Dorf on Law: Lock and Load!

Thursday, June 26, 2008

Lock and Load!

As predicted (by me and everyone else) the Supreme Court affirmed the DC Circuit, 5-4 on an ideological split. Opinion available here. I'll have a FindLaw column up on the subject some time tomorrow.

Posted by Mike Dorf

19 Comments:

At 11:20 AM, heathu said…

Any early thoughts on whether this individual right will be made applicable to the states?
At 11:52 AM, egarber said…

I just did a fast read, and can at least conclude the following (I think):

1. I didn't see anything limiting the ruling to the federal district. The individual rights declarations were pretty bold -- so my guess is that this will create precedent in the states. I of course welcome corrections by the way more qualified people on this blog.

2. The court did NOT address the licensing requirement generally, which in some ways keeps the ruling narrower than it could have been. The way I read it, the court said (my words), "there is an individual right. We're going to leave licensing alone as its own issue. But if a municipality requires a license, it can't be denied when the basic right is implicated (outside of traditional exceptions).

3. I didn't see -- though I easily could have missed it -- any kind of specific scrutiny test that must be applied. The court did say that given how other fundamental rights are construed, we can easily see that the DC law fails constitutional muster.

4. One potential test that might arise from all of this is a basic "self defense" standard. I can almost see a sort of Roe parallel here: the state has a right to regulate, provided basic self defense is always protected. In a loose way, that almost sounds like the "health of the mother" exception in the reproductive rights context.

5. The court made a clear statement that it wasn't bringing into question longstanding exceptions to gun ownership rights -- the mentally ill, criminals, carrying in schools, etc.

So in my view, although it's constitutionally significant, I don't see a tidal wave of state laws getting thrown out over this. The DC ban seems to have stood out as extreme relative to typical laws.
At 2:33 PM, Sobek said…

Speaking of lock and load, the U.S. just knocked another missile out of the sky, making 29 successes out of the last thirty tests. Pretty cool stuff: the warhead separated from the propulsion system, so the intercept had to (and did) identify which piece to kill.

Obama wants to cut funding for "unproven" missile defense systems. Not only is the statement ludicrous and naive on its face ("proven" defense systems don't just magically appear out of thin air), it's also based on ignoring the facts.

Considering Obama's similarly naive belief that he can negotiate with Iran on nukes, it looks like Americans are the only people he doesn't think should have weapons. That strikes me as odd.

Also in the news: Obama throws his own previous position on the constitutionality of the gun ban under the bus, now that he realizes there's nothing to be gained from sticking by his actual opinion on the subject. Hope and (especially) change, indeed.
At 3:44 PM, egarber said…

Also in the news: Obama throws his own previous position on the constitutionality of the gun ban under the bus, now that he realizes there's nothing to be gained from sticking by his actual opinion on the subject. Hope and (especially) change, indeed.

Sobek, you seem to be speaking in quarter truths here. Obama has never taken a position on the DC case.

From a report today on the ABC News site:

Begin:

"ABC News' Teddy Davis and Alexa Ainsworth Report: With the Supreme Court poised to rule on Washington, D.C.'s, gun ban, the Obama campaign is disavowing what it calls an "inartful" statement to the Chicago Tribune last year in which an unnamed aide characterized Sen. Barack Obama, D-Ill., as believing that the DC ban was constitutional.

"That statement was obviously an inartful attempt to explain the Senator's consistent position," Obama spokesman Bill Burton tells ABC News.

The statement which Burton describes as an inaccurate representation of the senator's views was made to the Chicago Tribune on Nov. 20, 2007.

In a story entitled, "Court to Hear Gun Case," the Chicago Tribune's James Oliphant and Michael J. Higgins wrote ". . . the campaign of Democratic presidential hopeful Barack Obama said that he '...believes that we can recognize and respect the rights of law-abiding gun owners and the right of local communities to enact common sense laws to combat violence and save lives. Obama believes the D.C. handgun law is constitutional.'"

http://www.topix.com/content/trb/2007/11/court-to-hear-gun-case

The Chicago Tribune clip from Nov. 20, 2007, is an inaccurate representation of Obama's views, according to Burton, because the presumptive Democratic presidential nominee has refrained from developing a position on whether the D.C. gun law runs afoul of the Second Amendment.

When Obama has been asked on multiple occasions to weigh in on the D.C. gun case he has regularly maintained that the Second Amendment provides an individual right while at the same time saying that right is not absolute and that the Constitution does not prevent local governments from enacting what Obama calls "common sense laws."

Although he has been willing to describe his general views on this topic, Obama has sidestepped the question of whether the ban in the nation's capital runs afoul of the Second Amendment.

