Apellee's brief in Parker v. District of Columbia

SBS, AOW, hand cannons & hand mortars

Miller held that it was not within judicial notice that a short barrelled shotgun had a reasonable relationship to a militia arm, basically.

Use of the short barrelled blunder-buss goes back to before Jamestown. It continued through the colonial period. I would point out that Remington, Benelli & Mossberg all produce 'ready for sale' to LE and Military versions of their shotguns which are suited to CQB. NFA guys, this is important.

RC

Thanks for clearing that up. While the law has always appealed to my sense of logic the reality of how it functions these days I view with horror.

I think you give them (DC) to much credit. I think they will play this to the hilt and push on to the SCOTUS if the mayor has any say over it. As all civil rights cases this is not about guns but about power. People in positions of power normally do not react well to direct challenges and tend to get emotional about it and make bad decisions.

Is there anyway to prevent the cases can be prevented from joined with another if it went to SCOTUS? Such an issue could take a lot of air out of the ballon.

Blunderbusses have been around for centuries.

S.Ct. review

The Supreme Court of the United States has almost total control of its own docket. But, good lawyers can avoid (or set) traps sometimes by timing petitions for certiorari or using delaying tactics. For example, normally, anyone claiming to have his Second Amendment rights violated for having been disarmed robbing a bank would get a short look and a quick "no" to a petition for cert. (it's a silly claim); but, were the D.C. case to be there already, the Court might grant cert. to both just to contrast them. That would not necessarily be bad for Heller, but it could result in a much narrower opinion. For example, the Court could use the occasion to extend Miller and justify keeping the right restricted solely to arms competent for militia service (eliminating "pocket pistols"). This would be significantly less than what Heller just won.

Okay, so we could lose pocket pistols under the ruling but get back full size combat pistols.

Could we get Class III weapons back? They are not a part of the suit but are suitable for militias.

"Assault" weapons

Well, I will assume for the moment that Silberman's ruling holds up, in which case, obviously, if there is a glimmer that the National Firearms Act could fall, there is more than a glimmer that outright bans also would be nixed. But, that is very far down the road. In the scenario posited, where the Supreme Court accepts a silly case to make contrasts, the narrowed "anti-pocket-pistol" ruling would extend Miller, not reverse it, and it might become the obligation of a future defendant to make the "standing" connection between whatever he owns that was banned and any right of possession relating to militia service. Again, keep in mind the focus on use of the device: Ask, "What do militias do?" "Helping the sheriff" is a targeted response against specific violators. You don't need a grenade launcher to do that (and neither does the sheriff).

The good news: Absence of judicial notice does not mean the claim is false, just not notoriously true. You always have the right to try to prove your claim, and almost no precedent automatically would foreclose a new case on different facts, a stronger record, &c..

Also, anything said here is restricted solely to the Second Amendment. I have not abandoned my belief that personal rights to self-defense (using, e.g., pocket pistols) or "positive" rights to support one sovereign against another in a constitutional crisis have their locus elsewhere in the Constitution (repeal of the Second Amendment would not affect them, and want of "incorporation" of the amendment may do a state wanting to ban no good).

Don't overlook Silberman's comment on cannons. "Area" weapons and any WMDs are going to be looked at very stringently, especially in a post-9/11 world. But I think a return to the "pay the tax; 'register' the weapon" regimen, or other similar "permit" systems is reasonable -- I recall seeing somewhere that there never has been a "registered" machine gun used in a crime (in 70 years). Also, there could be all sorts of transport regulations attached to moving such items around, plus perhaps even storage rules (e.g., you have to keep it locked in a safe, or even in a public armory).

There are all sorts of regimens other than bans to control these things, so what will courts hold to be "reasonable?" Or "unreasonable" given the alternatives? This thing could go in all sorts of directions.

Robert,

Even then, the restriction's (assuming some were placed) are just statute law, so a simple majority could repeal them.

ie, much like the carry laws weren't overturned on Constitutional grounds in the various states but either looser were just enacted by the legislatures or more-restrictive were repealed the same due to the pro-gun side getting out the vote.

