legaleagle_45
Member
- Joined
- Aug 23, 2007
- Messages
- 834
Is excellant and it can be read here:
http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf
http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf
Gura's Brief
- Thread starter legaleagle_45
- Start date
- Status
There's a near argument in there, making a parallel with the Congress power to grant copyrights and patents. It says that even though there is a preamble in that which says "to promote the useful arts and sciences", that doesn't mean that Congress requires every copyrighted work to be proven to promote the useful arts and sciences.
Bartholomew Roberts
Member
I agree. It is a top notch brief; particularly when compared to the opposing briefs and opposing amici. I particularly like where he hoists the opposing brief on its own petard by giving the full quote they misused.
Guitargod1985
Member
I thought it was pretty good until this part (about 3/4 way through):
Bartholomew Roberts
Member
That is a necessary part though. The antis are going to be screaming that an individual rights decision (especially one applying strict scrutiny) will destroy every federal gun law in existence and machineguns will flood the streets and schoolyards if the Supreme Court goes that way.
Gura is just neutralizing the "panic argument" by pointing out that this case isn't about that and the Supreme Court can decide those issues separately from this one. At the same time, he is also laying the groundwork for establishing the principle that certain militarily useful arms (including handguns) are protected by the Second Amendment and that these cannot be banned.
It is definitely a tightrope walking job. He can't scare off any votes he needs but he also is trying to establish some meaningful Second Amendment protections.
I can't see losing this case, that brief was beautiful!! I noticed the part about the govenment regulating arms also but truthfully they already do. You need a permit for concealed carry just about everywhere and there is also a background check, which was also mentioned in the brief as being around a few hundred years ago.
1 Elliot, DEBATES at 326. Pennsylvania
Anti-Federalists demanded
that the people have a right to bear arms for
the defense of themselves and their own
State, or the United States, or for the purpose
of killing game; and no law shall be
passed for disarming the people or any of
them, unless for crimes committed, or real
danger of public injury from individuals.
I really liked the quote from a guy I never heard of before, Cesare Beccaria, who Jefferson and John Adams seemed to admire and quote.
Beccaria decried the “False Utility”
of laws that
disarm those only who are neither inclined
nor determined to commit crimes. Can it be
supposed that those who have the courage to
violate the most sacred laws of humanity, the
most important of the code . . . will respect
the less important and arbitrary ones, which
can be violated with ease and impunity, and
which, if strictly obeyed, would put an end to
personal liberty. . . . Such laws make things
worse for the assaulted and better for the assailants.
. . . [These] laws [are] not preventive
but fearful of crimes, produced by the
tumultuous impression of a few isolated
facts, and not by thoughtful consideration of
the inconveniences and advantages of a universal
decree. . . .
Same thing we say around here on a daily basis but no one listens
1 Elliot, DEBATES at 326. Pennsylvania
Anti-Federalists demanded
that the people have a right to bear arms for
the defense of themselves and their own
State, or the United States, or for the purpose
of killing game; and no law shall be
passed for disarming the people or any of
them, unless for crimes committed, or real
danger of public injury from individuals.
I really liked the quote from a guy I never heard of before, Cesare Beccaria, who Jefferson and John Adams seemed to admire and quote.
Beccaria decried the “False Utility”
of laws that
disarm those only who are neither inclined
nor determined to commit crimes. Can it be
supposed that those who have the courage to
violate the most sacred laws of humanity, the
most important of the code . . . will respect
the less important and arbitrary ones, which
can be violated with ease and impunity, and
which, if strictly obeyed, would put an end to
personal liberty. . . . Such laws make things
worse for the assaulted and better for the assailants.
. . . [These] laws [are] not preventive
but fearful of crimes, produced by the
tumultuous impression of a few isolated
facts, and not by thoughtful consideration of
the inconveniences and advantages of a universal
decree. . . .
Same thing we say around here on a daily basis but no one listens
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ConstitutionCowboy
member
I took a particular interest in Gura's use of Johnson's Dictionary(1755) that some here have poo-poo'ed my use of.
Guitargod1985
Gura's passage is not all that capitulating. You must ask what arms - if any - are not protected by the Second Amendment. As I see it, the Second Amendment doesn't protect any arms. It protects our right to them in stead. Same for the regulation of arms. Then again, how does one regulate an arm? One keeps it in good working order.
