Apellee's brief in Parker v. District of Columbia

[K-Romulus]

TRlaintiff's initial argument

Here is the plaintiff's initial go-round. They went first, then DC, then the PL had a 3-min rebuttal. I may not get it all up tonight. This is pretty rough, but you will be able to get the gist of what happened.

Before Judges Griffith, Henderson, and Silberman

“JGR” = Judge Griffith
“JSI” = Judge Silberman
Gu = Alan Gura (Plaintiff’s lawyer)
Kim = ___ Kim (DC lawyer)

Appellant/Plaintiff's Oral Argument:

Gu: 2Amt means ordinary handguns are allowed to be kept in the home, this is a narrow cast that will not be groundbreaking; the case is against prohibition, not against regulation

JGR: standing? How is this different from the Seegars and Navegar cases? Isn’t the plaintiff Heller in this case the only one who tried applying for a handgun permit?

Gu: actual denial of permit in this case, not like those other cases

JSI: if one plaintiff has standing, does it matter about the others?

Gu: should not matter as long as one has actual standing

JSI: what do you mean by “function” firearms are prohibited?

Gu: trigger locks are not safe storage; plaintiff would not challenge a safety rule with exceptions, but only wants ability to have operational self-defense firearm

JSI: are you challenging the handgun prohibition or the no-loaded law?

Gu: both; challenging fact there is no allowance of either

JSI: have standing to challenge no-loaded law?

Gu: have standing because would run afoul of the law

JGR: what is the militia TODAY?

Gu: the people of the U.S.

JGR: what about “well regulated?”

Gu: that meant training

JGR: 200 years ago, it meant “state control”; “well regulated” is not the same as “militia”

Gu: back then, regulated meant trained; Harvard law journal article explained the concept, citation is 9 Harv. J. Pub. Pol. 559; read quotes from Oxford Eng. Dict.; we use the original meaning to interpret the Amendment as written; the Constitution protects the concept, not the term

JSI: Regulated = supplied?

Gu: cited the Militia Clause regarding government suppling private citizens

JGR: “security of a free state?” DC isn’t a state, right?

Gu: DC= Fed Govt; cases say Constitution was intended to constrain Fed govt; dictionary at the time said it meant “free society”

JGR: isn’t this a Federalism issue with the 2d Amt?

Gu: Constitution only limited the Fed govt at the founding

JGR: what about “security of a free state?”

Gu: if disarmed, people would not be able to check government, repel invaders; mentions Judge Kozinski (9th Cir) and his “doomsday provision” comment; states at the signing of Constitution demanded RKBA clause as a last-ditch remedy for the people

JSI: assuming individual right; p.16 of brief says court does not have to find it is a “fundamental” right; p.31 of brief says law should be “narrowly tailored”; isn’t that same as strict scrutiny?

Gu: trigger lock law = ban on functional firearms in home; prohibition is more broad than mere regulation

JSI: rational basis argument? DC’s basis for the handgun ban isn’t rational because of crime?

Gu: we don’t ban all contracts, only the illegal ones

JSI: Miller says can ban shotguns?

Gu: Miller said only some firearms were outside Constitutional protection, like bazookas

JSI: why not bazookas?

Gu: Miller put out 2-part test: 1) type of ordinary and common use, and 2) military or common defense usefulness; bazookas fail first part of test

JSI: DC’s unloaded law illegal for handguns if they were allowed to be owned?

Gu: if the safe storage law had exceptions, it would be permissable; not what DC has now

*end PL argument, 3min reserved for rebuttal*

 

[carebear]

Don't handguns contribute to the militia?

As they are types of common weapons in use by the military they do.

The "only officers carried/carry them" argument falls on its face. Medics, mortarmen, machinegunners... They are spread throughout the Services, ranks and fields.

 

[K-Romulus]

TR: DC's oral argument

Oral Argument for DC:

Kim: Seegars standing controls, so PL’s should lose; injury here is not prosecution, only inability to register handgun; need a real injury to bring a case, should seek administrative process to get permit

JSI: what if DC said no black person could get a handgun license? No standing then?

Kim: (long, I mean LONG pause) not likely to have such a statute

JSI: what if Asian couldn’t get license because DC said too many Korean storeowners were shooting Blacks? (Kim is apparently Korean)

Kim: standing, yes

JSI: Why? What difference from this case?

Kim: this is not a licensing case; not in plaintiff’s request for relief

JSI: relief isn’t relevant to standing

Kim: plaintiff’s need to go through administrative appeals process for denied license

JSI: why is that?

