DC files Parker/Heller brief

Don't read it... It'll only ruin your weekend.

How do these guys look at themselves in the mirror after stringing together such an incomprehensible stream of horse manure.

Dave or any lawyer reading this. I am no legal scholar, but 79 pages seems like an awful lot, will we be able to blow the holes we need to in this?

Chris, I got dizzy after the Contents page. Will need to read later

Its only 79 pages? Heck, thats not so bad. I'll read it at some point. Too much to do tonight.

We had a case in RI at our Supreme Court. The Brady bunch and the VPC filed briefs. They just made stuff up.

My very quick take up to page 22....

It's written pretty well, and the arguments are stated in pretty strong terms. The over-arching premise thus far (up to page 22) is that the purpose of the 2A is EXCLUSIVELY military, and at that, the militia clause that WHOLLY constrains the right clause refers to an organized militia...it seems that this militia is, according to DC, the militias of individual states.

These arguments might just even be convincing to those that are inclined to read the 2A in the very narrowest of terms.

Which is not reasonable in the least.

Much more to read....

What a pile...How can they ignore the clear intent of the English language and the expressed intent of the framers in the Federalist Papers?

I wanted to add an afterthought:

I strongly encourage all of you to read the brief. Read the entire thing. It is written in pretty simple, non-legalistic terms.

Don't be scared of it.

Don't be bored with it.

Read it and understand the spin they are trying to place on our cherished 2A rights. You are watching history unfold before your very eyes.

I am reading it slowly, I dont want to misinterpret any of their untruths. As I said I am no lawyer.

After skimming it quickly, my reaction is that if that is the best they've got, we're in luck.

My favorite "knee slapper" is on the top of page 43. Straight out of the VPC talking points, they make the unfounded assertion that since firearms are becoming cheaper and more lethal, it follows that we need more government regulations to balance the equation.

Hmmm... the 30-06 is 102 years old. So you're saying the firearms laws enacted since 1906 are to compensate for the additional lethality of newer guns? So the 30-06, and all less lethal firearms, needed no new regulation? So in exactly what way are newer firearms more lethal than the 30-06?

The court has already signalled that they reject the claim that the DC gun law only bans handguns. Yet DC continues to try to make that point. Sucker move.

They argue that the DC gun law is a necessary limitation on personal freedom. That presupposes that the freedom exists.

Best of all, the core of their argument rests on a demonstrably false premise: That "well-regulated" meant "thoroughly regulated by the government". A plethora of citations from pre-1900 literature clearly demonstrate that it never meant any such thing. It clearly meant "properly functioning", "orderly", or "in its ideal state". Once you realize that 2A does not refer to a government regulated militia, but to a properly functioning militia, their main argument collapses. If there is no requirement for militia regulation by government, there is no requirement for regulation by a state government.

Not that it has or can be historically proven, the term "well-regulated" fell out of use during the "industrial revolution" and the term "well-oiled machine" replaced it to describe something that works well.

I think D.C. is in trouble.

Their obsessive focus on "arms for militia only" is apparently blind to the SCOTUS definition of militia in Miller. Since Heller is part of the militia, per Miller, and he is required to provide his own arms of contemporary military use, per Miller, then D.C. regulations are in violation of 2A since it unconstitutionally disarms the militia -- and that's even if you manage to completely accept the collective rights position, which only 4 justices are likely to embrace. Looks like an own goal.

They would have been better off disputing the Miller definition of militia or arms with contemporary sources (to the extent that is possible) or even dispute that the banned handguns have a military use in the unlikely event of a militia muster.

It's a longshot, but not a footshot.

They're going to have to do a lot more work than this. There is a large amount of tortured logic in attempting to make the point. For instance, on p. 35 is an argument that 2A does not apply to laws limited to the District of Columbia which appears to violate 14A.

It's going to be interesting to watch the oral arguments when they try to justify some of these points...

Why do I so rarely see this law referenced regarding the militia?

USC TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311

§ 311. Militia: composition and classes

(a) The militia of the United States consists 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.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Steamdragon, Brian, and the rest that mention that Heller is part of the militia....read the brief.

In footnote on page 14, the District distinctly points this out:

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

But from US v. Miller (1939): "These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense."

DAVID HARDY: The A2A brief might include a section on "private use" thinking at the time of the ratification....to counter or show false the "exclusively military" purpose of the 2A that DC is arguing.

After reading the brief in whole my head started to spin and pea soup shot out of every orfice above my shoulders. If the highest court in this bastion of freedom falls for this crap we are all sunk.

But in all seriousness. Have these Lawyers been drug tested???

