ABC NEWS, reports that people started lining up to get into the Supreme Court to hear the DC gun ban case-more than a day before the arguments are scheduled to begin. (hatip Orin Kerr)
I'm baffled by this behavior, despite being a law geek, and also despite being otherwise interested in the outcome of the case.
Yes, I realize the Court tomorrow will hear arguments that will frame the debate about whether there is a personal 2nd amendment right to own handguns (as opposed to a right simply for states to have militias). I also realize that this is the first 2nd amendment case to go before the court since the 1930's.
I would imagine that most of the people waiting outside are hoping for an announcement of a personal right.
But even if there is such a right:
1. Such a right would be under the 2nd amendment, and would, not automatically apply to the states.
Many non lawyers (and, unfortunately, some lawyers) are not familiar with the concept that the second amendment, as with the entire bill of rights, does not automatically apply to people asserting these rights against the States. The bill of rights, as it was originally intended, was to limit the powers of the federal government. Only after the 14th amendment was passed, after the civil war, did the Supreme Court gradually apply many of the rights in the bill of rights to the states. This was done one right at a time, and over a span of about a hundred years.
Fortunately, nearly all the rights in the bill of rights now apply equally to the states (with the same exceptions and limitations as they apply to the Federal Government) through the "due process" clause of the 14th amendment. Even rights such as the freedom of speech, which seem to have nothing to do with procedure at all, have been extended, over time, to apply equally under the 14th amendment's "due process" clause to the states-under the theory that people have substantive due process rights in addition to their procedural ones.
The only rights in the bill of rights, so far, which have been said to apply to the federal government, but have not been said to apply to the states (or have specifically been said not to apply to the states) are the right to be indicted prior to trial, and the freedom from excessive bail. (Many states provide state constitutional or statutory protections for these two things-but they are not required under the US constitution).
The Supreme Court has also long held that DC is not a state for this purpose, since it is under direct federal control. Thus, DC must provide indictments under the 5th amendment, and must not impose excessive bail under the 8th, even though, if it were a state, it would have no usch obligation under the US constitution.
The gun ban under discussion in this case is a gun ban in DC. The Supreme Court does not answer theoretical or academic questions of law, but only decides the cases before it. Since the case before it concerns a DC ban, the question of whether a prospective 2nd amendment right would apply to the states is not at issue in this case, and the Supreme Court will not rule that it extends or does not extend to the states.
Therefore, if the Supreme Court, in this 2nd amendment case, announces that there is a personal second amendment right to own handguns, it will, at least at first, apply to DC and the federal government, but will not limit, in any way whatsoever, the ability of nearly every other jurisdiction in the US (the states) from banning handguns entirely. That's even if the gun advocates get what they want.
If you live in NYC or Chicago, which currently also ban handguns for nearly all citizens but former cops etc (similar to the DC ban), and the court announces a right to own handguns under the 2nd amendment-its will still be illegal to own handguns where you live.
Now, I realize that in the future, if a 2nd amendment personal right to own handguns is announced, it may give rise to another case, from Chicago or NYC, about the question of the states. (Local governments are considered under the sovereignty of the states for this purpose). In fact, I'm not sure why a similar party, (with help from the NRA of course), did not bring suit in NYC or Chicago in order to join the suit and force both issues at once. However, this did not happen, and as we have waited 70 or so years since the last gun rights case in the Supreme Court, I wouldn't get my hopes up about the "real" issue of handgun bans being decided any time soon-and thats IF there is any right at all announced.
I should add that the media, which has done a great job hyping the case, hasn't done a great job of informing people that the case will not, under any circumstances, affect gun bans outside DC-except to possibly strengthen them after an unfavorable result.
2. Speaking of decision timing, it is well known that the Supreme Court does not, obviously, announce its decisions on the day of the oral arguments (tomorrow). Additionally, due to the sensitive, complex, and fresh nature of the issues before the court, I would predict the case is not decided until the very end of the term-the end of summer. Finally, once the arguments are made, they will be online within an hour for the law geeks to devour. Also, of course, once the decision is made, a slip copy will be available within the hour. These documents will be free of charge.
3. The case will also not decide (at any level-federal or otherwise) whether there is necessarily a right to carry or use guns in any way whatsoever-other than home self defense, to transport them within your house, and to transport them to and from the gun shop. This is because those issues were not brought by the parties seeking their gun rights before the lower courts, and cannot therefore be heard by the Supreme Court.
(aside-Why didn't they bring those issues? The DC ban also criminalizes carrying-and the text of the 2nd amendment uses the word "bear" arms.-so it would be relevant-Why not bring this up before the court-since your already in court?-and yes the court could have decided you have the right to one but not the other if this had happened.)
4. Going to the Court is not like going to a basketball game. Your being there to cheer on your team has no affect on the outcome (even in basketball the effect you have is extremely small) . I'm even told that the view many members of the press get is form behind a pillar, and that one reporter will hold up fingers (one through nine) to inform the reporters behind the pillar which justice is talking.
so why are people (members of the bar?!) staying out over night in the cold to hear this oral argument? Do these people have jobs? Cases to be working on? Is it because there is history in the making? Or is it because many of them have misinformed views on what the case is about? I suspect at least some of the latter.
I went to see the trial of the administrative law judge in DC who sued a dry cleaner for 64 million-now that was worth it...
There was no transcript of the trail was readily available to the public, it was pretty clear that the admin judge would loose and that that his appeal would be quickly dismissed (and it was even possible the verdict could have been announced from the bench-although it was not)-and the fact that we all showed up visibly shamed the guy, encouraged the poor defendants, and alerted the media and the government that the people were sympathetic to lawsuit abuse.