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Apellee's brief in Parker v. District of Columbia

Discussion in 'Legal' started by Ieyasu, Aug 5, 2006.

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  1. ksnecktieman

    ksnecktieman Member

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    Now I have read two more posts, and learned three things.

    #1 I can not go to court because they will not allow me a pistol. I have to be arrested with one, and charged with having it, before I can get a decision.

    #2 I do not know what the word "comity
    ' means.

    #3 There are lots of states with different accepted legal positions.

    Robert? I have a question for you. I would like to hear just YOUR opinion. I do not want to know about Miller, or Lockyer, I do not care about Texas or Virginia, I do not care about NYC, or Boston, Or Dallas. I do not care about any precedents. I do not care if you have standing. My question is;

    Do YOU think that YOU have a right to keep and bear (read that as personally own, and wear on your person open or concealed) arms ( M16, .22 rifle, or Kframe pistol) in the United States of America. Guaranteed to you by the United States Constitution and the Bill of Rights.
     
    Last edited: Dec 22, 2006
  2. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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    Mr. Crim,

    Substantive Due Process and selective incorporation are essentially a secondary way that the Court arrived at the concept underlying the privileges and immunities clause after the Slaughterhouse case. Both of these concepts deal with the separation of federal and state powers and to what extent the state government can infringe on rights protected by the federal constitution. One reason the privilege and immunities clause is so rarely litigated is that the Court's ruling have effectively gutted its power to do anything significant.

    So how does this apply to D.C. where there is no state/federal distinction? It seems to me from a read of your argument that you are focusing on cases like Younger and Slaughterhouse that have little bearing on Parker.

    Perhaps you could summarize the argument you are suggesting be made in Parker?
     
  3. Robert Crim

    Robert Crim Member

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    I suspect that the time for briefing, even as an amicus, is expired, since the case now is sub judice. Were I to file such a brief, it probably would be no more than a letter, since I still truly believe that Younger applies (despite the missing element of the state proceeding). Stated succinctly, this case presents no injury in fact -- no weapons have been confiscated, and no plaintiffs have been charged with a crime.

    An interesting point here: Had the case been presented a little more narrowly -- e.g., had plaintiffs stated they needed a pistol offering both militia and self-defense uses, at least part of Younger (the comity question) would have been neutralized, since that opens the door for claiming absolute protection in the possession (there may be no set of facts under which a conviction could be obtained). Extraordinary relief is appropriate here.

    Another example of asking for too much and (perhaps) getting nothing. This also shows why it is useful to have the actual hardware before the court, rather than a theoretical possession. The court needs to know precisely what right is invoked so that it can know which zone of interest applies, and the weapon, itself, can evidence that. "Militia arms" (which per international law must be carried openly) would not include a Derringer, even within a private home.

    For those counting days, a good estimate of the average time for an appellate case, figure one year from the filing of the first brief. And remember the old saying: Those who chase quick justice may catch it.

    Some things take time.


    P.S. While we're waiting, is there any chance someone actually in D.C. or nearby could post the briefs here? I'd very much like to see them. So far, it appears that all we've had are individual members' characterizations.
     
  4. Robert Crim

    Robert Crim Member

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    P.P.S.

    KS: Not sure what you are asking, but I own firearms, if that is your question, and I had the Sporter during a time when Connecticut by statute said their possession was illegal.

    I do not support "concealed carry" laws (too conducive to generating "O.J. Simpson"-type situations) -- if one is going to carry, the weapon should be visible enough to identify it as a firearm. Although many states do not mention carrying concealed firearms in their constitutions, there are some exceptions, e.g., Colorado, which many state supreme courts follow, even in the absence of the same provision in the home document.

    Bart: I suspect you are asking me to say over again what I already have said, but I will add that you, being from the South, must know that there are numerous cases from that region in the Nineteenth Century which distinguish between "militia" sidearms and "pocket pistols" -- weapons designed primarily for "private brawling." Parker could have presented a joint claim, rather than a claim limited solely to self-defense, by adding a plaintiff who was poor, who needed a firearm for all protected uses, only could afford one, and was prohibited even from purchasing that. If the firearm were a .45 Army Colt or 9 mm Beretta or other standard issue, the joint claim is credible. Indeed, I recall this very issue was raised by Judge Silberman in the posted report.

    Parker's complaint simply asked for too much too fast. Recall how Thurgood Marshall triumphed in Brown v. Board: He first built a series of little precedents starting with issues members of the Court, from their own training as lawyers, readily could understand. Marshall won psychologically before he won legally, because he thought ahead of time re just what personal elements might impede the NAACP from getting a favorable final decision. That's why I ask people to sit in the seat of the judge and think about the likelihood of having some crazy person shoot Santa Claus -- given the rather absolute language of the Second Amendment, that should not control the decision, but it will. So, how do you plead around that? Does a split jurisprudence distinguishing the right to keep from the right to bear accomplish that? Similar to the "time and place" restrictions allowed under the First Amendment? I don't know that I know, but that is part of the reason for posting such ideas here, to see what others think.
     
