Apellee's brief in Parker v. District of Columbia

[gc70]

Bring any case you want; but, please, for the benefit of the rest of us, don't be a child, and don't be a fool.

Attempting to silence debate by name-calling or claiming exclusive knowledge (i.e. I'm a lawyer; are you?) is not consistent with taking The High Road.

 

[Low-Sci]

"The Second Amendment was not intended to put the RKBA under jurisdiction of federal government."

Yet, simply by the fact that it exists, it does put the right to keep and bear arms - and protection from infringements - in the hands of the Federal government. If this was not intended to be true, I sincerely doubt that the Framers wouldn't have seen that coming and fixed it. If this result was unintentional, you'd have to prove it to me.

 

[Robert Crim]

Sanity?

Thank you, Hugh, for some sanity in the Sea of Darkness.

I'll add only two more things:

A) Secondamender's analysis of the Bill of Rights is traditional, not analytical, and thus seeks to explain the Second Amendment in terms of the First, as an exclusion of power the federal government never had rather than an alteration of a power it does have (to "arm, equip, and discipline" the militia). Obviously, I disagree (the gist of my first post), and my proof is: (1) No one following his approach has gotten a case before the Supreme Court in seventy years, and the actual record is bleaker than that because at least one of the 1930s cases was forced on the Court by district-court mistake (ruling a federal law unconstitutional); (2) he misses the line of Supreme Court cases which serve as foundation for recognizing the superiority of the analytical framework, or at least (if he hasn't missed them) he hasn't said what they are.

Robert's First Rule of Order: Before calling a federal judge (or justice) a jerk, be damn sure you're not the one who is being a jerk. Secondamender says he is a lawyer but has yet to rise to my challenge (back to the library!).

B) At federal law, a case "arises" under the Constitution, treaties, or laws [Article III] when its complaint pleads a legal injury which can be redressed by a federal court. It is not enough to claim one is injured (the injury must be in the form of violation of a federal right), nor is it enough to claim an injury (one actually must be among the injured). This is the gist of the "standing" doctrine.

The flaw I see in the Parker complaint is that Parker & Co. want standing: (1) They have pleaded an injury, but it is not the federal injury, and because they are in D.C., the more likely forum of redress is an appeal to Congress (as the ultimate local governor) rather than to the federal courts; (2) most certainly, there are people injured by gun control, and at a federal level (by State as well as federal action), but Parker's complaint does not allege that she or any of the co-plaintiffs are among them. This is the fatal flaw: The court has no jurisdiction, and no collusive or other agreement among the parties (e.g., not to plead to or challenge jurisdiction) can create that.

 

[AZRickD]

US Constitution:
Article I Section 8. The Congress shall have power:

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States,

That does not give Congress, or any political subdivision which it might decide to create, the power to void rights. The Courts, and the USSC have an obligation to protect rights which are being violated.

Rick

 

[secondamender]

crim:

I know your type. All lawyers do. You're the kind of person who comes in with some sort of screwball theory, and you know it all. Well, you don't. I know how that sounds, what I'm saying, but sometimes there's just no subsitute for a direct statement of reality. There's a reason we spend time studying this. There's a reason why I'm paid to litigate cases, and you're not. Can a trained monkey do my job? Perhaps. Emphasis on the "trained."

If this thread is going to discuss the merits of the Parker claim or of litigation in general or particular, then it is interesting and useful.

If this thread is going to be a place to vent all kinds of wacky notions that have no place in our law, such as, that plaintiffs cannot go to an article III court to assert a violation of rights under the U.S. Constitution, or that DC has some power or authority that is not derived from the federal government, then it's a waste of time.

I realize I'm just some anonymous person on the internet and will remain so. And even if I were the ghost of John Marshall, I still couldn't convince you. But please, your notions about the law are just totally absurd to any lawyer and not consistent with the reality of our constitution, so please be a little less arrogant about your attitude.

Enjoy your weird theories.

 

[ctdonath]

Groan.

