Posted on 02/04/2008 11:35:06 AM PST by ctdonath2
If Petitioners’ derision of the individual right to arms as proposing treason or insurrection, Pet. Br. 15 n.3, questions the legitimacy of America’s Revolution, their view of the Second Amendment’s impact on the allocation of federal-state power would threaten the Union itself.Petitioners’ collective-purpose interpretation is also at odds with this Court’s only direct Second Amendment opinion in Miller. In examining whether Miller had a right to possess his sawed-off shotgun, this Court never asked whether Miller was part of any state-authorized military organization. “Had the lack of [militia] membership or engagement been a ground of the decision in Miller, the Court’s opinion would obviously have made mention of it. But it did not.” United States v. Emerson, 270 F.3d 203, 224 (5th Cir. 2001) (footnote omitted). Indeed, the government advanced the collectivist theory as its first argument in Miller, PA40a, but the Court ignored it. The Court asked only whether the gun at issue was of a type Miller would be constitutionally privileged in possessing.
The next court battle may center around the notion of “in common usage at the time”, which Heller’s brief complicates (as another poster put it, an issue of tactics vs. strategy).
With respect to Petitioners’ handgun ban, answering the threshold question resolves the case. If the possession of handguns is protected by the Second Amendment, handguns cannot be completely banned, however else the government may regulate their possession and use.13 The fact that a type of arm is protected by the Second Amendment defeats Petitioners’ attempt to position this case as a “standard of review” question, such that the government may ban any arms it deems too dangerous even if such arms are traditionally used for lawful civilian purposes. After all, Petitioners can conjure a rationale for banning any “arm.”14 Certainly the government may ban arms that are not protected by the Second Amendment and regulate those that are, but the threshold question of whether an arm falls into the former or latter category cannot be avoided.I don't see that the Constitution states that "certain guns" are not protected by the 2nd Amendment....seeing as how the government has taken itself to BAN particular firearms, and thereby through governmental interference and fiat, removing them from "common usage" should not stand. The King attempted to do the same to the colonists, and for that very reason, the Founding Fathers wanted to ensure that the people were not limited by the government from obtaining weapons.....Nor may the government justify a ban on a particular firearm simply by claiming to allow the possession of others. While it is a dubious proposition that Petitioners allow individuals any firearms for private home use, the government’s compliance with the Constitution by allowing rifles would not permit the government to violate the Constitution by banning handguns—any more than the government could prohibit books because it permits newspapers and considers them an “adequate substitute.”
III. WASHINGTON, D.C.’S FUNCTIONAL FIREARMS BAN IS UNCONSTITUTIONAL.Petitioners concede that if the Second Amendment protects an individual right, “a law that purported to eliminate that right—for instance, by banning all gun possession, or allowing only a firearm that was so ineffective that the law effected functional disarmament,” would be unconstitutional. Pet.Br. 43-44.21 The only dispute is whether D.C. Code section 7-2507.02 “effects functional disarmament.”
Determining whether section 7-2507.02 effects functional disarmament requires no fact-finding. And as Petitioners concede, a functional firearms ban would be unconstitutional “whatever [a Legislature’s] reasons” might be for enacting it. Pet. Br. 43. Making matters easier, Petitioners agree that section 7-2507.02 “would be unreasonable” if it offered no provision for home self-defense. Pet. Br. 56.
The statutory language is unequivocal: without exception, individuals may never possess a functional firearm at home....
IV. THE STANDARD OF REVIEW IN SECOND AMENDMENT CASES IS STRICT SCRUTINY.
* * * Today the Court is told that private gun ownership is too dangerous to be counted among first-tier enumerated rights. Americans who suffered British rule might disagree.
Petitioners’ sophistic “reasonableness” arguments were likewise familiar to the Framers—and rejected. Colonial Americans were conversant with the works of Cesare Beccaria, whose 1764 treatise ON CRIMES AND PUNISHMENTS founded the science of criminology. John Adams cited Beccaria to open his argument at the Boston Massacre trial. 3 LEGAL PAPERS OF JOHN ADAMS 242. In a passage Jefferson copied into his “Commonplace Book” of wise excerpts from philosophers and poets, Beccaria decried the “False Utility” of laws that
disarm those only who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code . . . will respect the less important and arbitrary ones, which can be violated with ease and impunity, andwhich, if strictly obeyed, would put an end to personal liberty. . . . Such laws make things worse for the assaulted and better for the assailants. . . . [These] laws [are] not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree. . . .Thomas Jefferson, COMMONPLACE BOOK 314 (1926).“If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.” Ullman v. United States, 350 U.S. 422, 427- 28 (1956) (citation omitted).
