The Seventh Sense

Supreme Court Cases I'm Following: At A Glance

Hearing date	Case	Summary	Where did the case come from?	Government position	My position	My prediction for outcome
9/9/2009	Citizens United v. Federal Election Commission	Whether to overrule precedents upholding state and federal limits on corporate political spending.	D.C. Circuit	No	No	Yes
10/6/2009	U.S. v. Stevens	Can the government criminalize selling dogfight videotapes or other depictions of animal cruelty?	3rd Circuit	Yes	No	No
10/7/2009	Salazar v. Buono	Can an individual challenge a cross on property the government transferred to a private organization?	9th Circuit	No	No	No
11/2/2009	Jones v. Harris Associates	Can an investor challenge a mutual-fund adviser for charging excessive fees?	7th Circuit	Yes	Yes	No
11/3/2009	Hemi Group LLC v. City of New York	Can a city use civil RICO lawsuit to collect cigarette taxes?	2nd Circuit	N/A	No	No
11/4/2009	Pottawattamie County, IA v. McGhee	May a prosecutor be sued for allegedly using false testimony to win a conviction?	8th Circuit	No	Yes	Yes
11/9/2009	Graham v. Florida	Can a juvenile offender be sentenced to life without parole for a non-homicide crime?	Florida Supreme Court	N/A	No	No
11/9/2009	Bilski v. Kappos	Must a business method patent be tied to a particular machine or apparatus,” or transform something "into a different state or thing," to be valid?	Federal Circuit	Yes	Yes	Yes
12/2/2009	Stop the Beach Renourishment Inc. v. Florida	Does a state program to replenish eroded beaches for public use unconstitutionally deprive coastal property owners of their private ocean access?	Florida Supreme Court	N/A	No	No
Not yet scheduled	U.S. v. Comstock	Do federal prisons have the authority to hold "sexually dangerous" inmates past their sentences out of fear they will violate state law?	4th Circuit	Yes	No	No
Not yet scheduled	American Needle Inc. v. NFL	Extent of NFL monopoly over individual team logos	7th Circuit	Not yet filed	Teams, not NFL, control team logos	Teams, not NFL, control team logos
Not yet scheduled	Florida v. Powell	Does merely telling the accused that he can "talk to attorney" meet the Miranda rights requirement?	Florida Supreme Court	N/A	No	No

NEXT DAY UPDATE:  Add one more -- a biggie -- to the list:

WASHINGTON (Reuters) - The Supreme Court will decide whether the constitutional right of individuals to own firearms trumps state and local laws, reviving the legal battle over gun rights in America.

The high court said Wednesday it agreed to decide the reach of its landmark ruling last year that the Second Amendment of the U.S. Constitution guaranteed an individual right to own guns and use them for lawful purposes like self-defense in the home.

Gun rights cases have been among the country's most divisive social, political and legal issues. The Supreme Court split, in a 5-4 vote, between the conservative and liberal factions, in the 2008 ruling.

The court last year prohibited the federal government from imposing certain restrictions, but it left unclear whether the right also applied to state and local gun control laws.

The Supreme Court said in a brief order it would settle that question by ruling in a dispute over a strict gun control law in Chicago.

Guns At Obama Town Hall Meetings

It started of in New Hampshire last week.  A guy with a loaded pistol strapped to his leg in the protester crowd.  Law enforcement could do nothing; the guy had a permit.

It's happened a few times since then, culminating this past weekend in Arizona when some anti-Obama protester showed up strapped with a loaded semi-automatic rifle.  Again, all perfectly legal.

And why was he there?  His quote: "We will forcefully resist people imposing their will on us through the strength of the majority with a vote."

Yeah, I'm troubled.  This country has a rather prolonged history with political violence, and -- with the exception of some radical bombings in the 1960's -- almost all of it, and certainly all of it in the past 30 years, has come from the gun-toting NRA-loving right wing crowd.

I know, I know.  Second Amendment and all that.  But this isn't a discussion about rights.  The Second Amendment, very broadly, gives one the right to have guns for self-defense.  Well, what kind of self-defense is needed by right-wingers at an Obama town hall meeting?  It's not as if liberals arm themselves to the teeth, or froth at the mouth making violent protests.

It seems to me that the presence of guns at political rallies is intended to send a subtle, subconscious signal to ratchet up the already overheated political debates.  I mean, when a guy with an assault rifle shows up at a presidential event, saying that he will resist the will of the majority, he's not talking about self-defense.  He's talking about violent overthrow of the government.

UPDATE:  Yes, these people are dangerous:

Ernest Hancock, the online radio host who staged an interview with an assault rifle-wielding associate at the Obama event in Arizona yesterday -- and was himself armed with a 9 millimeter pistol -- was a vocal supporter and friend of right-wing anti-government militia members who were convicted of conspiracy and weapons charges in the 90s.

And in an interview today with TPMmuckraker, Hancock said he still believes the Viper Militia case was "manufactured" by the same government that manufactured Waco and lied to its people about 9/11.