The last phrase - "but the threshold question of whether an arm falls into the
former or latter category cannot be avoided." - opens the door for the Court to "decide" or "realize" that any arm may not fall into any of those two categories, the smallest and weakest being above the lowest possible threshold, and the biggest most powerful being below the highest possible threshold.
Then again, the Court may realize that prohibiting any arm, or regulating the possession of any arm is in violation of the Second Amendment and render this side issue moot. I say it's a side issue because it discusses something not in the Second Amendment. All the Second Amendment does is prohibit government to infringe upon our right to keep and bear arms which would preclude prohibiting our keeping and bearing of arms, and preclude regulating our keeping and bearing of arms.
Any ruling coming down from the Court contrary to the above would be quite a dance to watch. It'll take a lot of pirouetting, swinging of your partner, and tip-toeing-through-the-tulips to accomplish it. The Court won't be able to accomplish anything contrary by walking a straight and narrow path. They can either dance with lies or march to the the truth.
I like a good marching song when it comes to important stuff like rights and freedom.
I'll save the tear-jerkers for when my woman runs off with another man or I run out of beer.
Woody
Neither did the term “bear arms” have a uniquely
military application. See, e.g., Muscarello v. United
States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting).
Johnson and Webster defined “bear” primarily
as “to carry.” 1 Samuel Johnson, A DICTIONARY OF
THE ENGLISH LANGUAGE (1755) (not paginated); Noah
Webster, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1st ed. 1828) (not paginated) (also “To
wear . . . bear arms in a coat”). Accordingly, “bear
arms” often had purely civilian connotations. For
example, Parliament forbade Scottish Highlanders to
“use or bear . . . side-pistols, or guns, or any other
warlike weapons, in the fields, or in the way coming
or going to, from or at any church, market, fair,
burials, huntings, meetings, or any occasion whatsoever.
. . .” 9 Geo. I Chap. 26 (1724), 15 Statutes at
Large 246-47 (1765);2 cf. Scott v. Sandford, 60 U.S.
2 See Clayton Cramer & Joseph Olson, What Does “Bear
Arms” Imply?, GEO. J.L. & PUB. POL’Y (forthcoming 2008),
http://papers.ssrn.com/abstract=1081201 (supplying numerous
examples).
military application. See, e.g., Muscarello v. United
States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting).
Johnson and Webster defined “bear” primarily
as “to carry.” 1 Samuel Johnson, A DICTIONARY OF
THE ENGLISH LANGUAGE (1755) (not paginated); Noah
Webster, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1st ed. 1828) (not paginated) (also “To
wear . . . bear arms in a coat”). Accordingly, “bear
arms” often had purely civilian connotations. For
example, Parliament forbade Scottish Highlanders to
“use or bear . . . side-pistols, or guns, or any other
warlike weapons, in the fields, or in the way coming
or going to, from or at any church, market, fair,
burials, huntings, meetings, or any occasion whatsoever.
. . .” 9 Geo. I Chap. 26 (1724), 15 Statutes at
Large 246-47 (1765);2 cf. Scott v. Sandford, 60 U.S.
2 See Clayton Cramer & Joseph Olson, What Does “Bear
Arms” Imply?, GEO. J.L. & PUB. POL’Y (forthcoming 2008),
http://papers.ssrn.com/abstract=1081201 (supplying numerous
examples).
Guitargod1985
Gura's passage is not all that capitulating. You must ask what arms - if any - are not protected by the Second Amendment. As I see it, the Second Amendment doesn't protect any arms. It protects our right to them in stead. Same for the regulation of arms. Then again, how does one regulate an arm? One keeps it in good working order.
The last phrase - "but the threshold question of whether an arm falls into the
former or latter category cannot be avoided." - opens the door for the Court to "decide" or "realize" that any arm may not fall into any of those two categories, the smallest and weakest being above the lowest possible threshold, and the biggest most powerful being below the highest possible threshold.
Then again, the Court may realize that prohibiting any arm, or regulating the possession of any arm is in violation of the Second Amendment and render this side issue moot. I say it's a side issue because it discusses something not in the Second Amendment. All the Second Amendment does is prohibit government to infringe upon our right to keep and bear arms which would preclude prohibiting our keeping and bearing of arms, and preclude regulating our keeping and bearing of arms.
