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http://www.usnews.com/articles/news/...rt-briefs.html
Above link from JPFO
Excerpts From Friend-of-Court Briefs
The D.C. gun case exposes strange bedfellows and internal rifts in the administration
By Emma Schwartz
Posted March 7, 2008
Dozens of organizations have weighed in on both sides of District of Columbia. v. Heller, the landmark U.S. Supreme Court case that will consider whether the Second Amendment protects an individual's right to bear arms.
Related News
A Key Case on Gun Control
In Congress, the Uphill Battle for Gun Control
Gun Control Laws
Controlling Guns in Philadelphia
Video: D.C. Gun Unit
Not surprisingly, the case has drawn a great number and variety of voices. The amicus, or friend-of-court, briefs have exposed some odd bedfellows, along with internal divisions among government branches. Some former U.S. Justice Department officials—including Republican Attorneys General Edwin Meese and William Barr—support Heller, while another group of former Justice Department officials—among them Clinton-era Attorney General Janet Reno—comes down on the side of the District.
State attorneys general are likewise divided, with 31 states, led by Texas, supporting Heller and more-liberal regions, including Maryland, Massachusetts, and New Jersey, arguing for the city.
Although the Justice Department supports an individual's right to own a gun, it has urged the Supreme Court to remand the lower court's decision. Yet a key Bush administration official, Vice President Dick Cheney—acting in his capacity as a member of Congress—has come down in favor of Heller. A bipartisan group in Congress—55 senators and 250 representatives—has supported Heller, although 18 representatives filed in support of the city.
There are health groups and law enforcement associations on both sides of the issue, along with a collection of niche interests: women's and gay rights organizations that say a right to bear arms is critical to protecting their equality; a group called Jews for the Preservation of Firearms Ownership; and the NAACP, which filed a brief in favor of the city's law.
Excerpts from amicus briefs that side with Heller:
• Conservative former officials of the U.S. Department of Justice, including former Attorneys General Edwin Meese and William Barr (.pdf) :
"The Executive Branch had long interpreted the Amendment to secure an individual right prior to the litigation that culminated in this Court's decision in United States v. Miller. And although the Government advanced, in the alternative, a contrary, collective rights interpretation during the Miller litigation, the Executive Branch appears generally to have adhered to an individual rights view for many years thereafter.... Throughout the remainder of the twentieth century, the Executive Branch's interpretations of the Second Amendment were cursory and often equivocal.
"The Reno brief also errs in suggesting that affirming the judgment below would jeopardize existing federal firearms laws. The Second Amendment's protection was never understood to extend to unfit persons or to unusual and especially dangerous firearms. Reading the Second Amendment to secure the right of a law-abiding individual to possess a common handgun for personal defense in his own home does not call into question any existing federal firearms regulations."
• Selected members of Congress (.pdf):
"Historically Congress has interpreted the Second Amendment as recognizing the right of law-abiding individuals to keep and bear arms. This Court should give due deference to the repeated findings over different historical epochs by Congress, a co-equal branch of government, that the Amendment guarantees the personal right to possess firearms. The District's prohibitions on mere possession by law-abiding persons of handguns in the home and having usable firearms there are unreasonable per se. No purpose would be served by remanding this case for further fact finding or other proceedings.
"This declares a political principle and then guarantees a substantive right. The term 'the people' is in juxtaposition to the government, federal or state. Only individuals have 'rights,' while the United States and the states have 'powers.' "
• Pink Pistols—a group of gay and lesbian firearms owners (.pdf):
"Laws that prevent the use of firearms for self defense in one's own home disproportionately impact those individuals who are targets of hate violence due to their minority status, whether defined by race, religion, sexual orientation, or other characteristic. Even in their homes, LGBT [lesbian, gay, bisexual, transgendered] individuals are at risk of murder, aggravated assault and other forms of hate violence because of their sexual orientation. In fact, the home is the most common site of anti-gay violence."
