The Answer Is *NOT* Thug Tactics

[Guest dlstewart01]

Court of Appeals

On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal in a 2-1 decision. The Court of Appeals struck down provisions of the Firearms Control Regulations Act as unconstitutional. Judges Karen L. Henderson, Thomas B. Griffith and Laurence H. Silberman formed the Court of Appeals panel, with Senior Circuit Judge Silberman writing the court's opinion and Circuit Judge Henderson dissenting.

The court's opinion first addressed whether appellants have standing to sue for declaratory and injunctive relief in section II (slip op. at 5–12). The court concluded that of the six plaintiffs, only Heller — who applied for a handgun permit but was denied — had standing.

The court then held that the Second Amendment "protects an individual right to keep and bear arms", saying that the right was "premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)." They also noted that though the right to bear arms also helped preserve the citizen militia, "the activities [the Amendment] protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia." The court determined that handguns are "Arms" and concluded that thus they may not be banned by the District of Columbia; however, they said that Second Amendment rights are subject to reasonable restrictions.

The court also struck down the portion of the law that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The District argued that there is an implicit self-defense exception to these provisions, but the D.C. Circuit rejected this view, saying that the requirement amounted to a complete ban on functional firearms and prohibition on use for self-defense:[7]

“Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.”

[edit] Petition for rehearing

In April 2007, the District and Mayor Adrian Fenty petitioned for rehearing en banc, arguing that the ruling creates inter- and intra-jurisdictional conflict.[9] On May 8, the Court of Appeals for the D.C. Circuit denied the request to rehear the case, by a 6-4 vote.

[edit] Supreme Court

The defendants petitioned the United States Supreme Court to hear the case. The plaintiffs did not oppose but, in fact, welcomed the petition. The Supreme Court agreed to hear the case on November 20, 2007.[10] The court rephrased the question to be decided as follows:

“The petition for a writ of certiorari is granted limited to the following question: Whether the following provisions, D.C. Code §§ 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?”

This represented the first time since the 1939 case United States v. Miller that the Supreme Court had directly addressed the scope of the Second Amendment.[11]

[edit] Amicus curiae briefs

Because of the controversial nature of the case, it garnered much attention from many groups on both sides of the gun rights issue. Many of those groups filed amicus curiae (friend of the court) briefs, about 47 urging the court to affirm the case and about 20 to remand it.[12]

A majority of the members of Congress[13] signed the brief authored by Stephen P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress.[14] Vice President Dick Cheney joined in this brief, acting in his role as President of the United States Senate, and breaking with the George W. Bush administration's official position.[13] Then Republican candidate for President and Arizona Senator John McCain also signed the brief. Democratic candidate and Illinois Senator Barack Obama did not.[15]

A majority of the states signed the brief of Texas Attorney General Greg Abbott advising that the case be affirmed, while at the same time emphasizing that the states have a strong interest in maintaining each of the states' laws prohibiting and regulating firearms.[16][17][18] Law enforcement organizations, including the Fraternal Order of Police and the Southern States Police Benevolent Association, also filed a brief urging that the case be affirmed. [19]

A number of organizations signed friend of the court briefs advising that the case be remanded, including the United States Department of Justice[20] and Attorneys General of New York, Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico.[21] Additionally, friend of the court briefs to remand were filed by a spectrum of religious and anti-violence groups,[22] a number of cities and mayors,[23] and many police chiefs and law enforcement organizations.[24]

[edit] Oral arguments

Robert A. Levy (left) and Alan Gura, counsel for Heller.

