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

[BillCA]

Antipitas - My hat is off to you... I could only get through the initial merits before D.C. seemed like 1st year law students grasping at straws to make their argument.

D.C. argues that their ban on handguns is "reasonable"...

The majority dismissed as “frivolous” the District’s contention that its regulatory scheme is reasonable because other weapons, such as shotguns and rifles, fully vindicate residents’ interests in self-defense. PA53a.

In other words, we haven't yet completely disemboweled your rights, we left you a few!

QUERY: Would DC Counsel also suggest that there is no abridgement of the 1st Amendment if people were permitted to speak freely, but prohibited access to printing presses? Or that there was freedom of religion if worshippers were prohibited from praying together?

I also wonder how D.C. will handle the right of a disabled person who has but one hand and wants to own a handgun. Are they denied and is this a violation of the Americans with Disabilities Act?

The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes.

The first clause—“[a] well regulated Militia, being necessary to the security of a free State”—speaks only of militias, with not a hint about private uses of firearms. A well-regulated militia is the antithesis of an unconnected group of individuals, each choosing unilaterally whether to own a firearm, what kind to own, and for what purposes.

It would be highly amusing to read the response if The Court asked D.C. Counsel to reconcil the above statement with the Militia act as follows;

Militia Act of 1782 - Section 1:
That every citizen, ..., shall, ..., provide himself with a good musket or firelock, ..., a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, ..., twenty balls suited to the bore of his rifle...(emphasis added)

Since the initial militia act permitted militiamen to provide their own arms of whatever bore side, power, range and effectiveness. Would this not be equivalent to them "unilaterally" choosing what arms to own?

Then there is this little tidbit;

and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.(emphasis added)

Comment: Though Congress declared MUSKETS to be a specific bore size, no mention of a standardized RIFLE bore is mentioned. We can conclude that congress allowed significant leeway to the militiamen to "unilaterally" select an appropriate rifle for militia use.

Furthermore, we see the importance Congress puts upon militia arms by requiring such arms to be exempted from seizure in matters of lawsuits and even the payment of much-needed taxes.

More reconciliation needed:

D.C. relies on the "militia" clause to be the sole determinant of the purpose and limitation on possession of firearms...

To conclude that the Framers intended to protect private uses of weapons, the majority below read the entire first clause to be extraneous and the second to be in tension with the natural, military meaning of “bear Arms.” If that had been the Framers’ intent, they would have omitted the first clause and used non-military language in the second.

QUERY: If the framer's intent had been to provide a power or even a "right" to the states, wouldn't the logical conclusion be revising the amendment to read "the right of the several states..." or "the several states have the power to keep and bear arms"?

Here D.C. seems to argue like Al Gore's Global Warming zealots that "it's a fact if we say so"...

History confirms the District’s reading. The primary concerns that animated those who supported the Second Amendment were that a federal standing army would prove tyrannical and that the power given to the federal government in the Constitution’s Militia Clauses could enable it not only to federalize, but also to disarm state militias. There is no suggestion that the need to protect private uses of weapons against federal intrusion ever animated the adoption of the Second Amendment. The drafting history and recorded debate in Congress confirm that the Framers understood its military meaning and ignored proposals to confer an express right to weapon possession unrelated to militia service. (emphasis added)

More amusement if The Court asks District Counsel to reconcile the idea that private weapons possesion was not of interest to the Framers based on the following quotes at the time;

"Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?"
-- Patrick Henry [3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836]

"Another source of power in government is a military force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive."
-- Noah Webster An Examination of the Leading Principles of the Federal Constitution, Philadelphia, 1787

"And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless necessary for the defense of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possesions."
-- Samuel Adams, Debates of the Massachusetts Convention of 1788

Arguments are scheduled for March.
Who's bringing the popcorn?

 

[RDak]

Anti: I told you DC would require the Court to answer the "militia" question and that would be one of their main arguments.

 

[tatera]

If the militia was defined as any able-bodied male, why is a test of "formal" membership even being considered as an argument against individual rights? Any person able to bear arms would be, by default, a member of the militia.

Citing the "Miller" case has always been troubling too, being that no arguments were presented - meaning Miller lost by default. How can this be considered the bedrock decision proclaimed by both sides of the debate?

 

[mooreshawnm]

I also wonder how D.C. will handle the right of a disabled person who has but one hand and wants to own a handgun. Are they denied and is this a violation of the Americans with Disabilities Act?

