Heller's brief is online

EXCELLENT BRIEF! Thank you for all your work in helping put it together. Are you going to be there for the oral arguments?

We've got the law, the history and logic on our side. Of course the Supes are going to do whatever they feel like so BLOAT.

Seriously, the brief made the case and made it well. I only wish I had confidence that our unelected black robed masters gave a shit.

Thanks for all you do David. I hope this works out. In fact I pray so. And I'm not the kind of guy to beg favors from the Almighty on a regular basis.

Press release-

http://dcguncase.com/blog/2008/02/04/historic-supreme-court-brief-filed-in-second-amendment-challenge-to-dc-gun-ban/

I like the request for a strict scrutiny standard of review beginning on page 54.

We can only hope...

some questions:

What does page 60's argument dealing with the Miller case, and let me quote the footnotes

The lineal descendants of personal arms of the type in predictable civilian usage are thus protected, but modern weapons of the type that serve no ordinary civilian function are not.

Or page 61

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.

spell out for the future if they accept these arguments? Would that mean single shot anythings are OK, and if we were ever to be forced into action that would have to be enough to go up against machine gun wielding invaders? Are the police not civilians? They possess and use machine guns, as do private contractors such as blackwater. Whatever happened to equal protection?

On page 67 they say that the issue is not machine guns, however, a ban on NEW machine guns (since 86) does limit the number that can be in civilian hands. Perhaps there would be hope for it?

Page 68

And even if this Court had accepted that some machineguns are protected by the Second Amendment, their current tight regulation under federal law could well pass any level of scrutiny devised by this Court for the regulation of protected arms.

Uh...coulda done without that.

Arguing that background checks (as well as registration when the 4473s go off to the BATFE as they continue their jihad against "willful" paperwork violations) and mental health screenings will pass strict scrutiny...that's a privilege, not a right. You don't HAVE to prove yourself to exercise a right. Throwing in the "drug use" something the government has no constitutional authority to do anything with short of some unknown amendment, why?

incorporation is not before the court. I just don't get all this incorporation garbage. WHY wouldn't an amendment that was ratified by how many states apply to them from the outset?

So...what's the take from the real eggheads on this? Start selling plasma to lay in LOTS of supplies before the election or just buy what we can without risking life and limb?

The authors are attempting to state the possibility that the Second Amendment might not protect an individual right to own, for just one example, artillery. Or chemical, nuke, or biological weapons. The Second Amendment is instead intended to retain for the People the right to own individually carried and operated "small arms" (and the modern descendants thereof) of the type that a member of the militia could be expected to have in his possession and take with him when called up to defend "the Security of a Free State."

If, circa the enactment of the Bill of Rights, that meant muskets, pistols, bayonets, swords, ammunition; what might that cover today? Rifles, shotguns, and handguns. The discussion of semi versus full auto, the authors say, is not before the Court and is a matter left for another day. If at all.

Ironically, Pat Buchanon may have summed it up best when he quipped, at a gun show, that his view of the Second Amendment was something like: "If you need a trailer hitch to haul it around, the government should regulate it."

The standard which defines which weapons are protected is already in the Constitution. Article 1 Section 8 "the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." Pretty clearly covers machine guns, anti-aircraft missiles (at least those that are hand held [borne]), big politically incorrect looking knives [bowie knives are carried by our special forces], tear gas and all kinds of other weapons which aren't useful for hunting, but which would be used by our military and or police to perform those missions. Will the Supes buy it? No. They'll punt or deliberately bif it. I wish it weren't so. They're afraid of the people. And given their track record, they should be.

First off, no clue what happened with the formatting there, I had typed it up to email to my own blog at first and just C&P here when I saw this post.

Yes, I can understand THAT, but small arms of every type especially those commonly and CURRENTLY used by those who a militia would be expected to fight against.... Also, it might have been here, or another site, had some commentary on the privately owned cannons at concord I believe...and of course you had privateers, so I think it's a bit foolish to go down the "whats OK if they government says it OK" road that got us here in the first place.

Another day, another 70 years from now? I guess we'll have to wait and see what comes of it.

Privateers were licensed by the government or the Crown. Those not licensed were hunted down and hung as pirates.

You can say the Second Amendment retains to the people an unencumbered and unencumberable individual right to own Stinger missles if you want. However, the SCOTUS ain't gonna buy it, 99+% of all Americans ain't gonna buy it, and frankly, neither do I.

