Apellee's brief in Parker v. District of Columbia

[glummer]

You have been unable to show how the meaning of the phrase "rendering militia service" changes regardless of whether it's modifed by a right or a duty.

The meaning lies in who gets decide.
If I have a right to do x, I decide when, where, how, and if.
If x is a duty, someone else decides for me, at the point of a government gun.
The Minutemen at Concord & Lexington were asserting a Right.
The Redcoats were trying to enforce a duty.
They all seemed to think there was a difference in meaning.

It is also obvious that bearing arms here, refers to rendering militia service, and that Story refers to it as a RIGHT.

It is obvious that the bearing of arms CAN refer to militia service. It is NOT obvious that it MUST.
If the RKBA refers to, say, 4 things, only one of which is the militia, your quotes still fit.
You are ASSUMING a restrictive definition, without any evidence.

And you must have left a line out of your quote. I see no reference to miltia service as a right. The bearing of arms by citizens is presented as a right; but we knew that already - the 2A says the same thing.

 

[Ieyasu]

The meaning lies in who gets decide.
If I have a right to do x, I decide when, where, how, and if.
If x is a duty, someone else decides for me, at the point of a government gun.

If I have a right to do military service, I decide when, where, how, and if.
If military service is a duty, someone else decides for me, at the point of a government gun.

But, guess what? The term, "military service" has the same meaning. Thus, regardless of whether bearing arms is modified by the the word "right," it still has the same meaning, rendering military service. A point that you keep ignoring.

And you must have left a line out of your quote. I see no reference to miltia service as a right.

That's because you seem to have trouble connecting sentences. So I'll do it for you...
Story first states, "The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers." And continues two sentences later with, "The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."

It is obvious, even to you, though you may not want to admit it, that bearing arms in this instance (as a right) can only refer to bearing arms in the militia. In other words, rendering military service. It is also obvious that Story is not talking about bearing arms against burglars as a means of fighting usurpation. Again, it is obvious that it is through the militia, citizens bearing arms (he refers to it as a right), that usurpations are repelled.

It is obvious that the bearing of arms CAN refer to militia service. It is NOT obvious that it MUST. If the RKBA refers to, say, 4 things, only one of which is the militia, your quotes still fit.You are ASSUMING a restrictive definition, without any evidence.

So, you are now conceding that a right to bear arms may include serving in the militia? Even though it may include other things such as fending off burglars or bearing arms against rabbits?

 

[hugh damright]

If I have a right to do x, I decide when, where, how, and if.
If x is a duty, someone else decides for me, at the point of a government gun.

I am reminded of the original Georgia State Constitution declaring that:

"Every county in this State that has, or hereafter may have, two hundred and fifty men, and upwards, liable to bear arms, shall be formed into a battalion; and when they become too numerous for one battalion, they shall be formed into more, by bill of the legislature; and those counties that have a less number than two hundred and fifty shall be formed into independent companies."

I can see how the people of Georgia had a right to militia and that created an individual duty.

 

[Malum Prohibitum]

Parker

Well, back to Parker - today is the date Plaintiffs' reply brief will be filed in the Court of Appeals. It is not yet available online.

 

[secondamender]

Reply is up now.

 

[ctdonath]

Where?

 

[secondamender]

http://www.gurapossessky.com/documents/parker_merits_reply.pdf

 

[carebear]

Sweeeeeeeeeet.....

 

[Ieyasu]

Thanks, for the heads-up guys!

Read the brief. I saw stuff I liked, and stuff I didn't.

I like the way they defended handgun use via Miller.

I thought their best point was: "Yet Defendants do not propose a coherent alternative rationale for the Second Amendment - i.e. an alternative reason for the Amendment's adoption, and explanation of its functional purpose." (and the footnote accompanying that statement)

I thought they could have better hammered-home the point that the "power of the sword is not in the hands of either the federal or state governments, but... in the hands of the people" (Tench Coxe). I think that's one the best ways of destroying the appellee's theories. They could have added quotes from Rawle and Hamilton as well. Maybe there is a word-count limitation on the response?

