Heller Case3 - Analysis1

by Dave Kopel, Stephen P. Halbrook, Alan Korwin

"The D.C. v. Heller Case -- Eyewitness Report - Analysis1 March 20, 2008 "

D.C. v. Heller Eyewitness Report -- Analysis 1
D.C. v. Heller Eyewitness Report -- Analysis 1
D.C. v. Heller Eyewitness Report -- Analysis 1

The major news outlets seemed to agree with my assessment (and I went out on a limb with that, 12 hours before any of them), that the High Court seemed ready and willing to unequivocally affirm an individual right to keep and bear arms. [NOTE: see my pre-game and post-game eyewitness reports here: http://www.PageNine.org]

“Gun laws will be over” is the hysterical cry of the antis -- that a pro-rights finding will wipe out every gun law in the country and plunge us into bloody terror. And those are almost the fears of the pros too -- any finding less than total uninfringed keep-and-bear will jeopardize 200+ years of firmly established cherished rights.

That’s why the NRA and the Brady bunch were beyond reluctant to touch this thing. There’s no telling where it could end up. And the prospects, as I see them, are pretty scary stuff.

Not a single Justice or court brief suggested that all or even many gun laws must go away, that’s just irrational raving. But whatever standard comes out, the Bradys will be able to make some claims that, “See, this falls within reasonable regulation.” And the pro-rights people will have openings to challenge some of the more odious rights restrictions, and see if they can prevail. No one knows where any of that will lead. We’re back to square one -- legislatures, local courts, and the ballot box.

New laws that ban your rights may be tougher to enact or even introduce, and pro-rights arguments may have more fuel. Rights-supportive laws may have some obstacles removed -- though Texas managed to pass ten of those good laws last session without the Heller case. So who wins in that scenario?

I used to think that a mere 30 minutes for each side’s oral argument was hopelessly small -- how could you possibly address a subject adequately in so little time? I no longer believe that. It’s more like the adage, “Work expands to fill available time,” and when time is short -- like before a vacation, or at the Supreme Court -- you get an enormous amount done in a day or an hour, that otherwise takes weeks.

The level of intensity in that courtroom defies description. The brain power those nine people brought to bear, on top of the months of prep from the litigants, was exhausting. Any more time than we spent would have been overwhelming. It’s a good thing it’s kept to an hour (and this case ran 38 minutes longer, quite rare). You just fit everything in, then declare an ending.

It’s like twilight magic when the Justices walk in through those crimson curtains. There, in one room at one table are the names you know, the faces you recognize, right in front of you clear as day, the most powerful legal minds (politically speaking) in the country, on the planet. And let me tell you, they knew their stuff. I was able to follow most, but not all, the proceedings. A minor wave of mental fatigue ran over me and passed in a minute at 11:10. Some wrinkles were absolutely new to me, some connections they drew I couldn’t follow (but have begun to unravel in studying my notes and the transcript), and some parts I may never adequately connect. Those of you studying the transcripts (many wrote to say you are) are ahead of me.

The closing gavel bangs. Everyone rises. The nine nattily attired natives exit without delay. They retire to chambers just behind those crisp curtains -- and though their actual procedures are not divulged, the process is roughly understood.

Chief Justice Roberts asks the cadre, so where do we stand, and takes a straw vote to gauge things -- exactly what we all want to know -- and cannot. In this case, he needs to find out:

1. How many of you are with an individual right existing outside any sort of militia service? Probably gets five, some observers suggest maybe even seven, no one I know sees all nine, Stevens being the hardest holdout if it comes to that. Of course all of this is speculative, on our side of the man behind the curtain.

2. Does the D.C. gun ban fail on Second Amendment individual-rights grounds? Everyone (out here) seems to think it must. No way to guess how many in there will find space to toss the 100%-total-ban-on-operable-guns-at-home-in-the-District as an unreasonable limit. But remember the Kelo.

3. Is this individual right to arms (assuming they find one) a fundamental right, making it subject to so-called “strict scrutiny”? Here’s where it gets fuzzy, and concurrences and dissents will tear this apart. Here’s where the NRA types and the Brady types get to sweat, and probably spin whatever decision emerges to suit their ends.

4. What about the off-point issues that came out in the orals and the briefs? What exactly is an “arm” for the purposes of the Second Amendment? (Doesn’t matter to decide solely the D.C. issue, unless they want to adopt the D.C. position that sidearms can “reasonably” be excluded.) Are handguns, rifles and shotguns equal?

How much further than keep-and-bear-only-at-home-for-only-the-District-of-Colombia does this case reach? (Not at all if the Justices stay on point, but they could stray if they wish.) These will not have simple tabulations adding up to nine. These will become dicta -- non “holdings” of the case, that will fire discussions for a long time to come. My guess is that every Justice will weigh in on these and similarly fudgy points until the next case arises. And a next case will arise.

5. Who’s going to write this one? The Chief Justice decides, receptive to the wishes and predispositions of his cohorts, er, colleagues. Scalia maybe, perhaps Thomas whose interest is already in the prior written record. Smart money says Roberts will write it, it’s just too seminal, too golden an opportunity for posterity. Whoever pens it, they’re all going to get in their say.

Maybe the bigger question is -- who’s going to dissent, and what’ll that say. The losers (out here in the public) will latch on to every word. How will the concurrences add or detract to the main holdings? How much red meat will the red- and blue-leaners on the Court throw their fans? Know this -- the Bradys will come out screaming, as will the rights advocates -- that we got this, that, the other, and the rest is judicial activism that must be overturned.

The most eager (and knowledgeable) Court watchers will, when the decision is released, turn immediately to the last page and look for the word “remand” (meaning nothing is settled), or “affirmed” (and the fun really begins in earnest).

