Posted on 01/19/2008 7:16:48 AM PST by Enterprise
As the date for Supreme Court argument in District of Columbia v. Heller approaches, the filing of briefs has begun. The District filed its brief last week. In addition, various “amicus curiae” (friend of the court) briefs were filed with the court.
(Excerpt) Read more at nraila.org ...
As the date for Supreme Court argument in District of Columbia v. Heller approaches, the filing of briefs has begun. The District filed its brief last week. In addition, various “amicus curiae” (friend of the court) briefs were filed with the court.
U.S. Department of Justice Brief
Gun owners are understandably dismayed about the brief filed by the Department of Justice (DOJ).
Although the DOJ brief was filed on the same day as “friend of the court” briefs supporting the District of Columbia (DC), it does not support DC’s position but rather its own unique point of view—a view with which the NRA still disagrees.
The District is asking the Supreme Court to reverse the decision by the U.S. Court of Appeals and find that the Second Amendment does not protect a broad individual right. DOJ is supporting a different view—that the Second Amendment does protect an individual right, and that the case should go back to the lower court to apply a different standard of review. DOJ suggests applying a lower level of constitutional scrutiny than the Court of Appeals adopted. The NRA disagrees and believes the lower court’s ruling should be upheld.
NRA believes that the right to arms is a fundamental right; as with other fundamental rights, laws restricting that right deserve the highest level of scrutiny. The NRA and those seeking to overturn the gun ban believe that the scope of the Second Amendment is clear. Contrary to DOJ’s suggestion, this case is not about felons or machine guns. This case is about law-abiding people who want handguns and long guns for self-defense. The total ban on self-defense gun ownership in D.C. is so severe that it should be found unconstitutional under any level of scrutiny, and we will make that point in our “friend of the court” brief when it is filed next month.
Finally, while NRA strongly disagrees with many of the arguments in DOJ’s brief, there are a few areas of agreement. Notably, DOJ agrees that the Second Amendment protects an individual right, and that it applies to the District, even strongly hinting that under the lower “heightened scrutiny” it supports that D.C laws could be unconstitutional. This was not the position of the previous administration. In fact, Clinton administration Attorney General Janet Reno and Solicitor General Seth Waxman, along with other DOJ officials from the Clinton administration have filed their own brief in support of the District, arguing that there is no individual right at all to possess guns outside of government service.
DOJ also recognizes that the Second Amendment protects a right to self-defense, and that the right to arms was a pre-existing right protected, but not created, by the Constitution.
If you would like to express your opinion of this brief directly to DOJ, please call the Department’s Press Office at: (202) 514-2007."
This looks like an NRA press release about the DOJ briefs. I don’t see that the NRA has “stepped in” with the filing of their own brief.
The one wants your guns, the other does too, but is willing to blow some smoke up your, well you know, to distract you while they grab them.
I guess after the Court rules, we'll know if it's time yet, won't we Claire.
"The total ban on self-defense gun ownership in D.C. is so severe that it should be found unconstitutional under any level of scrutiny, and we will make that point in our “friend of the court” brief when it is filed next month."
I can only hope that the Supremes will look at the case and simply rule that the Constitution protects the right of people to keep and bear arms. And hopefully, the majority opinion will be that if the Constitution is to be changed, and the right to keep and bear arms shall be infringed, the Congress will have to convince the people to change it.
For a second there I became worried that the Supreme Court might actually be able to so rule; that is, the DC ban is unConstitutional under any level of scrutiny, thus dodging the need to decide what level of scrutiny is required.
But I don't think they can. I don't think it would be appropriate for the DC Court of Appeals to strike down the law without specifying what level of scrutiny they are applying. Given that the lower court apparently applied "strict scrutiny", I think the Supreme Court will have to address the matter.
The Supreme Court could affirm without comment. I don't know what precedential value would then attach outside the DC district. Does anybody else know what the possibilities are here?
One of the weaknesses of the US brief is that is only uses the word "infringed" twice. Once in the quote of the Second Amendment and a second time referencing an early court decision that a ban on concealed carry is not an infringement.
Such treament of the phrase "shall not be infringed" is entirely inadequate to addressing the case before the Court. There will have to be significant discussion of how "shall not be infringed" differs practically from "Congress shall make no law".
