my analysis of the brief - Part One
OK...I've read the brief and other relevant sources of information, and hashed this out over a couple cups of coffee this morning. These are just my own, personal opinions of course. Your comments are more than welcome!
Megistopoda’s analysis of the District of Columbia’s Brief for Petitioners, submitted 4 January 2007 to the Supreme Court of the United States in DC v. Heller (No. 07-290)
The question (paraphrased) before the Supreme Court: “Whether the following provisions – A.) registration requirement not allowing registration of handguns, B.) requirement that firearms be unloaded and disassembled or bound by a trigger lock, and C.) licensing (effectively impossible to obtain) requirement to carry a handgun (including from room to room in owner’s home) – violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but wish to keep handguns and other firearms for private use in their homes.”
The Brief and Joint Appendix are available here:
http://www.scotusblog.com/wp/wp-content/up...dc-v-heller.pdf
http://www.scotusblog.com/wp/wp-content/up...dc-v-heller.pdf
This analysis assumes that the reader is at least somewhat familiar with this case as it now stands before the Supreme Court, and with the proceedings in the court below (the DC Federal District court). If you are not, there are many sources for such information, including here:
http://dcguncase.com/blog/
In its brief, the District forwards three different arguments; they appear to me to be nested, in that if the first argument fails, the second may withstand scrutiny, and so on. These arguments/sections are as follows:
1) The Second Amendment Protects Only Militia-Related Firearm Rights. They argue that the 2A must be read with an exclusively militaristic purpose. In this section, the District’s argument rests on the merits of the so-called Sophisticated Collective Rights view.
2) The Second Amendment Does Not Apply to Laws Limited to the District of Columbia. In the section above, the District argues that the 2A protects the rights of states to maintain militias, but as DC is not a state, protections outlined in the 2A do not apply there.
3) The District’s Reasonable Gun-Control Laws Do Not Infringe The Right to Keep and Bear Arms. In this section, the District argues that even if the 2A protects individual, private ownership and use of arms, and even if this protection applies to residents of the District, the District’s laws are reasonable because they are predicated on the prediction that they will enhance public safety.
Statement of the Case
In the Statement, DC commences by stating that the Nation’s capital has regulated guns for two centuries - initially with laws forbidding the firing of guns in residential areas, and culminating with today’s total prohibition on handguns and functional long arms. While this history is true, what the statement effectively if not ironically does is outline the very real “Slippery Slope” argument. This phenomenon is addressed in a Hamline Law Review paper by Olson and Kopel (1999), which provides an analysis of the situation in England: (
http://www.guncite.com/journals/okslip.html ). To visualize the “slippery slope”, imagine a graph with time on the X-axis and gun rights on the Y-axis; time runs from past to present on the X-axis, and gun rights run from absolutely no infringement at the top to absolute infringement at the bottom. Notwithstanding the “cold dead hands” types, and common criminals to whom gun laws don’t necessarily matter, we are talking about gun rights “allowed” by institutionalized law. If you examine the history of gun control in the United States, you will witness increasingly more restrictive laws over time. Thus, over time, gun rights have moved down this “slippery slope” with the passage of gun regulations (infringements) over time. Based on history, it is apparent that movement on the line is not equally bi-directional; it appears very easy to move down the line, and very difficult to move up. Hence, the “slippery slope.” The only logical end-point of this history, and of that line, is an eventual absolute infringement of the right to keep and bear arms.
1) The Second Amendment Protects Only Militia-Related Firearm Rights.
In this section, the District seems to be forwarding on its merits the classic Sophisticated Collective Rights view (SCR) of the Second Amendment. This differs from the older Collective Rights view in that it protects an individual right to bear and keep arms but ONLY if said individual is an active member in an organized (or state-regulated) militia. Membership in the unorganized militia outlined in the Militia Act of 1903 does not apply here. This view is, well, “sophisticated” as far as anti-gun ownership arguments go. The argument to me hinges on two main points – A.) whether there is evidence that the Founding Fathers considered that there were also protections for gun ownership outside organized militia, and B.) whether “the people” as it appears in the 2A is somehow different from “the people” as it appears elsewhere in the Bill of Rights. The SCR view necessarily limits “the people” to a select subset of persons that are active participants in a state-organized militia. Regarding B.), I think that the ruling in the Fifth District Court of Appeals (United States v. Emerson, 2001) is likely to stand in the Supreme Court, and I won’t comment further than to offer a summary from the Emerson opinion: “For the sophisticated collective rights model to be viable, the word "people" must be read as the words "members of a select militia". The individual rights model, of course, does not require that any special or unique meaning be attributed to the word "people." It gives the same meaning to the words "the people" as used in the Second Amendment phrase "the right of the people" as when used in the exact same phrase in the contemporaneously submitted and ratified First and Fourth Amendments. [new paragraph] There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution.”
