March 13, 2007

Problems With Parker

This is not an analysis of the decision in the broad sense. It's merely touching on some areas of concern from the decision itself. I'll skip the discussion of standing & try to get to the heart of my concerns. Here's the .pdf of the decision.

To start with I'll use the D.C. Circuit's own words against them. At page 20 I found the following:

"It seems unlikely that the Supreme Court would have
lumped these provisions together without comment if it were of
the view that the Second Amendment protects only a collective
right. The Court’s discussion certainly indicates—if it does not
definitively determine—that we should not regard 'the people'
in the Second Amendment as somehow restricted to a small
subset of 'the people' meriting protection under the other
Amendments’ use of that same term
(emphasis added)

Going further into their explanation in the following paragraph:

"In sum, the phrase 'the right of the people,' when read
intratextually and in light of Supreme Court precedent, leads us
to conclude that the right in question is individual. This
proposition is true even though “the people” at the time of the
founding was not as inclusive a concept as “the people” today.
See Robert E. Shallope, To Keep and Bear Arms in the Early
Republic, 16 CONST. COMMENT. 269, 280-81 (1999). To the
extent that non-whites, women, and the propertyless were
excluded from the protections afforded to 'the people,' the
Equal Protection Clause of the Fourteenth Amendment is
understood to have corrected that initial constitutional
(emphasis added)

Continuing from page 20 to 21:

"The wording of the operative clause also indicates that the
right to keep and bear arms was not created by government, but
rather preserved by it
. See Thomas B. McAffee & Michael J.
Quinlan, Bringing Forward the Right to Keep and Bear Arms:
Do Text, History, or Precedent Stand in the Way?, 75 N.C. L.
REV. 781, 890 (1997). Hence, the Amendment acknowledges
'the right . . . to keep and bear Arms,' a right that pre-existed
the Constitution like 'the freedom of speech.' Because the right
to arms existed prior to the formation of the new government,
see Robertson v. Baldwin, 165 U.S. 275, 280 (1897) (describing
the origin of the Bill of Rights in English law), the Second
Amendment only guarantees that the right 'shall not be
(emphasis added)

Sounds good so far right? (Bad puns, even constitutionally themed bad puns are always intentional) & it is. It acknowledges what a lot of us have been yelling for quite some time - that the Right to arms pre-exists government & is indeed individual in nature. But good things seldom last long.

At page 53 amidst a discussion of a properly outfitted militiaman I found this:

"That is not to suggest that the government is absolutely
barred from regulating the use and ownership of pistols. The
protections of the Second Amendment are subject to the same
sort of reasonable restrictions that have been recognized as
limiting, for instance, the First Amendment
. See Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (“[G]overnment may
impose reasonable restrictions on the time, place, or manner of
protected speech . . . .”). Indeed, the right to keep and bear
arms—which we have explained pre-existed, and therefore was
preserved by, the Second Amendment—was subject to
restrictions at common law. We take these to be the sort of
reasonable regulations contemplated by the drafters of the
Second Amendment. For instance, it is presumably reasonable
'to prohibit the carrying of weapons when under the influence
of intoxicating drink, or to a church, polling place, or public
assembly, or in a manner calculated to inspire terror
. . . .' State
v. Kerner, 107 S.E. 222, 225 (N.C. 1921). And as we have
noted, the United States Supreme Court has observed that
prohibiting the carrying of concealed weapons does not offend
the Second Amendment
. Robertson, 165 U.S. at 281-82.
Similarly, the Court also appears to have held that convicted
felons may be deprived of their right to keep and bear arms
. See
Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citing Miller,
307 U.S. at 178). These regulations promote the government’s
interest in public safety consistent with our common law
tradition. Just as importantly, however, they do not impair the
core conduct upon which the right was premised

