D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread

Status
Not open for further replies.
I'm not patient enough to read it ... but if someone else could and summarize it in this thread I'd be obliged.
Click to expand...

I've only made it through the first of three arguments presented, but that one goes something like:

"We have had gun control since 1801. Because it has been around for a long time, it must be OK" (the 1801 law outlawed firing a gun within 400 yards of a house)

They also mashed a little "Handguns are the number one tool of rapists and badguys, so we need to ban them" in there, but this is not seperately argued or worked in with the first part in any coherent way.

Weird.

I'll read arguments 2 and 3 tomorrow, reading 1 was exhausting.
 
OK, part 2 (it's short)

Something like:

"Heller never argued that he was in a militia, so he has no 2nd amendment rights"

Combined with:

"No court has overturned Miller, even though they could have, so we should not overturn it now."

This part, like the first, throws out two points without weaving them together in any coherent way. Odd. I guess they expect the justices to make sense of these arguments for them. I don't think they will be impressed by that.
 
I'm reading it for the second time. But here are some early parts of the brief and my comments.

The City starts by saying that there are 3 reasons for reversing the Circuit Court and goes directly to point 1, which is the history of gun control in the City.
The Nation’s capital has regulated guns for two centuries. In 1801, the then-Town of Georgetown forebade firing guns in its “inhabited parts.” Town of Georgetown Ordinance of Oct. 24, 1801.
Click to expand...
While I hate to agree with anything the City might use in its defense, the above is actually a commonsense application of the law. The frivolous firing of guns in inhabited areas is in no way a real restriction. Note the term I used, "frivolous." Because I highly doubt that the citizens were forbidden to shoot in defense of selves or property in 1801.
In 1809, the City of Washington similarly made it unlawful to fire guns “within four hundred yards of any house . . . or on the Sabbath.” Act of the Corporation of the City of Washington (“City Act”) of Dec. 9, 1809. The city later exempted militiamen “on days of mustering, training or rejoicing, when ordered so to shoot or fire by their commanding officer.” City Act of Mar. 30, 1813.
Click to expand...
They should have stopped before they wrote that last sentence. Militiamen were exempted on days of rejoicing? By law? Reminds me of what happens here on the 4th and New Years Eve!!
In 1857, the city made it unlawful to carry “deadly or dangerous weapons, such as . . . pistol.” City Act of Nov. 8, 1857; see City Act of Nov. 18, 1858.
Click to expand...

Oh My! Sounds ominous, until one reads the act and finds that the text omitted (the ellipses) covered daggers, dirks and pistols that were readily able to be worn concealed. The act did not prohibit the open carrying of swords, muskets and other fowling guns.

Moving to the present day...
In enacting the handgun ban, the Council found that less restrictive approaches would not be adequate. Safe-storage provisions standing alone would be insufficient to accomplish the District’s goal of reducing gun injuries and deaths. Guns stolen from even the most law-abiding citizens enable criminal gun violence. Afternoon Council Sess. Tr. 35:10-20, 42:4-10, May 3, 1976. Ready availability of guns in
the home also made them “easy for juveniles to obtain.”
Click to expand...
Here the City is implying that safe storage laws alone would not accomplish the goal of removing firearms from criminals, as they could just steal them from law-abiding citizens. An oblique way of suggesting that citizens are responsible, in some manner, for the theft of their own property (remember this legal theory if you ever have your vehicle stolen - it's your fault!). The City is also saying that any safe storage (now calling it "readily available") would not remove the liklihood of juveniles from obtaining the firearms.
The legislature concluded that “the ultimate resolution of the problems of gun created crimes and gun created accidents . . . is the elimination of the availability of handguns.”
Click to expand...
Remove all the guns of citizens, and crooks will no longer be armed. Heard that utopian argument before?
As the Council summed up, “the bill reflects a legislative decision” that handguns “have no legitimate use in the purely urban environment of the District of Columbia.”
Click to expand...
Which seems to imply that outside the City's boundaries, those suburban and rural areas, that handguns have a use... So what legitimate uses do handguns have in suburbia that are illegitimate uses to urbanites?
As part of its gun-control program, the Council also enacted a trigger-lock provision to promote gun safety at home. D.C. Code § 7-2507.02.
Click to expand...
And now, having said that safe storage laws aren't a solution, they do an about-face and want to promote gun safety?

Do these guys think the Justices are that stupid? These arguments, such as they are, are transparent in their application to infringe on the right to keep arms (remembering that we are not really to discuss the bearing of arms outside of your house or business place).

In point 2 (remembering that the City said there were 3 points on which the Supreme Court should overturn the Circuit Court, if they find only a single point to be valid), the City turns to Heller himself.

Here the City asserts that the District Court was correct in granting the motion to dismiss because none of the appellants asserted membership in an organized militia:
“n concert with the vast majority of circuit courts,” it concluded that this Court’s decision in United States v. Miller, 307 U.S. 174 (1939), “reject an individual right to bear arms separate and apart from Militia use.”
Click to expand...

Instead of attacking the Circuit Courts application of Miller, they simply agree with the overturned District Court.

