D.C. vs. Heller (Supreme Court and the 2A) - Mega Thread
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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:
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:
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:
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.
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:
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:
What does footnote 17 say?
Did you understand where Gura & Co. are going here? Well, he spells it out in plain terms on page 45:
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:
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.
nobody_special
New member
Almost? Almost?
No, that was genius. As was showing that the Petitioners' brief truncated a quotation to skew it's meaning:
I hope you're right, but I suspect this was a grave error. Here, Gura ignores the militia clause (and it's basis) and thus the main purpose of the 2nd Amendment -- to grant the populace (militia) the ability to throw off tyrrany. How is that possible if the militia is denied the common arms of battle?
Note -- I'm not certain whether or not automatic weapons should be as readily available as other firearms; but it seems to me, taking the 2nd Amendment at face value and given it's stated purpose, that military small arms must be protected. But Gura mis-states Miller, which does not specify that protected arms must be commonly used for civilian purposes. (Indeed, the term "civilian" only appears once in the Miller decision, where it is used to describe the constituency of the militia.) I agree that Gura wrote this for political reasons, to give members of the Court an "out" regarding 922(o). But expanding the Miller test to require civilian purposes is problematic with regards to the intent of the 2nd Amendment. It's a re-phrased version of the same old "sporting purpose" argument, and Gura had just finished an argument that the 2A was not primarily enacted to protect "sporting" purposes.
Gura threw the baby out with the bath-water. That said, there must be a line drawn somewhere between which weapons are protected and which are prohibited, and I can't think of a good alternative way to placate the Court on this issue.
Miller:
M-16s are the kind in common use in our times. I'm sorry to see Gura and Co. give up what is really the most important point of all regarding the 2A, though I do understand the politics of it. The battles at Lexington and Concord were about militia cannons. Makes you wonder what was the ordinary, civilian purpose of those big guns.
Technology marches on. If we can't admit in our times that the 2A and later the Miller decision were talking about privately owned arms of the type in common MILITARY use during the time in question, future Americans are going to have a serious problem with the ability to defend against tyranny, whatever the source. Right now, we can have AR-15's, and soldiers carry M-16s. Not a large tactical difference at all. But if we freeze the development of arms which are allowed to citizens at this point in time, while arms which are allowed to governments are allowed to continue to advance, the tactical difference will grow. We are guaranteeing that Americans a few generations down the road will be more vulnerable.
That is what the 2A was supposed to prevent. If we use it to win a battle today over banning handguns in DC, but at the same time pull the rug from under the whole purpose of the amendment, we've won a battle and lost the war.
M-16s are the kind in common use in our times. I'm sorry to see Gura and Co. give up what is really the most important point of all regarding the 2A, though I do understand the politics of it. The battles at Lexington and Concord were about militia cannons. Makes you wonder what was the ordinary, civilian purpose of those big guns.
Technology marches on. If we can't admit in our times that the 2A and later the Miller decision were talking about privately owned arms of the type in common MILITARY use during the time in question, future Americans are going to have a serious problem with the ability to defend against tyranny, whatever the source. Right now, we can have AR-15's, and soldiers carry M-16s. Not a large tactical difference at all. But if we freeze the development of arms which are allowed to citizens at this point in time, while arms which are allowed to governments are allowed to continue to advance, the tactical difference will grow. We are guaranteeing that Americans a few generations down the road will be more vulnerable.
That is what the 2A was supposed to prevent. If we use it to win a battle today over banning handguns in DC, but at the same time pull the rug from under the whole purpose of the amendment, we've won a battle and lost the war.
I think the problem with this is that "ordinary lawful purposes" are not defined. Is self defense an ordinary lawful purpose? If so, why can't I use any type of arm for self defense, including an automatic weapon? I certainly assume that shooting targets is an ordinary lawful purpose; what if I want to shoot targets with "machine-guns and true assault rifles"?
I do understand the politics of trying to assure the court that machine guns aren't necessarily protected, even if I disagree with it. It's probably more realistic to take small steps at a time rather than try to "suddenly open the floodgates" as BillCA put it, but I hope that this doesn't close any doors on getting the 1986 ban repealed.
I agree.
I'm reading the brief as well, and didn't take this to mean a reduction in the right to access any militia weapon, only to state that the militia clause could not be used to reduce the right. By implication, that would mean that the militia clause still has meaning, as stated in the Miller Case, just that it can't narrow arms access.
We are perhaps a little biased? Hence my use of "almost."
Genius would be this, about the ABA brief:
Here, Gura & Co. has very politely and quietly, taken the ABA out behind the woodshed...
The Miller Court said:
Can we agree that the plain use of the terms mean that the citizen-soldier would muster with whatever arms he had? Can we agree that the differentiation between civilian arms and military arms of that era, were essentially non-existent? If we can agree on this, it necessarily follows that we can agree that one interpretation is ordinary civilian arms, "in common use at the time" means those arms common to civilians. This "distinction" was deliberate.
