Apellee's brief in Parker v. District of Columbia

[RealGun]

The argument has been well made before that the right of the people to keep arms and perform military service makes no sense. "To bear arms" can be quite different in connotation than "right of the people to keep and bear arms", in the latter case "bearing", i.e. "carrying" arms for their own purposes and according to their free will.

 

[ctdonath]

These snivelling arguments trying to force the term "bear" into a narrow use, and contrast it with other terms that could have been used, and argue that because those other terms weren't used then the meaning of those terms wasn't intended, fail to note that the 2nd Amendment (like other rights noted) provides a concise description of the right with no attempt made at narrowing it (to the contrary, it features the term "shall not be infringed"). Other terms were not used because "bear" was sufficiently broad in the terminology of the day. Other proposed phrasings of the right, both for the BOR and for other state constitutions, indicate there was some presumption that it should extend to non-military carry of weapons ("bear a gun", "killing game", "defense of self", ...) but that these specialized other applications were so self-evident, and so less a concern than the militia application so on the forefront of discussion, that there was no need to expend precious space elaborating on the obvious.

"Keep and bear arms" is broad. There is absolutely no indication that the Founding Fathers intended any interpretation more limited than what we would now describe as "own and carry/transport weapons". There was, thus, no reason for them to include other clarifying language: they could not state it more plainly and concisely.

Again: per the revolutionary experience the Founding Fathers had recently undergone, where they had formed a militia from individuals bringing the weapons they had obtained primarily for personal purposes, it is preposterous to think they would have tolerated, much less intended, an interpretation of that wording to exclude the reasons individuals usually had for obtaining those weapons in the first place: hunting and self-defense.

:banghead: I understand the "devil's advocate" purpose for analyzing the he11 out of the linguistic nuances of terms in use at the time ... but if one need work that hard to extract particular meaning from words which are couched in broader contexts plainly indicating the opposite meaning, then the effort alone indicates gross error in the conclusion. When the same man who wrote the 2nd Amendment also observed (paraphrased) "let your gun be your constant companion" and "our militia is good because they are familiar with guns since infancy", one is hard-pressed to claim "keep and bear arms" means anything other than "own and carry/transport/use weapons for any moral purpose".:banghead:

 

[Malum Prohibitum]

Ieyasu

I don't want to argue Miller here, but I do believe the opinion was poorly written, perhaps on purpose (by arguably one of the worst Supreme Court justiices), and I'm not sure all 8 justices who signed it, understood exactly what they were signing. For example, many years later, Justice Hugo Black (one of the Miller justices ), commenting on the Second Amendment said:

Quote:
Although the Supreme Court has held this Amendment to include only arms necessary to a well-regulated militia, as so construed, its prohibition is absolute. (Black, Hugo, The Bill of Rights, New York University Law Review, Vol. 35, April 1960.)

Pretty radical, eh?

Is there more to Hugo Black's statement? Sorry to make you go and dig it out, but I have never seen any comments by any of the Justices about Miller, and I am extremely interested in the context of the above statement.

 

[Malum Prohibitum]

The Panel

Who is the panel? Anybody known to be friendly or antagonistic to the Second Amendment?

http://www.cadc.uscourts.gov/intern...s+of+U.S.+Court+of+Appeals+for+the+DC+Circuit

Appointed by

Reagan: 2
Bush: 2
Clinton: 3
Bush: 3 (including Janice Rogers Brown! )


I have not included the four Senior judges, all of whom were appointed by Reagan.

I do not know who is on the panel, but I would sure like to find out Janice Rogers Brown is one of them.

 

[Malum Prohibitum]

Janice Rogers Brown

Anybody who does not know why I would be excited at the prospect of Janice Rogers Brown, a former California Supreme Court Justice, serving on this particular panel, please read this one page blurb here, and you will understand: http://www.gunowners.org/op0517.htm

 

[DKSuddeth]

I knew there was a reason I wanted to see this woman on the bench.

 

[glummer]

... one can volunteer for militia duty. ... The people have the right to form a militia and bear arms in it. I don't know how else I can make that any clearer. Bearing arms in this manner is clearly a right.

