Talk:District of Columbia v. Heller

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Contents

[edit] 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)

[edit] 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)
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 rejected 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)

[edit] 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)

[edit] 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)

[edit] 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)

[edit] 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)

[edit] 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)

[edit] "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)

[edit] 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)

[edit] 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 in support of petitioners
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)

[edit] "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)

[edit] 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)


[edit] 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)

[edit] 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)

[edit] 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)

[edit] 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)

[edit] 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)

[edit] 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)

[edit] 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.

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.

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)

[edit] 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)