The US stance has to be that Congress is permitted to make laws, but the laws can't infringe. Some early states of the Union used the phrase "shall not be questioned" rather than "shall not be infringed". I think it would be reasonable to believe that the two phrases are intended to protect the same right and thus are equivalent. Congress should not be questioning our right to keep and bear arms in any way.
Other states have used "shall not be infringed" but then added specific language permitting the regulation of concealed carry or how arms are borne. Obviously, if such regulation were not an "infringement" then such language would have been unnecessary.
This is scary. Words can mean anything the courts want them to mean. In essence this says that the people have the right to keep and bear arms, however they don't have the right to bear arms - but don't worry - this is not infringing on the right to bear arms because this is how we rule on it. To me then, if the courts want to be consistent with that logic, it would have to rule that concealed carry is not an infringement as long as the person carrying the firearm did so openly so everyone could see that he is armed. And then, the court would have to rule that no law could be Constitutional which forbid open carry.
The anti-gunners prefer that if people are going to carry guns, that they do so concealed, so that people don't have to look at those icky guns.
It should be pretty obvious that outlawing one or the other can't be permissible. If either one is not an infringement, then the other MUST BE. The only reasonable alternative to that is that BOTH are protected.
To suggest other than that, is to be open to the possibility that the government can outlaw everything except carrying a short club made of soft wood locked in a steel safe with the combination known only to the government. How could that possibly be an infringement?
The fact is, that "the right of the people shall not be infringed" includes protection from laws which infringe upon the manner of bearing arms.
I hope the pro side argues that point. If concealed carry is banned, but it is somehow not an infringement, then open carry must be constitutional and cannot be regulated. If open carry is banned but it is somehow not an infringement, then concealed carry must be constitutional, and cannot be regulated. They can't both be infringed.
"The fact is, that "the right of the people shall not be infringed" includes protection from laws which infringe upon the manner of bearing arms."
And that is the black hole we are in. If the right of the people to keep and bear arms shall not be infringed, how in the hell are gun laws constitutional if they infringe the right of the people to keep and bear arms? The laws are an infringement, but the anti-gunners want us to "suspend disbelief" at the absurdity of it!
I don't see how the Court can possibly rule that the level of scrutiny is less than "strict." Why? Because if it does, than the same exact reasoning can be utilized to destroy other basic rights. "Right of the people" is the same wording used in the 1st and 4th Amendments, and the EXACT same level of scrutiny MUST apply for there to be any consistency.
To rule that the standard is intermediate would be to rule that any time the government said, "because we say so" then guns could be outlawed. Such a ruling would cause immense additional contempt for the government and the rule of law, and any bans will likely be met with as much success as Prohibition and the War on (some) Drugs.
That wouldn't necessarily have to apply, provided that any particular rules were expressed as requirements, and were of such a nature that compliance would be practical and not burdensome. Of course, since who whole purpose of most rules is to be burdensome, that would imply that those rules are not legitimate.
>>I guess I could have said the NRA gives notice of intent to file a brief instead of “steps in.”
“The total ban on self-defense gun ownership in D.C. is so severe that it should be found unconstitutional under any level of scrutiny, and we will make that point in our “friend of the court” brief when it is filed next month.”<<
And your headline would have been more accurate.
I’ve got to say it sucks to have the administration on the other side on this one.
Picky, picky, picky.
The point I was trying to make is that the word "infringed" has to have meaning such that some sphere of behavior is exempt from such requirements, despite how "practical" they may be.
To suggest, for example, that requiring a person to carry sidearms in a hip holster that covers the trigger, has a retention strap, and is of a color which is visible for at least 100 yards may be a practical matter, as far as the government is concerned.
But, having established that such practical requirements are not infringements, at some point what remains has to be recognized as a RIGHT. The courts need to recognize that there is nothing magical about such "practical" requirements that prevents anti-gunners from dreaming up another one. Perhaps the day-glo orange color is not practical enough, so flashing LEDs must be added.
The courts would be required to rule that "practical" matters have nothing whatever to do with defining the scope of a right. If there is a right to bear arms without flashing lights attached, then there is a right to bear arms without a day-glo colored holster.
