave cover for the PA state legislature to resist a city’s emotional pleas.

So let’s celebrate, this was a real victory. But we must push further against Chicago, SF, and NYC on their capricious permits. Keep up with the fights for CCW in the states and preemption laws. Continue to contest all the little infringements like the hassling of open carry in PA and other states. Our goal is to get open carry nationwide and no restrictions on transport. Get to the point to buy and sell over interstate lines for handguns. Open and CCW carry in National Parks and Monuments and all federal lands. Allow them to restrict in government buildings, airports and probably the National Mall for anti terrorism purposes. But make sure these gains are done through the legislature since we may want to roll them back further later in the future. Like when the terrorism risk is much lower.

Not a bad analysis. Not bad at all.