Any ruling coming down from the Court contrary to the above would be quite a dance to watch. It'll take a lot of pirouetting, swinging of your partner, and tip-toeing-through-the-tulips to accomplish it. The Court won't be able to accomplish anything contrary by walking a straight and narrow path. They can either dance with lies or march to the the truth.
I like a good marching song when it comes to important stuff like rights and freedom.
I'll save the tear-jerkers for when my woman runs off with another man or I run out of beer.
Woody
ProficientRifleman
Member
- Joined
- May 3, 2006
- Messages
- 579
Excellent...
Gura's brief is a masterful piece of persuasive writing.
Gura's brief is a masterful piece of persuasive writing.
geekWithA.45
Moderator Emeritus
In my view,\ It's brilliant in all respects but one : Gura seems eager to throw machine guns under the bus by asserting an unnecessary/unwarranted "and" relationship into the Miller test between
"any part of the ordinary military equipment, or that its use could contribute to the common defense" AND it was of a type in "common civilian use".
brief pg 43, pdf page 59:
"Arms that may have great military utility but which are inappropriate for civilian purposes are still sensibly excluded from the Second Amendment's protection, as civilians would not commonly use them"
It's been a long time since I've read the Miller holding, but I did not get the impression the comment about the militia being expected to show up with arms in common use at the time was part of the test, particularly positioned in such a way so as to prejudice machine guns.
later in the brief:
brief page 52, pdf page 68:
"Had Miller possessed a machinegun, this Court would presumably have little trouble finding that the weapon had militia utility. The court might nonetheless have held that machineguns fall outside the scoep the Second Amendment's protection as they were not "in common use at the time" such that civilians could be expected to have possessed them for ordinary lawful purposes" (Miller, 307 US at 179)
My impression is that Gura has created a novel synthesis so as to provide the court with a way to avoid MG implications in their ruling, essentially sacrificing MG for handguns.
The thing is, if that were the case, I don't consider it necessary: he's got plenty strong juju to cover handguns, throwing machineguns under the bus was unnecessary, and will greatly prejudice future actions around them.
"any part of the ordinary military equipment, or that its use could contribute to the common defense" AND it was of a type in "common civilian use".
brief pg 43, pdf page 59:
"Arms that may have great military utility but which are inappropriate for civilian purposes are still sensibly excluded from the Second Amendment's protection, as civilians would not commonly use them"
It's been a long time since I've read the Miller holding, but I did not get the impression the comment about the militia being expected to show up with arms in common use at the time was part of the test, particularly positioned in such a way so as to prejudice machine guns.
later in the brief:
brief page 52, pdf page 68:
"Had Miller possessed a machinegun, this Court would presumably have little trouble finding that the weapon had militia utility. The court might nonetheless have held that machineguns fall outside the scoep the Second Amendment's protection as they were not "in common use at the time" such that civilians could be expected to have possessed them for ordinary lawful purposes" (Miller, 307 US at 179)
My impression is that Gura has created a novel synthesis so as to provide the court with a way to avoid MG implications in their ruling, essentially sacrificing MG for handguns.
The thing is, if that were the case, I don't consider it necessary: he's got plenty strong juju to cover handguns, throwing machineguns under the bus was unnecessary, and will greatly prejudice future actions around them.
It is hard to argue the "in common usage" thread with MGs, as they are pretty uncommon to mere citizens.
I saw what he wrote more as a means of suggesting how the SC could minimize the scope of this particular ruling, while leaving the MG question for later, since that seems to be the main issue the solicitor general has in his amicus brief.
I saw what he wrote more as a means of suggesting how the SC could minimize the scope of this particular ruling, while leaving the MG question for later, since that seems to be the main issue the solicitor general has in his amicus brief.
I think the other side knows exactly what is at stake.
Personally, I am hopeful that the case leads to the SC being forced to admit that the words in the constitution actually mean what they say. that could have a huge impact in other areas as well.
ConstitutionCowboy
member
There are obvious causes for this: NFA, and FOPA. Without the infringing restrictions and prohibitions in these acts, I do believe they'd be much more common. With an unfettered market, gun makers would produce many such arms, there'd be innovation, assembly line production, and they'd be reasonably priced. (I'd own one or two depending on caliber!)
In my opinion, the "common usage" argument could be applied to the military and active militia(the NG) use connection.