    Last edited: Dec 22, 2006
  5. glummer

    glummer Member

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    Robert
    Can you expand on your O.J. Simpson reference? I don't recall a CCW connection.
     
  6. ctdonath

    ctdonath Member

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    Why not? sez who? Congress has completely neglected any discussion of suitable arms for the "unorganized militia" (not a deprecated concept), and the 2nd Amendment specifically declares "shall not be infringed" anyway. The Militia Act of 1792 at least set a core standard, but that has been repealed and replaced with the waning vestiges of the DCM/CMP (which is rapidly running out of antique Garands to sell at relatively excessive rates (compared to a modern M16 variant)).

    You keep getting wrapped up in a weapon being "not suitable", but fail to explain how a weapon is deemed as such. (Correct me if I'm wrong; in all the verbiage I may have overlooked something.)

    Art's grammaw wouldn't approve of my initial response to that. If we're defending this country, I don't care about playing by rules set forth by enemies or disinterested parties, I care about destroying our nation's enemies.

    BTW: most of those relevant "international laws" don't apply most of the time, either because we didn't sign on or our enemies didn't sign on.



    I'm increasingly puzzled by your propensity to advocate limiting our militia. If involved individuals decide concealed derringers are suitable for a specific task (spying, assassination) in national defense, why do you seek to limit them? Pondering it abstractly in times of peace is fun, but come active combat I don't want to be cursing "Robert Crim and his ilk" because suitable weapons, training, or wielding thereof was deemed academically improper by those not actually engaged in mortal combat.
     
  7. Robert Crim

    Robert Crim Member

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    O.J. Simpson did not have a gun on the night his wife was murdered; but, the best explanation is that he was carrying a concealed knife. His lawyer, Shapiro, appeared at Yale University while I was there and admitted to an assembly that O.J. "was not guilty of what he was charged with" -- which (if you read between the lines) says it all.

    O.J. is a celebrity; like all celebrities, he has security problems -- there really are nuts out there. He was scheduled to fly to Chicago (which has gun control). And he was flying on an airplane (even in those days, he would have had to declare the gun, which pretty much would invite the police to meet him on the tarmac). He had a gun (remember the notorious car chase?), but he didn't take it (he took the knife instead).

    There is speculation in this, but I think good speculation: He dressed, pocketed the knife (a kind easily slipped through the screens of the day), went to his wife's place, perhaps to say good bye to his kids, ran into Goldman come to retrieve the eyeglasses. Pure coincidence. He jumped to the conclusion that Goldman and his wife were hitting it off "right there with the kids," and there was an argument that became a fight. Maybe O.J. took a swing at his wife or similar, knocked her out, and Goldman intervened. They fought; it became a fight for the knife; Simpson won. He then had to kill his wife to eliminate the witness. There are other explanations one could come up with, but that is the best I can think of in light of Shapiro's quiet admission: Manslaughter with a cover-up murder, and not the capital-murder "plot" presented by the prosecution. Since manslaughter/murder-2 was not part of the judge's charge, he really was "not guilty" after all, though civilly liable -- (surprise: the juries got it right!).

    The incident reveals the grave danger of carrying a firearm concealed: A fight like this which erupts relatively innocently, and is never intended to be a fight to the death, becomes just that when a concealed weapon is involved, because the fight must become a fight for the weapon, and who wins that is most likely to use it. The same, of course, could happen were a weapon on display, but at least in that scenario, Goldman has fair warning of the likely result of intervention. The likelihood of a tragic ending, while not eliminated, is reduced.

    Any lawman will tell you unconcealed is better.
     
  8. glummer

    glummer Member

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    Robert
    I don't see the logic of that; it seems to me you have it backwards.
    Why would a concealed weapon be a factor at all, if the concealer didn't intend to use it? The opponent is unaware of its existence, so how could he possibly "fight for it"?
    If the opponent SEES a weapon, on the other hand, it is already a deadly force encounter, and any altercation most certainly WILL be a fight for the weapon.

    It it is concealed,
    It must be revealed.
    If it's not in sight,
    There can be no fight
    for it.
     
    Last edited: Dec 23, 2006
  9. Smurfslayer

    Smurfslayer Member

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    militia arms?

    Wouldn't the liberator also meet the definition of a 'brawling pistol' and yet clearly it was designed with the intent of arming another country's "militia" or resistance against one of our declared enemies. For that matter, OSS had the wrist activated pistol, and the suppressed High Standard, both of which were used in combat (the success or prevalence is not at issue here) and both of which are designed to employ stealth as a means to gain the t*ctical advantage over an opponent.