Once one recognizes that the practicality of the visibility of the holster is not relevant to the scope of the right, it's really a small step to recognizing that visibility of the arms is not relevant either.
Another way of looking at this, is that, if the government cannot require flashing lights on our arms, then they can't require visibility at all. Concealed carry is simply the extreme case of diminished visibility and has no character which suddenly puts it outside the scope of the right.
The test should go beyond strict scrutiny, but need not be absolute in all regards. For example, would a requirement that people not carry arms with their finger on the trigger be an infringement? If a situation arose where one would have imminent need to fire the weapon, such imminent necessity would override the statute. But absent such a situation, keeping one's finger off the trigger would be proper. (nb: I'm not sure a trigger-finger ordinance would be a good idea, and it could create problems of false accusations, but I just offer it as an example).
There may be some other regulations which might be seen as infringements, but could nonetheless have significant justification, such as a regulation forbidding the possession of firearms constructed of ferromagnetic materials within a certain distances of various types of superconducting magnets. Certainly great care must be exercised to ensure that the regulatory power isn't abused to e.g. ban firearms within 1500' of a magnet when no actual harm would occur until the firearm was within 15', but a superconducting magnet isn't going to care about the RKBA of anyone carrying a ferromagnetic object near it.
Sounds like a possible regulation for the positioning of super-magnets. "No person shall position a super-magnet such that safety considerations infringe the right of the people to keep and bear arms."
A similar situation arose, perhaps in another thread, regarding access to national parks and military forts.
If the government deserves the power to restrict access, then they can use that power to restrict access with guns. But national parks are presumed to be open to the people and so should be open to the people exercising their rights. I NEVER visit national parks because I don't support the power of the government to infringe my rights. To suggest that national parks are a benefit to the people is false, if that so-called benefit is at the expense of my rights.
As for your suggestion that one may not have a finger on the trigger, I would be much more concerned about somebody pointing the muzzle in my direction than having a finger on the trigger while the firearm is holstered. We already have laws concerning assault which depend upon reasonable belief. We don't need additional laws which define new classes of crime based on the particulars of keeping and bearing arms.
As a practical matter, it is necessary for people to work in the vicinity of such magnets. While the federal government should not be in charge of micro-managing such safety regulations beyond, perhaps, offering up model regulations for states to enforce or ignore at their leisure, requiring that all ferromagnetic objects be kept away from such magnets seems only prudent. If someone wants to work with such magnets without having to be disarmed, I believe an aluminum or titanium (or possibly even stainess steel) firearm might be safe.
The notion that someone might do something dangerous or stupid is not a good reason for such regulations (e.g. those that would forbid anyone from possessing a cigarette lighter within 100' of a closed jar of gunpowder), but there are certain situations in which the laws of nature make it impossible to possess certain firearms safely.
As for your suggestion that one may not have a finger on the trigger, I would be much more concerned about somebody pointing the muzzle in my direction than having a finger on the trigger while the firearm is holstered. We already have laws concerning assault which depend upon reasonable belief. We don't need additional laws which define new classes of crime based on the particulars of keeping and bearing arms.
There are also laws about disturbing the peace and other such offenses. If someone waves a firearm around seemingly recklessly, the Second Amendment should not protect such a person from being charged. If different places have different norms as to how one should carry to avoid giving offense (some areas may prefer shotguns and rifles to be carried muzzle-up, while others would prefer muzzle-down), some regulations to such effect would not be unreasonable. The goal of such regulations, however, should not be to provide lots of petty crimes with which to charge people, but rather to let people know how best to avoid giving offense.
I'm not opposed to safety regulations in general.
But after 75 years of severe infringements, I am willing to endure another 75 years of giving gunowners the benefit of the doubt. I want anti-gunners to think they have died and gone to gunowner's heaven.
"Excuse me, sir. This is a super-magnet area. I'm going to have to ask you to leave your magnetic guns behind. Please make your selection from any of these suitable firearms from our 'Safe Firearms' cabinet. And help yourself to some ammo. The National Firearms Act of 2008 requires that you be supplied such any time we request that you be disallowed your own arms. Please accept the apologies of your fellow citizens for having to ask this of you."
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