The problem with RKBA in court is that no court wants to address it. By talking the subject to death, it dies.

On this thread alone we have (from my settings) 20 pages of thousands of words bickering nuances - just to discuss a mere couple dozen words.

The BoR exists to recognize that citizens, individually, have natural rights. In particular, the people have the right to keep and bear arms - and have that right, among other purposes, to provide for the security of a free state ... but the various purposes do not detract from the central right.

All levels of government have sought to limit or eliminate our RKBA. Endless cases have been filed to claim that right, with all being tossed out on technicalities born of desperation to not acknowledge the right. As such, this case is an attempt to eliminate all red herrings and force direct, unavoidable review and pro-RKBA ruling.

Again: the militia has been deeply neglected by all levels of government. This does not mean that the people lose their 2nd Amendment rights; if anything, it eliminates any argument of "militia use or suitability", as there is no standard to rise to. Militia membership? declared by Congress unilaterally in no uncertain terms; no further detail or compliance required. Militia suitability? there are no standards of equipment, so any weapon fits. These points are so plain as to not need review; if they are relevant and must be made plain, defense may raise the issue - but they haven't.

No, we don't have to state that handguns are suitable for militia use. That's obvious.
No, we don't have to state that the plaintiffs are part of the militia. That's obvious.

Miller, in my guess, used the "is it militia suitable" question just to get the case out. Remember, the verdict was NOT to rule for or against the defendant, but instead simply remanded the case back to the beginning to gather more info. And why would they do this? The defendant was dead. Make it go away.

Final reminder: RKBA exists independent of government. All this bickering over who has jurisdiction over whom fails to address the fact that the plaintiffs DO have a right to keep and bear arms, and are trying every reasonable means to persuade their layers of government to recognize it. Should they fail with a simple clear-cut case, the consequences will be terrible.

 

[hugh damright]

simply by the fact that [the Second Amendment] exists, it does put the right to keep and bear arms - and protection from infringements - in the hands of the Federal government.

No it does not. You are mistaken. The Second Amendment does not put the RKBA in the hands of the federal government. Rather, it keeps the RKBA out of the hands of the federal goverment, except of course for their militia power.

If this thread is going to be a place to vent all kinds of wacky notions that have no place in our law, such as, that plaintiffs cannot go to an article III court to assert a violation of rights under the U.S. Constitution

Article III does not create a US judicial power which extends to intrastate affairs i.e. matters between a Citizen and his State.

 

[Low-Sci]

'The Second Amendment does not put the RKBA in the hands of the federal government. Rather, it keeps the RKBA out of the hands of the federal goverment, except of course for their militia power."

My point is that it is the executive branch of Federal government's job to enforce the Constitution. therefore, enforcement of the second amendment is the responsibility of the Federal government and not the states.

So if that isn't the case, how does it work otherwise?

 

[hugh damright]

My point is that it is the executive branch of Federal government's job to enforce the Constitution. therefore, enforcement of the second amendment is the responsibility of the Federal government and not the states.

So if that isn't the case, how does it work otherwise?

The Second Amendment limits only the US. Each State is free to have their own gun laws as long as they do not go too far and collide with their own BOR or with the US militia power.

Perhaps the Second Amendment limits DC, because DC is under federal jurisdiction ... but I think some of y'all go too far and insist that local DC laws are federal laws.

 

[Intune]

The Founders wanted people to be able to successfully resist oppression.

Does it make any sense to allege that I ought to have at my disposal more power generally to take life than a trained FBI agent?

Well buddy, you're gonna have to pick a direction here. No, really.

While an armed citizenry certainly can help in such an endeavor, by alone it is not enough.

The Founding Fathers thought otherwise by giving the People that one tangible item which would give us a fighting chance… Arms.

Yes, an armed population could be an effective deterent to tyranny; but, one needed the political organization of a State to make such a deterent effective.

Rubbish. Pure, unmitigated hogwash. What if said State was the source of said tyranny? You make the Founders prescience in giving the 2nd SOLEY to the People radiate in its brilliance.