One More Scene From A Town Hall Meeting

Obama has a town hall meeting in Portsmouth New Hampshire today, and the nuts are out in full force.

Get this:  MSNBC this morning caught a live shot of a man with a gun in a holster.  No, he is not a law enforcement person; he's one of the protesters.  And the sign he's carrying?  It's got that famous Jefferson quote on it: ""The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants."

 

MSNBC was told by local police that the guy with the gun has a legal permit to carry, and he's nowhere near where Obama will be, and he's under constant surveillance.

Still.....

UPDATE:  The Obama town hall meeting was televised; it seemed to be civil (invited participants and heavy police guard probably helped)

It's kind of embarrassing (for our country's level of discourse) that it's come to the point where the President of the United States has to publicly state that he's not in favor of killing Grandma.

Bring Your Guns To Church

I may not be a religious expert, but it seems to me that Jesus would not approve:

Ken Pagano, the pastor of the New Bethel Church here, is passionate about gun rights. He shoots regularly at the local firing range, and his sermon two weeks ago was on “God, Guns, Gospel and Geometry.” And on Saturday night, he is inviting his congregation of 150 and others to wear or carry their firearms into the sanctuary to “celebrate our rights as Americans!” as a promotional flier for the “open carry celebration” puts it.

Good lord.  It never ceases to amaze how the most unChristian behavior gets co-opted and even celebrated by the Jesus freaks.  I mean, what would Jesus have said about guns?  Let's consult the original text, shall we?

[Mat 26:51-52] And, behold, one of them which were with Jesus stretched out his hand, and drew his sword, and struck a servant of the high priest's, and smote off his ear. And said Jesus unto him, Put up again thy sword into his place: for all they that take the sword shall perish with the sword.

There's also something in there about "Thou Shalt Not Kill" right?  Although zealots would have you believe there is an asterisk there which reads "*But killing in self-defense isn't 'killing', so have at it, y'all.  Yeeeee-hah!"

This made me laugh though:

Mr. Pagano said the church’s insurance company, which he would not identify, had canceled the church’s policy for the day on Saturday and told him that it would cancel the policy for good at the end of the year. If he cannot find insurance for Saturday, people will not be allowed in openly carrying their guns.

Heh.

P.S. and FYI: http://www.godnotguns.org/.... also this:

"The indiscriminate distribution of guns is an offense against God and humanity," he said. "Our gun-flooded society has turned weapons into idols, and the worship of idols must be recognized for what it is - blasphemy."

Amen.

At Some Point, We're Going To Have To Address This....

Last Sunday, in a post about the Pittsburgh shootings of three police officers, I wrote:

I’m afraid we are going to see a lot more of this...

Well...

On Tuesday, Clarence Douglas Phillips shot and killed his girlfriend near Raleigh, North Carolina. He then shot and killed a detective and wounded another cop in the shootout that followed. He died of gunshot wounds later.

On Tuesday, Kevin Garner shot and killed his wife, daughter, sister, and nephew, set his house on fire and then killed himself in Priceville, Alabama. It was the third mass shooting in Alabama in the past month.

Today, outside of Los Angeles, an Asian gunman opened fire at a Korean Christian retreat, killing one person and wounding three. It was at least the seventh multiple shooting in the United States in the past week.

And of course, the mass shootings/killings as the North Carolina nursing home, and in the immigrant aid center in upstate NY both within the past couple of weeks.

It's so bad, we're almost getting immune to it.  And we shouldn't be.

Right to keep and bear arms?  Fine.  But there is also a responsibility to keep those arms out of the hands of those who choose to do harm to others.  I wouldn't mind more discussion about that second factor, instead of the Second Amendment.

 

Pittsburgh Shootings

I’m afraid we are going to see a lot more of this: 

A man opened fire on officers during a domestic disturbance call Saturday morning, killing three of them, a police official said. Friends said he feared the Obama administration was poised to ban guns. 

Three officers were killed, said a police official at the scene who spoke on condition of anonymity because he was not authorized to speak to the media. Police spokeswoman Diane Richard would only say that at least five officers were wounded, but wouldn’t give any other details.

*** 

One friend, Edward Perkovic, said the gunman feared “the Obama gun ban that’s on the way” and “didn’t like our rights being infringed upon.”

Another longtime friend, Aaron Vire, said he feared that President Obama was going to take away his rights, though he said he “wasn’t violently against Obama.” 

Perkovic, a 22-year-old who said he was the gunman’s best friend, said he got a call at work from him in which he said, “Eddie, I am going to die today. ... Tell your family I love them and I love you.” 

Perkovic said: “I heard gunshots and he hung up. ... He sounded like he was in pain, like he got shot.” 

Vire, 23, said the gunman once had an Internet talk show but that it wasn’t successful. Vire said his friend had an AK-47 rifle and several powerful handguns, including a .357 Magnum.

Dave Neiwart writes:

He feared an Obama gun grab? Gee, I wonder where he could have heard that.

