Virginia AG supports individual rights in Heller v. DC

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Robert Hairless

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In this interesting split between Virginia's Republican Attorney General and its Democrat Governor, the commonwealth will join states filing an amicus brief supporting the individual right to own firearms. From NBC4.com, on December 19, 2007:

Va. AG Sides Against D.C. Gun Ban Before Supreme Court
Official Urges Support For Individual Gun Ownership

RICHMOND, Va. -- Attorney General Robert McDonnell plans to ask the U.S. Supreme Court to rule that individuals have a constitutional right to own firearms.

McDonnell said Virginia will join other states in filing a brief in a legal challenge to the District of Columbia's ban on personal handgun ownership. The court will hear arguments in March and likely will decide by June whether the Second Amendment right to keep and bear arms is an individual or collective right. The ruling could have a sweeping impact on gun control laws nationwide.

"This is a very important case, perhaps the most important case in American history regarding the Second Amendment," McDonnell said Tuesday in a telephone conference call with reporters.

The city appealed a ruling by the U.S. Court of Appeals for the District of Columbia that the handgun ban violates the Second Amendment and that gun ownership is an individual right.

McDonnell, a Republican, said Virginia will join in a friend-of-the-court brief being drafted by Texas Attorney General Greg Abbott to push for an interpretation that handgun ownership is an individual right.

If the court upholds the district's gun ban, it would open the door for more restrictions on gun ownership, McDonnell said.

Gov. Timothy M. Kaine, a Democrat, has not taken a position on the Supreme Court case, said Kaine spokesman Gordon Hickey.

"The governor generally supports Second Amendment rights, but that support doesn't exclude reasonable controls," Hickey said.

Kaine plans to push legislators to require private gun sellers to check buyers' criminal records, as licensed gun dealers are already required to do. A panel appointed by Kaine to investigate the Virginia Tech shootings recommended closing the so-called "gun show loophole."
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Gov. Timothy M. Kaine, a Democrat, has not taken a position on the Supreme Court case, said Kaine spokesman Gordon Hickey.

"The governor generally supports Second Amendment rights, but that support doesn't exclude reasonable controls," Hickey said.
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Interesting, the "pro-2a" governor thinks banning handguns is reasonable, as must be surmised by his lack of comment.

Kaine plans to push legislators to require private gun sellers to check buyers' criminal records, as licensed gun dealers are already required to do. A panel appointed by Kaine to investigate the Virginia Tech shootings recommended closing the so-called "gun show loophole."
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Wow!!! In Virginia?

Cho by the way did not use the "gun show loop hole", to purchase the weapons he used during his killing spree on the gun free facility of VA Tech. Nope, he purchased them from a licensed dealer, he was not denied by NICS because the state of Virginia was not providing complete data concerning the mental health of its residents to the system. So in a way, given that the buck stops at the top, the governor who as executive leader of the state in charge of enforcing such laws, failed to do his job properly.:barf:
 
The grandest irony about all of this is it's focusing on people (the law abiding) who aren't the problem in the first place.

DC's gun laws restrict those who aren't the problem in the first place.

Can't get 'em to understand that though.
 
the commonwealth will join states filing an amicus brief supporting the individual right to own firearms.
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It is one thing to support the individual RKBA, and quite another to support reconstructing the Second Amendment such that it empowers the federal government with jurisdiction over personal arms for personal use. It seems to me that traditional Virginia values include the RKBA, but not reconstruction of the USBOR.
 
Is it fair to say that you believe that it would be better for Virginia and everyone else to simply ignore the argument that the Second Amendment provides a collective right not an individual right?

Is your point that what the Virginia Attorney General is doing is contributing to some reconstruction of the Bill of Rights?

I'm confused about what you mean.
 
Don't be fooled by Kaine. He's anti-gun. The very fact that his "VA Tech" commission was recommending closing the gun show "loophole" from the start should have warned us (Cho bought his firearms the legal way, through dealers and background checks). This is one time I am GLAD that VA has a 1 term limit for governors.
 
Back in the spring or summer of 2007, I remember Governer Kaine telling the Virginia legislature that he "hopes they get over their love affair with guns". That doesn't sound much like supporting the 2nd Amentment to me - at least not the Founding Fathers 2nd Amendment.
 
Kaine is as anti-gun as they come, but he knew that would be suicidal in the election that he won. Even his predecessor was light years better than Kaine on RKBA. The Legislature will hold, unless we allow the NoVA and NORVA liberals further incursions in Richmond.