Neither I, nor apparently the authors, are saying that "what the Government says is OK, is OK." The fact is that while there certainly were some privately owned cannon in those days, most were provided by the States and/or purchased by the Continental Congress. The militia were expected to show up with small arms and some ammunition, and it is in that context that the Second Amendment is most easily understood, and in that context that it will be most likely to upheld as an individual right.

Remember, the issue before the Court is handguns and assembled working long guns. Not machine guns, not short barrel rifles/shotguns, not AOWs, not Stinger missles, and not artillery or ships of the line. We have plenty on our plate as it is, lets not complicate matters.

Is DC permitted a reply?

Jim,

According to the Rules of the Supreme Court (PDF), yes they are.

Tom,

Reading it, I believe the basic intent here is to make sure that the SCotUS ignores those issues for the time being and is giving them an out. It is much better to fight the easy stuff now and build a general philosophy of case law in support of the RKBA before tackling the more controversial aspects of the Second.

I take exception with the proposition the one of the standards for determining if an arm is if it is in common use! The problem with the standard "in common civilian use" is that the federal and state governments' prohibitions over the years have skewed unreasonably and probably unconstitutionally what's in common use. So - that's a standard that's already preloaded (which I'm sure the authors know) in favor of the old gun bans. If it weren't for the laws banning new machine guns after 198? they (ex: M16) would almost certainly be in "common civilian use" today.
However, you (those of the opinion) are probably right that it is better to address the most basic aspects of the 2A first. However, that doesn't mean I can't still be irritated!

Opps!
"I take exception with the proposition the one of the standards for determining if an arm is if it is in common use! "
should read:
"I take exception with the proposition that one of the standards for determining if an arm is acceptable is if it is in common use!"

I believe Tomare is exactly right. Let 'em focus on the core issue without allowing the city (or more likely the Solicitor General) to wander off into the hypothetical horror land of "machine guns on the street" or some such. This is especially important if none of the Supremes is a "gun guy" who might provide some perspective in the judicial conference(s) that will precede and follow oral arguments.

The respondent's brief isn't saying machine guns aren't protected by the Second Amendment, just that handguns clearly ARE protected, and that's all we have to focus on in THIS case.

The Second Amendment was surely written to protect the right to possess ALL military weapons. I've heard that privately owned cannons were not uncommon. Wagon loads of gunpowder were probably also legal. Private battle ships with cannons were common. None of those technologies in the hands of private citizens were too big a problem at the time. But technology has truly rendered the Second Amendment obsolete. Backpack nukes, biological weapons, stingers, and truck loads of high explosives make it necessary and proper that the Second Amendment be limited somewhat. But it shouldn't be limited more than what's actually necessary. Weapons which are excessively dangerous in the hands of deranged individuals may be limited. The question is how much damage per crazy person can the nation tolerate. A crazy person can kill dozens of people with a single shot, so the threshold has to be set at least that high or all guns will have to be banned.

Guys: one battle at a time. Take a look at how the civil rights battle was won. There were a series of cases. First, Missouri was told that sending black law students out of state wasn't okay. Then, Texas was told that setting up a completely separate law school just for black students wasn't okay. (You would hope taxpayers would have objected, too, but Texas in those days was a Democratic Party operation.) Then Brown v. Board of Education ruled that the lower grades could not discriminate based on race.

We lost our gun rights one slice at a time. We'll get them back the same way.

I started to comment here, but started to run off at the keyboard, so I turned it into a post here.

Abstract:
We need to reclaim the RKBA by working inside out. Start by establishing the core right of ordinary citizens to possess ordinary firearms. Then work up to expand that right.

The limit is where the right of the individual meets the power to destroy. Individuals can be trusted with a limited power, such as a rifle. Greater powers, culminating in nukes, can cause so much damage that the power to wield them must be diffuse, so that no one person can wield it.

Finally, some weapons are dangerous simply to own; they must be stored and maintained properly for safety's sake, and therefore can be reasonably regulated and inspected.

Shorter me:

What Clayton Cramer said.

Here are some of my thoughts (at least on a few particulars in the brief)...and yes I agree that all the banter and strong talk about machine guns is way premature.

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. [i]Any preamble-based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context[/i]."

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. [i]Petitioners’ casual use of social science sharply underscores the importance of securing Second Amendment rights with a meaningful standard of review[/i]."

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. [i]Petitioners’ remedy must be found within the Constitution’s Fifth Article[/i], 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.

How foolish for the gun banners to have us believe that the Second is about arming the militia when the militia was clearly intended to be armed in 1789 and did not require a correction in 1791.

Does this also apply to "Letters of Marque"?

An amendment whould have to be passed to let Americans possess ships to be able to get a Letter of Marque?