DC's reply brief in Heller

Isn't this brief late? I thought yesterday was the drop-dead date.

And FWIW, a quick skim did not indicate anything new, just a repetition of the same old propaganda.

Interesting that Tribe's cite was in there. Apparently, he decided that his political beliefs trump his Constitutional beliefs. If the cite was there, he obviously forked it over to DC well in advance.

Is there anybody with honor left in academia?

A longer reading (albeit not the fine-tooth legal comb) does not impress. They spend about 2/3rds trying to argue that the 2nd Amendment only refers to the right of states to form militias, the rest arguing that DCs broad gun ban is really Constutitional.

One interesting factor is that the Solicitor-General's brief is almost always lumped in with Heller's briefs in this document.

They seem to concede that the militia and the people are indistinguishable.

Heavens! Are we suggesting that Larry Tribe conspired with the New York Times and Washington D.C. to influence a Supreme Court decision against individual rights?! Say it ain't so...

So, how exactly was he going to 'help' Heller with the liberal justices? I think his position would have been the same. "Yes, it's an individual right, but you can ban handguns just the same. It's OK. Really. Trust me."

I think Gura et al dodged a clever attempt at an infiltration. Tribe coulda' thrown a monkey wrench in the works big enough to stop the wheels of justice cold. Not to mention the intel leaks prior to filing.

Stay tuned for Tribe's next article: "Why the Vice President is not really a member of the Senate."

The Reply Brief contains a lie about the history of George Mason, the Virginia Committee of Safety, and the remolding of the militia. On Page 11 of the Reply Brief, they assert that individual arms were not used for insurrection and cite a letter from George Mason to Martin Cockburn which can be seen at http://www.virginia1774.org/GeorgeMasonMartinCockburnAug.html

The Independent Companies (Volunteers) noted in the letter were started by George Mason (George William Fairfax was the County Lieutenant) and were unlawful under Crown Law. The chain of Command went from God to the King to the Royal Governor to the County Lieutenant in Virginia. The Fairfax Independent Company not only was started by Volunteers or individuals with their own weapons, this company forced the tithables of Fairfax County to pay for its upkeep which also took money out of the Crowns coffers. Those members still had to perform their regular militia duties.

Royal Governor Lord Dunmore sought the Arrest of Patrick Henry and his deluded followers who were styling themselves as an independent company in May of 1775 and Lord Dunmore finally demanded that all the Independent Companies be disbanded in June of 1775. http://memory.loc.gov/cgi-bin/query/r?ammem/rbpe:@field(DOCID+@lit(rbpe17801700))

George Mason obliged the Governor and turned the Independent Companies into Minute Men under the control of the County Committees and the Committee of Safety.

Remember February only had 29 days, so probably not late filed.

I still opine that their arguments are predicated falsely...that there is a great deal of evidence to effectively rebut most of their arguments.

But will say that the arguments are communicated more eloquently, and effectively, in this reply brief relative to the merits brief.

I wonder if that is testament to the addition of Dellinger?

There was a noticable increase in quality between their Pet. for Cert. and their Merits as well. Their Pet. for Cert. appeared to have been written by a grade schooler.

In the SCT, most briefs aren't printed until the afternoon/day before. Especially in a case like this, they would be working to the wire to get it done, but I think most people in appellate practice would agree that you do not "put to bed" a brief for a case like this until the last minute.

Another falsehood in the brief: They say that no state had a constitutional provision protecting the individual’s right to keep and bear arms for self-defense, and try to explain away Pennsylvania's provision by mentioning the conscience clause. But Vermont's constitution of 1777 also protected the right to arms for self-defense:

“That the people have a right to bear arms for the defense of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.”

Vermont has no conscience clause.

Vermont's 1777 document was not a constitution - it was a non-binding declaration (Vermont wasn't a state yet).

If I understand the history correctly, Vermont declared itself to be an independent Republic in 1777 and ratified that 1777 constitution. Vermont had troops that fought in the revolutionary war, coined its own money, and referred to itself as the State of Vermont. It became a state of the Union in early 1791.

The second amendment was drafted in 1789 and then adopted on December 15, 1791 (when Virginia ratified it).

So at the time that the second amendment was proposed, the only US state that had a specific reference to the use of arms in self-defense in its constitution was Pennsylvania. But Vermont did, and it was a self-described state if not yet part of the union. By the time the second amendment was ratified, Vermont was a state.

In fact, Vermont ratified the 2nd Amendment on November 3, 1791, right before Virginia.

It is not clear from the reply brief which time frame they are talking about. But given that Vermont was one of the states to ratify the second amendment, saying that no state constitution protected the right to arms for use in self-defense seems incorrect.

Sam, good question about the time frame. But as I look at it, Vermont *did* have a conscientious objector provision, but not in the same provision as the "defence of themselves and the state" part. Is that how Pennsylvania had it?