The brief by
Texas, et al., is interesting to read. First off, you have
thirty-one states - 62% of them - acting in concert to support the
individual rights view and supporting the D.C. Appeals court decision. You'd have a hard time getting the Attorney Generals from that many states to sing the same words to
God Bless America in unison.
Texas argues that the 2nd is a
fundamental right from the outset and supports this assertion in their arguments.
Texas argues that no membership in a militia is required;
The District’s narrow interpretation of “Militia” to include only some select body of permanent soldiers is also belied by the provisions of the Militia Act, enacted by the Second Congress the year after the Second Amendment’s ratification. The Militia Act expressly defined the militia as “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years.” Militia Act, ch. XXXIII, 1 Stat. 271, 271 (1792).2 Thus, the “Militia” contemplated by the Framers was not limited to those enrolled in some type of state or local militia organization.
Footnote 2 pointed out the Milita Act
required citizens to arm themselves with a firearm, hardly something that could be described as a "states" right;
2. Indeed, the Militia Act not only permitted gun ownership by every able-bodied man, it required it—obliging by law each man to “provide himself with a good musket or firelock . . . or with a good rifle.” Militia Act, 1 Stat., at 271 (emphasis added).
Texas says there are two questions before the court - does the amendment protect any individual rights at all? And do the D.C. statutes run afoul of those constitutional rights? Then they take a slap at the U.S. Attorney General's brief;
...But the two questions in this case are, in the eyes of amici, not difficult. If the answer to either question were in the negative, then the Second Amendment’s protections would be rendered illusory.
For the same reason, the amici States believe that the Department of Justice’s position that this case should be vacated and remanded is indefensible. Under any standard, including that advocated by the Department, a total prohibition on the possession of any functioning firearm cannot be sustained.
After discussing some history of the right to arms and the experiences of the Framers,
Texas argues that The People could not be disarmed...
The Second Amendment answered the potential threat of a standing army with the guarantee that individual citizens could not be disarmed. The Framers saw that individual right as an essential bulwark of the people’s liberties. This Court should as well, and should affirm the judgment of the court of appeals.6
After making the statement that arms were necessary to support a militia who would be armed and outnumber any standing army that could be raised,
Texas argues in footnote number 6 for
immediate incorporation as a
fundamental right. That's 31 states agreeing that incorporation could be justly decided by SCOTUS in this case!
6. Although the Court need not reach the issue of incorporation in this case, amici States submit that the right to keep and bear arms is fundamental and so is properly subject to incorporation. To be sure, early decisions of this Court cast doubt on Second Amendment incorporation, see United States v. Cruikshank, 92 U.S. 542, 553 (1875); Presser v. Illinois, 116 U.S. 252, 264-65 (1886), but those opinions predated the Court’s broad-based incorporation of the Bill of Rights against the States. See Duncan v. Louisiana, 391 U.S. 145, 148 (1968). In the judgment of amici States, the right to keep and bear arms is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Palko v. Connecticut, 302 U.S. 319, 325 (1937) (citations and internal quotation marks omitted), overruled on other grounds, Benton v. Maryland, 395 U.S. 784 (1969). Authors of the Fourteenth Amendment concurred. See Van Alstyne, supra note 4, at 1252 (noting that in reporting the Fourteenth Amendment to the Senate, Senator Howard of Michigan described the right to keep and bear arms as among the Constitution’s “great fundamental guarantees” (internal quotation marks omitted)).
Texas also takes a shot at the absurdity of D.C.'s statutes by pointing out the D.C. laws are in opposition to all 50 state legislatures;
The Legislatures of all fifty States are united in their rejection of bans on private handgun ownership. Every State in the Union permits private citizens to own handguns. Forty-five States go further, allowing private citizens to carry concealed handguns for self-defense. Thus, the District’s sweeping firearm prohibitions are not only contrary to the Constitution, but also contrary to the reasoned judgment of every state legislature in the Nation.
Addressing the U.S. DOJ concerns that a postitive ruling would overturn federal laws,
Texas thinks that most would be upheld (such as prohibitions against felons, insane persons, regulations on imports and restrictions on machine guns). Then they conclude their arguments;
But all 31 amici States agree that striking down the District of Columbia’s categorical ban on all operative firearms would pose no threat to these reasonable regulations. Instead, this case is a threshold case: at issue is whether the Second Amendment has any modern meaning whatsoever. Remaining faithful to the Constitution, there should be only one answer.
CONCLUSION
The Court should affirm the judgment of the court of appeals.