Can you just see in orals, Scalia or Thomas asking the City's attorney to point to exactly where in Miller they find this "rejection" of the individual right?

As for their other argument, that by the SCOTUS refusing in the past to accept 2A cases, that this explicitly argues in the "collective" rights interpretation... It's wholly laughable and a slap in the face to the SCOTUS and the current panel of Justices.

In point 3, the City dissembles for 4 paragraphs and reaches its point in the 5th concluding paragraph. The City agrees with the Dissent by Judge Henderson:
In her view, Miller-“the only twentieth-century United States Supreme Court decision that analyzes the scope of the Second Amendment”—compels the conclusion that “the right of the people to keep and bear arms relates to those Militia whose continued vitality is required to safeguard the individual States.”
Click to expand...
All I will say here is that the timely paper (“NECESSARY TO THE SECURITY OF A FREE STATE” Nov. 2007, Notre Dame Law Review) by Prof. Eugene Volokh essentially destroys any argument that the word "state," as used in the 2a meant a State of the Union. For those that have not had the chance to read this paper, "free State" as used in the 2A and as understood publicly at the time of ratification of the amendments, meant the State of Liberty as opposed to a State of Despotism.

That's it. That's their entire argument in a nutshell.

They don't even pretend to answer the question: Whether the ... provisions [of] D.C. Code violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

I'm feeling really good for our side. Now we have 30 days until this is rebutted (or the original question is answered - Gura & Levy will have either option) by Heller.

I don't believe there is any real need to rebut any of the above and a straight approach of answering the question, as posed, would be the better strategy... But I ain't no lawyer, so what would I know?
 
Garand Illusion writes:

The DC "brief" (which is anything but).

I'm not patient enough to read it ... but if someone else could and summarize it in this thread I'd be obliged.

DC Brief

Joint Appendix

And the gun guys say that Public Safety Trumps Outdated, Irrelevant Second Amendment

------------------

Re his last, I find myself curious as to exactly who these "gun guys", above mentioned, actually are?
 
Re his last, I find myself curious as to exactly who these "gun guys", above mentioned, actually are?
Click to expand...

gunguys.com is a Freedom States Alliance (FSA) site. FSA is the most rabidly anti-gun group out there, and I find their site amusing in it's ignorance and outright twisting of the truth.

I just included it for comedy relief. All of their writings are only good for comedy relief.

Thanks all for the analysis!
 
This is what they quote in the argument as being the basis for the milita only argument. That only these clauses should be considered.

“A well regulated Militia, being necessary to the security of a free State, . . . ”
Click to expand...

I am sure the Justices wil be asking about the part of the Second Amendment that was left out for the three dots.
 
Last edited:
All I will say here is that the timely paper (“NECESSARY TO THE SECURITY OF A FREE STATE” Nov. 2007, Notre Dame Law Review) by Prof. Eugene Volokh essentially destroys any argument that the word "state," as used in the 2a meant a State of the Union. For those that have not had the chance to read this paper, "free State" as used in the 2A and as understood publicly at the time of ratification of the amendments, meant the State of Liberty as opposed to a State of Despotism.
Click to expand...
I read Volokh's paper, I found it unconvincing, and I remain confident that the word "State" means a State of the Union i.e. Virginia.

http://www.thefiringline.com/forums/showthread.php?t=252808&
 
Yes Hugh, with the capital "S" in State, doesn't that mean a political body/subdivision? (You get what I mean.)
 
I read Volokh's paper, I found it unconvincing, and I remain confident that the word "State" means a State of the Union i.e. Virginia.
Click to expand...

That's interesting. I first learned of the 2nd amendment in middle-school civics class on the constitution. One homework assignment was to read the chapter on the Bill of Rights and write our one-paragraph interpretation of each one.

At the tender age of 13, I read "State", with it's capitalization, and realized that at the time of our union's forming, each "State" was an individual nation-state. Further, it seemed to me that the founders referred to a "free State" to mean some defined geographical area, a villiage, town, city, county or State where citizens enjoy freedom and liberty.

But the words also imparted a second meaning, one that is implicit beyond the actual construction of the sentence. That meaning is that the founders believed that arms in the hands of The People were necessary to secure for them the not only the security of a political subdivision (whatever it was called), but the state or manner in which they lived.

In my mind it refers to both the political subdivision of "State" as well as the manner (or state) in which the people of that subdivision live. For it would be difficult to believe that a state could be called a "free State" if it subjected its citizens to the same depredations as King George, regardless of how independent it was from federal control.
 
Seems to me the main point they could have brought up, (maybe they did - too long a read for me), and the one that I think could be a reason to allow DC to stay the course is this: they're not outlawing ARMS, I believe it is OK in DC to own a long gun. Handguns, essentially not being a priority weapon in colonial days, were a moot point - and now are but one type of personal arm; so they can be restricted however a locale wishes without their violating the 2nd A. I wouldn't know what to answer to this. Though as a person solely owning handguns I certainly wouldn't like DC to succeed. But logically, if I believe (and I do) that the 2nd does not allow a citizen to store nuclear arms in his basement, that same argument could be made about handguns by others - but one type of arm. "We believe this one is too dangerous. We restrict it while allowing others. This is done all the time with various other weapons.[ie like nuclear material, tanks, bazookas etc.] What's the problem with us doing the same with but one weapon-type?"