Kim: appeals court said so in past cases

JSI: question here is about unconstitutional action, so we get jurisdiction

Kim: 2Amt doesn’t say anything about registration; court can only order process for registration

JSI: denial of license fits in other cases for standing

Kim: disagree; plaintiffs didn’t ask for license as remedy, only injunction against law

JSI: so they need to fix their remedy to get standing?

Kim: still would not have standing

JSI: all the circuit and district court cases on standing were wrong?

Kim: no, 2Amt not at issue here, only administrative matter of denial of license

JSI: what about the no guns for Blacks/Koreans hypothetical?

Kim: still no standing because the administrative appeals process needs to run; Seegars court said that statute could be challenged through the administrative process

JSI: assume they have standing and right; what about the pistol ban?

Kim: all rights subject to regulation; question here is on reasonable basis for regulation; DC legislative history shows reason for ban; police power is OK basis; 7th Cir case said that handguns were not military weapons

JSI: what about Plaintiff’s Miller test assertion?

Kim: that’s not what Miller said

JSI: what about the “common use” part? Are you saying pistols are not commonly used because they were banned? (JSI guffaws) 50% of DC gun cases get jury nullification; plenty of shootings

Kim: Miller said the test was militia use

JSI: what does that mean for pistols?

Kim: DC Council sais pistols were used by criminals

JSI: but they are also useful for non-criminals

Kim: at the time of the Framers, pistols were not “common”

JSI: what about as officers’ weapons? You need officers to run a militia (JSI guffaws)

Kim: DC Council says pistols are reasonable militia weapons; PL says they want pistol for self defense, not for militia use, anyway

JSI: weren’t militia arms those in common use? Rifles, pistols, muskets, swords?

Kim: at the time, but not relevant to case; Miller said 2AMT was about militia service

JSI: didn’t Miller go on to describe militia as all able-bodied people?

Kim: Miller did not say that was a militia

JGR: what is “the people?”

Kim: the collective

JGR: where else in the Bill of Rights does it say that “people = collective?”

Kim: the 1st Amendment talks about “assembly,” so must mean more than one person

JGR: one person protesting certainly does get 1st Amt protection, so it’s individual

JSI: are you saying there is no individual 1st Amt right?

Kim: no, but the 8th Cir. Said that if no militia at issue, then the plaintiff’s case ends

JGR: the preamble doesn’t limit the right in the amendments?

Kim: not limiting; the plain meaning is solely military because of the term “keep and bear”; the 2dAmt is about militias, so need a tie to a militia; for example, the Mass. Constitution used “keep” in relation to civic common usage

JGR: Does the DC reading of the 2dAmt allow the banning of all guns?

Kim: yes, but DC is not a state, and the 2dAmt is only for states; DC still allows guns now; 2dAmt text and debates never said individual right; only for military matters; the “religious scruples” exemption debate(?) Shows that the Framers only meant military service

JSI: Wasn’t the DC position unknown in the 19th Century? Isn’t this something from the past 50 years? Dredd Scott said that Blacks could not be citizens under the Constitution because they would enjoy the privileges and immunities of US Citizenship including bearing arms where they went; the collective position is not in Miller

Kim: (starts to talk)

JSI: are you going to say something about an “evolving constitution?” (JSI guffaws)

Kim: the militia had mor relevance back then

JSI: WWII, were you old enough to remember? No? (Kim is mid-30's) WWII saw communities in the US all up and down the east coast handing out rifles to people who didn’t have their own; isn’t that the militia?

Kim: if a state or the Fed govt did that, then they were a well regulated militia; the 2d Amt only spoke to military affairs

JGR: was the military meaning clear back then?

Kim: it’s the best reading of the Amendment

JSI: Miller’s discussion of the militia says different

Kim: “enrolled” meant enlisted in Miller per the Militia Act
JSI: the Militia Act excluded certain people; arms used back then were primarily for hunting and self defense

Kim: there is no evidence that the 2dAmt protects hunting or self-defense

JSI: govt wanted hunting and self-defense guns brought up in an emergency

Kim: but they were not protected by the 2dAmt; “bear” = military use; Mass. Const. uses “bear” in a military context

JSI: do we really want to rely on Massachusetts for this? (JSI guffaws)

Kim: “keep and bear” = military usage

*end DC argument*

 

[K-Romulus]

TR: Plaintiff's rebuttal

PL’s Rebuttal:

Gu : (starts to talk)

JGR: what about this “well regulated militia?” If the preamble limits, is your case in trouble? Isn’t there a different meaning today?

Gu: preamble can inform, but cannot negate the operative clause

JGR: does the operative clause help the preamble? What about having police around now, making militia moot?

Gu: we can’t read out parts of the Constitution; we have all sorts of special offence drug/gun/etc. courts now, but we don’t read out the 4th amendment as not needed

JSI: what if preamble said “so long as militia is necessary?”