The brief for the Government (DOJ) shows how worried they are that 18 USC 922(o) would not survive, should strict scrutiny be applied to 2A cases. Gura is arguing, here, that we need not at this point in time, argue for or against this. Remember, Heller is about handguns. The strategy must preclude anything else in order to win. The tactics of scaling that wall is better left to another case on another day.
I should also point out a small matter that many might have overlooked: the respondents brief, almost in passing, notes that there is a certain "tension" between points 1 and 2 (of thier Miller "test"). That alone leaves an out for future litigation, to spell out in detail exactly what that "tension" might be.
We need to keep in mind the nature of this battle. This is only the start of the beginning. We can not nuke the entirety of section 922 in one fell stroke. No, the Court would never permit it. We can however, chip away at one small section of law today, only to come back tomorrow and chip away at a different section.
Strategy (an elaborate and systematic plan of action) vs. Tactics (the actual maneuvers to achieve objectives set by strategy) is the game being played here. Keep that always in mind.
That's something really interesting that I didn't know about until I read the brief. In the Respondent's brief, IIRC, they review how gun control was applied to keep blacks, indians, and mixed-race people from keeping arms. I never knew that!
On a separate matter, I see references to the ABA's brief. Is that the American Bar Association?
Another thing I think may be an issue is magazine capacity. What if the courts decide to allow handguns in DC, but restrict magazine capacity, perhaps to something unreasonable like 3 rounds for semi-automatics? How does magazine capacity fit in to the 2nd amendment and the right to bear arms? If they decide to allow handguns with no restrictions on capacity, then that could raise questions as to the constitutionality of magazine restrictions in other states.
Magazine capacity restrictions, play right into one of D.C.'s other codes that define what an automatic weapon is. That also, is another case for another day. Although...
It's also an issue I suspect the NRA amici brief will touch upon.
Fremmer, yes. The ABA brief is indeed the American Bar Association. Another long time anti-2A organization.
It's also an issue I suspect the NRA amici brief will touch upon.
Fremmer, yes. The ABA brief is indeed the American Bar Association. Another long time anti-2A organization.
Well, frankly, I'm ashamed of the ABA. I apologize to everyone here for their (presumably) anti-gun, anti-constitutional-right, wishy-washy, stupid brief. Shameful, but not unexpected. The ABA is great at protecting the right to commit sodomy, possess and distribute obscene hard-core porn, and for the killing of unborn children. Otherwise, the ABA just ain't worth much. :barf:
About the connection of racism and gun control, few references are better than The Racist Roots of Gun Control by an acquaintance of mine, Clayton Cramer.
On another note, a lawyer friend of mine says only about one in seven lawyers are members of the ABA. The ABA claims to represent all lawyers, but they obviously do not.
On another note, a lawyer friend of mine says only about one in seven lawyers are members of the ABA. The ABA claims to represent all lawyers, but they obviously do not.
I agree that private individuals should be able to own machine guns without restrictions, and I'm disturbed by the approach taken by Gura, regardless of the political necessity of that approach.C Philip said:
However, I have to admit that my reason for this is somewhat unusual. I have no great personal interest in automatic weapons, and in the absence of a very unusual situation, I don't see -- for most people -- very much use for automatic weapons in (personal) self defense or hunting.* However, there are some guns that are simply not made in semi-auto versions, or for which semi-auto versions are delayed for a long time. Allowing private ownership of machine guns allows private ownership of guns when manufacturers can't be bothered, or are not willing, to make semi-auto versions -- sometimes specifically to try to reduce private ownership of those guns.
(* Yes, there's the argument that people with practice can use 2- or 3-round burst settings effectively in self defense. Again, I'm not arguing against private ownership of machine guns, I'm simply trying to explain a rationale for private ownership of machine guns that I think is more relevant to most gun owners than this full-auto-burst self-defense possibility.)
I recognize that there are other situations where having full-auto functionality would be important. I'm simply saying that, barring domestic catastrophe, out-of-control government (more out-of-control than it is now), or foreign invasion, the only time most gun owners would or could legally fire full auto is for fun -- at targets or during organized shoots.
nobody_special
New member
That's one interpretation, but I'd argue it's not a meaningful one since the "arms common to civilians" and "arms common to the military" were essentially identical at the time, perhaps excepting canons.
The problem is that Gura mis-stated the test from Miller. The Court could take up this altered test in the Heller decision, in which case further lawsuits against 922(o) and other restrictions (such as magazine capacity) are very likely to fail.
Yes, but he's also giving the Court a route to decide those future cases now, and not in a pro-rights way. It's not part of the question the Court said it would answer, but given the political situation I think it's a possibility.
Yes, but Gura further wrote:
He's emphasizing the civilian use clause over militia use.
I think they made a smart play seperating the NFA from the rest of the herd. This case is the golden egg for 2A rights. So you do not want to kill the goose that is going to lay it. Since this case came up I felt that the NFA would be the deal breaker for the USSC. Now it has been seperated out. Battle for another day....
