[Tempest]

http://www.keepandbeararms.com/Silveira/Halbrook.asp

The whole transcript is too lengthy to cut and paste here, so here's an exerpt.

THE COURT: OKAY. THANK YOU.

Now we have the oral argument of Mr. Stephen Halbrook.

He describes himself as “the leading expert on the right to keep and bear arms.”

MR. HALBROOK: IF THE COURT PLEASE, OF COURSE THESE ARE POLICY ISSUES THAT HAVE BEEN RAISED IN THE LAST PART OF MY BROTHER COUNSEL'S ARGUMENT, BUT WE DO THINK THERE IS SOME VALIDITY TO THOSE COMMENTS IN TERMS OF SHOWING THE INJURY IN FACT TO THE PLAINTIFFS.

THE COURT: WHAT ABOUT THE STANDING QUESTION? I MEAN THERE IS AN ADMINISTRATIVE PROCESS THAT WAS ESTABLISHED TO PETITION FOR LICENSES AND REGISTRATION, AND IF THOSE APPLICATIONS WERE DENIED, A PROCESS BY WHICH AN APPEAL COULD BE TAKEN ULTIMATELY, AND A DECISION BOTH ON STATUTORY GROUNDS AND CONSTITUTIONAL GROUNDS COULD BE ADDRESSED BY THE D.C. COURT OF APPEALS. WHY SHOULDN'T YOU BE REQUIRED TO GO THROUGH THAT PROCESS?

Immediately the judge asks about exhaustion of administrative remedies, the first issue on his mind. That is very revealing.

MR. HALBROOK: WELL, FIRST OF ALL, THE LAW CLEARLY STATES AS A STATUTORY MATTER THAT NO HANDGUNS WILL BE REGISTERED. SO THERE COULD NEVER BE AN ARBITRARY AND CAPRICIOUS ABUSE OF DISCRETION IN REFUSING TO REGISTER HANDGUNS.

That is true, but there are better answers. The NRA-Halbrook case is supposed to be a civil rights action under 42 USC §1983. Such cases never require exhaustion of administrative remedies. This is what the Supreme Court said in Patsy v. Bd. of Regents, 457 U.S. 496, 500-01 (1982):

“This contention need not detain us long. Beginning with McNeese v. Board of Education, 373 U.S. 668, 671-673 (1963), we have on numerous occasions rejected the argument that a 1983 action should be dismissed where the plaintiff has not exhausted state administrative remedies. See Barry v. Barchi, 443 U.S. 55, 63, n. 10 (1979); Gibson v. Berryhill, 411 U.S. 564, 574 (1973); Carter v. Stanton, 405 U.S. 669, 671 (1972); Wilwording v. Swenson, 404 U.S. 249, 251 (1971); Houghton v. Shafer, 392 U.S. 639, 640 (1968); King v. Smith, 392 U.S. 309, 312, n. 4 (1968); Damico v. California, 389 U.S. 416 (1967). Cf. Steffel v. Thompson, 415 U.S. 452, 472-473 (1974) ("When federal claims are premised on [1983] - as they are here - we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights").”

Civil rights litigators usually know this from day one.

THE COURT: BUT YOU COULD STILL MAKE THE CONSTITUTIONAL CHALLENGE, COULDN'T YOU?

MR. HALBROOK: YOU CAN MAKE THAT, BUT, ON THE OTHER HAND, WHAT WE HAVE TO SHOW IN THIS COURT, WE CAN SHOW. THE FACT THAT IT MIGHT BE POSSIBLE TO HAVE THAT OTHER AVENUE DOES NOT PRECLUDE AN ACTION IN THIS COURT ANY MORE THAN ANY NORMAL CIVIL RIGHTS ACTION CAN BE FILED EITHER IN FEDERAL COURT OR STATE COURT. AND, IN THIS CASE, WE HAVE THE ADDED PROBLEM OF THE ATTORNEY GENERAL AND THE THREAT OF PROSECUTION BY THE ATTORNEY GENERAL, WHICH WOULD NOT BE THE CASE IF WE WERE FILING IN THE D. C. COURT OF APPEALS AND SIMPLY DOING LIKE A WRIT OF MANDAMUS, OR SOMETHING TO TRY TO REQUIRE THE D.C. POLICE TO REGISTER HANDGUNS.

Oops. Mr. Halbrook does not come back forcefully with the exhaustion of remedies case law, not a single one.

THE COURT: MAYBE THE ATTORNEY GENERAL, THROUGH THE UNITED STATES ATTORNEY'S OFFICE, HAS A DIFFERENT POSITION ON PROSECUTING THESE CASES IN LIGHT OF THE NEW POSITION THAT THIS ATTORNEY GENERAL HAS TAKEN REGARDING THE SECOND AMENDMENT. I DON'T KNOW IF THAT'S GOING TO HAVE AN IMPACT ON THE DECISION TO PROSECUTE OR NOT, BUT MAYBE THAT'S SOMETHING THAT NEEDS TO BE ESTABLISHED BEFORE THIS COURT JUMPS INTO THE FRAY.

MR. HALBROOK: I WOULD CERTAINLY SUPPORT A DISCOVERY PERIOD TO FIND THAT OUT. IT'S OUR UNDERSTANDING THAT THERE HAS BEEN NO CHANGE. WE ARE NOT AWARE OF ANY CHANGE. ALL OF US WHO PRACTICE CRIMINAL LAW KNOW THAT THOSE CASES CONTINUE TO BE PROSECUTED. THERE HASN'T BEEN ANY CHANGE SINCE THE YEAR 2000 WHEN THE ADMINISTRATION CHANGED. YOUR HONOR, THE FACT THAT YOU HAVE RAISED THE QUESTION -- I AGREE THAT WOULD BE AN INTERESTING QUESTION TO DISCOVER -- IF THE UNITED STATES WANTS TO COME FORWARD AND SAY, "WE ARE NOT PROSECUTING THOSE CASES." THERE STILL IS INJURY, EVEN IF THEY DECLINED TO PROSECUTE BECAUSE THE ARRESTS ARE STILL GOING ON. THERE ARE SEVERAL KINDS OF INJURY HERE THAT HAS NOT REALLY BEEN DISCUSSED SO FAR. AND IT GOES BACK TO –

THE COURT: BEFORE WE LEAVE FROM THIS PROCEDURAL ISSUE, CONGRESS WAS INVOLVED, OBVIOUSLY, IN THIS PROCESS THAT RESULTED IN THE ENACTMENT OF THESE STATUTES THAT ARE BEING CHALLENGED BECAUSE OF THE UNIQUE RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA. AND CONGRESS AUTHORIZED, THROUGH ITS INACTION AND SAYING TO THE DISTRICT, "YOU CAN ENACT THIS LAW," AND THEY HAVE DONE THAT WHEN THEY FELT THAT THEY DIDN'T WANT A LAW TO GO INTO EFFECT. AND A PART OF THE PROCESS WAS THIS ADMINISTRATIVE PROCEDURE THAT WAS CREATED FOR THESE TYPES OF CHALLENGES TO BE MADE. AND IF CONGRESS HAS, IN EFFECT, SPOKEN ON HOW THESE TYPES OF CHALLENGES COULD BE MADE, WHY SHOULDN'T I REQUIRE THAT YOU GO THROUGH THE PROCESS, GO TO THE DISTRICT OF COLUMBIA COURT OF APPEALS, RAISE YOUR CONSTITUTIONAL CHALLENGE, AND LET THAT COURT ADDRESS WHETHER OR NOT THERE IS, IN FACT, A VIOLATION?

Some observers saw this statement as indicating that the judge might require Mr. Halbrook’s clients to apply for permits and go through the administrative process.

Will Mr. Halbrook remember the non-exhaustion law of section 1983?

MR. HALBROOK: WELL, THERE IS NO MANDATE BY CONGRESS THAT THAT PROCESS BE FOLLOWED. CONGRESS HAS SET FORTH THE PROCESS. I THINK, IN THE TYPICAL SITUATION, IF YOU WERE APPEALING FROM A DECISION NOT TO REGISTER, LET'S SAY, A RIFLE, WHICH IS REGISTRABLE IN THE DISTRICT, THAT YOU COULD GO TO THROUGH THAT ADMINISTRATIVE AND THEN JUDICIAL PROCESS AND ARGUE ARBITRARY AND CAPRICIOUS. YOU COULD MAKE CONSTITUTIONAL ARGUMENTS IF YOU WISHED, BUT –

THE COURT: ARE YOU SAYING IT IS NOT DESIGNED TO DEAL WITH HANDGUNS -- THAT PROCESS?

MR. HALBROOK: BY AND LARGE IT'S NOT, OTHER THAN WITH THE EXCEPTION OF YOU COULD RAISE CONSTITUTIONAL ISSUES, BUT YOU CERTAINLY COULDN'T RAISE STATUTORY ISSUES BECAUSE THE STATUTE CLEARLY STATES HANDGUNS SHALL NOT BE REGISTRABLE. AND YOU COULD NEVER MAKE AN ARBITRARY AND CAPRICIOUS ARGUMENT THERE THAT HERE I MET ALL THE QUALIFICATIONS, CLEAN RECORD AND WHATNOT. THEY WOULD BE COMMITTING AN ILLEGAL ACT UNDER THEIR ORDINANCES IF THEY DID REGISTER A HANDGUN. AND WE HAVE MORE THAN ONE FEDERAL CONSTITUTIONAL CLAIM AT ISSUE HERE. WE HAVE A FEDERAL STATUTORY CLAIM, THE ENABLING ACT. AND WE THINK THE FEDERAL COURT IS A PROPER FORUM TO BRING THAT CASE IN. IF WE ESTABLISH STANDING AND RIPENESS AND WE ESTABLISH OUR CAUSES OF ACTION, THEN THIS IS AN APPROPRIATE PLACE. THE FACT THAT WE MIGHT HAVE BEEN ABLE TO LITIGATE SOME OF THESE CLAIMS ELSEWHERE DOESN'T MEAN WE CAN'T DO IT HERE. AND, ALSO, WE ARE LOOKING FOR PROTECTION FROM PROSECUTION BY THE U.S. ATTORNEY'S OFFICE, NOT JUST –

THE COURT: ASSUMING YOU ARE CORRECT ON THIS PROCEDURAL ISSUE, WHAT'S YOUR INJURY?

MR. HALBROOK: THE INJURY WOULD BE SEVERALFOLD. ONE IS THAT THE PLAINTIFFS WISH TO GET HANDGUNS TO PROTECT THEMSELVES. THEY WANT TO REGISTER THEM. WE ARE NOT CONTESTING THE REGISTRATION SCHEME. THEY ARE VICTIMS OF CRIME. THEY LIVE IN CRIME-RIDDEN NEIGHBORHOODS. THIS IS ALL IN THE COMPLAINT. IT HASN'T BEEN CONTESTED. THEY WOULD BE ABLE TO PROTECT THEMSELVES.

THERE IS ALSO A CONSTITUTIONAL RIGHT AT STAKE, AND ENTERING INTO THE STANDING JURISPRUDENCE IS THE ZONE-OF-INTEREST CONCEPT, WHICH IS MENTIONED IN NAVEGAR BRIEFLY, THE FACT THAT IF YOU HAVE A CONSTITUTIONAL OR STATUTORY RIGHT TO SOMETHING, YOU MIGHT HAVE INJURY STEMMING FROM THAT. SO THEY ARE BETWEEN THE CLASSICAL ROCK AND HARD PLACE IN THE WORDS OF NAVEGAR. EITHER THEY EXPOSE THEMSELVES TO POTENTIAL ARREST AND PROSECUTION AND INCARCERATION -- A CRIMINAL RECORD -- OR THEY FORGO THE ACTIVITY. AND BY FORGOING THE ACTIVITY, THEY ARE DEPRIVED OF THE EXERCISE OF A CONSTITUTIONAL RIGHT, AND THEY ARE THREATENED WITH CRIMINAL VIOLENCE IN THEIR OWN HOMES. SO THAT'S THE INJURY IN FACT. AND THOSE KINDS OF INJURIES AREN'T DISCUSSED IN NAVEGAR. I THINK MAYBE A BETTER EXAMPLE WOULD BE TO COMPARE THE THREAT OF CRIMINAL VIOLENCE WITH THE ABBOTT LABORATORIES RIPENESS DISCUSSION. THE INJURY IN FACT WAS THAT THE PLAINTIFFS WOULD HAVE TO PUT DIFFERENT LABELS ON PRESCRIPTION MEDICINE. OUR INJURY IS THE THREAT OF CRIMINAL VIOLENCE AND THE VIOLATION OF A CONSTITUTIONAL RIGHT.