• Jews for the Preservation of Firearms Ownership (.pdf):
"Throughout history, the disarmament of populations has all too frequently resulted in genocide and mass oppression. History is replete with this familiar pattern. To limit the right to keep and bear arms to a state regulated militia is to disregard what the Framers understood—that individual possession of arms is essential to preventing usurpation by the state.
"In many cases, firearm confiscation followed only after the groundwork was laid by purportedly 'reasonable' regulation and registration of firearms. History illustrates just how readily the standardless 'reasonable' regulation of firearms invites large scale abuse by the state and ultimately paves the way for wholesale confiscation of arms and the mass slaughter of the disarmed (much like the massive censorship that would arise under a rule permitting 'reasonable' regulation of speech and press)."
• National Rifle Association (.pdf):
"This outcome would cause grave harm not only to the tens of millions of law-abiding Americans who keep and bear arms for self-defense and other lawful, private purposes, but to the entire nation, which in times of gravest peril has always relied upon the body of ordinary men and women, and their everyday familiarity with arms, for its security.
"This individual right to keep and bear arms is a fundamental right; the Second Amendment on its face describes it as essential to a 'free State'—a democratic state free from government tyranny. As with the fundamental democratic rights guaranteed by the First Amendment, laws burdening Second Amendment rights should be subjected to strict scrutiny and struck down in their entirety when overly broad. Petitioners and their supporting amici attempt to conjure fears of legal bedlam should courts examine firearms laws under strict scrutiny, yet they present no real argument that long-standing laws regulating the ownership and use of firearms, such as laws barring ownership by convicted felons or the insane, would fail to pass muster under that test.
"While, to be sure, the Second Amendment refers to the utility of an armed population in preventing government tyranny, the Framers did not consider the right limited to that purpose. The Framers were well aware that in late-18th century America a significant segment of the population depended upon private ownership of arms to provide food for their families and to defend themselves and their families from attack. Americans' personal right to possess such firearms for hunting or self-defense was part of the essence of the Framers' view of themselves as a free and democratic people. Had Americans in 1787 been told that the federal government could ban the frontiersman in his log cabin, or the city merchant living above his store, from keeping firearms to provide for and protect himself and his family, it is hard to imagine that the Constitution would have been ratified."
• Association of American Physicians and Surgeons Inc. (.pdf):
"Medical professionals have no more qualifications or basis to opine about the Second Amendment than anyone else. The attempt to shroud political gun control arguments in the white coat of physicians and public health officials is utterly baseless, and constitutional law should not be influenced by it."
• 126 female state legislators and academics (.pdf):
"This case provides the Court an opportunity to advance the ability of women to free themselves from being subject to another's ill will and to counter the commonly-held prejudice that women are 'easier targets' simply because of their gender characteristics. Violence against women in the United States is endemic, often deadly, and most frequently committed by men superior in physical strength to their female victims.
"The District's current prohibition against handguns and immediately serviceable firearms in the home effectively eliminates a woman's ability to defend her very life and those of her children against violent attack. Women are simply less likely to be able to thwart violence using means currently permitted under D.C. law. Women are generally less physically strong, making it less likely that most physical confrontations will end favorably for women."
• A group of criminologists (.pdf):
"Handgun prohibition is simply not effective to produce good and valuable effects in society. Handgun prohibitions such as those enacted by the city council of the District of Columbia appear to be effective only at removing from law-abiding citizens the best means of protecting themselves, their loved ones and others from violent criminals. The District's 30-year social experiment with handgun prohibition has, if anything, illustrated this sad fact. Rather than becoming safer, our Nation's Capital has unfortunately become known as the 'murder capital' of the United States, one of the most violent cities in the country. In light of the District's gun prohibitions, there is little that the residents can realistically do but hope that they do not become victims themselves."
Excerpts from amicus briefs that side with the District of Columbia:
• American Public Health Association and other public-health groups (.pdf):
"The studies detailed below show that the risk of suicide, homicide, and accidental gun death is greater in homes with guns, and in communities with a higher prevalence of guns. Numerous studies indicate that people who have guns in their homes are at a substantially increased risk of suicide. Similarly, the presence of a gun at home increases the risk of homicide for the occupants of that home. And handguns, in particular, are responsible for the majority of all firearm homicides and suicides."