BillCA, I love this question!!!!

 

[BillCA]

mooreshawnm,

Thanks... that's a question I've not heard asked in the debate about D.C.'s laws.

Among other questions that would be interesting to hear the Court ask and D.C. answer;

D.C. Code § 7-2507.02 A firearm must be kept “unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes.”

SCOTUS: How many places exist within D.C. for recreational shooting of long guns and shotguns?

OR...

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.”

SCOTUS: If handguns, which are by nature, shorter ranged and lower-powered weapons than long guns, have no legitimate use in D.C., would D.C. Counsel please explain the legitimate uses for long guns within D.C. which gives rise as to why they, too, have not been prohibited?

And this one...which I can hardly believe they included in their argument summary;

That conclusion follows from the history underlying the Constitution’s Seat of Government Clause. In 1783, disgruntled soldiers surrounded the State House in Philadelphia, causing the Continental Congress to flee because the local authorities would not protect it. The Framers created a federal enclave to ensure federal protection of federal interests. They could not have intended the Second Amendment to prevent Congress from establishing such gun-control measures as it deemed necessary to protect itself, the President, and this Court when similar state legislative authority was not constrained.

Comment: In other words, current D.C. officials belive that the District was created as a special "enclave" where the constitution can be selectively applied in order to protect a "ruling class".

SCOTUS: Words can be as disruptive as arms. If Congress may suspend parts of the constitution in self-protection, why has congress not permitted or enacted legislation curtailing first amendment rights of free speech? We know such speech can drive rebellion, insurrection, riots and even revolution. Such as;

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their powers to the injury of their fellow-citizens, the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms."
Tench Coxe in "Remarks on the First Part of the Amendments to the Federal Constitution.", under the pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, 18 June 1789 at 2 col. 1

"While the people have property, arms in their hands, and only a spark of noble spirit, the most corrupt Congress must be mad to form any project of tyranny."
Rev. Nicholas Collin, Fayetteville Gazette (N.C.), October 12, 1789

 

[Al Norris]

Not for the Faint of Heart

Sometime friday afternoon. Several amici briefs were filed for the petitioners (D.C.)

Amici for Petitioner

• Janet Reno, et al.
• National Network to End Domestic Violence
• American Jewish Committee, et al.
• States of NY, HI, MA, MD, NJ and PR
• American Bar Ass’n
• Brady Center
• U.S. Department of Justice
• 18 Members of Congress
• NAACP Legal Defense Fund
• Criminal Justice Professors
• DA’s for SF, NY
• American Academy of Pediatrics
• City of Chicago
• Winkler, Chemerinsky
• American Public Health Ass’n
• Appleseed Center, et al.
• Violence Policy Center
• Cities
• History Professors
• Linguistics Professors

Did anyone need some "light" reading for the weekend? Find them here.

 

[jpr9954]

And what is the US Dept of Justice doing filing a brief in favor of the petitioner?

John

 

[RDak]

The US Department of Justice wants the case remanded for more detailed analysis. Ridiculous. I read their brief and it really doesn't hold up to logic IMHO. There was enough information and detail available to the Appellate Court to rule in Parker/Heller. Remanding is unnecessary IMHO. Why the Dept. of Justice feels this way isn't explained very well IMHO. Maybe I'm missing something?

How the Dept. of Justice can agree with the individual right theory (as stated in their brief) but not immediately see that DC's law violates this right baffles me. I don't like it when the obvious isn't admitted. It makes me wonder.....?

I then read Reno's brief. It basically reaffirms Bill and Hillary Clinton's view of the 2nd Amendment (i.e., it is a "militia" right, not an individual right).

Haven't read more briefs yet but I assume many of them argue for the collective right that the Democratic leadership has followed for over 40 years now.

 

[Brett Bellmore]

And what is the US Dept of Justice doing filing a brief in favor of the petitioner?

Ashcroft isn't AG anymore, in case you didn't notice.

The Justice department can agree with the original rights interpretation because it's politically necessary for a Republican President to look pro-gun, and can support the harshest gun control law in the nation anyway, because that President is only pro-gun to the extent he has to be, and he's not running for reelection.

Remember, Bush was for the 'assault weapon' ban. Now he's got a Justice department that agrees with him: It's a right, and it can be violated anytime the government feels like it.