I DON'T SEE THAT AN ECONOMIC INJURY IS SOMETHING THAT IS MORE IMPORTANT THAN AN INJURY REGARDING THE THREAT TO THE INTEGRITY OF ONE'S PERSON, AND ONE'S HOME, AND ONE'S FAMILY. THE CASE LAW IS PRETTY CLEAR THAT THE RIGHT TO LIFE IS FUNDAMENTAL. THOSE KINDS OF INJURIES DON'T FIGURE INTO THE NAVEGAR ANALYSIS BECAUSE THAT WAS A MERE CORPORATION BRINGING THE LAWSUIT. AND IN REGARD TO THE FACT THAT THERE HADN'T BEEN A SUBSTANTIAL THREAT OF PROSECUTION IN THAT CASE -- DON'T FORGET THAT THE PART THAT THE COURT WOULDN'T CONSIDER -- THE CAUSES OF ACTION THE COURT WOULDN'T CONSIDER WAS BASED ON THE DEFINITIONS THAT WERE ALLEGED TO BE VAGUE. AND THERE WAS ALSO A COMMERCE-CLAUSE CHALLENGE THERE AS WELL. BUT THE POINT IS THAT THIS HAD NOT BEEN ENFORCED, AND IT WAS UNCLEAR HOW THE AGENCY, A.T.F., WAS GOING TO ENFORCE THOSE PROVISIONS. THEY DIDN'T CLEARLY APPLY TO THE PLAINTIFFS.

This question suggests that the judge is still looking for a technical ground to throw out the case.

The standing discussion in Gratz v. Bollinger, 539 U.S. ___ (2003), would have been powerful to use here. One of the students did not apply for admission there, just as Seegars et al did not apply for gun permits. Still the student had standing. Page 12 & 13 of Gratz were fine arguments to make, but Mr. Halbrook did not do so.

THE COURT: WELL, YOU DO AGREE THAT THESE STATUTES ARE NOT UNCONSTITUTIONAL ON THEIR FACE, RIGHT? I MEAN THEY CAN BE APPROPRIATELY APPLIED TO A CERTAIN SEGMENT OF SOCIETY, YOU WOULD AGREE, RIGHT?

MR. HALBROOK: NOT NECESSARILY. HERE'S WHAT I WOULD SAY IN RESPONSE.

THE COURT: A CONVICTED FELON WHO HAS USED GUNS IN THE PAST COULD NOT BE PROSCRIBED FROM HAVING A HANDGUN?

MR. HALBROOK: THAT PERSON HAS NO STANDING TO RAISE THE SECOND AMENDMENT, BUT IF LAW-ABIDING CITIZENS, WHO ARE QUALIFIED TO POSSESS GUNS UNDER DISTRICT AND FEDERAL LAW –

THE COURT: WHAT IF A PERSON HAS A MENTAL HEALTH ISSUE?

MR. HALBROOK: RIGHT. FEDERAL LAW PRECLUDES PERSONS WHO HAVE BEEN COMMITTED TO MENTAL INSTITUTIONS –

THE COURT: WHAT IF A PERSON HASN'T BEEN COMMITTED, BUT THEY HAVE GOT SOME HISTORY OF PROBLEMS THAT MIGHT POTENTIALLY CAUSE THEM TO BE A DANGER TO SOCIETY IF THEY HAVE ACCESS TO A HANDGUN?

MR. HALBROOK: WELL, IF A LEGISLATIVE BODY WANTS TO LEGISLATE ON THAT, THEY ARE FREE TO DO SO. AND THE FACT IS THAT THE FEDERAL STANDARD, FOR EXAMPLE, IS EITHER ADJUDICATED MENTAL INCOMPETENT OR HAS BEEN COMMITTED TO A MENTAL INSTITUTION.

THE COURT: WHAT ABOUT THE DISTRICT'S POSITION THAT EVEN IF WE GET TO THE CORE ISSUE, YOU CAN'T MAKE A CLAIM THAT THERE IS AN INDIVIDUAL RIGHT TO BEAR ARMS, AND THEIR POSITION IS PREDICATED ON LANGUAGE THAT HAS BEEN ESPOUSED FROM THE SUPREME COURT, STARTING WITH THE MILLER OPINION, WHICH IT SEEMS TO BE INDICATING THAT YOU CAN'T READ OUT THOSE PORTIONS OF THE SECOND AMENDMENT THAT MAKE REFERENCE TO THE MILITIA. AND AS THE SUPREME COURT INDICATED IN MILLER, YOU HAVE TO LOOK AT THAT PERSPECTIVE IN DECIDING WHETHER THERE IS A RIGHT.

If the judge agrees with D.C., then Mr. Halbrook has lost the Second Amendment argument.

Now would be the time for a powerful reply summarizing the strengths of the Second Amendment position and citing the numerous judicial and scholarly authorities, especially the helpful opinions in Emerson and Silveira, representing nine federal circuit judges.

MR. HALBROOK: YES, YOUR HONOR. WHAT THE SECOND AMENDMENT DOES IS TO RECOGNIZE THE SUBSTANTIVE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS. AND THEN IT GIVES AN IMPORTANT FEDERAL OBJECTIVE, A REASON WHY THEY ARE PUTTING THAT IN THE BILL OF RIGHTS. AND IT'S THAT A WELL-REGULATED MILITIA IS NECESSARY FOR THE SECURITY OF A FREE STATE.

The powerful response did not happen.

THE COURT: WE DON'T NEED A MILITIA ANYMORE, DO WE? I MEAN WE HAVE THE NATIONAL GUARD. WE HAVE GOT THE STRONGEST MILITARY IN THE WORLD -- MORE WEAPONRY THAN ANY OTHER SOCIETY COULD PROBABLY EVEN IMAGINE. SO WHY IS THERE A NEED FOR INDIVIDUALS TO HAVE WEAPONS IN ORDER TO PROTECT THIS NATION?

MR. HALBROOK: WHETHER THERE IS A NEED FOR A MILITIA ANYMORE, THE RIGHTS STILL EXIST AS DECLARED IN THE SECOND AMENDMENT. AND IT WOULD BE, I THINK, NOT TRUE TO THE SPIRIT OF THE BILL OF RIGHTS TO SAY THAT A RIGHT DOESN'T EXIST BECAUSE ONE OF THE NEEDS FOR THAT RIGHT IS NO LONGER CONSIDERED POLICY.

This was a good time to reply that millions of individuals every year need defensive weapons to protect their homes and businesses.

THE COURT: YES, BUT IF THE DRAFTERS OF THE BILL OF RIGHTS, WHEN THEY DRAFTED THE SECOND AMENDMENT, WANTED TO CREATE AN INDIVIDUAL RIGHT RESPECTIVE OF THE NEED FOR MILITIA, THEY COULD HAVE JUST SAID THAT.

They did say it, and they also mentioned an additional purpose. James Madison said it, describing the Bill of Rights as “personal rights.” The adjacent amendments say it.

Congress did not say the Second Amendment was a right of the State, but of the people. You can ask the same question. If Congress intended a state right, they could have said so or omitted the Second Amendment altogether. Look at the early authorities who were close to this. ETC.

MR. HALBROOK: YOUR HONOR, WHAT THEY SAID IN THAT AMENDMENT -- THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHOULD NOT BE INFRINGED, AND WHY WOULD THAT SUPPORT A MILITIA -- WHETHER THERE IS A MILITIA OR NOT, IT WOULD HELP ENCOURAGE A MILITIA BECAUSE GENERALLY PEOPLE AT LARGE WOULD HAVE FIREARMS AND KNOW HOW TO USE THEM. THEY WOULD TARGET-PRACTICE WITH THEM, AND IF THERE WAS A NEED TO CALL OUT MORE THAN THE NATIONAL GUARD -- LIKE IN WORLD WAR II, THERE WERE STATE PROTECTIVE FORCES CALLED OUT IN EVERY STATE, BEARING THEIR OWN ARMS -- PEOPLE WHO WEREN'T DRAFTED.

THE COURT: BUT AT THAT TIME THE MILITARY MIGHT OF THIS NATION HAD NOT BEEN ESTABLISHED, AND, THEREFORE, IN ORDER FOR THE NATION TO PROTECT ITSELF, THERE WAS A NEED FOR INDIVIDUAL CITIZENS TO HAVE WEAPONS SO THAT IN THE EVENT OF AN ATTACK, THE NATION WOULD BE ABLE TO CALL THOSE PEOPLE TOGETHER AND FORM A MILITARY THAT WOULD BE ABLE TO PROTECT THE NATION. BUT THAT'S NOT THE CASE HERE. I MEAN WE CALL UP THE NATIONAL GUARD ALL THE TIME, AND WE HAVE GOT A READY AVAILABLE CACHE OF GUNS AND WEAPONRY AVAILABLE FOR THEM.

This is a common gun control argument that needs to be answered fully every time.

Individuals, homes, and businesses do need arms now. The police and military are not enough. They government takes no responsibility for protecting citizens in individual cases.

MR. HALBROOK: THIS IS A PUBLIC POLICY ARGUMENT, I THINK. AND THE EXTENT TO WHICH THE SECOND AMENDMENT IS CONSIDERED NEEDED ANYMORE, I THINK THAT IF THE CONSTITUTION PROVIDES FOR SOMETHING CALLED THE RIGHT OF THE PEOPLE, AS IT DOES IN THE SECOND AMENDMENT -- ONE CAN MAKE PUBLIC POLICY ARGUMENTS ABOUT THE FIRST AMENDMENT RIGHT OF THE PEOPLE TO ASSEMBLE AND SAY THAT THAT'S NO LONGER NEEDED, OR BECAUSE OF THE DRUG WAR, WE DON'T NEED THE RIGHT OF THE PEOPLE TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE.

FIRST OF ALL, WE DON'T KNOW WHETHER THAT WILL ALWAYS BE THE CASE THAT AN ARMED POPULACE WILL NEVER BE NEEDED IN THE FUTURE FOR A FUTURE CONFLICT. BUT, SECONDLY, I DON'T THINK THAT AN ARMED INVASION FROM ABROAD, FOR EXAMPLE, IS THE ONLY PURPOSE TO SECURE A FREE STATE. CERTAINLY ON THE FACE OF THE AMENDMENT, IT REFERS IN THE PREAMBLE TO THE MILITIA BEING NECESSARY TO SECURE A FREE STATE. I THINK SECURING A FREE STATE ALSO MEANS THE POPULACE BEING ABLE TO PROTECT ITSELF FROM CRIMINAL VIOLENCE. A FREE STATE MEANS A POLITY OR A POLITICAL BODY WHERE THERE IS FREEDOM -- A COMMONWEALTH, SO TO SPEAK, AND THE WORD "SECURE" IS THERE. NECESSARY TO SECURE. THAT DENOTES THE WORD SECURITY.

THE COURT: ISN'T THE NATIONAL GUARD THE EQUIVALENT OF WHAT WAS THE OLD MILITIA?

