Talk:District of Columbia v. Heller/Archive 1

Archive 1

Archive 2

Question about "enrolled"

The court defines a militia relatively broadly to include every person "enrolled" with his local militia officer. The court analogizes enrollment to signing up with federal Selective Service today (although elsewhere the court implicitly deprecates that analogy by stating that the National Guard is not today's version of the militia -- and since Selective Service links to the regular military, it seems even less like "enrollment" than the National Guard seems like a "militia," although the court did not examine this). After reaching its definition of "militia," the court makes the conclusory statement that an individual's right is not "contingent upon his or her continued or intermittent enrollment in the militia." Why, if it is so important to find an accurate definition of "militia," does the court then just skip over the application of its definition to the parties? It took a lot of work to get "militia" down to (basically) "every enrolled 18-year old." Why then say that "militia" is "not contingent on" enrollment?

Specifically defining the Second Amendment to require "enrollment" and then using the Amendment to protect the unenrolled plaintiffs seems like judicial activism to me. Am I completely misreading this? Even if Federal Selective Service were to count as "enrollment," some of the plaintiffs in this case are women who are probably not registered with the Selective Service. And even if the court's conclusory statement is allowed to pass, it does not excuse everyone who's never enrolled in the militia, it only excuses those with "continued or intermittent" enrollment -- which still requires each plaintiff to have enrolled at one time, even if he is (a) not enrolled today or (b) has been enrolled intermittently since then. If it's so important, why not ask whether each of the plaintiffs ever enrolled in the militia? --Yawnz1 15:11, 22 March 2007 (UTC)

My impression - the court only says that the first two Militia Acts defined the militia as consisting of persons enrolled with a local militia officer. It did not state that "enrollment" was a necessary part of the definition of militia, and in fact went on to state that other statutes can and have (for example, current federal law) defined the militia as consisting of a significant "unorganized" percentage of the people. I think it focused on "enrollment" early on to counter the idea that being a member of the militia was a very formal and organized thing, similar to modern reserve or National Guard duty, by pointing out that in the first federal militia acts all it meant was having your name on a list of local adult males. PubliusFL 15:54, 22 March 2007 (UTC)

Thank you. That sounds right. Although the court stated that "Miller defines the militia as having only two primary characteristics: It was all free, white, able-bodied men of a certain age who had given their names to the local militia officers as eligible for militia service," the court does not apply that definition to this case but rather uses it to make "[t]he crucial point . . . that the existence of the militia preceded its organization by Congress, and it preceded the implementation of Congress’s organizing plan by the states."

But then the court quotes with approval the District's law, which requires enrollment and relegates the unorganized militia to drunkards etc., according to the court. Even ignoring the whole "well-regulated" discussion (and the fact that DC is not a "State"), wouldn't the court have to apply the law it cited, and find that the plaintiff-appellants were either enrolled in the organized militia or drunkards in the unorganized militia? That law, after all (unlike the court's historical analysis) is actually binding on the court, unless it finds that it, too, is unconstitutional.

I think you're right that the court found that the parties (as are all able-bodied people etc.) are members of the unorganized militia, and that its holding depended on finding that such a militia still exists. I wonder why the court didn't say it clearly.

--Yawnz1 16:58, 22 March 2007 (UTC)

Isn't the thrust of the court decision that the Second Amendment protects a right of 'self defense', expanding (adding to) Miller defining the right as 'militia' based? I thought the idea interesting from Prof. Hardaway that this 'self defense right' logic fits more naturally into a Ninth Amendment based argument than a 2A based argument as they did in Parker. I find it interesting that the Parker decision really neglects the 'right of self defense' being protected by the Ninth Amendment line of thought. SaltyBoatr 15:46, 23 April 2007 (UTC)

Elaine McArdle

The summary in the wiki article ("the case may have been crafted with the help of NRA lawyers") misstates what Mrs. McArdle wrote in her HLB article ("the NRA .. filed an amicus brief in the case"). Any inference that the NRA helped craft the case is not supported by this citation. - Hoplon 20:05, 12 July 2007 (UTC)

McArdle wrote: "If Parker is the long-awaited 'clean' case, one reason may be that proponents of the individual-rights view of the Second Amendment—including the National Rifle Association, which filed an amicus brief in the case—have learned from earlier defeats, and crafted strategies to maximize the chances of Supreme Court review." Certainly she says that Parker "may be" the result of strategies crafted by proponents of the individual rights view, and that the NRA is a supporter of the individual rights view. She doesn't clearly say that the NRA is among the proponents who crafted the strategy behind this particular case, and the explicit mention of the amicus brief suggests that they were not directly involved. Plus we have more explicit evidence (from Levy) that the NRA was not directly involved with the plaintiffs in Parker. Previously I limited myself to removing a claim that the case was "financed" with the help of NRA lawyers, since McArdle obviously says nothing at all about financing. But I agree with you that even the remainder of the sentence that was in the article can be misleading. PubliusFL 20:44, 12 July 2007 (UTC)

The recent edit that rephrased the statement didn't really address the issue. The wiki-article would still imply that the NRA "helped" craft this case, while that isn't directly stated in the McArdle article. If it helps, I would be happy to try to contact her directly to ask what she meant. - Hoplon 00:19, 13 July 2007 (UTC)

I am curious to learn directly what she meant, though that gets into disallowed 'original research'.

The Harvard Law Bulletin article uses the words "one reason may be" and my edit in this article mirrors these words closely and accurately. Explain again what is wrong with using the words 'may be'? The HLB is a credible source. Therefore the edit in this article is justified. SaltyBoatr 15:50, 13 July 2007 (UTC)

I did send the question to an email address I found for her. I don't know if it is a correct address or if I will get a response, but if I do I will post it here. Asking the author of an article if we are interpreting what she said correctly isn't OR, but that whole point is moot for now unless she responds. I will say that the last edit you made (that reduced the blanking) addresses my concern. - Hoplon 17:07, 13 July 2007 (UTC)

Follow-up to above - As of today I have received no response to the email I sent. - Hoplon 19:28, 7 August 2007 (UTC)

I don't see a problem with the current version either, although I confess that I don't really see the point about speculating whether individual-right proponents "may have been" involved in crafting the case when the article states that one the plaintiffs' attorneys is a senior fellow with the Cato Institute. It seems to me that they were quite open about it. PubliusFL 17:16, 13 July 2007 (UTC)

To me, the paragraph seems rather pointless, but I grant that I do not know the motives that put that text there in the first place. If the intent is to discuss the involvement (or lack thereof) of the NRA in the Parker case, perhaps that should be a subsection by itself. It really seems to add nothing to the 'commentary' subsection. - Hoplon 17:38, 13 July 2007 (UTC)

Shelly Parker who?

It would be nice if this article actually said who the petitioner is and why she brought the case. Raul654 17:27, 13 November 2007 (UTC)

---

This article [Parker v. District of Columbia] wasn't properly moved to District of Columbia v. Heller; as a result, the edit history and this Talk page were left behind. 172.192.197.58 (talk) 22:53, 24 November 2007 (UTC)

Fixed. —wwoods (talk) 22:16, 25 November 2007 (UTC)

---

District of Columbia v. Heller

Just an FYI, the petition for extension of time was filed under District of Columbia v. Heller, not as Parker v. District of Columbia. If cert is granted, it may make sense to move this article to a new name. - Hoplon 19:33, 7 August 2007 (UTC)

To handle this for now, I've added mention that this is pending appeal as District of Columbia v. Heller and created a redirect there back to this article. - Hoplon 21:18, 17 August 2007 (UTC)

Another note on this for anybody who is keeping track. It is reported that Parker and the other plaintiffs who were denied standing are expected to cross-appeal to SCOTUS to argue they should have standing. Depending on how that goes, it could impact whether this case is ultimately cited as "Parker" or "Heller". - Hoplon 19:48, 5 September 2007 (UTC)

This makes everything very confusing. The Second Ammendment article mentions DC v Heller in the 3rd paragraph, but the reference link still uses Parker v DC. So is this article about the case cited on the sidebar (Shelly Parker, et al. v. District of Columbia and Adrian M. Fenty, Decided March 9, 2007) or is it about the certiorari? The name should probably reflect the case itself. --Sln3412 (talk) 15:00, 12 March 2008 (UTC)

"unprecedented"

the wapo article says "MAY BE unprecedented", not "rare", not "unprecedented". please stop mischaracterizing the source material. Anastrophe (talk) 21:01, 26 February 2008 (UTC)

'Rare or unprecedented' is closely synonymous, though clumsy, with the phrase 'may be unprecedented', but I prefer the style your improved recent wording to my clumsy wording. Good writing. SaltyBoatr (talk) 21:11, 26 February 2008 (UTC)

Prior Supreme Court Discussion of the Second Amendment section doesn't really belong here

I see very little, actually zero, connection between the section Prior Supreme Court Discussion of the Second Amendment and the topic of this article. Let's move it elsewhere, or delete it. SaltyBoatr (talk) 02:24, 7 March 2008 (UTC)

I reverted Anastrophe's edit so we could discuss this first. This is actually a subsection of the section Supreme Court Review, and thus seems germane to the article to me. I would be open to moving it elsewhere if there is some other place that is clearly more appropriate.kevinp2 (talk) 14:37, 7 March 2008 (UTC)

I just hid that section pending resolution of this discussion. This seems like a far stretch of association. That section is entirely based on a 1999 book by David Kopel. How can a 1999 book presage a 2008 court case? On its face, this appears to tread deeply into WP:NOR water. Even if the article should cover prior Supreme Court decisions, looking to a 1999 book to determine which decisions is obviously original research. I could accept it if you find a modern (2008) reliable and neutral source that specifically mentions Heller. SaltyBoatr (talk) 16:28, 7 March 2008 (UTC)

I am not sure if I understand your argument fully. I certainly agree that the degree of association and its relationship to this article is up for debate. However, I am not sure why Kopel's 1999 law review article (not book) cannot describe the current state of Supreme Court dicta on the subject. If the Supreme Court has not issued any dicta on the subject since 1999 (as I believe it hasn't), then this would be the definitive review on the subject, yes? Also, Kopel is a reliable source especially when published in a law review article. There is no requirement that he be a "neutral" source - Wikipedia is full of cites from partisan sources that can still be used in a reliable way.

