Cowboy Confessional

The meanderings of the Parker (now Heller) case is enough to confuse God, were he paying attention.

For people distracted by American Idol and other drivel, the Parker cum Heller case is perhaps the single most important test of constitutional originalism to reach the ears of the Supreme Court since … well, since before I was born. The case pitted a few Washington D.C. residents against the city itself. The local government (you know, the one with coke snorting mayors) deigned that no resident should possess a working firearm. Somehow word of this legislation never reached the projects, where shooting your neighbor is such a routine event that it is listed in the Sunday church antisocial calendar.

So, Parker, Heller and a few other citizens — who wanted to arm themselves in self defense against the thugs who had already armed themselves — sued the city on the basis that the 2nd Amendment of the U.S. constitution said they could “keep and bear arms.” Such straightforward language, being foreign to the ears of D.C. politicians and others in the whoring caste, was naturally refuted. Parker, Heller, et all fought the local law and won.

The basis and initial lower court ruling are straight forward:

1. Washington D.C. bans handgun ownership, and forces citizens to make even long guns inoperative
2. The 2nd Amendment consecrates an individual right to own a gun
3. The court told D.C. to print out their gun ban rules, roll them up, and insert them into that dark hole where politicians reside

With fanfare heretofore reserved for marching bands and young men boasting of first time sex, D.C. politicians said they would appeal to the Supreme Court, and then proceeded to submit the weakest appeal possible. In fact their own appeal is filled with misinformation about the nature and letter of their own laws. The mad clan at the Volokh Conspiracy made note of this, the relevant blurbs being:

But when DC filed its petition, the petition flagrantly violated DC’s representations to the Court of Appeals. DC’s petition for a writ of certiorari presents one, and only one question: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” This question of course addresses the handgun ban, but does not address the separate holding of the ban on defensive long guns. By Supreme Court rules, the DC petition was required to list all statutes or ordinances which are at issue in the petition, and the DC petition does not list the ordinance containing the self-defense ban.

Instead, DC falsely told the Court that a person in DC “may lawfully possess a rifle or shotgun to protect himself.”

D.C.’s lawyers are not idiots, despite the evidence provided in their oral arguments before the lower court. So this horrific appeal for writ of cert is confounding at first glance.

At second glance, it may well be a smart way to dodge a metaphorical bullet. I predicted as much last May.

I am told by some constitutional law professors that the Supremes are picky people. They do not take “dirty” cases with unresolved extenuation. When the city sloppily appealed their case, they gave the court ample reason to not write a writ. At least four justices have to agree that a writ of cert is warranted. Rigging the appeal as D.C.’s lawyers did gives activist judges reason to refuse the case and in so avoid risking a majority ruling in favor of an individual right to arms.

Sneaky. But the opposing legal team — the ones who engineered this elegant test of the constitution — were on the ball. In written arguments they addressed the calculated inconsistencies proffered by the District, and in addressing them may well eliminate the con.

Parker-Heller is too juicy for a jurist to ignore, and being a betting man, I wager come this week the Supremes will add this case to their 2008 docket.

Glenn Reynolds, who knows more about law, the Supreme Court and the 2nd Amendment than I ever will, is taking my bet. In a recent email debate sponsored by the Federalist Society, he speculates that the Supremes will duck the issue because they cannot risk making the right to keep arms as equal to unenumerated rights:

I’m going to go out on a limb here and predict that the Supreme Court will deny certiorari on this case. I think that’s likely because of the difficult position the Court would be placed in if it failed to find an individual right to arms under the Second Amendment. … The decision would have far-reaching effects, particularly in the event of a reversal. Here is one way to think about the message the Supreme Court would be sending if it reversed the D.C. Circuit on the merits in Parker . . . That’s a comparison between the Court’s handling of the enumerated rights claim at issue in Parker, and its demonstrated willingness to embrace even non-enumerated individual rights that are congenial to the political left, in cases like Roe and Lawrence. “So the Constitution says Roe, but it doesn’t say I have the right to keep a gun to defend my home, huh?” The Court’s jurisprudence of unenumerated rights (with which I’m largely in agreement, by the way) would make it politically very difficult for the Court to eviscerate a clearly enumerated right to which many Americans attach great importance. At the same time, I don’t think the Court is willing to affirm in Parker. If I’m right, a denial of certioriari is the only way for the Court to avoid a very difficult situation.

Interesting times.

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This entry was posted by Guy Smith on Sunday, November 11th, 2007 at 9:03 am and is filed under Constitution. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.