One cannot volunteer if there IS no militia. One cannot "bear arms in this manner" if there is no militia.
So, it follows, that there is no right to bear arms until AFTER the government authorizes a militia? So it is not a fundamental, natural right. ??
The people on the frontier, who came together to defend themselves, HAD no right to keep or bear arms, prior to official government designation as militia?
And the right referred to is created only by government action.?

 

[glummer]

... and I don't see how the right to militia to secure free government and the individual right to shoot burglars are the same thing.

Sometimes shooting burglars, and shooting government soldiers, are the same thing - comparable, necessary evils. And both require the ability to have at hand the means to do so.

Securing a Free State may require disobeying the government's "call to render service." Only an individual RKBA protects the ability to do that.

The Minutemen, at Concord & Lexington, were NOT militia, by the "civic duty/render military service" standard being discussed here. They were, legally, REBELS; citizens keeping & bearing arms AGAINST the legal government, in violation of the "robust regulation" that the British troops were attempting to impose.
The Founders were aware of this.
And they APPROVED.
The history of the times implies that the militia appropriate to a Free State requires an individual RKBA, which preserves the capability of revolution, if necessary.
If you cannot defend yourself against a lone burglar, you would be even more helpless against the forces of a tyranical government.

(There is also the little matter of the 9th Amendment, which perfectly addresses the 2A narrow/broad confusion.)

 

[hugh damright]

The history of the times implies that the militia appropriate to a Free State requires an individual RKBA, which preserves the capability of revolution, if necessary.

I agree, but I do not agree that the capability of revolution requires handguns, or that it requires that weapons be stored in a ready-to-fire condition. And besides, DC is not a free State.

(There is also the little matter of the 9th Amendment, which perfectly addresses the 2A narrow/broad confusion.)

It does no such thing, or at least not in the way which you mean. The idea that the Ninth Amendment gives us federal protection of all rights turns the amendment against itself. The Ninth Amendment is a rule of constitutional construction designed to protect residual rights that exist by virtue of the fact that the federal government has only limited powers, and these residual rights include the right of each State to pass gun laws without the federal government sticking its nose in where it doesn't belong.

 

[Mr.V.]

Glummer--

unless you're ready to start the second American revolution, we're stuck with the Constitution and its interpretation by the Supreme Court. This court has stated that any statement of purpose (e.g. "a well regulated militia being necessary to the security of a free state"), binds what ever operative clause that follows. That may not be right, but it is what it is, unless we get a Supreme court willing to overthrow precedent.

The founding fathers obviously wanted the militia to NOT be a rag-tag band of armed men, otherwise they would have left out the words "well regulated" and not included Article I secion 8 giving Congress power to regulate the militia or Article II section 2 giving the president complete command of the militia, even though, ironically, they themselves were a rag-tag band of armed men.

It's obvious from the framers' personal quotations that they clearly didn't intend for citizens to not be able to individually own guns/knives/etc, but at the same time they didn't write the second in a way that unambiguously says that. Many of the original 13 states' constitutions don't have a purpose clause or are far more explicit.

New Hampshire: "All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the state."

Delaware: "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use." (purpose that includes everything you could want and more)

Pennsylvania: "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned." (no purpose clause)

Rhode Island: "The right of the people to keep and bear arms shall not be infringed." (no purpose clause)

It's a bit unfortunate that the 2nd was stated as it was given the alternate contemporaneous versions available (ESPECIALLY NEW HAMPSHIRE'S...HOLY CR@&! What a truly unambiguous statement) Now we have to figure out how to beat the purpose rap so it essentially reads "The right of the people to keep and bear arms shall not be infringed. And, oh yeah, we can use this right to form a well-regulated militia if we desire. It's up to us because we're free."