• 18 district attorneys, representing San Francisco, New York, and other areas (.pdf):
"The district attorneys urge the court to consider the potentially negative, unintended and wholly unnecessary consequences of an affirming opinion. In short, an affirmance could inadvertently call into question the well settled Second Amendment principles under which countless state and local criminal firearms laws have been upheld by courts nationwide."
• Liberal former officials of the U.S. Justice Department, including former Attorney General Janet Reno (.pdf):
"Amici disagree with the current position of the United States Department of Justice that the Second Amendment protects an individual right to keep and bear arms for purposes unrelated to a State's operation of a well-regulated militia. That position, which was adopted in the fall of 2001, reversed the Department's longstanding position that the Second Amendment is not implicated by firearms regulations that are designed to protect public safety and do not interfere with participation in a well-regulated militia.
"Recognition of an expansive individual right to keep and bear arms for private purposes will make it more difficult for the government to defend present and future firearms laws. With gun violence continuing to plague the United States, this Court should adhere to the position it staked out nearly 70 years ago in Miller and construe the Second Amendment to protect a right to keep and bear arms only to the extent the exercise of such a right is related to the 'preservation or efficiency of a well regulated militia.' "
• Selected members of Congress (.pdf):
"Since Miller it has been well settled that the Second Amendment is implicated only when the desired possession or use of a weapon has a 'relationship to the preservation or efficiency of a well regulated militia.' If the Second Amendment has any specific applications in Twenty-First Century America, it may be most appropriate for judgments about those applications to reside with the political branches, and particularly with Congress, which is expressly vested with responsibilities over the militia by Article I.16."
• UC-Irvine (incoming) Law School Dean Erwin Chemerinsky and UCLA Law Prof. Adam Winkler (.pdf):
"Should this Court hold that the Second Amendment protects an individual right apart from service in the militia, this Court should follow the consistent, longstanding federal and state constitutional practice and hold that the right to keep and bear arms is subject to reasonable regulation. Reasonableness review is appropriate because most weapons regulations are unquestionably legitimate means of enhancing public safety, reducing crime, or protecting children. Where the vast majority of regulation in an area is legitimate, this Court has held that the predicate for heightened scrutiny is absent and the judiciary should presume the constitutionality of legislation. Moreover, the text of the Second Amendment, the history of the right to bear arms in federal and state constitutional law, and federalism values all support permitting legislators substantial latitude to adopt reasonable regulations of arms.
"Any Second Amendment standard more demanding than reasonableness review is likely to burden the states with a flood of litigation challenging prior state criminal convictions for weapons offenses and severely limit the ability of local authorities to shape public safety laws to fit local circumstances."
• City of Chicago (.pdf):
"Chicago, like other big cities, has a compelling interest in reducing crime related to firearms. The amici consider it imperative that the democratic process be uninhibited by federal constitutional constraints that were never intended to apply against state and local governments, and that the States be free to regulate firearms as they deem appropriate to the particular conditions in their communities.
"It would be fundamentally perverse to transform this provision, designed to protect state interests against federal interference, into a federal restriction on traditional state regulatory powers.
"While we agree with the District that the Second Amendment protects not private rights but rather militia-linked rights, the position we urge is important if the Court should hold that there is a private right protected against federal interference. Further, we submit that even if the Second Amendment applies to state and local governments, it does not preclude handgun bans, such as those enacted by the District and Chicago."
"It would be fundamentally perverse to transform this provision, designed to protect state interests against federal interference, into a federal restriction on traditional state regulatory powers.
"While we agree with the District that the Second Amendment protects not private rights but rather militia-linked rights, the position we urge is important if the Court should hold that there is a private right protected against federal interference. Further, we submit that even if the Second Amendment applies to state and local governments, it does not preclude handgun bans, such as those enacted by the District and Chicago."
