Heller: The Good Guys Shoot Back, With Effect

Leibowitz's Canticle ^ | February 6, 2008 | Leibowitz

[Bob Leibowitz]

D. C. vs. Heller has been called the most significant constitutional case of the year. It's easily that. It is also the most important Second Amendment case ever. If decided incorrectly, it may well over time affect our understandings of our rights under each of the others of the first ten amendments.

***

With citations, the brief runs for 82 pages. With a single exception, it is powerful and convincing. Unlike the D.C. brief, there is little evidence of authorship by committee.

Its bedrock principle is The Second Amendment Protects An Individual Right to Keep Ordinary Firearms, Unrelated to Government Military Service, which it supports with three principles:

* Preambles Cannot Negate Operative Text

* The Second Amendment's Plain Text Secures an Individual Right

* The Framers Secured an Individual Right to Keep and Bear Arms in Reaction to the British Colonial Experience

***

The conclusion:

Lots of shooting, lots of smoke, but I believe it is the good guys who are left standing.

[Abundy]

But I really want a 4.2 inch mortar for those weekends outside of hunting season when I'm bored...

[Ancesthntr]

Meanwhile, very experience lawyers are saying that the Heller brief will be taught in schools for years to come, as an example of a terrific brief.

I found it to be a historical tour with all the very best arguments in favor of the Second Amendment we know.

I'm a lawyer, and though not experienced in either litigation or Constitutional Law, I can state that it was one of the finest briefs I'm ever read. It hit all the salient points with extreme clarity, and it also picked apart every weak spot in the opposition's brief, as well as the DOJ's brief. He's really not giving the Court much wiggle room - not if they want to have a shred of respect in the public's eyes for being intellectually honest and non-partisan. I think that you have a chance - albeit a small one - of Roberts doing here what Earl Warren did in Brown v. Board of Education, which is to say, browbeating the losing side into making the ruling unanimous.

There's one nit that I've got to pick, and I'd love to hear what others have to say about it: I think that Gura threw machine guns under the bus. I know that he misread and misapplied the Miller test. He said that the ruling of that case was that in order for a firearm to be protected by the 2nd Amendment, if had to be BOTH in common use among civilians AND have military utility. That is simply incorrect. Here's the operative quote from Miller:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." [Emphasis added]

The test isn't what Gura stated. It is:

1) Is the weapon any part of the ordinary military equipment? OR

2) Could its use contribute to the common defense?

Comments, anyone?

[Ancesthntr]

I take it that had Miller been present and showed evidence that a short barreled shotgun was indeed a useful militia weapon, they would have affirmed his right to possess it.

Correct. At least based on what was said in that opinion, given the facts. Maybe if this had happened then the opinion would have found a different way to make him lose - I'm not sure.

IMHO, if Miller had been charged with possession of a BAR, I'm not even sure that he would have had to have shown up with any evidence - that's one of those "judicial notice" things (like "it is within judicial notice that George W. Bush is the President of the United States at the present time"). Would that he had lived and actually had his lawyer show up for oral arguments!

Of course, IF is a very big word. The translation of one of my favorite Yiddish sayings is: "If your grandmother had balls, she'd be your grandfather."

[Ancesthntr]

I read it that the Court was not at liberty to assume facts not in evidence.

Courts have a certain leeway to do that, if they'd like. They will often take "judicial notice" of certain facts, but they tend to be of such general knowledge that even a 5th grader knows them (like who's the President, its colder in winter than in summer, etc.). Generally, though, when the facts in question bear directly on the case, courts will say "show me the money."

[ctdonath2]

If you’re sufficiently bored, and have $125K to spare, there’s a 90mm for sale.

[ctdonath2]

Since Mr. Miller didn’t show up, methinks SCOTUS went with the “not within judicial notice, remand for further evidence” just to make the case go away with minimal damage.

[El Gato]

Would love to see whether McManiac signs on.