Asked by ABC News' Charlie Gibson if he considers the D.C. law to be consistent with an individual's right to bear arms at ABC's April 16, 2008, debate in Philadelphia, Obama said, "Well, Charlie, I confess I obviously haven't listened to the briefs and looked at all the evidence."

End

In fact, Obama's comments basically mimic the actual ruling today -- that there is an individual right, but sensible regulation is a part of the equation as well.

If you're gonna hang out on the wingnut blogs and report back, at least do some fact checking for yourself. Ok, that was a cheap shot -- sorry :)
At 4:31 PM, egarber said…

Obama wants to cut funding for "unproven" missile defense systems. Not only is the statement ludicrous and naive on its face ("proven" defense systems don't just magically appear out of thin air), it's also based on ignoring the facts.

Cuts are not the equivalent of elimination. From what I've gathered of his position, he wants to work with allies (NATO, etc.) to move missile defense in the right direction, but in a cost-responsible way.

And of course, this happens in the real world, where priorities have to be set on spending. IMO, there's nothing unreasonable about concluding that, given limited funds, we must first rebuild the army and military generally, directly confront the Taliban issue in Afghanistan, secure loose nuclear material throughout the world, and rebuild frayed alliances.

If we look to missile defense as a panacea, we will likely miss the mark, if finishing our response to 9-11 is the real goal. Al Qaeda won't launch a missile if it attempts to nuke us; such an attack will much more likely come in bomb form. That's partly why Obama is pushing so hard on Sam Nunn's recommendations to secure loose material.
At 4:32 PM, egarber said…

How on earth did Mike's post on the DC gun case devolve into missile defense????
At 6:47 PM, Kera said…

I wonder if Smith and Wesson's going to have a "Supreme Court" Special Sale . . .
At 11:12 PM, Sobek said…

"Sobek, you seem to be speaking in quarter truths here."

Heh. I'm not quite sure how to work out the algebra on that.

First, the statement that Obama nuanced out of existence was seven months old. A little odd, isn't it, that he chose today of all days to repudiate it?

Second, I'll concede that apparently no one can trust anything that any of Obama's friends, advisors, acquaintences, pastors or spouses says, considering how fast he throws people under the short bus, so let's go to the video of the man himself:

http://www.youtube.com/watch?v=-wu9jE1MnAE&eurl=http://www.vutorch.com/blog/2008/06/video-obama-att.html

If you can't see the video for whatever reason, the interviewer notes that Obama supports the DC ban, thinks it's constitutional, with Obama nodding the whole time, and Obama doesn't say "hey chief, you got that wrong." Missed opportunity, or what?

From Obama's web page today: "Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country."

Except that it doesn't provide any guidance, and neither does Obama. Scalia says some restrictions are acceptable, but doesn't say which. Obama could have clarified -- can you limit magazine capacity? Is Chicago's ban constitutional? Can automatic weapons be banned? What is the appropriate level of scrutiny? All relevant questions for a man who wants to be our President, all unanswered.
At 11:22 PM, Sobek said…

"How on earth did Mike's post on the DC gun case devolve into missile defense????"

If I waited until the next time someone does a post on missile defense, it would be too hard to post comments, what with the sun being burt out and all.

More seriously, this is one of the very few blogs I read, and I read it specifically for the contrary viewpoints. But it generally has a rather narrow scope (law and basketball -- there's a cross-discipline waiting for a champion!), so I sometimes get off-topic. I can knock it off, if necessary.
At 2:18 AM, egarber said…

so I sometimes get off-topic. I can knock it off, if necessary.

I was just kidding. For me, I enjoy the back and forth with you, even though -- actually maybe because -- we disagree on lots of things. So keep it coming.
At 10:16 AM, egarber said…

If you can't see the video for whatever reason, the interviewer notes that Obama supports the DC ban, thinks it's constitutional, with Obama nodding the whole time, and Obama doesn't say "hey chief, you got that wrong." Missed opportunity, or what?

Odd that you’d put this on equal footing with a specific statement Obama made in a debate way back, when he said he didn’t have an opinion, having not reviewed the case, etc. In a legal sense, doesn’t the specific always trump the general? And in this case, I’d say his interview comments don’t even constitute an answer to the question of his actual stand on the case. In conversation, people often nod along during a set-up, if he / she is focusing on a different question.

Except that it doesn't provide any guidance, and neither does Obama. Scalia says some restrictions are acceptable, but doesn't say which. Obama could have clarified -- can you limit magazine capacity? Is Chicago's ban constitutional? Can automatic weapons be banned? What is the appropriate level of scrutiny? All relevant questions for a man who wants to be our President, all unanswered.