--------------------------------------------------------------------------------
Above link from JPFO
Excerpts From Friend-of-Court Briefs
The D.C. gun case exposes strange bedfellows and internal rifts in the administration
By Emma Schwartz
Posted March 7, 2008
Dozens of organizations have weighed in on both sides of District of Columbia. v. Heller, the landmark U.S. Supreme Court case that will consider whether the Second Amendment protects an individual's right to bear arms.
Related News
A Key Case on Gun Control
In Congress, the Uphill Battle for Gun Control
Gun Control Laws
Controlling Guns in Philadelphia
Video: D.C. Gun Unit
Not surprisingly, the case has drawn a great number and variety of voices. The amicus, or friend-of-court, briefs have exposed some odd bedfellows, along with internal divisions among government branches. Some former U.S. Justice Department officials—including Republican Attorneys General Edwin Meese and William Barr—support Heller, while another group of former Justice Department officials—among them Clinton-era Attorney General Janet Reno—comes down on the side of the District.
State attorneys general are likewise divided, with 31 states, led by Texas, supporting Heller and more-liberal regions, including Maryland, Massachusetts, and New Jersey, arguing for the city.
Although the Justice Department supports an individual's right to own a gun, it has urged the Supreme Court to remand the lower court's decision. Yet a key Bush administration official, Vice President Dick Cheney—acting in his capacity as a member of Congress—has come down in favor of Heller. A bipartisan group in Congress—55 senators and 250 representatives—has supported Heller, although 18 representatives filed in support of the city.
There are health groups and law enforcement associations on both sides of the issue, along with a collection of niche interests: women's and gay rights organizations that say a right to bear arms is critical to protecting their equality; a group called Jews for the Preservation of Firearms Ownership; and the NAACP, which filed a brief in favor of the city's law.
Excerpts from amicus briefs that side with Heller:
• Conservative former officials of the U.S. Department of Justice, including former Attorneys General Edwin Meese and William Barr (.pdf) :
"The Executive Branch had long interpreted the Amendment to secure an individual right prior to the litigation that culminated in this Court's decision in United States v. Miller. And although the Government advanced, in the alternative, a contrary, collective rights interpretation during the Miller litigation, the Executive Branch appears generally to have adhered to an individual rights view for many years thereafter.... Throughout the remainder of the twentieth century, the Executive Branch's interpretations of the Second Amendment were cursory and often equivocal.
"The Reno brief also errs in suggesting that affirming the judgment below would jeopardize existing federal firearms laws. The Second Amendment's protection was never understood to extend to unfit persons or to unusual and especially dangerous firearms. Reading the Second Amendment to secure the right of a law-abiding individual to possess a common handgun for personal defense in his own home does not call into question any existing federal firearms regulations."
• Selected members of Congress (.pdf):
"Historically Congress has interpreted the Second Amendment as recognizing the right of law-abiding individuals to keep and bear arms. This Court should give due deference to the repeated findings over different historical epochs by Congress, a co-equal branch of government, that the Amendment guarantees the personal right to possess firearms. The District's prohibitions on mere possession by law-abiding persons of handguns in the home and having usable firearms there are unreasonable per se. No purpose would be served by remanding this case for further fact finding or other proceedings.
"This declares a political principle and then guarantees a substantive right. The term 'the people' is in juxtaposition to the government, federal or state. Only individuals have 'rights,' while the United States and the states have 'powers.' "
• Pink Pistols—a group of gay and lesbian firearms owners (.pdf):
"Laws that prevent the use of firearms for self defense in one's own home disproportionately impact those individuals who are targets of hate violence due to their minority status, whether defined by race, religion, sexual orientation, or other characteristic. Even in their homes, LGBT [lesbian, gay, bisexual, transgendered] individuals are at risk of murder, aggravated assault and other forms of hate violence because of their sexual orientation. In fact, the home is the most common site of anti-gay violence."
