[kurtmax]

http://www.scotusblog.com/wp/uncategorized/petitioners-brief-in-dc-guns-case-now-available/

Haven't read it yet. I foresee it to be quite comical.

[battlecry]

So, their arguments are:

We read the second amendment differently (we went to DC public schools).
Second amendment does not apply to the citizens of DC because we are not a state.
Our (total ban, I mean) restrictions are reasonable.

[ArmedBear]

Their argument centers on the language of the 2nd Amendment being purely military, and that the right to keep and bear arms exists only within the context of a state-regulated militia, not the context of self-defense or the defense of one's home. If DC is not a state, and has no state militia, the 2nd doesn't apply, say they.

From what I've read, their opposition already has reams of documentary evidence to refute these assertions about the original intent and understanding of the 2nd Amendment, and even the meaning of the words "militia" and "a free state" in 1787.

Various statutes regarding the "militia" were passed AFTER the Constitution was ratified, so it's hard to see how these statutes, to which the petitioners refer often, could define "militia" for the purposes of interpreting the Constitution.

I suppose there's little else they could argue, but I don't think that this argument based on "originalism" is a real winner, due to the significant contrary written documentation of the amendment's "original meaning."

[TexasRifleman]

The words “well regulated” underscore that the
“Militia” contemplated by the Framers were organized
and trained fighting forces.

You are right, pretty comical.

My history books must be broken, that's pretty much the opposite of how I read American History.

The whole thing is just silly. They argue, as usual, the original citizens were "required" to keep and bear these arms for military purposes.

If it was a REQUIREMENT then why is it listed in the Bill of RIGHTS.


Crazy or not though it's the standard argument that's been made for many many years.
Start praying for the Supremes to be guided to the right decision.

[woerm]

one of their less abstract diversions/perversions

Fourth, the majority below also emphasized that the Second Amendment protects a “pre-existing right” and that guns were used in the founding era for pri-vate purposes. PA20a-22a. There is no persuasive reason, however, to believe that the Amendment pro-tects all such uses, rather than retaining that role for the common law or state constitutions.

huh? did these twits read the Federalist Papers or Common Sense?

/sarc

nevermind they feellll so bad their rules were tossed.

hmm, yup it protects a preexisiting right but that just doesn't matter. We must have oppression/rules/restrictions

whatdoya mean 'shall not be infringed'

r

[ArmedBear]

If it was a REQUIREMENT then why is it listed in the Bill of RIGHTS.

True enough.

The Bill of Rights guarantees due process, but it does not specify that anyone shall be required to serve on a jury.

Further, the origins of the Bill of Rights indicate that the phrase "to bear arms" did not imply military use of arms. The English Bill of Rights from which it was derived contains these words: "freedom to bear arms for self-defence".

That's what I mean when I say that DC has not picked a winning argument by basing their arguments, as they have, on the assertion that the word choice and cultural context mean that the 2nd Amendment applies only to organized, state-run, highly-regimented military service.

[azredhawk44]

I like this part:

The District does not suggest that gun regulations should be subject to mere rational basis review. In-stead, if the Second Amendment is found to protect a right of gun ownership for purposes of self-defense, a reasonableness inquiry would consider the legisla-ture’s actual reasons for enacting a law limiting exer-cise of the right. Furthermore, whatever those rea-sons, a law that purported to eliminate that right—for instance, by banning all gun possession, or allowing only a firearm that was so ineffective that the law ef-fected functional disarmament—could not be reason-able.
...
But at least where a legis-lature has articulated proper reasons for enacting a gun-control law, with meaningful supporting evidence, and that law does not deprive the people of reasonable means to defend themselves, it should be upheld.


So... long guns have to be disassembled or locked, and no handguns allowed whatsoever does not sound like "a law that purported to eliminate that right—for instance, by banning all gun possession, or allowing only a firearm that was so ineffective that the law ef-fected functional disarmament"?

Whatever.

[Jim Watson]

The business about DC not being a state leads me to expect one of those technically favorable but "narrowly drawn" verdicts that will do nobody outside DC any good in case law.

[woerm]

+1

much better summary of the DC 'problem' with 18th Century Legal Precedent

pardon 17th Century (1689 English Declaration of Rights)

:D

[HonorsDaddy]

I cant read that garbage and keep my lunch down.

Can someone with a stronger stomach summarize?

[Bubbles]

Is it just me, or is there nothing in this brief that wasn't in any of DC's prior briefs? Same drivel, new packaging.

[woerm]

sorry ran out of anti nausea drugs too.

r

try reading it on an empty stomach :)

[ArmedBear]

The business about DC not being a state leads me to expect one of those technically favorable but "narrowly drawn" verdicts that will do nobody outside DC any good in case law.

I don't expect a verdict that suddenly wipes out all gun control laws.

However, if a precedent is established that the 2nd Amendment applies to individuals, then it will be possible for the following cases to come before Federal Courts:

1. 14th Amendment incorporation of the 2nd Amendment.
2. "Functional disarmament" arguments.

For example, California's 10-round magazine limit doesn't prevent me from keeping or bearing arms. However, it might be "functionally disarming", especially by the "military weapons in common use" standard. Ditto for restrictive state laws that don't allow certain common firearms (Glocks in MA, standard AR's in CA) to be sold.

I do not expect this court to give these decisions away without any additional cases, though they probably could if they wanted to. It's against Roberts' beliefs about the Court's role in our 3-branch government.

However, if the basic meaning of the 2nd Amendment is established, it provides a basis for fighting laws that "functionally disarm" citizens.

[ArmedBear]

As an aside, though, it's interesting to see DC's "liberal" attorneys making arguments that, whether they're right or wrong, take "originalism" for granted. We've come a long way in a (relatively) short time.

[azredhawk44]

As an aside, though, it's interesting to see DC's "liberal" attorneys making arguments that, whether they're right or wrong, take "originalism" for granted. We've come a long way in a (relatively) short time.

Yeah, their first 20+ pages were based loosely in selective originalist writings from Blackstone/Federalist and other 18th century writings, but the closing dozen or so pages were nothing but new-age "but it's for the children!" drivel still.

Funny to see them use a 2006 Guns & Ammo article for their defense though. :evil:

[ArmedBear]

Yeah, their first 20+ pages were based loosely in selective originalist writings from Blackstone/Federalist and other 18th century writings

By selectively quoting, they're asking for some serious mockery from Scalia and maybe even others. And they will receive it.

but the closing dozen or so pages were nothing but new-age "but it's for the children!" drivel still.

SCOTUS doesn't like that sort of thing. I think they find it inappropriate and even a bit insulting, whether it advocates social policy that appeals to the left OR the right.

[HonorsDaddy]

I managed to force my way through a few pages of it. I find it ironic that while using the argument that DC isnt a state, they rely upon state case law as justification.

Ok - maybe that isnt too odd, but it just strikes me as funny.

The holes in their argument are large enough to drive a truck through. I can see some of the justices having a field day ripping DC's attorneys a new one.

[woerm]

I was thinking

'Selectively misquoting' might be a more appropriate description

and Scalia will horsewhip them for it.

Thomas may actually hand/sell them some rope before he hangs them out to dry.

I'd love to hear them discuss how the 13, 14 and 15 amendments don't apply to DC

and which amendment was it that gave women the right to vote?

Ginsburg may have some rather terse questions on what limits apply to the constitution/amendments vs DC

r

[ArmedBear]

Ginsburg may have some rather terse questions on what limits apply to the constitution/amendments vs DC


Very true. I hadn't thought about that enough.

What's interesting about this is that "liberals" have something to lose by ruling in DC's favor, too.

[DrewH]

Not an expert, but I was listening to a news report on Ginsburg's dissent on a Supreme Court decision that went against extending sex-discrimination in employment lawsuits. The news claimed she was saying that the other justices didn't understand how badly this would affect women in the workplace.

In other words she was concerned about the social effects of the decision rather than looking at the actual wording of the law. If this is true it would seem she would be highly susceptible to irrelevant "it's for the children" arguments of social utility.

Is this accurate? Anybody have any idea how she would rule on Heller?

[ArmedBear]

Her dissent is not necessarily akin to "it's for the children".

There are other forms of utilitarian arguments that are quite different. They can be "common sense" arguments about whether a law really follows the Constitution.

For example, a court might rule that a legal limit on sound volume for speakers at a large political rally is about the rights of nearby residents to enjoy their private property and doesn't limit the freedom of speech. A dissenting judge might argue that, since only the first ten rows could hear the speakers, it really does act to limit people of a certain point of view to communicate their political beliefs, and therefore it DOES limit free speech.

[MatthewVanitas]

Huh, from page 49:

By their nature, handguns are easy to steal
and conceal, and especially effective for robberies and
murders. The dangers those weapons cause are par-
ticularly acute in the District. As Councilmember
Clarke noted, “The District of Columbia is a unique
place. . . . [O]ur area is totally urban. There is no
purpose in this city for . . . handguns other than to
shoot somebody else with.” Morning Council Sess. Tr.
73:9-12, May 3, 1976; see also Morning Council Sess.
Tr. 47:20-21, May 18, 1976.


pg 53
Fourth, handguns are easy to bring to schools,
where their concealability and capacity to fire multi-
ple rounds in quick succession make them especially
dangerous. In urban areas, as many as 25% of junior
high school boys carry or have carried a gun. Jack M.
Bergstein et al., Guns in Young Hands: A Survey of
Urban Teenagers’ Attitudes and Behaviors Related to
Handgun Violence, 41 J. Trauma 794 (1996). In the
recent Virginia Tech shooting, a single student with
two handguns discharged over 170 rounds in nine
minutes, killing 32 people and wounding 25 more.
Reed Williams & Shawna Morrison, Police: No Motive
Found, Roanoke Times, Apr. 26, 2007, at A1.

Whoa! They do pay attention to the gun culture:

pg 54-55:

Although there are competing views today, just as
1976, the Council acted based on plainly reasonable
grounds. It adopted a focused statute that continues
to allow private home possession of shotguns and ri-
fles, which some gun rights’ proponents contend are
actually the weapons of choice for home defense. Dave
Spaulding, Shotguns for Home Defense: Here’s How to
Choose and Use the Most Effective Tool for Stopping
an Attack, Guns & Ammo, Sept. 2006

[DrewH]

So she could have argued that upholding the law's limits on extending the lawsuits could have violated the constitional ban on discrimination, for example? The news report didn't really have her saying that, it was her complaining about how the other judges didn't understand how hard this would make it for women in the workplace, but to be fair it was a five minute (if that) newsbite.

How do we think Ginsburg, and the other justives, will rule on Heller? Any idea?

[Baba Louie]

The Second Amendment was not intended to tie the hands of government in providing for public safety. Reasonable regulations of firearms have been commonplace since the founding of the Republic. Consistent with this tradition, the Council enacted gun control legislation tailored to the unique problems presented by the District's urban environment. The contrary holdings of the court of appeals were premised upon reasoning with no basis in law or logic. This Court should restore the District's laws.There it is. In a nutshell.
While it is true that government officials, both elected and appointed, thought (and wrote) differently 215 years earlier (slavery, native, negro and women's rights come to mind), I fail to understand how one logically or legally substitutes the words "...government in providing for public safety" for "...militia being necessary for a free state".
...premised upon reasoning with no basis in law or logic. Works for me.

[kurtmax]

By their nature, handguns are easy to steal and conceal, and especially effective for robberies and murders.

By their nature, notebook computers are easy to steal and conceal, and especially effective for breaking into networks and looking at child porn.

I say we ban notebook computers!

In urban areas, as many as 25% of junior high school boys carry or have carried a gun.

Looks like their own citizens like to carry firearms. Must be just the politicians against it....

[Caimlas]

Well, I see this playing out several ways, and all/most of them involve some part of the "not a state" argument shooting them in the foot.

Let's say they win on the argument as above stated. Great: they've just given a signed check to the "make DC a state" movement: DC is predominantly populated by black/"African American" citizens, many of which are decidedly Democrat, and the left really wants that extra state to pull things over in the presidential elections (and hte extra house/senate seats wouldn't hurt, either). The "black power" types like Sharpton -might- even commit a little hypocrisy and join the rally on grounds of "black people being denied the rights of whites". Part of me would actually love to see that happen.

Besides, aren't US citizens living in US territories able to exercise their 2nd Amendment rights?

[K-Romulus]

The DC "country mouse vs. city mouse" argument is really old and worn out. ETA: I am referring to the supposed "findings" by the city council some 30+ years ago that "handguns have no legitimate purpose in an urban area." The same concerns would not be valid in a suburban or rural area? Or, to flip it around , why are those concerns NOT a problem in the suburbs, but cross one street into the District of Columbia and suddenly they arise?

It is cognitive dissonance to say handguns should be banned because "the only reason for a handgun in an urban area is to shoot someone," but then still (supposedly) expressly allow home-defense shotguns and rifles. I mean, what are you supposed to do with the shotguns and rifles? Point at the home invader and yell "bang?"

[Bubbles]

From pg 29:

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 fed-eral 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 author-ity was not constrained.