Then, too, the infringement argument is so well made in the brief. How anyone can honestly not understand that the Second Amendment isn't about the intended use of arms is beyond me. It's about prohibiting government to infringe upon the right of the people to keep and bear arms, not limit or prohibit what the people may keep and bear.
My wife made a good analogy this morning on another subject and I think it works here as well.
[Analogy]
The Court is treading water in an oil-slicked pool and there are many standing around that pool with matches. There is only one ladder out of the pool and not one fire extinguisher.
I'm glad I'm not in that pool with them, because all it will take is five of the nine with a bad call to bring down a ring of fire. I'd feel bad for the four righteous treaders, but that is one of the consequences of positions of power, and no one would escape without at least a few scars.
[/Analogy]
The Court is treading water in an oil-slicked pool and there are many standing around that pool with matches. There is only one ladder out of the pool and not one fire extinguisher.
I'm glad I'm not in that pool with them, because all it will take is five of the nine with a bad call to bring down a ring of fire. I'd feel bad for the four righteous treaders, but that is one of the consequences of positions of power, and no one would escape without at least a few scars.
[/Analogy]
Woody
"Charge the Court, Congress, and the several state legislatures with what to do with all the violent criminals who cannot be trusted with arms. We law abiding citizens shouldn't be burdened with having to prove we are not one of the untrustworthy just because those in government don't want to stop crime by keeping violent criminals locked up." B.E. Wood
That said, you know what they say about wishing in one hand and keeping a roll of toilet paper handy for the other...
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Sam Adams
Member
Geek
I am also very concerned that full autos just got tossed under the bus. While the question at issue in this case does not require that the full auto question be addressed, let alone answered, Gura gave the Court plenty of leeway to rule on the question (though that's not usually the Court's style - it usually rules as narrowly as possible on the question at issue). Still, I'm concerned.
FYI, this is the operative quote from the Miller case:
I don't see a damned thing about "... AND it was of a type in "common civilian use." Where does he get "common civilian use" from? What is he, an activist judge, making up law from thin air?
Here's another quote from Miller:
I'm curious - EXTREMELY curious: does anyone here think that this brief will spell the end of the hope to get 922(o) repealed via court action?
I am also very concerned that full autos just got tossed under the bus. While the question at issue in this case does not require that the full auto question be addressed, let alone answered, Gura gave the Court plenty of leeway to rule on the question (though that's not usually the Court's style - it usually rules as narrowly as possible on the question at issue). Still, I'm concerned.
FYI, this is the operative quote from the Miller case:
I don't see a damned thing about "... AND it was of a type in "common civilian use." Where does he get "common civilian use" from? What is he, an activist judge, making up law from thin air?
Here's another quote from Miller:
I'm curious - EXTREMELY curious: does anyone here think that this brief will spell the end of the hope to get 922(o) repealed via court action?
I think it is very hard to make any kind of logical 2A argument about MGs that does not come to the logical conclusion that MGs are arms, as mentioned in the 2A.
I don't think that means much in this particular case, but its clear the solicitor general knows exactly what is at stake. In the long run, the whole gamut of federal gun regulation is at risk, since none of it has shown any utility whatsoever in reducing crime, and that is the stated purpose of such laws.
Getting a strict scrutiny ruling would be nice, but I don't see it happening in this case, since it is not necessary for the court to deal with Heller. The tax side of the MG laws could well stand, but I suspect the ban on adding new MGs to the registry could well be in jeopardy.
I don't think that means much in this particular case, but its clear the solicitor general knows exactly what is at stake. In the long run, the whole gamut of federal gun regulation is at risk, since none of it has shown any utility whatsoever in reducing crime, and that is the stated purpose of such laws.
Getting a strict scrutiny ruling would be nice, but I don't see it happening in this case, since it is not necessary for the court to deal with Heller. The tax side of the MG laws could well stand, but I suspect the ban on adding new MGs to the registry could well be in jeopardy.
Sam Adams
Member
Aside from the MG issue, I think it was an excellent brief. The emphasis on showing that the preamble of the 2nd cannot be a limiting factor is key, as is the demonstration of DC's intentional failure to tell the whole truth in certain key quotes and the legal absurdity of DC's positions.