    I agree w/ previous poster, the slow "abdication" and outright hostility to the "militia" of all forms of late is a trend that needs to be reversed. The militia need not be a group of people solely enthusiastic about firearms, and it's purpose need not be only combat.
     
  10. Otherguy Overby

    Otherguy Overby member

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    You gotta be kidding me!

    Yeah, so they know who to either shoot or arrest first.
     
  11. Malum Prohibitum

    Malum Prohibitum Member

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    Yeah, that's a shocker. :rolleyes:
     
  12. Gifted

    Gifted Member

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    Do we have any news on a ruling?
     
  13. Malum Prohibitum

    Malum Prohibitum Member

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    Decision

    I checked the court's opinion releases page today. Nothing.
     
  14. DKSuddeth

    DKSuddeth Member

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    just a quick thought, but if the second amendment applied only to militias, and militias are usually referred to as the national guard or the police (by the antis of course), why do most gun laws require exemptions for military and law enforcement?
     
  15. Robert Crim

    Robert Crim Member

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    Back from vacation!

    More on the applicability of Younger v. Harris:

    Schlesinger v. Councilman, 420 U.S. 738 (1975); see Palmore v. United States, 411 U.S. 389 (1973); but cf. Steffel v. Thompson, 415 U.S. 452 (1974).

    For those allergic to reading --

    Younger's proscription is not limited solely to the question of state judicial comity but applies apparently to comity generally (Councilman was being prosecuted in an Article I federal court -- the same kind of court present in the District of Columbia, see Palmore);

    However, in the absence of actual pending charges or some other factor (such as a confiscation) creating a local case or controversy, under some circumstances, it is possible for litigants to seek declaratory relief (Steffel). But, my concern here remains the same (presented admittedly in a different context) alluded to in Schlesinger (it is the peculiar facts of the case which give substance to constitutional claims). In the absence of an actual prosecution or confiscation of a weapon, those facts simply don't exist, and the entire chain of legal reasoning becomes highly speculative -- if the police cannot handle the drug dealer, and if the drug dealer continues to be a pest, and if Parker determines that she needs some muscle to keep him in line, and if that muscle needs to be a firearm, and if she then brings it into the district, and if she isn't caught transporting it, and if she then keeps it in her home, and if the police become aware of it, and if the police can establish probable cause to get a warrant, and if they then find the weapon by searching her home, and if they then charge her with an offense, and if the prosecutor exercises his discretion to proceed, and if the court upholds the search, and if the jury declines to nullify, and if the conviction is upheld on local appeal... If I were a judge facing so many "ifs," about the last thing I would want to do is write an opinion construing the Second Amendment given there has been no authoratative guidance on the subject since 1939.

    Why open a can of worms when one does not have to?
     
  16. Robert Crim

    Robert Crim Member

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    Back from vacation!

    More on the applicability of Younger v. Harris:

    Schlesinger v. Councilman, 420 U.S. 738 (1975); see Palmore v. United States, 411 U.S. 389 (1973); but cf. Steffel v. Thompson, 415 U.S. 452 (1974).

    For those allergic to reading --

    Younger's proscription is not limited solely to the question of state judicial comity but applies apparently to comity generally (Councilman was being prosecuted -- for possessing contraband -- in an Article I federal court -- the same kind of court present in the District of Columbia, see Palmore);

    However, in the absence of actual pending charges or some other factor (such as a confiscation) creating a local case or controversy, under some circumstances, it is possible for litigants to seek declaratory relief (Steffel). But, my concern here remains the same (presented admittedly in a different context) alluded to in Schlesinger (it is the peculiar facts of the case which give substance to constitutional claims). In the absence of an actual prosecution or confiscation of a weapon, those facts simply don't exist, and the entire chain of legal reasoning becomes highly speculative -- if the police cannot handle the drug dealer, and if the drug dealer continues to be a pest, and if Parker determines that she needs some muscle to keep him in line, and if that muscle needs to be a firearm, and if she then brings it into the district, and if she isn't caught transporting it, and if she then keeps it in her home, and if the police become aware of it, and if the police can establish probable cause to get a warrant, and if they then find the weapon by searching her home, and if they then charge her with an offense, and if the prosecutor exercises his discretion to proceed, and if the court upholds the search, and if the jury declines to nullify, and if the conviction is upheld on local appeal... If I were a judge facing so many "ifs," about the last thing I would want to do is write an opinion construing the Second Amendment given there has been no authoratative guidance on the subject since 1939.

    Why open a can of worms when one does not have to?
     