I would like to propose a resolution like this:

• Make the subsection much shorter.
• Have a Main Article link to Second Amendment
• Keep the current first paragraph. It can be rephrased or paraphrased as necessary.
• Delete the rest of the subsection from and including "A few examples"

What do you think?kevinp2 (talk) 17:26, 7 March 2008 (UTC)

I have just joined the discussion on this, but I have no clue why there are random quotes from other cases stuck in the middle of this article with no explanation whatsoever. I think they should be pulled. If people want to research cases on the second amendment, that is fine, but it shouldn't all be included in this article. Harvardgirl33 (talk) 23:38, 8 March 2008 (UTC)

I agree, and just took them out. SaltyBoatr (talk) 01:44, 9 March 2008 (UTC)

You write: "the current state of Supreme Court dicta on the subject". What is the subject?

I argue that the true subject of this article is actually rather the Heller court case. How is a 1999 book on topic for the actual subject?

Regarding Kopel, I grant he seems to meet reliable sourcing guidelines here, but the partisan nature of that source does tip the POV 'undue weight' balance point of the article. SaltyBoatr (talk) 18:43, 7 March 2008 (UTC)

Functional Firearms Ban?

"The only dispute is whether D.C. Code section 7-2507.02 'effects functional disarmament.'" This is a quote from Heller's Brief. Contrary to what kevinp2 keeps posting on any possible entry related to this case, it is NOT a given that D.C.'s laws are a functional firearms ban. D.C's and Heller's brief both quibble over whether there is a self defense exception to certain provisions, but it is a misrepresentation to say that D.C. argues there is an exception to the ban on functional firearms because D.C. does not concede that it is a ban on functional firearms.Harvardgirl33 (talk) 13:47, 12 March 2008 (UTC)

I am not quoting from Heller's brief. I am quoting from the Circuit Court opinion (please read the inline ref), which is the definitive ruling on the subject as of today. Specifically:

“ He simply contends that he is entitled to the possession of a "functional" firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted

with a self-defense justification. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. 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.

”

As I posted on the Talk:Walter E. Dellinger III page, D.C. has had this law on the books for 25 years and has not clarified that there exists any self-defense exception, either implicitly or explicitly. It doesn't get to whitewash this situation now, sorry. The Circuit Court found that this is a ban on the use of functional firearms for self-defense which is the definitive statement on the issue as of today. Attorneys for the respondent argue the same way. It is acceptable to me to state that DC is arguing this way, provided that we provide the full context including the fact that its argument was rejected. kevinp2 (talk) 13:52, 12 March 2008 (UTC)

I was not saying you were quoting from Heller's brief -- I WAS QUOTING FROM HELLER'S BRIEF! He acknowledges that there is a dispute as to whether there's a functional firearms ban. And, no, the D.C. circuit opinion is NOT the definitive statement on this right now, because the law hasn't been struck down - it is still in effect. It doesn't matter to this case whether or not D.C. has clarified that there is a self defense exception. That may be crappy that they haven't done that, but it doesn't mean that there is not one or that they can't argue it now. That may be a reason that SCOTUS will not accept that argument, but for our purposes here, it is misleading to say that there is a functional firearms ban when that is exactly what is up for debate. It is misleading to say that D.C. is arguing an exception to the functional firearms ban, because D.C. argues there is NOT a functional firearms ban. There is an exception to the storage provisions. Harvardgirl33 (talk) 13:59, 12 March 2008 (UTC)

I agree with Harvardgirl33. The question is whether there is a functional firearms ban, and the Supreme Court will decide that. Although, I have no problem stating that the Court of Appeals found that it was a functional firearms ban.Ben216 (talk) 14:27, 12 March 2008 (UTC)

The current state of the lead is acceptable to me:

“ The law also requires that all firearms including rifles and shotguns be kept "unloaded, disassembled, or bound by a trigger lock"[1]. The District argues that there is an implicit self-defense exception to the storage 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.[2] ”

Since this is the talk page, I will also assert that the District is being less than honest. It has previously prosecuted persons (see pages 22-23)and denied that there is a self-defense exception to a possession charge. The Circuit Court didn't buy its arguments for good reason.

Also, while the District calls these provisions "Safe Storage", they are much broader than that. Storage implies the keeping of something for future or later use, such as keeping a firearm in the house while you are outside the house. The law as written is broader and applies to the possession of firearms regardless of timeframe. kevinp2 (talk) 17:44, 12 March 2008 (UTC)

More background herekevinp2 (talk) 17:51, 12 March 2008 (UTC)

I rearranged some sentences on this topic today. Incidentally, the District does not call these provisions "Safe Storage". They are in TITLE 7. HUMAN HEALTH CARE AND SAFETY. / SUBTITLE J. PUBLIC SAFETY. / CHAPTER 25. FIREARMS CONTROL. / UNIT A. FIREARMS CONTROL REGULATIONS. / SUBCHAPTER VII. MISCELLANEOUS PROVISIONS. Unfortunately, I cannot link directly to the section. Here is the WestLaw link.kevinp2 (talk) 03:29, 9 April 2008 (UTC)

Reorganizing the lede

Does anyone else think that the lede is too long? I think maybe the first paragraph, along with the info that the Court has taken the case, would suffice. Then we could add a section for the factual background, and then (maybe a separate section for) procedural history. Does anyone object? Harvardgirl33 (talk) 00:27, 14 March 2008 (UTC)

i think the second paragraph could be trimmed down, but that's about it. the lede summarizes the issues pretty well overall. Anastrophe (talk) 00:41, 14 March 2008 (UTC)

If no one else thinks it's an issue, I'm fine with leaving it alone.24.41.91.83 (talk) 01:25, 14 March 2008 (UTC)

fyi, it's generally considered a bad idea to change other people's comments on the talk page. Anastrophe (talk) 01:32, 14 March 2008 (UTC)

I actually forgot to sign in when I made the last comment, so it was actually me changing my own comment. Harvardgirl33 (talk) 14:59, 14 March 2008 (UTC)

expansive vs limited

editor saltyboatr claims that those who have submitted FOTC briefs in support of heller are looking for an "expansive" reading of the right codified in the second amendment.

from the body of the section:

A majority of the members of Congress[19] have signed the friend of the court brief authored by Stephan P. Halbrook advising that the case be affirmed overturning the ban on handguns not otherwise restricted by Congress.

emphasis mine.

this affirms that the reading sought is limited, not expansive.

A majority of the states have 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.

emphasis mine.

this also affirms that the reading sought is limited, not expansive. claiming the reading sought is expansive appears to be WP:OR/WP:SYN.

Anastrophe (talk) 18:34, 17 March 2008 (UTC)

As it stands now, the sentence in the article makes no sense (both sides seem to agree it should be just like the right of free speech). Is it really not neutral to say that Heller's amici argue for an expansive view of gun rights (meaning not just militia related) and DC's amici want a limited view? The comparison to free speech just doesn't seem to add anything since both sides are claiming it. Perhaps it would be more neutral to say that Heller's amici seek a *more* expansive view (than DC's amici)? Harvardgirl33 (talk) 20:50, 17 March 2008 (UTC)

perhaps the editorializing that opens the paragraph should be removed entirely. Anastrophe (talk) 20:55, 17 March 2008 (UTC)

I agree with Anastrophe. It doesn't add much to say that the amici generally agree with the parties. Harvardgirl33 (talk) 20:58, 17 March 2008 (UTC)

Yeah, I agree that this sentence is troublesome. Perhaps because it is hard to summarize 69 briefs into one sentence. I don't see a clear dichotomy between the sides on the issue of 'similar to free speech' or not, and would prefer to drop 'free speech' from the sentence (both sides). After reading all the major briefs, I see that the distinction between sides has more to due with level of judicial review than whether or not it is similar to the first amendment. In other words, 'strict scrutiny' or not. The NY Times has an article describing this thought today, so as to show this is not my WP:OR. I think it is extremely important to make clear that none of the sides are advocating for an unlimited right, like with Bliss v. Commonwealth, and as is advocated by the modern militia movement. SaltyBoatr (talk) 21:00, 17 March 2008 (UTC)

i wasn't aware there still is a 'modern militia movement', but i digress. reading the DOJ's brief, my own opinion is that their claim that prohibition of weapons to law-abiding, mentally-sound adults is conterminous to restrictions on illegal speech, is falacious. but i digress yet again. Anastrophe (talk) 21:05, 17 March 2008 (UTC)