Translation: Congress needs to be able to pass gun-control laws for the purpose of protecting itself from the citizens.

Isn't this how dictators and despots operate?

[deanf]

The really missed the mark on this one. The question before The Court is this:

Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violate the Second Amendment rights of individuals who are not affiliated with any state-regulated mili-tia, but who wish to keep handguns and other fire-arms for private use in their homes?

So The Court has already decided that individuals have Second Amendment rights, even if they are not affiliated with a militia. Aren't the parties expected to narrow their arguments to only the question presented? All the arguments about whether or not individuals have Second Amendment rights seem moot, since The Court has already established in their question that we do.

[hugh damright]

The English Bill of Rights from which it was derived contains these words: "freedom to bear arms for self-defence".
That's not what I remember reading. Are we talking about the 1689 English BOR such as at http://www.yale.edu/lawweb/avalon/england.htm ? It says:

"That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law""

Not only does it not say "for self-defence", but when put into context, I find it easier to see the object as the collective defense i.e. instead of a standing army to kick them around they will provide for their own collective defense. This is the same thing that the requests for the Second Amendment said i.e. that a standing army is a danger to liberty and that the proper defense of a free State is the people of that State organized into well regulated militia.

[leadcounsel]

Their arguments are just convenient for their purposes. Here they argue against handguns because they are "just for killing people" and are easy to conceal and/or steal. They advocate rifles and shotguns.

However, the left often attacks "high powered rifles" because they penetrate armor and shoot distances....

Seems that in an urban area where there's no hunting, there would be less use for rifles and more use for handguns if the intent were purely self defense.

If their argument is that the Constitution or Bill of Rights doesn't apply to DC because DC isn't a state, then that is clearly contrary to the drafter's intent. And if their argument is that it isn't an individual right despite ALL other rights in the Bill of Rights being individual rights not controlled by the state, again this argument is a loser.

Bottom line... their argument is a tired argument and a losing one. I'm feeling pretty good going into this...

[C-Tzar]

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. A firearm must be kept “unloaded and disassembled or bound by a trig-ger lock or similar device unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes.” The provision’s author noted not only that 3,000 deaths resulted annually from firearm accidents, but also that loaded weapons are often misused against family members in moments of passion. Evening Council Sess. Tr. 21:1-15, Jun. 15, 1976. He explained that trigger locks may be unlocked in less than a minute. Id. at 42:11-18, 49:8-16.

I found this paragraph somewhat entertaining. They claim that trigger locks can prevent "moment of passion" killings, but then in the very next sentence explain that the locks can be removed in under a minute. Who's side is this guy on? So when someone storms off into the bedroom in a huff, slams the door shut (leaving the other[s] in the house to believe the argument is over), removes the trigger lock, loads up, storms back out and opens fire, what exactly did the trigger lock prevent?

Yes, I realize he probably meant for it to show that the provision was "reasonable" because if someone needed the gun for defense against an armed intruder, they could still unlock the gun in under a minute (well, unless the lock jams, or you drop the key, or can't find the key, or...), but the wording/placement was not ideal. And I guess by extension the fact that after "less than a minute" you still have an unloaded gun is also reasonable because ...well, ummmm...it just is. Don't worry, the bad guy will wait for you to load your gun. :banghead:

[ArmedBear]

DrewH, I'm no big fan of Ginsburg, or the dissent in question.

However, even in this case, there's a subtle but important difference between a technical ruling that she believed violated the intent of the law and its enforcement, and the impact this would have, and simply wanting a ruling that contradicts the law in question.

In the high-profile Bill of Rights cases lately (like Kelo and Raich), rulings have been based on very minute nuances. That's why I think it's pretty hard to determine what the ruling will be. My guess is that it won't hinge on a "collective rights" doctrine either way. Beyond that, it's hard to guess.

[shield20]

Much of it actually made sense re: "the well regulated Militia", it's role, and the people's role in it. They got past many lies of the antis with what these words actually mean. They just left out all the comments - BY THOSE INVOLVED - about "private", "personal", "inherent", "absolute", &c when talking about the BoR; they also fantasized about what "defence of themselves" might mean, and kind of forgot that the people just may want to defend themselves OUTSIDE THEIR HOMES, especially in DC, since the ban is such an obvious failure in it's supposed purpose (i.e. after 30yrs, still tops in several violent crime catagories).

They surprisingly brought it up, but also seriously & obviously downplayed Madison's original proposal and the importance of the semi-colon--": "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated being the ...". CLEARLY a separate idea here, as that is exactly how the clauses in the Constitution are written! They lose big time here...

They didn't get TOO far into how the respondent (and most of us) are NOT in the "new" Militia (NG), but surely inferred it as important. What they failed to point out that if the feds ignore the constitutional Militia, and the State's ignore THE Militia, it is up to the people (we are where all those powers orginated from after all), as the Constitution & 2nd says - OUR freedom depends on it. And they shyed away from the idea, but didn't truly hide the whole "people are to arm themselves" intent.

They chose to focus on militia vs private meaning of the 2nd, yet they also seemed to recognize the individual right to arms exists outside the 2nd - yet downplayed that right, and "it's scope". Seems a move here to leave the right open to any restrictions, and to prevent the govt from doing it's primary duty - securing it.


I LOVE this...

National limitations on what fire-arms may be possessed privately could conflict with a state’s ability to call forth a militia armed as the state sees fit. As the majority below recognized, the Amendment ensures “that citizens would not be barred from keeping the arms they would need when called forth for militia duty.”

and

Fifth, the majority relied on the words “right of the people” (PA18a-19a, 27a), but recognizing such a right does not define its scope. The question is not whether individuals can enforce the right protected by the Second Amendment. The question instead is whether this right is limited to the possession of militia-related weapons.


So, besides the glaring ommissions in their argument overall, they confirmed (as already decided in Miller) that military style assault weapons and accoutrement bans, full-auto restrictions, and pistol regulations are unconstitutional(!!) and that the people DO INDEED have an individual right to KBA.

[ctdonath]

So The Court has already decided that individuals have Second Amendment rights, even if they are not affiliated with a militia. Aren't the parties expected to narrow their arguments to only the question presented?
Quite.
For all the bizzare rhetoric therein, they have utterly failed to address THE QUESTION.
...which is odd, because they had a private meeting with the judges right before the question was published, where presumably the judges made it clear what the question was and why it would be addressed instead of what DC submitted.
...and which will likely result in a remarkable conversation come oral arguments.

[leadcounsel]

Could this terrible brief explain why they fired their counsel?

[azredhawk44]

So:

1. They didn't address the QUESTION posed by the Court.
2. They affirmed the right of DC residents to own rifles/shotguns.
3. They affirmed the right of DC residents to have ready-to-use arms in the home, and that their goal was not disarmament.
4. They affirmed that disarmament by government is a "bad thing."
5. They affirmed that military-class weaponry is suitable to the militia.

Anyone wonder why DC counsel for this case was fired after the brief was filed? :neener:

[ArmedBear]

they had a private meeting with the judges right before the question was published, where presumably the judges made it clear what the question was

Ah. I didn't know that.

That points to a few things.

The notion that the 2nd Amendment just sort of "fell silent" with changes in military technology and organization, so it doesn't really mean anything -- the ACLU position -- was rejected by the judges.

The academic invention of a "collective right" was rejected by the judges.

Why? If you look at the argument, it's the argument you'd have to make if you were told that the 2nd Amendment DOES still have weight, and that you shouldn't bother with the "collective rights theory" because "the people" indicates SOME individual right.

Still, it's true. They didn't address the question.

[Crashola]

DrewH, I'm no big fan of Ginsburg, or the dissent in question.

However, even in this case, there's a subtle but important difference between a technical ruling that she believed violated the intent of the law and its enforcement, and the impact this would have, and simply wanting a ruling that contradicts the law in question.

Relying, in part, on the social effects of a law to render an opinion isn't anything new. The most famous example is the footnote in Brown v. Board of education where the Court relied on psychological evidence that segregated schools were detrimental to black children.

[ctdonath]

Actually it's a pretty good brief - given that they are trying to defend the indefensible.

1. They made it very clear that the Founding Fathers were exclusively concerned about military matters when writing the 2nd Amendment. (That self-defense is a right was a no-brainer the FFs didn't have to discuss.)
2. From that conclusion, the 2ndA evaporates when couched in terms of the feds protecting themselves from themselves. (A warm-fuzzy conclusion that itself evaporates in light of "the people" being guaranteed a right which oddly & suddenly doesn't exist.)
3. Finally, those who think in terms of social policy trumping law are fully persuaded by the final argument. (SCOTUS cares little of social policy, only law.)

Not bad for those who think that way.

Unfortunately, they unavoidably reach absurdities:
- One has a right to defend the state, but not one's self.
- DC is both independent of, and a manifestation of, Congress.
- A right may be "regulated" into only doing what the gov't says, with what the gov't allows, solely for the benefit of the gov't.
- Select statistics reflect reality.
- Such absurdities can be brushed aside with a witty comment, or merely ignored.

[ArmedBear]

The most famous example is the footnote in Brown v. Board of education where the Court relied on psychological evidence that segregated schools were detrimental to black children.

I thought that, in that case, they were faced with the question "can 'separate but equal' ever be equal, as required by the law?" That's not really relying on a social effect.

That's a fine line, sure, but one that we may need one day. One day, we may find ourselves in the position of trying to show the Court that, say, a magazine size limit really does "infringe" on RKBA, even though there's nothing in the 2nd Amendment that says anything more specific than "arms".

- One has a right to defend the state, but not one's self.
- DC is both independent of, and a manifestation of, Congress.
- A right may be "regulated" into only doing what the gov't says, with what the gov't allows, solely for the benefit of the gov't.

A wonderful summary of the absurdity of the argument.

[LightsOut]

C-SPAN better be covering the oral arugments in their entirety. I can't wait to listen to Scalia in action.

[Standing Wolf]

Is it just me, or is there nothing in this brief that wasn't in any of DC's prior briefs? Same drivel, new packaging.

Leftist extremism embodies the antithesis of creativity. Always has. Always will.

[USAFNoDAk]

I like how they completely ignore the writings of the founding fathers, yet they seem to know with 100% certainty that the founders had no desires to ensure that "the people" of the United States, who are a peacable people, would never be disarmed. These lawyers must have had a few laughs while writing this arguement.

Also, in their references to US vs. Miller, they conveniently neglect to include the part where the USSC opinion states that when called forth for militia duties, the people were to appear bearing arms supplied by themselves. Well, how can you do that if you are banned from keeping arms that would be suitable for militia duties, such as handguns. Hmmmmm?

I bet Thomas and Scalia will be rolling their eyes (in their thoughts, not outright) as they listen to this backwards thinking, often times conflicting with itself, drivel. How much are they paying the folks who came up with this? They wasted their money, IMHO.

[USAFNoDAk]

Maybe the DC Lawyers should have gone to this website before they wrote an argument deserving of a flunking grade. This would have told them the opinions of the founders who helped create and pass the second amendment. How they can come to the conclusion that the founders were only interested in military arms and the military act of keeping and bearing arms is ludicrous, if not downright rediculous.

http://hematite.com/dragon/2ndQuotes.html

[Mazeman]

As a reminder, here's the question, as re-worded by SCOTUS:

Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, 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?


As for the laws referenced, the first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

My prediction is that SCOTUS will find gun ownership an individual right, and that laws that essentially ban them IN THE HOME are unconstitutional. Rulings about incorporation, and limiting access outside the home are in the future.

[jrfoxx]

If DC is not a state, and has no state militia, the 2nd doesn't apply, say they.

The problem with this argument on thier part is that they beleive the Natonal Guard is the militia, and D.C. DOES have its own national guard, so.....they contradict themselves heavily.The have NO leg no stand on IMHO.Morons.
http://dcng.ngb.army.mil/

[Mike OTDP]

Not to mention that Federal law defines the unorganized militia as all males between 18 and 45.

[doc2rn]

Wouldn't this be great if the BATFE lost the 1968 ban on machine guns because the militia would need them as a military weapon....hey a guy can dream can't he.

[Megistopoda]

Not to mention that Federal law defines the unorganized militia as all males between 18 and 45.

It certainly does. And in footnote page 14, the District distinctly points this out:

"Because he is sixty-six (PA120a), respondent is not a member of any statutory militia."

[Mike OTDP]

Other arguments aside, it'll be interesting to see how SCOTUS (a group averaging well over 60) reacts to that.

Not to mention the implications of age-discrimination laws.

[AZTOY]

http://www.ngb.army.mil/About/default.aspx

Throughout the 19th century the size of the Regular Army was small, and the militia provided the bulk of the troops during the Mexican War, the early months of the Civil War, and the Spanish-American War. In 1903, important national defense legislation increased the role of the National Guard (as the militia was now called) as a Reserve force for the U.S. Army.

So we were a militia up to 1903 !!