I thought the following was lame:

Defendants' asserton that the Second Amendment was aimed at allaying Anti-Federalist concerns regarding the Militia clauses is based on selective history. Anti-Federalist Patrick Henry demanded an amendment of which "[t]he great object is that every man be armed....Everyone who is able may have a gun."

I think that's a distortion. Here's the full quote:

But, say gentlemen, the general militia are for the most part employed at home in their private concerns, cannot well be called out, or be depended upon; that we must have a select militia; that is, as I understand it, particular corps or bodies of young men, and of men who have but little to do at home, particularly armed and disciplined in some measure, at the public expence, and always ready to take the field. These corps, not much unlike regular troops, will ever produce an inattention to the general militia; and the consequence has ever been, and always must be, that the substantial men, having families and property, will generally be without arms, without knowing the use of them, and defenceless; whereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it. As a farther check, it may be proper to add, that the militia of any state shall not remain in the service of the union, beyond a given period, without the express consent of the state legislature.

I think it is correct to say that Patrick Henry was concerned, regarding the militia clauses. He expected the people to be armed and receive some degree of training. The above had nothing to do with arming the people for self-defense. Of course people could use arms for that purpose, but the above is not evidence that the 2A protects self-defense.

Overall though, I thought the reply scored more points than it lost. Hopefully the court will rule favorably for the 2A, but I won't hold my breath.

 

[Malum Prohibitum]

Maybe there is a word-count limitation on the response?

It is a reply (the government filed the response), and there is a much stricter page limit on reply briefs than on the original brief or the reply brief (both of which also have length limitations).

 

[ctdonath]

Read it. Very good.

Just as the prior brief on behalf of the defendants (the DC oligarchy) was a tour-de-force in mind-numbing idiocy & bias, this brief on behalf of the plantiffs (common folk residing in DC) is a magnificent display of "shut up and stop talking stupid."

Notable key points:

- Comparable case Seegars won on a lot less in many aspects.

- Standing is undeniable. The handgun ban is, without a doubt, total and actively enforced. That administrative recourse exists means nothing when that recourse cannot lead to any other outcome. That the law is frequently enforced as a criminal matter, and that post-filing statements amounting to "yes we will prosecute the plaintiffs if we catch them violating the law", indeed has a relevant chilling effect on exercising the suppressed right. The legal concept of "ripeness" is relevant to an ongoing case as a sense of urgency grows on the plaintiff's part.

- Defendants are caught selectively quoting passages and ignoring their own statements. Changing meaning by leaving out key words is dishonest and contemptable.

- A ban, plainly stated in law, is standing enough. One need not violate the plainly stated prohibition to get a court to address the fact that a behavior is prohibited. Violating a "must be registered" law is unnecessary to standing when registration simply will not occur.

- A plaintiff has a right to have Constitutional issues addressed in a federal court. Limiting plaintiff to a court of local jurisdiction is absurd when the plea involves the local jurisdiction.

- Defendant cannot introduce significant new stuff on appeal. They had the chance to bring up major arguments in the original case; obfuscating the issue by broadsiding the case with a truckload of new stuff isn't allowed - especially when the plaintiff raised the issue at a time allowing ample response.

- Handguns are in common use by citizens, police, and soldiers. This is obvious, so Miller is satisfied.

- There is a difference between "safe storage" and "permanently disabled". Don't claim the latter is the former.

- The "civic right" theory is new, anathema to well-documented original intent, and stupid. To wit: "Indeed, if Defendants are correct, the Second Amendment must have repealed U.S. Const. art. I, § 10, cl. 3, forbidding the states from keeping troops in peace time without the consent of Congress" and "[The civic right theory] is an odd vision of revolutionaries who took up arms against the British crown."

- The Founding Fathers, in prolific writings, legislative examples, and obvious presumptions, unquestionably wanted EVERY upstanding citizen to be armed with the best weapons possible. Contending the opposite is stupid, to wit "Defendants conveniently skip the fact the Amendment achieves the Militia-protecting purpose they espouse by guaranteeing an individual right to keep and bear arms."

This brief is well done, solidly addressing the opposition's arguments without getting bogged down in nitpicking detail.

Methinks if you went thru the brief and replaced the appropriate terms with "machineguns" and "922(o)" with minor changes, it would make a solid foundation for overturning the '86 MG ban.