 

[glummer]

.. I do not agree that the capability of revolution requires handguns, or that it requires that weapons be stored in a ready-to-fire condition

The capability of revolution requires that the DECISION about owning handguns vs. long guns not be in the power of the govenment. Otherwise the arms of the People can be simply defined out existence. Is not a sawed-off shotgun, a hand gun? Would not a concealable weapon be a valuable tool in a modern urban revolution? Infringement, in the BOR, must be interpreted generously, in favor of the individual, or it ceases to protect.

The idea that the Ninth Amendment gives us federal protection of all rights turns the amendment against itself. The Ninth Amendment is a rule of constitutional construction designed to protect residual rights that exist by virtue of the fact that the federal government has only limited powers, and these residual rights include the right of each State to pass gun laws without the federal government sticking its nose in ...

Read it again.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

There is nothing about limited powers, or States rights. It refers explicitly to enumerated rights being construed to deny or disparage others, which is exactly what the "militia clause/purpose clause" arguments do.

This court has stated that any statement of purpose (e.g. "a well regulated militia being necessary to the security of a free state"), binds what ever operative clause that follows.

How solid is that, historically & legally? I'm not familiar with arguments regarding the exact nature of the clause. Who decided it was a "purpose" clause, and has it been challenged at all? Grammatically, it is a subsidiary clause, which is not necessarily a purposeful relation. Given the curious way rights are lumped together in some of the Amendments, it could plausibly be merely a piggy-backing of a specific instance of immediate worry (the British DID try to disarm the militia) onto the more general assertion of the right. (With the 9thA to ensure it was seen that way.)

 

[Al Norris]

This court has stated that any statement of purpose (e.g. "a well regulated militia being necessary to the security of a free state"), binds what ever operative clause that follows.

Cite? (rhetorical question)

This is seriously flawed thinking. Consider, if you will take a moment, the Preamble to the Constitution. That is a statement of purpose - yet the court has always held it to be a mere statement of intent and not an operational law - until FDR and his New Deal.

Then there is the Preamble to the original submitted Bill of Rights. Here, the Court has never ever commented upon it, let alone recognized its existence.

How then is the Intent Clause of the 2A, the preamble, any different? The answer is that the Court is being arbitrary, capricious and inconsistent in its opinions. In other words, political expediency.

"A well regulated militia being necessary to the security of a free state," is a statement of purpose but does not alter in any manner the operative clause, "the right of the people to keep and bear arms, shall not be infringed." The operative clause is a stand alone sentence. The same may not be said of the intent clause.

The argument over the phrase "bear arms" is a non sequitur. Bearing arms may mean in a military manner, but as has been mentioned, it had other definitions that were in use at the time it was written. The argument is not what the writers of the amendment meant. It is what was understood by the people at the time it passed. That is originalism. Bearing arms for use in self defense, for hunting and for defense of ones community was a common theme, and commonly understood to mean just that.

Even the argument that "arms" was meant to be military arms, was not the common usage, outside of the military. It was not the military that ratified the amendment, but the people. The common man.

 

[DKSuddeth]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

There is nothing about limited powers, or States rights. It refers explicitly to enumerated rights being construed to deny or disparage others, which is exactly what the "militia clause/purpose clause" arguments do.

Quoted for truth.

+1000

 

[Ieyasu]

Mack wrote:

One point, while it is important that the legal arguments of gun control advocates be answered and that the individual right to keep and bear arms be defended and advocated in the courts, I do not believe that the arguments themselves as made in the courts have much if any resonance with the vast majority of the public. The actual decisions of the courts will and do have resonance with the public, but the legal arguments behind them will not persuade either the committed or the uncommitted. Print out the briefs and/or this thread and give it/them to any average individual and they will have little to no impact on that individuals opinion on the second amendment.

I agree 100% Mack. I wouldn't dream of giving a brief or a law journal article to the average jane or joe. However, this stuff does leak into editorials, op-ed pieces, and letters to the editor. I assume most of the folks here, do write letters to the editor, on occasion. Also, I do see stuff from law journal articles occasionally referred to in various non-gun related web sites that have forums. Posters stumble across them as they're debating gun control, and many of those articles are quite persuasive to the "unwashed."

