Tuesday, June 29, 2010

Narrow Focus

Bob S. asked a good question (as he always does) about why the Court has, so far, only decided recent gun cases (Heller and McDonald) as it relates to self defense.  The short answer is that that's been the best way so far to decide the narrow question placed before it. 

The Supreme Court does not issue advisory opinions. This stems from the "case and controversy" clause in the Article III of the Constitution.  In other words, the Court will only answer questions it is given, and only if there is an actual case or controversy in effect. This requires not only an issue to be resolved, but "standing" as well.  Standing is best described as having "skin in the game." Thus, the parties must not only show that the issue exists, but also that the issue (or its decision) affects them, personally. 

In fact, part of every brief submitted to the Court for review of a lower court's decision (called a Petition for Writ of Certiorari) will contain a "questions presented" (sometimes captioned as "Questions Presented for Review") section.  In this section, parties will try to frame the question in a way that favors their interpretation and desired result.  In doing so, they are attempting to define the controversy for the Court.  Outside of that, if the parties do not bring an issue up, the Court will typically not address it.

Moreover, the Court will typically narrowly address the questions it is given. That means that if there are 100 ways to get to a result, they likely choose the narrowest, most restrictive and direct way to get there. For this reason, attorneys, both in their briefs and in their argument, will choose the argument or path they believe will be the most receptive to the court.  Since the Court is creating precendent that will affect cases as they come on down the line, they don’t want to decide more than they have to. That way, there is less of a risk that an overbroad ruling will be misinterpreted and applied to otherwise irrelevant facts.

A review of the Questions Presented in the two cases of interest will illustrate my point.


Petitioners (City of Washington, DC): Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.

Respondents: (the citizens challenging District law): Whether the Second Amendment guarantees lawabiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.


Petitioners (the citizens challenging the state law):  Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

Respondents (City of Chicago and Village of Oak Park, Illinois): 
1. Whether the Court should consider claims that the Second Amendment right to keep and bear arms in common use, including handguns, is a fundamental liberty interest applicable against state and local governments by the selective incorporation doctrine of the Due Process Clause of the Fourteenth amendment.

2. Whether the Court should refuse to revisit its repeated holdings that the Privileges or Immunities Clause of the Fourteenth Amendment does not incorporate Bill of Rights provisions to apply against state and local governments.

The small wording differences are each party's attempt to frame the issue. Now, once the questions are laid out, the attorneys can spend all their time arguing about the many different uses of firearms.  But by doing so, they will run out of time, and perhaps not get to their "key" points.  Both the number of pages in a brief and the amount of argument time are strictly enforced.  This requires attorneys to drill down and focus.  In this case, I believe that for strategy reasons, the prevailing parties have focused on the right to self-defense.  By doing so, in my humble opinion, they focused on the best historical and logical route to get to where we wanted to go.  Now that the foundation has been laid, we can build upon it for the other uses.


Did it MY way said...

From just a common man: Why does it take a 214 page document to tell me I have a right to defend myself and my family? I have an obligation to do so.
The founding fathers have to be rolling in the graves.
Makes me sick.

See Ya.

Bob S. said...

Learned something new today.

Thanks Lawyer.

As to DIMY, I can see the benefit of that long opinion -- it spells out the reasoning, the limits and the expanses of the opinion so that other judges can apply it appropriately.

I also think, this is only my opinion, but in some cases the Justices point it or show where the other aspects of the law can be challenged.

In the McDonald Opinion, I saw a phrase "The central component" of the 2nd Amendment - clearly indicates there are other components - sports, competition, hunting, etc.
In another phrase about the right to self defense being "most acute" in the home seemed to indicate they fully recognized the right to self defense via firearms existed outside of the home....Illinois bans carrying of firearms -- so that is up for challenge. Same with "may issue" statutes -- if the right exists then the government can not arbitrarily deny it.

Lawyer said...

Bob, that's right. If you review oral argument transcripts, the justices are always trying to determine how far their ruling will go. Their long opinion serves, in part, to justify their conclusion, but also to place a boundary, so to speak, on the influence of it.

DIMW: I agree with you and am frightened with how close we came to having the Second Amendment declared unconstitutional?! At least, we have laid some very important foundation bricks: the right to bear arms is an individual, fundamental right, which is also applicable to the states.

Bob S. said...


Now that there is a SCOTUS Decision -- actually two-- stating there is an individual right to keep and bear arms; doesn't that raise the bar to overturn it to a very high level?

I know that many people are worried about the make up of the Court changing but with all the emphasis on stare decisis (sp?) and precedent, should we still be as worried as before the decisions?