Indeed, a story replete with NRA-style fearmongering about the looming "grab" -- which has been fueling a run on guns at local shops -- ran just three days ago in the Pittsburgh Tribune.

We've been reporting for awhile on the surge in gun sales, and how the paranoia around guns is making the more unstable elements of the right particularly edgy. Inevitably, that edginess is going to break out into actual violence -- as it appears to have done today.

Ironically, this is exactly the kind of incident that law-enforcement intelligence-gathering is supposed to help prevent -- intelligence like the Missouri State Patrol report so hysterically attacked by these same paranoid right-wingers. I tried to explain at the time that these kinds of extremists are in fact a very real danger to people in law enforcement, but all anyone on the right wanted to talk about was Ron Paul bumper stickers. Well, there you go.

Digby adds:

This is one of the wierd fault lines in American politics --- the police who have to face the armed citizenry and the macho right wing zealots whose only answer for anything is for everyone to carry more guns. It's incidents like today's that bring home the fallacy of that argument in living color -- the cops are all armed and three of them got mowed down today by a gun nut.

Yup.  The shooters expected the last Democratic president to ban all guns. Needless to say, he didn't ban all guns. Democratic politicians never ban all guns. No Democratic politician ever will ban all the guns. 

And yet this fact is dismissed by literally every pro-gun zealot in America.

Pro-gunners are like children convinced that the boogeyman is under the bed -- except they're not like children because it doesn't matter how many times Dad shines a flashlight under the bed to show there's nothing there, and it doesn't matter how much time passes, because they never grow up and realize their fears were infantile and unfounded and easily proved wrong by simple empirical evidence. What's more, they declare their belief in the boogeyman to be defiantly politically incorrect, and a necessary check on tyranny.

Binghamton Shootings

Death toll up to 13, some reports say.  It's not even clear, as I write this, if the situation is over with.  Some reports say a man was arrested, some say two men were arrested, and still others say there is a hostage situation.  [UPDATE 2:45 pm -- Now hearing it was a single gunman, and he is dead.]

It's too early -- waaaay to early -- to ascribe motive, but since the shooting took place at The American Civic Association -- a business that helps immigrants and refugees with counseling, resettlement, citizenship, family reunification, interpreters and translators -- it's a reasonable guess that the shooter was either a disgruntled immigrant, or a rightwinger with a bone to pick with immigrants. [UPDATE 4:00 pm -- NBC and FOX are reporting the shooter, now dead, was a 42 year old Vietnamese immigrant named Jiverly Voong.  Apparently this was on his driver's license, which suggests he was a legal immigrant.]

Anyway, there seems to be a spate of these lately.  Disturbing....

Alabama Shooting

Anyone want to bet that the gunman, Michael McLendon, owned his guns legally?

Now We Know Why The Gun Nuts Massively Accumulating Guns...

They're being manipulated by the NRA, which has become an industry shill:

Please observe the November issue of the NRA magazine, the American Rifleman where the NRA tells its members how to vote, and the handy “wallet card” contained therein:

 

If you’re like me, you’re surprised to hear about all these plans Obama has. I don’t remember hearing about them during his campaign or reading about them on his website. Clearly, they are what you would imagine: exaggerations, items taken out of context and spin based on the senatorial maneuvering and posturing that always goes on when one party tries to hang things on bills to intentionally kill them. It’s all cut using the same template as the “Obama voted to kill babies!” garbage you heard during the general election. And, obviously, some people believe it.

But didn’t it all end up being conveniently profitable for gun store owners and the gun industry that, along with the NRA, encouraged people to believe this nonsense. It appears some are doing quite well despite an economy where consumer spending is in the toilet. 

***

I seldom underestimate the capacity for people to believe propaganda but, at some point, there has to be an awakening. The leadership at the NRA should be wondering what happens if, after an Obama term or two, it all turns out to be a false alarm and people are still in possession of their Second Amendment rights? When comes the boy-who-cried-wolf effect? At what point does the NRA finally provoke the inevitable response from its members:

“The NRA must think I’m stupid!”

Owner Of Gun Manufacturing Company Forced To Resign...

...and why?   Because he's an Obama supporter.

The namesake of Montana-based Cooper Firearms has been asked to resign as president of the company after he expressed support for Barack Obama.

The company said it asked Dan Cooper, founder and part owner of Cooper Firearms, to resign as president after he voiced support for the Democratic Illinois senator's bid for president in a USA Today interview published Tuesday, USA Today reported Friday.

Cooper, who said he usually votes Republican, told the paper in the interview he planned to vote for Obama "probably because of the war. And also because the Republican Party has moved so far right in recent years."

Cooper said Thursday he had submitted his resignation to the board.

Joke is on the gun company.... Obama is pro-Second Amendment

"No Age Limit Or License Required To Shoot Machine Gun... It's All Legal & Fun!!!"

Here's the flyer for a gun expo held this past weekend:

Hmmmm.  

Christopher Bizilj, age eight, from Ashford, Connecticut attended the above gun expo on Sunday.

Did little Chris have "fun"?  