[Hands of blue]

The licensing requirement, which enables the District to prevent felons and other dangerous persons from keeping concealable weapons

Yes and it has worked great crime is unheard of in DC

[Ed Meinel]

double post

[Ed Meinel]

This thing is hilarious.
The contrary holdings of the court of appeals were premised upon reasoning with no basis in law or logic.Let's insult the judges. That ought to get SCOTUS on our side!
...children were particularly vulnerable—“1/4 of the victims are under 14 years of age.”Ummmm, so that means that 75% of the victims were not children.
Guns stolen from even the most law-abiding citizens enable criminal gun violence.So now we're responsible for what criminals steal?
The Council thus chose to “freez[e] the pistol . . . population within the District of Columbia.” ... The licensing requirement, which enables the District to prevent felons and other dangerous persons from keeping concealable weapons, is separate from the registration requirement applicable to all firearms.Therefore, since no one can own a pistol in WDC, that means that all residents are either felons or dangerous persons.
Absent the handgun ban, District residents could register handguns and then apply for licenses to “carry” them.Oh, the horror!
Respondent Heller owns handguns and long guns (i.e., rifles and shotguns) but stores them outside the District.Gee, do you think that its because he can't keep the pistol inside the District???
...the district court granted the District’s motion to dismiss the complaint.What good does it do to cite a ruling that was overturned by a higher court?
...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.Wait a minute. I thought the District said that self-defense was an invalid argument?
Although the District construes D.C. Code § 22-4504(a) as a licensing provision, not a flat prohibition on the use (“carrying”) of handguns, ...But, but.. didn't they say earlier...the handgun ban...Curiouser and curiouser.
The District construes D.C. Code § 7-2507.02, which has never been interpreted by local courts and appears never to have been enforced, ...So, why exactly do they want to keep a law that has never been enforced?
The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes. ... Equally irrelevant was the fact that the District allows residents to keep rifles and shotguns for private purposes.I'm getting a headache.
Firearms required to be unloaded and disassembled ... the District’s citizens, who may still possess operational rifles and shotguns.How can a disassembled rifle be considered operational?

Mind you, this list only gets us up to page 11. The interested student can search for more logical flaws.

[shield20]

That the people have a right to bear arms for the defense of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up: And that the military should be kept under strict subordination to, and governed by, the civil power. {Penn Declaration of Rights}

(“That the people have a right to bear arms for the defence of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals . . . .”) (Pennsylvania ratifying minority);


These are a couple more key sections in the DC brief. pp50 & 52. Most of their entire argument is that the 2nd is applicable for protecting the people as part of the well regulated Militia only. They try to prove quite strongly the "strictly military meaning" that the words "bear arms" have. {“[o]ne does not bear Arms against a rabbit” or an intruder, Garry Wills, To Keep and Bear Arms"} Yet right here, in 2 clear and concise examples of the time they themselves quote, "bear arms" is used explicitly to refer to self defense AND "the killing of game". They lose big time here as well.

[publius]

From the DC brief:

Because respondent does not assert a right to keep or bear arms in connection with militia duties, he has no Second Amendment claim.

Which leaves me wondering, why didn't the Court in the 1930's just tell Miller to go away because he was not involved in any militia? If their reasoning is correct, the Miller case should never have been heard.

[Gildas]

In amongst all this stuff there is an argument on originalist lines trying to make the point that the RKBA is solely in the context of the Militia, and they support it with quotes from sources at the time. I think it would be an interesting excercise to go through those citations and find any that are blatantly out of context. (Which is something Saul Cornell got caught doing recently, so its not as if the grabbers don't have a track record there).

Now I am sure Gura et al will be doing that, but they only have (?) 60 days to get Heller's brief in, so if by the middle of next week a bunch of DC's cites had been blown away all over the internet, that would surely enable Gura to concentrate on other parts of the Respondents brief.

Incidentally, we should not be surprised or put off at the quality of the DC brief (although its tendentiousness is unavoidable given what they are trying to prove). They did after all have two top-flight law firms working on it for free, and having been completely outfoxed in the cert stage I am sure they put every possible effort into this.

[riverdog]

Because respondent does not assert a right to keep or bear arms in connection with militia duties, he has no Second Amendment claim.
Which leaves me wondering, why didn't the Court in the 1930's just tell Miller to go away because he was not involved in any militia? If their reasoning is correct, the Miller case should never have been heard.Which is great because now the court can rule on the significance of the 2ndA militia clause. It's an individual right and the militia is one example of why the right to keep and bear arms is in the BoA; the militia was/is not an exclusive reason.

[k_dawg]

I have always felt that given the Miller ruling, we have the "right" to military style firearms, yet no other.

That is, we have the constitutional right to own a Colt M4 select-fire rifle [ since it is used by the US military ], and not say, a .22lr target pistol.

[ not that it implies the others are instantly illegal.. but that there is no right to non-military appropriate firearms ]

[bbadger]

k_dawg writes:
I have always felt that given the Miller ruling, we have the "right" to military style firearms, yet no other.

That is, we have the constitutional right to own a Colt M4 select-fire rifle [ since it is used by the US military ], and not say, a .22lr target pistol.

Two corrections.

1) The military most definitely has used .22lr target pistols. The famous 22 conversion for the 1911 was used for punching holes in paper -- not people. Target practice is a very legitimate military use. Similarly, the military has issued "survival" weapons (M6 and AR-7) for hunting purposes -- so subsistence hunting is also a military use. It would be very difficult indeed to identify ANY sort of firearm or firearm activity that is not used by the military. From bolt action hunting rifles to .410 shotguns to black powder muskets -- they've used them all.

2) You definitely do have a right to own a Colt M4 select-fire rifle, what you don't have is the ability to buy one.

[Gunnerpalace]

Wouldn't this be great if the BATFE lost the 1968 ban on machine guns because the militia would need them as a military weapon....hey a guy can dream can't he.

I think you mean article 922(o) of the 1986 "Firearm Owners Protection Act"

1968 is bad to (if you like Mp5's)

I don't think milita is relevant IE the right of the people to keep and bear arms not the milita.

[Megistopoda]

As just one example of the clever mendacity apparent within the brief, please consider the following. If you will, try to reconcile these two passages...one from the brief, and the other from US v. Miller.

On page 48 of the brief, last sentence, DC states:
Moreover, Miller never suggests that if a weapon is of the type that might be kept by someone in the militia, its potential status as an "arm" would be sufficient to render the weapon immune to proscription.

In the Miller opinion, the SCOTUS states the following:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

[ArmedBear]

They did after all have two top-flight law firms working on it for free

...and it looks like they got their money's worth.:D

Yet right here, in 2 clear and concise examples of the time they themselves quote, "bear arms" is used explicitly to refer to self defense AND "the killing of game".

Yeah, I thought their "originalist" argument about the use of "bear arms" implying military use and military use only was the dumbest thing I saw in the whole brief, at least in the one pass I did. It is very easy to refute, and a 5-second Google search should have clued them in. I missed that they actually refuted it themselves.

I hope that our side of this case is laughing with glee. Actually, I have little doubt that they are.

[Megistopoda]

The brief is divided into three main components, arguing:

1) The sophisticated collective rights view of the 2A (exclusively military context)...approx. 24 pages
2) Jurisdictional issues - the 2A applies only to states (and thus not DC)...approx. 5 pages
3) Reasonable restrictions don't violate 2A...approx. 18 pages

Regarding the first, and most lengthy, argument, is that the 2A must be read in exclusively militaristic terms and purposes....thus, that it does not and cannot protect arms for private use such as self defense, hunting, sports, etc. This is known academically as the "Sophisticated Collective Rights view."

Randy Barnett (among perhaps others) have refuted this view, and one of his papers can be downloaded here:

http://law.bepress.com/cgi/viewcontent.cgi?article=1346&context=expresso

[publius]

Just skimmed through the brief for the first time. I'm left wondering why the NRA was so afraid that this day might come? Yes, the Supreme Court has bought into some loads of manure in the past, but it's hard to see how we can lose this one.

[lacoochee]

left wondering why the NRA was so afraid that this day might come? Yes, the Supreme Court has bought into some loads of manure in the past, but it's hard to see how we can lose this one.

You might think that then there is:

KELO V. NEW LONDON

and

The Supreme Court ruling on McCain-Feingold finding that abomination upon free speech constitutional

Do not count the proverbial chickens yet, this is far from being in the bag.

[ctdonath]

It would be very difficult indeed to identify ANY sort of firearm or firearm activity that is not used by the military.
Actually, DC makes this very statement in their brief - going so far as to plainly state that the sawed-off shotgun in Miller DOES obviously have military use ... and then bizzarely states that the feds could ban it precisely because it was so common!

[ctdonath]

Probably my favorite line from the brief:
The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes.
However, the text and history of the Second Amendment conclusively prove the notion that it entitles individuals to have guns to protect the state.

Hands please of anyone who thinks the Founding Fathers meant that one could personally own a firearm to protect the state but not himself.

[22-rimfire]

Well, it seems they made their best case, or in other words, the only case that have.

[Kharn]

Tagged so I'll remember to read it tomorrow.
From the posts, it sounds like amateur hour at the city attorney's office...

Kharn

[usmarine0352_2005]

Just skimmed through the brief for the first time. I'm left wondering why the NRA was so afraid that this day might come? Yes, the Supreme Court has bought into some loads of manure in the past, but it's hard to see how we can lose this one.

Because, SCOTUS could still rule against an individual right, and that would be a big blow to 2nd Amendment rights.

Even if we see it as cut and dried.

[ArmedBear]

KELO V. NEW LONDON


Now I, apparently like 80% of the country across the political spectrum, did not like the Kelo verdict.

However, the 5th Amendment reads, "...nor shall private property be taken for public use, without just compensation."

The verdict was rather narrow, and said that, since New London had a written and complete, large-scale redevelopment plan, and that the properties in question were a small part of it and were required to complete the large-scale redevelopment, and since the property owners were to be compensated for their property at fair market value, New London could indeed demand their sale. The decision stated that, without such a plan, or if these properties were targeted, the verdict would probably be different.

The Amendment promises "just compensation", and the verdict said that the property owners were offered exactly that. The Amendment does not promise that property will not be seized, and it can be a fine line.

Again, I don't like it. I was downright pissed off when the Kelo verdict came down, as were a great number of people right, left and center. We may disagree about government vs. business power, markets vs. regulation, etc., but Americans tend to believe that our homes are sacred, and that "private property" means something.

However, it is a greater stretch to say that "the right of the people" means "the right of the government" than that "nor shall private property be taken for public use, without just compensation" means that cities can't eminent domain small bits of property, with compensation at market rates, as part of a large-scale redevelopment of a run-down waterfront.

That doesn't mean I'm counting my chickens before they hatch. It does, however, mean that I'm pretty happy to see that DC's brief is the best they can do with this. It's so full of holes, it's downright ridiculous, and I think they know it, too. It's not just our pro-gun biases, either; what I read here comes from some intelligent people with good reading and critical thinking skills.

We'll see how it turns out. But I'd feel much worse right now if I thought they really DID have some solid arguments that rank amateurs couldn't so easily rip apart just for fun on the 'net.

[Jim March]

Well having read it in detail, I find that the DC lawyers do have one point going for them. Not that they should win, but that they're successfully pointing out an absurdity.

The issue crops up the strongest at the bottom of page 38 (note: that's as the pages are numbered, NOT how the Acrobat file numbers things!).

Let me quote them:

That view is particularly illogical because it sug-gests that the Framers uniquely disabled firearm regulation in the District and other federal enclaves, such as the territories and military bases. This Court has squarely held that the Second Amendment was adopted as a limitation on only federal, not state, leg-islation. Presser, 116 U.S. at 265. Although the ma-jority below suggested that the Second Amendment may subsequently have been incorporated against the states through the Fourteenth Amendment (PA37a-38a n.13), there is no dispute that the Second Amend-ment did not limit the states’ regulatory authority over firearms when enacted.9

And then here's footnote 9:

9 Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). Moreover, incorporation against the states would be curious since the Second Amendment was en-acted to protect state prerogatives.

Again: they're sorta right, in that if the Supremes today slavishly (pardon the pun) follow Presser (1886) and it's immediate ancestor Cruikshank (1876), we do indeed get an absurd result.

Here's the kicker:

* First thing, ignore Presser because all it does is refer back to Cruikshank for the "settled law" that the 2nd Amendment doesn't apply to the states. Don't take my word for it, here's Presser:

http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/presser.txt

And here's the "money quote":

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States. It was so held by this court in the case of United States v. Cruikshank, 92 U. S. 542, 553, in which the Chief Justice, in delivering the judgment of the court, said, that the right of the people to keep and bear arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in The City of New York v. Miln, 11 Pet. [102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police; 'not surrendered or restrained' by the Constitution of the United States." See also Barron v. Baltimore, 7 Pet. 243;

It cites a bunch of cases right after that but Barron matters - a LOT. We'll get to that.

Let's get back to Cruikshank.

That case (also cited in passing by the DC attorneys) is quite possibly the most racist, disgusting USSC decision ever.

