This One's for All the Marbles.

Now we get to see what our Supreme Court is really made of.

As early as tomorrow, Tuesday, November 13, SCOTUS may announce its decision whether to hear D.C. v. Heller this term. No matter what, this case will define, I think, the Roberts Court. If they decide to hear the case, it will be the first time the Supreme Court has heard a case specifically on the Second Amendment since 1939. If they deny certiorari they will continue a tradition of dodging the question of just what that amendment protects that has lasted sixty-eight years.

The topic is the legal definition of these twenty-seven words:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Do these twenty-seven words mean that government is prohibited from infringing on the individual right of citizens to possess and carry firearms, or do they mean only that the government has the power to form and arm militias? Or do they mean something else entirely?

The law firm of Gura & Possessky filed their brief in response to the City of Washington, D.C.'s petition for a writ of certiorari in the D.C. v. Heller (formerly Parker v. D.C.) case on October 4. Unlike most petitions by successful plaintiffs, it was a brief in favor of the Supreme Court hearing Washinton D.C.'s appeal.

It's a thing of beauty, and hit every single point, with emphasis.

The petition states in its opening paragraphs:

The case is further suitable for review because the question it presents is quite narrow. Contrary to Petitioners' tendentious formulation of the question presented in their petition, the question presented by this case is whether the Second Amendment secures an individual right to keep basic functional firearms, including ordinary handguns, within the home. In resolving that narrow, specific question, this Court need not decide the full extent of Second Amendment rights nor even determine the appropriate level of constitutional scrutiny for regulations that implicate the Second Amendment.

Shorn of the legalese, this means "you only have to decide on whether the Second Amendment protects an individual right or not. Nothing else." This is the fundamental question upon which all other questions of "gun control" rests, and is best illustrated by the 1996 decision of the Ninth Circuit Court of Appeals that stripped all residents of that circuit (including your humble author) of their right to arms. That decision was Hickman v. Block, and here is (as I have characterized it before) the court's exhaustively researched, deeply-considered, well thought-out reasoning behind their "collective rights" conclusion:

We follow our sister circuits in holding that the Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action.

The Second Amendment is only twenty-seven words. With forty-eight, the Ninth Circuit rendered that amendment meaningless. That court later expanded on that holding in Nordyke v. King and Silveira v. Lockyer, concluding in that last case:

After conducting our analysis of the meaning of the words employed in the amendment’s two clauses, and the effect of their relationship to each other, we concluded that the language and structure of the amendment strongly support the collective rights view. The preamble establishes that the amendment’s purpose was to ensure the maintenance of effective state militias, and the amendment’s operative clause establishes that this objective was to be attained by preserving the right of the people to “bear arms” — to carry weapons in conjunction with their service in the militia. To resolve any remaining uncertainty, we carefully examined the historical circumstances surrounding the adoption of the amendment.

Our review of the debates during the Constitutional Convention, the state ratifying conventions, and the First Congress, as well as the other historical materials we have discussed, confirmed what the text strongly suggested: that the amendment was adopted in order to protect the people from the threat of federal tyranny by preserving the right of the states to arm their militias. The proponents of the Second Amendment believed that only if the states retained that power could the existence of effective state militias — in which the people could exercise their right to “bear arms” — be ensured. The historical record makes it equally plain that the amendment was not adopted in order to afford rights to individuals with respect to private gun ownership or possession. Accordingly, we are persuaded that we were correct in Hickman that the collective rights view, rather than the individual rights models, reflects the proper interpretation of the Second Amendment.

Thus, we hold that the Second Amendment imposes no limitation on California’s ability to enact legislation regulating or prohibiting the possession or use of firearms, including dangerous weapons such as assault weapons. Plaintiffs lack standing to assert a Second Amendment claim, and their challenge to the Assault Weapons Control Act fails.

