I take the position that 2A is the underpinning of the entire US Constitution; it is the means of last resort to overthrow an oppressor and without it as an individual right, we are left to the mercies of any government to take away any and all of our rights.

To some that may be extreme but I would argue that it was the clear intention of the Founding Fathers
to ensure our liberties as individuals. IMHO, this is consistent with the other amendments intentions.

Your first statement suggested you think the level of scrutiny matters and your second suggests that it is irrelevant. While I agree with you that the level of scrutiny is irrelevant because of the nature of the right, that really isn’t what your first comment says. Thanks for the clarification.

The court might believe that Amendment Two smiles on gun ownership, so if the government wants to restrict it, it has to not only show it has a good reason for doing so, but also that it chose a “minimally restrictive” method of achieving that reason. It “trammelled” the right to bear arms as little as it could and still achieve the goal.

Similarly, A14 frowns on racial classifications, so if the government wants to employ them it not only has to show that it has a good reason, but also that the method chosen was ‘narrowly tailored’ to achieve it. it “trammelled” the right to equal treatment re race as little as it could and still achieve the goal.

so “narrowly tailoring” un AA is akin to “less restrictive” here.

hope that helped. somehow i doubt it, though. ;)

Let me make this more simple. Do you think “gun-owners” is a suspect classification?

The rest of your post doesn’t explain why you think narrow-tailoring will be a part of this decision.

Not so. You see under Federal law all of your parade of horribles are perfectly legal to own*. Yes, there are onerous hoops to jump through, registration by the Federal government, $200 taxes to pay (per item in the case of grenades and shells), Federal Explosive Licenses in some cases and so on. But, if you have the money and the time and really want to, you can own all of them.

Which is specifically what DC says you can’t do for a simple handgun. And that is why the ban cannot stand as a reasonable regulation.

*The one exception to this is fully automatic weapons manufactured after 1986. However, if those on the court who care for such things took a look at the legislative history of how that passed they wouldn’t be able to draw any conclusions from that that could be applied elsewhere.

Why do you think “narrow-tailoring” analysis will be a focus of this case, Steve?

The individual rights interpetation of the second amendement holds that the right to bear arms was written into the constitution in order to protect the rights of citizens to some sort of self defense (individual and/or against a government tyranny). It was passed due to fears theat the government might restrict the right on the grounds that it is too dangerous to allow citizens to carry arms. So if there are secondary effects from excercise of the right that could be legitimately found, e.g. a study that shows a particular risk of some airborn disease increasing when a certain type of weapon (that perhaps contains asbestos) is carried around, it would make sense to uphold the regulation. But to restrict possession of certain types of weapons on the grounds that they are so dangerous that private citizens can’t be trusted with them is to abridge the right at the very point it was passed to protect.

“I think you are misconstruing the city’s third argument. It maintains not that the law is reasonable because it prevents violence, but that it is reasonable because it permits long guns.”

Perhaps it’s both? From the petition:

“The District’s decision to address these handgun specific problems by banning the private possession of handguns was more than reasonable, because handgun bans work. Controlled research demonstrates a significant relationship between handgun ownership in particular and violent crime.”

But to my knowledge, the District is overstating its case. The research results are conflicted on this point.

It will surprise me if “social science research”, in the form of studies on the impact of handgun bans on violent crime rates, doesn’t play a big role in this case.

Another issue that i think will be prominent is whether the District’s ban is “narrowly tailored” to achieve its goal. We often see that language in affirmative action cases, and i think it will appear here as well. For example, in their petition, DC says:

“The Council had good reason to conclude that less restrictive measures were insufficient and would continue to be so … Safety mechanisms, while helpful, can prove technically inadequate, and compliance rates with mandatory safety measures are spotty.”

So in determining the “reasonableness” of the ban, the court (if it is inclined to hold that there is some kind of right to own handguns, but one subject to reasonable time/place/manner restrictions) might look at whether these claims about the inadequacy of less restrictive alternatives are true or not.

Thanks for your thoughtful comment. I mentioned “time, place and manner” simply to indicate that even fundamental rights are subject to regulation.

I think you are misconstruing the city’s third argument. It maintains not that the law is reasonable because it prevents violence, but that it is reasonable because it permits long guns. It puts handguns in a separate category of extremely dangerous weapons and subjects them to stricter regulation. This is similar to special categories for and stricter regulation of assault rifles, grenade launchers, bazookas, missiles and explosive devices.

If we must compare the First and Second Amendments, then this case is sort of like Rock Against Racism. Even though control of sound levels was part of the protected artistic expression, the impact of the sound levels on others justified a limitation on the scope of that control. As an erstwhile MC5/Ramones fan, I may feel oppressed by the state when I have to keep the volume down, but hey, it’s a purpose of the state to limit the public behavior of its subjects for the common weal.

P.S. It would seem to me, seeing the work that Mr. Goldstein has done in the past on behalf of individuals asserting there rights against government infrigemment, that he likely shares the views of Justice Black in that “Constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.” This is a sentiment I whole-heartedely agree with, and I find it curious that Mr. Goldstein appears to veer from this path in representing the District of Columbia in its attempt to convince SCOTUS to adopt a narrow construction.

Of course those findings shouldn’t matter, since this is a constitutional issue, and if A2 protects the right to own a handgun it does so independent of whether laws banning handguns reduce crime or not, but it likely will anyway.

Even the 1st Amendment is subject to reasonable time, place and manner restrictions. The background of handgun crime against which the law was enacted is just flavor, like the recitation of the grisly facts of a death penalty case when they are outside the actual legal issue being raised.