In 1873, blacks tried to vote (per the then-new 15th Amendment) in a small town in Louisiana. The resulting Colfax Massacre resulted in at least 100 blacks dead and three whites. The kicker is that at the start, white state and local officials disarmed the blacks in preparation for the attack. The insanity ended with the Klan burning down the courthouse that had been "corrupted" by blacks attempting to vote there. Federal troops moved in to restore order.

About 60 whites were charged by the Federal government with civil rights violations, specifically:

* Violation of their 1st Amendment right to peaceful assembly (at the courthouse to vote).

* Violation of their 2nd Amendment right to arms.

* Violation of their 15th Amendment right to vote.

When it got to the Supreme Court, the court simply didn't like the 14th Amendment and ignored it, ruling that the Federal government could not enforce civil rights actions at all. Only the states could protect civil rights.

This led to generations of lynchings, general murder, terrorism and economic de-facto slavery perpetrated at the state and local level.

The Cruikshank decision:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=92&page=542

Today, the idea that the Feds couldn't take action if a state violated people's 1st or 15th Amendment rights is laughable. Yet DC is asserting that states CAN limit or eliminate people's 2nd Amendment rights under both Cruikshank and Presser.

It gets better.

Remember Presser's citation of Barron (1836)?

That's quite informative and this is the first time I've noticed it.

Barron is a famous case. In 1833 the town of Baltimore did some dredging that ruined Mr. Barron's boat docks (commercial shipping, major coin involved).

Barron sued in Federal court asserting that the city had taken his property improperly under the 5th Amendment.

The US Supremes ruled that the Bill Of Rights was only a limitation on the Federal government, not the states. Note: the ENTIRE BoR.

The top reason for the passage of the 14th Amendment (1868) was to overturn Barron. The primary author of the 14th (John Bingham) said so very clearly and today this is a given by Constitutional scholars of every stripe, left and right.

To quote Liberal Yale law professor Akhil Reed Amar:

But what, precisely, were the "privileges or immunities of citizens of the United States"? In 1859, Bingham offered no comprehensive summary, but strongly implied that all rights and freedoms guaranteed by the Constitution were included. Though he did not use the magic words "Bill of Rights," he either quoted or paraphrased the rights to speech, press, religion, due process, just compensation, and jury trial. In 1866, Bingham spoke to the issue at much greater length and made himself about as clear as one could ever hope for. Over and over he described the privileges or immunities clause as encompassing "the bill of rights"-a phrase he used in a key speech on February 28th no less than a dozen times. [188] In that speech, he also explained why a constitutional amendment was necessary, citing by name and quoting from the Supreme Court's opinions in Barron and one of its progeny, Livingston v. Moore. [189] The day before, a colleague of Bingham's, Robert Hale, had suggested that states were already bound by the Bill, [190] but Bingham set Hale and others straight with the following quotation from Livingston: "As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States ...." [191] Six weeks later Bingham again held forth on the need for his amendment, invoking "the bill of rights" six times in a single speech and again reminding his colleagues that it "has been solemnly ruled by the Supreme Court of the [Page 1235]

More of the words in support of the 14th prior to it's passage:

Two years before Bingham introduced his amendment, Representative James Wilson had made clear that he too understood the "privileges and immunities of citizens of the United States" to include the guarantees of the [Page 1236] amendments. His words also show that he deemed all rights and freedoms in the Bill-even those declared only against "Congress"-to be binding on state governments:

Freedom of religious opinion, freedom of speech and press, and the right of assemblage for the purpose of petition belong to every American citizen .... With these rights no State may interfere .... Sir, I might enumerate many other constitutional rights of the citizen which slavery has disregarded and practically destroyed, but I have [said] enough to illustrate my proposition: that slavery ... denies to the citizens of each State the privileges and immunities of citizens ....

... The people of the free States should insist on ample protection to their rights, privileges and immunities, which are none other than those which the Constitution was designed to secure to all citizens alike .... [196]

Plainly, then, Wilson and Bingham both read that Bill through contrarian lenses, though Bingham was far more conscious that the Supreme Court had rejected this reading. And both leaders understood that the plain meaning of Section One was that henceforth, the federal government would have explicit power to compel state compliance with all the "privileges" and "immunities" of "citizens" set out in the Bill. Shortly before the Amendment came before the House for final approval, political leader Thaddeus Stevens delivered a speech describing its provisions. Here are his opening words on Section One:

I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or [of?] organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect ....

http://www.saf.org/LawReviews/Amar1.html

The opening words of the 14:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now compare that text with a section of the infamous 1856 Dred Scot case which defines "privileges and immunities of US citizenship" in great detail while asserting that blacks (free or slave) lack same:

For if they [blacks] were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.

---

So what happened?

The US Supreme Court hated the 14th because it was drafted to overturn two key decisions: Barron and Dred Scott.

In a whole series of evil decisions of which Cruikshank and Presser were only a part (Plessy v. Fergusen is the most famous), the Supremes destroyed the 14th, ignoring the whole thing.

In the 20th Century they rebuilt it, one piece at a time, via the Due Process clause - finding in one case at a time "selectively" that individual pieces of the BoR were "fundamental to due process". This is what the footnote by the DC lawyers was talking about:

9 Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). Moreover, incorporation against the states would be curious since the Second Amendment was en-acted to protect state prerogatives.

Palko is a key "selective incorporation" case.

Selective incorporation is a fraud, one that followed the original fraud by the court in cases like Cruikshank and Presser.

And that's why the DC attorneys are right: fraud layered on fraud has created an apparent absurdity.

It's time to end the fraud.

As of now, only three pieces of the BoR haven't been selectively incorporated as “implicit in the concept of ordered liberty”: the 5th Amendment right to indicted in major crimes by Grand Jury, the 3rd Amendment which nobody cares about anymore (no quartering of troops in people's houses!) and the 2nd.

At this point, there's nothing earth-shattering about restoring John Bingham's original dream of full incorporation of the BoR. In the case of the 5th Amendment, bringing back Grand Juries in states like California would be a good thing - a strong grand jury system does other jobs such as fighting corruption and many states voluntarily obey the 5th right now.

It's time. End the fraud.

ON EDIT: there's one more interesting application of this Dred Scott connection: if you go back to that court's quote above, you'll find a civil right NOT present in the BoR, a "right to free travel without pass or passport", something the ACLU has wanted for years. This shouldn't be mentioned in an amicus to this court *yet* but it's a logical out-growth of the Dred Scott connection. It opens up a debate on just what the "privileges and immunities of US citizenship" really are. In Dred Scott it was "the Bill Of Rights and then some" or as one scholar put it, "the traditional rights of free Englishmen"...

[Jon Roland]

The granting of certiorari by the U.S. Supreme court in D.C. v. Heller provides the first great opportunity we have had to get a decision on interpretation of the Second Amendment. Already a host of parties are preparing to file amicus briefs in the case, threatening to drown out two important arguments that need to be made and that it does not yet appear will be made by any of the amici:

1. The primary original meaning of "militia", from the Latin, is military service, or, because it includes law enforcement and disaster response, defense activity, and only secondarily those engaged in it, or the subset of those who may be required to engage in that that activity. It is a common idiom in English of the founding era to use the same word for an activity and those engaged in it. Understood in this way, the word is not a plural form, and a single individual, engaged in defense activity, is engaged in militia.

2. The only regulation that is "reasonable" is regulation that enhances the effectiveness of militia.

The lost meaning of "militia"

The right to keep and bear arms (RKBA) is asserted in the Second Amendment with the preamble of militia being a primary purpose of that right:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Previous attempts to get around the right to keep and bear arms has been to subject firearms to taxes. This was the issue in United States v. Miller (http://www.constitution.org/2ll/2ndcourt/supreme/7sup.htm), 307 U.S. 174 (1939) which took the approach that if the firearm in question had had a militia use, it would not have been taxable, and therefore it would not have been illegal to possess it without having paid the tax. While one could question the constitutionality of making it a crime to possess something on which a tax has not been paid, we can understand the concern of the Court that if one cannot make a distinction between militia-related items that are tax exempt and non-militia-related items that are not, then, since almost anything could conceivably be used for militia under some circumstances, nothing would be taxable.

Therefore, it is not enough to establish the individual RKBA if we do not address the way Congress has been trying to do an end-run around it using its taxing power and the precedent of Wickard v. Filburn supporting criminal penalties for activities that have a "substantial effect" on interestate commerce, under an expansive interpretation of the Necessary and Proper Clause to assert the power to not only "carry into execution" the expressed powers, but to do whatever might be convenient to try to attain the purposes for which a regulation of commerce might be enacted.

To make the proper determination of what is and what is not "militia-related" we therefore have to understand the original meaning of "militia", and do so better than most scholars have done heretofore.

Some confusion arises from the English idiom, which goes back to Anglo-Saxon and got carried over to the adoption of foreign words, of using the same word for an activity and for those engaged in it, with the meaning as activity originally being primary, but slipping into more frequent use of the word in its secondary sense of those engaged in it.

The term "militia" is derived from Latin roots:

* miles /miːles/ : soldier[2]
* -itia /iːtia/ : a state, activity, quality or condition of being[3][4]
* militia /mil:iːtia/: Military service[5]

In English, the usage of "militia" to refer to those engaged in the activity dates back to at least 1590 when it was recorded in a book by Sir John Smythe, Certain Discourses Military with the meanings: a military force; a body of soldiers and military affairs; a body of military discipline[6]

The original meaning of the Latin word is "military activity", or, since the ancient Romans had the same people fight crime or respond to disasters, "defense activity". In the idiom of English during the 18th century, the same word would often be used for an activity and for those who engage in it, so "militia" could mean either defense activity or those who engage in it, whether as individuals or in concert with others.[7]

Most of the leading Founding Fathers were Latin-literate, so they would have known the original Latin meaning, and used it when they read or wrote in Latin or used a Latin word in English discourse.[8][9]

The reason this distinction is important is because if the word means only those engaged in the activity, and is always plural, then militia can only consist of two or more persons, and never just one. However, understood as an activity, then is it clear that one individual can engage in militia, and it follows that self-defense is a militia call-up issued to oneself, to which oneself responds, to enforce the law. When all self-defense is cast into an act of law enforcement, then the legal framework is transformed into what the militia concept requires.

This meaning also comes up in discussing other countries with a militia tradition, especially Switzerland, which the Founders viewed as a model for the kind of militia system they wanted to establish. The militia clauses of the Swiss Federal Constitution are contained in Art. 59, where it is referred to as "military service" (English), "Militärdienst" (German), "service militaire" (French), "servizio militare" (Italian), "servetsch militar" (Romansch), and translated into "servicio militar" (Spanish and Portuguese), all synonyms for "militia" in Latin.

The key thing to understand is that "militia" is not a plural "group", with the implication of "two more more". We can see in the writings and speeches of the Founders that they often used the word prepended with an article, “a” or “the”, to refer to those engaged in the activity, but at other times they use it without the article. Modern readers are likely to understand that as using the word as its own plural, but the plural of militia is militiae, and if the Latin-literate Founders had meant it that way, they would have said militiae. They were, in that usage, meaning the activity, and sometimes, blending both meanings at the same time.

The meaning of the word is discussed in more detail in Militia v. Inimicitia (http://www.constitution.org/col/mil_inim.htm).

What kind of "regulation" of militia is "reasonable"?

It won't be a victory for the original meaning of the Second Amendment if the holding of the Court is that the right to keep and bear arms is individual if it also holds that it is subject to "reasonable regulation" and that exception allows all the restrictions that are presently enacted.

Clearly, the concept of militia does contemplate regulation beyond the "self-regulation" that would satisfy the stipulation that militia be "well regulated". We have in U.S. Const. Art. I Sec. 15 and 16:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

While militiamen are in called-up status, they are subject to miltia discipline, under which they can be directed what weapons to use and for what purposes. When not in called-up status, they can be required to keep certain kinds of weapons, ready for call-up. See the Militia Act of 1792 (http://www.constitution.org/mil/mil_act_1792.htm). Although it may not be obvious to some, it would be unconstitutional to get around the RKBA by keeping the entire population in a permanent called-up status. Call-ups are supposed to endure only as long as an imminent threat exists for which only militia can meet it.

To understand what kind of regulation is reasonable for persons not in called-up status we can use the analogy to the preemptive authority to regulate the time, place and manner of congressional elections, it is unconstitutional to do so in a way that would make elections less fair, convenient, or accurate. Similarly, it is unconstitutional to regulate militia in ways that make them less effective in performing their functions "to execute the Laws of the Union, suppress Insurrections and repel Invasions", or at the state or local level, to respond to disasters. People may be required to be armed, but not forbidden to be armed, without a specific due process proceeding to disable the exercise of the right on proof the individual is a treat to himself or others, with a right to a jury.

What is not reasonble or constitutional is prosecuting people on an administrative determination that they are "dangerous", even if there was a conviction of a "felony". without disablement of the RKBA being an explicit part of the sentence. See Public Safety or Bills of Attainder? (http://www.constitution.org/col/psrboa.htm) — Written Jun. 14, 2000. Published in University of West Los Angeles Law Review, Vol. 34, 2002.