If you want to persuade the undecided on the second amendment, the best ways to do so are to: take them shooting and discuss firearms in the context of the right to personal self-defense, while giving them concrete real life examples.

I think there are many different approaches, depending on the person. Some respond to constitutional arguments, some stats, some anecdotes, some the genocide thing, etc.

Not arguing with ya Mack. As I said, I basically agree with what you wrote...

 

[Ieyasu]

These snivelling arguments trying to force the term "bear" into a narrow use and contrast it with other terms that could have been used, and argue that because those other terms weren't used then the meaning of those terms wasn't intended

Snivelling? Looks to me like the folks arguing that bear arms is broader in scope are the snivelers. The evidence offered is incredibly flimsy. That example from Websters dictionary is sadly ludicrous. The bear a gun references instead of bear arms, etc.

Also, looking at statutes forbidding blacks to bear arms, the distinction between bearing arms and carrying arms is made. The example I gave from Tucker's essay is typical. It's not merely that one word was chosen for another. The wording is very consistent among those statutes, so far from what I have seen. (Although, I'm still researching that, got a few more statutes to check out, hoping for contradictions.)

, fail to note that the 2nd Amendment (like other rights noted) provides a concise description of the right with no attempt made at narrowing it (to the contrary, it features the term "shall not be infringed"). Other terms were not used because "bear" was sufficiently broad in the terminology of the day.

Once again, if the phrase bear arms was so commondly used to indicate a broad right, then please provide some quotes from the 18th century indicating that it was. There are hundreds if not thousands of quotes where bear arms is referred to in a military or fighting context. So please, other than the PA Minority's Dissent, please provide one quote, that's all I ask, one stinkin' quote from the 18th century showing that the term bear arms is used like carry.

Other proposed phrasings of the right, both for the BOR and for other state constitutions, indicate there was some presumption that it should extend to non-military carry of weapons ("bear a gun", "killing game", "defense of self", ...)

You won't find bear a gun, in any state BOR's. You'll find it in a few proposed statutes, but once again to bear a gun is a different construction.

If bearing arms was commonly used to indicate carrying, it should be easy to provide an example. "Defense of self" does not occur in any 18th century BOR's. I've previously shown how bearing arms in defense of themselves also referred to militia service.

but that these specialized other applications were so self-evident, and so less a concern than the militia application so on the forefront of discussion, that there was no need to expend precious space elaborating on the obvious. "Keep and bear arms" is broad. There is absolutely no indication that the Founding Fathers intended any interpretation more limited than what we would now describe as "own and carry/transport weapons". There was, thus, no reason for them to include other clarifying language: they could not state it more plainly and concisely.

Your opinion. I'd love to see evidence to the contrary.

Again: per the revolutionary experience the Founding Fathers had recently undergone, where they had formed a militia from individuals bringing the weapons they had obtained primarily for personal purposes, it is preposterous to think they would have tolerated, much less intended, an interpretation of that wording to exclude the reasons individuals usually had for obtaining those weapons in the first place: hunting and self-defense.

The ENTIRE discussion among the Framers and Ratifiers of the 2A was with respect to ensuring the arming and continuance of the militia. The self-defense and hunting aspects of gun ownership should have received protection from the courts via the 9th. Or as I've previously posted, the belief that "keep" protects a vigorous personal right.

I understand the "devil's advocate" purpose for analyzing the he11 out of the linguistic nuances of terms in use at the time ...

I'd hate to tell you this, but I'm not playing that role in this instance. I used to believe as you did, regarding the meaning of bear.

I've done plenty of research. I initially hoped to prove the opposite of what I found. I'm not done, yet, but I'm 90% convinced that bear arms in the 2A referred to militia service. The one possible out, is that it also meant to fight, which might somehow be stretched to include personal self-defense, but I haven't found such a reference yet.

but if one need work that hard to extract particular meaning from words which are couched in broader contexts plainly indicating the opposite meaning, then the effort alone indicates gross error in the conclusion.

Sorry, but I've been hard pressed to find a broad meaning for that term.