For anyone who still thinks that the preamble could possibly limit the 2nd Amendment's operative clause, think about this:
Advocates of the preamble as law say that only people in the militia have a right to arms, and then only in the performance of (or in aid of) their militia duties. OK, fine, let's take that to its logical extreme. Right now the unorganized militia is (in very basic terms) composed of all males between the ages of 18 and 45, except those in the armed forces or the national guard (which is the organized militia). But let's say that the Congress and the President got together and changed the definition to all males between the ages of 18 years of age and 18 years and 3 days of age, except those in the armed forces or the national guard (which is the organized militia). Oh, and they then passed a draft, forcing all males to report for 2 years of service as of the day when they turn age 18. Presto-chango: there's no one able to own a firearm. Is that what the drafters of the 2nd Amendment intended? I think the answer is obvious.
For anyone who still thinks that the preamble could possibly limit the 2nd Amendment's operative clause, think about this:
Advocates of the preamble as law say that only people in the militia have a right to arms, and then only in the performance of (or in aid of) their militia duties. OK, fine, let's take that to its logical extreme. Right now the unorganized militia is (in very basic terms) composed of all males between the ages of 18 and 45, except those in the armed forces or the national guard (which is the organized militia). But let's say that the Congress and the President got together and changed the definition to all males between the ages of 18 years of age and 18 years and 3 days of age, except those in the armed forces or the national guard (which is the organized militia). Oh, and they then passed a draft, forcing all males to report for 2 years of service as of the day when they turn age 18. Presto-chango: there's no one able to own a firearm. Is that what the drafters of the 2nd Amendment intended? I think the answer is obvious.
Sam Adams
Member
I hate to say it, but I could live with that. Just take us back to 5/18/86, permanently. There will be several hundred thousand full autos sold within a couple years, and millions over the next decade or two. Let's see Hillary or any other tyrant-wannabbee try to take away our liberties then. THAT is what the 2nd Amendment is about - preserving our liberties by making sure that the Constitution is adhered to by those with the command and control of the levers of power.
Sam Adams
Member
I sent the following to Gura & Possessky:
I read with great interest your brief in the "Heller" case. I think that it is a magnificent document, shredding the arguments of the District of Columbia.
There is, however, one point that I don't think you made regarding the issue of the preamble. I hope that if you find my statement below to be helpful, you can supplement your brief or otherwise get this information before the Court. At the very least, it will give you an additional arrow in your quiver at the time of the hearing before the Court this Spring.
Please note that what follows clearly isn't itself suitable for submission, but the idea conveyed should be sufficient to determine its worth (or lack thereof).
___________________________________
Advocates of the preamble as operative law make the assertion that only people actually in the militia have a right to arms, and then only in the performance of their militia duties. OK, fine, let's take that to its logical extreme.
Presently, U.S.C. Title 10, Section 311 states that the militia is composed of "all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard." Section 311 goes on to indicate that the National Guard and the Naval Militia compose the organized militia, and all other militia members are in the unorganized militia.
Let's now propose a hypothetical situation: Congress ratifies a bill, and the President signs it into law, the substance of which changes the definition of the militia to "...all able-bodied males at least 18 years of age and, except as provided in section 313 of title 32, under 19 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."
Is this highly limiting change in the definition of the militia sufficient to deprive every other citizen of the right to keep and bear arms? According to the logic of those who view the preamble as operative law, the answer would be "yes." Such would be, however, absurd on its face to the drafters and ratifiers of the 2nd Amendment. It would be akin to the initial, rejected, text of what is now the 2nd Amendment, wherein the Congress could have declared all persons to be religiously scrupulous - and thus deprived of arms because they couldn't be part of the militia.
Let us take this one step further: What if, in conjunction with the change of the definition of the miitia, Congress and the President enacted a draft, forcing all males to report for 2 years of service on the day when they turn age 18. The result would be that NO ONE would be part of the unorganized militia, a plainly absurd, and constitutionally improper, result.
Is that what the drafters and ratifiers of the 2nd Amendment intended?
________________________________________
Again, I hope that this information will be of use to you. I don't require any thanks or attribution, but I will be available for any consultation (for no fee) that you may need or desire.
Very truly yours,
Sam Adams [not my real name]
I read with great interest your brief in the "Heller" case. I think that it is a magnificent document, shredding the arguments of the District of Columbia.