New filings

If anyone with access to the courthouse could post the most recent filings seeking en banc review, such would be appreciated.

A link to it was posted on another thread.

DC En Banc Hearing Petition

Could we get Class III weapons back?

Click to expand...

My guess is that's the prime concern in the DC appeal where they express concern about DC becoming attractive to suits on related fronts.

I have read the petition seeking en banc review.

I long ago stated that I believe a general right to keep and bear arms has its locus in the Ninth Amendment, as well as in the structural protections of the Constitution, rather than in the Second Amendment.

But, locating the general right in the Ninth Amendment, rather than the Second, does not take it out of the Constitution. Rather, it simply shifts the foundation of Judge Silberman's opinion.

The result of the case -- the disposition -- does not change.

The petition seeking en banc review also seeks rebriefing. For me, filing a formal brief would be expensive, and I would prefer just to write a letter to the court, especially at this time.

But, I'll throw that idea out to Bart and others to see what they think re whether such a less formal approach would be accepted. FYI: The letter simply would address why the Second Amendment has the militia clause in it (firearms at the time could not have been regulated pursuant to interstate commerce, since there were no interchangeable parts, and all weapons were custom made for a purchaser on site) and emphasize Judge Silberman's conclusion that the right to keep and bear arms predates the Constitution and long existed independent of it.

I also would add what I think is my unique alternative ground concerning the privileges-and-immunities clause, unless others think such could weaken the overall effect.

Impressing the judges that the right to arms has several origins in the Constitution I think would go a long way toward killing this modern interpretation resting on Demo-donkeyism, that the Constitution allows any infringement of right not actually prohibited, rather than prohibits to Congress those powers not actually allowed.

Let me know, y'all, what you think.

An upfront disclaimer... I read the last couple pages of this thread, but I haven't gone back and read it from the beginning. (Yet.)

Robert Crim, I like your idea, especially that the 9th Amendment provides an individual right to self-defense. I do suspect a formal amicus brief would be much preferred.

(firearms at the time could not have been regulated pursuant to interstate commerce, since there were no interchangeable parts, and all weapons were custom made for a purchaser on site)

Click to expand...

The problem I see in this argument is that the regulation of interstate commerce has been broadened so much (cf. Gonzales v. Raich) that it is now used, with the blessing of the Supreme Court, to regulate items which do not cross state lines.

Dear Nobody:

Sorry I was not clear.

The Second Amendment mentions the militia, but as I observed a long time ago, amendments amend things. The framers were not concerned with personal self-defense, hunting, or shooting farm varmints because in 1790, those were local concerns, and the federal government was not perceived to have either power or interest in these areas. You don't amend the Constitution to prohibit a power not there in the first place.

A key argument of the early Federalists was that we did not need a Bill of Rights because specifying a short list of rights only would entice judges to say that what was not protected was fair game. So, the idea was that the framers did not want to be specifying a laundry list or rights, for fear rights generally would be imperiled.

The Ninth Amendment was Madison's genius response to this, and all it is really is a judicial rule of construction which prevents judges from arguing that, because right "X" is in the Bill of Rights, right "Y" by omission doesn't exist. The Court must use history, not logic, in approaching the subject of rights. Recall what Oliver Wendell Holmes said: "A page of history is worth a volume of logic."

That brings us to CA2 -- why does it have that little preamble in it about the militia?

The answer is that, in 1790, Congress' militia power was the power which could have been used to disarm the public. Interstate commerce could not have been so stretched, but Congress' power to "arm, equip, and discipline" the militia is plenary and complete, and the argument against the Constitution at the time [already mentioned in the plaintiffs' briefs] was that Congress could become corrupt, could use its power to raise its own troops to insure the federal government had all the tanks, mortars, and machine guns, and then pass laws limiting the militia -- the state forces -- to slings and arrows. This is why the militia is mentioned in the amendment -- it is a specific reference to the one power Congress had (in 1790) by which firearms could be prohibited.

