Guns and the Supreme Court

Not very far, but the supreme court had already started the process by the time Miller was decided. The first incorporation case was Gitlow v. New York in 1925 (an earlier case, Chicago B. & Q. R.R. v. Chicago in 1897, is somewhat obscure on the issue of incorporation). There were at least three other cases in the 1930s that preceded Miller and that incorporated parts of the Bill of Rights into the fourteenth amendment. A good overview can be found here.


That depends on how seriously you take the principle of stare decisis. Because the court had started the incorporation process by 1939, Miller has more validity as a precedent than, say, Presser, which was decided before the court had the "option" of incorporation, but if you're Clarence Thomas, for instance, that doesn't really matter. On the other hand, if you're Antonin Scalia, who has at least paid more deference to the notion of stare decisis, that might make a difference.

Thanks Joe!

Another question, along the lines of McTag's comment that the decision will somehow avoid interpreting the Second Amendment.

As I understand it, there are three basic positions on the Second Amendment among serious legal scholars. As usual, there are ifs, buts, nuances and intermediates to each of them, but let's not get into these. With this caveat out of the way, the three fundamental theories are --

1. The Second Amendment protects a state right. Individuals have no rights under the Second Amendment.
2. The Second Amendment protects an individual right. The introductory clause constrains the scope of the right to the extent a free state needs to protect itself with a well-regulated militia.
3. The Second Amendment protects an individual right. The introductory clause explains why the right is there, but doesn't constrain its scope.

I don't mean to re-debate the merits of each position in this thread. But do you see a way the Supreme Court can avoid deciding for or against position 1? I can see the charm of a narrow and technical opinion, but if the amendment protects a state right, and the case is about citizens of something that is not a state, there is nothing for the Supreme Court to get narrow and technical about. They can't avoid deciding the state right vs individual right question -- or can they?

The court can avoid the substantive question by deciding the case on technical grounds. The appellate court initially had to tackle the issue of standing before it got to the substantive issues surrounding the scope of the second amendment -- section I of the opinion deals solely with standing, and the court decided that five of the six plaintiffs did not have standing to object to the DC gun law. Only one plaintiff -- Heller -- had actually been denied a gun permit and so only he had standing to sue in federal court (that's why the case was Parker v. DC in the appellate court but is Heller v. DC in the supreme court). The dissenting judge in Parker suggested, in a footnote, that Heller lacked standing too. So the first thing the court must decide is whether Heller has sufficient standing to sue.

Likewise, the court could rule that "the people" mentioned in the second amendment are "the people of the states." That would exclude the citizens of the District of Columbia, since the district is not a state. That was the dissenting judge's main argument. As she stated:

To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under [i]United States v. Miller[/i], 307 U.S. at 178, the Second Amendment's declaration and guarantee that "the right of the people to keep and bear Arms, shall not be infringed" relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.

If the court decides to deal with the second amendment issue directly, it can also limit the scope of its decision by refusing to decide whether the second amendment is applicable to the states through the fourteenth amendment. That's because the bill of rights is directly applicable to citizens of DC (because of its status as a federal enclave).

Set, are you drifting into senility?

It is so implicit that the rights in A2 may, because of A14, be enforced against state and local governments that discussion of this is unnecessary. Miller involves a state gun-control law, which the SC said is not violative of A2 and, thus, is legal. A2 would not be in play in this matter were it not for A14.

It is truly stupid for you to say that A14 is not in play in connection with A2.

No it doesn't. It involved the National Firearms Act of 1934, 26 USC sec. 5801 et seq.

It is also worth noting that the case is in the District of Columbia, and therefore on Federal turf--the Court can avoid entirely the issue of what the States may or may not do with regard to gun control legislation. This is not a suggestion on my part that they will. In both Cruikshank and Presser, the Court stated that the Second Amendment binds the Federal government, but not the states. If the Court does not address that issue, it remains effective.