TC
 
Just to give you an idea of how anti-RKBA Gov Kaine is: When he was Mayor of Richmond he authorized city taxpayer dollars to be used for buses to take residents up to the Million Mom March back in 2000.
 
So the summary would be that Kaine is massively anti-gun, but not so massively foolish to jump on the sinking ship that is the DC case and allow the gun rights crowd to very agressively mobilize against him in such a public case.

I would call it a smart move on his part, a professional politican at work. (take that as much as a insult or complement as you like, probably both)
 
Is it fair to say that you believe that it would be better for Virginia and everyone else to simply ignore the argument that the Second Amendment provides a collective right not an individual right?
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I don't know what would be proper ... when one side says that the Second Amendment protects a select or "collective" right of the National Guard or some such select group ... and the other side says that the Second Amendment protects a general or "individual" right to keep personal arms for personal use ... I'd say that both arguments are incredibly flawed, but I don't know how Virginia can speak up except in support of one side or the other.


Is your point that what the Virginia Attorney General is doing is contributing to some reconstruction of the Bill of Rights?
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I haven't read the brief, but the way I understand it, Heller is part of an attempt by some lawyers to reconstruct the Second Amendment, and the Virginia AG is supporting their effort. My point is that Virginia has traditionally seen the personal RKBA for personal use as being outside of federal authority.
 
I haven't read the brief, but the way I understand it, Heller is part of an attempt by some lawyers to reconstruct the Second Amendment, and the Virginia AG is supporting their effort. My point is that Virginia has traditionally seen the personal RKBA for personal use as being outside of federal authority.
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I hadn't encountered that point of view on Heller v. DC before now: that the Heller lawyers were attempting to reconstruct the Second Amendment. I'm not sure what that means.

Trying to understand. Does it mean that although the Heller lawyers support the Second Amendment as an individual right they acknowledge that it has limits definable by law?

If that's the meaning of reconstruct here I'm still confused because it seems obvious that all rights have limitations defined by laws and because in this case the Heller lawyers seem clear in distinguishing between the Constitutional guarantee and the laws that may properly filter it--some possibly federal laws but mostly state laws.

That distinction, I thought, was inherent in the Constitution: the federal government is denied many powers, state governments have others that are denied to the federal government, and "the people" have all else. So I don't see how the Heller lawyers have strayed into reconstruction as I understand the term.

Maybe if you read the brief you might have a different view of it? I find that for me there's no useful substitute for reading the documents. I'd enjoy knowing your view of the brief after you've read it. As I said, I'm unfamiliar with this concept of reconstructing the Second Amendment.

I'd thought it encouraging that Virginia's Attorney General was forthright in supporting individual Second Amendment rights and that he was joining Virginia to the amicus brief in support of them. It seems to me that it could be disastrous if most--or even many--states opposed them. I also was interested to see Gov. Kaine's obvious hostility to the concept and his ineffectual attempt to disguise it. Not a man of character, I think.
 
I hadn't encountered that point of view on Heller v. DC before now: that the Heller lawyers were attempting to reconstruct the Second Amendment. I'm not sure what that means.
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Would it help if I said that the agenda was to incorporate the Second Amendment? The idea is to have the SCOTUS redefine/reinvent/refashion/reconstruct the Second Amendment, to change its meaning and effect. Of course, a DC case may not result in incorporation, but I think that other cases are planned and the intent is for the SCOTUS to rule that the Second Amendment empowers the federal government to be the protector of our right to personal arms for personal use.

In the bigger picture, the federal government seems to be assuming a general power to be the "protector of all rights". I see it as an attack on the separation of state and federal powers i.e. an attack on our frame of government. This has historically been a regional conflict, with yankees wanting a wholly national or consolidated government, and Virginia acting to preserve our constituted frame of government.