Strict scrutiny is a non-constitutional invention that evolved in the early 20th century around free speech rights. At its core, it says because free speech is such a fundamental human and constitutional right, any law that seeks to limit it must pass the harshest examination, and mere government interest, even compelling interest in limiting speech must be narrow, explicit, specific to the speech to be limited, easily understood and clearly applicable to any other case that must be tested under the limit.

(In a case called Central Hudson, the Court devised a four-part test for speech bans: 1 - whether the speech concerns lawful activity and is not misleading; 2 - whether the asserted governmental interest is substantial; if so, 3 - whether the regulation directly advances the asserted interest; and 4 - whether it is not more extensive than is necessary to serve the interest. If “reasonable regulation” is a linchpin here -- a frightening thought -- can we expect to see some similar test?)

The reason U.S. Solicitor General Clement (the man who argues the government’s position at the Court) was granted time, was to fight to preserve existing “reasonable” federal gun laws. How many? Who knows. Which ones? No one can say (but machine guns and undetectables were mentioned repeatedly). Will he succeed? Undoubtedly. Undoubtedly.

A felon in prison will not be able to argue -- even under the wildest fantasy -- that the right to arms extends into prison even though, say, the right to due process or a fair trial does. The ban on arming a vessel of a foreign power (18 USC §961) will remain standing, no worries mate. Many gun laws serve a legitimate purpose and will not be compromised, despite some rather lunatic ravings to the contrary.

But what about owning some type of firearm currently banned to the public? How about a normal capacity magazine the exact same as police might be issued? How about bans on where you can carry -- the known-to-be-dangerous so-called “gun-free” zones? Can bans on tasteful, discreet carry in public by innocent women (or men) withstand strict scrutiny? Is a government mandated license/tax/test/expiration-date/required-papers/fingerprint/photo/magnetic-stripe a “reasonable” limit on the exercise of a fundamental right? There’s almost no end to such speculation. For these we must wait until June and then, it doesn’t end, it begins.

My guess -- it’s unlikely the Court will go to such points. This time. They don’t have to, and to reach the greatest consensus they can, they won’t. Locally however, these points will be inescapable in years to come. Legislators at all levels will be quoting Heller, count on it. Elect good representatives this November.

Don’t worry, as some people are, about machine guns and how quickly Mr. Gura “wrote them off.” 1 - They’re not at issue in this case, so it’s immaterial in context. 2 - You don’t want to or need to push a court too far, so just stay on point, concede a pointless point, it’s moot. Get Mr. Heller his rights back, that's your job, that's all, tomorrow's another day. 3 - Mr. Gura’s remarks are not the deal maker, the Justices’ are. Some of them were just fishing for something to grouse about. It’s fine to tell them, “Sure,” and get back to the business at hand.

The machine gun issue is also particularly sticky because, as the Court pointed out, MGs are standard issue for soldiers and so very neatly meet a definition of arms the public should have as related to potential militia service and readiness. Way too big and convoluted to go into in Heller, and simply not needed, yet.

It seems to me that the machine-gun issue would be easy for the Court to sidestep if for no other reason than because they’re not technically banned, they’re taxed. The main controls are under Title 26, the tax code, not under Title 18, the criminal code, and again, neither matter in examining the D.C. ordinance.

When Congress first enacted those limits in 1934 the record shows they realized they had no authority to ban guns because of the Bill of Rights -- but they reasoned they might be able to get away with implementing an insurmountable tax (the $200-per-gun tax was a fortune at the time). Through that mechanism they attached controls, paperwork, financial burdens and tax-evasion penalties that were almost as good as a ban for their purposes then. The courts acquiesced (and that’s a whole ’nother story). The 1986 ban on no-new-full-autos might be more difficult to justify, but it is just not at issue here at all. Some experts told me Gura was right on the mark, handling that as he did. I also bridled though, when the words first passed my ears.

Justice Roberts did ask if we even have to go anywhere near these things to settle the issue at hand, and he’s right of course, and will be prudent (read, very narrow) in the scope of this decision. I think they’ll duck all the fodder we out here like to chew, leave those to digest later. They’ve got enough on their plate without it.

Will the presidential election affect those future outcomes? You bet it will, and that may be the biggest question mark of all. Note that the “news” media has not raised the point. I wonder why.

That will have to hold you for now. Need to get to the 580 emails I found on my return from SCOTUS and my first two reports (don’t worry, a lot are “anatomy enhancement” ads and similar crud), and the stack of interviews I’ve agreed to give.

I plan to review the “news” media’s coverage of this (some great subtle deceptions and bias I could only pick up by having been there, along with the usual blatant lying and distortions); Bob Blackmer’s revealing perspectives from his overnight vigil in front of the Court and his mug in full color on page one (B section) of The Washington Times with the protest sign I crafted; the skinny on how we actually got in and what that was like; a photo gallery and more.

Now, an hour of streaming audio at http://www.accentradionetwork.com (you’ll need to get their archive of it if available by the time this gets to you), and my wife wants sushi. Sounds good to me.

Alan Korwin
Bloomfield Press
"We publish the gun laws."
4848 E. Cactus, #505-440
Scottsdale, AZ 85254
602-996-4020 Phone
602-494-0679 Fax
1-800-707-4020 Orders
https://www.gunlaws.com
alan@gunlaws.com
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Contact:
Alan Korwin
BLOOMFIELD PRESS
"We publish the gun laws."
4848 E. Cactus, #505-440
Scottsdale, AZ 85254
602-996-4020 Phone
602-494-0679 FAX
1-800-707-4020 Orders
https://www.gunlaws.com
alan@gunlaws.com
Call, write, fax or click for a free full-color catalog

Supreme Court Gun Cases