We'll never know, seeing as how he died after accidentally shooting himself in the head with an Uzi.

People and their guns.... I really don't get it.

More On Heller: Scalia vs. Stevens

Prof. Sandy Levinson compares the majority opinion of Scalia with the dissent by Stevens:

I confess that I am equally dismayed by the Scalia and Stevens opinions (though, if absolutely forced to choose, I’d go with the Scalia opinion). One of the most remarkable features of Justice Scalia’s majority opinion (joined, of course, by Chief Justice Roberts and Justices Thomas, Kennedy, and Alito) and Justice Stevens’s dissent (joined by Justices Ginsburg, Breyer, and Souter) is the view that the Second Amendment means only what it meant at the time of its proposal and ratification in 1789-91. Justice Scalia, of course, has long been identified with “originalism,” even though some of his critics, both liberal and conservative, note that he has been a most inconsistent one. But Justice Stevens has certainly not embraced originalism. Yet they spend a total of 110 pages debating arcane aspects of the purported original meaning of the Amendment.

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.

What is especially ironic is that the strongest support for Scalia’s position comes from acknowledging that the Second Amendment, like the rest of the Bill of Rights, has been “dynamically” interpreted and has taken on some quite different meanings from those it originally had. Whatever might have been the case in 1787 with regard the linkage of guns to service in militias—and the historical record is far more mixed on this point than either Scalia or Stevens is willing to acknowledge—there can be almost no doubt that by the mid-19^th century, an individual right to bear arms was widely accepted as a basic attribute of American citizenship. One of the reasons that the Court in Dred Scott denied that blacks could be citizens was precisely that Chief Justice Taney recognized that citizens could carry guns, and it was basically unthinkable that blacks could do so.

Good analysis.

More commentary from legal minds around the blogosphere:

Analyis of Heller by Lawrence Solum (or scroll down)

Initial Thoughts on Heller by Orin Kerr & Key Limitations of Heller by Orin Kerr

The Second Amendment and State and Local Laws by Eugene Volokh

My Sense of the Bottom Line from Heller by Tom Goldstein

Heller Discussion Board: "Clarity is in the Eye of the Beholder by Alan Morrison

Heller, Justice Steven's Dissent, and the Historian's Brief by Jim Lindgren

Supreme Court: Scalia and Stevens Duke It Out by Tony Mauro

Thoughts on Heller? by Matt Bodie

Heller Discussion Board: Incorporporation and the Need for Further Litigation by David Schenck

The Scholarly Nature of Heller by David Bernstein

Meet Your Second Amendment: D.C. v. Heller Decided by Mike O'Shea

Commentary: So, what's next on guns? by Lyle Denniston

Some Thoughts on the Supreme Court's Second Amendment Decision by Eugene Volokh

Heller's Indictment of Originalism by publius

I would weigh in, but I haven't even begun to wade through the 157 page opinions.  I note that Sandy Levinson and publius (among others) have hit upon the most distressing point -- that the justices both for and against the Heller outcome have cherry-picked history in order to justify their decision.  This, as publius says, is the whole problem with an originalist interpretation of the Constitution: you simply can't know what the Framers originally intended.  In fact, I have no doubt that if you went back in time and asked them, "Hey, buds.  Is the Second Amendment supposed to be for militia purposes only, or is it for hunting, self-defense, etc.?", you would get a bunch of different answers among the Framers themselves.  Likewise, if you informed them about the future -- with semi-automatic reloading machine guns, or even nuclear weapons -- they would probably be split on whether their wording applies.

Am I arguing against an originalist approach?  Not at all.  When it is clear what the Framers unanimously intended, then the plain meaning of the words should govern.  Where it is ambiguous, then judicial reasoning should come into play.  Does that mean judges will be legislating from the bench?  Perhaps, but here's the thing about that -- Congress and the people can always override through legislation.  Checks and balances, my friend.

Heller Decision In

5-4 in favor of individual gun rights, meaning that you can own a gun for self-defense and hunting (rather than for being in the militia, which arugably is what the Second Amendment says).  Justice Scalia wrote the opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito. Justice Breyer dissented, joined by Justices Stevens, Souter, and Ginsburg; there's also apparently another dissent.   MSNBC reports that the opinion "went further than even the Bush Adminstration hoped for".  Great.

The ruling is here (PDF), but good luck getting it right now.  Site seems to be flooded.

UPDATE:  Apparently, Stevens (and perhaps others) in the dissent believed it to be an individual right as well, but thought that D.C.'s ban was a permissible restriction.

UPDATE:  From Scotusblog:

Individuals have a constitutional right to possess a basic firearm (the line drawn is unclear, but does not extend to automatic weapons) and to use it in self-defense.  The government can prohibit possession of firearms by, for example, felons and the mentally ill.  And it can also regulate the sale of firearms, presumably through background checks.

The opinion leaves open the question whether the Second Amendment is incorporated against the States, but strongly suggests it is.  So today’s ruling likely applies equally to State regulation.

So it sounds like nothing has really changed; it only has the official stamp of approval from SCOTUS.