Anyway, with this brief, I think our chances of getting a good ruling out of a Court with a couple of Bush nominees on it just dropped significantly. The Justice department doesn't always win in the Court, but they've got a lot more pull than the Brady center.

 

[Garand Illusion]

Alright ... so is it time to start voicing our displeasure over this measure to the current Republican president and the Republican candidates running for president (at least the ones currently in office who might have some pull)?

What's the best way to accomplish this, and could they even get that withdrawn?

 

[HarrySchell]

Bush DOJ files brief supporting DC ban??

Can someone with some legal smarts cut through this to see how much of an enemy the Bush DoJ has really become, if so?

I can understand keeping auto weapons off the commercial market, but does this position support AWB's and similar night soil?

Thanks for any comments.

http://armsandthelaw.com/

See also http://www.scotusblog.com/wp/wp-content/uploads/2008/01/us-heller-brief-1-11-08.pdf

Government files amicus -- on DC's side!
Posted by David Hardy · 11 January 2008 08:41 PM
PDF here.

Quick read: Gov't says, yes, it's an individual right. BUT we join with DC in asking Court to reverse the DC Circuit, because it applied strict scrutiny to the DC law. It should only have applied an intermediate standard. That is, the legal position of the US is that DC CIrcuit was wrong, a complete ban on handguns is NOT per se unconstitutional, it all depends on how good a reason DC can prove for it.

And this is filed in the name of the Solicitor General. Some quotes:

"When, as here, a law directly limits the private possession of “Arms” in a way that has no grounding in
Framing-era practice, the Second Amendment requires that the law be subject to heightened scrutiny that considers (a) the practical impact of the challenged restrictions on the plaintiff’s ability to possess firearms for lawful purposes (which depends in turn on the nature and functional adequacy of available alternatives), and (b) the strength of the government’s interest in enforcement of the relevant restriction.

The court of appeals, by contrast, appears to have adopted a more categorical approach. The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of “Arms” that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns. However, the text and history of the Second Amendment point to a more flexible standard of review."

"The determination whether those laws deprive respondent of a functional firearm depends substantially on whether D.C.’s trigger-lock provision, D.C. Code § 7-2507.02, can properly be interpreted (as petitioners contend, see Br. 56) in a manner that allows respondent to possess a functional long gun in his home.8 And if the trigger-lock provision can be construed in such a manner, the courts below would be required to address the factual issue—not fully explored during the prior course of the litigation—whether the firearms that are lawfully available to respondent are significantly less suited to the identified lawful purpose (self-defense in the home) than the type of firearm (i.e., a handgun) that D.C. law bars respondent from possessing. To the extent necessary, further consideration of those questions should occur in the lower courts, which would be in the best position to determine, in light of this Court’s exposition of the proper standard of review, whether any fact-finding is necessary, and to place any appropriate limits on any evidentiary proceedings. Moreover, even if the existing record proved to be adequate, initial examination of those issues is typically better reserved for the lower courts."

"CONCLUSION

The Court should affirm that the Second Amendment, no less than other provisions of the Bill of Rights, secures an individual right, and should clarify that the right is subject to the more flexible standard of review described above. If the Court takes those foundational steps, the better course would be to remand. "

As I read this, the (Bush) Dept of Justice is asking that the Court hold it to be an individual right, but not strike the DC gun law, instead sending it back down to the trial court to take evidence on everything from how much the District needs the law to whether people can defend themselves without pistols and just what the DC trigger lock law means. THEN maybe it can begin another four year trek to the Supremes. That is, the DoJ REJECTS the DC Circuit position that an absolute, flat, ban on handguns violates the Second Amendment, and contends that it might just be justified, it all depends on the evidence.

There was a saying during my years in DC that the GOP operated on two principles: screw your friends and appease your enemies. Yup.

 

[RDak]

Just read the ABA brief and it also argues HEAVILY for a collective right, not an individual right. (So does the brief submitted by the 18 members of Congress and the NAACP brief.) All the major players are arguing for the collective, militia right. They know if they lose that argument they are in big trouble.

It is amazing how many groups and people in this country feel that the private ownership of firearms should be prohibited. Simply amazing IMHO.

The ABA brief goes on to argue precedent in other cases where prohibitive regulations stood up in court. However, the DC case involves TOTAL prohibitions on firearms for self-defense purposes. You cannot own a firearm in DC for self-defense purposes. That is something "new" IMHO.