I see this as a logical vulnerability. Hopefully I'm wrong.
 
I hope this isn't a threadjack, it is a question involving the US Constitution and the 2A.

If I'm to understand the US Constitution being the "supreme law of the land", then why do some individual states have redudancies in their own constitutions?

Amendment X states "The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I take this to mean, if it's in the Constitution, then it will be followed, unless it is prohibited by the Constitution. And anything else not listed is up to the states to decide.

So the 2A is already there, and it would be unconstitutional to violate it, why do some states, PA for example, have it's own law regarding the right to keep and bear arms?

I recall learning that for an amount of time, the US Constitution was only relating to the federal govt., but then the XIV Amendment applied it to the individual states, but I can't find it now.

As for the "State" in the 2A, I've always taken it to mean the United States, as in State as a country, because it is in the US Constitution, not in a individual state's one.

I mean I know this is part of what the Heller case is supposed to finally decide, but my understanding of this is that places like NYC and CA are already violating the Constitution, and all other states constitutions even if they allow freedom of arms, are redundant in that aspect.
 
I see this as a logical vulnerability. Hopefully I'm wrong.
Click to expand...

That is a major part of DC's case.

I listened to Dave Kopel talk about this on Cam & Country, the NRA radio show, last night. He's a smart libertarian/lawyer heavily involved in Gun Rights.

His feeling was that best DC could hope for (and he didn't say they'd get it, but that it was probably DC's "best case" scenario) was a split decision. That the 2nd amendments IS an individual right, that it DOES apply in DC, that restricting people having weapons, or at least long guns, unencumbered in their home IS contrary to the 2nd amendment, but that a ban on handguns is NOT a violation.

Of course ... at this point everyone is just guessing ... those nine people and particularly swing vote Kennedy, will decide whatever the heck they want.
 
Dershowitz said that the gun control movement is playing with fire by trying to eliminate the Second Amendment on the basis of public safety or that it is not an individual right. Mr. Dershowitz is a supporter of gun control. If you use public safety and the amendment is not an individual right you leave the door open to rewrite the rest of the Bill of Rights. I'm not sure that even the most liberal member of the USSC wants to see that happen.
 
Dershowitz said that the gun control movement is playing with fire by trying to eliminate the Second Amendment on the basis of public safety or that it is not an individual right. Mr. Dershowitz is a supporter of gun control. If you use public safety and the amendment is not an individual right you leave the door open to rewrite the rest of the Bill of Rights. I'm not sure that even the most liberal member of the USSC wants to see that happen


Imagine that huh? if they got rid of the 2nd amendment in the bill of rights, I guess we should also get rid of freedom of religion and speech as well.....:rolleyes:
 
Publius, I've been following that, since it started.

When stripped away of all nonessentials, the arguments of Jon Roland and Jim March don't really say much more than I have.

The statement of the case (pp 3 - 8 of the pdf) and the summary (pp 8 - 11) are the "meat" of their argument. Everything that follows is the "fleshing out" of their argument.

Yes, the various citations will probably get used by the Court, but the basis for the review is the first 11 pages. In trying to distill the essence of their case, this is what I've relied upon. I'll let the others argue the minutae.

Still, it is an instructive thread by some very knowlegeable people.
 
MyGunsJammed wrote:
Dershowitz said that the gun control movement is playing with fire by trying to eliminate the Second Amendment on the basis of public safety or that it is not an individual right. Mr. Dershowitz is a supporter of gun control. If you use public safety and the amendment is not an individual right you leave the door open to rewrite the rest of the Bill of Rights. I'm not sure that even the most liberal member of the USSC wants to see that happen


Imagine that huh? if they got rid of the 2nd amendment in the bill of rights, I guess we should also get rid of freedom of religion and speech as well.....

------------------

Interesting comment on Dershowitz, as I recall, he was/is a supporter of Gun Control, though I cannot quite fathom why.

As for the gun controllers, and here I do not refer to what Lenin referenced as "useful idiots", they are invariably, STATISTS, people who hold that the individual has no rights whatever other than those which government might deign to allow, on passing sufferance.
 
DC's merits brief, p. 54 paragraph 2:
The Council had good reason to conclude that other less restrictive measures were insufficient by them-selves. PA104a. Safety mechanisms, while helpful, do not always work as designed, and compliance, even with mandatory safety laws, is imperfect.
Click to expand...

But isn't the handgun ban itself simply another public safety law? Though the ban is more restrictive, I believe the city falls on its own sword with a statement like this.

If their statement is true, it does not seem reasonable then for citizens to sacrifiuce their liberties for the sake of public saftey. After all, they do not always work as designed, and compliance, even with mandatory safety laws, is imperfect. The city is making Heller's case! The merits brief reads more like the merits of Heller's argument than the city's. There is little wonder the district replaced lead council. It was apparently too late to improve this contribution.

I encourage folks to read or at least skim the merits brief dispite its verbosity.
 
Status
Not open for further replies.
Back
Top