There's a decent chance of that. He's not really ever been all that weak on the second amendment. He came out sounding fairly strong today. He voted against the Ugly Gun Ban, at least before it was rolled up into the Omibus Crime Bill. He also voted against the Brady Bill.

[Sender]

Unless they totally avoid the key questions, I can't see how we can lose. If they answer the questions, we win. It may not strike down all gun laws, but there is simply nowhere left to crawl or hide as to the individual right question.

The consequences of saying that we are not "the people" would be far greater than saying that we are not the militia.

[neverdem]

http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf

Gura et al.'s Heller brief, it's quite a read and chock full of history, besides knocking down all of the grabber's arguments. If you know of a HTML version, would you send me the URL?

[El Gato]

Would that he had lived and actually had his lawyer show up for oral arguments!

He was probably was alive at the time of oral arguments. He certainly was alive when the time to have his lawyer, who he likely could not pay, submit a brief and/or conduct oral arguments.

The Southwest American reported on April 6, 1939, that Miller's body had been found in the "nearly dry" bed of Little Spencer creek, nine miles southwest of Chelesa, Oklahoma. He had been shot four times with a .38. Miller's ".45 calibre pistol," from which he had fired three shots in his defense, was found near his body.

Maybe if he'd had his short barreled shotgun he'd have prevailed in the altercation.

The government's brief was submitted sometime in March of 1939. Oral arguments were March 30, 1939, and the decision was released May 15, 1939.

At first Miller and defendant Layton had pleaded guilty, but the judge convinced them to withdraw the plea and appointed a lawyer for them. He then quashed the indicted in response to a motion by that lawyer, on the grounds that the NFA was a violation of the second amendment. As is the current Heller case, the Court decided on much narrower grounds than the NFA act as a whole, but looked to the specific "arm" in consideration.

The government had, as DC and most of its Amici have in the current case, argued that the Second Amendment did not protect an individual right.

All the details, including all the legal documentation of Miller can be found at the link. I've used modern terminology, but the page at the link explains the older terminology used in the late 1930s.

BTI, Layton was still alive, and had been represented by the same attorney. He could have had a brief filed and oral arguments made as well. But again, these were moonshiners, and probably didn't have much money between them. (Which explains the single sawed off Stevens double barrel 12 guage between them, rather than a BAR or a Thompson). Layton again pleaded guilty and was given 5 years probation by the same judge that had quashed the indictment. He served it successfully and was discharged from it on January 29, 1944, which means he served closer to 4 1/2 years. Miller had also been indicted at the same time for moonshining and transporting a couple of ounces of marijuana across state lines. Unlike Heller, Miller and Layton were not upstanding citizens.

[looscnnn]

Academics for the Second Amendment are close to filing a brief also http://academicssecondamendment.blogspot.com/

[El Gato]

The test isn't what Gura stated. It is:

1) Is the weapon any part of the ordinary military equipment? OR

2) Could its use contribute to the common defense?

I agree, Miller said "OR".

I think Gura has also misread "common use". The Miller decision did NOT say in common use by "civilians" OR by "militias" or by "the military". It just said common use. M16s are in common use by both the National Guard (a reserve component of the US Military, loaned to the governors of the states when not needed by the feds) and the US Military. But so are various semiautomatic handguns, as well as semiautomatic rifles, pump and semiautomatic shotguns, and even grenade launchers, both single shot and fully automatic (Mk-19). Not to mention .50 caliber semiautomatic rifles. So are light, medium and heavy machine guns (5.56, 7.62 and .50 BMG)

I think in context, the Miller court meant in common military use. Since that is the use to which the militiamen were expected to put the arms they were required to show up. with. The Miller court also used that phrase "in common use" from its discussion of what constituted a militia.

Of course my opinion is that the Miller court blew it completely. The second amendment does not protect a "right of the militia", so exactly who they might be and what sorts of arms they were *required by law" to provide themselves with, is pretty much irrelevant. The second amendment protects a right of the people. The Miller decision steps completely around why the right of the people would need protection when the militia members could be compelled by law to provide (and thus keep) whatever arms Congress should declare they should have.