When the same man who wrote the 2nd Amendment also observed (paraphrased) "let your gun be your constant companion" and "our militia is good because they are familiar with guns since infancy", one is hard-pressed to claim "keep and bear arms" means anything other than "own and carry/transport/use weapons for any moral purpose".

Not that it matters, but those two paraphrased quotes were from Jefferson, not Madison. Jefferson was out of the country while the drafting of the constitution took place. Most historians believe he was shipped to France deliberately.

 

[Ieyasu]

Malum,

Here ya go: http://www.criminology.fsu.edu/faculty/gertz/hugoblack.htm

(Surprised you didn't try Googling it.)

I have never seen any comments by any of the Justices about Miller, and I am extremely interested in the context of the above statement.

I'm quite surprised I haven't seen it mentioned in any of the briefs, especially since Miller is so hotly debated. Even the most twisted anti couldn't pervert Justice Black's statement.

 

[Ieyasu]

Glummer asks:

One cannot volunteer if there IS no militia. One cannot "bear arms in this manner" if there is no militia. So, it follows, that there is no right to bear arms until AFTER the government authorizes a militia? So it is not a fundamental, natural right. ??
The people on the frontier, who came together to defend themselves, HAD no right to keep or bear arms, prior to official government designation as militia?And the right referred to is created only by government action.?

http://www.thehighroad.org/showpost.php?p=2651546&postcount=283

 

[Ieyasu]

Beerslurpy,

I responded to your post. It's up there somewhere, but I'd like to add the following to that response.

You're questioning how militia service could be considered a right. Well, here are a few state BORs supporting that notion:

North Carolina (1776) (unchanged until 1868): "That the people have a right to bear arms, for the defence of the State."

Massachusetts: (1780): The people have a right to keep and to bear arms for the common defence.

 

[Ieyasu]

Al Norris,

Even the argument that "arms" was meant to be military arms, was not the common usage, outside of the military.

I'm sure you noticed, but that lengthy passage from Cooley you posted also takes a narrower view of permitted arms. (Although we should be so lucky that his view, taken as a whole, would prevail. )

 

[hugh damright]

Read it again.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

There is nothing about limited powers, or States rights. It refers explicitly to enumerated rights being construed to deny or disparage others, which is exactly what the "militia clause/purpose clause" arguments do.

I view the USBOR as limiting federal powers, so I think it is a question of putting the Ninth into its proper context.

And I view the rights retained by the people as including the political rights retained by the people of each State in our federal system i.e. States' rights.

This is another argument where the antigunners seem to have the more accurate construction ... I think Parker's side attempts to perpetuate the myth that the term "the people" always means individuals, and DC points out that the Second, Ninth and Tenth amendments may use the term "the people" to refer to States.

 

[Ieyasu]

I think Parker's side attempts to perpetuate the myth that the term "the people" always means individuals, and DC points out that the Second, Ninth and Tenth amendments may use the term "the people" to refer to States

Baloney.

With respect to the 2nd, somebody forgot to inform William Rawle (too bad they didn't have snopes.com back then) (this has already been posted):

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both

As for the Ninth, this too has been posted:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=789384

Talk is cheap Hugh. Read the whole darn thing. Then open-up another thread to rebut what's there, if you'd like, but it's already been stated that the 9th is OT for this thread, so please can it. Thanks.

 

[Al Norris]

I'm sure you noticed, but that lengthy passage from Cooley you posted also takes a narrower view of permitted arms. (Although we should be so lucky that his view, taken as a whole, would prevail.)

"Lengthy passage from Cooley?" That would make the majority opinion in Raich a novella? [/sarcasm]

Regardless, you have gone on about the militia aspect bearing arms, to the point of wanting documented proof that the usage in those times was anything but military in nature. "Tench Coxe and the Right to Keep and Bear Arms, 1787-1823" a paper first published in the William and Mary Bill of Rights Journal, February 1999 by Stephen P. Halbrook and David B. Kopel may help to clear this conceptional error.

I would warn you, it is a lengthy read.

 

[Mr.V.]