Oops . . . i see Joe already alluded to the unique status of the District.

A little research would show you that DC law is not treated as federal law.

It looks like lawyers have not evolved much from how Rabelais described them.

He said they sat there making points in between banquets and other jollies and when they got bored they tossed a coin or went with the biggest bribe. The population was so stupified by the arguments that it didn't notice.

Eventually they were sidelined as they have been in Pakistan. The Hutton Enquiry and the Cash for Questions enquiry and the Saudi Arms Deal enquiry and many others have all trickled away in forgetfullness and boredom but not before the lawyers got their extraordinary fees.

What's happening with Mr Conrad Black?

I guess the Justice Dept. feels that the Second Amendment doesn't provide a blanket right to bear arms.

FBI's Gun Ban Listing Swells
Thousands Added To File Marked 'Mental Defective'

By Dan Eggen
Washington Post Staff Writer
Friday, November 30, 2007; Page A01

Since the Virginia Tech shootings last spring, the FBI has more than doubled the number of people nationwide who are prohibited from buying guns because of mental health problems, the Justice Department said yesterday.

Justice officials said the FBI's "Mental Defective File" has ballooned from 175,000 names in June to nearly 400,000, primarily because of additions from California. The names are listed in a subset of a database that gun dealers are supposed to check before completing sales.

Attorney General Michael B. Mukasey, in Utah for a speech, urged states that do not submit mental health data for the FBI's gun sales checklist to do so.

The surge in names underscores the size of the gap in FBI records that allowed Seung Hui Cho to purchase the handguns he used in April to kill 32 people and himself at the Virginia Tech campus in Blacksburg.

A Virginia state court found Cho to be dangerously mentally ill in 2005 and ordered him to receive outpatient treatment. But because Cho was not ordered into hospital treatment, the court's order was never provided to the FBI and incorporated in its database. Two gun dealers checked the list before selling Cho the 9mm Glock 19 and the Walther .22-caliber pistol he used in the shootings.

For nearly four decades, federal law has prohibited gun sales to people judged to be "mentally defective," but enforcement has been haphazard. A 1995 Supreme Court ruling barred the federal government from forcing states to provide the data, and 18 states -- including Delaware and West Virginia -- provide no mental health-related information to the FBI at all. Both Virginia and Maryland do provide the data.

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, a group favoring tighter firearms controls, said the most optimistic estimates suggest that even the FBI's expanded list is missing 4 of 5 Americans who have been ruled mentally dangerous to themselves or others.

"If people realized how weak our system is in terms of background checks for people who are dangerously mentally ill, they would be shocked," Helmke said. "It's clear that there could be another Virginia Tech killer buying a gun today, and there's nothing that can be done about it."

The vast majority of the individuals who were added to the FBI's list were identified by California, which provided more than 200,000 names in October, the Justice Department said. Ohio provided more than 7,000 new names, and the number of states reporting mental health data to the FBI this year grew from 23 to 32, officials said.

"Instant background checks are essential to keeping guns out of the wrong hands, while still protecting the privacy of our citizens," Attorney General Michael B. Mukasey said in a speech announcing the numbers in Park City, Utah. "But as we learned in the tragedy at Virginia Tech, the checks must be accurate and complete to be effective. We're making progress, and I hope that even more states will submit this information."


The Virginia Tech deaths, which resulted from the deadliest college campus shooting incident in U.S. history, have prompted a push by federal and state lawmakers to improve voluntary reporting by the states of those covered by the ban.

House Democrats reached an agreement earlier this year with the National Rifle Association on legislation meant to encourage states to submit timely background-check data to the FBI, by offering monetary awards and threatening penalties.

"Our position has always been that those who have been adjudicated as mentally defective or a danger to themselves or to others or suicidal should not have access to firearms" and should be added to the FBI's list, NRA spokesman Andrew Arulanandam said.