Agreed; D.C. is basing their case on the definition of "statutory" militia, based on AGE. I kid you not, it's as if they want to pretend that the equal protection clause and the Miller ruling don't exist.

Are they seriously arguing that men over the age of 45 and all women not in the National Guard can be disarmed because they aren't "abled-bodied"? Great Shades of Dred Scott!

I don't know... maybe we are cheering for the wrong team here.

Utah, where I live, is a sagebrush state. There is a fair amount of resentment toward folks in Washington telling us what we can and can't do. If SCOTUS buys DC's argument, I think we could get up a new militia law here that would serve us very well.

According to Glenn Reynolds, if SCOTUS holds as DC wishes, state laws regarding arming state militias would trump federal law. We could open a web based enrollment for the state militia, have people take a little on-line training, and pass a 10 question quiz. That would qualify them as being trained and enrolled. The state could then ask us to leave a $1,000 security deposit, and issue each of us a new M16 and 1,000 rounds of ammo, with instructions to take them home, become proficient with them, and await further instructions. The federal government would have no control over the issuing of the firearm, or our qualifications to receive it.

I think I kinda like that.... :)

Anyone notice this little hummer? From page 38, and footnotes on pages 38 and 39:

This Court has squarely held that the Second Amendment was adopted as a limitation on only federal, not state, legislation. Presser, 116 U.S. at 265. Although the majority below suggested that the Second Amendment may subsequently have been incorporated against the states through the Fourteenth Amendment (PA37a-38a n.13), there is no dispute that the Second Amendment did not limit the states’ regulatory authority over firearms when enacted. [9]

[9] Although this case does not present the question of incorporation, there is no reason to think that a right to possess guns for personal use is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” and “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). Moreover, incorporation against the states would be curious since the Second Amendment was enacted to protect state prerogatives.

But incorporation against the states would be far less curious (perhaps even obvious) if indeed it is "found" or confirmed that the 2A was enacted to protect an individual right as opposed to (or even in addition to) "state prerogatives."

As a thought exercise, I would like to ask all here at Of Arms and the Law the following question: "Do you feel that the right to defend yourself and your family is a fundamental principle of justice, rooted in your tradition and conscience?"

I am not saying that the right to defend ones' self is exactly the same as ones' right to possess a firearm....but it would be very easy to argue that the latter consistently and logically flows from the former.

Even if you do not think or feel that way, would you at least admit that there just might be a reason for someone to think that way? Interestingly, the District of Columbia emphatically states that "there is no reason" to think that way...

Myself, I never liked skating on thin ice. I wonder how the District feels about it?

The right to self defense may well be a "fundamental principle of justice, rooted in our tradition and conscience", but I know it is a fundamental law of nature.

By tooth, claw, or 'every other terrible implement of the soldier' all creatures have a right to defend their lives.

One thing I noticed while reading it, and I admit it was just a quick read, is that they go after the meaning of "bear" arms, claiming that its a strictly military function. Nothing new, we have heard that before.

But then it goes on to cite provisions of state constitutions and other sources, where the word "bear" is clearly used to talk about arms bearing for both private and military purposes. Of the top of my head, they cited one provision where people have the right to "bear arms" for the protection of themselves and the state and for hunting, or something like that.

I was surprised to see this. Its one thing to argue in the alternative, but to argue in such a way as to undercut your previous argument seems to indicate that this brief was cobbled together by a few different people, and no one seemed to make sure it all hangs together.

Overall, I didn't see anything new. I didn't see any argument I felt particularly strong or compelling.

I said here before that DC's attorneys were throughly outclassed by plaintiff's attorneys. I still feel that way.

Question for someone who knows how SCOTUS rules work:

Once Heller's brief is filed, does DC get to reply?

When do we see the friend of the court briefs filed?

[i]This Court has squarely held that the Second Amendment was adopted as a limitation on only federal, not state, legislation. Presser, 116 U.S. at 265. Although the majority below suggested that the Second Amendment may subsequently have been incorporated against the states through the Fourteenth Amendment (PA37a-38a n.13), there is no dispute that the Second Amendment did not limit the states’ regulatory authority over firearms when enacted. [9][/i]

The Supreme Court is not a place that I would try to bluff, or distort. The statement may be technically true, but is irrelevant, and dishonest.

[b]None [/b]of the BOR was binding on state legislatures back then. That happened with the Civil War and the 14th Amendment.

I don't think I would want the justices thinking too much about Presser if I could help it. Presser also held

[i]It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect. [/i]

So there you have a Supreme Court ruling that all able bodied people in the US are the reserve militia. Hmmmm.....