The Supreme Court heard oral arguments in the case on March 18, 2008. Both the transcript[25] and the audio[26] of the argument have been released. Each side was initially allotted 30 minutes to argue its case, with U.S. Solicitor General Paul D. Clement allotted 15 minutes to present the federal government's views.[27] During the argument, however, extra time was extended to the parties, and the argument ran 23 minutes over the allotted time.[28]

Walter E. Dellinger of the law firm O'Melveny & Myers, also a professor at Duke University Law School and former Acting Solicitor General, argued the District's side before the Supreme Court. Dellinger was assisted by Thomas Goldstein of Akin Gump Strauss Hauer & Feld, Robert Long of Covington & Burling and D.C. Solicitor General Todd Kim. The law firms assisting the District worked pro bono.[29]

Alan Gura, of the D.C.-based law firm Gura & Possessky, was lead counsel for Heller, and argued on his behalf before the Supreme Court.[30] Robert Levy, a senior fellow at the Cato Institute, and Clark Neily, a senior attorney at the Institute for Justice, were his co-counsel.[31][32]

[edit] Decision

On June 26, 2008, by a 5 to 4 decision, the Supreme Court upheld the federal appeals court ruling, striking down the D.C. gun law. Justice Antonin Scalia, writing for the majority, stated, "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 ... We affirm the judgment of the Court of Appeals."[33] This ruling upholds the first federal appeals court ruling ever to void a law on Second Amendment grounds.[34]

The Court based its reasoning on the grounds:

• that the operative clause of the Second Amendment—"the right of the people to keep and bear Arms, shall not be infringed"—is controlling and refers to a pre-existing right of individuals to possess and carry personal weapons for self-defense and intrinsically for defense against tyranny, based on the bare meaning of the words, the usage of "the people" elsewhere in the Constitution, and historical materials on the clause's original public meaning;
  
• that the prefatory clause, which announces a purpose of a "well regulated Militia, being necessary to the security of a free State", comports with, but does not detract from, the meaning of the operative clause and refers to a well-trained citizen militia, which "comprised all males physically capable of acting in concert for the common defense", as being necessary to the security of a free polity;
  
• that historical materials support this interpretation, including "analogous arms-bearing rights in state constitutions" at the time, the drafting history of the Second Amendment, and interpretation of the Second Amendment "by scholars, courts, and legislators" through the late nineteenth century;
  
• that none of the Supreme Court's precedents forecloses the Court's interpretation, specifically United States v. Cruikshank (1875), Presser v. Illinois (1886), nor United States v. Miller (1939).
  

However, "[l]ike most rights, the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." The Court's opinion, although refraining from an exhaustive analysis of the full scope of the right, "should not 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."

Therefore, the District of Columbia's handgun ban is unconstitutional, as it "amounts to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense". Similarly, the requirement that any firearm in the home be disassembled or bound by a trigger lock is unconstitutional, as it "makes it impossible for citizens to use arms for the core lawful purpose of self-defense".

The opinion of the court, delivered by Justice Scalia, was joined by Chief Justice John G. Roberts, Jr. and by Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

[edit] Issues addressed by the majority

The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.

The Scalia majority invokes much historical material to support its finding that the right to keep and bear arms belongs to individuals; more precisely, Scalia asserts in the Court's opinion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.' United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings...."

With that finding as anchor, the Court ruled a total ban on operative handguns in the home is unconstitutional, as the ban runs afoul of both the self-defense purpose of the Second Amendment—a purpose not previously articulated by the Court—and the "in common use at the time" prong of the Miller decision: since handguns are in common use, their ownership is protected.

The Court applies as remedy that "[a]ssuming 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." The Court, additionally, hinted that other remedy might be available in the form of eliminating the license requirement for carry in the home, but that no such relief had been requested: "Respondent conceded at oral argument that he does not 'have a problem with . . . licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement."

In regard to the scope of the right, the Court wrote, in a obiter dictum, "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."[35]

The Court also added dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the "in common use at the time" prong of the Miller decision, which by itself protects handguns, over the first prong (protecting arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"), which may not by itself protect machine guns: "It may be objected that if weapons that are most useful in military service—M16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home."[36]

The Court did not address which level of judicial review should be used by lower courts in deciding future cases claiming infringement of the right to keep and bear arms: "ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field." The Court states, "If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect."[37] Also, regarding Justice Breyer's proposal of a "judge-empowering 'interest-balancing inquiry,'" the Court states, "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach."[38]

Also see....

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-290.pdf

Edited November 27, 2009 by dlstewart01

[Guest HexHead]

I guess you missed Heller.