The measure passed easily in the House, but it has stalled in the Senate because of a hold by Sen. Tom Coburn (R-Okla.). He has said he opposes the legislation because he thinks its implementation would cost too much and because it lacks a mechanism to challenge inclusion on the list. He was joined by some veterans' groups, which argued that former soldiers might be denied gun-owning rights without due process.

In Virginia, Gov. Timothy M. Kaine (D) tightened state rules in May by ordering agencies to block gun sales to those involuntarily committed for inpatient or outpatient mental health treatment; previously only those committed to hospitals could not buy a gun. Maryland Gov. Martin O'Malley (D) also issued a new gun-purchase regulation, which requires buyers to sign a waiver that releases mental health records to state police.

Mukasey highlighted the expanded FBI list during his first public speech after being narrowly confirmed by the Senate three weeks ago. He also told the National Association of Attorneys General that Washington will continue federal assistance for communities struggling against rising rates of violent crime.

Aides to the retired federal judge say his priority is to repair relations with Congress and to rebuild the department in the aftermath of controversies that beset his predecessor, Alberto R. Gonzales.

"I don't think you are going to see any big new initiatives, at least not right away," one Justice official said this week.

I would argue that that database labeling people as "mentally defective" is unconstitutional because anyone could be placed on the list, kinda like Ted Kennedy not being able to get on a plane (but that was funny).

There might be something in the law or regs that allows one to challenge his or her listing. If not, the list may be unconstitutional.

Why would that surprise anybody? I mean, don't you basically have to be a mental defective to want to live in California??

As far as mental balance goes, anyone can be temporarily mentally unhinged when they fly into a rage. If there is a gun nearby which they have access to at such times, that's a cause for concern.
Most of these people would pass a psychiatrist's test.

Even soldiers. Imagine that.

And I like California, just not the gun laws and ridiculous politics, however, Michigan (aka New Canada), has more lenient gun laws, has equivalently bad politics.

I'm still curious about this one.....

Here's a shotgun at walmart (12 gauge even) for $128.37.
http://www.walmart.com/catalog/product.do?product_id=4665486


How much cheaper is a handgun in the urban setting?

FYI that's a single shot NEF 12-gauge. Clearly a hunting weapon, not a self defense weapon. Plus that 28" barrel makes it really inconvenient for use in the Escalade during drive bys.

Still, Set said that handguns in an urban setting are cheaper than shotguns and rifles. I'm still awaiting any sort of proof of that.

And if proof were to be provided, I'd still be curious if these cheap weapons are indeed a significant contributing factor to handgun violence (resulting in a death or not).

To take one example from the top ten list which ATF compiled, the Raven Arms MP25 (.25 caliber automatic):



(Because of the syntax of the url for the Wikipedia page, i am unable to link it here. Search for "Raven Arms MP25" and you'll find plenty of links.)

To assure you that this is current information, at this online selling site, a Raven Arms MP25 is being offered used, in good condition, for $59.95.

At the bottom of this page, two MP25s are being offered at $80.00.

Keep in mind, also that these are going to be much cheaper used, especially if sold in a back alley in an urban setting. They are easily concealed (while searching for these examples, i also came across a lot of adds for ankle holsters), and much more attractive to someone buying a weapon on a Saturday night--Saturday night special, remember?

I already pointed out that ATF reported in 1993 that three "Saturday night specials" (which included the Raven Arms MP25) were in the top ten list of weapons used in handgun shootings.

I have no reason to continue to play this "prove it to me" game with you, Maporche. I've stated my position, and why i hold it. You've been making extravagant claims about people protecting themselves with handguns (one of the most outrageous, and disgusting, the suggestion that battered women would somehow be more vulnerable if handguns were banned--do you really mean to suggest that there is any significant number of handgun shootings by battered women? prove it.)

If you want to continue your game, then why don't you come up with some proof. Prove that people are safer because of the proliferation of handguns. Prove that handguns are a significant factor in protecting battered women. Prove that concealed carry laws succeed as a deterrent in handgun violence.