Reasonable restrictions also might be thought consistent
with a 'well regulated Militia.' The registration of firearms
gives the government information as to how many people would
be armed for militia service if called up
. Reasonable firearm
proficiency testing would both promote public safety and
produce better candidates for military service. Personal
characteristics, such as insanity or felonious conduct, that make
gun ownership dangerous to society also make someone
unsuitable for service in the militia
. Cf. D.C. Code § 49-401
(excluding 'idiots, lunatics, common drunkards, vagabonds,
paupers, and persons convicted of any infamous crime' from
militia duty). On the other hand, it does not follow that a person
who is unsuitable for militia service has no right to keep and
bear arms. A physically disabled person, for instance, might not
be able to participate in even the most rudimentary organized
militia. But this person would still have the right to keep and
bear arms, just as men over the age of forty-five and women
would have that right, even though our nation has traditionally
excluded them from membership in the militia..."
(emphasis added)

That is the great problem with this decision. It does not see certain infringements of the Right to arms as infringements. Now before we get into that old argument about felons & guns (which I think they've already made a good part of my case when they said on page 20 that the protections of the constitution should not be limited to a subset of the people) re-read the next to the last quoted paragraph that quotes from State v. Kerner:

" is presumably reasonable
'to prohibit the carrying of weapons when under the influence
of intoxicating drink, or to a church, polling place, or public
assembly, or in a manner calculated to inspire terror..."

Even if we avoid discussion of how high a BAC you'd need to be "carrying under the influence" or whether axe murderers should have shotguns upon parole it's still a problematic statement for us. Carrying while attending a religious service could mean the difference between being a survivor & a victim. Certainly mass murders in American houses of worship are not common, but I do not contend that the government has any place in saying that you're so safe in church that carrying is forbidden. (Here's an interesting article on a church shootings by Joseph Farah that is in agreement with the "dangerous victims" approach to such things.)

Further there are a few states (Tennessee comes to mind as does NC) that have laws against being armed for the purpose of causing terror. I admit I haven't done thorough digging into cases from those respective states dealing with such charges but I have done a little (albeit some time back). I do not recall any clear definition of "terror" & the law seems to have been used primarily at the discretion of the government (specifically the constabulary). If I'm taking a hike wearing WW2 fatigues & carrying a shouldered Garand you might not be bothered by this, but someone else could become frightened & that could be the basis for the "terror" element necessary to invoke such laws. & to quote from pages 57 & 58 of the decision, "...judicial lenity cannot make up for the unreasonable restriction of a constitutional right."

I see no parallel between restrictions on the 1rst amendment & the examples shown above. (In fact here's a piece I did concerning prior restraint & another I did touching on a common argument in relation to concealed carry laws 7 a first amendment exception). The court does see them as the same (or closely related) though & that's my main contention.

Concerning concealed carry again I find a contradiction. They surmise that "...the United States Supreme Court has observed that prohibiting the carrying of concealed weapons does not offend the Second Amendment." Yet from page 27 where they discuss the meaning of "bear" in the 2nd amendment they rely on some source material which points to a different conclusion than the one SCOTUS arrived at:

"We also note that at least three current members (and one
former member) of the Supreme Court have read 'bear Arms'
in the Second Amendment to have meaning beyond mere
soldiering: 'Surely a most familiar meaning [of 'carries a
firearm'] is, as the Constitution’s Second Amendment (‘keep
and bear Arms’) and Black’s Law Dictionary . . . indicate:
‘wear, bear, or carry . . . upon the person or in the clothing or in
a pocket
, for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict with another
person.' Muscarello v. United States, 524 U.S. 125, 143 (1998)
(Ginsburg, J., dissenting, joined by Rehnquist, C.J., Scalia, J.,
and Souter, J.)'
(emphasis in original omitted). "Based on the foregoing,
we think the operative clause includes a private meaning for
'bear Arms.”
(emphasis added)

(Incidentally the SCOTUS dissent quoted, Muscarello v. u.S. was about a case involving sentencing guidelines for firearms possession during a drug crime, so they delved into what that particular law probably meant by "carry" & used Blacks' Law Dictionary to form part of the basis of their reasoning.)

" the clothing or in a pocket..." would seem to imply carrying concealed. In fact it'd be difficult (but not impossible) to think of examples where carrying a firearm in you clothes or pocket would not be concealed. So using their own quotes "bear" would seem to include concealed carry yet 27 pages later they state that laws proscribing concealed carry do not run afoul of the 2nd amendment.