Cite? (rhetorical question)

I wondered this earlier...
http://www.thehighroad.org/showpost.php?p=2649172&postcount=271
asked the question, and only Ieyasu responded. The cite in "rhetorical" question is from the apellee's brief, which turns out to be the topic of the thread.
They cite the Supreme Court case of Graham vs. The John Deere Company.
I found it here:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=383&invol=1
and just read the part that seems to matter stating:

"The Congress in the [383 U.S. 1, 6] exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose."
since the constitution has a purpose clause when it delegates power to Congress for copyright law in Article I section 8.

I guess that has been extended by precedent. Therefore the argument as I am understanding it is, "if the purpose of the second amendment is to form a well-regulated militia, the enumerated right for the people that keeping and bearing arms shall not be infringed only goes so far as achieving this well-regulated militia."

I've found a counter to this argument by a law professor at UCLA who also calls this a "purpose clause" which is where I got the term for it.
You can find his argument I listed earlier in the thread.
http://www.thehighroad.org/showpost.php?p=2632017&postcount=219

Glummer---

As far as how strong legally is the "purpose clause" argument? I don't know. I guess we'll find out when they rule on the Parker case. How all this plays into the 9th amendment...again I've got no clue. I'm just trying to understand: what's guaranteed in the constitution? What arguments hold up against the anti-gun arguments? What's legal? What's the evidence etc.

I do manage to read a lot of people (not directed at you) thumping their chest and saying "clearly this and clearly that" without actually proving anything they are saying. I'm perfectly willing to hear an argument with facts presented that I can look at maybe even be convinced.

In the end there are obviously people who are seeing the second amendment differently than we do and present their own evidence. I believe our side is right, but we need to prove it and disprove them. None of which is accomplished by opinions.

 

[Ieyasu]

Regardless, you have gone on about the militia aspect bearing arms, to the point of wanting documented proof that the usage in those times was anything but military in nature. "Tench Coxe and the Right to Keep and Bear Arms, 1787-1823"

Thanks Al. That was one of the first places I went to, some time ago, and I was disappointed. It wasn't any help. It's not clear at all from that essay what bearing arms means. (I've also read Coxe's works without the interspersed commentary.) (Don't forget he uses the word "keep" as well.)

(I don't have time to elaborate further, gotta go....I'll be away from the thread until later tonight)

 

[Al Norris]

Mr. V.,

If I am following your thoughts correctly, then you have substituted the Courts use of "purpose clause" for Eugene use of "justification clause." Is this correct?

As Prof. Volokh points out in his original article1 and again in his rebuttal2 to David C. Williams, justifactory clauses were common literary devices that "often overinclusive and underinclusive with regard to their justifications, and why we shouldn't adopt interpretive methods that let courts read justification clauses as implicit authorizations for making rights vanish."3

The full quote that you omitted in the Graham vs. The John Deere Company reads:

The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must "promote the Progress of . . . useful Arts." This is the standard expressed in the Constitution and it may not be ignored.

Here, the Court first calls the directive a "purpose" but then ends up calling the directive a "command." It is both, however, it has nothing to do with justification clause of the Constitution itself4 nor the justification clause of the BoR5

As far as I know, this is not a precedent upon which justification clauses may draw.



1. The Commonplace Second Amendment, 73 NYU L. Rev. 793 (1998), By Prof. Eugene Volokh. http://www.law.ucla.edu/volokh/common.htm

2 The Amazing Vanishing Second Amendment, 73 NYU L. Rev. 831 (1998), By Prof. Eugene Volokh. http://www.law.ucla.edu/volokh/amazing.htm

3 See Williams, Civic Republicanism and the Citizen Militia, 101 Yale L.J. 551, 615 (1991), where Williams must transpose "right of the people" with the Virginia declaration, "body of the people," in order to make his thesis of public responsibility.

4 See Preamble to the Constitution of the United States.

5 Most written versions of the Bill of Rights exclude this preamble. http://www.billofrights.org/ It has steadfastly been ignored by the Courts and by Constitutional Scholars.