DC Brief Released!

[Caimlas]

Well, I see this playing out several ways, and all/most of them involve some part of the "not a state" argument shooting them in the foot.

Let's say they win on the argument as above stated. Great: they've just given a signed check to the "make DC a state" movement: DC is predominantly populated by black/"African American" citizens, many of which are decidedly Democrat, and the left really wants that extra state to pull things over in the presidential elections (and hte extra house/senate seats wouldn't hurt, either). The "black power" types like Sharpton -might- even commit a little hypocrisy and join the rally on grounds of "black people being denied the rights of whites". Part of me would actually love to see that happen.

Besides, aren't US citizens living in US territories able to exercise their 2nd Amendment rights?

 

[K-Romulus]

The DC "country mouse vs. city mouse" argument is really old and worn out. ETA: I am referring to the supposed "findings" by the city council some 30+ years ago that "handguns have no legitimate purpose in an urban area." The same concerns would not be valid in a suburban or rural area? Or, to flip it around , why are those concerns NOT a problem in the suburbs, but cross one street into the District of Columbia and suddenly they arise?

It is cognitive dissonance to say handguns should be banned because "the only reason for a handgun in an urban area is to shoot someone," but then still (supposedly) expressly allow home-defense shotguns and rifles. I mean, what are you supposed to do with the shotguns and rifles? Point at the home invader and yell "bang?"

 

[Bubbles]

From pg 29:

In 1783, disgruntled soldiers surrounded the State House in Philadelphia, causing the Continental Congress to flee because the local authorities would not protect it. The Framers created a federal enclave to ensure fed-eral protection of federal interests. They could not have intended the Second Amendment to prevent Congress from establishing such gun-control measures as it deemed necessary to protect itself, the President, and this Court when similar state legislative author-ity was not constrained.

Translation: Congress needs to be able to pass gun-control laws for the purpose of protecting itself from the citizens.

Isn't this how dictators and despots operate?

 

[deanf]

The really missed the mark on this one. The question before The Court is this:

Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violate the Second Amendment rights of individuals who are not affiliated with any state-regulated mili-tia, but who wish to keep handguns and other fire-arms for private use in their homes?

So The Court has already decided that individuals have Second Amendment rights, even if they are not affiliated with a militia. Aren't the parties expected to narrow their arguments to only the question presented? All the arguments about whether or not individuals have Second Amendment rights seem moot, since The Court has already established in their question that we do.

 

[hugh damright]

The English Bill of Rights from which it was derived contains these words: "freedom to bear arms for self-defence".

That's not what I remember reading. Are we talking about the 1689 English BOR such as at http://www.yale.edu/lawweb/avalon/england.htm ? It says:

"That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law""

Not only does it not say "for self-defence", but when put into context, I find it easier to see the object as the collective defense i.e. instead of a standing army to kick them around they will provide for their own collective defense. This is the same thing that the requests for the Second Amendment said i.e. that a standing army is a danger to liberty and that the proper defense of a free State is the people of that State organized into well regulated militia.

 

[leadcounsel]

Their arguments are just convenient for their purposes. Here they argue against handguns because they are "just for killing people" and are easy to conceal and/or steal. They advocate rifles and shotguns.

However, the left often attacks "high powered rifles" because they penetrate armor and shoot distances....

Seems that in an urban area where there's no hunting, there would be less use for rifles and more use for handguns if the intent were purely self defense.

If their argument is that the Constitution or Bill of Rights doesn't apply to DC because DC isn't a state, then that is clearly contrary to the drafter's intent. And if their argument is that it isn't an individual right despite ALL other rights in the Bill of Rights being individual rights not controlled by the state, again this argument is a loser.

Bottom line... their argument is a tired argument and a losing one. I'm feeling pretty good going into this...

 

[C-Tzar]

As part of its gun-control program, the Council also enacted a trigger-lock provision to promote gun safety at home. D.C. Code § 7-2507.02. A firearm must be kept “unloaded and disassembled or bound by a trig-ger lock or similar device unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes.” The provision’s author noted not only that 3,000 deaths resulted annually from firearm accidents, but also that loaded weapons are often misused against family members in moments of passion. Evening Council Sess. Tr. 21:1-15, Jun. 15, 1976. He explained that trigger locks may be unlocked in less than a minute. Id. at 42:11-18, 49:8-16.

I found this paragraph somewhat entertaining. They claim that trigger locks can prevent "moment of passion" killings, but then in the very next sentence explain that the locks can be removed in under a minute. Who's side is this guy on? So when someone storms off into the bedroom in a huff, slams the door shut (leaving the other in the house to believe the argument is over), removes the trigger lock, loads up, storms back out and opens fire, what exactly did the trigger lock prevent?