The brief pretty much lays out the actual events as happened and the reasoning and what the Bill of Rights Are. They are not given by the government. Not as in the other brief which is revisionist in nature.
Cant wait for the hearing to start.
The brief pretty much lays out the actual events as happened and the reasoning and what the Bill of Rights Are. They are not given by the government. Not as in the other brief which is revisionist in nature.
Cant wait for the hearing to start.
A couple of other points Gura makes that are both important and interesting. First is that the volunteer militas of the states were not - nor could they be - governmental bodies (ref: Pg18);
Later, when dissecting the 2nd's wording, Gura slams the door (hopefully once and for all) on the notion that the 2nd Amendment "only" guarantees a state's right to arm & organize it's own militia (Ref: P35-36);
With regard to the use of the term "in common use at the time" and the controversy some have indicated, I think the concerns are not necessarily valid when one looks at the subject closer.
The phrase "in common use at the time" is part of the SCOTUS precedent on the subject and therefore used by Gura to establish part of the "test" to determine if a firearm is protected or not. Let's look at the relevant quote again...
What Gura is saying here (and leaving the door open for a later argument) is that part of the test is... would a civilian find a lawful purpose in owning this arm if there were no laws prohibiting it's possession or use? I think we can see that it's quite possible to say "yes" to this question in regards to Class-III full-auto firearms. One has only to look at the marketing materials for the Thompson SMG in the 20's. One ad shows a rancher using it against coyotes or wolves preying on his sheep. Another showed it's use in fighting off potential cattle rustlers. How hard would it be, if the NFA never existed, to imagine seeing a 2006 advertisement featuring a citizen of New Orleans using a Bushmaster M4 Carbine to defend against post-Katrina looters?
Looking closer, I think we'd have a harder time finding a legitimate "lawful purpose" for such things as M203 grenade launchers, anti-tank rockets, grenades, mines and other similar devices. Somehow I don't think you could justify owning an M1 Abrams to remove tree stumps off your back forty.
Later, when dissecting the 2nd's wording, Gura slams the door (hopefully once and for all) on the notion that the 2nd Amendment "only" guarantees a state's right to arm & organize it's own militia (Ref: P35-36);
With regard to the use of the term "in common use at the time" and the controversy some have indicated, I think the concerns are not necessarily valid when one looks at the subject closer.
The phrase "in common use at the time" is part of the SCOTUS precedent on the subject and therefore used by Gura to establish part of the "test" to determine if a firearm is protected or not. Let's look at the relevant quote again...
What Gura is saying here (and leaving the door open for a later argument) is that part of the test is... would a civilian find a lawful purpose in owning this arm if there were no laws prohibiting it's possession or use? I think we can see that it's quite possible to say "yes" to this question in regards to Class-III full-auto firearms. One has only to look at the marketing materials for the Thompson SMG in the 20's. One ad shows a rancher using it against coyotes or wolves preying on his sheep. Another showed it's use in fighting off potential cattle rustlers. How hard would it be, if the NFA never existed, to imagine seeing a 2006 advertisement featuring a citizen of New Orleans using a Bushmaster M4 Carbine to defend against post-Katrina looters?
Looking closer, I think we'd have a harder time finding a legitimate "lawful purpose" for such things as M203 grenade launchers, anti-tank rockets, grenades, mines and other similar devices. Somehow I don't think you could justify owning an M1 Abrams to remove tree stumps off your back forty.
Antipitas said:
It also necessarily follows that another interpretation is ordinary military arms, if they are the same thing, and the whole intent of the 2nd amendment was based on that interpretation. I appreciate why Gura wants the SC to ignore that aspect, and I guess he had to say something about it in light of the DOJ brief. I still think it may open the door for the SC to cut off future challenges.
Publius (and others), I was going to answer this point, but Bill has beat me to it, with the bottom half of his last post. Reread what Bill has written about this and ponder the overall strategy and the exact tactic used by Gura to keep the door closed, but not locked.
One of the things that absolutely have to be done is to win over as many Justices as we can. Split decisions (5-4) are always decisions that a later Court may revisit... To our possible detriment in this case. The greater the number of Justices that agree, the less chance of a reversal sometime later down the road.
Like it or not, this game is very political.
There is now a third amici brief available:
Brief for the Congress of Racial Equality in Support of Respondent
A 3.9MB pdf that goes into great detail about the racial underpinnings of gun control.
One of the things that absolutely have to be done is to win over as many Justices as we can. Split decisions (5-4) are always decisions that a later Court may revisit... To our possible detriment in this case. The greater the number of Justices that agree, the less chance of a reversal sometime later down the road.
Like it or not, this game is very political.
There is now a third amici brief available:
Brief for the Congress of Racial Equality in Support of Respondent
A 3.9MB pdf that goes into great detail about the racial underpinnings of gun control.
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