humanities.philosophy.objectivism

On Mar 22, 3:24 pm, David Buchner wrote:
> Agent Cooper wrote:
> > The most hilarious moment was when DC gave their fallback "OK, so
> > maybe there's an individual right, but it's subject to reasonable
> > regulation, and a total ban on handguns of all kinds is reasonable,
> > cuz there are other kinds of guns you could buy (waterpistols
> > perhaps)" to which Big John replied "I see. So a total ban on books is
> > compatible with the First Amendment providing people are permitted to
> > buy magazines?" Love it.
>
> I haven't read enough. So this case is *specifically* on the "collective
> vs. individual right" thing? I know about that, at least.

Yes, they kinda have to answer it this time. I haven't read the
opinions or briefs yet, so this is second hand. The District of
Columbia enacted a statute banning handguns. Some plaintiff filed a
section 1983 (constitutional tort) action for injunctive relief
alleging that the statute was unconstitutional if their Second
Amendment rights are interpreted (as must needs be) as individual
rights. The federal district court dismissed the suit (probably on
standing issues, though I haven't seen the district court opinion),
plaintiffs appealed and the DC Circuit reversed, holding that there
was standing, thus reaching the threshold question of whether there is
an individual right, and they held that there is. The District
petitioned for cert that the DC Circuit was in error reversing the
dismissal, and the Supremes granted the petition and have heard the
case. Opinions will come in a few months.

So: to have a section 1983 lawsuit, there must be (1) standing
(something bad happened to *you* that relates to the law, not
something that happened to someone else or that could maybe someday
happen to you), (2) there is a constitutional right, and (3) it was
violated causing the harm. Injunctive and declaratory relief means
that if P wins, he gets a freeze on enforcement of the statute, and a
statement that it is unconstitutional. He could ask for money damages,
but it's not clear that there are any, and anyway, this is a public
interest law case.

Now, they *could* reverse the reversal and hold that there was no
standing, but it would be a very odd thing to do; they left alone
(declined to grant cert) Emerson, the only prior circuit case finding
an individual right. So by granting cert they indicate an intention to
speak to the substantive issue rather than to uphold the district
court by talking only about standing. Oral arguments were all about
the substantive issue. I mean, the whole standing issue revolves
around the difference between suing under 1983 *before* being
prosecuted for violating a gun ban or defending oneself by reference
to the Second Amendment *after* violating the gun ban. In short, the
cases will keep coming, and talking about standing won't settle
anything. Now the third item in my list above is violation. Expect
that after an individual right is found, there will be a holding that
it is subject to "reasonable regulation." That's OK (prisoners on
death row are not deprived of their Second Amendment rights by not
being allowed access to bazookas). But was a near total ban on
possessing handguns in the home reasonable? If not, the plaintiff
wins, the statute itself was unconstitutional. And that will be the
first time that someone asserting the Second actually *won* and got a
statute overturned for unconstitutionality using it. (Emerson won the
individual right issue only to lose on the reasonable regulation
issue, i.e., you have a right but it wasn't violated, but that was
only one circuit court, so it's only the federal law in Texas and
thereabouts). The oral arguments show every indication that the Big
Five want to go there and tackle the Big Enchilada.

Make sense?

http://snipurl.com/22e66 [pacer_cadc_uscourts_gov]