Gu: who makes the determination that a right is unnecessary? If that was the case, any right could be argued away

JGR: if the text is reasonably read to not be absolute, then what?

Gu: only way to read the amendment is to look at the Framers’ belief that militias were necessary; we can’t ignore the Constitution, we would have to amend the Constitution; ten states at the time of the founding had constitutions that recognized self defense RKBA; this was something that the Framers expected; handguns are used militarily, and are of common use; the threat of prosecution has been understated by DC; the circuit does not need actual threat of prosecution to get standing to challenge the law

*end rebuttal*

They actually let him go a little longer than his alloted three minutes. Looking over the notes to post, it does seem that the two judges who did all the talking were pretty skeptical of the DC government's case as a matter of logic.

 

[Haterade]

Romulus... thanks for attending this, taking notes and keeping us informed.

Truly interesting. I think that DC caught the worst of it based on what you transcribed. Maybe there is hope, who knows.

Again, thanks.

 

[creitzel]

wow, sounds like Judge Silberman is a gunney

Truly interesting. I think that DC caught the worst of it based on what you transcribed

I agree, it sounds like the plantiff got the better of today's session.

Thanks for attending, and taking such great notes K-Romulus

Chris

 

[Ieyasu]

Awesome job K-Rom. Thanks!!!

 

[Ieyasu]

AP article on Parker: http://news.yahoo.com/s/ap/20061207/ap_on_re_us/gun_ban_2

Silberman and Judge Thomas B. Griffith seemed to wrestle, however, with the meaning of the amendment's language about militias. If a well-regulated militia is no longer needed, they asked, is the right to bear arms still necessary?

The above is what really irks me about some pro-gunners. We discussed this earlier in this thread. The National Guard, when in the service of the states, is a well-regulated militia, and thus the 2A is not obsolete.

Most of us don't like the fact that the WRM is supplied arms by the feds and most citizens are prohibited from owning military arms, but that is a different issue.

My point is the WRM clause is not obsolete. The apellants should have argued that indeed we still have a WRM and regardless of how the militia was/is supplied with arms, the people's right was preserved to guarantee a pool of guns and gun owners for the militia.

 

[Kim]

Yes Thanks. I have been waiting for this.

 

[geekWithA.45]

A point I've been making recently on the WRM prefatory language is that that phrase not only explains and justifies why RKBA is protected, but it also makes an assertion, that without RKBA, a state is niether free nor secure.

 

[Al Norris]

From http://www.local10.com/politics/10485690/detail.html:

Silberman and Judge Thomas B. Griffith seemed to wrestle, however, with the meaning of the amendment's language about militias. If a well-regulated militia is no longer needed, they asked, is the right to bear arms still necessary?

"That's quite a task for any court to decide that a right is no longer necessary," Alan Gura, an attorney for the plaintiffs, replied. "If we decide that it's no longer necessary, can we erase any part of the Constitution?"

Mr Gura is right on target with the answer, despite your incomplete quote from the article. It seems that both Ieyasu's source and my own contain the response.

So why throw up, what I would consider, another red herring?

 

[Ieyasu]

So why throw up, what I would consider, another red herring?

Because I don't consider it a red herring. I think it's a more thorough and accurate answer. It also precludes a court from even considering whether a provision is obsolete or whether a court has the power to declare a provision in the BOR is obsolete.

 

[AZRickD]

D-Mack channels Gene Wilder:

It's all there, black and white, clear as crystal! You butcherd the opinion. You knowingly and intentionally lied directly to the court, you get nothing! You lose! Good day sir!

Excellent pop culture use of the climactic scene in original Willy Wonka, sir.

Rick

 

[Low-Sci]

Some of this is enough to make my college brain melt. A quick thought though, and this question may have already been asked in the previous 18 pages or so.

Isn't the right to self defense implicit in the wording of the fifth amendment? And should we really have to bring the ninth amendment into this over something as elementary as a right to prevent your own death?

And before everything sloshes out my ears, another question: If it used to be common practice for states to regulate what arms could be brought when a militia was called into service, and militiamen were expected to bring their own arms, does that not imply that ownership was recognized as a right on an individual basis?

Obviously I haven't got the mental capacity to take down the entire argument and I'm not trying to. But these things, I think, bear some consideration.

 

[ctdonath]

If a well-regulated militia is no longer needed

"Needed" is not up to a court to decide. Congress has decided that a militia IS needed, and explicitly declares every able-bodied male 17-45 a member thereof (covering at least some of the plaintiffs) - involuntarily. If such a militia is no longer needed, Congress can change the definition thereof (which it did at least once, not long ago).