 

[Ieyasu]

Indeed, if Defendants are correct, the Second Amendment must have repealed U.S. Const. art. I, § 10, cl. 3, forbidding the states from keeping troops in peace time without the consent of Congress

How so? Where in the appellee's brief can that be inferred?

Defendants conveniently skip the fact the Amendment achieves the Militia-protecting purpose they espouse by guaranteeing an individual right to keep and bear arms."

The Appellee's claim the 2A does protect an individual right, but "they must plead and establish that a congressional or state law will impair their participation in common defense and law enforcement when called to serve in the militia."

Which is where I believe the civic right theory breaks down. For example Alexander Hamilton:

T]he people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.

Thus the militia is the ultimate check against a state and the national government. (Of course, unless fighting an usurpation, militias are controlled/governed by a state). So regardless of who supplies the militia arms, it's the people who should still have the option, if they so choose, of keeping arms.

Naturally, the civic right fans try to argue the 2A is obsolete, and others will argue we no longer have a militia. That is why, in-part, I think it's fool-hardy for pro-gunners to deny that the National Guard, when in the service of the states, is not a militia. It is, however the states, in collusion with the feds have deprived the people of their right to keep arms. That of course makes it tough for courts to defend the 2A.

 

[ksnecktieman]

So? What is the meaning of "bear"?
So? What is the meaning of "keep"?
So, and most important,,, "what is the meaning of "ARMS?" "
AND, since we are modifying the english language,,,, WELL, we are here,,,,, as Slick Willy asked,,,,, what is the meaning of 'IS'....

This is all smoke and mirrors, any magician will keep you looking at the wrong thing, with a little smoke, and a mirror or two.

IMHO, the men who made our government, had just fought a war with the "government" in this specific case, the king of England. The spark that started the shooting was an attempt to sieze the guns and gunpowder of the colonists?

The men who made our government intended to make it possible for EVERY MAN to be armed. Without any chance for the government,,,, Federal,,, State,,,, or Local to "infringe" on that RIGHT.


We are "free men", or we are "subjects",,,, and I think it is being decided in this court, at this time.

 

[Ieyasu]

The men who made our government intended to make it possible for EVERY MAN to be armed.

You forgot, trained and disciplined, which we don't have today. Thus, the opening the anti's use in an attempt to declare the 2A obsolete or restricted to certain individuals as specified above.

Your opinions without supporting evidence don't mean crap to a neutral or slightly anti-leaning person who is exposed to the other side's arguments when intelligently expressed.

 

[Gifted]

I notice on the reply, they list states under the amici. Could someone explain this to someone who isn't in the know?

 

[Malum Prohibitum]

Gifted, Amici is a latin term meaning "friends." Several states Attorneys General filed a brief declaring the interest of the states in making sure that their citizens' rights are protected. The brief is essentially a "friend of the court" brief filed by someone not a party to the action who has an interest in the outcome of the case. Different courts have different rules about these briefs, but by and large they can be filed. Sometimes Supreme Court cases get hundreds of them.

In the States’ Amici Brief, the Attorneys General affirm that the “primary meaning of ‘bear’ is ‘to carry.’ “ States’ Amici Brief, p. 13. (I am sure Ieyasu is going to jump all over them). They go on to say that the Second Amendment “affords an individual right to ‘the people’ to ‘wear, bear, or carry’ arms….” States’ Amici Brief, p. 14. And, the Attorneys General conclude that the Second Amendment right to carry arms is subject only to “any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms….” States’ Amici Brief, p. 28. The States’ Amici Brief was filed for the stated purpose of protecting the right of the citizens of the states included in the brief to travel “while carrying properly-licensed weapons” not only in their own state, but elsewhere in the nation, including the District of Columbia, without fear of “unconstitutional arrest and prosecution.” States’ Amici Brief, Statement of Interest of Amici Curiae, p. 2.

I am proud to say that my own state, Georgia, was among them (in spite of having a Democrat as Attorney General).


You can view the brief by clicking here and selecting the States Amicus Brief. http://www.gurapossessky.com/parker_pleadings.htm

 

[ctdonath]

Where in the appellee's brief can that be inferred?

