DC files Parker/Heller brief

Arms and the Law ^ | 4 January 2008 | District of Columbia and Mayor A, Fenty

[RKV]

QUESTION PRESENTED Whether the following provisions—D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02—violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other fire-arms for private use in their homes?

[RKV]

This is a copy of the brief filed today by DC against Heller (aka Parker vs. DC). DC argues (in summary) that only government sponsored militia's have Second Amendment rights. BS.

[RKV]

FYI

[Domandred]

http://www.freerepublic.com/focus/f-news/1948333/posts

[Waco]

Then, why are we charged a fee to hunt?

[RKV]

Keep and bear says not a damn thing about using. That’s why.

[joebuck]

Just scanning the table of contents I note that the first issue they address is the constitutional collective/private right of possession. The procedural issue is second. This makes me believe at least they think the Court will get past the procedure and get down to the meat and potatos. This is good. They should have still addressed the procedural issue first on the off chance the majority is looking for the easy out - might as well give them one up front with flashing neon lights. If not, your primary argument is still there. Along with a dozen other amicus briefs on that issue. I doubt too many of the amicus briefs will address the procedural issue.

[RKV]

I am hoping for the best on this one. And prepping for the worst. BLOAT.

If we conduct a simple experiment the fundamentals become clear. Let’s suppose that the amendment read - “A well educated electorate, being necessary to the security of a free State, the right of the people to keep and bear books, shall not be infringed.” No way any court would say that there could be limits on the kind of books owned, or that you’d have to wait 10 days to pick up a book you bought or that only government employees could own certain kinds of books.

The 2nd is about power and trust. The politicians don’t trust us having the power these days. And that ain’t right.

[joebuck]

You’ve got to admit though, It feels a whole lot better this getting taken up now than 8 years ago. Kennedy will be the swing. No doubt about it. The four conservatives are good strict constructionists and will maintain their intellectual integrity even if they don’t really like guns. The four libs - who knows, one could go the correct way but no way you can count on it. Kennedy is the key.

[lawdog]

The Second doesn't’t say state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

In fact the Second doesn't’t GRANT a RIGHT it only recognizes a previous existing right therefore the Supreme Court can’t deny the damn thing to begin with... but I bet they don’t share that in Public Skrools..

Also the militia& consist ONLY of the National Guard etc. but we don’t need to bother with that little inconvenient historical fact or the U.S. Code do we?

[lawdog]

oops... the MILITIA doesn’t consist only of the National Guard...

[RKV]

Yeah, but the NRA wanted to punt this one and got crosswise with the folks who brought the suit in the first place.

[RKV]

Militia Act of 1792 and 10 USC 311 to be specific.

[joebuck]

The strongest argument in our favor is that the Constitution originally contained the power for the Federal government to declare war, draw armies and fund said armies. To accept the second amendment applying only to a collective militia means the founders thought an amendment was necessary to clarify and preserve the government’s right to equip its own army. That’s just absurd. It could only apply to an individual right.

[lawdog]

The Second doesn’t have anything to do with “hunting game for food” that’s a PC add on... a Fig Leaf used by politicians who turn “Gun Rights” friendly only while pandering for “conservative” votes; all the while begging “moderates” and “liberals” to beg their momnetary lapse of reason...

[lawdog]

The Second doesn’t have anything to do with “hunting game for food” that’s a PC add on... a Fig Leaf used by politicians who turn “Gun Rights” friendly only while pandering for “conservative” votes; all the while begging “moderates” and “liberals” to beg their momentary lapse of reason...

[lawdog]

You got it brother.....

[lawdog]

Yes the Bill of Rights is very clear.. “people” is an “individual” not a state...

[gondramB]

In case people don’t want to go through all 80 pages

>>SUMMARY OF ARGUMENT
1. The text and history of the Second Amendment
conclusively refute the notion that it entitles individu-
als to have guns for their own private purposes. In-
stead, it protects the possession and use of guns only
in service of an organized militia.

The first clause—“[a] well regulated Militia, being
necessary to the security of a free State”—speaks only
of militias, with not a hint about private uses of fire-
arms. A well-regulated militia is the antithesis of an
unconnected group of individuals, each choosing uni-
laterally whether to own a firearm, what kind to own,
and for what purposes.

The second clause—“the right of the people to keep
and bear Arms, shall not be infringed”—equally ad-
dresses the possession and use of weapons in connec-
tion with militia service. In 1791, “Arms” and “bear
Arms” were military terms describing the use of weap-
ons in the common defense, and the word “keep” was
used in connection with militiamen’s possession of the
arms necessary for militia service.

Taken together, the two clauses permit only a mili-
tia-related reading. To conclude that the Framers in-
tended to protect private uses of weapons, the major-
ity below read the entire first clause to be extraneous
and the second to be in tension with the natural, mili-
tary meaning of “bear Arms.” If that had been the
Framers’ intent, they would have omitted the first
clause and used non-military language in the second.
History confirms the District’s reading.