A case could be made for the constitutionality of regulating the quality of firearms, in much the way the U.S. DoD regulates the quality of the firearms it purchases for its own use, but not for prohibiting weapons that "do not have a sporting purpose". Militia is not about hunting. even thoug hunting may be a way to maintain militia skills.

The idiom of using the same word for an antivity and those engaged in it

There are many other examples of this idiom. From the Century Dictionary, the precursor of the Oxford English Dictionary, we have the following:

assembly (a-sem'bli), n.; pl. assemblies. [ME and OF assemblee] 1. The act of assembling, or the state of being assembled or gathered together. 2. A company of persons gathered together in the same place, and usually for the same purpose, whether religious, political, educational, or social; an assemblage.

congregation (king-gre-ga'shon), n. [F. congregation] 1. the act of congregating; aggregation. 2. Any collection or assemblage of persons or things.

delegation (del-e-ga'shon), n. [F. delegation] 1. A sending or deputing; the act of putting in commission, or investing with authority to act for another; the appointment of a delegate. 2. A person or body of persons deputed to act for another or for others....

ministry (min'is-tri), n.; pl. ministries. [F. ministere] 1. The act of ministering; the rendering of service; ministration. 2. The state of ministering or serving; agency; instrumentality. 3. The office or function of a minister, civil or ecclesiastical; the state of being a minister, in any sense; the discharge of a mionisterial office.... 4. The general or a particular body of ministers of religion; the ministerial or clerical class; the clergy or priesthood. 5. The body of ministers of state in a country; the heads of departments collectively; the executive administration.... 6. A ministerial department of government; the organization of functionaries administering a branch of public afffairs; a minister and his subordinates collectively....

hunt (hunt), n. 1. The act of seeking for or chasing game or other wild animals for the purpose of catching or killing them; a pursuit; a chase. 2. A pack of hounds engaged in the chase. 3. An association of huntsmen...

police (po-les'), n. [F. police] 1. Public order; the regulation of a country or district with reference to the maintenance of order.... 2. An organized civil force for maintaining order, preventing and detecting crime, and enforcing the laws; the body of men by whom the municipal laws and regulations of a city, incorporated town or borough, or rural district are enforced. 3. In the United States Army, the act or process of policing.

Other such words include service, movement, wedding, viking, aggregation, march, and court.

See Constitutionalism blog entry here (http://constitutionalism.blogspot.com/2007/12/arguments-needed-in-dc-v-heller.html).

[Jim March]

Jon, you've missed something big.

At the time the 14th was passed, or rather beginning a minute after it's passage, black males had civil rights, but not (yet) political rights. Put another way, a black man had the same civil rights as a white female, or a green-card holder today. (Blacks didn't get political rights until the 15th Amendment a few years later - also pushed for by Bingham and company).

Yet if you read John Bingham's arguments between 1865 and 1868 regarding the proposed 14th, you'll see that he was *specifically* including the right to arms in the list of civil rights blacks were gaining. Right there in Congress, he said the new freemen should be able to kill attacking whites (or anybody else with ill intent).

So the civil right to personal defense became "decoupled" to some extent from the original 1792-era political right of militia duty, which along with voting, jury service rights and the right to run for office are the four main political rights we have.

Now, this doesn't mean militia service went away. But it does mean that personal defense gained significant protections in 1868.

It gets better.

In order for a black man to pack heat in 1868 South Carolina fr'instance (often cited as having the worst civil rights issues before and after the war), he would have to pack concealed to avoid being shot dead in the street at first sight.

But wait! There's more!

By 1868 we're no longer talking about flintlocks. The Mormons had invented the snub-nose revolver. Everybody knew S&W's patent on the through-bored revolver cylinder was going to run out in 1872 and sure enough it spurred a boost in firearms creativity. The Gatling Gun was invented in 1862 and by 1865 the Union was fielding whole regiments armed with 15-shot (can you say "high cap"?) leverguns.

I'm 41. In 4 years I'll be out of the "unorganized militia". Screw the militia. The 14th Amendment gives us a direct constitutional right to personal defense and arguably CCW, regardless of age, gender, race, religion, etc.

And as an extra special bonus with this offer only(!), we just freakin' MIGHT get back the "right to travel without pass or passport" that seems to have gone AWOL between 1856 and the present.

If you're not familiar with the research into what John Bingham and company were thinking, start with Amar's article cited:

http://www.saf.org/LawReviews/Amar1.html

Bingham went so far as to state that "The People" language was deliberate versus "The Citizens" so as to give basic civil rights to legal alien residents. The quote to that effect is right there in that link.

Amar wrote this up in clearer language in his 1998 book "The Bill Of Rights" along with extensive Bingham quotes including (to Amar's hilariously obvious horror) support for armed self defense. He had accidentally re-discovered the same quotes Stephen Halbrook (NRA attorney) had published in his 1984 book "That Every Man Be Armed" and if you read both as I have, it's obvious they went down exactly the same path.

Amar didn't like my pointing this out when I met him, either. He also looked sick when I mentioned the state of firearms development in 1868 because he tossed in the obligatory "well maybe we have a right to flintlocks" thing at the very end, the silly git :).

Jim March

[Robert Hairless]

Regarding the first, and most lengthy, argument, is that the 2A must be read in exclusively militaristic terms and purposes....thus, that it does not and cannot protect arms for private use such as self defense, hunting, sports, etc. This is known academically as the "Sophisticated Collective Rights view."

Help me understand, please?

How does the "Sophisticated Collective Rights" view of the Second Amendment square with the view by the BATFE and others that firearms must have "sporting purpose"?

Isn't there a conflict when the BATFE only allows import of firearms with a sporting purpose for individual use and the Second Amendment does not protect those firearms? Under this view shouldn't the BATFE allow only firearms with a military and non-sporting purpose?

[publius]

I think you DO understand, Robert. You're just a little confused because you expect government to make sense. ;)

[publius]

I posted this in another thread, but it's more appropriate here:

It worries me a bit that the Heller decision now before the Supreme Court spoke of guns which are "lineal descendants" of militia weapons of old. I expect to live to see directed energy weapons which will not be descended from any powder weapon, and I think we should preserve the ability of citizens to own those as well. In 200 or 300 years, we might need lasers and/or machine guns to fight an oppressive government.

The ban on machine guns manufactured after 1986 will eventually be a complete ban as all of the grandfathered-in guns break or are otherwise lost. It's already a ban for most of us, who can't spend 5 figures on a gun. That's bad enough, but the "lineal descendants" thing in the DC Circuit opinion really troubles me. What if we reach a time when the weapons in common military use are not lineal descendants of powder guns?

[Robert Hairless]

I think you DO understand, Robert. You're just a little confused because you expect government to make sense.

Seriously? I'm almost sure I've missed something important or misunderstood something important. Not arguing, by the way, only trying to resolve a problem that really troubles me and seems beyond my own resources.

[publius]

How does the "Sophisticated Collective Rights" view of the Second Amendment square with the view by the BATFE and others that firearms must have "sporting purpose"?

OK, I think their answer would be that the 2A applies to militia members, and they would say that's the National Guard. The BATFE regulates us ordinary plebes who are not in an organized militia. The 2A doesn't apply to us.

It's interesting to ask these folks what would have happened if Miller had a Browning Automatic Rifle instead of a sawed off shotgun, and had shown up in court with a reasonably competent lawyer.

[Robert Hairless]

OK, I think their answer would be that the 2A applies to militia members, and they would say that's the National Guard. The BATFE regulates us ordinary plebes who are not in an organized militia. The 2A doesn't apply to us.

So would their argument be that the Second Amendment acknowledges a right of militiamen and the BATFE more or less graciously extends a privilege to others? Then the right of course is absolute and guaranteed but the privilege, like any other, is limited and may be altered or withdrawn?

That would make logical sense. It's strained but least there's logic to it. Thanks.

[publius]

Yes, that's pretty much it. I'd just point out that the BATFE enforces laws made by Congress. It is our representatives who are extending to us the privilege of guns with a sporting use.

[kurtmax]

It's interesting to ask these folks what would have happened if Miller had a Browning Automatic Rifle instead of a sawed off shotgun, and had shown up in court with a reasonably competent lawyer.

Or shown up in court at all. Oops! He was dead!

[Megistopoda]

OK...I've read the brief and other relevant sources of information, and hashed this out over a couple cups of coffee this morning. These are just my own, personal opinions of course. Your comments are more than welcome!


Megistopoda’s analysis of the District of Columbia’s Brief for Petitioners, submitted 4 January 2007 to the Supreme Court of the United States in DC v. Heller (No. 07-290)

The question (paraphrased) before the Supreme Court: “Whether the following provisions – A.) registration requirement not allowing registration of handguns, B.) requirement that firearms be unloaded and disassembled or bound by a trigger lock, and C.) licensing (effectively impossible to obtain) requirement to carry a handgun (including from room to room in owner’s home) – violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but wish to keep handguns and other firearms for private use in their homes.”

The Brief and Joint Appendix are available here:
http://www.scotusblog.com/wp/wp-content/up...dc-v-heller.pdf (http://www.scotusblog.com/wp/wp-content/uploads/2008/01/petitioners-brief-in-dc-v-heller.pdf)
http://www.scotusblog.com/wp/wp-content/up...dc-v-heller.pdf (http://www.scotusblog.com/wp/wp-content/uploads/2008/01/joint-appendix-in-dc-v-heller.pdf)

This analysis assumes that the reader is at least somewhat familiar with this case as it now stands before the Supreme Court, and with the proceedings in the court below (the DC Federal District court). If you are not, there are many sources for such information, including here: http://dcguncase.com/blog/

In its brief, the District forwards three different arguments; they appear to me to be nested, in that if the first argument fails, the second may withstand scrutiny, and so on. These arguments/sections are as follows:

1) The Second Amendment Protects Only Militia-Related Firearm Rights. They argue that the 2A must be read with an exclusively militaristic purpose. In this section, the District’s argument rests on the merits of the so-called Sophisticated Collective Rights view.

2) The Second Amendment Does Not Apply to Laws Limited to the District of Columbia. In the section above, the District argues that the 2A protects the rights of states to maintain militias, but as DC is not a state, protections outlined in the 2A do not apply there.

3) The District’s Reasonable Gun-Control Laws Do Not Infringe The Right to Keep and Bear Arms. In this section, the District argues that even if the 2A protects individual, private ownership and use of arms, and even if this protection applies to residents of the District, the District’s laws are reasonable because they are predicated on the prediction that they will enhance public safety.

Statement of the Case
In the Statement, DC commences by stating that the Nation’s capital has regulated guns for two centuries - initially with laws forbidding the firing of guns in residential areas, and culminating with today’s total prohibition on handguns and functional long arms. While this history is true, what the statement effectively if not ironically does is outline the very real “Slippery Slope” argument. This phenomenon is addressed in a Hamline Law Review paper by Olson and Kopel (1999), which provides an analysis of the situation in England: ( http://www.guncite.com/journals/okslip.html ). To visualize the “slippery slope”, imagine a graph with time on the X-axis and gun rights on the Y-axis; time runs from past to present on the X-axis, and gun rights run from absolutely no infringement at the top to absolute infringement at the bottom. Notwithstanding the “cold dead hands” types, and common criminals to whom gun laws don’t necessarily matter, we are talking about gun rights “allowed” by institutionalized law. If you examine the history of gun control in the United States, you will witness increasingly more restrictive laws over time. Thus, over time, gun rights have moved down this “slippery slope” with the passage of gun regulations (infringements) over time. Based on history, it is apparent that movement on the line is not equally bi-directional; it appears very easy to move down the line, and very difficult to move up. Hence, the “slippery slope.” The only logical end-point of this history, and of that line, is an eventual absolute infringement of the right to keep and bear arms.

1) The Second Amendment Protects Only Militia-Related Firearm Rights.

In this section, the District seems to be forwarding on its merits the classic Sophisticated Collective Rights view (SCR) of the Second Amendment. This differs from the older Collective Rights view in that it protects an individual right to bear and keep arms but ONLY if said individual is an active member in an organized (or state-regulated) militia. Membership in the unorganized militia outlined in the Militia Act of 1903 does not apply here. This view is, well, “sophisticated” as far as anti-gun ownership arguments go. The argument to me hinges on two main points – A.) whether there is evidence that the Founding Fathers considered that there were also protections for gun ownership outside organized militia, and B.) whether “the people” as it appears in the 2A is somehow different from “the people” as it appears elsewhere in the Bill of Rights. The SCR view necessarily limits “the people” to a select subset of persons that are active participants in a state-organized militia. Regarding B.), I think that the ruling in the Fifth District Court of Appeals (United States v. Emerson, 2001) is likely to stand in the Supreme Court, and I won’t comment further than to offer a summary from the Emerson opinion: “For the sophisticated collective rights model to be viable, the word "people" must be read as the words "members of a select militia". The individual rights model, of course, does not require that any special or unique meaning be attributed to the word "people." It gives the same meaning to the words "the people" as used in the Second Amendment phrase "the right of the people" as when used in the exact same phrase in the contemporaneously submitted and ratified First and Fourth Amendments. [new paragraph] There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution.”