UPDATE:  Still can't get the opinion, but here are (reportedly) some selected quotes from it:

“Logic demands that there be a link between the stated purpose and the command.”

“We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.”

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

“The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”

“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.”

“Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”

“The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”

Whoa.  I gotta stop there.  The prefatory clause of the Second Amendment says (in full): "A well regulated militia being necessary to the security of a free State, ....".

That clause does suggest that the militia was the only reason, since it is the ONLY reason mentioned.

Furthermore, what's with this "most undoubtedly thought it even more important for self-defense and hunting"?  What?  Is the majority mindreaders?  And even assuming that is true, maybe it is more IMPORTANT, but that doesn't mean they intended to make it a RIGHT.  Ugh.

Back to more selected quotes from the majority opinion....

“It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.”

“Like most rights, the right secured by the Second Amendment is not unlimited.”

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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.”

“We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those ‘in common use at the time.’ 307 U. S., at 179.”

“Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”

On the question of the Second Amendment’s application to the States: “With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.”

That last bit is important.  Remember, this case involves D.C., which is all federal law.  Doesn't look like incorporation is happening, so states still can go further to ban guns.

Heller Today?

UPDATE, BREAKING NEW (11:30 a.m.):  Although not related to the gun issue below, the Supreme Court just ruled that it is "cruel and unusual punishment" to give the death penalty to a man who raped an 8 year old.  It was a 5-4 decision, but I don't know the breakdown.  Interestingly, victims' rights groups didn't want the death penalty for something like this, because they feared that child rapists would be more likely to kill their victims if they knew they could get the death penalty for rape.  Not sure I agree with that.  But I do worry about the slippery slope.  We really should reserve the death penalty for crimes where the victim is killed.  Anyway, on to the post....

I suspect today is the day when we learn the Supreme Court's decision in D.C. v. Heller, and it will no doubt be the lead story in the media. [UPDATE:  According to Orin Kerr, I'm wrong.  It'll be out tomorrow].

For those of you without a scorecard, D.C. v. Heller, one of two cases remaining from this year's docket for which an opinion has not been rendered, is without doubt the most important case to come to the Supreme Court on the issue of gun rights.

For decades, people have argued whether the Second Amendment grants an individual right to own guns, or a collective right.  The Second Amendment text reads in full:

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 individual-right argument is that the Second Amendment gives everyone a right to own a gun, for whatever reason.  The collective-right argument says, "Whoa there.  Clearly the framers intended people to have that right inasmuch as they have the right to form a well-regulated militia.  You can only have a gun for purposes of being in the militia"  (And, since we no longer have militias, you don't have a right to own a gun for all intents and purposes).

The arguments on both sides are compelling.  Individualists say that all the other amendments in the Bill of Rights are individual rights -- why make the Second Amendment different?  (I would couterargue that the right to assemble isn't an individual right, but that's another story).  Collectivists point out that "bear arms" is a military term, and you can't just "read out" the whole Militia/security clause.

There's no "right" answer.  We don't know what the framers meant.  They themselves probably weren't of one mind.

So how to resolve it?  Well, that's why they pay the big bucks to the Supreme Court.

But the Supreme Court has punted on this issue for decades.  Heller will put an end to that.

In a thoughtful post, on the assumption that the Court will hold that the Second Amendment reflects an individual right (I agree with that prediction), Professor Mike O'Shea addresses the incorporation question. 

What is "incorporation"?  That's the 14th Amendment, which says (in pertinent part):

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What that means, in layman's terms, is that if the federal constitution protects a "right", then the states cannot come along and take it away.  (The 14th Amendment was a by-product of the Civil War, which was, in part, about states' rights).  "Incorporation" means that a particular right guaranteed by the Constitution has been applied to states as well.

Not all the rights in the Bill of Rights have been incorporated to the states.  The Establishment Clause, the right to counsel, the rights of free speech, assembly, and petition, and the right against unreasonable searches and seizures, the right against self-incrimination, and a slew of others have all been incorporated.  The right to indictment by grand jury (in the 5th Amendment) and the right to a jury trial in civil cases (7th Amendment) has been held as NOT being applied to states.

But in Miller v. United States, back in 1894, the U.S. Supreme Court specifically said that the Second Amendment does not bind the states through 14th Amendment incorporation.  In other words, while the federal government cannot infringe the Second Amendment right (whether it be an individual right, a collective right, or something else), states still can.

In a sense, this may render the whole individual/collective argument moot.  Unless, of course, the Heller decision overturns Miller.

The incorporation issue presents a problem for conservatives.  They tend to support the "individual right" view of the Second Amendment.  But they also tend to support the "state's right" view of federalism, meaning (in essence) that the federal government cannot tell states what to do.  Justice Scalia himself once wrote in his book A Matter of Interpretation: Federal Courts and the Law (1997):

[T]he Second Amendment [i]s a guarantee that the federal government will not interfere with the individual's right to bear arms for self-defense. ... Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. ... [T]here is no need to deceive ourselves as to what the original Second Amendment said and meant. Of course, properly understood, it is no limitation upon arms control by the states.