But, there is a problem here: States, themselves, could become corrupt. What if it were the federal government which was virtuous, and a State or league of states which was evil? Answering this question frames the debate about the actual meaning of the Second Amendment.

No, it’s quite clear. The People have been given the means and the DUTY to overthrow tyranny. “…Actual meaning…” WHAT? The meaning is quite clear as it was written in laymen’s terms to avoid ambiguity.

This, responded Alexander Hamilton (in The Federalst, No. 28), was exactly what was needed -- in any physical fight over what the Constitution means, it must be the people who decide, and if necessary with their lives, their fortunes, and their sacred honor. In any fight over what the Constitution means, the people must choose which side they are on and act accordingly. And to make such a choice more than an intellectual exercise, the people had to be armed.

Yet, despite Hamilton’s words, you surmise that the People should wait ‘til the State deigns them worthy of arms to defeat itself? Further proof and reinforcement of the 2nd, exactly as written.

The right to keep and bear arms is not in the Second Amendment; it is in the fine structure of the Constitution itself and cannot disappear, unless the Constitution itself be overthrown.

Wrong. The Power rests with the People expressly to survive potential failings at the State/Federal level.

It is only when we step back and look at the entire constitutional system that we realize that rights to arms are individual, though of a special character, just like the right to vote.

You are amazing. I thank you for giving me a moment of amazing clarity. For the first time in my life I have the gut-wrenching feeling of a subjugated, downtrodden, oppressed and exploited woman or Black man of 100 years ago. How DARE you? What unmitigated tripe. That one would even entertain such thoughts epitomizes our fall as free Citizens.

Every citizen individually has the right to vote, but until we hold an election, the individual right is meaningless. Similarly with the right to arms. The Founders were men of the Enlightenment -- men of reason. They were not gun-toting crazies, nor did they want to turn all the cities of America into Dodge City.

I daresay that these men would have held you up as a fine example of a yellowbelly and if you marshaled the temerity & backbone to question such in public, you’d have received a ball of lead for your troubles. At a place and time of your choosing, of course.

They would have been aghast at the idea of some terrorist gang securing weapons and using them in a criminal or treasonous enterprise to frustrate the law, and in the Federalist Papers, co-author James Madison referred to such groups as "factions" (a derogatory term).

No, they would be appalled at the notion of citizens being slaughtered because the State had yet to decree “election” day, everybody can "vote" and the chance for mere serfs to defend themselves. Sheesh!

Furthermore, there is a difference between militia and military arms -- military arms would be any arms (up to atomic bombs) useful in a military capacity, whereas militia arms are those appropriate for use by the militia (a body organized to suppress insurrections and repel invasions). Militia arms appropriate to civilian use traditionally include small arms (as opposed to cannons or the like, which at one time the States kept in state armories). But, remember: There is such a thing as the Geneva Convention. As a matter of international law, the "small arms" must be arms which soldiers would carry openly -- in plain view. Stated succinctly, a .45 auto-loader (Army Colt) qualifies; a Derringer does not.

I’m going to let some else enjoy ripping this paragraph to shreds. Give the U.N. a big hug for me, eh?

Militias control domestic violence, suppress insurrections, and repel invasions. With the exception of the last, these activities may be considered quasi-law-enforcement. And what kinds of weapons do cops carry? As a rule, they do not include anti-tank rocket launchers or area weapons such as machine guns or sawed off shotguns. After all, would you want the cops to enforce the laws against drug dealing by coming into your neighborhood and just shooting everyone in sight? The idea, as I always understood it, was for the cops to target the bad guy. Most certainly, I don't want them targeting me. I don't want them to have the power to engage in wanton violence. That being the case, what makes anyone think a judge is going to want to invest such power in me?