  17. ksnecktieman

    ksnecktieman Member

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    robertcrim, It appears to me that our boxes are getting smaller. The results we are getting from the soap box are disapointing, the results we are getting from the ballot box are dissapointing. The results we are getting from the jury box are disapointing. The last box is a little thing, BUT someone once said that "all political power comes from the barrel of a gun".

    I do think that we are VERY close to using the CARTRIDGE BOX... And yes, I do think that we can be pushed to that pont
     
  18. thexrayboy

    thexrayboy Member

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    Am I the only one who finds it hypocritical for the government to be able to stand in front of a judge in court and argue against the Second Amendment yet Fincher in Arkansas was not allowed to stand up in a court room in front of a jury and talk about the exact same Second Amendment in defense of his actions.
     
  19. ksnecktieman

    ksnecktieman Member

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    xrayboy,,, the DUTY of the jury is not just to determine the "FACTS OF THE CASE", It is their duty to determine the applicability of the LAW, and how it relates to THIS CASE,,,,

    Each and everyone of us needs to go to
    FIJA, that is a "Fully Informed Jury Asociation"

    http://www.fija.org/

    And we need to go to,,, constitution society next,,,http://constitution.org/

    there is no gray, there is only black and white,,,, you are either with me or against me....

    I do think that I LIKE THE new HAMPSHIRE motto, of "Live Free oR dIE"
     
  20. thexrayboy

    thexrayboy Member

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    You are preachin to the choir on that subject. I just think if the government can argue in court that the 2A is not an individual right than a citizen should be allowed to argue in court that it is. It is hypocritical of the government to say we can argue against it but you can't even mention it in your defense.
    But of course when was the government actually interested in justice...
     
  21. Robert Crim

    Robert Crim Member

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    Fincher is a new one to me. What's that all about?
     
  22. JLStorm

    JLStorm Member

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    "being neccesary to the security of a free state" I wear a medallian with the second amendment engraved on it, and when I look at it, I often wonder why these people dont understand that the "free state" not only applies to foreign lands attacking ours, but also was meant to keep our states safe from a central government so that we dont have to fight a war for independence all over again some day.

    Sigh :banghead: :banghead: :banghead:
     
  23. Kankujoe

    Kankujoe Member

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    I could be wrong but aren't all the original ammendments to the constitution pertaining to "individual" rights or the protection and exercise of individual rights which could also be applied corporately/civicly but not only pertaining to corporate/civic rights?
     
  24. thexrayboy

    thexrayboy Member

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  25. Robert Crim

    Robert Crim Member

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    As of this moment, I've had opportunity to read only the first ten pages of Parker's appellant brief. Disregarding the question of standing on any of the others, Heller has standing to sue because he actually was denied a permit. This issue actually arose in Connecticut, where Hamden's police chief, in defiance of the State's right-to-arms provision, refused to issue any permits and was enjoined from further withholding. Unfortunately, I do not recall the exact name of the case.

    Because the permit was refused, I don't think Younger could be made to apply here. Since the law requires a permit to possess and transport, denial of the permit itself constitutes legal injury in fact. A ruling against Heller on Younger grounds in effect would imply that the permit system is unconstitutional (not a likely holding).

    For more on standing generally in D.C., see Bush v. Harrington and its progeny.

    I might add that reasonable regulation of any recognized right to possess something really dangerous, e.g., a machine gun, almost would require some form of permit system or tax law similar to NFA (the gun is "registered" when one pays the tax).

    Re "civic" rights, the term is unknown to history. The Founders would have recognized only "natural" or "positive" rights. A "natural" right is one possessed by an individual as an adjunct to being an individual (a "right" possessed in a "state of nature," such as the right of self-defense). A "positive" right is a right possessed by an individual as an adjunct to being a citizen (a "right" created by the existence of society or its particular form, such as the right to trial by jury or the peculiar form of the right to arms I've been talking about, viz., per the privileges-and-immunities clause). "Natural" rights may be modified by statute, but "positive" rights are bounded only by other rights.

    Re the applicability of the Second Amendment to D.C., note that Justice Douglas' dissent to Palmore (see my previous post) cites numerous cases where other rights from the Bill of Rights apply directly to D.C.

    Steffel appears to state that only declaratory relief is available to Heller. He does not appear to have any right to an injunction other than perhaps to force issuance of a permit. This is the equivalent of a writ of mandamus. He certainly has no legal ability to enjoin a criminal prosecution, especially since a declaratory judgment in all probability would make a prosecution pointless (proof could not be had beyond reasonable doubt, as a matter of law).

    N.B.: In Connecticut, the permit was required to "bear" the arm concealed. The state supreme court has implied in other cases (but not actually ruled) that one does not need a permit to bear a lawful firearm openly. There was, however, at one point a statute which prohibited carrying openly as "disturbing the peace." This has not been the subject of litigation to my knowledge.
     
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