That's the end result of the main point of the appellee's (defendant's) brief: if the 2nd Amendment was intended as a "civic right", equipment and training and participation is solely at the discretion of the state government - which is basically indistinguishable from keeping troops. (Yes, there may be nuanced differences - but this responsive brief had limited space to make the points, and is a red herring to the core question of individual ownership & carry of functional guns.)

The Appellee's claim the 2A does protect an individual right

The words may be there, but the meaning & outcome is not. If a right is limited only to what the government permits, it's not a right. Under "civic right" theory, only those guns designated suitable by the gov't are allowed to be owned, and only those individuals designated suitable by the gov't are allowed to participate - that's not a "right". The Bill Of Rights protects rights by disallowing the government from placing restrictions (with the only generally-accepted restrictions allowed involve outright abuse of those rights to the detriment of others).

So regardless of who supplies the militia arms, it's the people who should still have the option, if they so choose, of keeping arms.

If the government decides who & what, that's not much of an option.

I think it's fool-hardy for pro-gunners to deny that the National Guard, when in the service of the states, is not a militia.

Federal law declares the National Guard part of the US militia.
Federal law declares the remaining able-bodied males of suitable age the rest of the US militia.
Congress has issued a finding that the 2nd Amendment is for every sane adult non-criminal citizen.
No point arguing that much farther.

The men who made our government intended to make it possible for EVERY MAN to be armed.

Hence the responding brief's comment that "[The civic right theory] is an odd vision of revolutionaries who took up arms against the British crown."

You forgot, trained and disciplined, which we don't have today. Thus, the opening the anti's use

True, something under-discussed from our side, and axiomatically presumed and abused by the other. The gov't has a DUTY to provide training, and was directed to do so under the Militia Act of 1792 (?) ... unfortunately the National Guard act ended that general training and limited it to NG members. The only remaining military training available to citizens is the DCM/CMP program, which is mostly limited to minimal application of antiques - hardly the training intended by the Founding Fathers.

We need to loudly respond that the lack of gov't-supplied training does not eliminate the individual right to modern weapons - to the contrary, it increases the need to obtain & train with them at our own cost. The gov't still has the power to call up the militia, which it must expect will have somehow fulfilled its civic duty to arm & train independently of what the gov't failed to provide.

 

[Kim]

Do not forget that the NRA was set up to provide training for markmens so if needed they would know how to shoot. This was a Government instituted and funded entity with a 20,000 dollar grant. Yes the NRA was part and of the Feds helping to supply militia training. They still fullfill this goal today. Unfortunatelty not everyone wishes to be trained. But it is available to citizens and policemen. What we need is for people to realize their duty and responsiblity. But this would take a PRESIDENT who tried to instill this idea to the people. Espically the young. Not gonna happen. Sadly. I think Clinton changed the CMP program from being so tied to the government and now it is privately run. He did not want the FEDS to be training the MILITIA. Funny how this was not known to the average citizen. I can not remember of this was legislation or one of those great " swipe of the hand law of the land COOL" Presidental orders that Carvill and buddies was enthusiastic about.

 

[ctdonath]

Nice to finally find the site consolidating the Parker case paperwork!

A few observations as I skim the filings of the case pre-appeal:

- Defendants are developing a pattern of obnoxiousness: plainly deliberate delays, excuses, misunderstandings and misrepresentations. This is not behavior indicative of a party expecting to win, or at least win fairly.

- The Seegars case is similar enough that the Seegars plaintiffs requested that the two cases be merged. This was denied based on logistical complexities not related to the actual point of the cases. This, I believe, is good: should the two cases return conflicting verdicts, the "equal protection" clause can be invoked and the issue can be forced into the Supreme Court (whether SCOTUS will do right is worthy of a separate thread).

- Interestingly, the Parker plaintiffs do NOT want anything to do with the Seegars case, and filed a motion to wit "get out of my face - this is my case, not yours", and elsewhere refer to related behavior as "NRA antics" and "copy-cat case". Seems one has thoroughly ticked off the other, to such a degree that Parker plantiffs have requested two of the Seegars lawyers (Halbrook being one) be kicked off that case.