Yep, every time I shoot a machine gun I resist the urge to mow down the entire village. “Wanton violence…” just cries out to my very fiber. You forgot to mention children. Tsk -10 points. Yep, just wait until the judge invests you with the power & then you can trot on out there to do battle against tyranny, domestic violence, suppress insurrections, and repel invasions. Hopefully, this will all occur around “election” day and you’ll get to “vote”. Unfreakingbelievable.

Does it make any sense to allege that I ought to have at my disposal more power generally to take life than a trained FBI agent? No judge is going to make that ruling; it defies common sense. So, if you are going to ask for that kind of power, tell me -- please! -- some specific reason why I or anyone else should let you have it. What is the public benefit?

Simple. Follow the bouncing ball. …the right of the people to keep and bear Arms, shall not be infringed.
Psst, in addition, hate to press a potential soiling point for ya but, (whispers) I have that kind of firepower already. And the FBI’s ok with that. Despite your misguided beliefs.

The law relies on text and history. The cases we can use don't focus as such on what the weapons are but rather on how they are likely to be used, and that's true in every society, even Switzerland (where citizens are prohibited from owning some kinds of small arms but often are required by law to keep and maintain, e.g., fully operable anti-aircraft guns in their homes).

Need I remind you we live in the United States of America? Take your One World Order mewlings & stuff ‘em deep in that U.N. pipe.

The future of our children & country are at stake. I hope your students question everything that issues from your maw and realize the danger you and your ilk pose to this country. Nothing personal, it’s only our way of life & freedom at stake.

 

[ksnecktieman]

Hugh got close one time, he only missed this by one word;

"The Second Amendment was not intended to put the RKBA under jurisdiction of federal government"

The Second Amendment was not intended to put the RKBA under jurisdiction of government.

The second amendment was intended to remove the RKBA from the jurisdiction of the government.

 

[Malum Prohibitum]

Back to Parker

Guys, please bring the discussion back around to the Parker case.

Does anybody know when the term ends and if that is the deadline for issuing a written opinion affirming or reversing the District Court's ruling that the Second Amendment protects only a collective right?

 

[HonorsDaddy]

If you havent actually read the brief...

...you need to.

IANAL, but i've been involved in this a long time and read a lot of arguments on both sides. The brief from DC is a little scary - well written enough to get me to almost rethink my position.

Not ashamed to admit it, for a moment there, i actually questioned if i was taking my belief in the 2nd protecting an individual right on faith, rather than fact.

It is dangerously well written and anyone who wants to just dismiss it as yet more anti-gun tripe is mistaken.

 

[jnojr]

The brief from DC is a little scary - well written enough to get me to almost rethink my position.

Not ashamed to admit it, for a moment there, i actually questioned if i was taking my belief in the 2nd protecting an individual right on faith, rather than fact.

And that's the problem with a huge government with staffs of lawyers and armed agents. You have a right to self-defense, period. You have a God-given right to bear arms, period. The government of the US cannot grant you rights, nor can they take them away. What they can do is write volumes full of obtuse language that "explain" why they can, and then they can send men with guns to enforce their will.

The fact that this bit of legal language or that ancient precedent exist do not make it "right" that the Federal government can infringe upon your rights... it just makes those infringements reality.

The best written legal brief in the world cannot remove my rights. No court decision can remove my rights. They can scare me into surrendering them, though.

 

[HonorsDaddy]

jnojr

Oh i agree with you - my point was mainly that the DC brief does a masterful job of expressing the government position and is well written enough to cause some consternation.

 

[Low-Sci]

Actually, having read the brief, and following the discussion and participating, I'm still calling the brief a pile of tripe.

Bottom line is that it does not take a six-page brief to explain the meaning of a self-explanatory sentence. Nor can an apellee's brief remove the fact that current congressional "findings" state that 2A is an individual right, in exactly those words, as lately as october of last year. Nor can the brief remove the fact that the Supreme Court has always ruled that 2A is an individual right.

This whole militia business is the same collectivist argument we've all heard before, but somehow when its worded with great complexity, it becomes more convincing.

