Heller Observations

Heller Observations

Concurring Opinions has an interesting post up, What to Watch For in D.C. v. Heller, a compendium of ten items the author Rick Mike O'Shea thinks we should pay close attention to when the decision is finally handed down. (I concur with his belief that it will be one of if not the last decisions released by the Court this term, on or after June 23.)

To me, the most interesting points raised are, of course, the questions of how the court will address U.S. v. Miller (and I expect both concurring and dissenting opinions to split on this, creating a nightmare of dicta for future courts to wade through), whether the Court will address the level of scrutiny at all (I'm voting for "no"), and - one I hadn't really considered, the question of standing. As Concurring Opinions notes:

The Supreme Court litigation in D.C. v. Heller has been so rich and important that one forgets about the accompanying cross-petition for certiorari, Parker v. D.C. The Heller litigation originally involved six different plaintiffs, each raising slightly different challenges to D.C.'s gun laws. However, the D.C. Circuit panel dismissed five of the six plaintiffs (all but Dick Heller) under an unusual standing doctrine that the circuit had adopted in an earlier Second Amendment case. This is why the case was recaptioned from Parker to Heller when it reached the Supreme Court.

When the District of Columbia petitioned the Supreme Court for review of the D.C. Circuit's opinion granting judgment in Mr. Heller's favor, plaintiffs' counsel cross-petitioned for review of the denial of standing to the other five plaintiffs. The cert petition on the standing issue, still captioned Parker, has been waiting in limbo on the Justices' desks for seven months, while the Court has granted cert in Heller and held briefing and argument on the Second Amendment merits issue.

I predict that if the Court holds for Mr. Heller on the Second Amendment issue, it will consider this to be quite enough work for one day without also wading into the tangled complexities of standing doctrine. It will "GVR" (summarily Grant, Vacate, and Remand) the Parker part of the litigation back to the D.C. Circuit, which will have to reconsider the question of Second Amendment standing for the other plaintiffs, in light of what the Court says about the nature of the Second Amendment right in Heller.

One thing about cases like this that has always irritated me is the standing argument - that unless you can show that the law has directly adversely affected you, you have no standing to sue. That was the grounds on which the 9th Circuit Court of Appeals decided Hickman v. Block - they said the Second Amendment didn't have anything to do with an individual right to arms, therefore the plaintiff had no standing to sue. In his dissent to the denial to re-hear Silveira v. Lockyer en banc, judge Kleinfeld wrote:

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.

H. Wayne Fincher decided that the only way he could challenge the Federal machinegun ban was to get arrested for violating it. There's something wrong with a system that essentially demands that you break a law before you can challenge its Constitutionality.

But Mr. O'Shea is right - I don't expect SCOTUS to touch that ball of worms.