• Jews for the Preservation of Firearms Ownership (.pdf):
"Throughout history, the disarmament of populations has all too frequently resulted in genocide and mass oppression. History is replete with this familiar pattern. To limit the right to keep and bear arms to a state regulated militia is to disregard what the Framers understood—that individual possession of arms is essential to preventing usurpation by the state.
"In many cases, firearm confiscation followed only after the groundwork was laid by purportedly 'reasonable' regulation and registration of firearms. History illustrates just how readily the standardless 'reasonable' regulation of firearms invites large scale abuse by the state and ultimately paves the way for wholesale confiscation of arms and the mass slaughter of the disarmed (much like the massive censorship that would arise under a rule permitting 'reasonable' regulation of speech and press)."
• National Rifle Association (.pdf):
"This outcome would cause grave harm not only to the tens of millions of law-abiding Americans who keep and bear arms for self-defense and other lawful, private purposes, but to the entire nation, which in times of gravest peril has always relied upon the body of ordinary men and women, and their everyday familiarity with arms, for its security.
"This individual right to keep and bear arms is a fundamental right; the Second Amendment on its face describes it as essential to a 'free State'—a democratic state free from government tyranny. As with the fundamental democratic rights guaranteed by the First Amendment, laws burdening Second Amendment rights should be subjected to strict scrutiny and struck down in their entirety when overly broad. Petitioners and their supporting amici attempt to conjure fears of legal bedlam should courts examine firearms laws under strict scrutiny, yet they present no real argument that long-standing laws regulating the ownership and use of firearms, such as laws barring ownership by convicted felons or the insane, would fail to pass muster under that test.
"While, to be sure, the Second Amendment refers to the utility of an armed population in preventing government tyranny, the Framers did not consider the right limited to that purpose. The Framers were well aware that in late-18th century America a significant segment of the population depended upon private ownership of arms to provide food for their families and to defend themselves and their families from attack. Americans' personal right to possess such firearms for hunting or self-defense was part of the essence of the Framers' view of themselves as a free and democratic people. Had Americans in 1787 been told that the federal government could ban the frontiersman in his log cabin, or the city merchant living above his store, from keeping firearms to provide for and protect himself and his family, it is hard to imagine that the Constitution would have been ratified."
• Association of American Physicians and Surgeons Inc. (.pdf):
"Medical professionals have no more qualifications or basis to opine about the Second Amendment than anyone else. The attempt to shroud political gun control arguments in the white coat of physicians and public health officials is utterly baseless, and constitutional law should not be influenced by it."
• 126 female state legislators and academics (.pdf):
"This case provides the Court an opportunity to advance the ability of women to free themselves from being subject to another's ill will and to counter the commonly-held prejudice that women are 'easier targets' simply because of their gender characteristics. Violence against women in the United States is endemic, often deadly, and most frequently committed by men superior in physical strength to their female victims.
"The District's current prohibition against handguns and immediately serviceable firearms in the home effectively eliminates a woman's ability to defend her very life and those of her children against violent attack. Women are simply less likely to be able to thwart violence using means currently permitted under D.C. law. Women are generally less physically strong, making it less likely that most physical confrontations will end favorably for women."
• A group of criminologists (.pdf):
"Handgun prohibition is simply not effective to produce good and valuable effects in society. Handgun prohibitions such as those enacted by the city council of the District of Columbia appear to be effective only at removing from law-abiding citizens the best means of protecting themselves, their loved ones and others from violent criminals. The District's 30-year social experiment with handgun prohibition has, if anything, illustrated this sad fact. Rather than becoming safer, our Nation's Capital has unfortunately become known as the 'murder capital' of the United States, one of the most violent cities in the country. In light of the District's gun prohibitions, there is little that the residents can realistically do but hope that they do not become victims themselves."
Excerpts from amicus briefs that side with the District of Columbia:
• American Public Health Association and other public-health groups (.pdf):
"The studies detailed below show that the risk of suicide, homicide, and accidental gun death is greater in homes with guns, and in communities with a higher prevalence of guns. Numerous studies indicate that people who have guns in their homes are at a substantially increased risk of suicide. Similarly, the presence of a gun at home increases the risk of homicide for the occupants of that home. And handguns, in particular, are responsible for the majority of all firearm homicides and suicides."