The ABA brief is disingenous in this regard IMHO. The DC ban is EXTREME and no acknowledgment of this fact appears to be admitted by the ABA. It is also a recently enacted prohibition that really has no SCOTUS precedent.

Of course, the ABA fails to point this out, unless I missed something. In fact, each and every case cited by the ABA should be CLOSELY scrutinized to see if that is really what that case is supposedly saying. Whenever I see someone trying to tell me two plus two does not equal four I review everything they say in detail because I don't trust them any longer.

I'm getting very irritated with these anti-gun briefs. They attempt to distort the facts and want us to believe two plus two DOES NOT equal four.

I mean, the ABA should have just stayed with their "militia only" argument and not tried to throw "curve balls" when it came to their "precedent" arguments. Typical legalize that I see all the time when lawyers want you to believe two plus two does not equal four.

There is no real precedent for DC's total prohibition of firearms ownership IMHO. That is what SCOTUS is going to answer IMHO. It's about time!

 

[publius42]

...for the defense of themselves and the State

...for the defense of themselves and the State

I've been entertaining myself by reading the history professors' amicus brief. OK, so I'm weird.

The backflips are interesting when they got to the Pennsylvania Constitution where it says the people can keep and bear arms "...for the defense of themselves and the State."

It turns out, "themselves" does not refer to any particular, individual "selves" at all! It really means, "...for the defense of the community and the State." Or maybe the village.

Although the Pennsylvania clause appears open to a broader interpretation, two considerations render this reading improbable. First, the opening clause of Article XIII immediately preceded two other clauses reiterating the usual condemnation of standing armies and endorsement of civilian supremacy. The Article as a whole is thus concerned with military matters. Second, and contextually more important, the Pennsylvania variant needs to be read against the colony’s unique history. Since the mid-1750s, a political impasse between the proprietary governor and the assembly, and the influence of Quaker pacifism on provincial governance, effectively prevented the colonial government from maintaining a militia. Residents of frontier counties exposed to Indian attack during the Seven Years War and Pontiac’s rising of 1763 petitioned the provincial government to organize militia and provide the resources necessary to sustain it. These efforts failed, and Pennsylvania had no militia at all during the two decades preceding independence. Unlike most colonies, its legal assembly continued to meet into the spring of 1776, but without mobilizing a provincial militia against the British threat. As a result, extra-legal committees arose in Philadelphia that were strongly supported by the province’s voluntary militia units. These committees demanded the drafting of a new state constitution that would coerce military service from every citizen. When the constitution writers of 1776 used the phrase “for the defence of themselves,” they accordingly were referring not a personal right of self-defense but to the community’s capacity to protect itself against the threats raised either by Native Americans or the British army.

So you wouldn't have your gun to personally defend yourself and your family against threats, you'd have it so your VILLAGE could defend ITSELF. Of course, individuals might engage in the fight, but only as a group, so they wouldn't REALLY be indivduals, merely parts of the larger village.

 

[RDak]

I wonder how the professors would explain Michigan's Constitution?:

Every person has a right to keep and bear arms for the defense of himself and the state.

The professor's argument you quoted Publius is absolutely ridiculous and, once again, we have people throwing curveballs instead of just admitting the obvious. (The professors defining the word "themselves" as really meaning the "group" is an unbelievable stretch IMHO. I can't believe the levels these anti-gunners will go to to prevent the private ownership of firearms.)

I mean, I wonder what the "learned" professor (I use the term very lightly) would call the State other than a conglomeration of "villages"? The professor's "theory" is taken care of by using the term State for Godsakes. Unbelievably weak argument IMHO. So weak that it borders on dishonesty.

 

[alan]

Antipitas in Not for the Faint of Heart, offered an interesting list of enemies:

Sometime friday afternoon. Several amici briefs were filed for the petitioners (D.C.)

Amici for Petitioner
Janet Reno, et al.
National Network to End Domestic Violence
American Jewish Committee, et al.
States of NY, HI, MA, MD, NJ and PR
American Bar Ass’n
Brady Center
U.S. Department of Justice
18 Members of Congress
NAACP Legal Defense Fund
Criminal Justice Professors
DA’s for SF, NY
American Academy of Pediatrics
City of Chicago
Winkler, Chemerinsky
American Public Health Ass’n
Appleseed Center, et al.
Violence Policy Center
Cities
History Professors
Linguistics Professors

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

There are some "amicis" on the side of the individual, aren't there? Alas, to wirk on my celestial navigation or wade through legalese?