MR. HALBROOK: IT ACTUALLY IS NOT, YOUR HONOR. THE PERPICH CASE DECIDED BY THE SUPREME COURT IN 1990 HELD THAT THE NATIONAL GUARD WAS FORMED UNDER THE FEDERAL POWER TO RAISE ARMIES AND NOT THE MILITIA CLAUSE OF ARTICLE I, SECTION 8. AND, THEREFORE, THAT'S WHY THEY CAN BE MOBILIZED AND SENT TO IRAQ AND OTHER PLACES LIKE THAT, BECAUSE THEY ARE NOT THE MILITIA. THEY ARE THE MILITIA WHEN THEY ARE NOT IN U.S. SERVICE, BUT THEN THEY PLAY A DUAL ROLE. WHEN THEY ARE FEDERALIZED, THEY ARE NO LONGER CONSIDERED MILITIA. SO, IN ANY EVENT –

THE COURT: BUT IF THEY ARE NOT FEDERALIZED, THEN THEY ARE THE EQUIVALENT.

MR. HALBROOK: THEY ARE THE ORGANIZED MILITIA. THE FEDERAL STATUTE RECOGNIZES THE UNORGANIZED MILITIA AS WELL. BUT, OF COURSE, LIKE OTHER COURTS –

THE COURT: WHAT'S THE UNORGANIZED MILITIA?

MR. HALBROOK: THAT WOULD BE ALL ABLE-BODIED MALES FROM AGE, I THINK, 18 TO 44, OR SOMETHING LIKE THAT. IT'S DEFINED BY FEDERAL STATUTE. EVERY STATE HAS AN UNORGANIZED MILITIA ALSO DEFINED BY STATUTE. AND THESE ARE PEOPLE WHO ARE CAPABLE OF BEING CALLED OUT IN THE EVENT OF AN EMERGENCY, IF THE NATIONAL GUARD IS MOBILIZED AND SENT ABROAD, FOR EXAMPLE. BUT SECURITY MEANS SECURITY IN YOUR OWN HOME AS WELL AS SECURITY FROM FOREIGN INVASION, FOR EXAMPLE. AND IT WAS ALWAYS THE ROLE OF THE MILITIA, AS WELL AS ALL ABLE-BODIED PEOPLE, WHEN YOU GO BACK TO THE HUE AND CRY, FOR EXAMPLE, TO PARTICIPATE IN THEIR OWN PROTECTION OR TO ASSIST LAW ENFORCEMENT IN APPREHENDING FLEEING FELONS AND THINGS LIKE THAT. AND THAT MIGHT HAVE FALLEN INTO DISUSE TO SOME EXTENT, BUT CERTAINLY THE ABILITY OF A PERSON TO PROTECT THEMSELVES IN THEIR OWN HOME, I THINK, IS ENCOMPASSED WITHIN THE PURPOSE OF THE SECOND AMENDMENT.

THE COURT: WOULD YOU HAVE TO, ON THE MERITS, ESTABLISH EMPIRICALLY THAT THE ABILITY TO POSSESS A GUN DOES, IN FACT, ENHANCE YOUR ABILITY TO PROTECT YOURSELF?

You certainly could establish that. Here you might cite Warren v. District of Columbia, 444 A.2d 1 (D.C. 1983), where D.C. police neglect allowed three rapes to destroy the lives of three unarmed women. The women sued D.C. for damages and were thrown out of court.

MR. HALBROOK: NO. I DON'T THINK WE DO HAVE TO DO THAT EMPIRICALLY BECAUSE THE CONSTITUTION HAS ALREADY SET THE VALUE THAT YOU HAVE A RIGHT TO KEEP ARMS. THERE IS NO MORE FUNDAMENTAL WAY TO KEEP ARMS THAN IN THE HOME, AND ARMS ARE CONSIDERED -- NORMAL COMMON ARMS ARE RIFLES, PISTOLS AND SHOTGUNS. AND THAT'S A HISTORICAL TEST AND A TEST THAT IS, I THINK, PRETTY UNIVERSAL THROUGHOUT THE VARIOUS STATES BECAUSE MOST STATES ALSO HAVE RIGHT-TO-BEAR-ARMS GUARANTEES. IT'S NOT AN EMPIRICAL ISSUE. IT'S NOT AN ISSUE ABOUT WHETHER D. C. --

THE COURT: THE GOVERNMENT CAN PUT RESTRICTIONS ON THE RIGHT TO BEAR ARMS.

MR. HALBROOK: YOUR HONOR, WE ARE HERE WANTING TO REGISTER HANDGUNS. WE ARE NOT HERE WANTING UNRESTRICTED ACCESS. WE'RE NOT HERE ASKING TO CARRY THEM, OTHER THAN IN THE HOME.

THE COURT: YOU'RE SAYING THAT THE GOVERNMENT CAN IMPOSE REASONABLE RESTRICTIONS?

MR. HALBROOK: YES, YOUR HONOR. YES, YOUR HONOR.

Here Mr. Halbrook appears to support any so-called reasonable regulation. He wants to register handguns. He says nothing about the right to arms. He does not invoke strict scrutiny. He gives away most of the farm.

[Graystar]

What is up with that link??

[Hkmp5sd]

You have to remember that Halbrook is a lawyer arguing on behalf of the NRA and the NRA's strategy has been totally screwed up for a couple of decades.

[Tempest]

Sorry, guys. I checked the link, and it appeared to be OK. No idea what happened. I'm a computer ding-a-ling. :eek:

[Futo Inu]

Good work, Tempest. I wish we could replace him with you. Geez, you'd think we could put up someone who was sharp as a razor on this all-important case. You must demand strict strutiny - I agree. :mad:

[Tempest]

Good work, Tempest. I wish we could replace him with you. Geez, you'd think we could put up someone who was sharp as a razor on this all-important case. You must demand strict strutiny - I agree. Futo Inu, I wish that were me! The brilliant attorney and Constitutional scholar who wrote that piece is named Roy Lucas. I'm not an attorney, nor do I play one on TV! ;) But Roy did an amazing job analyzing this court transcript, and I'm simply appalled that an attorney who is supposed to be top dog in the 2A field is just another compromiser turncoat. :fire:

[Tempest]

A guy some people love to bash around here has responded to this transcript:

http://KeepAndBearArms.com/information/Item.asp?ID=3619

NRA Attorney: “YOUR HONOR, WE ARE HERE WANTING TO REGISTER HANDGUNS.”
by Angel Shamaya

"Sarah Brady wants to register handguns, too. Maybe Mr. Halbrook should join her organization to help in their efforts."

OUCH! :eek: :uhoh:

[Wildalaska]

Having worked with Mr. Halbrook in the past, and speaking as someone without an axe to grind against the NRA, or alternatively, speaking as someone not seeking to self aggrandize myself in order to make $$, or speaking as someone who is not professionally jealous, I can assure you that Mr. H is probably, to not only the Courts but to his peers, one of the finest Constituional Lawyers in the US and the acknowkledged expert on the 2nd amendment....

WildnoselfpromotionAlaska

[Tempest]

Having worked with Mr. Halbrook in the past, and speaking as someone without an axe to grind against the NRA, or alternatively, speaking as someone not seeking to self aggrandize myself in order to make $$, or speaking as someone who is not professionally jealous, I can assure you that Mr. H is probably, to not only the Courts but to his peers, one of the finest Constituional Lawyers in the US and the acknowkledged expert on the 2nd amendment.... So, after reading the transcript and the comments provided, do you still hold that opinion? I don't know about you, but I don't think a defender of the Second Amendment should be promoting registration.

[Ian]

one of the finest Constituional Lawyers in the US and the acknowkledged expert on the 2nd amendment.... Too bad he isn't interested in enforcing that amendment, rather than just being an expert on it. :fire:

Fine, he'll get a couple DC guys permission to buy and register pistols. And in the process, he'll create yet more judicial precedent for upholding "reasonable restrictions."

[WAGCEVP]

NRA Attorney:
“YOUR HONOR, WE ARE HERE WANTING TO REGISTER HANDGUNS.”
http://KeepAndBearArms.com/information/Item.asp?ID=3619

by Angel Shamaya
Director@KeepAndBearArms.com
October 13, 2003

KeepAndBearArms.com -- NRA attorney Stephen Halbrook
appears not only unprepared to effectively argue a Second
Amendment case, but ready to give up the farm — to register
handguns and call it “reasonable” — when he gets his day in
court. Read the annotated transcript of Mr. Halbrook's oral
arguments from court just last week:

D.C. SECOND AMENDMENT FEDERAL COURT HEARING
Annotated Transcript of NRA Case Proceedings
by Roy Lucas
http://KeepAndBearArms.com/Silveira/Halbrook.asp

Here is a short excerpt from Mr. Halbrook's oral arguments
last Wednesday, October 8, in a case the NRA calls a “Second
Amendment” lawsuit:

~~~~~~~~~~~

THE COURT: THE GOVERNMENT CAN PUT
RESTRICTIONS ON THE RIGHT TO BEAR ARMS.

MR. HALBROOK: YOUR HONOR, WE ARE HERE
WANTING TO REGISTER HANDGUNS. WE ARE NOT
HERE WANTING UNRESTRICTED ACCESS. WE'RE
NOT HERE ASKING TO CARRY THEM, OTHER
THAN IN THE HOME.

THE COURT: YOU'RE SAYING THAT THE
GOVERNMENT CAN IMPOSE REASONABLE
RESTRICTIONS?

MR. HALBROOK: YES, YOUR HONOR. YES,
YOUR HONOR.

[See: http://KeepAndBearArms.com/Silveira/Halbrook.asp
for the full transcript, with annotations.]

~~~~~~~~~~~

Sarah Brady wants to register handguns, too. Maybe Mr.
Halbrook should join her organization to help in their efforts.
When you read the full, annotated transcript, the above will
be one of many concerns raised.

Arguing a so-called “Second Amendment case” while “wanting
to register handguns” is working directly against the rights of
those who would never submit to such restrictions under any
circumstances. Stephen Halbrook is an NRA-paid attorney,
and he filed this lawsuit with their support.

Would Thomas Jefferson or James Madison have gone to court
to fight a Second Amendment case merely wanting to register
handguns in the home? Of course not. Would they have argued
for handgun registration in the middle of a court hearing in which
they eagerly agreed that the government can impose “reasonable
restrictions”? Not a chance. Doing so suggests that such an overt
infringement on our Second Amendment rights is “reasonable,”
when it most certainly is not. Treasonable, perhaps...

You do not have to register your Bible, or your computer (First
Amendment), so why should you register your firearms (Second
Amendment)? Answer: you shouldn't. But NRA Management and
their unprepared attorney obviously disagree — and they are using
members' donations to do just that. Handgun registration is NRA's
idea of leading a Second Amendment court challenge. Yet they've
been in operation since the late 1800's and have raised billions of
dollars to “protect the Second Amendment.”

Americans must realize that NRA management's “defense” of
Second Amendment rights in court litigation is destructive.
Fortunately, the current Second Amendment lawsuit most likely
to be heard by the Supreme Court — Silveira v. Lockyer — is
beyond NRA management's control.

The Supreme Court is very likely to grant a hearing in the Silveira
case soon. And thanks to careful legal research spanning the last
year, the case is far better prepared than any Second Amendment
litigation the National Rifle Association has ever brought in court —
with already-greater judicial success for the Second Amendment
than the NRA's well-paid lawyers have ever managed.

Read the certiorari petition now being considered by the U.S.
Supreme Court in that case. The arguments for strict scrutiny far
surpass what NRA's attorney weakly suggested to the judge last
week: http://KeepAndBearArms.com/Silveira/cert.pdf

Mr. Halbrook should study the Silveira petition. He could learn a
thing or two and certainly improve his arguments by doing so.

Three weeks ago, the Silveira lawsuit was attacked (and
misrepresented) by an NRA-funded writer on a well-trafficked
website. He told the world that NRA's Stephen Halbrook was
the man to send to the Supreme Court to win a Second Amendment
victory. Perhaps these gentlemen have a different idea of victory than
we do.

With the help of grassroots activists, KeepAndBearArms.com is
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[Futo Inu]

Good post.

But,

topic already underway here:

http://www.thehighroad.org/showthread.php?s=&threadid=44556

[LawDog]

Multiple threads merged.

