The core issue of “judicial scrutiny” is now established — better than we had dreamed — in what will be known as Famous Footnote #27 (p56). Laws impinging on the Second Amendment can receive no lower level of review than any other “specific enumerated right” such as free speech, the guarantee against double jeopardy or the right to counsel (the Court’s list of examples).

This is a tremendous win, and overlooked in all initial reviews I’ve seen. Attorney Mike Anthony was the first to spot it, way to go Mike. “Strict scrutiny,” which many folks sought, is a term without formal definition that could prove problematic. I was hoping for a test of some sort and got more than I hoped for. By recognizing 2A as a “specific enumerated right” the majority ties 2A to the rigid standards and precedents of our most cherished rights. That’s as strong as there is. Very clever indeed.

Alan Korwin
June 30, 2008
Heller Decision — Deeper Analysis
[Korwin is a lawyer specializing in gun laws (www.gunlaws.com). Take what he has to say seriously.–Joe]

Though the legal system has mostly consoled and protected batterers, when a woman is being beaten, it’s the batterer who has to be stopped; as Malcolm X used to say, by any means necessary–a principle women, all women, had better learn. A woman has a right to her own bed, a home she can’t be thrown out of and for her body not to be ransacked and broken into. She has a right to safe refuge, to expect her family and friends to stop the batterer–by law or force–before she’s dead. She has a constitutional right to a gun and a legal right to kill if she believes she’s going to be killed. And a batterer’s repeated assaults should lawfully be taken as intent to kill.

Andrea Dworkin
Trying to Flee
Los Angeles Times
October 8, 1995
[It’s rare that I would agree with Ms. Dworkin but this time we are in perfect alignment. As we advance through the enemy territory in a post Heller world we need to claim this demographic. Of all the potential supporters and voters women are the single largest and easiest to convert to friends. Let’s make the most of it.–Joe]

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.

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.

Justice Antonin Scalia
June 26, 2008
District of Columbia et al. v. Heller
Certiorari to the United States Court of Appeals for the District of Columbia circuit.

10:12 Tom Goldstein – Heller affirmed.

SCOTUSblog
June 26, 2008
LiveBlog: Opinions | 6.26.08

Put simply, if the phrase “the people” connotes an individual guarantee in the First and Fourth Amendments, it logically follows that the same term, used in the same document (the Bill of Rights), in the same series of amendments within that document, should also be construed as guaranteeing the preservation of an individual, not “collective” right.

The next portion of the operative clause necessary to the determination of whose right the Second Amendment protects is the sentence predicate — “shall not be infringed.” This language indicates that “the right to keep and bear arms” was not created in the Amendment, but rather preserved by it. Id. at 382. The right to keep and bear arms was viewed at the founding as a natural right that preexisted the formation of the national government. Thus, the Second Amendment was guaranteeing its preservation by providing that it “shall not be infringed.” Case law from the late-nineteenth century expounding on the purpose for the Bill of Rights supports this interpretation of its plain meaning.

Daryl Manhart
February 11, 2008
Brief of Maricopa county attorney’s office and other prosecutor agencies as amici curiae in support of respondent.
[No Heller decision today. We are assured, by the Chief Justice, that the Heller decision will be announced tomorrow at 10:00 AM.

It was suggested to me by a fellow activist that we should celebrate the decision, assuming we get the expected result, by going out and drinking Miller beer. In a sense it would be “Miller Time”. I’m not much of a drinker of any type of alcohol so one of the first things I will be doing is going to the dentist to get my teeth cleaned. The next non-work thing I’ll be doing is having lunch with a fellow gun-nut. Then in the evening my Lautenberg victim friend is coming over to get his guns back. All his legal troubles have been resolved in a satisfactory manner–other than the expenditure of way too much money and time.–Joe]

The gun control legislation enacted in the District of Columbia in 1976 that banned handguns in the city (“D.C. Gun Control Law”) is an effective law enforcement tool that has promoted the public health and safety by reducing the level of handgun violence in the District of Columbia (“District”). Criminological studies evaluating the effects of the D.C. Gun Control Law have proven that it has reduced the rate of firearm homicides and suicides committed in the District.

