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Academics for 2nd Amend. amicus brief online
At ScotusBlog.
Very tired. But will add some commentary.
Argument I is a strong attack on DC's argument over what the 2A was meant to do. I think it pretty well levels that.
Argument VI deals with their dismissal of the PA minority and the NH ratifying proposals. They shrug these off, saying that Madison took the VA language, not the text of those proposals, hence they are irrelevant. BUT we show that there is no evidence that anyone at the time thought that Madison's language was meant to differ with those earlier measures, and much evidence that Americans saw his language as guaranteeing the same rights sought by PA & NH.
At 9 n.7 we hit at DC's claim that, well, maybe the First Senate declined to add into the BoR a statement that States could arm the militia, because it was redundant -- that's what the Second Amendment meant, and they already had written that up. We point out a VA Senator who wrote angrily about losing the vote -- he certainly didn't think the matter had been taken care of!
At 11-12 we point that the Framers HAD the equivalent of unorganized militias, but required them to be armed. They were excused from drill and muster, but not from owning arms.
At 13, we give a judo flip to the argument that the preamble must control the operative clause.
At 16 we point out that the Framers were familiar with *friendly* governments seizing arms when needed in an emergency.
At 20, n. 18, we point out that treating the militia as State controlled is not entirely accurate.
At 22-23, we discuss Federalist No. 26, I think with better analysis than is generally employed. It has to be read carefully.
At 30 we cite an interesting event in the First Congress, which I blogged here long ago.
And some preemptive attacks (remember DC gets to file the last, reply, brief and may try to shift ground)
At 11, n. 9 preempts any try in reply to shift on the theory of purpose.
At 18, n. 14 hits at a theory DC amici cited, in a yet unpublished law rev. article, claiming PA's 1776 guarantee was meant to allow a mandatory militia (PA didn't have one).
At 31 we preempt a move DC might make, arguing that "right of the people" is somehow less individualist than a right of "persons."
UPDATE: if anyone wishes to contribute toward the brief, just click here. There's a Paypal link on upper right of page. If you're not a PayPal member, just click at bottom of the Paypal page and you can enter ordinary credit card data.
27 Comments | Leave a comment
May God Bless you, David.
And every one else that helped in this LOoong road.
Are you accepting donations at the address on the brief?
Great Job. It appears that from other briefs that came into today and before that these briefs complement each other.
Thank you very much for this fight for freedom.
I read your brief right after I read the brief of the President of the Pennsylvania Senate's history of the right in Pennsylvania and had a big smile that they have records of the private ownership of cannon and being used because the pacifist Quakers nearly doomed Pennsylvania because they controlled the goverment.
I presume that you are being paid at least something for the work on this. At least I hope so. I didn't become a lawyer to work for free and you deserve every dime you make, if any, for this.
Your brief is concise, logical, and focused (unlike some of the others, where it's easy to get lost in the details). Thank you. I feel my donation was well spent.
Read the whole thing. Excellent. I definitely owe you a drink or two at the annual meeting.
A2A's brief is first rate.
And in further pro-Heller amicus news:
Thirty-one States.
(see Gura & Possessky's site for link - spam blocker objected to the URL here)
The 31 States support felon-in-possession bans and MG restrictions; they suggest that MGs may not be "Arms" under 2A. But they also say that the worries expressed in the Solicitor General's brief are overblown, and suggest that full-blown bans like D.C.'s should receive strict scrutiny. They say that the D.C. Circuit's judgment should be affirmed in full.
Last lines: "[T]his case is a threshold case: at issue is whether the Second Amendment has any modern meaning whasoever. Remaining faithful to the Constitution, there should be only one answer."
D.C. could only muster five state amici (three of which have no state constitutional right to arms) and Puerto Rico.
Also, check out footnote 6 on p.23 of the 31 States' brief -- expressly supporting incorporation of 2A against the States. That's huge.
Anyone who suggests MG's are not arms under the 2nd is not our friend. Like it or not folks. It's the man-portable weapon of choice for the Army. That makes it suitable for us "civilians." Same for the military, same for the police, same for the rest of us. Nothing less is good enough.
Excellent work! All the arguments got straight to the point and hit hard. Then kept on coming.
By the way, does on need a PayPal account to donate? Or do they accept straight credit card payments as well?
Yeah, I find the tortured logic employed to prevent the judges from soiling themselves with the thought of available MGs disingenuous at best, and unworthy at worst. Arent they the liars?
To argue that MGs aren't covered under Miller because they aren't common to civilians is the sort of half-lie I'd expect from the Brady Campaign. How can anyone honestly argue that the law that prevented them from being common is constitutional because it succeeded in making them uncommon?
I think it would have been more honest to simply state they are not at issue in this litigation and leave them for the future.
David, good work on your brief! I'll send along a second donation.
Machine guns are not before the court. They are, in fact, an over used booger man. The Willie Horton, if you will, of 2nd Amendment jurisprudence.
Willie Horton was effective no matter what you say.
To those of you who are wondering: yes, send contributions to the address for Academics for the Second Amendment. Remember: once we win this case, we then have to fight the next set of questions:
1. Why are national parks allowed to ban loaded handguns? (When visiting Yellowstone, I see no reason why grizzly bears should be allowed to consider me lunch.)