I suspect, however, that the Supreme Court will not address the incorporation question, since that is not an issue in this case.  It will be some other day, in some other case.

But setting aside the incorporation question, the long debate will probably end today (or within the next few days) on one of the hottest debates in the legal/constitutional arena.  Watershed, it will be.

Sometimes, I Think They Take The "Dummies" Thing Too Far

Just sayin...

"Assassins" Banned

Art suffers:

After the Virginia Tech murders a year ago, Yale University banned the use of stage weapons in a student theatrical production — infuriating actors and educators who believed audience members could distinguish drama from real life. After a few days of ridicule, Yale backed down.

A year later, after another gun tragedy, college officials are still trying to figure out how to make their campuses safe — and theater still is a target. A student production of Assassins, the award-winning musical, was to have premiered Thursday night at Arkansas Tech University, but the administration banned it — and permitted a final dress rehearsal Wednesday night (so the cast could experience the play on which students have worked long hours) only on the condition that wooden stage guns were cut in half prior to the event and not used. Assassins is a musical in which the characters are the historic figures who have tried to kill a U.S. president.

Robert C. Brown, Arkansas Tech’s president, issued a statement explaining the decision as follows: “All of us have a healthy respect for the freedom of artistic expression that college theater represents, and all of us agree that out of respect for the families of those victims of the tragedies at Northern Illinois University and Virginia Tech, and from an abundance of caution, it is best at this time not to undertake a campus production that contains the portrayal of graphically violent scenes.”

It is best not to undertake a campus production that contains the portrayal of graphically violent scenes?

Why, exactly?

What's the fear?  Is it likely to send students into a gun-shooting frenzy?  Cannot Arkansas students recognize the difference between "violence" in a freakin musical (and really, it's not terribly violent) and actual violence?

Idiots.

I like this paragraph in the above article:

Further frustrating faculty members, there have been reports of gun shots — and a recent shooting injury — at parties organized by Arkansas Tech students, but the students organizing those parties were reportedly football players, not thespians. Some questioned why what they see as a false concern (fake guns in drama) was getting attention, as opposed to what they view as more serious problems. Others said that they viewed an order to stop a play as a violation of academic freedom.

Yeah.  Football is violent.  It's actual violence, too, not pretend stage violence.  You gonna ban that , Arkansas Tech?

[Pictured above.  The graphic for "Assassins".  Since Arkansas students apparently cannot distinguish between a gun and a finger, I feel compelled to report that the "assassin" in the photo is extending a finger.]

Church Hero Not So Much A Hero

For the past couple of days, the rightwing blogosphere has been touting and lauding the security guard who stopped the church shooter in Colorado.

Here's Instapundit:

COLORADO SHOOTING UPDATE: The "security guard" who stopped the shooter was actually a volunteer parishioner who used her own gun, not a rent-a-cop. Much more from David Hardy, who notes that press coverage tends to obscure this point. Meanwhile, it's more evidence that people don't stop killers, people with guns do.

Michell Malkin:

Amid the horror, a glimmer of good news: The culture of self-defense may have saved untold lives.

John Hindraker:

Also, the woman who ended the New Life Church attack by shooting Murray was a parishioner armed with her own gun who confronted Murray--heroically, it's fair to say--as he entered the church. She apparently was one of several people who volunteered to provide security after word spread of the first attack.

Q&O:

My guess is he figured a church would be a "gun free" zone and he could have his way with those there until police arrived. Like I said the potential for murder was mind-boggling.

But one armed church member, trained and prepared to use her weapon, ended it before it really got started.

That's how you stop a psychopath.

Way to go, Jeanne.

Christian news service OneNewsNow:

A Christian who lobbies to protect the Second Amendment says the shootings at two Colorado ministries Sunday prove the wisdom of law-abiding citizens carrying concealed firearms for self-defense.

Yay, guns!  This story proves the point -- if ordinary people had guns, they would stop these killers!  So arm up, y'all!

Um .....sadly this breaking news throws some water on the party:

Autopsy results show Murray, who was kicked out of a missionary training center where the first shooting occurred, killed himself, police said.

I don't think this undermines the bravery of the woman who shot at (and apparently missed [UPDATE: latest reports say she struck him several times]) the assailant, but it really doesn't serve as an anecdotal example of armed citizens stopping crime.

More Guns Make Everything Better

I read this at InstaPundit:

I HEARD NEAL BOORTZ holding forth on the Omaha mall shooting this morning on the way to work, and I realized I haven't posted on it. I don't really have anything to say that I haven't said before. But it's worth noting -- since apparently most of the media reports haven't -- that this was another mass shooting in a "gun-free" zone. It seems to me that we've reached the point at which a facility that bans firearms, making its patrons unable to defend themselves, should be subject to lawsuit for its failure to protect them. The pattern of mass shootings in "gun free" zones is well-established at this point, and I don't see why places that take the affirmative step of forcing their law-abiding patrons to go unarmed should get off scot-free.

