Apellee's brief in Parker v. District of Columbia

[Ieyasu]

Anti- brief in Parker v. D.C.: http://www.gurapossessky.com/documents/dcparkerbrief.pdf

This brief is a decent representation of the latest anti-individual right 2A arguments -- the 2A doesn't protect an individual right or a collective right. It protects a "civic right." They never give up!

More briefs here: http://www.gurapossessky.com/parker_pleadings.htm

 

[Cosmoline]

I find it ironic, though perhaps predictable, that the capitol city of the land of the free is a nest of slaves and masters. If you want a vision of what the federales would like this whole nation to look like, look to their personal district.

 

[Keaner]

Anyone got a summary? It reads like ancient greek to me.

 

[Jeeper]

Interesting! Kind of ingenious way to say there is a right but only to bear arms to protect the country.

 

[Ieyasu]

Anyone got a summary? It reads like ancient greek to me.

Jeeper summed it up excellently. Here's more detail, if you can stand it:

"The militia functioned much like the jury. Citizens came together within a legal framework to act for the public good. One can only claim the right when citizens are organized into a legally sanctioned body—otherwise you have the Shays/Whiskey Rebellion scenario that most of the Founders dreaded.

"The other aspect of well regulated liberty that needs to be stressed is that the right only makes sense in the context of robust gun regulation. Without musters, inspection, and accountability there is no well regulated militia. The collective rights argument, at least its radical progenitor, was Anti-Federalist in spirit, but it was quickly revived by the Jeffersonians. I do see it as different from this civic right.

. . .

"As for the question of what the potential jurisprudential difference between a civic right and an individual right is I think it could be quite significant. For one thing it would certainly mean much more rigorous gun regulation—registration, inspection, safe storage, and mandatory safety training. It would also mean that hand guns would have no constitutional protection in contrast to long guns which would enjoy protection as long as they were brought within a robust regulatory scheme. Gun owners get greater protection but they accept much greater levels of regulation. Finally, it would almost certainly mean that the constitutional scrutiny of gun laws would trigger a rational basis review and not strict scrutiny. (Perhaps one might argue an undue burden standard, but this is a pretty underdeveloped area of the law.) The Founders clearly thought that some types of prior restraints were fine so the words and guns analogy is way off."

Source: http://blog.oup.com/oupblog/2006/07/mark_tushnet_sa.html

In other words it's exactly as Jeeper wrote. If you ain't in active service in the militia you ain't got 2A protection. Same old song with a different twist. Although in the quotes above, as opposed to the brief, you'd be "allowed" to keep certain long guns.

However, Cornell, the guy who's been writing a lot of this gibberish (and who I'm quoting above), is not consistent. How could non-military long-guns be protected in the contstitutional scheme he describes above?

The trouble with most of his crap (as well as that of Garry Wills and Carl Bogus), is that very few pro-gunners are familiar enough with actual 2A history to intelligently refute their arguments.

 

[Keaner]

Thanks for the summaries you two.

 

[bouis]

The duplicity of liberal lawyers is legendary.

"No person shall be deprived of life, liberty, or property, without due process of law" -- means that abortion and sodomy must always be legal.

"the right to keep and bear arms, shall not be infringed" means that the right to keep and bear arms may be infringed.

 

[Ieyasu]

You're welcome Keener.

What really bothers me about this stuff, is that the folks who aren't partisans on either side of the debate and the few who are exposed to this stuff by Wills or now Cornell, will be convinced by their arguments even though they are quite refutable. The trouble is it needs to be done intelligently.

One example: Guys like Wills argue that "any claims that the Constitution ensures an armed citizenry as a bulwark against the potential tyranny of government is a myth. 'You can't read the amendment apart from the body of the Constitution,' he wrote, 'and the body of the Constitution defines taking up arms against the United States as treason.' " (They also claim the Constitution wasn't a 'suicide pact.')

This is easily refutable, but many gunners aren't capable of giving a decent counter-argument.