 

[Henry Bowman]

As I have said before, the real issue is not about "the right of the people," it's about "shall not be infringed." It will have no effect if the 2A is once and for all times ruled to be an individual right -- if that right is subject to "reasonable regulation" virtually without limitation.

 

[carebear]

That's the BIG "if" right there.

For now, I'd take a qualified exercise over no exercise. I can at least build on the latter.

 

[Malum Prohibitum]

Mr. Bowman, that part will have to await a later case. Parker intentionally asks for relief on a very limited circumstance (although not such a limited infringement) so that the appellate courts would be forced to sit up and pay attention, as well as be more likely to rule in Plaintiff's favor.

Once there is a declaration of an individual right (which does not exist right now anywhere outside the 5th Circuit), then begins the long and painful process of determining what is and is not, in the eyes of the court, an infringement on that right.

 

[ctdonath]

I've read the DC briefs. They're tripe. Well-polished and creatively constructed I'll grant - enough to give people less familiar with the subject pause and persuasion - but still tripe. Someone good at their job was tasked with taking a really bad situation (the early foundational briefs were really bad) and turning them into something viable. Whoever wrote them certainly earned their keep.

"Diplomacy is the art of telling someone to go to He11 in such a way that they look forward to the trip."

 

[Robert Crim]

Dear Secondamender:

Younger v. Harris, 401 U.S. 37 (1971).

Granted this precedent does not raise the precise objection I have mentioned; it does appear to be equally problematic, especially given that precise dimensions of any individual right to keep or bear arms remain in dispute.

When you get done fulminating about who is or is not a true student of the law, do at least prove your claim by telling the rest of us why, in Parker, Younger should not control.

As for the rest of us, while he is doing that, let's look at something else:

Article I, section 15 of Connecticut's constitution says, "Every citizen has the right to bear arms in defense of himself and the state." This section unambiguously is an expressed grant of right, and its repeal would extinguish the right (as the Supreme Court of the State of New Jersey tacitly has observed). By comparison, the Second Amendment says, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." This is not a grant of right -- repealing the Second Amendment would not extinguish the right to keep or bear arms, only permit Congress to use its commerce or militia powers to infringe upon it.

So, since the right to keep or bear arms does not exist in the Second Amendment (there is no grant there), where else in the Constitution can it be? Clearly, it has to be there somewhere (otherwise, why would the Second Amendment mention it?). So where?

Since nowhere else in the Constitution is there an expressed grant, the federal right to keep or bear arms must be an implied grant. From what can it be implied?

To my mind, the structural argument is clear and founded on solid historical evidence -- the Founders were a bunch of revolutionaries who used both the power of an armed populace and the organization of the State governments to overthrow the Crown in claimed defense of English liberty. Similarly, the Confederates were a bunch of revolutionaries who failed to resist federal authority in defense of slavery. If that history is not enough, we have Hamilton's specific representations made in The Federalist, No. 28 plus past Supreme Court precedent tacitly acknowledging that. To my mind, a case which makes this presentation cannot lose. The right is limited; but, only a legal cretin could assert it does not exist. Furthermore, just which justice is going to tell Mr. Justice Thomas that a federal right to arms wasn't a good thing to have in 1861?

The alternative right to assert would have to derive from federal common law (cf. Amendment Seven), upon the proposition that a right to self-defense extant before federal criminal law implies a right to arms. But, to my mind, the two leading cases on this, Beard v. United States, 158 U.S. 550 (1895), and Brown v. United States, 256 U.S. 335 (1921), simply don't oblige this conclusion. Indeed, in Beard, the key point was that Beard's gun never was fired (his assailant was clubbed to death with the butt stock).

Moreover, it is one of the great virtues of statutes that they can correct the errors of the common law -- to make our right to keep or bear arms dependent on federal common law is to invite the gun controllers to nickel and dime us to death.

I just don't see any long-term succor here; the thrust of Parker remains misplaced.

 

[secondamender]

crim,

I am sorry but you are in tinfoil territory when it comes to law.