There is, however, one point that I don't think you made regarding the issue of the preamble. I hope that if you find my statement below to be helpful, you can supplement your brief or otherwise get this information before the Court. At the very least, it will give you an additional arrow in your quiver at the time of the hearing before the Court this Spring.
Please note that what follows clearly isn't itself suitable for submission, but the idea conveyed should be sufficient to determine its worth (or lack thereof).
___________________________________
Advocates of the preamble as operative law make the assertion that only people actually in the militia have a right to arms, and then only in the performance of their militia duties. OK, fine, let's take that to its logical extreme.
Presently, U.S.C. Title 10, Section 311 states that the militia is composed of "all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard." Section 311 goes on to indicate that the National Guard and the Naval Militia compose the organized militia, and all other militia members are in the unorganized militia.
Let's now propose a hypothetical situation: Congress ratifies a bill, and the President signs it into law, the substance of which changes the definition of the militia to "...all able-bodied males at least 18 years of age and, except as provided in section 313 of title 32, under 19 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."
Is this highly limiting change in the definition of the militia sufficient to deprive every other citizen of the right to keep and bear arms? According to the logic of those who view the preamble as operative law, the answer would be "yes." Such would be, however, absurd on its face to the drafters and ratifiers of the 2nd Amendment. It would be akin to the initial, rejected, text of what is now the 2nd Amendment, wherein the Congress could have declared all persons to be religiously scrupulous - and thus deprived of arms because they couldn't be part of the militia.
Let us take this one step further: What if, in conjunction with the change of the definition of the miitia, Congress and the President enacted a draft, forcing all males to report for 2 years of service on the day when they turn age 18. The result would be that NO ONE would be part of the unorganized militia, a plainly absurd, and constitutionally improper, result.
Is that what the drafters and ratifiers of the 2nd Amendment intended?
________________________________________
Again, I hope that this information will be of use to you. I don't require any thanks or attribution, but I will be available for any consultation (for no fee) that you may need or desire.
Very truly yours,
Sam Adams [not my real name]
did the drafters of the constitution ever intend for congress to ban the smoking of a common weed?
did the drafters of the constitution ever envision that freedom from unreasonable search and seizure would not apply if government made a specious claim that it was actually only about drunk driving?
did the drafters ever envision that the power to regulate interstate commerce would include the power to ban growing food for one's own self?
or that the power to regulate interstate commerce would include the power to regulate the private use of items long after they went through interstate commerce?
did the drafters of the constitution ever envision that freedom from unreasonable search and seizure would not apply if government made a specious claim that it was actually only about drunk driving?
did the drafters ever envision that the power to regulate interstate commerce would include the power to ban growing food for one's own self?
or that the power to regulate interstate commerce would include the power to regulate the private use of items long after they went through interstate commerce?
Mike OTDP
Member
Sam's right about NFA-34.
Gura and company did an excellent job of pointing out that "strict" scrutiny isn't all that strict...and that many current firearms laws would pass that level of scrutiny. We can live with that.
The key is to win on the BIG issue...whether or not the government can institute sweeping gun bans. Take gun bans off the table, and we are discussing the administration of background checks. Which will be an entertaining debate, but not one that anybody is really going to get worked up about.
Gura and company did an excellent job of pointing out that "strict" scrutiny isn't all that strict...and that many current firearms laws would pass that level of scrutiny. We can live with that.
The key is to win on the BIG issue...whether or not the government can institute sweeping gun bans. Take gun bans off the table, and we are discussing the administration of background checks. Which will be an entertaining debate, but not one that anybody is really going to get worked up about.
Sam Adams
Member
ilbob
I understand your points. One could add to the list the facts of the Kelo decision.
My point is that if you reduce the argument of the other side to it logically absurd conclusion - that the RKBA means nothing, because Congress can define the militia out of existence (with or without the President's help), and that such an approach not only makes the entire 2nd Amendment an absurdity, but that such an approach was rejected (the bit about exempting those religiously scrupulous from the militia) FOR JUST THAT REASON - then maybe you'll get that 5th justice to do the right thing. Maybe. It is certainly worth the effort to make the point.
I understand your points. One could add to the list the facts of the Kelo decision.