Here's a previously-unnoted whopper from page 6:

The licensing requirement, which enables the District to prevent felons and other dangerous persons from keeping concealable weapons, is separate from the registration requirement applicable to all firearms. [emphasis added]

If only! In reality, of course, the licensing requirement only means they have yet-another-charge to file against the all-too-many felons who do somehow manage to come up with concealable weapons despite the ban.

The Founders' View of the Right to Bear Arms provides clear historical facts answering all of the disputed points in Heller. Where was "bear arms" first used in an American bill of rights? Why there? What did it mean? These are historical questions with clear answers.

The Court is going to go for documented history here when it is presented, just as the Fifth Circuit Court did in Emerson. The District's arguments are directly contradicted by the historical evidence. I cannot conceive that justices of the U.S. Supreme Court will attempt to write opinions directly contradicted by ALL of the historical evidence. All of the historical evidence is now available.

As for the argument that registration, licensing and/or prohibition makes it possible for DC to keep guns out of the hands of felons: SCOTUS has already held that felons may NOT be required to register their firearms, since doing so is a violation of their Fifth Amendment rights. Only the law-abiding can be compelled to register their firearms without violating the Fifth Amendment, so what’s the point?

As for the argument that reducing overall levels of civilian gun ownership reduces homicide rates (or fatal shooting accidents, or overall violent crime, or gun homicides, or suicides or whatever) as shown by Kellermann’s 1993 study:
1) The homicide victims in that study were predominantly criminals (53% had arrest records).
2) Most of those homicide victims were NOT slain by guns but by other means (55% were killed by stabbing, strangling, beating, etc.)
3) Of the homicide victims who WERE shot, not one of them was shot with the victim’s gun.
4) Even the study’s authors admitted that there was no cause-and-effect link between gun ownership and homicide. They called it “reverse-causation”. Which is more likely, that owning a gun elevates homicide risk, or that people who already have elevated homicide risk choose to arm themselves? And why would so many people in this study have an elevated homicide risk, independent of guns? See #1 above: because they were criminals, silly!

“The absence of evidence is not evidence of absence.” Time after time the DC brief tries to substitute “NO” for “DON’T KNOW”. For example, the Miller court never said that the sawed-off shotgun was not an effective militia weapon; what they said was that there was “no evidence”. Big difference! In another example, DC mentions that in 1791, during debate in the U.S. Senate, alternate wording was offered that would have added “for the common defense” after the words “keep and bear arms.” If the 2A had passed like that, it would be much more difficult to argue for an individual right. But the Senate turned it down! And it never even came up in the House! But DC’s brief tries to put the best face possible on this by pointing out that the House never got the chance to vote on it. Outrageous attempt at rhetorical sleight-of-hand. Reminds me of the old joke that the Russians used to tell about Pravda, the communist party newspaper, back during the Cold War: Premier Khruschev and President Kennedy were in a race. Kennedy won. The next day Pravda reported, “Our beloved Comrade Nikita finished in second place, while the best that the American President could do was next-to-last.”

I thought that Judge Sam Cummings’ decision in the Emerson case in Texas was the best-written decision on the subject, even better than Silberman’s decision in Parker. Cummings covered the grammatical structure, the legislative history, the precedents, even the “prudential” approach, and could not find any convincing argument that the 2A was not an individual right.

DC concentrates on the few states that don’t have a strongly-written Second Amendment in their state constitutions. But over forty state Attorney’s General are expected to sign on to Amicus briefs declaring that their state constitutions DO protect an individual right to keep and bear arms.

DC has done the best job possible with the limited material available supporting their argument, but only by resorting to some severe rhetorical contortions, and emphasizing weak evidence while ignoring stronger evidence.

The Louisiana constitution provides: "The right to bare arms shall not be abriged". If the US Supreme court decides in favour of DC I don't think that will effect Louisiana unless Congress passes legislation banning firearms. Does that sound right?

Paul:

Perhaps the right to bare arms is more relevant to you in Louisiana than to me in Illinois. However, the right to bear arms is as equally relevant in both locations as it is across the nation. To calm your nerves, the answer to your question is correct...so rest easier in Louisiana. However, the point I am making is that we are all far more interested in the bigger picture here...a picture bigger than any one of the many states.

TURK TURON said: "But over forty state Attorney’s General are expected to sign on to Amicus briefs declaring that their state constitutions DO protect an individual right to keep and bear arms."

Sir, PLEASE post a source for this statement!

TURK TURON said: "But over forty state Attorney’s General are expected to sign on to Amicus briefs declaring that their state constitutions DO protect an individual right to keep and bear arms."

I don't think a state attorney general has the power or the authority to nulify a state constitutional right.