 

[Socrates]

I believe this has become a class war. I discussed it with an attorney who I respect, and, his justification for the Kali drop test is 'buy a decent gun'. Inbetween the lines, I see that the lower classes owning firearms is VERY disturbing to the above list of well off, rich folks. I am concerned that the Supreme Court is far closer to a rich, upper class, then to the average person.

Political History has taught us that the quickest way to a revolution is to destroy the middle class, and, that's certainly happened in my lifetime. Stopping the lower class from overthrowing the existing government is an issue the haves are trying to attack, by taking away the guns.
I find the irony that the group they would have inforce law, in a time of national upheaval, is the group that has suffered poverty at the hands of our rich legislators, the National Guard, and the armed forces.

The irony of much of this is we argue over something that is totally ineffective, because we have enough firearms floating around that criminals will ALWAYS have firearms...

 

[alan]

Socrates wrote:

I believe this has become a class war. I discussed it with an attorney who I respect, and, his justification for the Kali drop test is 'buy a decent gun'. Inbetween the lines, I see that the lower classes owning firearms is VERY disturbing to the above list of well off, rich folks. I am concerned that the Supreme Court is far closer to a rich, upper class, then to the average person.

Political History has taught us that the quickest way to a revolution is to destroy the middle class, and, that's certainly happened in my lifetime. Stopping the lower class from overthrowing the existing government is an issue the haves are trying to attack, by taking away the guns.
I find the irony that the group they would have inforce law, in a time of national upheaval, is the group that has suffered poverty at the hands of our rich legislators, the National Guard, and the armed forces.

The irony of much of this is we argue over something that is totally ineffective, because we have enough firearms floating around that criminals will ALWAYS have firearms...

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

Re the "class war" mentioned, absolutely NOTHING new there. Take a look at history, which you may already have done. As example of such "class based legislation", one thing comes immediately to mind. New York's Sullivan Law, circa 1911. California clowns, while annoying, are simply a bunch of Johnny Come Latelys. They are of course dangerous, but that is another side of the coin.

 

[alan]

from a list of "amici briefs Antipitas offered comes one in particular, that being The American Jewish Committee, et al, while on our side, there is Mr. Robert Levy. Go figure.

 

[CGSteve8718]

Posted by BillCA

QUERY: Would DC Counsel also suggest that there is no abridgement of the 1st Amendment if people were permitted to speak freely, but prohibited access to printing presses? Or that there was freedom of religion if worshippers were prohibited from praying together?

I read it and I must say that I am really scared and am not really hopeful for our side at all. While many of your hypothetical SCOTUS questions make sense, they are only coming from you guys, who even knows if the Justices would think along the same lines? Especially in light of the historical arguments DC brought up about militia use, and previous restrictions (I know they weren't in full reference).

As to that hypothetical posted by BillCA, while not completely the same issue, they did bring up several cases where the 1st Amendment was able to be regulated in the commission of certain religious practices.

 

[Al Norris]

I have read the amici briefs and the only one that would actually be of any use to the Justices is the amicus brief by the DOJ. The rest may be cavalierly dismissed

In this, the DOJ is making the same observation that I have made in the past. The only real hope for D.C. is that the SCOTUS does not find the 2A a fundamental right and therfore strict scrutiny need not apply.

DOJ is calling for the rational basis test (by which almost any law can survive) and is possibly hoping for intermediate scrutiny.

Of course the DOJ is afraid that a strict scrutiny test would eventually (actually, probably sooner than later) endanger 922(o) and several other Federal laws. They even make that point in their brief.

SIDE BAR: Should the SCOTUS rule this way, then some of the D.C. code may survive. 922(o) would certainly survive under intermediate scrutiny... Unless Miller was used as precedent. Under Miller, there can be no question that military pattern arms would be protected. So the Court must do something about that seedy case, if they are to preserve current law. But that is another argument for another time.​

Were I a betting man, I would lay odds that Gura & Co. will be briefing on how the right is fundamental and that strict scrutiny must apply to all laws that restrict the right. We will know for sure in about 3 weeks.