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« Interesting take on DC's amici defenses | Main | Wall St. Journal takes on Solicitor General's brief »

Parker/Heller set for argument

Posted by David Hardy · 22 January 2008 11:48 AM

Argument is Tues., March 18. No time to say more, worked about 14 hours on the case yesterday, will be doing more today.

Update in light of comments: nope, no television. I forget which Justice replied, when asked about televising arguments, "over my dead body." They have lately gone to posting audio and transcripts a day or two after an argument, tho.

And yep, beating the "horrible hypotheticals" is always a problem. That's why the question of regulation comes in. I sometimes say that you could say the same about freedom of speech. "Why, if we allow 'freedom of speech.' we'll have to legalize blackmail (which is nothing but a threat to express embarassing incidents unless paid for silence), death threats, etc." Or have to allow people to use bullhorns in residential areas at 1 AM. There are ways to work out the extreme cases WITHOUT impairing the core rights. Complexity here is that courts tend to favor First Amendment liberties, and do not tend to favor Second Amendment ones.

Akhil Amar had an interesting test: if (to use his interesting if a bit eccentric, and I regard that as good) theory, the 2A was meant to protect a right of the people en masse to resist tyranny, and the 14A to protect their right to resist criminals, then a weapon that is good for neither can be banned without harming either purpose. A backpack nuke isn't appropriate to defending your house, and rather than enabling us to resist a tyrant enables one to become a tyrant (since terrorism is by tyranny writ small).

· Parker v. DC

9 Comments | Leave a comment

Chris | January 22, 2008 5:22 PM | Reply

Thanks for the hard work!

In reading the briefs in support of DC, I'm noticing a lot of circular reasoning and several contradictions between the supporters themselves (for example, ‘regulated’ means subject to regulation in some briefs but has its more correct form in others). Additionally, there is a lot of fluff within the briefs that doesn’t seem to address the actual questions before the court. Nevertheless, there are some popular and thus convincing arguments. I hope our side has the same.

Question: Will the hearings be televised?

Bobbo | January 23, 2008 7:18 AM | Reply

What if the "backpack nuke" is being used in a tactical role, like the nuclear demolitions the US deployed until the early 90s?

Does using a nuke instead of a high-altitude bomber to take out a bridge make it terrorism?

JHHB | January 23, 2008 8:04 AM | Reply

Kim du Toit has made a compelling argument on his site that the key distinction that can defeat most "horrible hypotheticals" is one made between weapons of the army and weapons of an individual soldier. The gist of it is that a cannon (to use an example from the founders' time) or a machine gun or an F-16 would not be a weapon that a soldier considered a personal arm, nor would it be a weapon that a member of the militia would ever be expected to provide for himself. Of course, individual, (relatively) inexpensive weapons like RPGs would still be borderline cases, but you can certainly knock off bombs, crew-served weapons, and bigger things like battleships with this argument.

MichaelG | January 23, 2008 8:58 AM | Reply

I disagree with Kim's argument presented by JHHB. There are several historical examples of privately owned cannons used in defense of homes and towns. The first that comes to my mind is from texas' fight for independence from Mexico. I'll look up the historical references if needed.


Also, there is an active group of people building and target shooting cannons. Not to mention their use for black powder deerhunting. (see www.buckstix.com/). Nope, Kim's argument is no better than the ones trying to compare hi-cap mags in a 9mm semi-auto to muzzleloading muskets.



For a more serious look at the modern usage of cannons, look at www.steencannons.com and search for info on the Historical Artillery Match in Grayling, Michigan.

Or are we going to have a new acronym: EBC?
Evil Bronze Cannon.

As far as I am concerned fundamental rights should not be subject to prior restraint. If my next door neighbor wants to own and restore a sherman tank, have at it. As long as he keeps it off of my grass.


MichaelG
What part of 'shall not be infringed' don't you understand?
JHHB | January 23, 2008 3:41 PM | Reply

I know the story: The cannon was at the town of Gonzales, and when the Mexican Army came to take it away, the Texas Revolution started (late 1835). Of some note for the purposes of Constitutional argument is the fact that this took place in Mexico (of which Texas was at the time a part). But there are other examples from the American frontier that would be on point.

Kim's reading* might also not protect sporting shotguns and other hunting weapons.

But it doesn't have to.

The Constitution does not protect your right to wear a red hat. That doesn't mean we have to re-read amendments in order to protect red hats. Nor does it mean that we should amend the Constitution as soon as possible to protect the wearing of red hats. It means that we should be vigilant about the laws our legislators pass.


*(and I hate to quit paraphrasing him when he's not here to agree, since I might not be doing so accurately, so perhaps I should say my reading of Kim's reading)

JHHB | January 23, 2008 3:43 PM | Reply

**"quit" = "keep"

Bobbo | January 24, 2008 4:30 AM | Reply

How are the people en masse supposed to resist tyranny solely with personal arms? The governement has F-16s and artillery. I guess the personal arms could act as a stop-gap while the people organized and aquired heavy weaponry. But I tend to think it would be better if we had a more independent milita/National Guard that was set aside solely for national defense and funded both privately and by the states, made up of enthusiasts.

As far as the F-16 though, I have no wonder whether the proper analogy isn't to a ship. I private ship could be armed, but the whole ship isn't a weapon. Only the cannon are. Why shouldn't people own high performance planes, perhaps with the idea that they can be armed against tyranny in the background?

Mike M. | January 24, 2008 10:58 AM | Reply

Bobbo, individuals CAN own tactical aircraft and artillery.

There are a fair number of ex-military aircraft in private hands. Most of them are obsolescent, simply because the price tag on a modern combat machine is so high that even the United States Government has a hard time affording them in decent quantities. But the airplane is easy - you just have to deal with the FAA.

As for artillery, you just file the Form 4 with the ATF. Perfectly legal.

The real problem comes with ordnance...because each bomb or shell is itself a Destructive Device under the NFA - which means a $200 tax. On the other hand, even the Federal Government pays thousands of dollars for them, so the tax isn't that much of an issue.

That being said, I think that people have forgotten the lesson of the Iraq campaign. The US had a massive superiority in conventional weapons...and when the fight became a counterinsurgency campaign, much of that advantage was negated. And the sine qua non of a counterinsurgency campaign are small arms.

But there is one factor that I think gets lost...the Second Amendment establishes a reservior of force. Force useful for a range of purposes. Overthrow of a tyrranical government? Possibly. Deterrence of a would-be tyrant? More possibly. But the more likely uses are to equip wartime militia forces and peacetime posse groups. If there is a serious terrorist campaign in this country, the Government has the option to tap the Second Amendment and field overwhelming security forces. And that scenario is far more likely.

Drorester Ornas Alexander II | June 9, 2009 11:14 AM | Reply

According to our constitution, the second amendment shall not be infringed. Therefore the aquisition of laws there pertaining to the second amendment are in vain. I Love You.

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