The pri-mary concerns that animated those who supported the
Second Amendment were that a federal standing
army would prove tyrannical and that the power given
to the federal government in the Constitution’s Militia
Clauses could enable it not only to federalize, but also
to disarm state militias. There is no suggestion that
the need to protect private uses of weapons against
federal intrusion ever animated the adoption of the
Second Amendment. The drafting history and re-
corded debate in Congress confirm that the Framers
understood its military meaning and ignored propos-
als to confer an express right to weapon possession
unrelated to militia service.

2. The court of appeals erred for the independent
reason that the Second Amendment does not apply to
District-specific legislation. Such legislation cannot
implicate the Amendment’s purpose of protecting
states and localities from the federal government.
That conclusion follows from the history underly-
ing the Constitution’s Seat of Government Clause. In
1783, disgruntled soldiers surrounded the State House
in Philadelphia, causing the Continental Congress to
flee because the local authorities would not protect it.
The Framers created a federal enclave to ensure fed-
eral protection of federal interests. They could not
have intended the Second Amendment to prevent
Congress from establishing such gun-control measures
as it deemed necessary to protect itself, the President,
and this Court when similar state legislative author-
ity was not constrained.

3. Finally, the judgment must be reversed for the
separate reason that the laws at issue here are rea-
sonable and therefore permissible. This Court has
long recognized that constitutional rights are subject
to limitations. Indeed, the majority below purported
to recognize that gun-control laws are constitutional if
they are “reasonable regulations.”

The majority nevertheless found that the Council’s
findings regarding handguns’ unique dangers in an
urban environment were irrelevant because, in its
view, a ban on handguns is per se unreasonable under
the Second Amendment. Equally irrelevant was the
fact that the District allows residents to keep rifles
and shotguns for private purposes. The majority in-
stead concluded that the Second Amendment pre-
cludes the District from limiting a resident’s choice of
firearms so long as the firearm chosen is in common
use, has a military application, and is a lineal descen-
dant of a type of arm used in 1791. That test is un-
workable. It also has no basis in the Second Amend-
ment and would implausibly give the right to keep
and bear arms a uniquely privileged position in the
Bill of Rights.

The District’s gun-control measures should be up-
held under a proper reasonableness analysis. In en-
acting the laws at issue here, the Council responded to
the serious dangers created by ownership of guns,
considered various alternatives, and sensibly con-
cluded that the handgun ban, plus trigger-lock and
licensing requirements, would reduce crime, suicide,
domestic violence, and accidental shootings. Prevent-
ing those harms is not just a legitimate goal; it is a
governmental duty of the highest order. Moreover,
those regulations do not disarm the District’s citizens,
who may still possess operational rifles and shotguns.
The laws at issue, adopted after extensive debate and
consideration, represent the District’s reasoned judg-
ment about how best to meet its duty to protect the
public. Because that predictive judgment about how
best to reduce gun violence was reasonable and is en-
titled to substantial deference, it should be upheld. <<

[ExSoldier]

Kennedy will be the swing. No doubt about it.

Maybe, but he's gone antigun more than once. The funny thing is that while Souter was originally sold as a conservative during his tenure he has proven to be anything but that. However he hails from the Live Free or Die state and there are some that think that fact might prove dispositive in a decision. If so, that's a potential ace up the sleeve.

I have seen some rather shrill writings in the various law school law review publications, especially in some extremely left wing institutions. Yale Law Review published an article titled: The Alarming Second Amendment that allows as how (GASP!) just maybe the NRA has been right all these years.

The conundrum has to be NOT whether or not the USSC will produce a ruling that favors the gun communities version of the Second Amendment but rather if they reach such a conclusion will they do what's right versus what is political? Even if they rule that DC is wrong to suppress this individual right, if they fail to incorporate thru the 14th down to the states then we're still in the same boat but a little bit better off. In this case a narrow holding will certainly result in a flurry of national lawsuits challenging every gun law there is until another ruling must be issued.

But do they have the courage to simply overturn over 20,000 gun laws in an instant? If they rule in any positive way but DO incorporate to the states and local level via the 14th clauses, then the Brady bunch might as well disband.

If they rule against us what is the result? Nothing. Because there has been no incorporation in the past, this still becomes a state by state issue and any resulting attempt at a federal mandate to somehow ban civilian ownership of firearms will almost certainly be met with ferocious 10th Amendment challenges (States Rights).

I really don't foresee anything that will make the Brady Bunch drool in anticipation, either. I don't expect to see my right to keep and bear (own and carry) firearms severely curtailed in my lifetime. But a negative ruling might be an issue for my great grandchildren down the line. Frankly I think a negative ruling with have more dire results in an oblique manner when it comes to issues concerning our sovereignty comes to issues like the looming North American Union and bigger issues like a resurgent UN down the line. Resurgent maybe in a form far different from than we see it now. At that point, I think all issues and personalities become moot as God literally steps into the picture.

[Quix]

Thanks.

There are reasons that the puppet masters go to such lengths to stack the Supreme Court with their stooges.