It is inappropriate to conduct OR and summarize the positions of so many amici. If a summary can be quoted from a secondary source, OK. But, reviewing the original briefs and attempting to interpret them is definitely OR. Have removed OR that is uncited. Yaf (talk) 21:29, 17 March 2008 (UTC)

infobox updates?

it seems that the infobox is outdated. if i'm not mistaken this article was originally created under the 'parker' aegis, but was moved after it became dc v heller. but the infobox states the case was argued and decided already. i've no skills at properly updating such an infobox, since i'm not intimately familiar with the timeline of the precedent case, so i'm just tossing this out there. Anastrophe (talk) 16:02, 19 March 2008 (UTC)

so....am i wrong about the infobox? if so no problem, but i'm just wondering. Anastrophe (talk) 17:30, 21 March 2008 (UTC)

I don't think you're wrong, but I am not sure I know how to do it. I can take a crack at it, though. Harvardgirl33 (talk) 02:38, 25 March 2008 (UTC)

Okay, I have updated the infobox, but wasn't sure exactly how much to leave up since we don't know what will really end up there. "Laws struck down sub. nom Parker" is obviously bad bluebooking, but I wasn't sure what introductory phrase should go there. And I left the D.C. Cir's info in the holding, just because I didn't have anything to replace it with, although I suppose one could replace it temporarily with just the certified question presented. I was just guessing on most of this, so others should please feel free to correct/add anything. Harvardgirl33 (talk) 03:10, 25 March 2008 (UTC)

Recording - RM file

I actually can't get that link at the bottom to work, either. Does it work on other people's machines? I do have the rm plugin. Harvardgirl33 (talk) 02:08, 27 March 2008 (UTC)

it works fine for me in both IE and firefox. Anastrophe (talk) 02:33, 27 March 2008 (UTC)

I have added, to the "External links" section, a link to an MP3 recording of the oral arguments. No plugin should be needed. --SMP0328. (talk) 00:38, 14 April 2008 (UTC)

On New York Circuit Court Hon. Henderson's Dissent....

Her position in a nutshell: the District of Columbia is not a state so the 2nd Amendment does not apply within. Literally correct.

 :: Cool.  I'm going to DC to git me some slaves.

However, this position clearly undermines the intent of personal ability to protect oneself against a tyrannical government, which was one of the fundamental purposes of the 2nd Amendment. Since the seat of (a potentially tyrannical) government is located in the Distric of Columbia, it therefore makes sense to interpret the 2nd Amendment to include the District of Columbia.

Using my brain energy, I am able to imagine the framers of the constitution presumably forgot to include the then uninhabited and undeveloped malarial mosquito infested swamp, which was the District of Columbia.. in their grand plans. An error of detail on their part. Basically, there were NO citizens/occupants of the District of Columbia to complain about their non-status as a "state" during the creation of the bill of rights.

It wasn't a swamp, and it wasn't malarial. Georgetown at the time was a bustling port. So much for your brain energy.

Hon. Henderson's dissent therefore lacks common sense.. which makes her silly.

Whether scared liberal city dwellers want to admit it or not, the constitution clearly intends for all resonable citizens of responsibility to own guns. —Preceding unsigned comment added by 66.159.217.90 (talk) 11:32, 16 April 2008 (UTC)

Cert Granted

Today (November 20th, 2007), the Supreme Court granted cert on this case. Most of the WP articles I'm aware of regarding SCOTUS rulings supersede any articles regarding the lower court rulings, i.e. there will most likely no longer be an article dedicated to the lower court rulings, instead they will just be summarized as needed in the higher court decision. Now that we know SCOTUS will be ruling, this is a good opportunity to begin restructuring the article to that end. - Hoplon (talk) 19:15, 20 November 2007 (UTC)

I concur with that assessment. Especially the last paragraph regarding commentary. Specifically, Professor Hardaway's theory that the Supreme Court will address the case by invoking the Ninth Amendment no longer applies as the SCOTUS has stated that they will review the case based on Second Amendment grounds.

I say that it needs a rewrite. The question is, when to do it? Jarrett.deane (talk) 08:11, 23 November 2007 (UTC)

"Gun Control"

I think that the phrase "gun control" as used in the article is pejoritive. The phrase "gun ban" with used in reference to the D.C. law is more precise. "Gun control" is associated with regulations limiting the scope of the the right to bear arms, while the DC law flatly prohibited ownership and possession other than for law enforcement and certain weapons which fell under the grandfather clause. More specifically, Heller will not address "gun control" as much as it will address regulations which operate as a total ban. This is similar to supreme court cases addressing the first amendment which have said that while flat restrictions on speech will only rarely be upheld, the government still has authority to regulat speech short of prohibiting it. —Preceding unsigned comment added by 66.162.176.102 (talk) 15:47, 28 November 2007 (UTC)

Also, referring to a "handgun ban" really does not go far enough. The laws to be reviewed effectively encompass a total ban on functional firearms in the home.--Ana Nim (talk) 19:06, 28 November 2007 (UTC)

Hardaway commentary

I don't think the Hardaway commentary has any relevance anymore. His commentary was a prediction that SCOTUS would take the case under the 9A. They did not. I fail to see the value this adds to the article now. Others have already discussed this as well Talk:District_of_Columbia_v._Heller#Cert_Granted. Arthurrh (talk) 20:17, 28 November 2007 (UTC)

I tend to agree. Neither the district court nor the circuit court discussed the 9A, and it looks like the Supreme Court isn't going to either. So the relevance of Hardaway's 9A theory to this particular case is very tangential. I think it'd fit better in a more general article like the ones on the 2A the right to bear arms. PubliusFL (talk) 21:26, 28 November 2007 (UTC)

I had initially disagreed, as I wasn't entirely convinced that the 9A may not still come up during the March timeframe when the case is heard. Although they still could include this as dicta, it is likely to be of lesser relevance now than when Hardaway penned his editorial based on the definition of the topic as identified by SCOTUS. Have reverted myself, removing the Hardaway commentary. Yaf (talk) 21:46, 28 November 2007 (UTC)

Controversy section

With a quote from Chemerinsky stating that the ultimate ruling of the court had "no basis in constitutional law," it is not appropriate to summarize Levy's position as having "expressed a similar opinion." Levy bankrolled the plaintiffs, and certainly does not believe the court's ruling was unjustified. Chemerinsky suggested that even if the right to keep and bear arms is individual, the government could still ban all civilian possession of handguns. Levy agreed that felons, minors, and incompetents should not own guns, and argued that that banning the possession of shoulder-launched missiles and the use of firearms to murder people would be permissible. That is not a "similar opinion." PubliusFL 14:20, 23 April 2007 (UTC)

I agree with PubliusFL. SaltyBoatr 14:58, 23 April 2007 (UTC)

I disagree with Eblem who repeated has deleted material from this section giving various reasons, with the latest being 'excessive material', and 'irrelevant'. This article is a 'stub', so 'excessive material' seems illogical. The material deleted is pertinent commentary by leading scholars, so it seems incorrect to call it 'irrelevant'. SaltyBoatr 14:58, 23 April 2007 (UTC)

This article is of great public interest. This article involves great controversy, and both the pro and the con should be included. Quoting from famous constitutional and law experts, given credible attribution, is appropriate and pertains. EBlem, please explain. SaltyBoatr 14:58, 23 April 2007 (UTC)

No, the SUBJECT of this article is of great public interest. The article itself, not so much. —Preceding unsigned comment added by 216.49.77.67 (talk) 00:43, 14 July 2008 (UTC)

I encourage this discussion to take place on this article's talk page, and the Eblem talk on my user page should really be located here. SaltyBoatr 19:38, 23 April 2007 (UTC)

I am trying to understand the Eblem complaint, which I believe is based on criticism of Chemerinsky. That does not match that his/her recent revert which also reverted considerable material from Levy and Hardaway. This simply doesn't make sense, please explain. SaltyBoatr 19:42, 23 April 2007 (UTC)

It is interesting to note that Eblem is critical of Robert Levy in the edit summary of this revert, Eblem wrote: "...balanced two liberal pro-ban pundits with another pro-rights source." Robert Levy was co-council for the plaintiffs, helping to win the case, and certainly would be surprised to be labeled a 'pro-ban pundit'. SaltyBoatr 20:02, 23 April 2007 (UTC)

Eblem reverted again, with the misleading edit summary "punctuation and sentence structure". And the explanation appears not based on WP:Policy. SaltyBoatr 20:11, 23 April 2007 (UTC)

I think your latest version is pretty good, and makes a fair attempt to summarize some of the most notable commentary on the case. I agree that it should not be reverted without discussion on this talk page. PubliusFL 21:14, 23 April 2007 (UTC)

"Chemerinsky suggested that even if the right to keep and bear arms is individual, the government could still ban all civilian possession of handguns."