LawDog

[PrudentGT]

If the court listened to itself, maybe they'd realize they had already answered their own question:

THE COURT: WE DON'T NEED AN EXECUTIVE OR LEGISLATIVE BRANCH, DO WE? I MEAN WE HAVE THE FEDERAL COURT SYSTEM. WE HAVE GOT THE LARGEST COURT SYSTEM IN THE WORLD -- MORE LAWYERS THAN ANY OTHER SOCIETY COULD PROBABLY EVEN IMAGINE. SO WHY IS THERE A NEED FOR CHECKS AND BALANCES IN ORDER TO PROTECT THIS NATION?

[madmike]

THE COURT:WHAT'S THE UNORGANIZED MILITIA?

MR. HALBROOK: THAT WOULD BE ALL ABLE-BODIED MALES
FROM AGE, I THINK, 18 TO 44, OR SOMETHING LIKE THAT. IT'S
DEFINED BY FEDERAL STATUTE. EVERY STATE HAS AN
UNORGANIZED MILITIA ALSO DEFINED BY STATUTE.


Is this what you're looking for, Mister "one of the finest Constitutional Lawyers in the US and the acknowledged expert on the 2nd amendment...."?

US Code: Title 10
US Code as of: 01/26/98

Sec. 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and,
except as provided in section 313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States and of female citizens of the United
States who are members of the National Guard.

(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.


Tell you what, why don't you sit down and have some milk and cookies while you do your homework, and let the adults have their conversation, okay?

Or we're going to add THIS CASE to THESE CASES:

THE COURT: A CONVICTED FELON WHO HAS USED GUNS IN THE
PAST COULD NOT BE PROSCRIBED FROM HAVING A HANDGUN?

MR. HALBROOK: THAT PERSON HAS NO STANDING TO RAISE
THE SECOND AMENDMENT, BUT IF LAW-ABIDING CITIZENS, WHO
ARE QUALIFIED TO POSSESS GUNS UNDER DISTRICT AND
FEDERAL LAW –

THE COURT: WHAT IF A PERSON HAS A MENTAL HEALTH ISSUE?

MR. HALBROOK: RIGHT. FEDERAL LAW PRECLUDES PERSONS
WHO HAVE BEEN COMMITTED TO MENTAL INSTITUTIONS –

THE COURT: WHAT IF A PERSON HASN'T BEEN COMMITTED, BUT
THEY HAVE GOT SOME HISTORY OF PROBLEMS THAT MIGHT
POTENTIALLY CAUSE THEM TO BE A DANGER TO SOCIETY IF
THEY HAVE ACCESS TO A HANDGUN?

MR. HALBROOK: WELL, IF A LEGISLATIVE BODY WANTS TO
LEGISLATE ON THAT, THEY ARE FREE TO DO SO. AND THE FACT
IS THAT THE FEDERAL STANDARD, FOR EXAMPLE, IS EITHER
ADJUDICATED MENTAL INCOMPETENT OR HAS BEEN
COMMITTED TO A MENTAL INSTITUTION.


Right...and registration is of course, okay. The NRA says so. And perhaps people who've gotten out of relationships, in case of stress, shouldn't have guns either, just like they do in Canada.

My life member card goes back to the NRA tomorrow by first class mail. I will restrain myself and not use it as a diaper wipe on my two year old first.

Folks, if that's the "acknowledged expert on the Second Amendment," cut up your guns now. We've already lost. He's not only unprepared and uneducated as to the law, he's a sniveling idiot. Concede, concede, concede, concede...

That is NOT the way to win in court.

[gunsmith]

The Judge (in asking some of the most stupid questions ever uttered
by a member of the judiciary)
Appears to be in possession of a lower IQ then even myself!
How in the world did he ever get that position?
I know more about the Constitution and I dropped out of High School
in 1974!...
(I got my G.E.D though,FT Gordon)
Does the Court get it's information from TV's West Wing?
The B.S (Barbara Streisand) School of Law?
With that interpetation "the Right of the People to Peaceably Assemble"
means that we have the right to elect an Assembly:barf:

[Sergeant Bob]

Mr. Halbrook sounds like a sophmore in high school who forgot to do his homework and is getting grilled by the teacher! What a suck-up!

I wonder if the NRA is trying to cut some kind of deal? If they get the court to rule gun registration constitutional, then it'll open the door for congress. Maybe give in on gun registration for not renewing the AWB? Do they think if the AWB dies we'll all be so happy we won't notice they sold us down the river? Looks like the NRA will do anything (including being a govt whooer)to put a "W" in the win column!
Maybe just a paranoid conspiracy theory.

[Tempest]

The Judge (in asking some of the most stupid questions ever uttered
by a member of the judiciary)
Appears to be in possession of a lower IQ then even myself!
How in the world did he ever get that position?
I know more about the Constitution and I dropped out of High School
in 1974!...
(I got my G.E.D though,FT Gordon)
Does the Court get it's information from TV's West Wing?
The B.S (Barbara Streisand) School of Law?
With that interpetation "the Right of the People to Peaceably Assemble"
means that we have the right to elect an Assembly Actually, it looks like, to me, that the judge is actually trying to lead Halbrook in a certain direction. The judge actually appeared to be on the side of truth from the start. Did you even read the entire transcript and comments by Mr. Lucas? He was asking those "stupid" questions to, perhaps, get Halbrook to start acting like a Second Amendment expert litigator, not a third-rate ambulance chaser.

But your mentality is telling. Don't blame Halbrook for his treason and inability to formulate a decent argument. Halbrook can do no wrong. Blame the JUDGE for asking "stupid questions." :rolleyes:

[Bartholomew Roberts]

Does KABA have a purpose anymore besides stirring the pot and attacking the NRA?

Folks, Halbrook is arguing against the DC law on handguns. DC requires registration of handguns but closed any new registrations back in 1976. Rather than do something foolish and try to argue for free machineguns, Halbrook is taking the entirely plausible step of arguing that DC should open registrations again so that the residents of DC can legally own firearms.

He is restoring rights, one step at a time and the response of KABA is to attack him for not going whole hog and demanding revocation of the 1968 GCA and 1934 NFA.

I am of the opinion that KABAs strategy is both stupid and divisive. I do my best to see the good in every RKBA group because we need them all; but I have to wonder what point KABA sees in constantly attacking the NRA when there are so many antigun groups that could use the attention.

[KMKeller]

Rather than do something foolish and try to argue for free machineguns, Halbrook is taking the entirely plausible step of arguing that DC should open registrations again so that the residents of DC can legally own firearms.


The NRA's attorney is arguing FOR gun registration and you think it's a good thing? Ever hear of legal precedent?
I guess it's KABA's fault that Halbrook is incompetent?

[Preacherman]

People, Bartholomew Roberts has it right. Mr. Holbrook is NOT arguing for compulsory registration of handguns, or anything like that: he is simply arguing that Washington DC should RE-OPEN its EXISTING registration process to new handguns. He's taking this one step at a time.

I'm afraid (and yes, Nicki, here we go again!) that KABA is trying desperately to whip up absolutist support by misrepresenting and "emotionalizing" (what a horrible word!) anything and everything the NRA does. I personally find their approach offensive, dishonest and highly objectionable. Please note that I am NOT making a "personal attack" on any individual by saying this: but I invite any interested person to examine the WHOLE court record, including the filings of the case, and decide for themselves who is telling the truth on this one.

Folks, when someone tries to whip you into a knee-jerk, emotional frenzy on the RKBA issue, ask yourself this: Who is gaining by such tactics? Are we, the whole RKBA community, benefiting from such an approach? Or is the opposition, the anti-RKBA community, benefiting more from the fragmentation, dissent, disagreement and distrust that such tactics produce on the pro-RKBA side?

Decide for yourselves...

[Bartholomew Roberts]

The NRA's attorney is arguing FOR gun registration and you think it's a good thing? Ever hear of legal precedent?

There already IS registration in DC. The legal precedent is well established. Right now, the precedent is that not only can DC register guns - they can close the registration so that nobody can legally own one.

Once again for those who didn't grasp it the first time, Halbrook is arguing to RESTORE rights to people who don't have them. I know it might shock some that being able to register a gun is considered a restoration of rights in the lala land that is DC; but it is also true.

Angel is bashing Halbrook for an incremental approach to RKBA. I think this is unfair as history seems to demonstrate that the incremental approach is the most effective solution to implementing any political policy.

[KMKeller]

And if the NRA supports registration, then they will not again be able to argue against registration. They will have established legal precedent and support for it regardless of the circumstances. Any anti lawyer worth his mud will turn that precedent into national registration at the first given opportunity. Already having it is one thing, coming out in support of it is quite another.

[Tempest]

The legal precedent is well established. Right now, the precedent is that not only can DC register guns - they can close the registration so that nobody can legally own one. It has never been challenged by the NRA. If a DC judge now decides that gun restriction is a reasonable government control, THAT sets a precedent.



I'm afraid (and yes, Nicki, here we go again!) that KABA is trying desperately to whip up absolutist support by misrepresenting and "emotionalizing" (what a horrible word!) anything and everything the NRA does. I find it offensive, dishonest and highly objectionable. Please note that I am NOT making a "personal attack" on any individual by saying this: but I invite any interested person to examine the WHOLE court record, including the filings of the case, and decide for themselves who is telling the truth on this one. You know what I find offensive? I find the idea of a supposed 2A expert who doesn't have a clue what the "unorganized militia" are offensive. I find a venerated defender of Second Amendment rights promoting gun registration as "reasonable" offensive. It's not reasonable. It's unconstitutional. And I find the "shoot the messenger" mentality of "It must be KABA's dislike for the NRA" offensive.

Angel didn't write this article. Roy Lucas - widely considered the most astute and brilliant constitutional mind in the country - wrote the analysis of the transcript. I respect his analysis quite a bit more than the "NRA and their exhalted staff can never be wrong" mentality.

This isn't about baby steps in gradually getting DC residents' rights back. It's an NRA attorney crawling in front of a judge, begging for only slightly less unconstitutional restrictions, failing to present coherent arguments and cases that could have been presented and agreeing that government has the right to impose "reasonable restrictions" on a basic human right!

You can make all the excuses you want. Halbrook's so-called "defense" of the Second Amendment is detrimental to the gun rights movement in every way imaginable. This isn't Angel's fault. This isn't my fault. And this isn't KABA's fault. It's Halbrook's.

[Preacherman]

Like I said, Nicki... I challenge any interested person to read the filings and transcripts of this case for themselves, and make an informed decision on whether Holbrook and the NRA are supporting registration, or simply seeking to have an existing register re-opened (as a first step toward liberalizing the whole gun-ownership deal in DC). I have taken the trouble to do this. I'm not responding emotionally, or out of dislike for any individual or organization. I simply believe that the FACTS do NOT back up KABA's claims. I invite all THR members to do the research and see for themselves, and then make up their own minds.

Folks, PLEASE beware of ANYONE who uses emotional arguments instead of facts to bolster their positions. We're all (rightly) outraged when Sarah Brady and their ilk produce the old, tired argument that "It's for the CHIIIIILLDREN!" :fire: Let's not make the same mistake when our own side uses similar emotional arguments... otherwise we'll be hoist with our own petard.

[Tempest]

If you have read the entire transcript, which of Roy Lucas' comments do you find erroneous or false in any way? Care to enlighten us?

And why shouldn't we respond emotionally? Halbrook is sabotaging the Second Amendment - either out of incompetence or compromise - and we're supposed to sit idly by and smile? Nope. Sorry.

[KMKeller]

Folks, PLEASE beware of ANYONE who uses emotional arguments instead of facts to bolster their positions. We're all (rightly) outraged when Sarah Brady and their ilk produce the old, tired argument that "It's for the CHIIIIILLDREN!" Let's not make the same mistake when our own side uses similar emotional arguments... otherwise we'll be hoist with our own petard.


You're comparing KABA to the Brady Bunch?!?

[Preacherman]

No, I've made no such comparison. If you wish to draw such an inference from what I said, that's your privilege - but I think the words I used speak for themselves. No comparison was made between any organizations or individuals.

Again, I appeal to all our members... let's be rational, logical and analytical in our approach. Emotional responses do NOT serve us well, and never will. Emotions don't go over well in court, either, when we have to argue cases in the face of law, logic and Constitutional issues.

