Heller v. DC Analysis
Over at SCOTUSBlog there’s some interesting analysis on the prep work that will be important in Heller v. DC (formerly Parker v. DC) in the coming months. It also talks about new book, which basically argues the Supreme Court can’t essentially settle this issue:
Despite one possible implication of its title, this is not an argument that the Court should decline to rule on the Heller case and the scope of the Second Amendment. But it is a useful reminder that the rift in American public culture over gun rights vs. gun control is so deep that it would not be resolved, no matter how the Court were to rule, by a new definition of constitutional meaning. .The reason, simply stated, is that the Second Amendment is a ground that both sides want to conquer in the culture wars, and the battle has much more to do, according to Tushnet, with “how we understand ourselves as Americans.” There will be no answer to that ultimate question, he notes, “because we are always trying to figure out who we are, and revising our self-understanding.” So, he suggests, “the battle over the Second Amendment will continue.”
Read the whole thing. I agree it won’t end, and never expected Heller to accomplish that. I’m not sure these are matters that should concern The Court, however. What should be before The Court is whether the Second Amendment was intended to protect an individual right, and does the DC gun prohibition violate that right. Whether they answer yes or no, we will be battling the anti-gun folks for years to come. A yes vote may put us on much better ground to fight that battle, but the gun control movement won’t go away because the Supreme Court hands us a win. And we certainly won’t go away if it hands us a defeat.
August 10th, 2007 at 12:15 pm
The case should be referred to as DC v Heller.
All USSC case names are styled Petitioner v. Respondent, regardless of who initiated the suit in the trial court. The losing party in the lower court is called the petitioner, and the party that prevailed is called the respondent.
DC lost so they are the petitioner to the USSC and Heller et all are the respondent.
August 10th, 2007 at 12:38 pm
Thanks for the clarification Magnus.
August 11th, 2007 at 2:02 am
What the Heller happened to Parker? Last time I ever heard of a case name changing was when we switched out Attorney Generals (i.e Raich)
August 11th, 2007 at 10:45 pm
What the Heller happened to Parker?
The original case was Parker, et al vs. DC. Heller was one of the et al.
The DC Circuit has some very strict standing rules (partly because anyone can sue the Federal Govt in the DC Circuit, so their rules on proving an injury are tougher otherwise they would be swamped).
In the Appeals Court’s decision, Heller was the only one of the Et Al, who actually prevailed across the board, because he was the only one who DC had actually gone so far as to issue a rejection to his application for a gun license.
Thus, in the Supreme Court, DC is appealing against Heller’s win, not Parker, because Shelly Parker did not pass the full standing test, that Heller did.
August 12th, 2007 at 1:35 am
Thanks Gildas.
Standing is utter crap. It’s out-fucking-rageous that someone can’t challenge a grievous violation of a civil right without the proper song and dance.
While I’m at it let me express my utter disgust for Voir dire, Senior status quasi-retirement for judges, legalese, artificially low limits for small claims courts, class action lawsuits where the victims get coupons for more crap from the same manufacture while the lawyers get millions, and the lack of fully informed juries.
Oh, and if we don’t know where a judge stands, based on previous rulings, on basic civil rights that are spelled out plainly in the Constitution, that judge is in no way qualified to be a supreme.
August 12th, 2007 at 6:09 pm
“Outfuckingrageous” indeed. If there’s a genuine violation of a civil right, then someone will have been affected by it and will therefore have standing to assert it. In this case, that would be Mr. Heller, and the case goes forward without a hitch. So where’s the beef?
As to your general contention that the standing doctrine is “utter crap,” I trust that you are simply a naive, blathering idiot with no legal training, and not a trained lawyer who is completely insane. Most normal people think American society is too litigious now. Do you really think it would improve things if everyone were allowed to sue everyone else over every violation of any law (real or perceived – we won’t know that until the trial is over), without having to go through the “song and dance” of showing that the supposed violation affected them? How would you like it if every angry codger on the road, rather than privately enforcing the speed limit by driving slow in the fast lane, could simply jot down your license plate number and sue you for speeding? If you really want to live in a world like that, then by all means, rail to your heart’s content against the evils of the standing doctrine. But if you don’t, don’t.
As for voir dire, what do you propose instead? Abolishing juries outright, or assigning all prospective jurors by lottery no matter who they are, whether they can read or write, whether they are smart enough to have graduated from Kindergarten, or what obvious biases they may have (if one party just happens to get three cousins on the jury, “oh well”)? That last option strikes me as a harebrained idea, but I might could live with it if we simultaneously abolished the requirement that jury verdicts, unlike almost everything else people vote on, be unanimous. If 7 out of 12 randomly chosen jurors say you’re guilty, while 2 say you can’t possibly be guilty because you’re white, another says you’re innocent because you’re really not white, but black, and 2 more say you’re not guilty by reason of jury nullification, then you’re guilty. Work for you? I didn’t think so.