The Court specifically rejected this argument. This has gone beyond commentary into reintroducing arguments made before the Court and rejected.

Rejected.

Get it?

This is a court case entry, not a debate.

There are places for debates. This entry is not one of them.

Eblem 21:22, 23 April 2007 (UTC)

This is an encyclopedia, not a court reporter. The article doesn't have to be restricted to a summary of what the opinion said. It is appropriate to cover notable commentary on the opinion from reliable sources. Indeed, Wikipedia policy says that secondary sources (people talking about the opinion) are preferable to primary sources (the opinion itself). We have to make sure that the opinions represented are balanced and result in an overall neutral POV, but if there is controversy about the case the article should report on it. For example, the article on Roe v. Wade discusses criticisms of that Supreme Court decision. You can't cut out that section of Roe v. Wade by just saying "the Court rejec

ted those arguments." A fortiori, this lower court is not the final arbiter of the validity of its own decisions. The controversy is still notable. PubliusFL 23:32, 23 April 2007 (UTC)

Bingo, it's an encyclopedia. Chemerinsky's argument, for example, was considered by the Court and rejected. This is not an opinion piece, it's an encyclopedia entry on a specific court case. In this case the Court's decision is the Court's decision vis a vis this particular consideration. Apparently not only are you not an attorney, you're having some problems sorting out why an entry on one court case shouldn't be "balanced" in terms of argument. The reason why is that a decision was rendered. Reargue it somewhere else. This Court is the final arbiter of this Court's decision on this case. If it is reheard by the full Court, or the Supreme Court, you'll get another bite at the apple. You and SaltyBoatr, among others, apparently wish it were otherwise. Not only am I not some chickensh-t anonymous pundit, you can reach me at marty_eble@yahoo.com. Get a law degree or quite mucking the entry up. You can make a new entry on "Second Amendment Controversy" if you're that excited. Eblem 23:41, 23 April 2007 (UTC)

First, where specifically in the Court's opinion does it discuss Chemerinsky's idea that the rational basis test should apply to firearms laws? I don't remember them explicitly addressing level of scrutiny. Second, please be civil and refrain from personal attacks. There's no need to get heated over this. PubliusFL 23:56, 23 April 2007 (UTC)

2d Amendment Incorporation [?]

I'm curious as to how this case precedent would apply to the states (and not just the D.C. government), if the Supreme Court were to uphold the D.C. Circuit's decision.

Would this be a binding authority over all 50 states as well, or just a persuasive authority? Federal legislation to date still recognizes an individual's right to keep and bear arms (although somewhat more regulated today, than in colonial times); whereas a handful of states ---notably, Illinois--- have enacted legislation to the contrary.

Could Parker v. District of Columbia, in essence, become the case which incorporates the 2d amendment, and makes it applicable not only federally, but also at the state level?

It's somewhat obvious that the ruling would only be binding over the nation's capital, should the high court decline to hear the case. Pine 23:17, 5 September 2007 (UTC)

It's complicated. If the Supreme Court takes the case and upholds the circuit court's decision, the precedent would apply throughout the U.S., but would not necessarily have direct or immediate impact on state or local laws, since the Court wouldn't have to address the incorporation question to resolve this case. However, if the Supreme Court declines to take the case, the circuit court's decision being allowed to stand may have ramifications beyond the District of Columbia, because people would be able to sue the federal government in D.C. to attack federal gun control laws, and in those cases the D.C. Circuit opinion would be binding precedent. PubliusFL 00:12, 6 September 2007 (UTC)

There are two challenges (one against Chicago, the other against San Francisco), opened the day after Heller was decided. Both Chicago and SF have gun bans. These challenges, if they make it to SCOTUS, will determine incorporation. —Preceding unsigned comment added by 128.221.197.20 (talk) 19:08, 30 June 2008 (UTC)

Friend of the court briefs.

We should probably add a section to this article summarizing the 'friend of the court' briefs. But, wow, there are dozens already. Anyone what to join in on this task? SaltyBoatr (talk) 18:15, 18 January 2008 (UTC)

Perhaps a section titled Briefs with subsections for the plaintiffs and respondents. I think a tabular format might work best, with columns like:

Amici curiae briefs

Who	Summary	Link
55 Members of the United States Senate, The President of the United States Senate, and 250 Members of the United States House of Representatives	The Congress has a long history of protecting the right of the people to keep and bear arms. On several occasions, in different epochs of American history, the Congress enacted statutory texts which explicitly declared its understanding of the Second Amendment as guaranteeing fundamental, individual rights. The Amendment was intended to guarantee the right of individuals to possess and keep ordinary firearms. In 1866, ensured former slaves “full and equal benefit of all laws and proceedings concerning personal liberty, personal security, estate, including the constitutional right to bear arms.	PDF
Academics	Academics representing a variety of fields of expertise including history, law, economics, business, political science and philosophy, submit this brief in support of the Respondent and assert that the empirical evidence concerning the murder rate in the District of Columbia, compared to other places, demonstrates convincingly that the District’s handgun ban experiment was a failure.	PDF
Academics for the Second Amendment	Petitioners’ position is that the Framers wrote “the people” when they meant “only those people serving in a sufficiently-organized militia.” To Petitioners, the Amendment creates a “right of the people” that is void where prohibited by law. Preambles expressing the principal purpose – not necessarily all purposes – of a right were commonplace in constitutions. The Framers believed that the individual had a natural right to arms, that only an armed people would be free and virtuous, and that militias composed of those armed individuals were necessary to preserve free governments.	PDF
American Academy of Pediatrics, The Society for Adolescent Medicine, The Children’s Defense Fund, Women Against Gun Violence and Youth Alive!	Handguns are particularly dangerous to children and youth and the District of Columbia handgun law is a reasonable restriction.	PDF
American Bar Association	The decision conflicts with precedent and jeopardizes an extensive regulatory framework.	PDF
American Civil Rights Union	As a matter of plain English, the text protects an individual right, and the language of the prefatory phrase does not nullify the clearly stated individual right.	PDF
American Public Health Association, American College Of Preventive Medicine, American Trauma Society, and American Association Of Suicidology		PDF
Association of American Physicians and Surgeons	I. The interpretation of the Constitution cannot depend on politicized views of medicine. II. The petitioners’ medical amici briefs are fatally flawed in ignoring undeniable benefits of firearms. III. The right to bear arms has an essential role in deterring tyranny, terrorism and genocide.	PDF
Brady Center To Prevent Gun Violence, International Association Of Chiefs Of Police, Major Cities Chiefs, International Brotherhood Of Police Officers, National Organization Of Black Law Enforcement Executives, Hispanic American Police Command Officers Association, National Black Police Association, National Latino Peace Officers Association, School Safety Advocacy Council, And Police Executive Research Forum		PDF
Cato Institute and Professor Joyce Lee Malcolm	I. The English right to have and use arms belonged to individuals broadly, regardless of militia service, and particularly protected their “keeping” of guns for self-defense. II. The Second Amendment secures at least the individual right inherited from England, as early American authorities demonstrate.	PDF
City Of Chicago and The Board Of Education Of The City Of Chicago		PDF
American Jewish Committee, Anti-Defamation League, Baptist Peace Fellowship Of North America, Ceasefire Nj, Central Conference Of American Rabbis, Citizens For A Safer Minnesota, Methodist Federation For Social Action, Clifton Kirkpatrick In His Capacity As The Stated Clerk Of The Presbyterian Church (U.S.A.), Educational Fund To Stop Gun Violence, Freedom States Alliance, American Jewish Congress, Friends Committee On National Legislation, Gray Panthers, Gunfreekids.Org, Illinois Council Against Handgun Violence, Illinoisvictims.Org, Iowans For The Prevention Of Gun Violence, Jenna Foundation For Nonviolence, Inc., Karla Zimmerman Memorial Foundation, National Association For The Advancement Of Colored People, National Council Of Jewish Women, New England Coalition To Prevent Gun Violence, New Yorkers Against Gun Violence, Dc Statehood Green Party, North Carolinians Against Gun Violence Education Fund, Ohio Coalition Against Gun Violence, Renée Olumbuni Rondeau Peace Foundation, Root (Reaching Out To Others Together) Inc., Union For Reform Judaism, Virginia Center For Public Safety, Wisconsin Anti-Violence Effort		PDF
DC Appleseed Center For Law And Justice, D.C. Chamber Of Commerce, D.C. For Democracy, D.C. League Of Women Voters, Federal City Council, And Washington Council Of Lawyers		PDF
Kamala D. Harris, Robert M. Morgenthau and other District Attorneys		PDF
Janet Reno and other former Department of Justice Officials		PDF
Historians Jack N. Rakove, Saul Cornell, David T. Konig, William J. Novak, Lois G. Schwoerer		PDF
Cities Of Baltimore, Cleveland, Los Angeles, Milwaukee, New York, Oakland, Philadelphia, Sacramento, San Francisco, Seattle, Trenton, The United States Conference Of Mayors, And Legal Community Against Violence		PDF
18 Members of Congress		PDF
NAACP Legal Defense & Educational Fund		PDF
National Network to End Domestic Violence, and other domestic violence organizations		PDF
Attorneys General of New York, Hawaii, Maryland, Massachusetts, New Jersey, And Puerto Rico		PDF
Law Professors Erwin Chemerinsky and Adam Winkler		PDF
Professors Of Criminal Justice James Alan Fox And David Mcdowall		PDF
Professors of Linguistics And English Dennis E. Baron, Richard W. Bailey, and Jeffrey P. Kaplan		PDF
Violence Policy Center and the Police Chiefs of the cities of Los Angeles, Minneapolis, and Seattle		PDF