Regarding A.), which I believe is likely to gain some attention, the District argues that there is no such evidence, and bases much of their argument on selective reading of US v. Miller, 1939 (the main 2A Supreme Court case to date), on academic works by Gary Wills, Saul Cornell, and papers published in the controversial Chicago-Kent Law Review. Incidentally, Cornell and the Kent review have been funded heavily by the Joyce Foundation of Chicago, an organization that also heavily funds groups such as Violence Policy Center, Legal Community Against Violence, International Association of Chiefs of Police, as well as myriad public health and injury research program, all of which are thinly veiled as legitimate violence prevention and research advocates. One does not have to look far to realize that the common if not principal theme among these organizations is the advocacy of strict gun control laws or any such policy that reduces the number of firearms in the hands of Americans, lawful or otherwise. It is not a stretch for me to say that this biased advocacy, as well as the juggernaut of literature propped up by this funding, will be clearly evident to and taken into consideration by the Supreme Court Justices. In a Tennessee Law Review paper, Kates et al. (1994) effectively expose the motives and intent of such organizations and the research they fund, summarized as follows: “…the anti-gun health advocacy literature is a ‘sagecraft’ in which partisan academic ‘sages’ prostitute scholarship, systematically inventing, misinterpreting, selecting, or otherwise manipulating data to validate preordained political conclusions.” The Kates et al. paper is available here ( http://www.guncite.com/journals/tennmed.html ). Needless to say, this web of special interest funding and the partisan literature it has created is controversial in as much as it is biased. Such evidence will be available to the Justices and I predict that they will see through much (in terms of reasonable doubt) of this special interest literature. These statements also apply to the 3rd section of DC’s argument (see below), where it is argued that their gun control laws are reasonable because they do what they are supposed to do – reduce crime and enhance public safety – as evidenced by the results reported in the anti-gun health advocacy literature.

In any event and the creative argument of DC notwithstanding, it is possible that their SCR arguments will fail on the merits. I say this in part because this argument was pretty effectively devastated by a paper published by Randy Barnett entitled “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? The paper is available here ( http://law.bepress.com/cgi/viewcontent.cgi...ontext=expresso (http://law.bepress.com/cgi/viewcontent.cgi?article=1346&context=expresso) ). Thus, there are several well-written treatments and refutations of the claims made by those who espouse the SCR view, and these sources might serve well to weaken, if not destroy, the District’s first argument.

2) The Second Amendment Does Not Apply To Laws Limited To The District Of Columbia.

This is a pretty involved question, and it is difficult to predict the direction in which it might lead. Basically, the District of Columbia is a federal entity, and as such, it is governed by no state laws. It is reasonable to argue that the District is under the direct rule of the Congress. The District’s city council argues that the 2A limits only the power of Congress and the national government from disarming state militias, and that laws limited to the District raise no federalism concerns and thus do not implicate the 2A. But I strongly doubt the District would argue that the right to free speech, immunity from unreasonable searches and seizures, etc. do not apply to residents of DC. That is because those rights have been incorporated under the 14th amendment, whereas second amendment rights have not (yet) been so incorporated. Therein lies a conundrum; the District is relying on their argument that the 2A restricts the congress only from disarming those members of state-organized militias, and because the District is not a state those protections don’t apply. The conundrum surrounding this line of argumentation is that it may open a real can of worms for the District. Let me explain.

If the first argument, the Sophisticated Collective Rights position, fails, it might be simple enough, and even expedient for the Supreme Court to rule that since the District of Columbia is a federal entity, that it is directly constrained by the language of the 2A from prohibitive actions of Congress, thus invalidating the City Council’s laws. That way the incorporation issue would remain to be taken up at a later date. The District of Columbia is a curious entity politically. Although there is a municipal government and a Mayor, Congress has the supreme authority over the city and district, which results in citizens having less self-governance than residents of the states. As a related result, District citizens do not enjoy representation in congress by voting representatives or Senators. However, it is possible that the most expedient approach might be that if the 2A indeed protects an individual right that is fundamental (that would be using very strong language...but in my mind, appropriate language), it would bar local governments (read, the DC city council) from passing laws infringing on that right.

I say this because the following appears in the District’s brief: “This Court has squarely held that the Second Amendment was adopted as a limitation on only federal, not state, legislation [citing Presser v. Illinois, 1886]. Although the majority below suggested that the Second Amendment may subsequently have been incorporated against the states through the Fourteenth Amendment (PA37a-38a n.13), there is no dispute that the Second Amendment did not limit the states’ regulatory authority over firearms when enacted. [9, as footnote] Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty” [citing Palko v. Connecticut, 1937]. Moreover, incorporation against the states would be curious since the Second Amendment was enacted to protect state prerogatives” (emphasis mine).

Here the District is, in my mind, risking moving the incorporation issue front-and-center in regard to their second argument. There is a great deal of evidence that the 2A was intended to be incorporated against state and local infringement via the Privileges and Immunities clause of the 14th Amendment. If this were done, it would invalidate not only DC’s gun ban, but those of Chicago, etc., and perhaps even such restrictions such as California’s “Assault Weapon” ban. The District’s argument obviously relies on the fact (a fact described as anomalous by Gura in Heller’s Response to Petition) that the 2A has not been incorporated against state and local governments via the 14th Amendment. This to me DOES potentially raise the question of incorporation in this very case, and it would not be a long leap from there for the Justices to include in their opinion something to the effect that the 14th constrains the actions of local governments. Also, note the emphasized text in the Districts’ brief above. I bring up the word fundamental, and opine that it's reasonably strong language thusly - all 50 states (and the District, I believe) provide provision for lawful use of deadly force in justified cases of self-defense. It is very easy to argue that a human being's right to self-defense from harm is not just a right....it is a fundamental, natural, inalienable right. I say that the right (and ergo, the means) to defense is fundamental based on this passage from the Declaration: “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

Moreover, I would venture to guess that if you asked 1000 Americans the following question - "Do you feel that the right to defend yourself and your family is a fundamental principle of justice, rooted in your tradition and conscience?" - you would get very many answers in the affirmative. I am not saying that the right to defend ones' self is exactly the same as ones' right to possess a firearm....but it would be very easy to argue that the latter consistently and logically (even naturally) flows from the former. Even if one did not think or feel that way, I suspect many would still admit that there just might be a reason for someone to think that way. In stark contrast, the District of Columbia emphatically states that "there is no reason" to think that way.

[continued next post]

[Megistopoda]

[continued from previous post]


3) The District’s Reasonable Gun-Control Laws Do Not Infringe The Right To Keep And Bear Arms.

This argument is the District’s “Hail Mary.” In the event that the 2A is found to protect the right of individual Americans to keep and bear arms for uses that may include but are not limited to service in a state-organized militia, and if the 2A is found to protect the rights of Americans that also just happen to be living in the District of Columbia, the District argues that, nonetheless, their laws don’t infringe on the right to keep and bear arms. I don’t know whether to consider this a Hail Mary pass, or a punt that might be easily blocked.

First, it is more than likely that many, if not most, Justices will care little for the “public policy” effects of such gun control laws. Their first and foremost job concern is whether such laws are constitutional.

Second, in this section the District makes certain claims that are patently untrue. For example, they argue that the District has acted properly to reduce gun violence (via their laws) without functionally disarming residents. But their law does not exempt the assembly of long guns, nor removal of trigger locks, even in the event of attack. It argues also that the Supreme Court has not adopted a per se rule regarding standards of arms protected….such as that of the court below “Once it is determined…that handguns are Arms referred to in the 2A, it is not open to the District to ban them.” In their brief, DC states: “Moreover, Miller never suggests that if a weapon is of the type that might be kept by someone in the militia, its potential status as an "arm" would be sufficient to render the weapon immune to proscription.” But the Supreme Court directly did just that, in this passage from Miller: “In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

The District’s brief also presents statements that border on the ludicrous, including one statement regarding the criterion that protected arms be in “common use.” The District argues: “More importantly, the test leads to tragic results. It suggests, for instance, that Congress could ban the private ownership of a particularly dangerous weapon right after its invention, before it grows into common use…” Finally, they offer this ridiculous statement: “Unlike speech restrictions, gun regulations raise no risk of viewpoint discrimination and no specter of silencing the views of the opposition.” So effectively, the District is saying that gun regulations aren’t comparable to (or as onerous as) speech regulations, because even given gun bans, those whose rights have been violated still have the right to vocalize their opposition to being oppressed.

And even on the merits of the 3rd argument…that the gun ban is reasonable because it “saves lives and protects the public”…it might very easily fail. As I mentioned above, the District, throughout this section, relies quite heavily on studies done by public health advocates and the medical community…studies that are arguably partisan. The District even cites Arthur Kellerman, who published on the risk of keeping guns in the home in a series of papers in the New England Journal of Medicine (primary among Kates’ “anti-gun health advocacy literature” sources). Kellerman is the source of the following often-quoted statistic: “a homeowner's gun is 43 times more likely to kill a family member, friend, or acquaintance, than it is to kill someone in self-defense.” Much of his research has been debunked; Gary Kleck refers to Kellerman’s ratios as “nonsensical”, and one critic plausibly went as far as to say that “Kellermann's full data set would actually vindicate defensive gun ownership.” Yet the District relies on Kellerman’s research (and other controversial literature) to support their argument.

However, there is strong evidence coming out of criminological and sociological literature that suggests the opposite….that [armed] citizen self-defense against common criminals actually reduces violence perpetuated by criminals. Moreover, there is pretty strong evidence (studies by the Department of Justice and by the National Academies of Science) to conclude that the myriad firearm restrictions that have been enacted to date don't really affect the violence and the crimes that they were enacted to reduce. I won’t go on here…but suffice it to say that this criminological literature makes a very strong case, and it will be very difficult for the District’s arguments about the efficacy of their (obviously failed) social policy to stand real scrutiny. And that is the scrutiny that the Supreme Court will demand if they are to take the District’s 3rd argument seriously.

Personally, I feel that the brief is well-crafted. I truly think that they have done the best that they can, in the defense of their tenuous position. It is not at all surprising, given their strained arguments, that a brief to those arguments will necessarily be strained as well. All in all and as an advocate of constitutionally protected rights (including safe and lawful private-use gun ownership by individual Americans), I maintain reasonable confidence that the arguments in the District’s brief will in a general sense be refuted and defeated.

[Carl N. Brown]

The Miller Decision? Miller was dead, his lawyer did not show
before the SCotUS, no defense but one justice, Reynolds,
heard the prosecution side (the government's case only.)
Miller 1939 is not a hang-you-hat-on-it decision for either
side. Heller (nee Parker) may prove to be undecisive as well.

[Jon Roland]

Jim March wrote:
> Jon, you've missed something big.
>
No, Jim, I haven't missed it. But you haven't gotten it quite right.

Before getting to the other points, I refer you to my article, "Intent of the Fourteenth Amendment was to Protect All Rights", Sep. 24, 2000, at http://www.constitution.org/col/intent_14th.htm , which cites the dissent of Justice Black he set forth in an Appendix (http://www.constitution.org/ussc/332-046c.htm) in Adamson v. California (http://www.constitution.org/ussc/332-046jr.htm), 332 U.S. 46 (1947), which became a chapter in Stephen P., Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876, Westport, CT: Praeger, 1998, on which my article was based. You might want to become more familiar with what's on my website.

Your distinction between civil and political rights is inadequate. Yes, I know it has been used by others, but they didn't get it either. I set out the key ideas in my 1994 article, "Social Contract and Constitutional Republics" (updated 2007), at http://www.constitution.org/soclcont.htm , written even before I created the website, as part of the Texas Militia Papers (http://www.constitution.org/mil/tmp.htm). Militia is the duty that comes with the social contract. If you are a member of society, you have the (moral or societal) militia duty. Do not confuse the moral or societal duty with the legal duty to respond to call-ups, which derives from the constitution of government, which creates the power to enforce it with statutory and judicial penalties, and may define a "mandatory" militia as a subset of the "general" militia. (See http://www.constitution.org/rsh/concon_jr.htm .) As a societal duty it is enforceable under the constitution of the society which pre-exists government, by such actions as refusal to protect those who refuse to perform it, or even by exile from territory under the control of the society (which with the society becomes the state). Don't confuse mandatory militia with general militia, or think that only officials can issue call-ups. Anyone may, and has a duty, to issue call-ups if he becomes aware of a threat ("hue and cry"), and there was a time when anyone who failed to respond to a well-founded call-up by a civilian could be penalized just like he could for failing to respond to a call-up by an official. It was only later that penalties for failing to respond to non-official call-ups were dropped, except as private civil actions.

The 14th and 15th amendments did not "create" any rights. They delegated new powers to Congress to pass legislation to protect rights, and created a jurisdiction for federal courts in cases between a citizen and his state involving an infringement of a right by a state agent. But that is not the creation of a right, only the creation of an additional remedy for rights. Every right must have a remedy (if only "self-enforcement"), but that doesn't mean every new remedy defines a new right.