Albert W. Wallis
Brief of professors of criminal justice as amici curiae in support of petitioners.
[Typically the District of Columbia, even with the draconian gun laws, has the highest murder rate in the U.S. So one has to wonder just how violent the people of the District of Columbia would be if they could own firearms. One must also wonder why just across the river in Virginia, with far easier access to firearms and the right to bear them in public, those people have such a low rate of violence. It is also worthy of note that they refer to firearm homicides and suicides, not total murder and suicide. I take this to mean they are only concerned if someone is killed, justified or not, with a firearm. Murders by people armed with knives, baseball bats, and broken bottles are not of interest. But this is a brief of professors, they don’t work with the real world, that should explain a lot.–Joe]

Violent criminals who may view women as easy targets find their jobs far less taxing in communities such as Washington, D.C. Researchers conducting the Institute of Justice Felon Survey confirm the common-sense notion that those wishing to do harm often think closely before confronting an individual who may be armed.

M. Carol Bambery
Brief of amicae curiae 126 women state legislators and academics in support of respondent.
[I found 10 quotes to add to my database in this brief. I’m proud to say that of those 126 women state legislators 12 of them were from Idaho.–Joe]

Petitioners implicitly claim that a typical citizen of the District who can pass a criminal records and mental records background check (such as the National Instant Check System) is at serious risk of committing murder. It is hard to imagine how such a population could be considered fit for home rule.

David B. Kopel
D.C. v. Heller
Brief of The International Law Enforcement Educators and Trainers Association (ILEETA), The International Association of Law Enforcement Firearms Instructors (IALEFI), Maryland State Lodge, Fraternal Order of Police, Southern States Police Benevolent Association, 29 Elected California District Attorneys, San Francisco Veteran Police Officers Association, Long Beach Police Officers Association, Texas Police Chiefs Association, Texas Municipal Police Association, New York State Association of Auxiliary Police, Mendocino County, Calif., Sheriff Thomas D. Allman, Oregon State Rep. Andy Olson, National Police Defense Foundation, Law Enforcement Alliance of America, and The Independence Institute as amici curiae in support of respondent.

The District’s handgun ban is a reasonable and constitutional restriction because handguns are less effective than other firearms for self-defense. Although they are designed to be more lethal than other firearms, handguns are smaller and harder to shoot accurately.

Daniel G. Jarcho
Brief of Violence Policy Center and the police chiefs for the cities of Los Angeles, Minneapolis, and Seattle as amici curiae in support of petitioners.
[Yes, several police chiefs publicly announced their bigotry, ignorance of guns, and stupidly signed on to the brief from the VPC. If not for the seriousness of the matter and that some people might actually believe them the entire brief would be entertaining. Just the two sentences above are open for fisking on the following points:

• There is no constitutional exemption for protection for “less effective” arms.
• Handguns are not designed to be more lethal than other firearms (I thought the VPC wanted .50-caliber/”assault-weapons”/semi-autos/normal-capacity-magazines/”Saturday-Night-Specials” banned because it they were the most lethal).
• Handguns are carried by virtually all law enforcement officers in the U.S. because they are effective for self-defense.

Reading the brief I just have to shake my head in wonder at nearly every sentence. They are ignorant of the history firearm technology or hope their revision of it will not be noticed by others. Sometimes consecutive sentences contradict each other. They live in an alternate reality and/or they have mental problems.–Joe]

“We don’t appreciate being heels,” Clark* said, pointing out the pain it takes to tell an elderly widow who is living alone “that even though your husband bought the gun legally and registered it properly, you can’t keep it. Why that makes an innocent citizen a crook.”

It was a theme heard often in D.C. today, and surprisingly, it seems to gall policemen more than anybody else.

“You’re not controlling guns, you’re controlling people,” said Sgt. Jimmy King, a veteran robbery squad investigator.

“Honest citizens, the little old lady who’s not hurting anybody anyway is the real victim. We’re not stopping these bums killing each other, us, or committing armed robberies.”

…

Like most officers, King believes the court is the real answer.

“The court is not enforcing the laws we already have on the books,” he said, explaining: “There’s a law on the books today which allows a five-year additional sentence for any crime committed while armed, but it’s not enforced.”

King’s sentiments were echoed throughout police headquarters and by officers on the streets.