Of the reason is not to be found in Congress power to organize and provide discipline (in this context that means standardized drills, ammunition, even arms, not punishment or other modern connotations of the word), the militia. It is to be found in the fears of the Anti-federalists that congress would fail to arm or provide for arming the militia, and would instead attempt to disarm them. The second amendment was not needed to "assure the continuation and render possible the effectiveness of such forces", except in so far as Congress might attempt to make those forces ineffective and discontinue them. If congress (and the states) should fail to keep up the militia, as they have, then it was to be up to the people to maintain it and keep it effective. But in order that they be able to do that, "the right of the people to keep and bear arms" must not be infringed, by Congress, or by state or local legislatures either.

[El Gato]

Just as Teddy Roosevelt no doubt used it to set up and provision his mounted regiment for the Spanish American War and his infamous infantry & cavalry charge up Kettle Hill

And as you know, they were better equipped than most of the regular forces. (I don't think there were any cavalry by the time they got to Cuba, but rather fought as infantry. A few officers may have been mounted). They had two Colt "Potato Digger" machine guns (designed by John M Browning of course) in 7x57 (7mm Mauser) , while the regular units around them had old hand cranked Gatlings on unwieldy, especially in Cuba's rough terrain, carriages. Their standard weapon was the Model 1896 Craig carbine, in 30-40 Craig. the same as the Regular US Cavalry troopers. Although one trooper was armed with Roosevelt's own Winchester carbine. Many other units were still equipped with the older single shot Remington 45-70 carbine or rifle.

The Spanish were armed with model 1893 Mauser, which was in all respects superior to the Craig.

The Rough Riders and their Colt machine guns in San Antonio

1896 Craig Carbine

Remember too that this was in 1898, a time closer to the infamous 1934 National Firearms Act than we are today.

[El Gato]

Just as Teddy Roosevelt no doubt used it to set up and provision his mounted regiment for the Spanish American War and his infamous infantry & cavalry charge up Kettle Hill

And as you know, they were better equipped than most of the regular forces. (I don't think there were any cavalry by the time they got to Cuba, but rather fought as infantry. A few officers may have been mounted, Roosevelt and Leonard Wood were). They had two Colt "Potato Digger" machine guns (designed by John M Browning of course) in 7x57 (7mm Mauser) , while the regular units around them had old hand cranked Gatlings on unwieldy, especially in Cuba's rough terrain, carriages. Their standard weapon was the Model 1896 Craig carbine, in 30-40 Craig. the same as the Regular US Cavalry troopers. Although one trooper was armed with Roosevelt's own Winchester carbine. Many other units were still equipped with the older single shot Remington 45-70 carbine or rifle.

The Spanish were armed with model 1893 Mauser, which was in all respects superior to the Craig.

The Rough Riders and their Colt machine guns in San Antonio

1896 Craig Carbine

Remember too that this was in 1898, a time closer to the infamous 1934 National Firearms Act than we are today.

[El Gato]

Sorry about the double post. The first one seemed hung up, and I made slight addition before trying again with the second one.

[supercat]

5-4, Heller wins.

My prediction is that the justices work things out so it's 4-4 Heller wins. That way they don't set any precedent.

[NewJerseyJoe]

> UPDATE: 100 Members of Congress will file an amicus brief supporting Heller.

My first thought was "That's great!" -- until I realized that it means that 335 Congressmen will NOT be filing an amicus brief in support of Heller. Very disappointing.

[ExSoldier]

But I really want a 4.2 inch mortar for those weekends outside of hunting season when I'm bored...

You may want a four deuce but I NEED one to "prep" the hunting A.O.!

[Bob Leibowitz]

NEWS: Kay Bailey Hutchison, R-TX, reports that she will file an amicus brief on Monday.

It will be signed by 55 Senators and 250 Representatives.

That is a majority of both houses!

That is significant.

[and away we go]

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