Yes, I realize he probably meant for it to show that the provision was "reasonable" because if someone needed the gun for defense against an armed intruder, they could still unlock the gun in under a minute (well, unless the lock jams, or you drop the key, or can't find the key, or...), but the wording/placement was not ideal. And I guess by extension the fact that after "less than a minute" you still have an unloaded gun is also reasonable because ...well, ummmm...it just is. Don't worry, the bad guy will wait for you to load your gun. :banghead:

 

[ArmedBear]

DrewH, I'm no big fan of Ginsburg, or the dissent in question.

However, even in this case, there's a subtle but important difference between a technical ruling that she believed violated the intent of the law and its enforcement, and the impact this would have, and simply wanting a ruling that contradicts the law in question.

In the high-profile Bill of Rights cases lately (like Kelo and Raich), rulings have been based on very minute nuances. That's why I think it's pretty hard to determine what the ruling will be. My guess is that it won't hinge on a "collective rights" doctrine either way. Beyond that, it's hard to guess.

 

[shield20]

Much of it actually made sense re: "the well regulated Militia", it's role, and the people's role in it. They got past many lies of the antis with what these words actually mean. They just left out all the comments - BY THOSE INVOLVED - about "private", "personal", "inherent", "absolute", &c when talking about the BoR; they also fantasized about what "defence of themselves" might mean, and kind of forgot that the people just may want to defend themselves OUTSIDE THEIR HOMES, especially in DC, since the ban is such an obvious failure in it's supposed purpose (i.e. after 30yrs, still tops in several violent crime catagories).

They surprisingly brought it up, but also seriously & obviously downplayed Madison's original proposal and the importance of the semi-colon--": "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated being the ...". CLEARLY a separate idea here, as that is exactly how the clauses in the Constitution are written! They lose big time here...

They didn't get TOO far into how the respondent (and most of us) are NOT in the "new" Militia (NG), but surely inferred it as important. What they failed to point out that if the feds ignore the constitutional Militia, and the State's ignore THE Militia, it is up to the people (we are where all those powers orginated from after all), as the Constitution & 2nd says - OUR freedom depends on it. And they shyed away from the idea, but didn't truly hide the whole "people are to arm themselves" intent.

They chose to focus on militia vs private meaning of the 2nd, yet they also seemed to recognize the individual right to arms exists outside the 2nd - yet downplayed that right, and "it's scope". Seems a move here to leave the right open to any restrictions, and to prevent the govt from doing it's primary duty - securing it.


I LOVE this...

National limitations on what fire-arms may be possessed privately could conflict with a state’s ability to call forth a militia armed as the state sees fit. As the majority below recognized, the Amendment ensures “that citizens would not be barred from keeping the arms they would need when called forth for militia duty.”

and

Fifth, the majority relied on the words “right of the people” (PA18a-19a, 27a), but recognizing such a right does not define its scope. The question is not whether individuals can enforce the right protected by the Second Amendment. The question instead is whether this right is limited to the possession of militia-related weapons.

So, besides the glaring ommissions in their argument overall, they confirmed (as already decided in Miller) that military style assault weapons and accoutrement bans, full-auto restrictions, and pistol regulations are unconstitutional(!!) and that the people DO INDEED have an individual right to KBA.

 

[ctdonath]

So The Court has already decided that individuals have Second Amendment rights, even if they are not affiliated with a militia. Aren't the parties expected to narrow their arguments to only the question presented?

Quite.
For all the bizzare rhetoric therein, they have utterly failed to address THE QUESTION.
...which is odd, because they had a private meeting with the judges right before the question was published, where presumably the judges made it clear what the question was and why it would be addressed instead of what DC submitted.
...and which will likely result in a remarkable conversation come oral arguments.

 

[leadcounsel]

Could this terrible brief explain why they fired their counsel?

 

[azredhawk44]

So:

1. They didn't address the QUESTION posed by the Court.
2. They affirmed the right of DC residents to own rifles/shotguns.
3. They affirmed the right of DC residents to have ready-to-use arms in the home, and that their goal was not disarmament.
4. They affirmed that disarmament by government is a "bad thing."
5. They affirmed that military-class weaponry is suitable to the militia.

Anyone wonder why DC counsel for this case was fired after the brief was filed?

 

[ArmedBear]

they had a private meeting with the judges right before the question was published, where presumably the judges made it clear what the question was

Ah. I didn't know that.

That points to a few things.

The notion that the 2nd Amendment just sort of "fell silent" with changes in military technology and organization, so it doesn't really mean anything -- the ACLU position -- was rejected by the judges.

The academic invention of a "collective right" was rejected by the judges.

Why? If you look at the argument, it's the argument you'd have to make if you were told that the 2nd Amendment DOES still have weight, and that you shouldn't bother with the "collective rights theory" because "the people" indicates SOME individual right.

Still, it's true. They didn't address the question.

 

[Crashola]

DrewH, I'm no big fan of Ginsburg, or the dissent in question.