In Africa, we have a saying: "How do you eat an elephant? Mouthful by mouthful!" In the court case under discussion, the NRA is trying to use the "mouthful by mouthful" approach, as I understand it. DC has enforced a registry of firearms (which I agree is unconstitutional) for many, many years. The first step they're taking is to have the (currently closed) handgun register re-opened. After that is accomplished, the question of whether the register itself is Constitutional or not can be re-examined.

The latter question, by the way, is a VERY hotly debated issue. Constitutional challenges to other handgun/firearm registers (e.g. Chicago, New York, etc.) have FAILED in court - the judicial system has consistently ruled that registration does not constitute infringement of a right. We all know that registration can lead to confiscation - witness those who registered their AR15's, etc. in California (with a promise that these weapons would NOT be banned), only to find them banned a short while later! However, getting rid of registration is going to be very difficult, if not impossible, through the courts. It'll probably take nationally overriding legislation to do so.

[Tempest]

Preacherman, would you mind answering the question? Which parts of Mr. Lucas' analysis do you find false or "emotionalist" and can you counter them with your version of the truth please?

[madmike]

With all due respect to Bartholemew and Preacherman....


IF they win this (and I agree the judge is NOT hostile. He's saying, "Give me something to work with and I'll hear your case." Not friendly, perhaps, but not hostile), the end result will be, "Yes, you can have guns, as long as they are registered." THAT will be the new precedent. If they lose...the existing registration will be upheld as valid. And that ^$$hole Kopel has the nerve to argue about "bad cases" to take to court?

This is the same incremental approach the NRA used to defeat NFA 1934, GCA 1968, AWB 1994...oh, wait, did they LOSE those?

When someone starts mindlessly DEFENDING the NRA against gross incompetence, one has to wonder what THEIR true motive is? Need some more sand to cover your heads with?

I've loudly disagreed with Angel on dozens of occasions. But he, and Nicki, and Mr Lucas, and others are bang on the nail on this one.

For reference: do you know WHY Wade lost Roe v Wade? Wade wanted abortions to be prohibited after (IIRC) the 12th week.

Court's response: "Why twelve weeks? Why not eleven or thirteen?"

"We don't know, you're honor."

Bang. Gavel drops.

Halbrook is doing the same thing. "It's a right, but it can be restricted to several classes of people, regulated and licensed, and the government can legally do that."

"And the government has done that, by allowing them to register shotguns and rifles. Not pistols except in certain cases."

Bang. Gavel drops.

Halbrook has, in no uncertain terms, #$^&* the dog on this. He is CLEARLY unprepared, since he can't quote the relevant EXISTING law to support his position--which any "Second Amendment expert," or even most of the membership of THR can quote from memory.

I showed this to three lawyers last night, all very pro-gun, all used to trials. The concurrence is that Halbrook needs to stick to writing researched briefs. He's an unarmed man in a battle of wits.

Name ANY incremental win of civil rights? First Amendment was depictions of anal sex in the Kama Sutra. Black rights was using "prohibited" white only places and facilities in violation of the law. They didn't argue for water fountains now, while conceding bathrooms as segregated, then try bathrooms, conceding schools...

You win by DEMANDING, not whining and conceding.

HE HAS CONCEDED THE GOV'T HAS A RIGHT TO REGISTER WEAPONS. Please tell me how this is a good thing? They conceded it in 1934 (hell, didn't even fight it), conceded registration at the dealer's level in 1968, and are conceding it now. I assume their motives are good. I can also clearly see that they are unprepared for the case.

Once more: YOU WIN CIVIL RIGHTS CASES BY BEING AN EXTREMIST ^$$HOLE. YOU DO NOT WIN BY BEING REASONABLE.


Oh, and " I think this is
unfair as history seems to demonstrate that the incremental approach is the most
effective solution to implementing any political policy."


Bull. Name three examples.

CATO has a case pending on this, last I heard. The NRA filed theirs, roped in Ashcroft, who wasn't a party to the DC ban in '76, thus causing him to have to send an attorney to defend himself. I don't LIKE Ashcroft, but he has said it's an individual right. You want to talk about attacking the messenger? The fed's lawyer wouldn't be _IN_ this if the NRA hadn't flung dirt at them.

"In Seegars et. al. vs Ashcroft The Court found that the government could legally register weapons. Plaintiff didn't argue against it. Clearly, registration is Constitutional."

That is not a "win" in DC. It's a partial reprieve. It's a LOSS for the ENTIRE REST OF THE NATION that doesn't have registration.

Mister Halbrook, please don't help.

[KMKeller]

No, I've made no such comparison. If you wish to draw such an inference from what I said, that's your privilege - but I think the words I used speak for themselves. No comparison was made between any organizations or individuals.

Directly, no. But the inference is there given the topic of conversation and the content of your previous paragraph. Your intent is quite clear and rather distasteful.

[Brett Bellmore]

For all I know the NRA's got this uber-strategy that's as good as guaranteed to win in the end. But, you know, they've got to spend less time assuming that everyone has a moral obligation to go along with whatever the NRA choses to do, and more time explaining what they plan to do, and WHY they intend to do it that way. BEFORE they do it, and outrage people!

And maybe even listen when people raise objections...

With respect to Halbrook's showing, not everybody is good at extemporanious speech. Maybe he's hot stuff when he has a chance to sit down and write stuff out? Like the guy complaining about it did?

[Preacherman]

Preacherman, would you mind answering the question? Which parts of Mr. Lucas' analysis do you find false or "emotionalist" and can you counter them with your version of the truth please?
Nicki, I'm sure no-one here is interested in my (or your) "version of the truth". I will not be posting any of my own interpretations here - instead, as stated before, I invite all interested parties to read the original transcripts and filings, in their entirety, for themselves, and make up their own minds. I have no intention of getting into a "my interpretation is better than yours" contest with you, or anyone else. I trust THR members to be able to make up their own minds - not on the basis of my arguments, or yours, or Holbrook's, or Lucas's, or anyone else's, but on the basis of FACTS that they research FOR THEMSELVES.

[Tempest]

With respect to Halbrook's showing, not everybody is good at extemporanious speech. Maybe he's hot stuff when he has a chance to sit down and write stuff out? Like the guy complaining about it did? Brett, with all due respect, a couple of things:

1 - A constitutional scholar and a self-professed expert on the Second Amendment should know the definition of "unorganized militia" without cue cards.

2 - The Seegars hearing took place last week on 8 October. Roy had this written up in less than a week. How long did Mr. Halbrook have to work up his substandard arguments in this case? And why in the world would he go into a motions hearing so woefully unprepared?

[Tempest]

Nicki, I'm sure no-one here is interested in my (or your) "version of the truth". I will not be posting any of my own interpretations here - instead, as stated before, I invite all interested parties to read the original transcripts and filings, in their entirety, for themselves, and make up their own minds. I have no intention of getting into a "my interpretation is better than yours" contest with you, or anyone else. I trust THR members to be able to make up their own minds - not on the basis of my arguments, or yours, or Holbrook's, or Lucas's, or anyone else's, but on the basis of FACTS that they research FOR THEMSELVES. Wrong, preacherman. I'm interested in your interpretation. You have made some claims in this thread, accusing Angel and KABA of fear mongering and emotionalizing the issue. I'd like to know your reasons - what comments of Mr. Lucas' do just that. Otherwise, I will take your claims for what they very transparently are.

[KMKeller]

I'll second that. You had no reservations about expressing your opinion of KABA and the article which presents us with a rough "defacto" opinion from you. Please do clarify.

[Preacherman]

Madmike, you said:
You win by DEMANDING, not whining and conceding.

HE HAS CONCEDED THE GOV'T HAS A RIGHT TO REGISTER WEAPONS. Please tell me how this is a good thing? They conceded it in 1934 (hell, didn't even fight it), conceded registration at the dealer's level in 1968, and are conceding it now. I assume their motives are good. I can also clearly see that they are unprepared for the case.

Once more: YOU WIN CIVIL RIGHTS CASES BY BEING AN EXTREMIST ^$$HOLE. YOU DO NOT WIN BY BEING REASONABLE.
Once again, I respectfully (and I do mean respectfully!) point out that judicial precedent overwhelmingly supports the view that firearm registration does NOT equate to infringement of the right to keep and bear arms. I fully agree that this is not the case: but we're not fighting about what you and I agree on - we're facing a situation of established jurisprudence. To override this will either mean a wholesale replacement of our judges with pro-RKBA types, or a nationally-enforced law (which survives the inevitable challenges in the courts - you can bet that Chicago, NYC, et.al. will challenge it) to change (i.e. override) this legal precedent.

Mike, Nicky and others: please understand that we ARE on the same side of the RKBA debate! I support the Second Amendment as fully as you do - in fact, since I was involved in a civil war situation for eighteen years, was repeatedly injured, and had to defend my own life by using lethal force on rather more than one occasion, I daresay I understand the importance of RKBA even more practically than you do! If we disagree on methods, this does not make us enemies.

I don't intend to continue this debate, but I'm not going to be the "bad, overweening moderator" and close this thread down. I merely repeat my invitation to all interested parties to ascertain the facts FOR THEMSELVES, on the basis of documented, original evidence (not the interpretations of any individual or organization), and then decide for themselves.

[madmike]

Oh, and just out of curiosity, do you recall who clobbered the gov't on Roe V. Wade? (Whether you agree with it or not, it was a landmark case against the government.)


A certain Roy Lucas.

Do you really think Halbrook is that good? In light of available evidence?

Hell, _I_ could have responded to the Court's questions better than he did. And I don't even have a law degree.

I just wonder how the NRA is going to spin this if they lose?

But I'm done. I haven't sent them any money in ten years because of crap like this, and, like Snitch and Wussy, they need to die. Not entirely, perhaps, but the loss of a 100,000, 500,000, a million members, until they get the idea we want them to fight. Our opponents aren't reasonable, therefore the letter of the law is our limit. Being "morally superior and reasonable" only works if the public can see it.

Ghandi did it against the Brits. It wouldn't have worked against the Nazis. Which do DC and Sarah Grabby more resemble?

And when cheerleaders will support every idiocy as a brilliant part of a master plan (which apparently will take at least 150 years--it's taken 100+ already), voting against an incumbent scumsucker who posts misleading $50K ads designed to look like official policy in the magazines (I speak of LaQueer) (Apologies to our gay members), which ads cause said cheerleaders to be "Advised" on how to vote by an interested party, there's no point in wasting more time.

AWB will be renewed, registration will become a fact of life, semis be banned, repeaters be limited to three rounds, scopes outlawed, and the NRA will continue to tell us how it's "fighting a good fight and needs your money" and how "we're winning the fight and need your money" and "at a crucial point and need your money" so they can pay laQueer's $450K a year salary.

Him AND the Halbrook he rode in on.

The NRA should stick to hunting bunnies and target shooting. Until they are prepared to post their prez holding a REAL rifle, not a sportsman's toy, they can get stuffed.

And I don't want to see another article about all the wonderful, hi-tech toys the US Gov't has in the War on (some) Terror and (some) Drugs and (some) Guns...hi-tech toys that you and I are not allowed to own. It's insulting. I burned that issue. "Hey, look at all these neat guns you can't have!"

Gee, thanks, NRA.:rolleyes:

[madmike]

Preacherman, you're not my enemy. But I do think you're too forgiving and honest.

This IS going to be used against us, just like Miller. A case the NRA insists is good law.

The judiciary thinks it's good law, too. Every time they quote it against us.


Win the battle, lose the war.

[KMKeller]

What bothers me the most Preacherman, is not the opinions that are at play regarding the piece that was written, but that you come in slinging dung at KABA and now seem unwilling to speak to that. You voiced your opinion quite clearly then. Do you retract your statements?

What happened to taking The High Road?

[madmike]

Brett, you're probably right. There's just one problem.

If you intend to step into that arena, you'd BETTER be good at extemporaneous argument in front of a hostile crowd. Or you lose.

And preparation is the key to it.