What Prof. Reynolds is saying -- what he often says -- is that by restricting guns, you actually encourage the number of casualties at mass-shootings like the one taking place in Omaha.

But does this make any sense?

Let's engage in a thought experiment.  Let's assume that the Omaha mall was not a "gun-free" zone, and all other factors remained the same.  What would have been the likely outcome?

Answer: The same; nine people dead by a guy named Robert Hawkins.  The only way it would be any different is if some mallshopper (with a gun) was in the mall at exactly the right time and place, and was able to shoot Hawkins before damage was done.

And don't get me started about adding more to the casualty tally because of crossfire.

We should keep in mind that the mall security people actually were aware of the shooting as it was going on, seeing it on their video cameras.  And they were too late to stop anything.

Sure, making someplace a "gun-free" zone isn't going to stop people like Hawkins, but it's not likely to prevent gun-toting heroes from stopping people like Hawkins either.  For Reynolds' hypothesis to actually make a difference, you would have to have a large segment of mallgoers be armed and prepared to strike immediately on any would-be assailant.

And I don't want to go to a mall where everybody is packing "just in case" there's an incident.

Picture above:  Hawkins at the Omaha mall from a surveillance camera

UPDATE:  Someone needs to point something out to Glenn Reynolds before he castigates Nebraska for being anti-gun (and therefore inviting this sort of incident.  To wit:

State requirements:

Permit to purchase rifles and shotguns? No.
Registration of rifles and shotguns? No.
Licensing of owners of rifles and shotguns? No.
Permit to carry rifles and shotguns? No.

Baaaad Idea

AP:

SAN MARCOS, Texas - Mike Guzman and thousands of other students say the best way to prevent campus bloodshed is more guns.

Guzman, an economics major at Texas State University-San Marcos, is among 8,000 students nationwide who have joined the nonpartisan Students for Concealed Carry on Campus, arguing that students and faculty already licensed to carry concealed weapons should be allowed to pack heat along with their textbooks.

Yeah, that sounds like a good plan.  Students on large campuses, free from parental supervision for the first time in their lives, where alcohol is easily available, carrying concealed weapons.  What could possibly go wrong?

VERY Important Supreme Court Case

Perhaps the most important Second Amendment case evah, and the U.S. Supreme Court has decided to take the case.  I blogged about it back in March, so (if you're interested) you can get the background.

What's at stake?  Theoretically, the whole ball of wax.  The central issue is whether we as individuals have the "right to keep and bear arms", or whether we merely have that right as members of "the militia".  The Second Amendment itself is kinda vague on this point.  If the Court decides the latter, then it is possible that guns -- even handguns -- could be banned for any reason.

Let me put it this way -- if the Court decides in favor of D.C., you will be hearing about "the Heller case" just as much as you hear about Roe v. Wade.

Again, I refer you to my earlier post.

Given the way the Court works, expect arguments in early spring and a decision in June 2008.

UPDATE:  Here is the specific question before the Supremes:

"Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

More background on this case at SCOTUSwiki

SCOTUSblog:

After a hiatus of 68 years, the Supreme Court on Tuesday agreed to rule on the meaning of the Second Amendment — the hotly contested part of the Constitution that guarantees “a right to keep and bear arms.” Not since 1939 has the Court heard a case directly testing the Amendment’s scope — and there is a debate about whether it actually decided anything in that earlier ruling. In a sense, the Court may well be writing on a clean slate if, in the end, it decides the ultimate question: does the Second Amendment guarantee an individual right to have a gun for private use, or does it only guarantee a collective right to have guns in an organized military force such as a state National Guard unit?

MY EARLY TEA-LEAF READING:  Like so much else that comes across the recent Supreme Court, Justice Kennedy is the swing vote.  And my reading of Kennedy is that he will deem this the right to bear arms an individual right, making the decision 5-4.  I'll even go out on a limb and say that Souter will side with the majority, making it 6-3.  That will put the decades old controversy to rest. 

Frankly, my research suggests this is the right conclusion.  I'm not a fan of guns, but I think the Framers would have argued that it was intended to be an individual right, rather than a collective right.

What will not be resolved, at least conclusively, is the degree to which the federal government, states and municipalities can nevertheless restrict "arms" ownership despite the constitutional guarantee of a right to bear arms.  I mean, I think everyone -- including Charlton Heston -- agrees that tactical nuclear weapons should not be availble at the local K-mart.  The question is: where do you draw the line?

Junior's Got A Gun

Awww.  How cuuuuute!

In Illinois, you're never too young to own a gun.

That's what one father found out, when he registered his 10-month-old son for a Firearm Owner's Identification Card.

Daily Southtown columnist Howard Ludwig registered his son —- Howard David Ludwig, nicknamed "Bubba" — online after the child's grandfather bought him a gun shortly after the baby's birth. Ludwig chronicled the road to gun ownership in a story that appeared in the Southtown on Sunday.