However, even in this case, there's a subtle but important difference between a technical ruling that she believed violated the intent of the law and its enforcement, and the impact this would have, and simply wanting a ruling that contradicts the law in question.

Relying, in part, on the social effects of a law to render an opinion isn't anything new. The most famous example is the footnote in Brown v. Board of education where the Court relied on psychological evidence that segregated schools were detrimental to black children.

 

[ctdonath]

Actually it's a pretty good brief - given that they are trying to defend the indefensible.

1. They made it very clear that the Founding Fathers were exclusively concerned about military matters when writing the 2nd Amendment. (That self-defense is a right was a no-brainer the FFs didn't have to discuss.)
2. From that conclusion, the 2ndA evaporates when couched in terms of the feds protecting themselves from themselves. (A warm-fuzzy conclusion that itself evaporates in light of "the people" being guaranteed a right which oddly & suddenly doesn't exist.)
3. Finally, those who think in terms of social policy trumping law are fully persuaded by the final argument. (SCOTUS cares little of social policy, only law.)

Not bad for those who think that way.

Unfortunately, they unavoidably reach absurdities:
- One has a right to defend the state, but not one's self.
- DC is both independent of, and a manifestation of, Congress.
- A right may be "regulated" into only doing what the gov't says, with what the gov't allows, solely for the benefit of the gov't.
- Select statistics reflect reality.
- Such absurdities can be brushed aside with a witty comment, or merely ignored.

 

[ArmedBear]

The most famous example is the footnote in Brown v. Board of education where the Court relied on psychological evidence that segregated schools were detrimental to black children.

I thought that, in that case, they were faced with the question "can 'separate but equal' ever be equal, as required by the law?" That's not really relying on a social effect.

That's a fine line, sure, but one that we may need one day. One day, we may find ourselves in the position of trying to show the Court that, say, a magazine size limit really does "infringe" on RKBA, even though there's nothing in the 2nd Amendment that says anything more specific than "arms".

- One has a right to defend the state, but not one's self.
- DC is both independent of, and a manifestation of, Congress.
- A right may be "regulated" into only doing what the gov't says, with what the gov't allows, solely for the benefit of the gov't.

A wonderful summary of the absurdity of the argument.

 

[LightsOut]

C-SPAN better be covering the oral arugments in their entirety. I can't wait to listen to Scalia in action.

 

[Standing Wolf]

Is it just me, or is there nothing in this brief that wasn't in any of DC's prior briefs? Same drivel, new packaging.

Leftist extremism embodies the antithesis of creativity. Always has. Always will.

 

[USAFNoDAk]

I like how they completely ignore the writings of the founding fathers, yet they seem to know with 100% certainty that the founders had no desires to ensure that "the people" of the United States, who are a peacable people, would never be disarmed. These lawyers must have had a few laughs while writing this arguement.

Also, in their references to US vs. Miller, they conveniently neglect to include the part where the USSC opinion states that when called forth for militia duties, the people were to appear bearing arms supplied by themselves. Well, how can you do that if you are banned from keeping arms that would be suitable for militia duties, such as handguns. Hmmmmm?

I bet Thomas and Scalia will be rolling their eyes (in their thoughts, not outright) as they listen to this backwards thinking, often times conflicting with itself, drivel. How much are they paying the folks who came up with this? They wasted their money, IMHO.

 

[USAFNoDAk]

Maybe the DC Lawyers should have gone to this website before they wrote an argument deserving of a flunking grade. This would have told them the opinions of the founders who helped create and pass the second amendment. How they can come to the conclusion that the founders were only interested in military arms and the military act of keeping and bearing arms is ludicrous, if not downright rediculous.

http://hematite.com/dragon/2ndQuotes.html

 

[Mazeman]

As a reminder, here's the question, as re-worded by SCOTUS:

Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

As for the laws referenced, the first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.

My prediction is that SCOTUS will find gun ownership an individual right, and that laws that essentially ban them IN THE HOME are unconstitutional. Rulings about incorporation, and limiting access outside the home are in the future.

 

[jrfoxx]

If DC is not a state, and has no state militia, the 2nd doesn't apply, say they.

The problem with this argument on thier part is that they beleive the Natonal Guard is the militia, and D.C. DOES have its own national guard, so.....they contradict themselves heavily.The have NO leg no stand on IMHO.Morons.
http://dcng.ngb.army.mil/

 

[Mike OTDP]

Not to mention that Federal law defines the unorganized militia as all males between 18 and 45.

 

[doc2rn]

Wouldn't this be great if the BATFE lost the 1968 ban on machine guns because the militia would need them as a military weapon....hey a guy can dream can't he.

 

[Megistopoda]

Not to mention that Federal law defines the unorganized militia as all males between 18 and 45.

It certainly does. And in footnote page 14, the District distinctly points this out:

"Because he is sixty-six (PA120a), respondent is not a member of any statutory militia."