And please check out Mr. Lucas' credentials before you make snide comments about "having a week to prepare."

Halbrook's had over a year. He's just shown us his best, against a CITY FLUNKY.

[Tempest]

Once again, I respectfully (and I do mean respectfully!) point out that judicial precedent overwhelmingly supports the view that firearm registration does NOT equate to infringement of the right to keep and bear arms. I fully agree that this is not the case: but we're not fighting about what you and I agree on - we're facing a situation of established jurisprudence. To override this will either mean a wholesale replacement of our judges with pro-RKBA types, or a nationally-enforced law (which survives the inevitable challenges in the courts - you can bet that Chicago, NYC, et.al. will challenge it) to change (i.e. override) this legal precedent. Judicial precedent overwhelmingly relies on the Miller decision for this particular view. Now, what do you think would be a sounder strategy: Getting Miller overturned (Something Silveira addresses very well), or arguing that just a little infringement is OK, setting a definitive negative precedent?



Mike, Nicky and others: please understand that we ARE on the same side of the RKBA debate! I support the Second Amendment as fully as you do - in fact, since I was involved in a civil war situation for eighteen years, was repeatedly injured, and had to defend my own life by using lethal force on rather more than one occasion, I daresay I understand the importance of RKBA even more practically than you do! If we disagree on methods, this does not make us enemies. Then I respectfully suggest you stop acting like one. I daresay I understand the importance of RKBA quite well, having been born and raised in the former Soviet Union. I also dare say that attacking KABA and Angel for pointing out obvious errors, flaws and compromises in this particular case does not help anyone in the situation. In order to be effective fighters for our cause, we must be able to criticize our own and call them on it when they are wrong. Roy Lucas did just that. Respectfully, without emotionalism, relying on his VAST knowledge of jurisprudence. You, preacherman, went on the offensive, claimed that KABA and Angel somehow were fostering emotionalism and divisiveness in our movement and then refused to point out which portions of the annotated transcripts did so.

I don't intend to continue this debate, but I'm not going to be the "bad, overweening moderator" and close this thread down. I appreciate that. This thread is crucial.



I merely repeat my invitation to all interested parties to ascertain the facts FOR THEMSELVES, on the basis of documented, original evidence (not the interpretations of any individual or organization), and then decide for themselves. What is stopping the intelligent, interested parties on THR from reading and judging for themselves AND getting an answer to the question I posed to you? If you are going to attack a fellow RKBA activist, at least please state objective reasons for doing so.

[boyd425]

If you believe that nothing short of pure and absolute Individual Right to Keep and Bear Arms yesterday is the minimum acceptable legal standard then what are you doing here? You do not have that in the United States (arguably Texas is close, but the LEO arresting you as you saunter thru Downtown austin with your M16 might differ).
AFAIK that is the llegal reality of the US today. It seems to me like a lot of peoples typing doesn't reflect that, a lot of folks are saying that any incremental improvement that doesn't immediately move the existing legal system to absolute unrestricted IRKBA is an unacceptable support of the destruction of our rights. And that's just fine, if you believe that incremental change is unacceptable you should certainly express that. But I rather object to people painting verbal picture of folks who do support incremental change as unprincipled. The rhetoric going around is that Halbrook is, essentially, -evil-. And it's done in such an -emotional- way as to drown out any talk of people who are actually do act evily from the perspective of our issue (Schumer, Feinstein, Brady et al). If you guys believe the reason of your arguments then you don't -need- all of the emotional decoration your loading it with.
If you assembled a group of residents in the District of Columbia (that's what we're talking about here folks; DC) and asked them if they would like to be able to own handguns that had been registered what do you think they're gonna say? We didn't get into the mess in one giant step, it doesn't seem likely to me that we'll climb out of it in only one step. All of this is my personal opinion. Boyd Kneeland

[Tempest]

If you believe that nothing short of pure and absolute Individual Right to Keep and Bear Arms yesterday is the minimum acceptable legal standard then what are you doing here? Fighting for the right thing.

AFAIK that is the llegal reality of the US today. Is it a reality incapable of being changed?



a lot of folks are saying that any incremental improvement that doesn't immediately move the existing legal system to absolute unrestricted IRKBA is an unacceptable support of the destruction of our rights. And that's just fine, if you believe that incremental change is unacceptable you should certainly express that. But I rather object to people painting verbal picture of folks who do support incremental change as unprincipled. Wrong. What we are saying is that this isn't an improvement - incremental or otherwise. The NRA has spoken out against registration numerous times. And yet, here is their lead attorney saying registration is an acceptable restriction on RKBA. This sets a destructive precedent for our cause. Period. And yes, it is unprincipled.

If you assembled a group of residents in the District of Columbia (that's what we're talking about here folks; DC) and asked them if they would like to be able to own handguns that had been registered what do you think they're gonna say? We didn't get into the mess in one giant step, it doesn't seem likely to me that we'll climb out of it in only one step. All of this is my personal opinion. Boyd Kneeland A bizarrely unconstitutional step for DC, and a major screwing for the RKBA. The ends DO NOT justify the means here.

[Wildalaska]

Well now that I got my milk and cookies, let me note to Preach, as always, I agree with you....

In the big battle, the extemeists on both sides are gonna lose. Both sides.

And as a result, we are gonna have a US where the 2nd am is an idividual right, subject to reasonable regulation that passes contitutional muster. And cry and whine as Sarah Brady and Angel Shamaya might, you are gonna see essetnially the same system we have today with the de facto bans such as NYC and DC and Calif have (ie registration prior to posession or outright prohibtion) being declared constituional. Felona and prohibted persons still wont be able to own, Instant Checks will continue and any place that wants to ban concealed wreapons can.

That being said, anyone who thinks that oral argument makes a whit of difference to a Court hasnt argued many cases before a Court.

WildandnoIveneverbeenhigherthanthe2ndcirAlaska

[Tempest]

And as a result, we are gonna have a US where the 2nd am is an idividual right, subject to reasonable regulation that passes contitutional muster. And cry and whine as Sarah Brady and Angel Shamaya might, you are gonna see essetnially the same system we have today with the de facto bans such as NYC and DC and Calif have (ie registration prior to posession or outright prohibtion) being declared constituional. Felona and prohibted persons still wont be able to own, Instant Checks will continue and any place that wants to ban concealed wreapons can. I guess it's a good thing that some of us are willing to fight for what's right.

[Wildalaska]

I guess it's a good thing that some of us are willing to fight for what's right.

Right is relative, Sarah Brady fights for whats right too.

[KMKeller]

Wildalaska says:

"...anyone who thinks that oral argument makes a whit of difference
to a Court hasnt argued many cases before a Court."

Perhaps you haven't looked at the credentials of the man
who annotated Mr. Halbrook's oral arguments. His name is Roy Lucas.
http://KeepAndBearArms.com/lucas/roy.asp
He's won in the Supreme Court, eleven of twelve Circuit courts and
nine (9) State Supreme Courts.

The oral argument -- and lack thereof -- does indeed matter.

That you think using the Second Amendment to demand handgun
registration is a step in the right direction surprises me.

[boyd425]

"Wrong. What we are saying is that this isn't an improvement - incremental or otherwise. "

Nicki, citizens in Washington DC are not currently allowed to own handguns.

[Tempest]

Right is relative, Sarah Brady fights for whats right too. Right is objective and absolute.

[Tempest]

Nicki, citizens in Washington DC are not currently allowed to own handguns. What exactly is your point? That registering them like criminals and screwing the RKBA movement is an improvement for the "privilege" of owning their own property? I disagree.

[OF]

Right is relative, Sarah Brady fights for whats right too.What are you kidding? Arguing for the sake of arguing?

- Gabe

[Art Eatman]

Maybe I'm misunderstanding, but it seems to me that the issue at hand is whether it's better for a DCer to not have a handgun outside of criminal status, or to legally have one that's registered.

Right now, the DC governing body won't allow you to register a handgun. Therefore you are a crook if you have one.

So far, no court has ruled against registration at a state or municipal level, right? "Registration is not infringement" has been the idea?

So the NRA is trying to get the DC closure of registration reopened such that law-abiding folks can arm themselves for self-defense.

Seems to me that until such time that Congress passes some law to the effect that "no political subdivision of the US shall register any firearm" the course the NRA is following is the only one that can be effective in arming the citizenry in DC.

Me, I don't think those folks in DC are better off unarmed than registered. Seems to me that that's the reality of the situation.

I'm no political activist. My life has gone in other directions. However, I have been around all this pro-gun/anti-gun stuff for over 35 years, and I like to think I have a handle on political realities, regardless of what I think is right. I'd be happy as a pig in a corn crib if we got a world as Angel and Neal Knox and others would like.

It ain't gonna happen. Not until "our" people are big Hollywood producers and script writers; not until "our" people own newspaper chains and TV stations...And not until we have the money to create and hire a few hundred attorneys like Mr. Lucas and file a hundred and eleventeen lawsuits around the country.

Oh, I forgot: Replace most federal judges, while you're at it. For every "Emerson" there are bunches of decisions going the other way.

I'm sure not saying don't fight the SOBs, but it sure doesn't help to do all this squabbling that goes on inside the RKBA community.

Sorry aout the length...

Art

[KMKeller]

Art,

The biggest concern is supporting registration period. If the NRA goes on record as supporting ANY registration scheme, you better start writing down your serial numbers, cause it's not going to be long before they're working on a national scheme. To give them this one bit, hurts us all more than we can imagine at this point, unintended consequences if ever there were any. Once they are on the legal record supporting registration in any form, they have, at that point, established the foothold for more far reaching registration schemes.

You wanna try to get that overturned down the road after the NRA is on record arguing for it? No chance. Think the NRA will fight more far reaching registration schemes after that? No chance.

[atek3]

When the NAACP used gradualism in the thirties, forties, and fifties, leading up to Brown vs. BoE, I don't remember them ever admitting that "of course blacks can be subject to reasonable government discrimination." By conceding that guns are subject to reasonable regulation (including registration), even in a totalitarian hellhole like DC, we shoot ourselves in the foot. By giving our opponents the moral high ground while trying to snag the low hanging fruit (DC gun ban) we make it nearly impossible to grab higher fruit (GCA 68). I don't see how any good can come out of a court decision that decides "registration is constitutional but an outright ban is not." Do you think the ban on new machine guns would be overturned? I think not.

atek3

[Preacherman]

Again, I think we're losing sight of the point here. The NRA is NOT arguing for gun registration - they're asking for an existing, closed handgun register in Washington DC to be opened to new registration, so that DC residents may have the right to own a handgun. The constitutionality of the register is not at issue here - only the fact that it's been closed.

And, again, for those who haven't got it yet, our court system has ruled, repeatedly and in various different local, State and Federal jurisdictions, that registration of firearms does not amount to an infringement of the Second Amendment. I don't agree with this position, as I'm sure most of us here disagree with it, but it remains a fact of life. Unless and until this legal precedent is overturned, either by a Supreme Court decision (which I don't foresee) or a Federal law overriding local legislation such as NYC's Sullivan regulations (which I think is even less likely), we're stuck with registration in various jurisdictions.

[KMKeller]

And, again, for those who haven't got it yet, our court system has ruled, repeatedly and in various different local, State and Federal jurisdictions, that registration of firearms does not amount to an infringement of the Second Amendment. I don't agree with this position, as I'm sure most of us here disagree with it, but it remains a fact of life. Unless and until this legal precedent is overturned, either by a Supreme Court decision (which I don't foresee) or a Federal law overriding local legislation such as NYC's Sullivan regulations (which I think is even less likely), we're stuck with registration in various jurisdictions.


And if we can force registration in DC, why not the nation? How is asking to reinstate a defunct or closed registry not supporting registration?