My point is that if you reduce the argument of the other side to it logically absurd conclusion - that the RKBA means nothing, because Congress can define the militia out of existence (with or without the President's help), and that such an approach not only makes the entire 2nd Amendment an absurdity, but that such an approach was rejected (the bit about exempting those religiously scrupulous from the militia) FOR JUST THAT REASON - then maybe you'll get that 5th justice to do the right thing. Maybe. It is certainly worth the effort to make the point.
Sam Adams
Member
Take (rifle, pistol and shot)gun bans off the table...and we are talking about taking machine gun bans off the table. That's EXACTLY where I'd like to be. Win this case, and then have a fully qualified civilian without a Class 3 license (or 13, one from each Circuit) attempt to buy a brand-new M4 from a Class 3 dealer, have all of them get denied because of the FOPA ban, and then they file a class action against the BATFE. Have LOTS of evidence of the utility of M4s for militia purposes, and under Miller and the hoped-for Heller decisions, the FOPA ban goes the way of the Dodo bird.
Maybe none of us will get too worked up about it, but I'd expect the likes of Feinstein, Schumer and Kennedy to be literally foaming at the mouth on the floor of the Senate.
Megistopoda
Member
OK....how much is the discussion of MGs germane to the real issue at hand?
Surely you all fully realize that the tree must be felled before the table is built...
Anyway, I've read the brief, and agree it's very good. A few things in particular strike me about it.
1) Much of the response reads like a rather trivial history lesson on how gun rights were viewed as individual at the time of the founding. Here, Gura/Heller thoroughly clean house on the main argument (argument #1) of DC's merits brief. As trivial and remedial as this history lesson seems to us (or me at least), it's none-the-less important because the DC side in this case is clearly trying to obscure, then re-write, this portion of our history as it relates to the importance and history of private firearm ownership in the US. Regarding this argument, a couple of linguistics professors filed a brief on behalf of the District. They argued in a very complicated and convoluted way that the 2A does not, and never did, speak to private or individual rights to arms. Gura responded thusly (brilliantly and not without humor):
"No doubts or ambiguities arise from the words “the right of the people to keep and bear arms shall not be infringed.” The words cannot be rendered meaningless by resort to their preamble. Any preamble-based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context."
2) Another couple things leapt out at me.
(A.) As you might know, the Petitioner's brief (as well as many of the amicus briefs) went on and on about violent crime...it's prevalence, it's danger, it's cost, etc. And they weakly attempted to tie DCs handgun ban (and gun control in general, including in Chicago) into this violence in a cause-and-effect manner, and tried to argue that the bans reduce such crime in a meaningful way. Yet Gura's response mentions almost none of this - this is uber responsible and mature on his part in as much as social policy issues and constitutional issues are two different, independent animals. I think he predicts that the Justices will see through this smoke-and-mirrors public policy advocacy. In effect, the constitutional issue at hand is "above" all the arm-waving and hand-wringing on behalf of the Brady Campaign, the Violence Policy Center, and their colleagues...however sincere those folks might appear to be.
(B.) As you also might know, the US Dept of Justice filed an amicus breif (but not on behalf of either party). That one brief as been the focus of much heated discussion and downright animosity. While they clearly stated that the 2A protects an individual right to arms not wholly constrained by service to a state-regulated militia, they argue for the Supreme Court to outline a lower standard of judicial review for the 2A as compared to other amendments such as the 1A and the 4A. I think that Gura did a great job with this. But at any rate, the quote below from Gura's brief speaks to both (A.) and (B.) above.
"Although this case does not call upon the Court to determine the standard of review applicable to regulations of Second Amendment rights, Respondent observes that the right to arms protects two of the most fundamental rights—the defense of one’s life inside one’s home, and the defense of society against tyrannical usurpation of authority. Petitioners’ casual use of social science sharply underscores the importance of securing Second Amendment rights with a meaningful standard of review."
By "casual use of social science" he means the public health advocacy studies (largely propped up by Joyce Foundation funding) that first spin and pump violent crime in America as horrifying and epidemic, and second, argue that restrictive gun control laws are the only way...the absolutely necessary way, reduce violent crime. And in this context, he is also speaking directly to the temptation and danger of using "social science" to justify the infringement of individual rights for the sake of perceived public safety. No doubt, Alan Gura is familiar with this quote by Ben Franklin: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
Finally, toward the end of the brief, they offer this (and with this, they strike to the very heart of the entire matter):
"Petitioners plainly disagree with the Framers’ Second Amendment policy choices. Petitioners’ remedy must be found within the Constitution’s Fifth Article, not with linguistic sophistries or an anemic standard of review that would deprive the right of any real force."