- Tangentially, the related case is alternately spelled "Seegars" and "Seegers".

- The Parker lawyers seem exeptionally competent and thorough.

- A lot of damage has been done by relying primarily on coincidental criminal cases to defend 2nd Amendment rights (Miller, Emerson and Stewart come to mind). Practically speaking, and further discussion warranting another thread, criminal cases involve attempts to use & abuse fundamental rights both to acquit and convict guilty-as-sin defendants (or vindicate corrupt-as-he11 prosecutors) such as arguing a militia-related right to bear arms in the context of threatening his ex-wife therewith; these twisted cases come back to haunt us in droves, as heavily abused in the defendants' motion to dismiss.

- The original defendants' response (motion to dismiss) to the complaint makes sense from their point of view, and addresses how the court is most likely to deal with the case. To wit: there is LOTS of federal precident denying a generic right to own/carry/use guns for normal home & self-defense-type cases. As I continue skimming the progressing documents, I expect to see what amounts to the "oh crap" moment where defendants realize plaintiffs have a winning position (like, you know, the Constitution's plain wording) and suddenly pull the too-late "Hail Mary" defense of the never-heard-before "civic right" theory.

- This case, surprisingly and fortunately, stays focused on the 2nd Amendment. Most either avoid it entirely or give a flippant re-interpretation thereof. Defense, right from the start, plays into the plantiff's hands by squarely sticking to the 2nd Amendment, without addressing anything else, not even standing (a typical "out" stated in a motion to dismiss).

- Notable quote: "defendants premise their motion on a single incorrect assertion: that the Second Amendment, unlike every other provision of the Bill of Rights, should be read as granting “rights” to the states, rather than to the “people” ordinarily thought to enjoy “rights” throughout the Constitution." Defense made that bed, now they have to eat it.

- Notable quote: "the D.C. Circuit suggested it would adopt the individual rights model." followed by "Although the D.C. Circuit’s opinion in FOP II, supra, 173 F.3d 898, did not explicitly adopt the individual rights model, its analysis of Miller is plainly inconsistent with any “collective rights” approach to the Second Amendment." Sounds good!

- When referring to the weapon in Miller, defendants conveniently refer to the item as a "shotgun", whereas plaintiffs reference the "untaxed sawed-off shotgun". A big difference indeed between a common unregulated item and an uncommon regulated item. Perhaps the court will note this.

- The cases held by the defense for their argument are subsequently systematically demolished by plantiffs and shown to support the "individual rights" view. This likely lead to the later "civic right" concoction, introduced late - possibly too late.

- Notable quote: "This surely does not suggest that the First Amendment secures a right of the states to organize demonstrations and issue propaganda."

- Notable quote: "After the Constitution was submitted for ratification in 1787, its Anti-federalist opponents charged that the vast powers granted the federal government over military affairs would allow Congress to destroy the militia through neglect or deliberate action, replacing it with a standing army designed to oppress the people." Yup. They were right. Having neglected the militia (as the people in general), anti-gun types now abuse the situation with, to wit, "you can only have a gun as part of a militia - but since you're not actively involved, you can't have anything."

- The Parker lawyers may dislike Halbrook, but they do quote him.

- The original Plaintiffs' Opposition To Motion To Dismiss may be the single best analysis of the 2nd Amendment.

- Notable quote: "Just as the First Amendment guarantees more than the possession of blank newsprint and ink, neither does the Second Amendment guarantee a right to possess metal and springs."

- The original Plaintiffs' Motion Requesting Summary Judgement is also a superb pro-RKBA analysis. Aside from other good material, it amounts to "say the defendant's arguments are completely correct - what's left is so wrong/unconstitutional/stupid that we STILL win the case without difficulty."

- For some time, arguments were had regarding whether the interesting part of Emerson was "dicta". This is addressed in Parker, and deemed not dicta as that case could not have been resolved without first analyzing the 2nd Amendment's scope and purpose.

- Notable quote: "Such reasoning is the very definition of circular."

- That some regulation is permissible does not automatically translate to a justification of total comprehensive prohibition.

- Defendant's arguments often amount to "bad people do bad things with dangerous objects". Not legally persuasive.