What do you think? Kevinp2 (talk) 20:14, 7 February 2008 (UTC)

I like it. In addition to the table, I think it might also be beneficial to have a paragraph or two of narrative text describing notable highlights. SaltyBoatr (talk) 21:50, 11 February 2008 (UTC)

The Summary column could be used for each brief. In addition, we could start with a paragraph before the table to summarize the general range of arguments across all briefs. We should probably have two sections, one for the petitioners and one for the respondents. Kevinp2 (talk) 22:08, 11 February 2008 (UTC)

Phew, that took a while, but I have completed the basic structure of the amici for the petitioners. Today (2/11) is the deadline for filing the amici for the respondents, so in a day or two, that section can be completed. I suggest we (and anyone who would like contribute) can construct the tables on the talk page and then copy them to the main page whenever reasonably complete Kevinp2 (talk) 22:51, 11 February 2008 (UTC)

It's months later, but just wanted to note that I don't think we should have a giant ugly unreadable table in the middle of this article. Tempshill (talk) 03:40, 28 June 2008 (UTC)

Non-Party Involvement

This section starts with the sub-heading "National Rifle Association" and the first sentence is someone claiming the NRA's activities are a sham. It seems a bit misleading from what you would typically expect. Logically you'd expect the intro of a section to discuss the subject matter and the criticism(s) would follow. I think the order of some of the sentences could be better placed so the NRA's position/activities is first documented. The order just seems illogical and I could see where some would find this to be POVish. Or you could rename that sub-header "NRA Criticisms" or something. Angry Christian (talk) 16:37, 21 March 2008 (UTC)

it does appear to be an attempt to taint the material by leading with that. Anastrophe (talk) 17:30, 21 March 2008 (UTC)

agreed. TJIC (talk) 17:10, 26 June 2008 (UTC)

This section doesn't seem to make all that much sense. First of all, the Cato Institute is absolutely involved in the case. Tom G. Palmer is one of the original plaintiffs and a senior fellow at Cato. Robert Levy is one of the co-counsels, and is another senior fellow at Cato. There's a [url=http://www.washingtonpost.com/wp-dyn/content/article/2007/03/17/AR2007031701055.html Washington Post] article all about how Levy is the guy who conceived the case. I'm going to take out the claim that Cato was uninvolved. The Brady bit belongs under Amicus. Feel free to change things up or rewrite. I in fact think a section about how Cato is involved would be quite reasonable. Vickser (talk) 01:12, 24 June 2008 (UTC)

Consequences of Decisions

What are the possible consequences of the ban being overturned? As I understand it could lead to a similar ban being lifted in Chicago and establish a powerful precedent. Rds865 (talk) 07:13, 29 April 2008 (UTC)

This case only deals with a Federal territory (D.C.) The Second Amendment has not been held to be "incorporated", a clumsy judicial invention that attempts to remedy the past evisceration of the 14th Amendment. So at the moment, the Second Amendment is only held to restrain the federal government, not the states and their cities. There would have to be another lawsuit against Chicago to gain a ruling to incorporate the Second Amendment against the states. kevinp2 (talk) 00:47, 16 May 2008 (UTC)

Well, the usual trend is for the courts to make decisions that only make laws clear enough, but while still retaining the courts' authority to have a say in a matter. As it was with the 14th Amendment in the case of slavery, the federal supreme court ruled that Southern states were not allowed to make their own state level, territory specific laws that would allow for slavery or similar conditions. That was the momentum behind the 14th, which was to incorporate the 13th. This allowed for the amendments of the constitution to be both applicable to the federal as well as the state. Therefore, it is very possible that the courts could rule in such a way that applies to all levels of government, as in the federal, state/territory, and local. To do this, all they would have to do is rule that the 2nd amendment is a right of the people just as much as the 13th. But, in the case that the DC ban is overturned, I agree with Kevinp2 at least in that I believe the supreme court is likely to come to a conclusion that will lead to further cases. --Trakon (talk) 08:12, 3 June 2008 (UTC)

I just added the bit about the Court declining to incorporate the Second Amendment as applying to the states. That should probably be reiterated somewhere later in the article, but I'm not sure where. Also, I believe the NRA and others are already filing suits (which could later be appealed to the Supreme Court) against the well known gun bans in Chicago and New York, right? —Preceding unsigned comment added by 76.224.121.13 (talk) 07:32, 28 June 2008 (UTC)

"Declined to address incorporation" might be a better way to put it. --tc2011 (talk) 13:50, 28 June 2008 (UTC)

June 26th

This article now says that on June 26th a decision will be handed down, but the citation it provides says nothing about the exact date when the decision will be handed down. I'm guessing there must be some source on when the date will be handed down, if so, what is it?--24.160.128.207 (talk) 17:48, 25 June 2008 (UTC)

The date is informed speculation, based on the fact that the Court's term ends this month and for several years they have always handed down their last decision by the fourth Thursday in June. There's no rule saying they must do so, however, and I've changed the article to be more consistent with the source. I wouldn't object to someone putting the expected 26 June date back, as long as it's cited to something. PubliusFL (talk) 18:09, 25 June 2008 (UTC)

I found a source for the June 26th date, and have updated the article accordingly. PubliusFL (talk) 19:59, 25 June 2008 (UTC)

It was not "informed speculation." When I posted the June 26th date on June 25th, Chief Justice Roberts had just announced that all remaining decisions would be handed down the following day. Heller was one of the three remaining decisions, and thus it "must" be handed down on June 26th. I just failed to find a citation for it, and I thank PubliusFL for doing so.--Ana Nim (talk) 13:28, 26 June 2008 (UTC)

Mea culpa. I had not yet heard about Chief Justice Roberts' comment, but had seen some well-reasoned projections on sites like SCOTUSblog along the lines of what I had written above. PubliusFL (talk) 17:08, 26 June 2008 (UTC)

District of Columbia v. Heller

The opinion has been released and held that 2A protects an individual right. One majority opinion (Scalia w/ Roberts, Kennedy, Thomas, Alito) and two dissenting opinions (Stevens w/ Souter, Ginsburg, Breyer AND Breyer w/ Stevens, Souter, Ginsburg). Opinion is online here: http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf - Hoplon (talk) 14:18, 26 June 2008 (UTC)

Shouldn't say "has been released" should say "was released on such and such a date". —Preceding unsigned comment added by 216.49.77.67 (talk) 01:00, 14 July 2008 (UTC)

"File not found" - 65.41.114.134 (talk) 14:23, 26 June 2008 (UTC) Oh, I get it, that was only 5 minutes ago. I haven't configured my time zone. - 65.41.114.134 (talk) 14:24, 26 June 2008 (UTC)

Update Firearm case law in the United States

Can someone update "Firearm case law in the United States" to reflect this new verdict? 220.76.15.188 (talk) 17:04, 26 June 2008 (UTC)

Did I do it right? vlad§inger ^tlk 18:28, 26 June 2008 (UTC)

Yes, thank you. It's much better than I would have been able to do. 220.76.15.188 (talk) 04:02, 27 June 2008 (UTC)

Clean Up

The article repeats itself in several places and reads like a tug-of-war. I recommend that it be pared down to the background for the original Lawsuit, followed by the Appellate and Supreme Court decisions

There's no doubt a fair amount of non-neutral politics going on in this article.Darthveda (talk) 05:56, 27 June 2008 (UTC)

Centrx, the dashes circumscribing "definitively" were for emphasis of the word "definitively." Shall we try it this way? It is OK to split infinitives. Neutralman1024 (talk) 18:16, 27 June 2008 (UTC)

It was originally written with split infinitive: "to definitively address"; someone else changed it. The problem with the dash style is it implies: "This was the first case to address the issue, and incidentally did so definitively"; whereas the accurate meaning is: "This was the first case to address the issue in a way that was definitive or head on". —Centrx→talk • 18:19, 27 June 2008 (UTC)

Gotcha, thank you for clearing that up. I apologize for misunderstanding what you meant. Neutralman1024 (talk) 18:21, 27 June 2008 (UTC)

"Scholarly" commentary section

Why does this section exist? The tense of these "experts'" opinions is prior to the decision being affirmed. Also, the issue of whether any of the persons quoted are truly "experts" or "scholarly" is very well up for debate. Mojodaddy (talk) 08:30, 27 June 2008 (UTC)