I'll grant their tone is one of acknowledging precedent, but since Robertson v. Baldwin (the case cited in Muscarello) was a case concerning 5th & 14th amendment issues it could be argued that their mention of concealed carry being acceptable under the 2nd amendment is dictum. In fact all the court did in Robertson was assert that it was permissible without explaining its logic; in fact it made mention of it nestled in a discussion of exceptions to other articles in the Bill of Rights.

I understand precedent & its necessity however in the D.C. court's decision they were not bound by it to the point of mentioning it when they seemingly refuted its logic a little over 2 dozen pages prior.

But if despite using the language they used to establish the meaning of "bear" in the first half of the decision they still are not sure about this concealed carry business you'd think they at least had things straight on open carry right?

From page 57:

"...Heller does not claim a legal right to carry a handgun outside his
home, so we need not consider the more difficult issue whether
the District can ban the carrying of handguns in public, or in

Going back to the pieces of the decision I quoted at the beginning of this post I do not see how carry outside the home or in an automobile would present any more challenge than determining if carry inside the home is constitutionally protected. But if we take into account their concept that "reasonable regulation" is permissible then we're reduced to bartering over what is reasonable & those topics could become more challenging.

The Parker decision did get some of the basics right, such as the 2nd amendment being an individual Right & that barring one type of arm is as prohibited as barring all types of arms under said amendment, but the problems come with the scope of their reasoning; that "reasonable regulations" would not be an infringement.

"Reasonable regulations". We've all heard those words before, usually as we're asked to lay down a piece of the 2nd amendment on an altar to be sacrificed "for the children". Courts have certainly used them before, but not (in my memory) mixed in with a decision that otherwise got the basics correct.

It could be argued, since the topics of carry in public & ownership by prohibited classes of persons did not come up directly in this case, that those reflections of the court were mere dicta. But I think just as strong an argument could be made that while not directly concerning anything at issue they were necessary to explain the court's reasoning on the substantive matters. If that holds sway then we (according to the court) have an individual Right as long as we can barter successfully for its use; as long as we can prove a restriction to be "unreasonable" in other words.

I would also imagine that despite the constant comparison to the 1rst amendment (in that it has exceptions) the level of judicial scrutiny afforded the 2nd amendment would not be as strict even if the Parker. decision's logic stood. Instead of a strict scrutiny review we should expect at best intermediate scrutiny & at worst a rational basis review. Currently most courts would use a rational basis review when a 2nd amendment issue was brought before them (well if they didn't put their hands over their ears & eyes while shouting "you can't make me read that or listen to it being read") but that's the whole point.

If "reasonable restrictions" are looked at under a rational basis review then anything short of an outright ban on all types of weapons would be constitutionally acceptable. Even though it'd seem like we won recognition of an individual Right pragmatically very little would change.

I could go on a little bit more but I think that covers the main points I wanted to make.

Now do not misunderstand me; the Parker decision was a good one as far as it went, but it did not go as far as it could have. Partially this is due to the question brought before the court. There was really no judicial need to delve into the matters of concealed or open carry, or vehicle carry, or prohibited persons & the like. In fact registration & licensing were not even argued against so it's not likely that the court would charge up those hills on its own initiative. But in the text of the Parker decision itself lies some pretty strong arguments against what they later assumed as uncontentious (or unnecessary to bother with) exceptions to the 2nd amendment's protections.

Therein lies a potential problem with the incrementalist strategy; if there is not sufficient follow up then no real change takes place. If "shall issue" concealed carry laws are not followed by pushes for "no permit" carry laws then you have generations growing up thinking it proper to beg leave of the state to tuck a pistol in their pockets. After all, even if your grandfather or great grandfather yelled with indignation at paying a fee in order to gain permission to drive one of those new fangled horseless carriages when was the last time you entertained serious discussion of the state having the proper authority to license you to drive? No matter how you come down on that question I think you can see the potential for accepting a burdensome practice through simply becoming accustomed to it. (& yes; a license is relatively better than an outright prohibition, but it’s not as good as free exercise). Then again I do understand that as limited as the Magna Carta was in scope it was the first in a necessary series of steps that brought us to where we are now. Everything does have to start someplace; it's just important to follow through instead of saying "good enough" before the task is completed.