You have a right to keep arms; you do not have a right to bear arms. The regulating of carrying was left up to state and local law. Regulating carry or use is state right; not an individual right.

Nope, didn't miss that. Heller affirmed the 2nd is an individual right, not a collective one. However, on the point of allowing possession it's scope was limited to D.C., since that was the case brought before them. They are currently working on a case that will affirm or deny whether the 2nd is incorporated to the States. That decision can change the landscape as we know it.

[DaveTN]

Nope, didn't miss that. Heller affirmed the 2nd is an individual right, not a collective one. However, on the point of allowing possession it's scope was limited to D.C., since that was the case brought before them. They are currently working on a case that will affirm or deny whether the 2nd is incorporated to the States. That decision can change the landscape as we know it.

The landscape isn’t going to change regardless of what the SCOTUS rules.

Whether or not you can strap on a gun and walk down the street is a state right. States like Illinois, California, New York and probably even Tennessee are not going to have the Feds drive handgun carry down their throats; it just isn’t going to happen. We already fought a war over that.

The SCOTUS has tried for years not hear these cases because they already know what will happen. If they rule the right to bear arms is an individual right; states will just refuse to comply. If they rule it is not a right they open the door for states like California to totally outlaw guns. Neither scenario is good.

The best they can hope for is to rule that you have a right to own guns, but you don’t have a right to carry them. That keeps the 2nd alive but also recognizes States Rights.

If you are referring to the Chicago (McDonald) case, I suspect they will address the city handgun ban and the 14th amendment question. I don’t think they will specifically address the individual right to bear arms.

But I don’t see anything changing. Maybe you would to elaborate on that.

[Guest HexHead]

The landscape isn’t going to change regardless of what the SCOTUS rules.

Whether or not you can strap on a gun and walk down the street is a state right. States like Illinois, California, New York and probably even Tennessee are not going to have the Feds drive handgun carry down their throats; it just isn’t going to happen. We already fought a war over that.

The SCOTUS has tried for years not hear these cases because they already know what will happen. If they rule the right to bear arms is an individual right; states will just refuse to comply. If they rule it is not a right they open the door for states like California to totally outlaw guns. Neither scenario is good.

The best they can hope for is to rule that you have a right to own guns, but you don’t have a right to carry them. That keeps the 2nd alive but also recognizes States Rights.

If you are referring to the Chicago (McDonald) case, I suspect they will address the city handgun ban and the 14th amendment question. I don’t think they will specifically address the individual right to bear arms.

But I don’t see anything changing. Maybe you would to elaborate on that.

I disagree. I think they took this case TO decide whether the 2nd Amendment, now that it's been decided it's an individual right, incorporates to the States. If they rule it does, it will open a floodgate of lawsuits against cities and states that prohibit gun ownership or possession. It won't have to force the states to do anything, the subsequent lawsuits will. It will just set a precedent and take down the barriers to those suits. I do agree however, it won't have much if any effect on carry laws.

[DaveTN]

I disagree. I think they took this case TO decide whether the 2nd Amendment, now that it's been decided it's an individual right, incorporates to the States. If they rule it does, it will open a floodgate of lawsuits against cities and states that prohibit gun ownership or possession. It won't have to force the states to do anything, the subsequent lawsuits will. It will just set a precedent and take down the barriers to those suits. I do agree however, it won't have much if any effect on carry laws.

I don’t understand. You are saying that you think the SCOTUS is going to tell the state of Illinois and all other states that do not allow citizens to carry they are violating of the 2nd amendment?

Why would they do that; it isn’t even a question in McDonald?

And if you think that is what they want to do, why didn’t they do it in Heller?

[Guest HexHead]

In Heller, incorporation wasn't the issue. In McDonald, it is.

[Oh Shoot]

Heller confirmed the individual right to own and carry a firearm in the federal enclave of Washington, D.C. ...

Not carry.

Carry still not legal in DC.

Wasn't, isn't, likely never will be.

Can't carry in any federal building in the entire US, either.

There's the real limit of your 2A rights from the government that is supposed to protect them.