Last and least, it’s all well and good to bleat about the joys of “fully informed” juries, but I have a sneaking suspicion that full information isn’t really what you’re interested in. How would you feel about a system in which juries are “fully informed” of the fact that it is their duty to try the facts of the case and not the law, and that anything else is misconduct (not to mention perjury, if they lied to get onto the jury in the first place)? Or perhaps you also want them to be “fully informed” of the fact that such misconduct is almost never prosecuted, meaning that as a practical matter they do have every ability, albeit no right, to judge the law (or the suit the prosecuting attorney is wearing, or his regional accent, or the races of the parties, or whatever other irrelevant crap they may feel like judging today) as well as the facts, and that the only consequence is having to live with themselves after making a mockery of our legal system? Should they also be fully informed of the overall track record of jury nullifications, which easily yields 100 O.J.s for every John Peter Zenger?
Or, as I suspect, was your bleating about “fully” informed juries a crock of shit, and what you really want are partially informed juries pumped up with propaganda about what a great idea it is for 12 local yokels to ignore the law and render verdicts according to whatever they think is “fair?”
August 12th, 2007 at 6:26 pm
Standing is important because the constitution vests only the judicial power in the courts. The courts are not vested with any other power outside of this. From the point of view of division of power, the courts must act only within the judicial power. That’s why they can’t hear a case unless you have standing to sue. Otherwise, you’re asking the courts to take part in legislation from the bench, which I think most people here would agree is a bad idea.
August 12th, 2007 at 6:27 pm
Gildas – I think Parker also moved out of The District, if I recall.
August 16th, 2007 at 9:55 am
That’s pretty easy. Hollis “Wayne” Fincher. Ignore for a moment his naively, is there a proper way to qualify for standing to challenge the laws he wished to challenge without, you know, committing a felony first?
Want a second one? Explain to me how I, as a Maryland resident, can challenge DC’s prohibition on the possession of empty cartridge brass without getting myself arrested and charged with the law in question?
Again, this is a “genuine violation of a civil right”, at least as far as I’m concerned.
I’m not a part of the lawyer’s guild. But go easy on the personal attacks, you’ll hurt my little feelings.
OK, I’ve got to think up another totally absurd counter-argument as “balance” for this nonsense.
I got it! What if somehow a law was passed to inflict Larry Niven-style mandatory organ donation (with the standard involuntary death and dismemberment upon conviction) for those people convicted of jaywalking? Wouldn’t you wish to challenge such an absurdity without finding a “test case” first?
The preceding example is not as ridiculous as one might think. Outrages laws get passed all the time. What about that “gun free school zone” law that got struck down? Sure as shit those congress-critters past nearly the exact same law again faster than you can say “shall not be infringed”. That 2nd law to this day is hanging over our heads and no one can do damn thing about it through the court system until someone in the executive branch decides to allow someone to be a test case. Let’s hope that the future challenger is well funded and has competent legal counsel.
August 16th, 2007 at 10:08 am
That’s pretty easy. Hollis “Wayne” Fincher. Ignore for a moment his naively, is there a proper way to qualify for standing to challenge the laws he wished to challenge without, you know, committing a felony first?
The issue with Fincher wasn’t standing. It was the fact that the 8th circuit is a collective rights circuit. There was case law saying he could not assert the second amendment as a defense to what he was charged with. If the 8th circuit had been an individual rights circuit, he would definitely not have any problems with standing, as he was being charged by the government with a crime.
August 16th, 2007 at 10:59 am
Shit, and look how we let all those people vote and whatnot. I guess that explains why we have John Edwards and his two fucking Americas class warfare campaign.
Seriously, I don’t have a problem booting off the cousins and whatnot, but with university level courses being taught on jury selection, and with hearing the idea that jury selection is what makes or breaks a case, I’m just a little suspicious that people are getting a fair trial.
Look, it’s OK to get someone on the jury of a marijuana possession case who smoked a little dope once and didn’t murder his whole family as a result. I’ll remind you that jury nullification was a factor that helped ended Prohibition, and in that case there was a proper Amendment specifically authorizing congress the power to keep a substance out of all of our hands, unlike our current war on some drugs.
You know, along with the idea that Judges should try to stamp out the thought crime of jury nullification is the idea that a hung jury is something that needs to go down the memory hole too. The idea of a hung jury, just like jury nullification, is an important check and balance. Although it may seem that a state’s attorney has unlimited time and money, it actually looks bad if there’s three prosecutions that all end up being hung. The AG also has but a limited term in office.