[boyd425]

Nicki, you previously argued that the facts are the only thing you stand on here and then you typed:
"quote:
--------------------------------------------------------------------------------
Nicki, citizens in Washington DC are not currently allowed to own handguns.
--------------------------------------------------------------------------------

What exactly is your point? That registering them like criminals and screwing the RKBA movement is an improvement for the "privilege" of owning their own property? I disagree.
__________________
Nicki
"

That's a personal insult, and there's no need for it. We were having a conversation about incrementalism. Let's stick to facts. I made the point that incrementalism is how our enemies got Washington DC to the point where people can't legally possess a gun in order to defend their own lives. I did NOT express any opinion about registration in DC. What I clearly said, is that if you got a group of DC citizens (who have no option now to legally own a handgun) and asked -them- if they want to continue as is or have the option to own a registered handgun, their answer would be perfectly obvious.
Hope your day improves (All IMO) Boyd Kneeland

[Bartholomew Roberts]

This is the same incremental approach the NRA used to defeat NFA 1934, GCA 1968, AWB 1994...oh, wait, did they LOSE those?

I guess we will know on September 15, 2004 eh? Call me silly; but I was under the impression we were still fighting - not that we had already lost.

Incremental restoration of civil rights example? Concealed carry.

[boyd425]

KMKeller said:
"And if we can force registration in DC, why not the nation?"

The point is that the slippery slope you are obliquely warning us about here goes BOTH ways. If our opponents can use it to to ratchet us from GCA68 to where we are now, then we can use it to ratchet the country from 4 or 5 states with shall issue CCW to 45. We've done that and it's not stopping there. We're not going to be only adding new CCW states we will push the countries perspective to a point where everyone will one day think it's silly not to have Vermont style carry (Alaska's better) everywhere.
BUT do we fight and lob emotion-grenades at each other in online forums as if our different approaches are e v i l (mike meyers voice) or do we work alongside each other to incrementally push BACK this regulation in the same way that our opponents have pushed it forward?
The very way you worded that, could be taken by incrementalists on your side as you saying that people wanting an incremental improvement in RKBA for DC are against gun rights. And you can believe that if you want to but do we all have to resort to the level of emotion that's getting lobbed around here? The people fighting for what they see as a slight improvement in DC (we can at least agree that an increase in guns amongst the law abiding would save lives, right?) are not e v i l. Halbrook is NOT Dianne Feinstein. All IMO
Boyd Kneeland

[KMKeller]

So you're willing to sacrifice the many to benefit the few Boyd?

[Sergeant Bob]

I'm against handgun registration but, how many of those arguing against registration in D.C. (which would restore their right to own guns) will argue in support of CCW (which I'm not real fond of either)? Aren't they basically the same thing? One is registration of the individual gun, the other is registration of the individual. Either way you have to get permission from the government to exercise a Constitutional right.

[KMKeller]

Good point Sarge. What some view as incremental success in CCW can also be construed as incremental registration.

[Art Eatman]

KMKeller, you're getting me confused, here, with "And if we can force registration in DC, why not the nation? How is asking to reinstate a defunct or closed registry not supporting registration?"

Don't they already have registration in DC? How are "we" forcing it?

It seems to me that what's being sought is that the DC government abide by its own registration rules--which I thought already existed. A case of "OK, you wanted and got registration; now, register!" It makes for election campaign stuff: "This present mayor would rather see you dead than have a registered handgun! Even a REGISTERED handgun!"

The fight against a requirement for national registry is the same place it has been since forty forevers ago: In the Congress, via the ballot and campaign contributions and lobbying.

The defacto registration which appears to now be occurring might be fought by court action, insofar as BATF or FBI with the NICS check data and/or yellow-sheet information, to try to get them to abide by existing law. That would seem to me to be winnable.

'Rat

[KMKeller]

Don't worry Art, I confuse myself most of the time.

My point is that supporting any registration scheme is wrong, regardless of whether or not it existed previously. Once the legal precedent is established and with the NRA's rubber stamp, the door is open for national registration schemes. I was playing "devil's advocate" with the "And if we can force registration in DC, why not the nation" post.

[gun-fucious]

Date sent: Mon, 13 Oct 2003 23:08:50 -0400
Gentlemen:

Our strategy is to encourage the court to recognize the Second Amendment as
an individual right and to declare the D.C. handgun ban unconstitutional, so
that residents who are daily threatened by criminal violence may keep handguns
in their homes to defend themselves. That's just the first step. If we can
persuade the court to invalidate the gun ban, I certainly foresee taking the
next step of attacking the registration of firearms as being in violation of the
Second Amendment.

Stephen P. Halbrook
Attorney at Law


Handguns are absolutely banned in the District of Columbia. Before 1976,
citizens could possess registered handguns. D.C. law required all firearms to be
registered, but that year a law was passed prohibiting the registration of
handguns, thereby completely banning them. Our lawsuit, Seegars v. Ashcroft,
seeks to allow D.C. residents once again lawfully to possess handguns.

Our clients actually live in the District of Columbia and are confronted by
criminals of all kinds in their neighborhoods. For them, it would be major
progress to be able to keep a handgun in the home, even if it must be registered.
Arm-chair critics may wish to litigate every gun control law on the books in
one case, but it's not realistic litigation strategy.

Our strategy is a narrowly-focused effort to encourage the court to recognize
the Second Amendment as an individual right and to declare the D.C. handgun
ban unconstitutional, so that residents who are daily threatened by criminal
violence may keep handguns in their homes to defend themselves. To a
defenseless people, the ability merely to possess a handgun would be a giant step
forward. But it's just the first step. If we can persuade the court to invalidate
the gun ban, the next logical step will be attacking the registration of
firearms as a violation of the Second Amendment.

This strategy is similar to that used by the NAACP in the decades leading up
to the Brown v. Board of Education decision in 1954. They didn't go into
court trying to overturn all Jim Crow laws at once, and instead picked one
specific blatantly offensive part of the law for each case that actually had a chance
to be struck down, and then they used that decision in subsequent cases to
bolster further arguments.

NRA supports this litigation as part of a broader strategy to restore Second
Amendment rights to D.C. citizens. Bills have been introduced in both the
Senate and the House to repeal not just the handgun ban, but also the requirement
that all firearms be registered. The goal is the complete restoration of
Second Amendment rights, and NRA will continue vigorously to pursue this
objective in the courts and in the Congress.

Stephen P. Halbrook
Attorney at Law
10560 Main St., Suite 404
Fairfax, VA 22030

[boyd425]

KMKeller asks" So you're willing to sacrifice the many to benefit the few Boyd?"

No. Thanks for asking.

[Tempest]

Excuse me, Boyd, but where and how have I insulted you? By disagreeing with you? By asking you what your point was? If you want to deal in facts, deal in facts, but don't claim insult where there was none.

I made the point that incrementalism is how our enemies got Washington DC to the point where people can't legally possess a gun in order to defend their own lives. That is correct, and that's how they will push registration down our throats - one case at a time.

What I clearly said, is that if you got a group of DC citizens (who have no option now to legally own a handgun) and asked -them- if they want to continue as is or have the option to own a registered handgun, their answer would be perfectly obvious. And my reply was that this is what they may want, but it will be at the expense of the rest of the country.

[Waitone]

Finally someone had the common sense to determine what Halbrook was up to.

I enjoy THR. I like the principaled argumentation. I enjoy the polite give and take.

What this thread has shown me is the danger of reading and jumping to conclusions particularly about something as technical as consititutional law. I would not know anything about how cases are argued before the court any more than I know the folliage on Mars. I therefore do not like to criticize efforts to to argue cases before the supreme court BECAUSE I DON'T KNOW WHAT I'M DOING. I say that because I know one fact. Law and logic are quite often mutually exclusive.

Carpenters say, "Measure twice, cut once."

Maybe THF'ers should say, "Think twice, jump once."

I consider this to be one of the more inauspicious threads I've read. We can do better.

[Cosmoline]

Folkks, this was ORAL ARGUMENT. To bitch and moan that counsel didn't cite xyz case or engage in a lengthy dissertation misses the point. Those issues are supposed to be dealt with in the briefs. Oral argument is nasty, brutish and short. As soon as you start citing cases, the court is likely to cut you off. Moreover, it's absurd to expect him to take a "purist" approach to the Second Amendment. As the attorney indicated, the question before the court was regarding the applications of certain DC residents. Broader issues of whether any regulation is possible were not at issue. It would have been idiocy to press those matters, especially in front of an anti-gun judge. You take one case at a time. Issues beyond that case should never come into that case. That's the way the system works. So if your clients just want a permit to own a firearm, and challenging the outright ban is the best way to do it, you don't try to fight the question of whether any gun control is permissible. You cede the point arguendo. That's how it works.

[boyd425]

"Once the legal precedent is established and with the NRA's rubber stamp, the door is open for national registration schemes. "

Is obvious and clear illogic.
1) It's vague. "The Door" Doesn't mean anything here, we are talking about an oral argument that's a tiny part of the prelude to a huge case
2) It's as flippant as a remarkable amount of the emotional flotsam bobbing around here today. "Rubber stamp" isn't something the NRA has the -power- to do, they made an argument... (see above). It seems to me that this statement is designed to make it appear that NRA has exercised some mystical power to change legal precedent across the nation (even though we are talking about one org in -one- circuit) to harm your rights.
3) It's wrong- you and I vote in lower court judges and we vote in the people who appoint higher judges. The Attorney General has stated that it is the policy of this administration (policy makers we can keep in power) that the second amendment is an individual right. And, as much as judicial activists hate it, the legislatures and Congress (wich you and I elect) -still- write the law. I don't like the democratic trends in our country, but arguing that this one argument by this one org in this one circuit would lead to national gun registration is not reasonable. All IMO. Boyd Kneeland

[Cosmoline]

And nobody is going to use counsel's comments or arguments in this case to claim that the NRA supports registration. That's absurd. Many here are confusing POLITICAL arguments with LEGAL arguments. That's a mistake. Legal arguments, esp. those made during the give-and-take of oral argument, may well run counter to the POLITICAL position of the advocate's support group.

[JohnBT]

"Maybe THF'ers should say, "Think twice, jump once." "

That's right. Amen.

JT

[Jeeper]

Nothing funnier than a bunch of people, most of whom know absolutely anything about litigation, arguing about how someone should litigate. Look at Halbrooks resume. I would contend that it is rather impressive.

[boyd425]

Yes, a few of us could benefit from scanning "Supreme Court Gun Cases" The man (along with Korwin and Kopel) wrote the book. Literally.

I won't even mention that you can buy the book from Second Amendment Foundation at www.saf.org or calling 425.454.7012. No sir ; ) not gonna mention it. All of this is my opinion only and not the opinion of my employer; The Second Amendment Foundation. Boyd Kneeland

[Jeeper]

I bought it at the SAF conference a few weeks ago. Had Korwin and Kopel sign it also. Now I just need Halbrook to sign it.

[Al Norris]

Once again, the "all or nothing crowd" raises its voice to advance a position that is just not practical.

It's a convenient way to vent. But that's about all it is. People really need to get involved, at least on the local level, to see how things really work. Become the next city council member, county commissioner, whatever and see what's involved in this struggle. It may just open your eyes and your brain.

One thing that seems to be lacking is an understanding that DC is a very special place. It is not a State, nor a county. It is a city that is actually controlled by the Congress. The Mayor, the city council, the police, in short, everyone, serves at the pleasure of the Congress. With the stroke of a pen, Congress can dissolve any of DC's services or political subdivisions. What happens there affects no other political entity outside of DC.

One would think that of all places in this country, DC would be that one place where the constitutional protections of our rights would most be in force. But it isn't.

By dealing with what is, and not with how it should be, you might find your efforts may actually effect the changes you seek.

[KMKeller]

Ah! I see the pompous hordes have arrived! So much for The High Road.

Cosmoline - You make some good arguments about the oral side of this, but his line of argument follows his stated litigation strategy And nobody is going to use counsel's comments or arguments in this case to claim that the NRA supports registration. That's absurd. Many here are confusing POLITICAL arguments with LEGAL arguments. That's a mistake. Legal arguments, esp. those made during the give-and-take of oral argument, may well run counter to the POLITICAL position of the advocate's support group. It's absurd to think that they wouldn't, especially when Mr. Halbrook has stated that reinstating the registration scheme is exactly what he intends to do, just so he can challenge it's legality.