One correct answer is: Of course, it's not a right of insurrection or rebellion against a constitutionally elected government that the Second Amendment protects, but rather as Justice Story wrote: "the right to keep and bear arms offers protection against "usurpations of power by rulers."

(That's the short answer, and that way it's done without sounding like a revolutionary mad-man to the average Jane/Joe.)

 

[striker3]

"the right to keep and bear arms, shall not be infringed" means that the right to keep and bear arms may be infringed.

You fell into the trap that they layed out over and over again in the brief. 2nd Amendment activists always quote the last part of the amendment without reconcilling it with the first part. When debating the issue you have to explain the signifigance of each part.

The trouble with most of his crap (as well as that of Garry Wills and Carl Bogus), is that very few pro-gunners are familiar enough with actual 2A history to intelligently refute their arguments.

You hit the nail on the head.

 

[Ieyasu]

You hit the nail on the head.

Ditto to you Striker3.

As you say/imply, our answers need to be more carefully thought out.

Not only do we need to reconcile both parts of the 2A as you mention, but for some time now the anti's are claiming that bearing arms, in the context of the Amendment meant military service. I don't want to divert this thread into a discussion of what that term means, but it's meaning may not be the slam dunk so many think it is. (I think it should be a separate thread, if my comments cause further discussion on that subject.)

 

[bouis]

You fell into the trap that they layed out over and over again in the brief. 2nd Amendment activists always quote the last part of the amendment without reconcilling it with the first part. When debating the issue you have to explain the signifigance of each part.

Well, I'd love to hear your opinion as to what the first clause means, but I don't agree with you. In my (admittedly amateur) opinion, it's a call to vigilance and an expression of distaste for a standing army, echoing the Virginia Declaration of Rights:

"That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power."

How it could be construed as a limitation upon the right is beyond me. What do you think?

 

[striker3]

Bouis,

If you read the brief in entirety, it will explain what I am trying to say better than I can at this time of night.

Basically they say exactly what you just did, including quoting the Virginia Decleration, and then go on to show through case law that when it mentions things like "composed of the body of the people" it is refering to the collective populace, not an individual person. Thus the people have the right to bear arms in a militarily defensive structure, but the person does not have a right to bear arms outside of that structure.

Another key argument is that during the 18th century, the arms of militias were already regulated. Each member of the milita, while having to provide their own arms, was told exaclty what he could and could not bring. Most of these regulations were on length and caliber, for sound tactical and logistical reasons, but the writers of this brief are trying to show a history of regulation. The way they interpret it, the government can decide exactly what weapons are needed for a milita, and regulate out everything else. In this specific case, pistols are not a traditional standard milita arm, and since non of the plaintiffs claim to be a militia officer, the only ones who traditionally carried pistols, the pistols can be regulated.

If you do not have an adequate defense against those arguments, just quoting the last part of the amendment will not do you one bit of good.

ETA: I think that Ieyasu's argument from his last post is the best starting point to counter the debate. Of course, I do not have the references to back up this argument against the prepared brief, which is what I meant by most of us not being able to intelligently refute their claims. In this arena, just stating something does not make it so, the best laid out history wins.

 

[bouis]

That's interesting but I think that you are the one who is falling into a trap here. The last thing you want to do in a persuasive brief is let your opponent decide exactly what's going to be argued.

The best and most persuasive thing we have on our side is the right to keep and bear arms shall not be infringed. The first clause is, sadly, these days reduced to merely a distraction from that point and that's how I'd address it if I were briefing the case.

And, let's face, the liberal courts are going to do whatever they want, and they're going to find a way to justify it. The last thing we should do is let them make us focus on their convoluted and nonsensical reasoning. We should instead hammer the plain meaning of the plain words of the amendment, and force our elected officials to appoint judges who will do the same.

 

[bouis]

So you can better understand what I'm saying here I'll give a concrete example.