Show me the last time a presidential candidate was grilled on the specifics within a case like you want – where he was basically asked to play the role of judge. Show me one instance when a presidential candidate was asked, "what should the scrutiny standard be in case type X?"

Hell, all W ever did was babble about “strict constructionism”, and he barely faced any kind of follow-up, even though at least one obvious question would have been: strict constructionists opposed Brown; was it wrongly decided? Why does Obama have to bear a unique burden? He’s already talked about such things in way more detail than we typically see.
At 11:41 AM, Sobek said…

"In conversation, people often nod along during a set-up, if he / she is focusing on a different question."

Eric, I understand that you want to abolish Roe v. Wade and institute a new regime whereby the fetus has full constitutional protections from the moment of conception and then execute the mother after the child is born, but you also say that you think the Constitution is designed to preserve individual liberty. How do you reconcile the two positions?

If you found yourself nodding along for any part of the preceding, then maybe your argument about Obama makes some sense.

His failure to correct the interviewer on such a key point -- especially in light of his failure to correct his staffer's inartfully expressed statement from seven months ago -- is highly convincing evidence of where he stands.

"In a legal sense, doesn’t the specific always trump the general?"

In a political sense, flatly contradictory positions are proof of flip-flopping and/or pandering.

"Show me the last time a presidential candidate was grilled on the specifics within a case like you want..."

I don't expect a detailed constitutional analysis, I want some indication of what he considers a reasonable restriction. He said the Court provided useful guidance; it did not. He took the time to type a meaningless few paragraphs on his web page (excuse me, I'm sure a staffer took the time, and said staffer will probably be repudiated and fired in the next few months), but didn't take an extra thirty seconds to explain what a reasonable restriction is. He needs to wait for a reporter to grill him on these things?

"Why does Obama have to bear a unique burden?"

In part because his supposed expertise in con law is a big part of what he calls a resume. He has no executive experience, extraodinarily little legislative experience (and what little there is, he has nothing to show for it), practically nothing to show for his time as a "community organizer," and nothing else but a long string of repudiated friends and staffers. What are we left with, if not his education?
At 2:44 PM, egarber said…

Eric, I understand that you want to abolish Roe v. Wade and institute a new regime whereby the fetus has full constitutional protections from the moment of conception and then execute the mother after the child is born, but you also say that you think the Constitution is designed to preserve individual liberty. How do you reconcile the two positions?

That's actually a pretty good hypo, but too over the top as a direct comparison. Still, your point is taken -- it would have been a lot more helpful if Barack had simply jumped in there to clarify matters (the way he did in the debate).

In the end though, notwithstanding the "inartful" explanations, I think Obama's general position has been consistent:

1. He believes in an individual right, which on its own is significant, since it distances him from pure gun ban types.

2. He chose to not specifically comment on the DC case because he wasn't sure -- given all the details -- how it should turn out (granting that he didn't handle it well in all appearances and coordination).

3. He accepts the court's ruling, because its rationale is basically in line with what he's been saying the whole time.

As to the rest, I think it's fair to say he should be held a bit higher because of his law background. But he has given a well-rounded answer (imo) -- saying that there are a few national laws he would support (banning assault weapons, keeping guns away from the mentally ill, etc.), but also stressing that many of the more nuanced lines will be defined at the state / local level. So if it's not in his presidential agenda to make guns an issue -- I really don't think it is for any Democrat now, especialy given that the individual right view is part of the party platform -- he really shouldn't comment on what state officials might do with their regulatory latitude. In fact, that's a nice injection of federalism into this whole thing.

BTW -- I apologize for the wingnut blog / fact checking remark. You were making a legitimate point.
At 3:31 PM, Sobek said…

"...he really shouldn't comment on what state officials might do with their regulatory latitude."

That's a perfectly fair point. If he could say it that expressly I would accept it at face value.

"I apologize for the wingnut blog / fact checking remark."

Absolutely no apology necessary.

You've caught me before making assertions based on right-wing blogs, without digging a bit deeper. The best example is the Black Panthers endorsement, which was posted on a discussion board on Obama's web page rather than by Obama or one of his staffers. When I'm wrong I prefer to be called on it so I don't make the same mistake.

As a practical matter, I don't have time to dig into every story in detail. I often don't even have time to read past headlines. Part of the utility of commenting here is that when I am wrong, I am far more likely to be corrected by alert liberals with an investment in defending their side of the story.
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Thursday, June 26, 2008

Lock and Load!

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