"Anyone who wants to own a firearm or purchase a firearm needs a FOID card," Ludwig told FOX News. "I applied for one of these for my son. Now ironically he can’t buy a gun until he’s 18 years old, but if he wants to own one -- which he does thanks to Grandpa -- he needs one of these cards anyhow."

The ID card, complete with a photo of the tot, allows the child to own a firearm and ammunition, and legally transport an unloaded weapon, even though Bubba has yet to learn how to walk.

It is the father's wish that his son attend Virginia Tech in 18 years.

...And Five In Iraq, Too

Bloody, bloody Monday.

EVENING UPDATE: Okay.  Who's to blame for what happened today at V Tech?  Should we blame video games? A lack of guns? Not enough Jesus?

Folks, the dead bodies are still warm.  Let's not exploit this for our own agendae.

And by the way -- the correct answer to "Who's to blame"?  The shooter.

(But the lack of gun control doesn't help)

First They Told Me About Contaminated Wheat Gluten In Wet Dog Food...

....and I said nothing.

Then they told me about contaminated wheat gluten in cat food, and I said nothing.

Then they told me about contaminated wheat gluten in dry dog biscuits, and I said nothing.

Then they told me about contaminated wheat gluten maybe even being in human food, but then I read wikipedia and decided I'm okay, since it only appears in crappy health food like "tofurky" (tofu turkey), and I don't eat that stuff.

So I'm saying nothing.

Important DC Circuit Second Amendment Ruling

The Second Amendment of the U.S. Constitution reads:

"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."

Grammatically, it's an awkward sentence, and much has been made of the "well-regulated militia" phrase.

Basically that controvery boils down to this:  Does the presence of the Militia Clause mean that the "right" is an individual right, or a collective right?  In other words, do individuals have a right to carry arms insofar as they are necessary for a Militia, or is it, quite simply, does the right exist for all individuals for any reason?

Remember, when the Second Amendment was ratified, there was no standing army in the United States.  Our young country was defended by homegrown militias -- people who fought and defended using their own firearms.

The interpretation of the Second Amendment interpretation has real-world implications.  If it is a collective right, then theoretically, government can ban the use of "arms" to the extent that they are not used for militia (which effectively means the Second Amendment has no weight in present day terms, since we don't really have militias).  On the other hand, if it is an individual right, then theoretically, government cannot ban the right to own arms at all.  As you might expect, gun control advocates prefer a collective right interpretation; gun enthusiasts prefer an individual right interpretation.

There are powerful arguments to either side.

Collective rights arguments

• The Second Amendment uses the phrase "the people" -- suggesting a collective right -- rather than "persons" -- which suggests an individual right (see, e.g., Fifth Amendment)
• If the Framers intended the right to inure to individuals, the Militia Clause would have been left out altogether.  In other words, the Second Amendment would read something like: " the right of persons to keep and bear Arms shall not be infringed."
• "Bear arms" is a distinctly military phrase (and was back in the 18th century), suggesting that the Framers were, like the Military Clauses suggests, thinking about the right pertaining only to the necessity of a Militia, and not "individual" rights.

Individual rights arguments

• State constitutions of the day, which were the boilerplate patterns for the U.S. constitutions, used similar language, but clearly intended for there to be individual rights, separate and apart from rights relating to a Militia.
• The Militia Clause does not express a prequisite for allowing citizens to have guns, but it merely states a reason (and not the only one)
• Most of the other amendments in the Bill of Rights (with the exception of freedom of association and freedom of the press) inure to the benefit of the individual.
• "The right of the people" does not necessarily suggest a collective right (see, e.g., the Tenth Amendment)

The U.S. Supreme Court has never addressed this question directly, save for a 1939 case involving sawed-off shotguns.  There, the Court held that sawed-off shotguns could be banned by the government and it would not violate the Second Amendment, because the Second Amendment's "obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces."  However, while seeming to support a collective rights view, there was enough "wiggle language" in the court opinion to suggest that the Court was not wholeheartedly rejecting an individual rights point of view.

I've studied this at length in the past and, as much as I am a supporter of gun control, I find the legal scholars who say the Second Amendment is an individual right have the better argument.

Today, the DC Circuit issued an opinion on this very subject.  Like a few other circuit courts earlier in the past ten year, they found that the Second Amendment protects an individual right.  The opinion is, I think, very lucid, and address many of the arguments from the "collective rights" perspective.

Someday, probably within the next 5-10 years, the U.S. Supreme Court will come down on this issue (in fact, this case on appeal may be the one).  But in the meantime, the DC Circuit case coming down today is an important one, and one that gun control advocates (like me) are clearly not going to like, even though (in my view) it is the legally correct decision.

Key languge from the opinion below the fold

Gun Safety

This is a remarkable video.

A police officer is in a school, giving a talk to kids on the subject of gun safety.  And he accidentally shoots himself in the foot.  Trying to pass it off as nothing, he then asks his assistant to show a rifle to the kids.  The kids, scared to death of being accidentally shot, ask the assistant to put the rifle down.

Both funny and disturbing.  Give the video a chance to load...