"Separation of church and state" versus "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

The "wall of separation" analogy comes from a letter written by Thomas Jefferson more than ten years after the bill of rights. It seems to have entered the vernacular fairly recently. Now a days I'd bet you that 3/4 of the people in this country think it's actually in the Constitution. And if you told them Thomas Jefferson said it ten years later, they'd say, well, didn't he write the bill of rights? Of course, he was actually in France at the time...

But "separation of church and state" is now so pervasive that it seems every discussion of interaction between the government and religion has to be framed in that context. And look at what it's been used to do -- so many things that the vast majority of the country opposes but seems to accept as okay because they believe it's the law. Let's not let that happen to the second amendment.

 

[leadcounsel]

"The People" are refered to in many of the Bill of Rights and in each example the drafters meant for the rights to be INDIVIDUAL rights, or individual AND collective rights, but NEVER collective to the exclusion of individual rights.

I find it convenient when the gun grabbers want to interpret "The People" as a collective right in the 2nd Amendemt.

If you read the other Amendments as collective rights, they make no sense at all.

It would be silly to argue that the 1st Amendment "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," is a collective right, for example. How about the 4th Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Could this work as a collective right? How about the 8th Amendment? "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Individual or collective. It's implied that it's individual rights. How about the Amendment IX: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

The drafters were familiar with language and wrote what they meant. Each and every person could say what they wanted, were individually protected from illegal searches and seizures of property, were individually given the rights against self-incrimination and rights to counsel, and were given the individual rights to keep and bear arms. Handguns are military arms, so they are not excluded.

 

[Ieyasu]

leadcounsel, it appears you didn't read the brief, because your argument was a strawman (it doesn't address the brief's arguments at all). The brief claims it's not individual right versus collective right, it's about a civic right. The brief does address the 1st, 4th, 9th and 10th amendments. Your post failed to refute their argument. If this had been a forum on some non-gun related web-site you would have lost the neutral readers.

At this point I can hear folks saying who cares? Who reads briefs? But this stuff will no doubt be parroted in editorials and op-ed pieces, let alone the 'net. Thus, I think we need to better educate ourselves so we can write pursuasive refutations whether it's a letter to the editor, a response on some non-gun related forum, or a topic of conversation.

 

[Cosmoline]

This is not a new argument. It's the same old notion that the 2nd protects only a form of "collective" right. But this is a fancy way of reading the 2nd out of the Constitution. A "collective" right or "civic" right that cannot be enforced by anyone is not a right at all.

In their view (and the view of many courts) there is NO SET OF CIRCUMSTANCES where a regulation of firearms could be quashed under the second.

Thus the people have the right to bear arms in a militarily defensive structure,

Which of course they do not. A right that belongs neither to a state nor an individual is not a right.

 

[Ieyasu]

A right that belongs neither to a state nor an individual is not a right.

Bearing arms in the militia was considered both a right and a duty.

In their view (and the view of many courts) there is NO SET OF CIRCUMSTANCES where a regulation of firearms could be quashed under the second.

Unless those regulations disarmed the "organized" militia.

 

[beerslurpy]

There is no way for them to make their argument without construing it as a right that doesnt belong to the people. Additionally, there is no way for them to make the "civic duty" argument without misconstruing the purpose of the militia.

All militias, by design, are not an organized, professional body of soldiers. Ordinary people can practice with arms but still contribute to the welfare of the republic, while professional soldiers require conflict to retain usefuless. The founders did not wish for standing armies and therefore instituted a militia system in this country. The 2nd amendment guards the means by which individuals will participate in the militia during peacetime- by possessing arms and practicing with them.

Militias are rarely found bearing arms in the defense of themselves or the state because this is rarely necessary- the intended purpose of a militia is to be a dormant body of well trained individuals. In peace, the militia just goes about its business as lawyers, engineers, doctors and plumbers. When war comes, the militia is gathered up to form the united states military. This has happened in every conflict where there was non-voluntary service.