Ninth Circuit Judge Andrew J. Kleinfeld characterized that decision in his dissent when the case was denied an en banc rehearing:

I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould's special concurrence in Nordyke v. King, and with the Fifth Circuit's opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment "imposes no limitation on California's [or any other state's] ability to enact legislation regulating or prohibiting the possession or use of firearms" and "does not confer an individual right to own or possess arms." The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel's theory is that "the Second Amendment affords only a collective right," an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states' rights, opining that "the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession," but was instead "adopted to ensure that effective state militias would be maintained, thus preserving the people's right to bear arms." It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel's protection of what it calls the "people's right to bear arms" protects that "right" in the same fictional sense as the "people's" rights are protected in a "people's democratic republic."

Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.

Judge Alex Kozinski in his dissent to that same decision put it more bluntly:

Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet...and that “persons, houses, papers, and effects” also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; its using our power as federal judges to constitutionalize our personal preferences.

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms.

Kleinfeld continues in his dissent:

Much of the panel decision purports to be an attempt to figure out what the word “militia” means in the Second Amendment. But the panel’s failure to cite the contemporaneous implementing statute defining the term demonstrates the tendentiousness of its analysis. The statute defining the militia, which in substance provides that the “militia” consists of all adult male citizens without regard to whether they are in any state or federal military service, has been subsequently altered to expand its coverage, but the federal militia statute remains in effect. Besides overlooking the statute, the panel somehow failed to notice that the United States Supreme Court, in United States v. Miller, held that the term “militia” in the Second Amendment meant, and means, “all males physically capable of acting in concert for the common defense.” We are an inferior court, bound by this holding of the Supreme Court.

The panel opinion swims against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article that claims “keep and bear” means the same thing as “bear,” which itself means only to carry arms as part of a military unit.

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, "the people," as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to "the people," including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of "the people" to be secure against unreasonable searches and seizures, or the right of "the people" to freedom of assembly, but times and personnel change, so that this right and all the other rights of "the people" are jeopardized by planting this weed in our Constitutional garden.

After several pages indicating point-by-point where the majority deluded themselves, Judge Kleinfeld concludes his dissent:

Congress and the states may enact reasonable restrictions to manage the ways in which the populace exercises its right to keep and bear arms, just as reasonable restrictions are imposed on our rights to free speech, free assembly, freedom from search and seizure, and all our other constitutional rights. What the Second Amendment prohibits is not reasonable regulation consistent with its purposes, but disarmament of the people. Where the Constitution establishes a right of the people, no organ of the government, including the courts, can legitimately take that right away from the people. All of our rights, every one of them, may become impediments to the efficient functioning of our government and our society from time to time, but fortunately they are locked in by the Constitution against permanent loss because of temporary impediments. The courts should enforce our individual rights guaranteed by our Constitution, not erase them.

What is at stake here, essentially, is the tattered remnants of the Constitution. Does it still mean anything at all, or is it really just a piece of paper our officials, elected and unelected, can wipe their collective posteriors with? Will the Supreme Court do its duty to defend the Constitution, or abrogate that duty in such a way as to remove any doubt?

The First Amendment declaration "Congress shall make no law... abridging the freedom of speech...." was violated by the McCain-Feingold Incumbent Protection Campaign Finance Reform Act - and while some of the language was struck down by the Supreme Court, not all of it was. Fourth Amendment protections against unreasonable search and seizure, and its restrictions on the issuance of and wording of warrants have been shredded by the unending "War on (some) Drugs™" along with the Fifth Amendment's prohibition against deprivation of property without due process. The Fifth has been further pulped by decisions rendering the "public use" clause moot. And the Tenth Amendment?

Let's not go there.

Oh, and Silveira v. Lockyer? The Supreme Court denied cert. in 2003 and let that weed grow and flower in our Constitutional garden.

The Court's composition has changed. It only takes four Justices to grant cert. Those four could very easily be Roberts, Alito, Scalia, and Thomas. This leaves five other justices, just one of which needs to understand his or her guardianship of the Constitution, to be unwilling to discard like a crumpled gum wrapper a fundamental enumerated right, to make it plain that the Constitution is not a relic, that it is not a "living document" to be redefined to mean anything judges sitting on a bench decide it means, whenever they so please.

So we will see.

This one is for all the marbles.

UPDATE: No announcement today, according to SCOTUSblog. The next case announcement will probably be Nov. 26.

So we just wait....