The section exists because the case and article existed before the Supreme Court issued its ruling. The qualifications of each of the individuals quoted are mentioned. Let's allow a little time for constitutional scholars to weigh in on the Supreme Court decision, then update the article accordingly. PubliusFL (talk) 16:07, 27 June 2008 (UTC)

Agree that this should be deleted, both because it is outdated and because they are discussing what the 2nd amendment means, not the case itself. Mangostar (talk) 21:18, 27 June 2008 (UTC)

"Second" such case with Slate reference

We are well aware of U.S. v. Miller, and know much more about it than the sensationalist writer Lithwick. The article does not say that D.C. v. Heller is the first case to pertain to the Second Amendment or that has incidental remarks that could be interpreted as pertaining to the question of individual-rights vs. collective-rights; it is not the first such case, nor is it the second. It is, however, the first case to definitively or directly or comprehensively address the question. —Centrx→talk • 19:05, 28 June 2008 (UTC)

It was also the first case that used the 2nd amendment to strike down a law as unconstitutional according to one article I read. Neutralman1024 (talk) 17:08, 29 June 2008 (UTC)

Nonsense. Miller directly addressed the issue and said it was a collective right. Everyone has known this for nearly a century. -- Kendrick7^talk 22:08, 29 June 2008 (UTC)

Kendrick7, the source you give ("The Supreme Court Breakfast Table: Was It Ever Miller Time?"...Seriously? Are you just trying to be cute?) does not satisfy the standards of WP:V. Please revert your own edit so as to help avoid an edit war. --tc2011 (talk) 22:16, 29 June 2008 (UTC)

Miller was the latest Supreme Court precedent pertaining to the Second Amendment, but did not directly address any question of "collective rights" vs. "individual rights". Stevens does not claim it does, and a Lithwick faux-letter sensationalizing a soapbox version of Stevens' arguments does not make it so. Miller found that a weapon protected under the Second Amendment must have "some reasonable relationship to the preservation or efficiency of a well regulated militia". (The Miller decision is only five pages; you should read it before calling an argument "nonsense" even if you do not read the 157 pages of Heller opinion and dissents.) Stevens expounds upon the military nexus in Miller as support of his dissent, but that is not equivalent to making Miller, not Heller, the "first decision to directly address the question of individual rights vs. collective rights".

This sentence about the importance of the decision wants improvement, but calling Heller the "second" to directly address the question, and needing to support that inaccuracy with a plainly farcical blog post, is not the way. —Centrx→talk • 23:03, 29 June 2008 (UTC)

I typed this out before, but noticed that the edit was not saved. I assume because someone else edited the page before I saved my edits...

Weighing in on this, the lower courts interpreted the Miller decision as claiming that the 2nd amendment secured only a collective right. But that was never the issue before the Miller court. That was one of the main reasons for arguing against the collective right theory. Even the U.S. Dept. of Justice realized this when it changes its policy in 2003 or so from advocating a collective right theory to advocating an individual right theory. I studied the case when the D.C. District Court first overturned the D.C. gun ban, but I can't find my notes right now. The central issue in Miller was not whether the 2nd amendment secured a collective or individual right. Miller did determine whether a saw-off shotgun served a practical purpose for the collective military good. If it did then the second amendment protected a citizen's right to own one. That's where the lower courts inserted that the Miller case declared a collective right theory. Though not a priority for me, when I locate either my notes on the case or the Hand desk book on Gun Control law in the U.S. I'll quote you some passages from reliable sources, including the court itself. Neutralman1024 (talk) 23:15, 29 June 2008 (UTC)

I would also suggest that in addition to reading the Miller opinion, and the Heller opinion, you also read Levinson, Sanford: The Embarrassing Second Amendment, 99 Yale L.J. 637-659 (1989)(whether a sawed-off shotgun "has some reasonable relationship to the preservation or efficiency of a well regulated militia."). Neutralman1024 (talk) 23:23, 29 June 2008 (UTC)

Here is another one [Telling Miller's Tale: A reply to David Yarsky (The Supreme Court reversed the District Court, but in doing so, it avoided any sweeping statements regarding the scope of the Second Amendment. It simply held that "[i]n the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.") -Neutralman1024 (talk) 23:33, 29 June 2008 (UTC)

I agree that Miller did not address the individual vs. collective right question--the word "collective" does not appear at all in the decision, and "individual" not in connection with right. Subsequent lower courts did interpret Miller as endorsing a collective right--perhaps because the US so argued in its brief: "the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided by law."

The earliest such lower court case that the Stevens dissent cites is from 1971: United States v. Johnson (there is an ealier NJ State Supreme Court case, Burton v. Sills, 1968). Whether or not D.C v. Heller is the first case to address the collective right theory, the Scalia opinion states, "this case represents this Court’s first in-depth examination of the Second Amendment."

By the way, it is not clear to me (following Puckett, Denning, Halbrook and other commentators) that the Court in Miller "determined" that a sawed-off shotgun had no "reasonable relationship [etc., to] a well regulated militia," but rather that there was no evidence before the Court saying it did (Miller did not appear or present a brief) and that it was outside the scope of judicial notice (the Court could not make a declaration of relationship absent relevant evidence). That "the cause [was] remanded for further proceedings," rather than simply decided (the conviction upheld) suggests that Miller could have presented new evidence to the lower court regarding the shotgun's relationship to a militia. But he disappeared.

As I indicated, I was going from memory, but if you see my later edits giving a couple reliable sources, you'll see that my position changed. :-)

-Neutralman1024 (talk) 02:25, 30 June 2008 (UTC)

It seems silly to worry about Miller now; the authoritative interpretation of the Miller decision has now been provided by the Scalia majority opinion.--Icammd (talk) 01:25, 30 June 2008 (UTC)

Non-party involvement section

Section should be deleted or at least cleaned up, neither the NRA nor the Brady Campaign had any direct involvement with the case outside the fact that both organizations filed amicus briefs with the court.

Also, the paragraph on the NRA should be re-written, it almost instantly links the NRA with 'sham litigation' and misleadingly suggests that Alan Gura is at odds with the organization, when in fact Mr. Gura invited the NRA's Dave Kopel to sit at the counsel table on the pro-rights side. This fact should be included in the paragraph.

If kept, the section for the Brady Campaign should be lengthened. Not sure if anyone from the Brady Campaign was present at the counsel table for D.C.--68.98.114.31 (talk) 22:47, 29 June 2008 (UTC)

President of the Senate

Regarding some recent edits... "The Vice President of the United States is designated by the Constitution as the President of the Senate."[1] --tc2011 (talk) 00:11, 30 June 2008 (UTC)

Yes I think he just misread the text; no dispute about it. —Centrx→talk • 00:38, 30 June 2008 (UTC)

Thank you, tc2011 for educating me on something I have known since the second grade. Actually, I just misread the text and did not see senate after United States. So when I made the edit, it was under the impression that someone forgot that he was the VP of the US. Had I seen Senate at the time of my edit, I would not have made it. If you noticed, I did not change it back or challenge Centrx on here about his undoing my edit. That should have made it painfully obvious that there was no dispute, just a mere misreading of the text.

I meant no offense. Sorry. --tc2011 (talk) 02:30, 30 June 2008 (UTC)

Centrx, thank you for pointing out the mistake. After checking again, I realized my mistake. :-) -Neutralman1024 (talk) 00:58, 30 June 2008 (UTC)

Obama memory hole

Wikipedia should not be used to suppress negative information about certain political candidates. There is serious legitimate discussion on whether Obama flip flopped on gun issues. Pretending otherwise is just dumb and self-serving. —Preceding unsigned comment added by 68.9.141.78 (talk) 00:16, 30 June 2008 (UTC)

That belongs in the article called Barack Obama or a sub-article of it. —Centrx→talk • 00:38, 30 June 2008 (UTC)

Statement of Barack Obama

Senator Obama falsely claims that Scalia "acknowledged that this right is...subject to reasonable regulations enacted by local communities." Nowhere does Scalia use the phrase "reasonable regulations," and nowhere does he specifically address the authority of "local communities," per se, to impose such regulations. Furthermore, in his statement, Obama tenders no "praise" to the court or Justice Scalia. --tc2011 (talk) 04:35, 2 July 2008 (UTC)

My objection to your revision is that it doesn't explain to the reader what Obama thought of the ruling. The uninformed reader might leave the article feeling confused. I look forward to working with you on a consensus revision. --causa sui ^talk 23:26, 2 July 2008 (UTC)

Obama's words stating what he thought of the ruling: "I have always believed that the Second Amendment protects the right of individuals to bear arms...The Supreme Court has now endorsed that view...but...what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals."

Obama in fact devotes the bulk of his statement to "but." If this article is to accurately represent the source, it should reflect that. Obama's statement in full.