It seems ridiculous to assert that the 2nd amendment only guarantees a "right" of people to be conscripted or to serve as professional soldiers, yet this is just what the appellees claim. Every nation on earth has claimed the power to compel its citizens to bear arms in defense of the State. Indeed, Article I and II assume this and spell out in great detail the authority of the federal government and the states over the militia and armies. But this authority is redundant with apellees interpretation of the 2nd amendment. If it is true, then what right does the 2nd amendment guarantee?

Unless we ignore the origins of the militia in this country and the operation of the millitia in countries that copied our system, the clear intent and meaning of the 2nd amendment was to preserve the militia system by ensuring that the entire populace is armed. To ensure that the right to keep and bear modern, functional firearms does not depend on the results of electoral contests or political fads. The right of the people to possess and bear functional firearms for any lawful purpose cannot be conditioned upon current or planned military service.

Requirements for training and storage may not be imposed by the state because these requirements are universally construed in such a way as to infringe upon the right to keep and bear arms. Additionally, the discipline of the militia is not connected to the right to keep and bear arms. One is a granted authority, the other is a preexisting protected right. The government may discipline the militia (article I), but it may not infringe upon the right to keep or bear arms, even under the color of disciplining the militia, collecting taxes or exercising any of its enumerated powers. This distinction should not be difficult to grasp. The 2nd amendment does not imply any level of militia discipline, it merely safeguards a right of the people.

 

[ilbob]

One correct answer is: Of course, it's not a right of insurrection or rebellion against a constitutionally elected government that the Second Amendment protects, but rather as Justice Story wrote: "the right to keep and bear arms offers protection against "usurpations of power by rulers."

(That's the short answer, and that way it's done without sounding like a revolutionary mad-man to the average Jane/Joe.)

To many on the left the notion that it might be the right thing to take up arms against a tyrannical government is about as mad as it gets. They only care about their own personal comfort, not their own or anyone else's liberties.

 

[carebear]

You guys really need to read the whole brief. I know it's not the easiest format but every single one of our most common arguments (including some expressed in posts in this thread) is specifically addressed and "debunked". These guys have done their homework, this "civic right" claptrap is a very crafty argument that can't be countered with simplistic cliches.

Like it or not, you can be "right" and lose a legal battle and the battle of public opinion due to your opponant having better citations and a more coherent argument. The brief is full of citations, many of the quotes we use to support our arguments are written out in their entirety and a very reasonable (on its face) alternative interpretation is given, using the historical context. Our own weapons are defanged or turned against us.

Throwing catch phrases at this kind of argument is a sure way to lose. You have to address each claim or statement made by your opposition point by point, just like back in debate class. "No, you're wrong," is not an argument.

I'm eager to read the appellants' brief addressing these issues, it better be pretty good.

 

[Chris Rhines]

The whole "civic right" argument reads like a restatement of the long-debunked "collective rights" argument. Intellectually and morally bankrupt.

- Chris

 

[carebear]

The whole "civic right" argument reads like a restatement of the long-debunked "collective rights" argument. Intellectually and morally bankrupt.

That it is, but very well researched and supported. The anti's aren't dumb, they're evolving like the frikkin' Borg. A lot of what we use as counters are being (on the surface at least) coopted to support their position.

 

[beerslurpy]

One thing I dislike about the argumets is that they try to construe the case as a facial challenge rather than a pre-enforcement as-applied challenge. The paucity of their arguments (and reliance on the stricter doctrine applied in facial challenges) really highlights the weakness of their case.

I also think their standing argument is supremely weak and not supported by the facts of the case. It is no surprise that they didnt even raise it at all until the judge asked them to at oral arguments.

 

[hugh damright]

One correct answer is: Of course, it's not a right of insurrection or rebellion against a constitutionally elected government that the Second Amendment protects, but rather as Justice Story wrote: "the right to keep and bear arms offers protection against "usurpations of power by rulers."

Maybe it's not a right to insurrection or rebellion, but I believe that the right to secession fits ... suppose that a region turned against the Constitution and elected a President with the intent that he usurp power ... such a leader may be "constitutionally elected", but I reckon a free State would have a right to secede, and I think militia was intended to protect that right.