The Second Amendment cures this potential defect; it restores the "balance of terror" by which liberty would remain "doubly secure." See further Alexander Hamilton, The Federalist, No. 28, which recently has been quoted favorably by the Supreme Court on several occasions.

So, my point was not that we need to go back to an ancient concept of interstate commerce (no court will do that) but that we need to make clear why there was all this focus on the militia. Madison simply was focusing on the value to be protected, and the power which might be abused, so there really is no necessity at all that the right to keep and bear arms have a lock-step relationship with being in the militia.

The key words in the amendment are not "militia" or "RTKBA," but "free state," with the emphasis on freedom. In 1790. there had never been a bank robbery, never been a train heist, and certainly never had been any criminal demolitions of the WTC. We had no drug dealers gunning down cops on the streets, nor did we have drive-by shootings. But, there had been tyrants aplenty, and as a matter of history, it is natural for the framers of the amendment to focus on what the problem was perceived to be, and not what the problem might be if someday interstate commerce might apply or global terrorism or crime become the principal concern of the day.

I do not believe we should be arguing against modern concepts of "commerce." But, I do think we should make known to the Court that there is an historical reason why the framers focused on the militia and militia powers. They were simply thinking in terms of how the Constitution reasonably might be construed to defeat the values they all had shed so much blood and treasure to secure from the King of England. And certainly one of the most important values was that standing armies should not be allowed, and that an armed populace should be the substitute in its place. Even back then, they knew the saying: "Switzerland does not have an army; Switzerland is an army." In this way, the Government always would keep the civil superior to the military authority (an essential feature of any republic).

Robert - I think your idea has a lot of merit. If the en banc court decides to grant DC's request for rebriefing, then contact one of the groups who will likely file an amicus curaie (JPFO, SAF, etc) with your idea. They may decide to include it.

I would feel a lot better if we could do something to cut off en banc review. I really think the current opinion is about as strong as we are going to get, and for the moment, I would be happy to find a way to declare victory and quit.

I disagree... we have a good opinion; the cause is gaining momentum, so this is not the time to quit!

You win a lawsuit by securing a favorable final judgment. The final judgment to which we are entitled right now, absent further review, is about as far-reaching as it is going to be. En banc review at best will sustain that judgment, more likely will dilute it, and very possibly could reverse it. It has no value to us.

I say that this case is framed for S.Ct. review. It is 2-1, and both sides have given their views. Legislation derived from a delegation of authority from Congress has been declared unconstitutional. There is division of the circuits. If the Supreme Court wants to take it up, then fine -- I'd love to win big there -- but I say it's time to stick it to D.C.: Go to the Supreme Court or fold your tent.

En banc review should be denied. Whatever we can do to facilitate that should be done.

Not an expert, but...

ya convinced me, Robert Crim.

+1

Have any ideas on how you might go about doing just that?

Well, I'm not sure we could intervene in any way without leave to rebrief; however, attorneys for the parties plaintiff will be responding at some point, and perhaps if we could have our views conveyed to them, that might help.

Do I get very lucky and find one of them is reading this forum?

I'll agree that perhaps we don't want an en banc review; however, I don't think it's time to quit. I want to see this upheld by the SC.

Finding a way to halt the appeals process cuts both ways. Do you want your appeals cut off because the other side won and likes it that way?

The en banc review request is unavoidable. There are 11 judges on the circuit, and there's enough cases that they can't viably have all judges hear all cases, so they pass out cases to 3 judges at a time; if the verdict is questionable enough, THEN it can go to all 11. It's just a matter of reasonable efficiency.

Actually, we want this to go to SCOTUS. This is THE case: what we ultimately want is indeed the right to keep standard & common weapons for personal defense, starting with the home.

SCOTUS Review

I agree; however, we have no control over the case at that level.

Were Parker to file for cert., it would be on the standing issue only, not the Second Amendment, and I suspect cert. would be denied, unless Heller's portion of the case came up concurrently. Heller has standing because he was denied a permit. This is black-letter law (the Hamden, CT, case is right on point). But, for having won, seeking cert. is not his choice. You go to the next court up when you lose.