"should the whole body of New England continue in opposition to these principles of government, either knowingly or through delusion, our government will be a very uneasy one. It can never be harmonious & solid, while so respectable a portion of it's citizens support principles which go directly to a change of the federal constitution, to sink the state governments, consolidate them into one, and to monarchize that. Our country is too large to have all its affairs directed by a single government ... I do verily believe, that if the principle were to prevail, of a common law being in force in the U S, (which principle possesses the general government at once of all the powers of the state governments, and reduces us to a single consolidated government,) it would become the most corrupt government on the earth." -Thomas Jefferson, 1800)
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Reference Incorporation: That is not addressed in Heller v. D.C., so has no bearing on the case. "SCOTUS redefine/reinvent/refashion/reconstruct the Second Amendment." The 2A "is what it is", until, or unless it is amended - which is not contemplated nor addressed, and in any case, cannot be done by the SCOTUS. The SCOTUS can "define" what the 2A says, and that is the express purpose of Heller v. D.C. The SCOTUS has to present arguments to explain their ruling, but cannot "reinvent/ refashion/ reconstruct the 2A. As to eventual Incorporation, it seems that Presser v. Illinois has already sidestepped that action - just my personal view. That says in essence - since the Federal Government depends on an armed populace (militia), the several states cannot restrict the people from keeping and bearing arms. I'm sure not a legal scholar, but what I read defines what I wrote. I hope it is correct. :)
sailortoo
Semper Paratus (alsp)
 
"The SCOTUS has to present arguments to explain their ruling, but cannot "reinvent/ refashion/ reconstruct the 2A."

Since the SCOTUS defines what teh ammendment means, they sure can 'revinevnt/refashion/reconstruct the 2A'.

For many years now the 'collective right' interpretation has held sway in many lower court rulings.
It would be a defining moment of the SCOTUS ruled unambiguously that the 2nd is an individual right.
 
Any idea if any other AGs are doing this. Also any info on how to encourage our states AGs to do the same.
 
To "reinvent/refashion/reconstruct" is to change what is already the 2A, as written. All the SCOTUS can do is "define" what is written. Any change beyond defining will require the full amendment change procedure by congress and states ratification (years, if ever). Way too much expected of what can only be a narrow decision, as laid out by the SCOTUS itself. They set the parameters of the question, so they can stay "inside the fence" with their ruling.
sailortoo
Semper Paratus (also)
 
I took time to read the brief last night, I found it to be what I expected, and I cannot support it.

I think the statement of interest is questionable. It seems to me that the federal government could butt out and let the DC laws stand, and Virginia would not be impacted ... on the other hand, if the federal government butts in, assuming unprecedented jurisdiction over personal arms for personal use, then I fear that this new federal power over the RKBA could become a threat to the RKBA in Virginia.

One thing I find particularly inadequate about the argument is the futile attempt to use a textual analysis to prove that the Second Amendment is nationally binding upon all governments, when I consider it to be a fact that the Second Amendment, as written, was intended to bind only the federal government. I could go on and on about the misconstructions and myths upon which the textual analysis depends, but I see no point since the whole approach is in vain.

About the only thing I agree with is the idea that the federal protection to keep militia arms is a general ("individual") right as opposed to a select ("collective") right ... but I don't see this federal protection as coming from the Second Amendment.
 
Who in their right minds would ever advocate for government control over who can have firearms and who can't?

I am dumbfounded by the folly of this mindset.
 
hugh damright said:
It seems to me that the federal government could butt out and let the DC laws stand, and Virginia would not be impacted
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But the DC essentially is the Federal government. While the city council does have its own elections, jurisdiction therein ultimately rests in the hands of Congress.

Furthermore, the District is responsible for appealing it to the Supreme Court, not the plaintiff or Virginia. One of the arguments the District is making is that Congress can, by way of its proxy government, ban any and every firearm not in the hands of an official State militia (i.e., the National Guard). In addition to this, they argue for direct Federal control by saying "[The Framers] could not have intended the Second Amendment to prevent Congress from establishing such gun-control measures as it deemed necessary to protect itself."

As such, this case would have State-level implications whether or not Virginia got involved. Were the District's arguments to be taken at face value, and left to stand unopposed, we could be left with a "sophisticated collective rights" ruling giving Congress the power to pass even more national bans.

Given the "necessary to protect itself" language in the District's brief, such a ruling could very well give Congress justification for a nationwide ban on ownership of bolt-action rifles to "protect itself" from another would-be Lee Harvey Oswald or what have you.
 
Any idea if any other AGs are doing this. Also any info on how to encourage our states AGs to do the same.
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The Texas AG argued Heller back when it was Parker, and he's also filing a brief for this case.

There were several the first time but I can't remember all the other ones.
 
"To "reinvent/refashion/reconstruct" is to change what is already the 2A, as written. All the SCOTUS can do is "define" what is written. "

And who decided that os what "reinvent/refashion/reconstruct"
means?

I would call returning to the original intent a pretty big change at this point.

The 'collective right' theme has held sway in a number of circuits, so clarifying what the amendment means at this point could be a major change that would amount to "reinvent/refashion/reconstruct."
 
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