DC Circuit Court Still Against the 2nd Amendment

Today, the District of Columbia Federal District Court ruled against Dick Heller's latest challenge to DC's restrictive gun laws. Heller claimed that the District's gun registration, assault weapons ban, and high-capacity magazine ban were not "usual and reasonable". Paul Helmke of the Brady Campaign, short on victories recently, quickly praised the ruling:

Politicians and legislatures at all levels should stop using the Second Amendment as an excuse for inaction against gun violence. They should follow the District’s example and pass the strong, common sense gun laws Americans need and demand to protect their communities.

What Helmke (and other articles on the ruling) fail to mention is that this is the same District Court that dismissed Parker v DC, which later became DC v Heller. It is not surprising that this court would find DC's onerous restrictions Constitutionally palatable. I believe that the more appropriate question is what regulation (outside of the outright ban that the Heller case overturned) wouldn't the DC Circuit find reasonable? Instead of using the strict scrutiny that other enumerated Constitutional rights receive, Judge Ricardo Urbina applied intermediate scrutiny (using the pre-Heller US v Miller case as a guide) so he could defer to the DC City Council's cries for public safety:

Because the Council provided ample evidence of the ways in which the registration requirements will effectuate the goal of promoting public safety, and because public safety is a quintessential matter of public regulation, the court concludes that there is at least a substantial nexus between the registration requirements and the important governmental interest underlying those requirements.

This is where things start to unravel. Judge Urbina claims that these restrictions are 'reasonable' under the 2nd Amendment, because the right must be balanced with 'important government interest' of 'promoting public safety' (instead of enjoying strict scrutiny). Furthermore, the judge states that the Council provided 'ample evidence' to support these claims. The full decision reveals some scary developments on this front. The council generated its evidence by holding hearings in which they took testimony from anti-gun advocates as well as token pro-gun advocates. They then, unsurprisingly (this is the council that believed their outright ban on handguns and functional long arms was Constitutional), sided with the anti-gun advocates and presented these findings as fact while at trial. Judge Urbina took these findings at face value. Who were some of these unbiased and dependable experts, whose testimony was used to find law such as the 'assault weapons' ban reasonable?

• Brian Siebel: Senior Attorney with the Brady Center to Prevent
  Gun Violence - the preeminent anti-gun advocacy group
  
• Cathy L. Lainer - Chief of the DC Metropolitan Police Department and political appointee of anti-gun DC Mayor Adrian Fenty
  

While none of the articles in the media mention this fact, it is not buried. Apparently Judge Urbina saw no conflict of interest in this testimony and found it worthy of specifically highlighting it in his ruling.

This ruling is clearly only the first step in determining what regulations will be deemed reasonable under the 2nd Amendment, but it is obvious that Judge Ubrina will do everything in his power to keep the 2nd Amendment as close to a dead letter as possible. I believe that he intentionally manipulated the text of the Heller decision to violate the spirit of the ruling and create an avenue to use only intermediate review:

A minority of those courts have applied strict scrutiny based on the fact that the majority opinion in Heller describes the Second Amendment right as a “pre-existing right,” Heller, 128 S. Ct. at 2797, 2804, analogizes the Second Amendment right to other fundamental rights, id. at 2797, 2817 n.27, 2821, and states that the right to have arms was “fundamental for English subjects” at the time of the founding...If the Supreme Court had wanted to declare the Second Amendment right a fundamental right, it would have done so explicitly.

I suppose we should not be surprised by Urbina's dismissive behavior towards DC v Heller and his acceptance of vehement anti-gun testimony as material fact. The DC District Court and the DC City Council have fought against gun rights before. Hopefully this time, just like last time, the DC Circuit Court and Supreme Court will come to the same conclusion: the anti-gun position of the District and the Council are unconstitutional and should be overturned.

Predictable Post-McDonald Media Hysterics

The oral arguments for McDonald v Chicago, challenging Chicago's ban on handguns, took place earlier this week. The official ruling will not be handed down until sometime in June, but the transcripts of the arguments and firsthand accounts by those who attended have all indicated that the Court is likely to incorporate the 2nd Amendment against the states. Having seen this coming since Heller was decided almost 2 years ago, the usual anti-gun media outlets have littered their opinion sections with biased, outcome-oriented diatribes against the forthcoming ruling.

Dana Milbank of the Washington Post is a particularly egregious offender. His gun metaphors are everywhere including the article's title: "Justices arm themselves with activism in Chicago gun ban case". His opening sentence is so absurd that it should give you pause and consider whether further reading is even necessary:

It's about to get easier to shoot people in Chicago. Actually, it's about to get easier to shoot -- and be shot by -- people in the rest of the country, too.