“I don’t know why they bother to make new laws, they don’t enforce the old ones,” said Fourth District Officer Andrew Way as he wrote a parking ticket yesterday.

Earl Byrd
D.C.’s Gun Registration
Wash. Star
Dec. 2, 1976
*Officer David Clark, one of two officers in charge of registration for the Gun Control Section of the D.C. police.
Brief of The International Law Enforcement Educators and Trainers Association (ILEETA), The International Association of Law Enforcement Firearms Instructors (IALEFI), Maryland State Lodge, Fraternal Order of Police, Southern States Police Benevolent Association, 29 Elected California District Attorneys, San Francisco Veteran Police Officers Association, Long Beach Police Officers Association, Texas Police Chiefs Association, Texas Municipal Police Association, New York State Association of Auxiliary Police, Mendocino County, Calif., Sheriff Thomas D. Allman, Oregon State Rep. Andy Olson, National Police Defense Foundation, Law Enforcement Alliance of America, and The Independence Institute as amici curiae in support of respondent in D.C. v. Heller.
[The police in D.C. were not always parroting what the Mayor told them to say.–Joe]

The Miller court’s approach, which focused only on the relationship between the regulated arms at issue and the Second Amendment’s militia purpose was flawed because that approach would only allow individuals to possess arms suited for military use. Such an approach is obviously troublesome if it would allow private ownership of modern military arms.

Richard K. Willard
D.C. versus Heller
Brief amicus curiae Of The Heartland Institute in support of respondent.
[Indeed! Miller should be expanded to include arms suitable for private self-defense. That isn’t what Willard has in mind but that is what I’m hoping the SCOTUS concludes. Of course Willard, in supporting D.C., is also troubled that individuals should have the right to defend themselves against anything. One can only conclude the relationship between the state and the individual is that of a rancher and his cattle. The rancher dehorns the cattle so they cannot easily defend themselves or seriously injury each other. The rancher takes it upon himself to defend the cattle from predators, provide their food, care for the sick, and to slaughter them as it may suit him.–Joe]

Revisiting the basic premise of the Second Amendment and striking down gun legislation for the first time in 216 years would have ripple effects through this entire network of state and local regulation. Although the Court ruled in Presser v. Illinois, 116 U.S. 252 (1886), that the Second Amendment limits the power only of the federal government, the decision relied on the importance of militias as a check on federal power. Separating the right to bear arms from the maintenance of a well regulated militia would cast doubt on the authority of state and local governments to regulate firearms. Such a ruling would thus invite challenges to hundreds of state and local restrictions, thrusting upon the courts difficult policy judgments about the reasonableness of individual regulations.

William H. Neukom
January 11, 2008
President American Bar Association
Brief of the American Bar Association as amicus curiae supporting petitioners.
[Would Neukon have expressed the same concerns if the case under consideration had been freeing the slaves, granting minorities equal access to the law, or allowing women access to abortion? Besides I don’t see there being any difficulty in judging the reasonableness of individual regulations when the wording of the Second Amendment is so clear, “… the right of the people to keep and bear arms shall not be infringed.” Hence, if the regulation impedes, rather than assists, the people in keeping and bearing arms the regulation is unreasonable. Next case please.–Joe]

Pennsylvania’s longstanding constitutional recognition of an individual right to bear arms in defense of self and state and its colonial and early state history inform any inquiry into the meaning of the Second Amendment. The impetus for adding the Bill of Rights to the Constitution came from the states, among which Pennsylvania was an important motivating force. The right to bear arms in self-defense is as important today as ever. The Second Amendment recognizes an individual, and fundamental, right to own a gun for self-defense.

John P. Krill
February 11, 2008
D.C. v. Heller
Brief for amicus curiae the President Pro Tempore of the Senate of Pennsylvania, Joseph B. Scarnati, III, in support of respondent.
[It was 7:00 AM this morning, I was half asleep, almost listening to the news when I heard something about the Supreme Court and the D.C. ban. I jumped out of bed and ran to the computer to get more news. Google News didn’t have anything and I anxiously watched the SCOTUS blog live for information. Nothing on Heller today. But the ruling is expected be sometime this month. Until then I’ll be quoting D.C. v Heller briefs every day.–Joe]