Constitutions do not GRANT rights. They recognize rights that already exist, naturally. See, for example, the 9th Amendment.

If a provision securing an unenumerated right were repealed, the right might lose some protected status. But logically speaking, it could still exist, and could still be given force as an unemurated right. Courts have had no problem over the years recognizing a wide range of unenumerated rights -- liberty of contract, livelihood, raising a family, educating one's children, contraception, abortion, adult consensual sex -- the list goes on. You won't find any literal description of these in any constitution -- certainly no "grant"of these rights -- but right or wrong, these are recognized by our courts as spheres of individual privilege upon which government may not freely intrude.

The Second Amendment doesn't grant any rights anymore than do the other amendments. All of these rights are "negative rights" -- they deny to the government the ability to do something. We have no "positive rights" -- a right to obtain or demand something positively from the government. Thus there is no right to food, or right to housing, or right to health care. It just is not within the structure of our government.

Your citation of Younger v. Harris is totally irrelevant. If anything, the case stands for the proposition the Parker plaintiffs have standing, because at the moment of enforcement, a civil remedy is precluded in deference to the criminal action.

----------------

I participate in message boards on the internet to learn from others what I don't know, and to share with others what I do know. The process doesn't work if someone spouts off absolute nonsense in a field of expertise in which they're decidedly uninformed. As a lawyer, sir, I am telling you, you are spouting off absolute nonsense. Claiming that rights are granted by the constitution, or that people can't go to federal court to assert violations of rights enumerated in the constitution, is totally ignorant of a vast swath of American legal history and present reality. Citing a bunch of cases that you do not understand, and being arrogant on top of it ("what are you"), is just irritating.

Your desire to argue about nonsense on this message board doubtless exceeds my own, so at some very near point, you'll have the last word. That's OK. My time is better spent with friends, family, the dog, learning, being entertained, and... getting results for my clients. Real results, in real court rooms, using the reality of the law.

 

[Robert Crim]

Enough, really:

For all others who are listening, I did not come here to get the last word but to debug a claim. Secondamender's reaction to my efforts is to hide behind an internet handle, claim he is an attorney, and scream epithets. He cites no cases to support his assertions, nor does he answer specific objections. He does not even show the demeanor of a lawyer.

For those who are not attorneys, who perhaps have no ready access to the case, but who wish to explore the potential problem caused by Younger to Parker's suit, here is the gist of the opinion:

Harris was determined to have standing because he actually was indicted under California's criminal syndicalism law. His co-plaintiffs, who were not indicted, were held to have no standing, despite the First Amendment issues raised by the case. Cf. S. v. D., 410 U.S. 615.

Furthermore, equitable relief was denied Harris because (1) he was attempting to enjoin a state criminal prosecution and (2) he had not alleged that said prosecution was without foundation and brought solely for the purpose of harassment (the essential additional element in Dombrowski v. Pfister).

In what way is Parker not trying to do the same thing? None of the plaintiffs in Parker actually are under indictment or charged with a crime. They allege only an apprehension of fear if they proceed to do what they say the Constitution allows them to do. Their one potentially saving point is that they are not seeking to enjoin a State prosecution (D.C. is not a State), but is that enough to eliminate the comity consideration? I suspect not. After all, injunctions are extraordinary writs. And Parker & Co. appear to have an adequate remedy at law -- bring the firearm from wherever it is stored outside the district, store it in their home, then see if the government will do anything about it. I challenged Connecticut's assault-weapons ban in exactly that way; every judge in New Haven knew I had a Colt Sporter (which is on Connecticut's list). I never spent so many as sixty seconds in jail, and I still have the rifle.

 

[gc70]

Robert Crim,

I am still curious to your response to the discussion of "militia arms" in post #472.

 

[ctdonath]

We're happy to help debug a claim. Identify what the questionable area is, explain that you're debugging it, and we'll comment.

Phrasing things in certain ways gets people kinda worked up.

And best to do so in a separate dedicated thread. This one is about Parker.