Forget the fact that Chicago is one of the most dangerous cities in America despite its handgun ban. Forget the fact that states that allow handgun ownership and carry have no measurable increase in crime because of it (often there is a decrease in crime). Forget the fact that criminals have no regard for the ban, and only honest citizens are effected by it. Forget the fact that Chicago is one of the few places in the US where handguns are banned outright, making it an absurd notion that allowing them in this one small prohibited area will somehow make it "easier" to shoot people in the rest of the country. Milbank goes on to call Scalia an 'activist' for appearing to support the incorporation of gun rights against the states. What he fails to mention is that simply overturning an existing law does not an activist make, especially in the framework of the Constitution. The activism that Scalia has spoken out against in the past is one that creates rights that have no contextual basis in the words of the Constitution. I believe the Heller decision does an exemplary job of explaining the textual, historical, and cultural meaning of the 2nd Amendment.

But Milbank is not alone. The Philadelphia Inquirer, known to blame the city's rampant crime problem on the gun laws of greater Pennsylvania, also warns of dangerous times ahead. The unsigned article also opens with dire (and fraudulent) warnings:

A gun-rights decision by the Supreme Court two years ago threatened to make it more dangerous to walk the streets of Washington...(the Court) seems intent upon expanding the risk to other U.S. cities by dismantling strong gun-violence safeguards.

I'm sorry - MORE dangerous to walk the streets of Washington? DC has been one of the most violent cities in America for decades. Somehow allowing citizens who submit to various tests, fees, and fingerprints to own a gun strictly in the confines of their home will make the streets more dangerous? Again, this is based upon no factual information whatsoever.

There are two themes that can be found in both articles which I find more frightening than any of the baseless warnings they spout. The first is their advocacy of outcome-driven Supreme Court decisions.

(the Court) will be embarking on a social and legal experiment that's likely to play out across the chalk outlines on many cities' mean streets. Given the national plague of gun violence, that's simply the wrong course for the court.

These articles barely even reference a militia clause or a collective rights theory. They simple state that the 2nd Amendment should not be extended to the states because they have a belief (with inconclusive evidence) that it will save lives. Making decision on the Supreme Court level based purely on the desired outcome is dangerous to all of our rights and essentially makes the Constitution a dead letter.

The second scary theme the authors' put forth is a belief that that an absolute ban on the most popular class of firearms (handguns) somehow is a 'reasonable regulation' that passes the strict scrutiny given to a fundamental enumerated right.

The question now is how far the high court will let the NRA go in undoing the sensible gun-safety rules with which many communities have long been comfortable...As Bryan Miller, head of the New Jersey anti-gun-violence group Ceasefire NJ, noted: "Chicago's handgun ban has been in effect for 28 years. Yet suddenly the gun lobby has manufactured a court case with the intention of totally dismantling our nation's gun laws so gun makers can sell more guns."

The only evidence for this that they submit is simply that these prohibitions have not yet been challenged. But considering that Heller is less than 2 years old, that become an absurd statement.

McClatchy Leans Towards Chicago?

McClatchy News has an article on their website previewing tomorrow's oral arguments in the McDonald v Chicago case, which challenges the city's ban on private handgun possession. Amidst a smattering of tiring firearms metaphors ("in the crosshairs", "restrictions will be blown away", "test-fire arguments") and the assertion that the Conservative Justices will "stretch the Second Amendment further", there is a curious representation of an important amicus brief. The attorneys-general of 37 states filed in support of McDonald et al, stating that states should not have the ability to deprive citizens of the right to own a handgun. McClatchy wrote:

The attorneys general for Florida, Texas, Alaska and 34 other states have urged the court to strike down Chicago's gun ban. So have a majority of members of Congress, and individual prosecutors from 34 California counties.

Think there is a little bias there? I believe that Florida, Texas, and Alaska are being specifically named in a pejorative way. Those states are known as being quite gun friendly, and their citizens and politicians are often the ire of people with liberal and/or anti-gun persuasions. I wonder why Doyle didn't choose to call out Wisconsin, Maine, and Rhode Island? They all signed on. Or maybe Washington, Virginia, and Minnesota? Iowa, Indiana, and Ohio? I suppose that wouldn't quite fit their us vs. them, blue state vs. red state, liberal vs. conservative frame of mind. The truth is, the issue of gun rights has been transcending party lines for decades and this case, with its due process and privileges and immunities implications, has supporters from across the political spectrum.