Regarding A.), which I believe is likely to gain some attention, the District argues that there is no such evidence, and bases much of their argument on selective reading of US v. Miller, 1939 (the main 2A Supreme Court case to date), on academic works by Gary Wills, Saul Cornell, and papers published in the controversial Chicago-Kent Law Review. Incidentally, Cornell and the Kent review have been funded heavily by the Joyce Foundation of Chicago, an organization that also heavily funds groups such as Violence Policy Center, Legal Community Against Violence, International Association of Chiefs of Police, as well as myriad public health and injury research program, all of which are thinly veiled as legitimate violence prevention and research advocates. One does not have to look far to realize that the common if not principal theme among these organizations is the advocacy of strict gun control laws or any such policy that reduces the number of firearms in the hands of Americans, lawful or otherwise. It is not a stretch for me to say that this biased advocacy, as well as the juggernaut of literature propped up by this funding, will be clearly evident to and taken into consideration by the Supreme Court Justices. In a Tennessee Law Review paper, Kates et al. (1994) effectively expose the motives and intent of such organizations and the research they fund, summarized as follows: “…the anti-gun health advocacy literature is a ‘sagecraft’ in which partisan academic ‘sages’ prostitute scholarship, systematically inventing, misinterpreting, selecting, or otherwise manipulating data to validate preordained political conclusions.” The Kates et al. paper is available here (
http://www.guncite.com/journals/tennmed.html ). Needless to say, this web of special interest funding and the partisan literature it has created is controversial in as much as it is biased. Such evidence will be available to the Justices and I predict that they will see through much (in terms of reasonable doubt) of this special interest literature. These statements also apply to the 3rd section of DC’s argument (see below), where it is argued that their gun control laws are reasonable because they do what they are supposed to do – reduce crime and enhance public safety – as evidenced by the results reported in the anti-gun health advocacy literature.
In any event and the creative argument of DC notwithstanding, it is possible that their SCR arguments will fail on the merits. I say this in part because this argument was pretty effectively devastated by a paper published by Randy Barnett entitled “Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? The paper is available here (
http://law.bepress.com/cgi/viewcontent.cgi...ontext=expresso ). Thus, there are several well-written treatments and refutations of the claims made by those who espouse the SCR view, and these sources might serve well to weaken, if not destroy, the District’s first argument.
2) The Second Amendment Does Not Apply To Laws Limited To The District Of Columbia.
This is a pretty involved question, and it is difficult to predict the direction in which it might lead. Basically, the District of Columbia is a federal entity, and as such, it is governed by no state laws. It is reasonable to argue that the District is under the direct rule of the Congress. The District’s city council argues that the 2A limits only the power of Congress and the national government from disarming state militias, and that laws limited to the District raise no federalism concerns and thus do not implicate the 2A. But I strongly doubt the District would argue that the right to free speech, immunity from unreasonable searches and seizures, etc. do not apply to residents of DC. That is because those rights have been incorporated under the 14th amendment, whereas second amendment rights have not (yet) been so incorporated. Therein lies a conundrum; the District is relying on their argument that the 2A restricts the congress only from disarming those members of state-organized militias, and because the District is not a state those protections don’t apply. The conundrum surrounding this line of argumentation is that it may open a real can of worms for the District. Let me explain.
If the first argument, the Sophisticated Collective Rights position, fails, it might be simple enough, and even expedient for the Supreme Court to rule that since the District of Columbia is a federal entity, that it is directly constrained by the language of the 2A from prohibitive actions of Congress, thus invalidating the City Council’s laws. That way the incorporation issue would remain to be taken up at a later date. The District of Columbia is a curious entity politically. Although there is a municipal government and a Mayor, Congress has the supreme authority over the city and district, which results in citizens having less self-governance than residents of the states. As a related result, District citizens do not enjoy representation in congress by voting representatives or Senators. However, it is possible that the most expedient approach might be that if the 2A indeed protects an individual right that is fundamental (that would be using very strong language...but in my mind, appropriate language), it would bar local governments (read, the DC city council) from passing laws infringing on that right.
I say this because the following appears in the District’s brief: “This Court has squarely held that the Second Amendment was adopted as a limitation on only federal, not state, legislation [citing Presser v. Illinois, 1886]. Although the majority below suggested that the Second Amendment may subsequently have been incorporated against the states through the Fourteenth Amendment (PA37a-38a n.13), there is no dispute that the Second Amendment did not limit the states’ regulatory authority over firearms when enacted. [9, as footnote] Although this case does not present the question of incorporation,
there is no reason to think that a right to possess guns for personal use is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty” [citing Palko v. Connecticut, 1937]. Moreover, incorporation against the states would be curious since the Second Amendment was enacted to protect state prerogatives” (
emphasis mine).
Here the District is, in my mind, risking moving the incorporation issue front-and-center in regard to their second argument. There is a great deal of evidence that the 2A was intended to be incorporated against state and local infringement via the Privileges and Immunities clause of the 14th Amendment. If this were done, it would invalidate not only DC’s gun ban, but those of Chicago, etc., and perhaps even such restrictions such as California’s “Assault Weapon” ban. The District’s argument obviously relies on the fact (a fact described as anomalous by Gura in Heller’s Response to Petition) that the 2A has not been incorporated against state and local governments via the 14th Amendment. This to me DOES potentially raise the question of incorporation in this very case, and it would not be a long leap from there for the Justices to include in their opinion something to the effect that the 14th constrains the actions of local governments. Also, note the emphasized text in the Districts’ brief above. I bring up the word fundamental, and opine that it's reasonably strong language thusly - all 50 states (and the District, I believe) provide provision for lawful use of deadly force in justified cases of self-defense. It is very easy to argue that a human being's right to self-defense from harm is not just a right....it is a fundamental, natural, inalienable right. I say that the right (and ergo, the means) to defense is fundamental based on this passage from the Declaration: “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”
Moreover, I would venture to guess that if you asked 1000 Americans the following question - "Do you feel that the right to defend yourself and your family is a fundamental principle of justice, rooted in your tradition and conscience?" - you would get very many answers in the affirmative. I am not saying that the right to defend ones' self is exactly the same as ones' right to possess a firearm....but it would be very easy to argue that the latter consistently and logically (even naturally) flows from the former. Even if one did not think or feel that way, I suspect many would still admit that there just might be a reason for someone to think that way. In stark contrast, the District of Columbia emphatically states that "there is no reason" to think that way.
[continued next post]
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