Things like voting and holding office, since they stem from the constitution of government or statutes under it, are "privileges", as distinct from the "immunities" that stem from the constitution of nature or the constitution of society (and what the original Constitution calls "rights", although they are all restrictions on the exercise of government power, that is, immunities, as distinct from other kinds of rights).

Jury duty is a specialized form of militia duty, and societal, not what you are calling "political", and I am calling "governmental", such as voting and holding office ("citizenship"). (Another right, denizenship, the right to remain and return, is state-societal, not governmental, because a state can exist without a government, even if it seldom does for very long.)

Spend some time thinking through these distinctions, and reading how they work in articles, often quite old ones, on my website. You may find you gain some insights you didn't have previously.

[Aguila Blanca]

I wonder how many of the District's legal team are poring over this thread, madly scribbling notes for use in fixing the mistakes when they submit their rebuttal to the other side's briefs.

[Aguila Blanca]

I wonder how many of the District's legal team are poring over this thread, madly scribbling notes for use in fixing the mistakes when they submit their rebuttal to the other side's briefs.

[Jim March]

Jon, I think you're technically right regarding a very sophisticated militia argument.

But I think there's no way in hell the Supremes will swallow it.

With people like Amar on our side and a metric buttload of scholarship, we have a real shot at restoring the P&I clause which has other benefits too.

Aguila Blanca: they can't "fix" their documents without revealing what a house of cards they've built for themselves.

Cruikshank and Presser together for one of the key foundations for all gun control in the US, with "Miller Mutilations" forming another. We have a real shot at blowing away Cruikshank just because it's malevolently evil, and Presser's cite of Barron as authority sinks Presser like a lead balloon.

Next on the agenda:

* I have clean up the language in general.

* I want better quotes from John Bingham. I'll prolly check Amar's 1998 book out of a library.

* Justice Black's dissent in Adamson is a must-see on this stuff, that'll get spliced in.

[Jon Roland]

Jim March 2008/01/06 16:49 said:
Jon, I think you're technically right regarding a very sophisticated militia argument.

But I think there's no way in hell the Supremes will swallow it.


That my argument seems "very sophisticated" is not a good argument not to make it, if, as I contend, it is historically accurate and logically necessary. Nor can we base our litigation strategy on the premise that the members of the SC are too intellectually challenged to understand it, especially when it has never been presented to them before. The time to educate judges is not always now, but it almost always is. It is long past time to get back to original understanding, especially for those who think they have it and fall short.

I suggest that we all start by adopting and building on my arguments in this forum. Once you use them for a while, you will wonder how you ever thought they were exotic.

[Jim March]

Show me scholarship in support on a level with Akhil Reed Amar.

[sailortoo]

Wow - talk about an education! This thread is a MUST read. Maybe dumb question, but Presser v. Illinois is frequently brought up as only a congressional restriction (on 2A), yet it ends with (paraphrased); but the states may not restrict the people from the right to keep and bear arms, because the federal government would not have an armed militia when needed. I see that as a positive control on the states (back door incorporation?). Am I incorrect in thinking that Presser DOES put restrictions on the states, meaning the states may not restrict "keep and bear arms"?
sailortoo
Semper Paratus (also)

[Outlaws]

Their argument centers on the language of the 2nd Amendment being purely military, and that the right to keep and bear arms exists only within the context of a state-regulated militia, not the context of self-defense or the defense of one's home. If DC is not a state, and has no state militia, the 2nd doesn't apply, say they.

Interesting. How about this....

Since DC is not a state, then DC is governed strictly by the Constitution as the 10th Amendment clearly states any powers not given to the Feds are reserved to the People or the States. DC can have no laws that are not federal. Good bye speed limits. Doesn't DC have a Mayor and city-like officials? Not anymore.

[Jim March]

sailortoo: hmmmmm...lemme go back and re-read Presser top to bottom on that. I need to anyways, and look up the rest of it's citations.

It's not impossible it was "schitso" on this point.

In discussing the Fed's ability to control state-level RKBA violations, Presser mostly just says "see also Cruikshank of 11 years ago". So Cruikshank is the real issue.

The DC attorneys however mostly cite to Presser, not Cruikshank (they may even be dimly aware of how stone-cold evil Cruikshank is, same as Judge Reinhardt seems to have clued in on it in the Silveira case). When you look closely at Presser, it cites Barron as authority and that's just instant death as far as Presser's credibility goes today.

Put another way, Cruikshank was evil and Presser was blatantly stupid. Combined they're one of two key linchpins on ALL gun control in the US.

Ohhhh yeah.

[Megistopoda]

This is the passage referred to by Sailortoo:

http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/presser.txt

OCTOBER TERM, 1885. Opinion of the Court.

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.

[hugh damright]

Heller might have claimed that he had a right to keep a handgun because it is a militia-type weapon, avoiding any issues about the Second Amendment's scope. He could reference both Presser and Miller to support the assertion that there is federal protection of a general right to keep militia type weapons. But instead he claims that the Second Amendment protects the right to personal arms for personal use, which seems to defy cases like Presser and Miller.

[Jim March]

Ah. Right. And if you look at the Cruikshank decision, they agree that rape, arson and murder aren't good things and "shouldn't" be done.

The evil part in Cruikshank is that they barred the Federal gov't from making sure the state didn't do such dastardly things.

This part of Presser can likely be read the same way: the court is talking about what the state SHOULD (or should not) do but without enforcement powers at the Fed level, the states have a practical right to do exactly that.

Remember folks, there's three kinds of rights: civil, political and practical. The latter is whatever you can get away with!

[RP88]

if the ban is upheld, then I hope they have a good explanation as to why, because the majority of their points pretty much discredit the only one decent point that has a chance in hell of working for them.

"guns...militia...not...blah blah" *decent, but flawed point*
"we dont think the constitution applies to us"
"you dont 'need'...blah blah"

this kind of argument would barely pass in college. I find it hard to believe that it actually works in a legal system.

[sailortoo]

"Practical" I understand, but I sure like the sound of "... in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying this constitutional provision in question out of view, prohibit the people from keeping and bearng arms, so as to deprive the United States ..." Presser v. Illinois. It just has a "definite" statement sound to it. :)
sailortoo
Semper Paratus (also)

[gc70]

by publius:
It worries me a bit that the Heller decision now before the Supreme Court spoke of guns which are "lineal descendants" of militia weapons of old.

I see the "lineal descendants" language as an effort by the Appeals Court to provide convenient cover to SCOTUS with respect to the scope of "arms" in the Second Amendment. For instance, pistols, rifles, and shot guns would logically be covered, but NBC weaponry would not be. Once the extreme end of the discussion (private nukes) is cut off, 2A becomes more palatable for general consumption.

[Jim March]

Yeah, well just what is the "linear descendant" of a fully armed battleship?

Remember, Congress has the ability to issue "letters of Marque".

Things that make you go "hmmmm"...or your eyes light up :).

[SWMAN]

I don't get it! So what if the 2A were created to protect the states from the Federal Government sending a standing army against it, (U.S. Civil War anyone?), organized gangs of criminals, foreign army, etc. The well regulated militia is to consist of armed citizens with their individual firearms to protect the state (community) from harm. Just because Federal law has changed over the years (National Guard, local police departments) doesn't change the meaning or scope of the 2A.

[kurtmax]

Once the extreme end of the discussion (private nukes) is cut off...

Yeah but it's not really that extreme. I'd like to see anyone who could afford, or even obtain a nuke... I'm also not afraid of Bill Gates leveling cities. (Although that would be really cool ;))

Back on topic: I'd say all this speculation about what the SCOTUS is going to do is pointless. We don't know what is going to happen until it happens.

[romma]

1) The Second Amendment Protects Only Militia-Related Firearm Rights.


My pistol is very Militia useful, so I can fight my way to my rifle..

And that is serious! I don't want to tote a rifle around all day, but if we were to have all heck break loose in a minutes notice (Ala Red Dawn), it only makes sense.

Why do some people think you have only the right to life, liberty and self-defense only inside your home anyway?

Of course others don't even believe in self-defense even inside your home or anywhere else...

[woerm]

re: incorporation

I had this discussion w/ a libtard prof about 20+ yrs ago

but here goes

incorporation is bs.

constitution ratified some dislike it so much they demand specific limits on gov't

presumably federal.

amendments proposed, ratified by the states note the states said 'hey these are the basic limits of gov't that we agree are necessary.

hold that thought it is now 1791

remember that there were state sponsored and tax supported churches up into the 1830's (Mass. comes to mind)

local state constitutions start stripping blacks of access to firearms almost as soon as the Slave trade(importation of new African, generally, slaves) becomes illegal. Many states in the south essentially ban free blacks from residency or they (free blacks) will be sold back into slavery. That wasn't just a throwaway line in Roots, Chicken George had to get out of the State in x days or be sold at auction.

at the same time most states are generally restricting gov't powers on the basic template of the US constitution (except for seriously mistreating non whites and females)

Then you have Baron.

That was what created the state leverage to abuse 'suspect' residents

see the Black Codes etc even after the 13th Amendment was passed,

the 14th was set up as 'hey all gov't at all levels must function in a consistent, sane and common basis nation wide' and it passed.

so now every one is subject to federal protection of all basic civil rights

it is IIRC 1867

Cruikshank (1876)

says 'nope, wrong feds can't tell you states anything'

oh, remember the same corrupt court said in effect in
Bradwell v. State of Illinois

women, although human, were not in effect 'persons' and did not in effect have 'civil, enforceable, rights'

now how does anyone argue that after the 14th amendment passed states were not subject to respecting the basic constitutional rights of all persons

well having a corrupt court sure helps especially when they draft circular and unreasoned bs and call it 'precedent'

when a court ignores written charter (US Constitution), Legislation (Civil Rights Acts) and eviscerates the civil rights of everyone what do you have

well take a long look around what you have is gov't and courts that regularly do not operate in their chartered manner.

incorporation is a bs argument, it is insane to say that the limits on the Main gov't do not apply to its lower constituent elements, states are basically administrative jurisdictions. It should be clear that what ever limits apply at the top also apply to the lower levels as well.

r

[Sam Adams]

From the DC brief:

Quote:
Because respondent does not assert a right to keep or bear arms in connection with militia duties, he has no Second Amendment claim.

Which leaves me wondering, why didn't the Court in the 1930's just tell Miller to go away because he was not involved in any militia? If their reasoning is correct, the Miller case should never have been heard.

THERE is the deep, dark secret that the gun-grabbing tyrants don't want you to know - that the Supreme Court decided a 2nd Amendment case on the merits. It would have been incredibly easy of the Court to say, "Cert. denied, plaintiff lacks standing." in order to dispose of Miller, BUT IT DIDN'T DO THIS!! It DID decide on the merits (in a very flawed manner, IMHO), thereby stating by implication that the 2nd DOES, INDEED, protect an individual right...and the rest of the case was about deciding which guns were covered by that right and thereby protected by the 2nd. Of course, we all know that only guns which, essentially, served the purpose of the Militia were ruled to be so protected.

If Heller ends up explicitly protecting the individual right, then it'd be interesting to see a challenge to the '86 FOPA ban on the registration of new full autos, both using Heller alone, and using Heller in combination with Miller. IOW, I want to see someone who's been denied permission to buy a post-'86 M16, M4, M249, etc. file a brief with the Court about 12 hours after Heller comes down on our side. Maybe we'll even see some smart Congresscritters introduce a repeal of 922(o), in view of the fact that the law will then be completely contrary to the law.

[rdhood]

Back on topic: I'd say all this speculation about what the SCOTUS is going to do is pointless. We don't know what is going to happen until it happens.

By that reasoning... talk of any future event that is in question ( presidential races, the weather, the Superbowl) are similarly pointless. Since talking of the past is pointless (it's already happened... what's to talk about) and talk of the future is pointless, then the only thing to talk about is what is happening now. Whoops, now is now past, so let's don't talk about that either.

Seriously... if you believe it is pointless, don't read it.

[Megistopoda]

IOW, I want to see someone who's been denied permission to buy a post-'86 M16, M4, M249, etc. file a brief with the Court about 12 hours after Heller comes down on our side. Maybe we'll even see some smart Congresscritters introduce a repeal of 922(o), in view of the fact that the law will then be completely contrary to the law.

I know a veteran XX state police officer who intends to do just that...

[woerm]

Megistopoda,

re Leo/Veteran challenge

I plan a similar tack in here in TX as the 5th short circuit already view 922(o) as unconstitutional

see U.S. v. Bownds, 860 F. Supp 336 (S.D. Miss. 1994)

snicker/smirk

hello US Model 1918 .30 in say .308 come to pappa

hope the atf dudes can type fast.

r

fyi TX state Militia ages up to 65 thank you very much got to properly train them wippersnapers.