Regardless, Obama "praised" no one, and Wikipedia should not be used to push a politician's propaganda (i.e., misrepresentations of Heller couched as praise). --tc2011 (talk) 00:12, 3 July 2008 (UTC)

"Reasonable regulations"

Describing the decision as allowing "reasonable regulations" on gun ownership, while not the most precise explanation of it, is not any sort of gross misrepresentation and is a reasonable summary. For example--beyond the relevant paragraph you can read in section Decision of the article--, the decision specifically admits limitations on the carrying of "dangerous and unusual weapons" and weapons that are not analogous to those "in common use at the time" such as M-16 rifles, avers that arms must be borne with "a lawful purpose" (which includes self-defense), allows for the disqualification by D.C. of a person who is a "felon" or is "insane", and affirms that "the people" of the Second Amendment "refers to a class of persons who are part of a national community", which likewise allows for the exclusion of felons or the insane. (Perhaps this summary should be added to the article.) —Centrx→talk • 04:03, 3 July 2008 (UTC)

In my original revision, I put quotation marks around "reasonable regulations", which in retrospect might have been ambiguous; I intended to directly quote the Obama campaign statement, not Scalia. Tc2011 (talk · contribs · count) seems to object to this on the grounds that Scalia himself never used the phrase "reasonable regulations", but I'm a bit torn on this since the Obama campaign did say that, and our job is to report the plain facts of what they said. --causa sui ^talk 05:51, 3 July 2008 (UTC)

"Reasonable regulations" is a loaded phrase here... One (perhaps more) of the amici addressed it. Interestingly, the dissent makes substantive use of the phrase, and the majority not once. The majority doesn't even use the idea of "reasonable regulations," and perhaps even rejects that concept where it rejects "rational basis" scrutiny. --tc2011 (talk) 22:25, 3 July 2008 (UTC)

Did Obama praise the decision or not?

Leave comments here about whether Obama meant to praise the decision or not. One might object that given his rating of F from the NRA and previous history of supporting handgun bans, that the Obama campaign statement is inconsistent with his past record. I don't accept that this is our job to editorialize about that kind of thing, especially in an article that is not about the political campaign. I do think that the statement praised the court's decision; whether that's because Obama actually agreed with it, or because Obama is pandering to the center now that he is in the general election phase of the campaign, is up to you to decide. And it should be up to the reader to decide as well. --causa sui ^talk 05:54, 3 July 2008 (UTC)

It would be better to say which parts of the decision he agreed with than to make an interpretation. Or you could find a secondary source that does the interpretation, which would be better than an ambiguous, politically crafted statement or original research. MantisEars (talk) 07:22, 3 July 2008 (UTC)

Good idea: I agree that it would be best to find secondary sources, such as news publications, that will describe the Obama campaign statement so that we can simply say what they thought he meant. No room for dispute then. I'll see what I can dig up. Thanks. --causa sui ^talk 15:39, 3 July 2008 (UTC)

This is the full text of Obama's statement, in case anyone's wondering what he actually said:

I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view, and while it ruled that the D.C. gun ban went too far, Justice Scalia himself acknowledged that this right is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe. Today’s ruling, the first clear statement on this issue in 127 years, will provide much-needed guidance to local jurisdictions across the country.

As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun show loophole and improving our background check system, so that guns do not fall into the hands of terrorists or criminals. Today's decision reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe. --tc2011 (talk) 22:38, 3 July 2008 (UTC)

Articles relating Obama's statement

• Obama, who has advocated strict gun-control laws and who spoke favorably about the District's handgun ban before yesterday's ruling, said in a statement afterward: "I have always believed that the Second Amendment protects the right of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures. The Supreme Court has now endorsed that view." Historic Decision Renews Old Debate

• WASHINGTON — Democrat Barack Obama offered a guarded response Thursday to the Supreme Court ruling striking down the District of Columbia's prohibition on handguns and sidestepped providing a view on the 32-year-old local gun ban. Obama hedges on gun ruling

• One of the strangest [reactions to the Supreme Court's decision] was Barack Obama's claim that the court had essentially confirmed what had been his positions all along. John Lott: Reaction to D.C. Gun Ban Decision

Please add more articles here. --tc2011 (talk) 23:07, 3 July 2008 (UTC)

subject/verb agreeement

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

If you take out the stuff that was originally offset by commas (now by emdashes), then you will have Therefore the District of Columbia's handgun ban is unconstitutional. And now I finally understand it. Ok never mind, reverting my last edit. —Neutralman1024 (talk) 12:11, 3 July 2008 (UTC)

Yes, the sentence was too complex so it is good to split it out like that. —Centrx→talk • 16:29, 3 July 2008 (UTC)

And with your edits, the paragraph is clearer in meaning. -Neutralman1024 (talk) 17:37, 3 July 2008 (UTC)

Oh you are just too kind. —Centrx→talk • 22:38, 3 July 2008 (UTC)

Distinction without a difference

My current edit for "Issues addressed by the majority" reverses, in slightly modified form that I hope will be seen as more acceptable, some edits by Tc2011. Tc says, "'Not casting doubt on' and 'upholding as constitutional' are very different. Have changed the wording to neutrally present the actual words of the court.)"

I agree the words are different, but the effect is not. Lower courts definitely, and even the SCOTUS in the future (with these Justices or others) will note the obiter dicta saying that those limitations (on possession by felons, banning in "sensitive places", etc.) are undoubted by the Court--we must presume that they mean not only don't doubt the laws' existence, but also don't doubt their Constitutional validity--and that "We also recognize another important limitation on the right to keep and carry arms...M-16 rifles and the like--may be banned..." To say that the words "uphold as constitutional" are not used is true--but it seems clear that lower courts at least will have to find that's what they meant.

Re: handguns and M16s, the majority does not ever explicitly apply to handguns the useful-to-militia prong of Miller (Breyer does, though), instead saying they represent the "the quintessential self-defense weapon." Thus the court seems to replace the earlier militia prong with a new "useful for self-defense" prong. It retains the "in common use" prong, and it is in that regard that bans on handguns are unacceptable to the Court, but bans on machineguns remain.--Icammd (talk) 15:03, 5 July 2008 (UTC)

I don't necessarily disagree with your interpretations, but they require citations. In the absence of reliable sourcing, I'd much prefer to stick as closely as possible to the verbatim text of Heller. --tc2011 (talk) 15:42, 5 July 2008 (UTC)

Apparently it's easier to hit "undo"--took Kelly one minute!--than to try to reach consensus. Kelly, if you're correct, and expository is interpretive, we should replace the entire Wiki entry with the verbatim slip opinion sans comment.--Icammd (talk) 15:30, 5 July 2008 (UTC)

I disagree. The court did not directly assess the constitutionality of those laws in place (prohibition of gun ownership among felons and mentally ill), therefore it is error to insist that the court endorsed their constitutionality. Take for example the Indian Reorganization Act. In Sherrill v OIN, the court endorsed the act as the proper method for OIN to re-assert is sovereign immunity. In the fall, the Indian Reorganization Act's actual constitutionality will be determined. Until the court definitively weighs the constitutionality of those measures, I think it's best not to imply or otherwise assert that those laws are constitutional. The court merely was stating that nothing in Heller stood to overturn those types of regulations. There is a difference in the distinctions that I think you are overlooking. If Brown v Bd of Education is any history lesson, until the court definitively says one way or the other, it is improper to "presume" anything. --Neutralman1024 (talk) 11:39, 5 July 2008 (UTC)

We can still present additional information on Heller and surrounding issues, while going beyond the slip. --tc2011 (talk) 15:50, 5 July 2008 (UTC)

Issues addressed

It appears that unsourced commentary/original research is being inserted into Issues addressed by the majority section. For example:

• rhetorical impact is provided
• it elevated the second prong of Miller
• While not addressing all firearms regulations, the Court specificied certain existing limitations on the right to keep and bear arms remain

The last one has been reverted to the plain text of Heller, but the first two should be sourced or removed. --tc2011 (talk) 15:36, 5 July 2008 (UTC)

More over presidential candidates' reactions

If we want to make this article about the presidential race, we are going to have to go all the way and do it right. It is completely unacceptable sneak editorial commentary into the article presented as objective fact through parentheticals or other means. To discuss editorial reaction to the candidates' statements, we are going to have to not only source them but present them as editorials and say who said it. It is not enough that someone said it in a newspaper for us to take up that point of view here. --causa sui ^talk 00:29, 11 July 2008 (UTC)

Hmmm, I see there's room for dispute after all, despite the concurrence of available sources addressing Obama's statement. I'm sorry the Washington Post and Chicago Tribune news articles (they're not editorials) provided more than he said/he said journalism.