- Defendant is not even sure how many plaintiffs there are, frequently referring to four when there are six - despite plaintiffs repeatedly pointing this out in court-filed documents.

- Defendands' comments axiomatically presume "guns = bad", "self defense is not facilitated by guns", "gun in the home = gun on the streets", etc. It's not just stated, but the fundamentals of various reasoning cannot be based on anything else. They just don't "get" RKBA.

- Defendants stupidly contend in effect "someone else might prosecute you, so you can't stop us from prosecuting you."

- There is a subtle precision in the plantiffs' documents, and a subtle lack of precision in the defendants' documents. Nuances of spelling, formatting, references, etc. tell me the former is really on the ball, while the latter just isn't quite in the same league. I'm not surprised that at some point the defendants' lawyer quit (bailed?), and the legal office filed a "when he left we had no idea what to do" motion.

- The Brady Bunch's brief grossly distorts Miller, insisting the case resolved on whether the person was involved in militia actiity, and claims the error is interpreting Miller as revolving on the suitability of the weapon for militia use. Suffice to say they are wrong. I'm also struck by the grammatical errors along with the bent reasoning.

- The Brady brief at this point lays out the "collective right" theory in the usual manner, preceeded by the statement that "given the clarity of the Second Amendment's language and Miller's unambiguous interpretation of it, there is scant reason to consider the Second Amendment's legislative history." The whole argument is based on the axiom that individual right was never intended - not considering that individual right was axiomatic to the framers. Interesting how this theory is later replaced by the "civic right" theory; which defendants' theory then is the court to consider? Much of the reasoning amounts to "this proof of X proves not X."

- Notable quote: "And lest anyone suggest modern court usage may differ from late eighteenth century usage, note that Noah Webster, who participated in the 1787 ratification debate, later famously published a dictionary of American English. Its definition of
“keep” has no military connotation at all. Its definition of “bear” is even more adverse to the BC/VPC amici, mentioning arms in a context that applied to civilians, not uniformed soldiers: “to bear arms in a coat.”"

- Notable quote: "Were the framers concerned that without the Second Amendment Americans might be sent into battle by the government unarmed?"

- VPC submitted article "A New Paradigm for the Second Amendment". Idiots. Constitutional law is about original paradigms, not new ones. With it, I am noticing a growing trend of anti-gun academia: frequent flagrant statements amounting to "X proves Y, so not Y is true."

- Notable quote: "Ordered and adjudged that Final Judgement is entered in favor of the defendants." Boo!

- Notable quote: "This Court reads Miller ... as rejecting an individual right to bear arms separate and apart from Militia use. ... This Court ... sees no need to proceed with an in-depth analysis because none of these plaintiffs have asserted membership or any relationship with any Militia."

Crap. And it was going so well. Aside from presumed judicial activism, methinks this can be chalked up to the tendancy of most courts to not go against the growing pile of anti-individual-RKBA rulings ... which unfortunately means the pile gets bigger.

SCOTUS must take the case. SCOTUS must be forced to take the case. Not enough lower courts are willing to take the risk of doing what's right. I just fear that SCOTUS won't do what's right either. They all keep referring to decades of no reversal of Miller - which is odd, because Miller basically said defendant COULD own weapons so long as they had some connection to militia use. It's all getting perverse, and there's only two ways to straigten it out.

That's enough for now. Next I'll dredge thru the appeal.

 

[Ieyasu]

- Notable quote: "And lest anyone suggest modern court usage may differ from late eighteenth century usage, note that Noah Webster, who participated in the 1787 ratification debate, later famously published a dictionary of American English. Its definition of
“keep” has no military connotation at all. Its definition of “bear” is even more adverse to the BC/VPC amici, mentioning arms in a context that applied to civilians, not uniformed soldiers: “to bear arms in a coat.”"

I agree with "keep." However, "to bear arms in a coat." is hilarious. Even the Emerson court fell for that one. Here's the full quote from Emerson:

A similar indication that “bear arms” was a general description of the carrying of arms by anyone is found in the 1828 edition of Webster’s American Dictionary of the English Language; where the third definition of bear reads: “[t]o wear; to bear as a mark of authority or distinction, as, to bear a sword, a badge, a name; to bear arms in a coat.”