2. Incorporation against the states through the Fourteenth Amendment.
3. The 1986 ban on new machine gun manufacturing--is that a violation of the Second Amendment?
4. Does incorporation through the Fourteenth Amendment require states to recognize other state carry permits?
5. If there is an individual right incorporated through the Fourteenth Amendment, does this require states to allow open carry, or licensed concealed carry, or does it blow away license requirements completely?
Donations to:
Academics for the Second Amendment
Post Office Box 131254
St. Paul, MN 55113
By the way, does on need a PayPal account to donate? Or do they accept straight credit card payments as well?,/quote>
No. PayPal will process contributions by ordinary credit card.
Dear Clayton:
Your outline of appropriate "next questions" was good.
Perhaps this is not the forum for such a discussion, but I'd like to point out a couple things about your question #1 above:
The National Park Service was enacted to "conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."
Note that it was not created to ensure your safe visit to said National Park. Frankly, the National Parks represent the "gems" of the natural areas that are under federal protection. In as much as humans should be able to defend themselves against other humans (no matter where we find ourselves), I have to take you to task on the notion that you should be allowed to shoot a non-human mammal in self defense, while within a National Park. I say this simply because if there are absolutely NO places where large mammals are not protected from human activity, then it's likely that certain of these large mammal species will be doomed to extinction at the hands of man.
That humans can enter a park and lawfully kill threatening wildlife is inconsistent with the spirit and protection established by the National Park Service Organic Act. Certainly the Act is charged with providing for your enjoyment of wildlife, but it is also charged with providing for that enjoyment "in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."
Does anyone understand where I am coming from on this? You and I and everyone else can choose not to enter a national park. It is possible that there should be certain places in our nation where the killing of wildlife is forbidden under any circumstances.
Carl:
I had not realized that "self defense" meant only human vs human. Can I invite you along for my next "adventure" hike in Yellowstone? You can bring all the bells, whistles and bear spray you can carry. I'll bring your camera back for your family.
Thanks Dave for a great brief.
I think Carl is arguing that you intrude on their habitat at your own risk. Shooting them for defending themselves is not unlike me invading your home and shooting you for defending your home against me.
Federal Farmer:
Your analogy almost perfectly sums up the point I was trying to make. Thanks.
I realize the point will be (is) a contentious one, but I don't believe it's wholly without merit.
And I know it falls dangerously close to "animal rights" and that's almost certainly an unpopular concept here. So be it. I just feel quite strongly that somehow, thinking humans have a responsibility to wisely, and conservatively, steward natural resources for future generations.
Is there any other BOR-protected right that get
suspended in National Parks? For example, if
I rent a cabin/tent or a hotel room in Yosemite,
can troops be quartered in it? Could it be made
illegal to use a pen while in King's Canyon?
Thanks Prof. Olson. I've never used PayPal before since they're so picky about what you can do with it. Going to go send a few bucks your way now..
As for incorporation, how about attacking one of the several States' so-called "assault weapon" bans via the equal protection clause of the 14th plus the Americans with Disabilities Act? This might be a stretch, but I think it could be argued that a ban on adjustable stocks discriminates against women, short people, and maybe even people in wheelchairs because fixed stocks are often too long for them. Likewise, the ban on ergonomic pistol grips might infringe on the 2A rights of those with RSI/carpal tunnel syndrome. Or am I the only one who finds the angle of traditional rifle stocks uncomfortable after years in front of a keyboard?
The right of self preservation/protection is a natural right, 24/7/365/lifetime. It was not given to us by the Constitution, but protected by it.
The predation of people in our National Parks by native predators is rare. Instances of self defense resulting in the death of an endagered species is unlikely, at best, to ever affect the population status of such a species.
The bottom line is that when bear, wolf, cougar, or other species cross over to include humans in their diet (a learned process), those particular individuals that cross over need to be eradicated, endangered or not. 'Ever heard of predation permits?
While you may be well meaning, can you imagine a grizzley learning to dine on humans in Yellowstone undeterred, then walking out of Yellowstone into the "Cannot Eat Humans Zone".
OOPs.
The claim of self defense certainly needs to be backed up by evidence. I'm not suggesting that just because a bear or other predator is in your vacinity, that there is an established need to shoot. I'm guessing that it is one rung down from self defense against anther person.
I think human predators are the primary concern in national parks. Some people have this vision of the the National Parks as pristine wilderness; in actuality, they include highways (such as the GW Parkway in DC), towns, hotels, and millions of other human visitors seeking recreation. Some of the the NPS administered areas near me are "National Recreation Areas," with the specific purpose of providing recreating for humans.
Most parks do not have dangerous animal predators; it is the predator humans, who can take comfort that their victims are disarmed, that make me nervous.
The common law made no allowance for animals, or even humans, to threaten the life of another person. If humans are allowed to go there, they should be allowed to defend themselves and for most people firearms are the only way to do that. If you want the animals to be unmolested, prohibit humans from going there. Surely humans can defend themselves if attacked, it is just a question of how effectively they will be able to do that. If I were attacked by a bear in Yellowstone, I could still kill it with a log (as was done recently in Georgia).
There is a move afoot, supported by a majority of the Senators, to repeal the regulations, either by petition to the Dept. of the Interior or by statute.
I would kill the last living (fill-in the blank) to save any human's life and feel no remorse afterwards. Any human is worth an entire species of animals.
I thank you and your coauthors very, very much for this defense of our liberty.