Some of this is enough to make my college brain melt.

When people will not accept the plain meaning of words, things get very complicated very quickly.

If it used to be common practice for states to regulate what arms could be brought when a militia was called into service, and militiamen were expected to bring their own arms, does that not imply that ownership was recognized as a right on an individual basis?

A judge seemed to think so:

JSI: govt wanted hunting and self-defense guns brought up in an emergency

and defense brushed that away with a simple baseless denial:

Kim: but they were not protected by the 2dAmt; “bear” = military use; Mass. Const. uses “bear” in a military context

which of course falls down precisely because you can't bear a weapon in a military context if you cannot obtain the weapon in any context. If the gov't expects people to bring a gun, any gun, but forbade people to have any guns, then ... well ... no guns, go fight with pointy sticks.

 

[Kim]

Could you tell anything about the body language of the Judge who asked no questions? What do we know wbout him?

 

[RealGun]

JGR: Does the DC reading of the 2dAmt allow the banning of all guns?

Kim: yes, but DC is not a state, and the 2dAmt is only for states; DC still allows guns now; 2dAmt text and debates never said individual right; only for military matters; the “religious scruples” exemption debate(?) Shows that the Framers only meant military service

So the BoR is "only for states"? While at it, why not argue that the United States is not "united". Amazing logic.

 

[General Geoff]

Who the heck is this Kim guy anyway? He's hilariously ignorant of how the Constitution works. The 2nd Amendment specifically bars THE FEDERAL GOVERNMENT from infringing on our right to keep and bear arms. As such it's not "for states only." DC is the home base for Federal government, and as such the Constitution particularly applies to it.

 

[LAR-15]

Don't forget that the 1976 DC Gun Ban is a total ban on ownership, purchase and transfer of new handguns for non LEOs.

There is not even an allowance to transfer or buy any kind of handgun in DC including registered ones.

It is virtual prohbition- the ultimate infringement.

There is no way for the plaintiffs to legally obtain any kind of explosive powered handgun.

Even with the machinegun freeze (922 (o)) one can still obtain a pre May 1986 registered gun.

 

[K-Romulus]

Kim: Judge Henderson is a "she", and she really did a good sphynx impression. The only words she uttered were that the DC guy's time was up, thanks. I wasn't really watching her much since I was scribbling and she wasn't the one talking.

Gen Geoff: Todd Kim is the DC government's appellate lawyer for this case, basically a fancy title within the US Attorney's office in DC. I am not sure if he was the guy who got appendicitis and caused the postponement of the last argument.

Kim is no doubt a smart guy; to get where he is at such a young age he must be. He had no choice but to make the best argument he could for DC, even though I was getting the impression he felt kind of silly saying what he said. His reliance on the Mass. Const. was pretty weak, and even his tone of voice started to falter a bit when he was saying what he said; it came across as desperation.

The argument that "the 2d Amt didn't apply because DC is not a state" is from a District Court judge's opinion where he rejected either this case or the Seegars case. I Believe that reasoning may have been upheld by the DC Court of Appeals (basically the DC version of a state-level appeals court). That is why Kim was using it, in the hopes that the Federal Court of Appeals would go along with it since an earlier court said it was OK.

 

[General Geoff]

Oh I see, so he's fighting a battle he knows (or hopes?) he can't win. Kinda like being in debate team and getting stuck on the side you know is wrong.

 

[AZRickD]

Who the heck is this Kim guy anyway?

I find it amazing that a Court would allow a government attorney to knowingly fabricate information.

Rick

 

[HonorsDaddy]

AZRickD

You said:

I find it amazing that a Court would allow a government attorney to knowingly fabricate information.

I wish i could agree with you there, but unfortunately it has become all too common - especially with regards to difficult cases.

Arguably the government attorney in Miller fabricated information, or at the very least intentionally obscured it.

Wouldnt surprise me one bit if Kim's entire argument was pure fabrication and was still accepted by the court.

We all know the end result of this if the court finds the only way it legitimately and Constitutionally can. We also all know the end result if they continue to play word games.

 

[glummer]

“JSI” = Judge Silberman
JSI: what about the “common use” part? Are you saying pistols are not commonly used because they were banned? (JSI guffaws) 50% of DC gun cases get jury nullification; plenty of shootings

What’s the “common use” refer to?

And, does anyone know if that 50% jury nullification figure is accurate? I find that amazing.

 

[K-Romulus]

"common use"

Apparently, the discussion was over whether the 2d Amt only covered militia weapons "in common use" at the time of the Signing. One of DC's arguments was that pistols were not commonly used back then, at least as compared to muskets.