I remember the first time reading that in Halbrook's book and thought it looked fishy. I didn't see how having a gun in a coat was a mark of authority or distinction, and it certainly wasn't worn. (I can hear somebody saying, "what about a holster dumba$$?").

Anyways, I came to realize that coat was probably short for a coat of arms. In that 1828 dictionary, one of the definitions given for coat is a coat of arms.

Then I ran across the Johnson Dictionary which precedes Webster's by several decades (1755), and looky here, for one of the definitions of bear:

To carry as a mark of distinction. To bear arms in a coat.

I hope nobody is dumb enough to insist that somehow carrying a gun in a coat (it would have had to have been a pistol) was a mark of distinction as opposed to a coat of arms.

 

[Mr.V.]

Well every thread needs a worrier...please point out where I'm wrong.

The apellee's start by arguing via Marbury vs. Madison that the constitution must be interpreted as a whole. They then make some bizarre point about invisible ink that the apellant's shoot down nicely. But they also go on to argue that congress is restrained by purpose clauses based on the Graham vs. John Deere Co, 1966. Is this true? Does this precedent force the purpose clause on the second amendment? The apellants don't argue against it in their brief.

The appelant's did a great job stating that even if 'people' is referred to as a collection, any individual can excersize his or her rights. But it doesn't matter if that right can only be excerized in the context of forming a well regulated militia.

Bottom line, I would have liked to see a more direct argument about the purpose clause than merely stating, "Defendants’ 'civic' argument cannot escape the logic that the Amendment’s purpose must be consistent, and cannot conflict, with its operative clause."

Because in the end if we fail to hit this home, the antis can say that our right to firearms SHALL be infringed so long as keeping and bearing arms no longer meets the purpose of forming a well regulated militia...

and we're not going to win with the "regulated means well-supplied" argument that several founding-father quotations disprove...

But again, I'm no lawyer and am struggling to understand both of these arguments, so by all means tell me I'm wrong. This is one thing I don't want to be right about.

 

[Ieyasu]

I agree with your apprehensions Mr. V.

In the appellant's original brief they blew it by quoting Eldred. The Appellee's brief did a much better job of showing that the militia clause could be interpreted as being restrictive based on court precedent. They also did a good job of presenting their interpretation of Miller -- The description of what arms are useful to the militia, and thus protected, are determined by the "present needs" of the militia... as determined by the militia, and by implication the effected community.

 

[hugh damright]

"[The civic right theory] is an odd vision of revolutionaries who took up arms against the British crown."

I don't see what's so odd ... we were considering secession and there were British troops here to keep us in check ... the British troops were supposedly for our protection, but the French/Indian War was over, and Virginia neither needed nor wanted the British troops ... so what might we expect Virginia to declare? To me, it would seem very odd for Virginia to react to the British troops by declaring that the individual RKBA for personal self-defense and hunting shall not be infringed ... I would find it easier to believe that they intended some select/organized State Militia.

I agree with "keep." However, "to bear arms in a coat." is hilarious.

Yeah ... this was one of those points where I was too embarrassed to keep reading. I think it is not just "to bear arms in a coat" that is funny ... I found it a funny argument that, since the word "keep" isn't defined as a military term, then the Second Amendment must protect our right to keep arms for other purposes. The whole argument seems inept to me. We know that the USBOR was intended to limit only the US, and we know that the US power regards militia not personal self-defense or hunting ... so how are we going to change that by looking up words in a dictionary?

What some people seem to do is to take the Second Amendment out of the context of federal government, then take words out of the context of the Second Amendment, then take one word and spin it a certain way and *bada-bang-bada-bing* the Second Amendment is construed to protect all aspects of the RKBA from all government infringement. I simply don't think of it as a serious/adult argument.

 

[Malum Prohibitum]

Your "serious/adult argument," if you mean the appellee's position, is going to land you in the predicament of only being able to possess a firearm for purposes of your membership in the National Guard. In other words, no right whatsoever.

Why is it so many on this thread are pretending that the DC government is arguing for some limited individual right?

They are not.

Keep in mind what this case is about. Many of the threads here seem to forget the context of this case. The right to have a functioning firearm in one's home without fear of arrest. That's it.