Jeeper -
Nothing funnier than a bunch of people, most of whom know absolutely anything about litigation, arguing about how someone should litigate. Look at Halbrooks resume. I would contend that it is rather impressive.

Funny it is, when the person who wrote the opinion we were trying to discuss, Roy Lucas has a resume that is equally if not more impressive than Mr. Halbrook's. You think you know more about litigation and litigation strategy than he? [/QUOTE]

Al Norris -
Once again, the "all or nothing crowd" raises its voice to advance a position that is just not practical. Once again, the NRA apologist crowd comes forward to support a position that gradually gives away our rights. DC is indeed a special place where the local government is controlled by a bunch of gun banning looney toons. Do you honestly think that they will be able to effect the changes incrementally in that environment? You're far more hopeful than I.

Boyd425-
You're not making a whole lot of sense.

In spite of what's been said here, it remains that NRA fighting for the re-instating of a gun registration scheme constitutes defacto support for registration should they win. The antis WILL use it and the courts will cite it as legal precedent. It's foolish to think that they will not. Halbrook has stated that this is exactly what he intends to do. So he wins and gets the registry re-instated, but fails on getting it declared unconstitutional. What is the end result? Legal precedent that registration is valid and constitutional. How is this not detrimental?

[Jeeper]

Funny it is, when the person who wrote the opinion we were trying to discuss, Roy Lucas has a resume that is equally if not more impressive than Mr. Halbrook's. You think you know more about litigation and litigation strategy than he?

Did I say anything about Mr. Lucas.... Nope! He is a very well respected lawyer. So is Halbrook. It is just very funny to me when people with no legal experience are criticizing the strategy of a man who has won every case he has argued at the Supreme Court. Commenting on an article is one thing. Saying someone is an idiot is another. Nothing funnier that watching a bunch of internet scholars debate life!

[KMKeller]

When did I ever refer to Halbrook as an idiot?

people with no legal experience

You've said that twice now... let me guess, you're a lawyer!

Why have you contributed only derision? You've offered nothing of value in this discussion that is pertinent to the discussion. Rather, you jump on the end of the thread waxing pompous as if you did something special.

[Al Norris]

KMKeller decided to comment:
Once again, the NRA apologist crowd comes forward to support a position that gradually gives away our rights.
You couldn't be more wrong. I've never been a member of the NRA. In fact, I find many of their political positions simply untenable. But never let it be said that reasonable people can be swayed by fact when emotional labels are so handy!
DC is indeed a special place where the local government is controlled by a bunch of gun banning looney toons.
Ahhhh... You are referring to the Congress, no doubt? WHat exactly is looney toons about consolidating a power base? All governments do this. Ours is no exception.
Do you honestly think that they will be able to effect the changes incrementally in that environment? You're far more hopeful than I.
Actually I do. Hope that is. It's an Inherently Catholic Thing(tm), you see.

Besides, you seem to forget that should either the Hatch bill or the one in the House be passed, it will make this lawsuit and the CATO lawsuit moot. Hopeless? Hardly.

[KMKeller]

Al, I believe it was you who spoke to the "all or nothing crowd"? Nothing like an emotional label eh?

Poor deluded soul...

About time for this thread to be locked down isn't it?

[Preacherman]

In spite of what's been said here, it remains that NRA fighting for the re-instating of a gun registration scheme constitutes defacto support for registration should they win. The antis WILL use it and the courts will cite it as legal precedent. It's foolish to think that they will not. Halbrook has stated that this is exactly what he intends to do. So he wins and gets the registry re-instated, but fails on getting it declared unconstitutional. What is the end result? Legal precedent that registration is valid and constitutional. How is this not detrimental?
KMKeller, I'm afraid you have completely missed the point of my - and others' - earlier posts. There is ALREADY abundant "legal precedent that registration is valid and constitutional"! This case will make not one iota of difference to that. To state that Holbrook is putting RKBA in danger by re-opening the register is just silly, I'm afraid. The legal and juridical reality we face is that registration has been (repeatedly) found to be Constitutionally valid, in New York, Chicago, Washington DC, and other places, by local, State and Federal judges. That's a given, it's a fact, and there is no denying it. We - certainly I - might think that this position is incorrect, but that's the way it is, and it is NOT about to change.

[KMKeller]

No Preacherman, I didn't miss that and neither did Tempest or anyone else. It's you who is missing the point. When has the NRA actually done something to support registration? Hmmm. You don't see the inherent danger in that? You don't see the danger in the standard NRA incremental approach that has done so very much for us over the years. You don't consider the NRA getting in bed with the Brady Bunch on a subject very closely related to this somewhat telling?

And I'm still waiting on your response to my earlier questions as is Tempest. Or did you tire of bashing KABA and Angel when you know he's not here to defend himself? Perhaps Angel should adopt your "High Road" and spew a lot of dung about you and THR on his website.

You above all should know better. Your opinion?

[Preacherman]

KMKeller, I gave my answer waaay back on this thread, when I said (in response to Nicki):
I'm sure no-one here is interested in my (or your) "version of the truth". I will not be posting any of my own interpretations here - instead, as stated before, I invite all interested parties to read the original transcripts and filings, in their entirety, for themselves, and make up their own minds. I have no intention of getting into a "my interpretation is better than yours" contest with you, or anyone else.
As for "spewing dung" - no, I don't think I've done that, nor will I ever do so. I think that my posts don't come even remotely close to that, as any fair and impartial reading of them will attest.

I think we need to take the emotional, knee-jerk response out of this thread, and consider facts and truth - not an emotional attack on the NRA and Mr. Holbrook resulting from a misinterpretation of the basic facts and issues in the legal action in question.

I shall continue to take The High Road in trying to draw attention to these facts and issues, and get away from the emotional and inaccurate responses propagated on the KABA Web site. In doing so, I shall not launch - or respond to - personal attacks on (or from) anyone. I'll let our members make up their own minds.

[KMKeller]

Your cop out was duly noted and rejected. As far as spewing dung, do these words ring a bell?

I'm afraid (and yes, Nicki, here we go again!) that KABA is trying desperately to whip up absolutist support by misrepresenting and "emotionalizing" (what a horrible word!) anything and everything the NRA does. I personally find their approach offensive, dishonest and highly objectionable. Please note that I am NOT making a "personal attack" on any individual by saying this: but I invite any interested person to examine the WHOLE court record, including the filings of the case, and decide for themselves who is telling the truth on this one.

Or are they the model of objectivity? I think not. And not surprisingly, neither Tempest or myself responded emotionally, but were labeled as such by persons such as yourself.

[Art Eatman]

Hokay. We got the KMKeller view that getting DC to reopen their registration system is providing a position for the future where it can be said that the NRA supports registration.

We have another view that this is not the case; that it's merely forcing the DC PTB to allow self-defense under a system of registration that courts have said does not infringe on the 2nd Amendment.

All of us agree that registration is a Bad Thing and is indeed an infringement.

On the first two points, it looks like folks might as well agree to disagree and quit running in circles through the rosebushes. Too many thorns.

"The trouble with wiping your fanny with a wagon wheel is that there ain't no end to it."

Pardon me, Grammaw.

Art

[KMKeller]

I shall not launch - or respond to - personal attacks on (or from) anyone.

Little late for that isn't it Preach? How wonderfully noble of you to sling barbs and then hide behind moral superiority when asked to answer.

[FPrice]

Since some people seem to want to state what Mr. Halbrook believes, I decided that perhaps we should go to the source.

"Dear Mr. Halbrook,

I have read some of your writings on the Second Amendment and related court cases and consider that you are one of the more knowledgeable people involved in this issue. My purpose in writing to you tonight is to ask if might have the time to review an internet discussion which involves you and a recent case.

I am a member of The High Road ( www.thehighroad.org ), an internet forum of firearms enthusiasts. Our discussions run the entire gamut of firearms issues from equipment to hunting to legal and political issues. As you might imagine, legal and political discussions often get intense and cover many current items and cases. A recent thread involved your oral arguements in Seegars vs. Ashcroft in the United States District Court, District of Columbia. Some conclusions were drawn regarding you and your arguements which have become the source of a heated, or at least very intense discussion. The particular thread is located at http://www.thehighroad.org/showthread.php?s=&threadid=44556 . Please note that this thread was begun by a member of the forum and does not represent an official position by the people who run The High Road.

Since the discussion involves you and an analysis of your position on various legal issues surrounding laws and the Second Amendment I am hoping that you might take the time to review this thread and perhaps give us your interpretation of what happened and why. While many of us on The High Road have strong opinions on firearms laws and the Second Amendment, I do not think our membership includes many, if any at all, people who have had the opportunity to argue such laws in front of a court as you have.

I sincerely hope that you will find the time to review this discussion and make some comments on the situation. The perspective of one who is actually in the middle of such proceedings can only serve to add to the knowledge of those of us on the sidelines who watch and try to interpret.
Thank you for your time."

Perhaps Mr. Halbrook will take the time to respond.

[gunsmith]

I was not supporting or disagreeing with Halbrook.
I can not understand how a Judge can be such a dimwit
...The Judge was "leading" Halbrook to come up with
a good argument? really?
THE COURT: YES, BUT IF THE DRAFTERS OF THE BILL OF RIGHTS,
WHEN THEY DRAFTED THE SECOND AMENDMENT,
WANTED TO CREATE AN INDIVIDUAL
RIGHT RESPECTIVE OF THE NEED FOR MILITIA,
THEY COULD HAVE JUST SAID THAT.

THE COURT: ISN'T THE NATIONAL GUARD
THE EQUIVALENT OF WHAT WAS THE OLD MILITIA?

THE COURT: BUT AT THAT TIME THE MILITARY MIGHT
OF THIS NATION HAD NOT BEEN ESTABLISHED, AND, THEREFORE,
IN ORDER FOR THE NATION TO PROTECT ITSELF,
THERE WAS A NEED FOR INDIVIDUAL CITIZENS TO HAVE WEAPONS
SO THAT IN THE EVENT OF AN ATTACK,
THE NATION WOULD BE ABLE TO CALL THOSE PEOPLE TOGETHER AND FORM A
MILITARY THAT WOULD BE ABLE TO PROTECT THE NATION.
BUT THAT'S NOT THE CASE HERE.
I MEAN WE CALL UP THE NATIONAL GUARD ALL THE TIME,
AND WE HAVE GOT A READY AVAILABLE CACHE OF GUNS AND
WEAPONRY AVAILABLE FOR THEM.
:barf:
Come on! you would think with all the stuff written on the 2nd amendment
like maybe the dissenting opinions from the 9th circut or the Emmerson
stuff that the Court could ask better questions then the same old tired
bradybunch propaganda...

God,we need a miracle please!

[Jeeper]

Rather, you jump on the end of the thread waxing pompous as if you did something special

I dont really see the point behind the personal attacks.

Here is my opinion since you asked for it. The NRA suit was nothing more than a way for the NRA to try and control the CATO lawsuit. When that failed they had their lapdog(Orin Hatch) say that the DC ban would be removed. Halbrook and Lucas are great litigators. Both would do a fine job in the Supreme Court. What Halbrook said was in the course of litigaton strategy that I wont contest since I dont know anything about it. The same way I wouldnt tell a doctor how to do surgery or criticize him eventhough I know nothing about medicine.

I think that about covers it.

[LawDog]

Enough. Done. Final.

I have had it. Find somewhere else. Period.

You got a problem with another Member - take it to e-mail.

You decide that you can't debate some facts without getting your panties in a bunch - go somewhere else.

This thread is embarrassing.

Squabbling like a bunch of children.

No, scratch that. Not even children exhibit the desperate need to have their feelings hurt that I see on this thread.

This. One. Is. Done.

You want to re-open it? Fine.

This is the only Goddess-be-damned warning you will get: the next person, or persons to devolve to this level of knee-biting, back-stabbing, whining and mud-slinging that I see on this thread will be gone.

You will find another forum to lay your crank on the line. Period. You'll do it yourself, or I by GOD will do it for you.

Lights out.

:fire:LawDog