[woerm]

Here in TX you have to have the stupid NFA tax stamp to possess an NFA weapon unlike some enlighten domains elsewhere.

the KKK really screwed up our Statues trying to disarm all the 'undesireables' in the 20's and 30's.

If you have a strong stomach read the list of 'restricted weapons' in TX statues

r

[Brad Johnson]

Here in TX you have to have the stupid NFA tax stamp to possess an NFA weapon unlike some enlighten domains elsewhere.

Since when did that become an exclusively Texas provision?


If you have a strong stomach read the list of 'restricted weapons' in TX statues

Texas has no restrictions on ownership or weapon type other than those spelled out in federal law.

Brad

(By the way, it's statutes, not statues.)

[Sam Adams]

Here in TX you have to have the stupid NFA tax stamp to possess an NFA weapon unlike some enlighten domains elsewhere.

I'd like to know where you don't need the NFA tax stamp to possess an NFA weapon? The NFA is a federal statute, and while I don't like it at all (it pre-supposes that you need to ask permission to own a gun that many of our grandfathers could've bought without such permission, tax stamp, and LEO sign-off), it IS the law right now and WILL be enforced.

What I'm looking for is for the ban on post-'86 full autos to be repealed, so that millions can be produced and sold, along with spare parts, so that the price will be affordable for millions of people. There are, BTW, ways around the LEO sign-off, starting with forming a corporation and having the corp. own the gun.

The best result of many years of litigation would be, of course, a full repeal of the NFA and the '68 GCA. I'm not going to hold my breath, but I will for a repeal of 922(o) - it SHOULD happen fairly quickly after a successful result in Heller.

[Kharn]

Sam Adams:
He means that it's a state requirement to have the NFA stamp as well, not just federal. If the NFA went away overnight, there would be no way to get the stamp thus the weapons would be illegal unless the state law was changed. I know multiple other states are the same way, Maryland even requires a $10/yr fee be paid on any MGs.

Kharn

[ConstitutionCowboy]

Notice how DC's lawyers(herein after referred to as "They" or "they") keep saying the 2A doesn't protect a right to gun ownership for private uses? They are right. The 2A prohibits government to infringe upon the right of the people that existed prior to the Articles of Confederation and Perpetual Union, the Constitution for the United States of America, and the "Bill of Rights", to keep and bear arms. The 2A doesn't protect any uses at all, let alone private uses. Just "Keep" and "Bear".


"A well regulated militia, being necessary to the security of a free State," is parenthetical. It can be separated and made into a complete sentence on its own. It is not dependent upon, "The right of the people...". It says, "A well regulated militia is necessary to the security of a free state." That was made necessary by Article I, Section 8, Clauses 15 and 16. For all intents and purposes, the Second Amendment says, "Because we must rely upon the Militia(being necessary) for our security, the right to keep and bear arms shall not be infringed." The Constitution made us reliant on the militia. It limits the Army to no more than two year funding(Article I, Section 8, Clause 12). Congress has power to provide and maintain a Navy(Article I, Section 8, Clause 13). It isn't commanded to do so. Congress isn't commanded to raise and support armies. That is the main reason that a well regulated militia is necessary to our security. That is the main reason our right to keep and bear arms should not be infringed. That IS commanded by the Constitution by the Second Amendment ratified thereto. "Use" be damned!

Notice how they say only the 2A has such a clause(the parenthetical phrase, "A well regulated Militia, being necessary to a free State,") in the Bill of Rights? How convenient to their cause that they don't mention the parenthetical phrase elsewhere in the Constitution of which the "Bill of Rights" is an integral part. It's in Article I, Section 8, Clause 8. The use of a parenthetical phrase is not unique to the Second Amendment. They are obviously being devious and disingenuous. That speaks volumes about the cause they support. If they must mislead, they must be headed in the wrong direction - taking us to a place we were never meant to go.

Oh, and they LIE! In their brief they say, on Page 21, ...

That understanding is also consistent with the Militia Clauses in the body of the Constitution, Art. I, § 8, cls.15-16. Clause 15 allows Congress to call forth the militia into federal service, while Clause 16 makes clear that the federal government shall provide for “organizing, arming [as in “bear Arms”], and disciplining, the Militia [so that they will be well-regulated].” ...

See the word "shall" I highlighted in bold? Article I, Section 8, Clause 16, neither says nor implies any such thing. Congress is granted power “to provide for organizing, arming, and disciplining, the Militia, ... but does not say it shall organize, arm, and discipline the militia.

Another good example of a lie they perpetrate is right after the one I just pointed out above. To wit:

The history discussed next confirms that reading. The Bill of Rights limited the federal government to protect both individual liberty and states’ rights.

The "Bill of Rights" protects individual freedoms and rights, and powers of the several states, not any supposed states' rights. States do not have rights. State governments have powers granted to them derived from the rights of the people and granted to the government of the state by the people - same as We the People granted certain limited powers to those who govern the Union.

I need not waste any more of my time and your time. This brief is replete with misnomers, misdirection, falsehoods, and heaven knows what else. If the Supreme Court sides with the petitioners in this case, DC v. Heller, there will be no doubt in my mind where the majority of the Court wishes to take us - right into the hands of the next ambitious tyrant or dictator or oligarchy that comes along.

Woody

"Impeachment is the Right of the People, vested in the powers granted to Congress, to preserve or restore Justice and preserve the Constitution of the United States. Those vested with power shall neither deprive the People the means, nor compel such recourse." B.E.Wood

Seems to me, there has been a lot of compelling going on!

[woerm]

+1 for Kharn

Sam Adams:
He means that it's a state requirement to have the NFA stamp as well, not just federal. If the NFA went away overnight, there would be no way to get the stamp thus the weapons would be illegal unless the state law was changed. I know multiple other states are the same way, Maryland even requires a $10/yr fee be paid on any MGs.

Kharn

even if the NFA is voided tomorrow It would be about 2 to 4 years of lawsuits to clean up Texas list of weapons that will get you arrested just for possession

that's the KKK's gift to TX that just keeps on giving

most all of sect 46 IIRC needs to be repealed *** is the state doing telling anyone what sort of weapons they are 'allowed' to carry?

yes I am talking to my misreptiles here in TX trying to restore some level of sanity of the TX Statutes

geeze this crud was laid on by bigots to disarm folks they wanted dead.
It is long past time for the whole 'you can't have x or you are arrested' bs to go away.

r

[TexasRifleman]

even if the NFA is voided tomorrow It would be about 2 to 4 years of lawsuits to clean up Texas list of weapons that will get you arrested just for possession

Actually the Texas Penal Code doesn't say you have to have the tax stamp, it says:

(c) It is a defense to prosecution under this section that
the actor's possession was pursuant to registration pursuant to the
National Firearms Act, as amended.


So 2 things about that.

#1 It sucks because technically it is a defense to PROSECUTION so you can be arrested even if you have a legally held NFA item, though it doesn't happen in "real life" for that alone and

#2 If you were arrested, and the NFA had been modified to not require a tax stamp, you would still be acting pursuant to the NFA so the charges would be dropped.

Of the 9 types of prohibited weapons in Texas Penal Code, only 2 are covered by NFA anyway.

But you are correct that most of the firearms laws we have, not just in Texas, have racist beginnings.

I hope the Supremes will take that into account when they listen to this "collective rights" argument. I'm sure Justices Thomas and Scalia will have it in their thoughts.

[fastpat]

Ginsburg may have some rather terse questions on what limits apply to the constitution/amendments vs DCI should think so.

By the way, DC has a National Guard and there's no exception for DC in the federal code defining the organized and unorganized militia either.

I should think that the idea of DC not being a state won't fly at all as standing to restrict rights.

[Socrates]

Many decisions by the court are feelings, and principals, rationalized by law. This is what really concerns me.

I feel, at least in ****, that law is now so massive that it severely limits our basic right of freedom, and, the gun laws are certainly part of that. I'd like to have more information on the argument that laws have limited gunownership for a long time.
IIRC, most of this stuff started with the original big government guy, FDR, who created massive government agencies, who then taxed, and, continue to justify their existence by harassing business, and commerce.

I'm hoping the gut feeling of the court is we have too many laws, and, they need to strike down a few. Where are the four horsemen when we need them?

[RP88]

my main concern here is how this ruling is coinciding with an election that looks like it will favor the democrats (for now). If Heller wins, there will still be obstinance against guns, but the initiative against bans will be hard to undermine with new gun laws. If he loses, then there could be enough momentum to allow other places to pass anti-gun laws from petty inconveniences to large-scale restrictions.

Either way, the ruling will attract politicians for the election, or at least it would seem so.

[Socrates]

Safest way would be for a Constitutional amendment, extending the 2nd amendment against the states, and federal government, meaning in plain language "no law" regulating firearms sale or ownership.

[Megistopoda]

Safest way would be for a Constitutional amendment, extending the 2nd amendment against the states, and federal government, meaning in plain language "no law" regulating firearms sale or ownership.

Safest way? Frankly, that's already been done with the 14th amendment. But the SCOTUS precedent has been selective incorporation via past case rulings. Incorporation is not on the table (per se) in this case....but reading the briefs shows that the issue is very close to the surface.

A new amendment would not be needed at all. All it would take is a ruling from the SCOTUS to that effect, and it would be so.

But even 2A incorporation would not (will never) flatly state that no law shall ever be passed or ever shall stand to regulate firearm sale or ownership. That will NEVER happen.

[gc70]

THERE is the deep, dark secret that the gun-grabbing tyrants don't want you to know - that the Supreme Court decided a 2nd Amendment case on the merits. It would have been incredibly easy of the Court to say, "Cert. denied, plaintiff lacks standing." in order to dispose of Miller, BUT IT DIDN'T DO THIS!!

SCOTUS had to (and wanted to) accept Miller. The district court had dismissed the charges against Miller and declared the NFA unconstitutional, in violation of the Second Amendment. The Supreme Court reversed in United States v. Miller.

BTW, here is the ENTIRE district court ruling for Miller:

Cite U.S. v. Miller, 26 F. Supp 1002 (W.D. Ark.), rev'd, 307 U.S. 174 (1939) (http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_miller.txt).

UNITED STATES v. MILLER et al.

No. 3926.

District Court, W. D. Arkansas, Fort Smith Division.

Jan. 3, 1939.

C. R. Barry, U. S. Dist. Atty., and Duke Fredrick, Asst. U. S. Dist. Atty., both of Fort Smith, Ark.

Paul Gutensohn, of Fort Smith, Ark., for defendants.

HEARTSILL RAGON, District judge.

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamped affixed written order for said fire arm as required by Section 1132c, Title 26 U.S.C.A., and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, 26 U.S.C.A. section 1132 et seq.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States, U.S.C.A.

The indictment is based upon the Act of June 26, 1934, C. 757, Section 11, 48 Stat. 1239, 26 U.S.C.A. section 1132j. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

The demurrer is accordingly sustained.

[Jim March]

I'm deliberately re-starting this thread for a reason, so bear with me.

Starting on page three I focused on the 14th Amendment and the Presser citation the DC city lawyers had made. Jon Roland replied by suggesting that a sophisticated militia-related argument be used instead of a heavy citation to the 14th.

The Heller oral arguments are now past, and we saw something interesting: Justice Kennedy (considered the swing vote) seemed willing to go along with an individual right to self defense, but also appeared unwilling (along with an unknown number of others) to risk loosening up the full-auto restrictions at the same time.

If that's where his head is at, we can assume at least some others of The Nine are too.

If they're looking for an "out", the research of Akhil Reed Amar, Stephen Halbrook and others regarding the real purpose of the 14th (including full incorporation of the BoR) is the only intellectually semi-honest "out" they have.

What I'm predicting is at least possible is that they'll severely limit (or even eliminate) the militia-connection to the 2nd but instead, claim the 14th turned it into a personal right to defense against criminals such as the proto-KKK.

That in turn would give us national-level home defense, handgun ownership and even open carry if not CCW.

Mind you, it would still be a crock of crap in that it's impossible to argue that the intent of the 14th was to *limit* anybody's rights of any sort. You certainly can't get there from anything Bingham and his cohorts of the period said.

[gc70]

Jim, it seemed quite clear that Justice Kennedy had already made up his mind to separate the "militia" clause from the "operative" clause. Most discussion of 2A has inextricably linked the concepts of the militia to the RKBA; separate the two concepts and the landscape changes dramatically.

The idea that the militia clause simply affirms the value of the militia as articulated in other provisions of the Constitution would allow the RKBA clause to be divorced from most military implications. Taken alone, the RKBA clause could then be viewed as articulating an individual self defense right (albeit one that might at times be exercise collectively). A self defense right would not necessarily include a right to military weapons, which association with the militia does suggest. Viola - citizens have a right to common arms, but not scary things like machine guns.

In short, I don't think it would be necessary to look to the 14th to be able to construe 2A as a self defense right. The 14th becomes icing on the cake by affirming the newly discovered 'original intent' of 2A. While Kennedy might have such a sweeping theory, it remains to be seen whether Roberts tries to constrain the scope of the decision as much as possible or allows a broader scope that would put the stamp of his court more firmly on 2A.