Now, it is fine if you do not believe that the Second Amendment protects that.

There are quotes above, including the statute proposed by Jefferson and Madison, in which "bear arms" is clearly "carry" and, in the case of that particular proposal, differentiated from any military service by the express words of the proposal. You choose to believe that bear arms can only have a military connotation. Your continued insistence on arguing such an untenable position can only be considered as obstinance at this point.

They most specifically did not mean that the right to keep and bear arms was limited to service in a "select/organized militia."

Again, it is helpful to examine a parallel sentence, so as to divorce yourself from the emotion tied to this issue.

A well educated electorate being necessary to the security of a free state, the right of the people to keep and read books, shall not be infringed.

Your arguments, applied to the above, would mean only those already well educated and registered to vote could keep and read books.

Use the reason that God gave you.

Would the above Amendment allow you to have legible books in your home, or not?

 

[ctdonath]

it would seem very odd for Virginia to react to the British troops by declaring that the individual RKBA for personal self-defense and hunting shall not be infringed ... I would find it easier to believe that they intended some select/organized State Militia.

Why are you so he11-bent on keeping the two separated into a "militia XOR personal" argument? Here's a crazy idea: the framers meant BOTH! Personal self-defense includes defending one's self against an oppressive government ... and when a million individuals have the same self-defense interest against the same adversary, they can all join together and organize and work as a whole to more effectively defend each self against that adversary - that's something called "the militia". Whodathunkit?

Virgina per se is not a sentient being. Virginia is a collection of sentient individual beings who live in a defined geographic area and share certain common interests. To say "they intended some select/organized State Miliita" is to say that many of those individuals intended to turn over their self-defense to another organized group ... when in historical fact they sought a protected right to EVERY individual being able to arm & organize (be it a group of thousands or just one, depending on circumstance), each individual contributing to a whole. That there was discussion of "select", "able-bodied men", etc. simply points to lesser practical matters when the issue is self-defense aggregating to a greater whole.

Considering the government of the time was unable to completely & suitably arm a broadly-defined militia, it was up to those who would be called up (any & all able-bodied males) to arm themselves (as was soon formalized by the Militia Act of 1792). And being self-armed as they were & were expected to be, it is preposterous to assume that those people would somehow be forbidden from defending themselves or harvesting game with those very same weapons when appropriate to do so.

I think it is not just "to bear arms in a coat" that is funny ... I found it a funny argument that, since the word "keep" isn't defined as a military term, then the Second Amendment must protect our right to keep arms for other purposes.

BINGO! it IS to protect our RKBA for military AND other purposes! The "militia" clause is just a "sufficient but not exclusive" justification for the unrestricted (per "shall not be infringed") right explicitly protected. That to "keep" arms is necessary for militia needs, as stated, does NOT restrict that "keeping" solely to militia use. Some things were, as are to any writer, so flagrantly obvious that they need not be stated. You cannot defend a nation "of the people" without allowing individuals to defend themselves - 'tis preposterous to consider otherwise.

We know that the USBOR was intended to limit only the US, and we know that the US power regards militia not personal self-defense or hunting ... so how are we going to change that by looking up words in a dictionary?

The point is that US powers were not to infringe on individual rights. By your logic, the feds should be able to forbid Christianity because religion is not a US power, and the feds should be able to forbid comic books because printing fiction is not a US power! absurd.

The USBOR restricts (per "shall not be infringed") the feds from exercising its duly granted powers in a manner which prevents individuals (per "the people") to own & carry weapons (per "keep and bear arms"), and a primary (but not necessarily exclusive) reason therefor is so when a militia is called up they are already armed, and familiar with those arms (as opposed to, as most "collective right" theorists would have it, show up and get whatever they're handed and have little or no idea how to use the newly-acquired weapons - right at the moment their lives & country will rely on using them).

Looking up words in a dictionary, especially the dictionary written by Daniel Webster himself who was present at the proceedings which created the USBOR, helps us understand exactly what was meant by those words at that time. As the definitions given (by someone who was there and a participant) state nothing about "militia", much less military use exclusively, this is a strong indication that your whole "military use exclusively" argument is rapidly falling flat on its face.