- OS

Edited November 28, 2009 by OhShoot

[Oh Shoot]

Dupe, oops.

[Semiauto]

Not carry.

Carry still not legal in DC.

Wasn't, isn't, likely never will be.

Can't carry in any federal building in the entire US, either.

There's the real limit of your 2A rights from the government that is supposed to protect them.

- OS

Carry was addressed in the home, as it was illegal before Heller. I was referring to that.

[Guest db99wj]

Email from Rep Todd

Short and no details, but it sounds like they haven't even gotten the ruling in writing yet to figure out what the problems are. This was sent just before Thanksgiving and got it Saturday.

David we are working out details now and waiting on the written ruling. Thank you

[Guest HexHead]

Email from Rep Todd

Short and no details, but it sounds like they haven't even gotten the ruling in writing yet to figure out what the problems are. This was sent just before Thanksgiving and got it Saturday.

Maybe it's taking her this long just to figure out how to make her ruling appear cognizant and legal?

[Guest db99wj]

Maybe it's taking her this long just to figure out how to make her ruling appear cognizant and legal?

...and how her ruling could expose her as the idiot she is and that her career could suffer because of it for allowing personal conviction get in the way of unbiased legal opinion...

[mrbond]

I have my family with me...I want to be able to protect my family by carrying. How can I achieve that and patronize a place that serves beer or alcohol? I don't actively seek to boycott anyone but, it sure works out that way a lot. Not out of hatred for any business owner, just out of the reality of the situation.

Does that make me a thug?

A contingent of TGO members feels that a "scorched earth" policy of boycotting any restaurant that serves beer or alcohol is in order.

Edited December 1, 2009 by mrbond

[TGO David]

I have my family with me...I want to be able to protect my family by carrying. How can I achieve that and patronize a place that serves beer or alcohol? I don't actively seek to boycott anyone but, it sure works out that way a lot. Not out of hatred for any business owner, just out of the reality of the situation.

Does that make me a thug?

With that out of the way, your options are simple:

a.) Leave your firearm in the car

b.) Do not eat there

When choosing "B" you are not necessarily boycotting every restaurant that serves alcohol, you are simply choosing to exercise your right to choose whether being armed is more important than enjoying a meal at whichever restaurant is in question. Many of us have consciously chosen option "A" for years now, therefore this is just more of the same for us.

My problem with what was recommended is this:

Obviously if you follow the law, you weren't going to carry into a restaurant that serves alcohol anyway. You would have either disarmed or not eaten there. The recommendation by Hex Head was that we all forgo our ability to choose option "A" and just boycott all of these restaurants... period.

In other words, strong-arm the restauranteers who had nothing to do with the law being passed or repealed, and punish them for not going out of their way to shower the HCP holder with support. That's what I consider to be a thuggish tactic.

But you probably already knew that, right?

[mrbond]

Your wanting people to choose Option A IF they were going to anyway and not obey a blanket boycott suggestion. But you're ok if they choose Option B if they do so because they prefer to carry. Such a fine and nearly ridiculous distinction hardly justifies the use of terms like "thug". That's the type of overreaching and unjustified language I would expect from liberals when they use terms like "right wing extremist".

I prefer not to choose Option A because I like to carry. So I really am boycotting the restaurants that serve alcohol--not to hurt the restaurant, but so I can carry.

But if I were boycotting restaurant out of spite toward the law (or the legislature), then you would have a problem with that--that would be thuggish. You should choose your words better when slicing a distinction this thin. That's all I'm saying. Now if your real goal was to suck up to the media who you believe read this site, then well done.

With that out of the way, your options are simple:

a.) Leave your firearm in the car

b.) Do not eat there

When choosing "B" you are not necessarily boycotting every restaurant that serves alcohol, you are simply choosing to exercise your right to choose whether being armed is more important than enjoying a meal at whichever restaurant is in question. Many of us have consciously chosen option "A" for years now, therefore this is just more of the same for us.