Let me sneak a bit in about my last term of jury duty. I and about 500 people were ordered to suspend our lives and report to court and sit around all day at sub-minimum wages, under force of law. It’s noteworthy that I could not even tell my boss the day before, as I did not know for sure I’d be called in until after 5 pm. Then, about 50 of us were randomly selected to endure Voir Dire. As we were waiting around, the powers that be decided to reach a plea agreement. So we turned our little tokens back in and went back to waiting. They cut us loose around 2 pm and we got mailed a check for 15 fucking FRN after about 60 days. $2.50 per hour, plus the mandatory security screening (you had to be there, unlike say choosing to fly on a plane, so you had to consent to a search), all because a bunch of fucking lawyers felt like using us as pawns.
I’m all for fair and speedy trials, but is is too much to ask to give perspective juries 24 fucking hours notice? Do you have to call 500 people in when a sixth of that would do? How about laying out some real cash for a change while you are at it? And yes, I’d say a random sample of about 20 people that have been minimally screened. Let the lawyers have a few vetos, but strictly limit the depth of questions allowed, and pare it down to about 14-15.
The last thing I would want the state to do is to impanel a bunch of meat-bots that are pre-programed to render the “proper” verdict. That’s not justice.
August 16th, 2007 at 11:04 am
Sebastian Says:
You totally missed the point. I’m saying he should have been able to challenge the statute without getting arrested for a felony first. He got arrested because that’s the only way to get standing. There’s something wrong with that.
August 16th, 2007 at 11:06 am
Best jury nullification quote ever:
Mark Jones Says:
August 16th, 2007 at 11:31 am
I see your point now, but the constitution doesn’t establish the courts to do that kind of thing. The weaker you make the standing doctrine, the more the courts are usurping the power that’s vested in the other branches of government. Heller got standing because he applied for a permit from the District of Columbia and was denied.
I could probably be persuaded to agree that there should be a body that can do de facto review of acts of Congress for constitutionality, but to create such a body would require a constitutional amendment to vest it with that kind of power. The courts simply don’t have it under the constitution as it stands now.
August 16th, 2007 at 12:01 pm
Well the constitution doesn’t grant the courts the power to declare laws unconstitutional in the first place. They gave themselves that power in Marbury v. Madison.
Clearly we need a “housekeeping” amendment to set the number of supremes and to grant the judicial branch limited powers, and to compel them to serve or resign or something.
It really really bothers me that we can burn a flag on Friday and get a supreme decision next Tuesday (exaggeration) in United States v. Eichman, yet for decades we’ve been denied clarification of what the heck the Second means.
But maybe I’m asking for way too much, seeing as US v. Eichman was an unbelievably close 5-4
August 16th, 2007 at 1:28 pm
I agree that it doesn’t really spell it out, but it’s not an unreasonable interpretation that the ability to review laws for constitutionality is part of the court’s judicial powers.
August 16th, 2007 at 9:03 pm
By finding a good reason why you’ve been harmed in some significant way by being denied your God-given right to transport empty cartridges to DC. If you can’t do that, you’re a nuisance plaintiff, not a person with a legitimate beef.
Now it’s my turn. You tell me why you, as a nonresident of DC, should be allowed to bring such a case, despite having no real stake in the outcome. Before you answer that, consider that any rule allowing you to bring a serious challenge will also allow anti-gun shills to bring the same suit, deliberately argue it badly, lose the case accidentally-on-purpose, and leave the rest of us with a shitty precedent.
I did. There were two possibilities, and I charitably assumed the better of the two – and was right. Now spare me the guild trip. I deliberately didn’t ask if you were a member of any state bar, only whether you had any legal training. I don’t care if you have your union card, only whether or not you know WTF you are talking about. Which, as I correctly guessed, you don’t.
I’m not wild about the fact that idiots vote, but at least their votes get canceled out by reasonable ones. If “hung electorates” were enough to halt an election, democracy as an institution could not survive.
I never disputed that jury nullification sometimes delivers good results. So does shooting people at random in public areas. Most of your victims will be innocent, but hey, do it often enough and you’re bound to take down a really bad guy every now and then.
On what planet is jury misconduct a “thought crime?” Does perjury qualify as a “thought” crime, too? It’s not misconduct to not like a law. It is misconduct to refuse to follow it, whether you’re a juror voting to acquit an obviously guilty defendant for conduct you think should be legal, or a cop arresting people for clearly legal conduct you think ought to be illegal. Either we’re a nation of laws or we’re not. Personally, I favor the rule of law, warts and all. But don’t mind me, I’m just a shill for my guild, dontcha know.