What they are saying is this: "It's clear that DC just doesn't like what the 2A really means, and the right it protects. Fine. If you don't like it, then repeal the amendment. But you cannot simply rewrite history to fit your preferences, nor can you ask the courts to render them meaningless by applying a low standard of review. The Constitution's Fifth Article, of course, outlines how we go about enacting and repealing constitutional amendments
Surely you all fully realize that the tree must be felled before the table is built...
Anyway, I've read the brief, and agree it's very good. A few things in particular strike me about it.
1) Much of the response reads like a rather trivial history lesson on how gun rights were viewed as individual at the time of the founding. Here, Gura/Heller thoroughly clean house on the main argument (argument #1) of DC's merits brief. As trivial and remedial as this history lesson seems to us (or me at least), it's none-the-less important because the DC side in this case is clearly trying to obscure, then re-write, this portion of our history as it relates to the importance and history of private firearm ownership in the US. Regarding this argument, a couple of linguistics professors filed a brief on behalf of the District. They argued in a very complicated and convoluted way that the 2A does not, and never did, speak to private or individual rights to arms. Gura responded thusly (brilliantly and not without humor):
"No doubts or ambiguities arise from the words “the right of the people to keep and bear arms shall not be infringed.” The words cannot be rendered meaningless by resort to their preamble. Any preamble-based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context."
2) Another couple things leapt out at me.
(A.) As you might know, the Petitioner's brief (as well as many of the amicus briefs) went on and on about violent crime...it's prevalence, it's danger, it's cost, etc. And they weakly attempted to tie DCs handgun ban (and gun control in general, including in Chicago) into this violence in a cause-and-effect manner, and tried to argue that the bans reduce such crime in a meaningful way. Yet Gura's response mentions almost none of this - this is uber responsible and mature on his part in as much as social policy issues and constitutional issues are two different, independent animals. I think he predicts that the Justices will see through this smoke-and-mirrors public policy advocacy. In effect, the constitutional issue at hand is "above" all the arm-waving and hand-wringing on behalf of the Brady Campaign, the Violence Policy Center, and their colleagues...however sincere those folks might appear to be.
(B.) As you also might know, the US Dept of Justice filed an amicus breif (but not on behalf of either party). That one brief as been the focus of much heated discussion and downright animosity. While they clearly stated that the 2A protects an individual right to arms not wholly constrained by service to a state-regulated militia, they argue for the Supreme Court to outline a lower standard of judicial review for the 2A as compared to other amendments such as the 1A and the 4A. I think that Gura did a great job with this. But at any rate, the quote below from Gura's brief speaks to both (A.) and (B.) above.
"Although this case does not call upon the Court to determine the standard of review applicable to regulations of Second Amendment rights, Respondent observes that the right to arms protects two of the most fundamental rights—the defense of one’s life inside one’s home, and the defense of society against tyrannical usurpation of authority. Petitioners’ casual use of social science sharply underscores the importance of securing Second Amendment rights with a meaningful standard of review."
By "casual use of social science" he means the public health advocacy studies (largely propped up by Joyce Foundation funding) that first spin and pump violent crime in America as horrifying and epidemic, and second, argue that restrictive gun control laws are the only way...the absolutely necessary way, reduce violent crime. And in this context, he is also speaking directly to the temptation and danger of using "social science" to justify the infringement of individual rights for the sake of perceived public safety. No doubt, Alan Gura is familiar with this quote by Ben Franklin: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
Finally, toward the end of the brief, they offer this (and with this, they strike to the very heart of the entire matter):
"Petitioners plainly disagree with the Framers’ Second Amendment policy choices. Petitioners’ remedy must be found within the Constitution’s Fifth Article, not with linguistic sophistries or an anemic standard of review that would deprive the right of any real force."
What they are saying is this: "It's clear that DC just doesn't like what the 2A really means, and the right it protects. Fine. If you don't like it, then repeal the amendment. But you cannot simply rewrite history to fit your preferences, nor can you ask the courts to render them meaningless by applying a low standard of review. The Constitution's Fifth Article, of course, outlines how we go about enacting and repealing constitutional amendments
- Status