My problem with what was recommended is this:

Obviously if you follow the law, you weren't going to carry into a restaurant that serves alcohol anyway. You would have either disarmed or not eaten there. The recommendation by Hex Head was that we all forgo our ability to choose option "A" and just boycott all of these restaurants... period.

In other words, strong-arm the restauranteers who had nothing to do with the law being passed or repealed, and punish them for not going out of their way to shower the HCP holder with support. That's what I consider to be a thuggish tactic.

But you probably already knew that, right?

[TGO David]

Now if your real goal was to suck up to the media who you believe read this site, then well done.

Probably not something you'd say to my face, so I'm not going to bother. Why are you supporting this site if you believe that's the way I conduct business?

[Guest SUNTZU]

[Fivestring63]

Guys, if you want to make the restaurant/"bar" owners pay, this is what I suggest.... Write EVERY SINGLE Rep/Senator who voted for the bill in the first place and suggest that they support a bill that removes the restrictions on EVERY place that serves alcohol. Then suggest to them that if a business owner complains to them about it, tell them that they have the right to post via TN code 39-17-1359 and that's EXACTLY what that part of the code is there for. That way it takes pressure off the the rep and puts it where it should be...on the blasted business owner who wants to restrict your rights. Also remind them that you vote, and that other gun owners vote, and we will support them in every way we can.

If you want to get the jerks back, help push forward a law that hits them harder than the law that they were against the first time. Payback is a *itch!

Matthew

+1000

That's exactly how I feel. Why do the owners get so mad about it when all they have to do is put the little sign up. I think they should allow carry everywhere and make them post if they don't want you to.

[TnEngineer]

I know what Chuck Heston would have said: "Raise absolute hell with them [leaders]".

You know what would have happened if we took the high road during the last big state income tax attempt? We would have had one. The jerks were going to do it. But instead, we citizens took to the streets, stormed the buildings and flat out told them, we were not going to have a state income tax.

And, we don't have one do we?

It is time for a litlle scorched earth and hurt feelings here. The liberal media has the camera, the micorphone, the newspaper, molds public opinion, controls the U.S. Congress, Whitehouse and pretty much, the SCOTUS. How in the world can you fight this?

If little Barry Hussien had taken "The High Road", he would not have become the POTUS now would he? Like said before, this country is on life-support, it is crumbling around you and you better be prepared for what is coming. It is not going to have anything to do with your concept of casting a ballot.

We're on our own, folks, the cavalry ain't coming.

Rant Mode OFF

Edited December 3, 2009 by TnEngineer
to add signature

[Guest HexHead]

With that out of the way, your options are simple:

a.) Leave your firearm in the car

b.) Do not eat there

You left out option c.)

Just sayin'.

[Guest HexHead]

+1000

That's exactly how I feel. Why do the owners get so mad about it when all they have to do is put the little sign up. I think they should allow carry everywhere and make them post if they don't want you to.

I don't think the bastards should be allowed to post. Period.

[Guest HexHead]

It is time for a litlle scorched earth and hurt feelings here. The liberal media has the camera, the micorphone, the newspaper, molds public opinion, controls the U.S. Congress, Whitehouse and pretty much, the SCOTUS. How in the world can you fight this?

Well, thankfully they don't really have the SCOTUS yet. You better hope Scalia or Thomas don't stroke out in the next few years.

[eapking]

Probably not something you'd say to my face, so I'm not going to bother. Why are you supporting this site if you believe that's the way I conduct business?

David, feel free to close this tired thread. All it's doing is dividing us.

[Fivestring63]

I don't think the bastards should be allowed to post. Period.

I have to disagree. It's their business. Just like it's their home. If they don't want us to carry there, fine. Put up the sign and we'll take our business elsewhere. Just don't make it a law where we can't carry there outright.

[Guest HexHead]

I have to disagree. It's their business. Just like it's their home. If they don't want us to carry there, fine. Put up the sign and we'll take our business elsewhere. Just don't make it a law where we can't carry there outright.

Using your logic, they could allow you to smoke if they wanted to. They could exclude blacks or gays if they wanted to. There's lots of stuff business owners don't have the right to do. Why should WE be the only ones that it's okay to single out?