• 18 district attorneys, representing San Francisco, New York, and other areas (.pdf):
"The district attorneys urge the court to consider the potentially negative, unintended and wholly unnecessary consequences of an affirming opinion. In short, an affirmance could inadvertently call into question the well settled Second Amendment principles under which countless state and local criminal firearms laws have been upheld by courts nationwide."
• Liberal former officials of the U.S. Justice Department, including former Attorney General Janet Reno (.pdf):
"Amici disagree with the current position of the United States Department of Justice that the Second Amendment protects an individual right to keep and bear arms for purposes unrelated to a State's operation of a well-regulated militia. That position, which was adopted in the fall of 2001, reversed the Department's longstanding position that the Second Amendment is not implicated by firearms regulations that are designed to protect public safety and do not interfere with participation in a well-regulated militia.
"Recognition of an expansive individual right to keep and bear arms for private purposes will make it more difficult for the government to defend present and future firearms laws. With gun violence continuing to plague the United States, this Court should adhere to the position it staked out nearly 70 years ago in Miller and construe the Second Amendment to protect a right to keep and bear arms only to the extent the exercise of such a right is related to the 'preservation or efficiency of a well regulated militia.' "
• Selected members of Congress (.pdf):
"Since Miller it has been well settled that the Second Amendment is implicated only when the desired possession or use of a weapon has a 'relationship to the preservation or efficiency of a well regulated militia.' If the Second Amendment has any specific applications in Twenty-First Century America, it may be most appropriate for judgments about those applications to reside with the political branches, and particularly with Congress, which is expressly vested with responsibilities over the militia by Article I.16."
• UC-Irvine (incoming) Law School Dean Erwin Chemerinsky and UCLA Law Prof. Adam Winkler (.pdf):
"Should this Court hold that the Second Amendment protects an individual right apart from service in the militia, this Court should follow the consistent, longstanding federal and state constitutional practice and hold that the right to keep and bear arms is subject to reasonable regulation. Reasonableness review is appropriate because most weapons regulations are unquestionably legitimate means of enhancing public safety, reducing crime, or protecting children. Where the vast majority of regulation in an area is legitimate, this Court has held that the predicate for heightened scrutiny is absent and the judiciary should presume the constitutionality of legislation. Moreover, the text of the Second Amendment, the history of the right to bear arms in federal and state constitutional law, and federalism values all support permitting legislators substantial latitude to adopt reasonable regulations of arms.
"Any Second Amendment standard more demanding than reasonableness review is likely to burden the states with a flood of litigation challenging prior state criminal convictions for weapons offenses and severely limit the ability of local authorities to shape public safety laws to fit local circumstances."
• City of Chicago (.pdf):
"Chicago, like other big cities, has a compelling interest in reducing crime related to firearms. The amici consider it imperative that the democratic process be uninhibited by federal constitutional constraints that were never intended to apply against state and local governments, and that the States be free to regulate firearms as they deem appropriate to the particular conditions in their communities.
"It would be fundamentally perverse to transform this provision, designed to protect state interests against federal interference, into a federal restriction on traditional state regulatory powers.
"While we agree with the District that the Second Amendment protects not private rights but rather militia-linked rights, the position we urge is important if the Court should hold that there is a private right protected against federal interference. Further, we submit that even if the Second Amendment applies to state and local governments, it does not preclude handgun bans, such as those enacted by the District and Chicago."
"It would be fundamentally perverse to transform this provision, designed to protect state interests against federal interference, into a federal restriction on traditional state regulatory powers.
"While we agree with the District that the Second Amendment protects not private rights but rather militia-linked rights, the position we urge is important if the Court should hold that there is a private right protected against federal interference. Further, we submit that even if the Second Amendment applies to state and local governments, it does not preclude handgun bans, such as those enacted by the District and Chicago."
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