Whatever one's POV on the given sources, it is not proper for Wikipedia to blindly parrot a politician's campaign rhetoric and deliberately ignore very big and widely recognized realities surrounding that rhetoric. Including sourced evaluations of their statements would be appropriate. Let's do that. --tc2011 (talk) 03:42, 11 July 2008 (UTC)

If you want to make this article about the presidential election and the commentary on it, then we can do that. I'm in favor of posting how news media have covered the event. But you can't take their opinions and publish them as fact in Wikipedia. An example of an edit that I would be satisfied with is "Bob Johnson of the Chicago Tribune wrote that Obama is a big buttface and likes to smell his own butt." You can get as much negative info about Obama as you want into the article that way, if it would make you happy. --causa sui ^talk 04:32, 11 July 2008 (UTC)

"has advocated strict gun-control laws and who spoke favorably about the District's handgun ban before yesterday's ruling"[2] is hardly opinion, as it is verifiable.[3][4][5] "offered a guarded response...and sidestepped providing a view"[6] is no more opinion than "Obama praised Justice Scalia" and is simply saying what the reporters thought he meant.[7] --tc2011 (talk) 14:00, 11 July 2008 (UTC)

"Obama is a big buttface" is clearly a personal opinion. Though "and likes to smell his own butt" is probably not verifiable, it is certainly in no way germane to this article or Obama's statement. Perhaps, if you have a verifiable source, you would like to include that information in the article on flatuphilia. The information cited from WaPo above, however, is immediately germane to this article and the candidates' statements, and is verifiable. --tc2011 (talk) 14:27, 11 July 2008 (UTC)

You're right that "praised" the decision is editorial commentary. That's why it wasn't in the revision that I have restored. Given the contentious nature of this part of the article, I think it's best to stick to the facts and simply report what the candidates said and let the reader make up their own minds about whether the candidates praised the court, didn't give an answer, or like to smell their own butts. --causa sui ^talk 17:06, 11 July 2008 (UTC)

I am against the idea of having political commentary. No one will agree on how the rhetoric should be phrased and there will always be someone trying to insert a dig against one opponent while praising the others. This article is about the decision. I am in favor of creating a separate article for the Political reactions where Obama and McCain supporters can duke out which candidate came out looking better after this. But keep it to the facts here. Perhaps, add a statement like, "Political reactions were mixed. The candidates seemed to support the decision and wasted no time spinning the news to their advantage. For more on political reactions, see <insert_page_name_here>." This way we can keep the political fluff out of here and retain some respect here and let those wanting to promote their candidates do so without cluttering up and losing the importance of this landmark decision. — Neutralman1024 (talk) 13:13, 11 July 2008 (UTC)

I'm not sure that a separate article is appropriate if the information is immediately germane to the politician's statement and topic and is verifiable. On the other hand, the body of political reaction to Heller is certainly very large. But would a "Political reactions to DC v. Heller" article be marked for deletion, do you think? Does Wikipedia do "political reaction" articles? What about simply providing links to the candidate's statements? Although, with respect to the actual case and its fallout, the presidential candidates' statements seem virtually irrelevant. What about removing the "Presidential candidates" section altogether? So...separate article, plain links, delete the section are all fine with me. Regardless, this article should not parrot campaign rhetoric while deliberately suppressing information that is notable, verifiable, and and immediately germane to that rhetoric. --tc2011 (talk) 14:00, 11 July 2008 (UTC)

I understand what you mean in your last sentence. I suggest a combination. Delete all the irrelevant stuff that is not directly on point with the decision, and provide plain links to all the campaign rhetoric. My hope is that by doing it this way, the notable, verifiable information is preserved, and the campaign promoters get to link their information instead of clouding up the main points in this article, which is that the Supreme Court determined that the 2nd amendment preserves an individual right to keep and bear arms. Anyone else wish to comment? — Neutralman1024 (talk) 14:15, 11 July 2008 (UTC)

Fair enough. If it's worth avoiding external links within the text of the article, what about putting the Title of Candidate's Statement or whatever in the "See also" or "external links" section? Otherwise, a bullet list might be good. Or, "Presidential candidates A, B, and C issued statements following the Heller decision," with a ref after each name. --tc2011 (talk) 14:39, 11 July 2008 (UTC)

I like that idea, place the links in the "External links" section. — Neutralman1024 (talk) 14:59, 11 July 2008 (UTC)

Nice solution, everyone. It looks good. PubliusFL (talk) 17:36, 11 July 2008 (UTC)

I agree with neutralman. This article is not about the presidential election, so editorial commentary about the candidates should be left out of this article and put in the articles on their biographies or on the presidential election. --causa sui ^talk 17:06, 11 July 2008 (UTC)

Promotion of their talking points is equally inappropriate. I see that you insist on redundantly[8] pushing[9] Obama's statement without reference to verifiable news sources, but at the same time do not extend the same courtesy to Obama's opponent. Why is that? --tc2011 (talk) 22:15, 11 July 2008 (UTC)

Citing the campaign statement we are quoting is hardly pushing an agenda. --causa sui ^talk 00:40, 13 July 2008 (UTC)

Except doing so duplicates the presence of one politician's talking points and suppresses inconvenient and highly relevant realities to the benefit of someone's favorite politician... --tc2011 (talk) 02:59, 13 July 2008 (UTC)

Are my changes satisfactory to you both? This is why I would just prefer to remove the whole section. No one can seem to agree on what "political" reactions should be mentioned. From now on, I suggest that any other political commentary be inserted as an external link in the appropriate section. I'm tired of seeing such a fight over the political candidate's comments and the bickering about which candidate looks better. Put on the respective candidates' campaign pages if necessary. This fight over which candidate said what and who can source to it is seriously detracting from the article. Yesterday, I thought we had an agreement, but apparently I was wrong. Please resolve this issue here on the talk page BEFORE any further edits and undo edits are done on the article page. Thank you. —Neutralman1024 (talk) 17:59, 12 July 2008 (UTC)

I honestly wouldn't mind seeing the section deleted. Failing that, I'd go for links in the external links section. My vote goes for deleting the text, leaving the links. --tc2011 (talk) 02:59, 13 July 2008 (UTC)

Seems the section should be deleted entirely, as even highly relevant links are getting chucked down the memory hole because someone doesn't like them.[10] --tc2011 (talk) 03:29, 13 July 2008 (UTC)

I agree. Removing it now. --causa sui ^talk 20:22, 13 July 2008 (UTC)

Levels of scrutiny

According to the article on strict scrutiny, it's the "second most stringent standard of judicial review." Scrutiny applied to prior restraint laws being, it says, the most exacting standard. So is the strict scrutiny article in need of correction? --tc2011 (talk) 15:02, 15 July 2008 (UTC)

• Yes. I studied constitutional law in law school and again for the New York bar exam. Everything I have ever read regarding the Supreme Court's levels of scrutiny concur that there are only three levels: Strict, Intermediate, Rational Basis. While the level of scrutiny in prior restraint cases does appear to be higher, it still falls into strict scrutiny: the government must have a compelling interest, and the means must be narrowly tailored to that interest. My recollection of prior restraints pertaining to restrictions on free speech is the same approach. The law must be narrowly tailored to prevent obscenity, or prevent a clear and present danger.

• I would be interested to read a U.S. Sup. Ct. decision specifically saying that its strict scrutiny analysis in prior restraints is an even higher level altogether. But all the authorities I've ever read agree that Strict Scrutiny is the highest level of scrutiny. Maybe I'm wrong, the law does have a tendency to change. But it has never been presented to me or my colleagues I work with that there are any more than 3 levels of judicial scrutiny.

— Neutralman1024 (talk) 15:57, 15 July 2008 (UTC)

Fair enough, thanks for the correction. I've tagged strict scrutiny and intermediate scrutiny for needing citations. Do you recall a source that says scrutiny of prior restraint falls under strict scrutiny? --tc2011 (talk) 16:08, 15 July 2008 (UTC)

• Not off the top of my head. I'll look through my old notes in the basement for one, though. It might take awhile.

—Neutralman1024 (talk) 16:16, 15 July 2008 (UTC)

I like what causa sui changed it. It reads better too. Good job! :-) —Neutralman1024 (talk) 23:44, 15 July 2008 (UTC)

This is the Wikipedia crack legal team. —Centrx→talk • 16:41, 18 July 2008 (UTC)

Rejection of Dick Heller's application

The article currently states, based on an article from WUSA9, that Dick Heller's application to register his handgun was rejected because it was a semi-automatic. The Washington Post, however, reports that he was turned away because he did not bring his handgun with him to the police station. According to the WaPo article, he owns a revolver as well as a semi-automatic, and at least the former would be registerable under the District's current post-Heller rules. It suggests that the revolver is the gun he intends to register, at least at this point. Anyone know which is the truth? I'm inclined to believe the WaPo article, considering that it's more recent and more detailed. PubliusFL (talk) 23:26, 18 July 2008 (UTC)

I'm inclined to believe they're just covering different details. In other words, I think there are a lot of technicalities happening here, and the WaPo and WUSA9 reporters just aren't putting it all together to get the big picture. I think they're each just getting bits and pieces. --tc2011 (talk) 00:10, 19 July 2008 (UTC)

• It sounds like his lawyer want him to play it safe and make sure they would not arrest him before bring the handgun in. This "amnesty" is not all it is cracked up to be it appears.

"Newsham said if anyone shows up to register a semiautomatic pistol that fits the city's definition of a machine gun, police will confiscate the gun but will not immediately arrest the owner. But he said police reserve the right to investigate and eventually file charges."

"We're trying to accommodate people," Assistant Police Chief Peter Newsham said. "This isn't a gotcha program."

[11]

I would guess that he would prefer to bring in his .45, not the .22 if self-defense is the reason, which looks like the only legal reason to have a gun in DC. Although if he had brought the .45 in on the first day it sure would speed up Heller round 2 that everyone seems to think is going to happen.

--130.20.229.174 (talk) 21:29, 21 July 2008 (UTC)