With Parker it could have some positive effects (depending of course on the appeals & the re-trial; it was simply a reversal & remand after all) but it also could leave us almost exactly where we are now. An outright ban would be forbidden & perhaps even a ban on specific classes of arms would be impermissible, but everything else would be a question of whether we could convince a court that it was "unreasonable" under a (presumed) rational basis review.

We're not out of the woods yet though we're not quite as deep in the middle of the forest as we were. The question is will we be content to take a few steps further than we'd gone before or will we strive to leave the timbers? & to turn a phrase around that I know will come up in arguments about this, will the (arguably) good become the enemy of the (potentially) perfect?

Posted by Publicola at March 13, 2007 05:15 AM | TrackBack

You must be a genius. Usual standards of determination apply: how much you agree with me.

This is what I wrote in comments at Armed and Safe.::

"We take these to be the sort of reasonable regulations contemplated by the drafters of the Second Amendment. For instance, it is presumably reasonable “to prohibit the carrying of weapons when under the influence of intoxicating drink, or to a church, polling place, or public assembly, or in a manner calculated to inspire terror . . . .” State v. Kerner, 107 S.E. 222, 225 (N.C. 1921)." -excerpted from the opinion.

I have a great deal of heartburn with this paragraph. For one thing, the panel didn't know as much as I had hoped. There were fines and punishments in place in the law in our early history for attendees at church or public assembly who did not arrive properly armed with shot and musket or rifle. Exceptions were made for the elderly and infirm who might have difficulty carrying arms to meeting, but every other male was expected to be armed and subject to punishment if he failed this duty.

Ergo, I must disagree. What they call "reasonable" is historically inaccurate logically flawed, and consitutionally prohibited.

As for inspiring terror, that is an open door to abuse large enough drive a freight train through sideways.

I have borne arms in all stages of sobriety and its counterpart. I have yet to violate anyone because I had a drink and a gun at the same time. However, this particular item is not large on my list of things to be upset about. I will state without fear of reasonable refutation that if one cannot drink and maintain decorum, one cannot and should not drink. Although, I wouldn't make it a law. Strictly personal opinion on this and one I am not willing to argue too heartily.

I have one more problem with the ruling, but overall, I am so pleased with it and impressed by it that I will save it for another day.

This was a really huge and unexpected mostly correct decision. Hooray!

Posted by: straightarrow at March 12, 2007 11:17 PM

Posted by: straightarrow at March 13, 2007 03:32 PM

Don't look a gift horse in the mouth. Less than a decade ago, the gun-grabbers could (and frequently did) gloat that not one measly circuit had acknowledged that the Second Amendment meant anything at all. As recently as last Thursday, they could still say that no court had ruled that the Second Amendment meant enough to strike anything down. Friday's decision may not have been perfect, but it was a sea change in the right direction.

Posted by: Xrlq at March 13, 2007 05:18 PM

Thanks. Us geniuses has to stik togeder ya know :)

My job is simple: bitch. therefore even in the most decent of court decisions I feel it my personal - nay, sacred duty - to point out any problems I see (even if squinting is required) & fill up a 2,000+ word space about it. :)

Actually unless we get a strict scrutiny to go along with any decision then we're not really going to be in a much different place than we are now; we'll just have one more comeback for the anti's when we get in shouting matches.After all if they ban open carry (for instance0 because they say it's a collective right is that any different pragmatically from banning it because it's a "reasonable restriction" on an individual Right?

One other good thing though - unless I'm much mistaken the D.C. machine gun law (which defines "machine gun" as a semi-auto capable of holding 12 or 15 rounds - I forget the exact number) would be void if Parker holds up & someone brings a challenge to it. Course the press would have a field day with that - probably say something about DC being a "machine gun mecca" :)

Posted by: Publicola at March 14, 2007 05:22 AM

This was a really huge and unexpected mostly correct decision. Hooray

xrlq, you did see this part didn't you?

Posted by: straightarrow at March 14, 2007 10:33 AM