The brief is a very powerful and persuasive piece of writing. For history buffs who thought they knew what was what, there are many facets that have been ignored. Until now.
The first argument (part I-A) over the preamble to the 2a is very good. IMNSHO, it simply stomps any argument that the (so-called) militia clause is controlling.
Here, the respondents go into a long cite of history, as it relates to prefatory and preamblatory clauses and how the Courts have always concluded that no such clause can have a legal impact over the operative clauses.
The next argument (part I-B) over the purely individual nature of the operative clause is also well done. To use Ginsbergs own dissent in Muscarello v. United States, the broad use of of the phrase "speedy and public" of the 6th amendment to show separate rights and a broad interpretation, and the use of the preamble to the copyright and patent powers as they relate to "keep and bear" within the 2nd amendment is almost a stroke of genius.
In part I-C of the nature of the right, the brief goes into a detailed account of the history of the British Empire's involvement in taking the arms of the common American and how that factored into the Revolution. What the founders said and how they reacted, was proof that the right preceded the Constitution and why it was included in the Bill of Rights. Lots of good stuff there. All told, there are 42 pages of history detailing these three interelated points.
The second part of the brief, detailing how the D.C. gun ban is unconstitutional, starts with a body-slam:
To determine whether a particular weapon falls within the Second Amendment’s protection, the Court need not apply any particular standard of review. The question is categorical, identical in kind to the questions courts routinely answer in determining what constitutes “religion” or “speech” under the First Amendment, or what constitutes a “search” or “seizure” under the Fourth.
The above starts with positioning the 2A rights as being on par with speech and search and seizure laws: Fundamental and deserving of strict scrutiny.
Starting on page 43, Gura uses
Miller to create a 2 part test of exactly what arms are protected by the 2A. From page 44:
In sum, an “arm” is protected under the Miller test if it is of the type that (1) civilians would use, such that they could be expected to possess it for ordinary lawful purposes (in the absence of, or even despite, legal prohibition), and (2) would be useful in militia service. The latter requirement may be in tension with the pre-existing right to keep and bear arms, which is not always related to militia service.17
What does footnote 17 say?
“Attempting to draw a line between the ownership and use of ‘Arms’ for private purposes and the ownership and use of ‘Arms’ for militia purposes would have been an extremely silly exercise on the part of the First Congress if indeed the very survival of the militia depended on men who would bring their commonplace, private arms with them to muster.” PA43a (emphasis in original).
Did you understand where Gura & Co. are going here? Well, he spells it out in plain terms on page 45:
Arms that may have great military utility but which are inappropriate for civilian purposes are still sensibly excluded from the Second Amendment’s protection, as civilians would not commonly use them.
This is pure politics, to assure the Court that they need not find that machine-guns and true assault rifles, be included as part of the 2A protections - for this case.
Starting on page 50, the brief now focuses upon the DOJ brief. First they knock down the DOJ's fear that this case may open the NFA registry by referring back to what they said about the standard of use - common to civilians at the time (
"ordinary lawful purposes"). They make the case that machine-guns are not banned. That there are currently 120,000 in civilians hands. That they are properly regulated within the framework of the NFA. That crimes committed with these types of arms are in fact extremely rare.
Again and again, the focus is on handguns and solely on handguns. This is a compromise, as it gives the Court (and those Justices that fear full auto weapons in the hands of ordinary people) an out in order to get the ruling they (Heller) want.
Next, part III, the respondents argue against the functionality ban by using the city's own code to nullify the city's argument that self-defense was never meant to be excluded. The code, as enacted distinguishes that functional firearms are permissable in businesses and for recreational purposes, but not in the home. That distinction alone, precludes any functionality for self defense within the home and effectively disarms the owner.
In part IV, the respondents argue that the standard of review in 2A cases ought to be, strict scrutiny. Not some modified "heightened scrutiny" as suggested by the DOJ, that would render the right a meaningless and empty protection.
Part V, the brief argues that the government of D.C., the nations capital, must adhere to the Constitution, as the supreme law of the land:
“That the Constitution is in effect . . . in the District has been so often determined in the affirmative that it is no longer an open question.” O’Donoghue v. United States, 289 U.S. 516, 541 (1933).
Because the District is purely a construct of the Legislature, it must obey the very same Constitution that the Legislature is bound to obey. Further, because of the Federal nature of the District, incorporation (via the 14th) is not an issue, nor should it be.
There are many rather brilliant remarks to and about several of the amici briefs for the petitioner. Way to many to go over in any kind of short report.
I highly suggest for everyone to read this merits brief.
In other news,
this site will have the amici briefs for the respondents before any others. As it stands now, there have been filed, 2 briefs for the respondents:
Brief for American Legislative Exchange in Support of Respondent (2.9MB pdf - 53 pages):
Utilizes the history of the 2A within the purview of the States themselves to support the "peoples" overwhelming view that the 2A is in fact an individual right (national consensus).
Brief for GeorgiaCarry.org, Inc. in Support of Respondent (194KB pdf - 43 pages):
Summarizes quite succinctly how gun control was racist at its roots and today is a simple expedient of keeping the politically powerless under the same type of control, as were blacks before, during and after the Civil War.