Petitioners plainly disagree with the Framers’ Second Amendment policy choices. Petitioners’ remedy must be found within the Constitution’s Fifth Article, not with linguistic sophistries or an anemic standard of review that would deprive the right of any real force.
Agreed. “Arms” is used without limitation. “...shall not be infringed” makes it clear: no limitation. The prefatory clause, insofar as it helps one understand the breadth of the operative clause (which Heller makes clear is not to be limited) clarifies that yes, indeed, military-specific arms are included.
As wonderful as Heller’s petition is, to survive it is setting up some boundaries that we will later have to overcome with non-trivial difficulty.
V. THE GOVERNMENT OF THE NATION’S
CAPITAL MUST OBEY THE CONSTITUTION.The Constitution, and its Bill of Rights—including the Second Amendment—are the supreme law of the land. U.S. CONST. art. VI, cl. 1. “That the Constitution is in effect . . . in the District has been so often determined in the affirmative that it is no longer an open question.” O’Donoghue v. United States, 289 U.S. 516, 541 (1933).
Petitioners’ legislative authority is not above the Constitution, but derived from it; a delegation of Congress’s authority to legislate for the District. U.S. CONST. art. I, § 8, cl. 17. That power “is plenary; but it does not . . . authorize a denial to the inhabitants of any constitutional guaranty not plainly inapplicable.” O’Donoghue, 289 U.S. at 539.“If, before the District was set off, Congress had passed an unconstitutional act, affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void.” Id. at 541 (citation omitted).
...For example, Congress may operate public schools in the District of Columbia, a power otherwise reserved to the states. But such schools cannot be segregated. Bolling v. Sharpe, 347 U.S. 497 (1954).
Indeed, because the Constitution with its Bill of Rights applies directly to the federal government, of which the city is a creature, Petitioners are bound to respect even those rights that are not incorporated as against the states through the Fourteenth Amendment. See Pernell v. Southall Realty, 416 U.S. 363 (1974)
I agree completely. I have been thinking throughout reading this entire brief (having once worked in the legal field myself, and, I must say, for a most excellent attorney...he wrote excellent legal briefs himself, well-argued, compelling, articulate, etc., etc.)... this particular brief is outstanding, well-written, logical, expertly argued, concise, free of grammar errors, and appears to cover every single type of argument that plaintiffs could possibly position themselves to counter....they will have a most difficult time justifying their reasoning against such a persuasive brief. And this court, if it chooses to weasel out of addressing the various, well-argued and valid points raised, do so at our nation's peril.
...the fact remains that the District of Columbia is not a state. Hepburn v. Ellzey, 6 U.S. (2 Cranch) 445 (1805). The question of incorporation is therefore not before the Court.Nothing in Petitioners’ precedent suggests that the District is free to ignore constitutional restrictions.
* * * Washington was not planned as a “Forbidden City” in which federal officials would be shielded from the hazards of interaction with the otherwise-free people of the United States. Quite the contrary:
It is important to bear constantly in mind that the District was made up of portions of two of the original states of the Union, and was not taken out of the Union by the cession. Prior thereto its inhabitants were entitled to all the rights, guaranties, and immunities of the Constitution. . . . [I]t is not reasonable to assume that the cession stripped them of these rights. . . .O’Donoghue, 289 U.S. at 540.Finally, there is no logic to Petitioners’ extraordinary claim that gun control “is the most important power of self-protection” for the seat of government. Pet. Br. 38. The District Clause, after all, allows Congress to “[erect] Forts, Magazines, Arsenals, dock- Yards and other needful Buildings.” U.S. CONST. art. I, § 8, cl. 17. Congress surely has the power to regulate firearms in Washington; but if Congress felt that disarming Americans at home were necessary for its security, it might have attempted to do so in the first 177 years of the city’s service as the seat of government. As recent history demonstrates, those who would attack our capital are hardly deterred by Petitioners’ ban on handguns and functional firearms in the home.
#142
If you are worried about the determination of semi-autos not having military use, it would never stand. Think SKS. Presenting the production history alone would stop that, and failing that, the ordinary utility of semi-automatic weapons has been solidly esptblished on virtually every front: hunting, recreation, and self-defense.
Still, I am far from 'counting my chickens' on this case.
Oooooh!
“But since the Founders considered a well regulate Militia (rather than an armed populace) necessary to the security of a free state, they decided to be a little more specific.”
That is an interesting take considering that this country came about by way of an armed populace that became a well regulated militia. We did not have a well regulated militia when the Revolutionary war began. The brits did, but we didn’t. The people at the time were restricted on gun ownership, which was one of the causes of the revolution.
The authors are obligated to treat the arguments in Heller without requiring the overturning of Miller if it is possible to do so without losing the force of their argument. They hold out a "carrot" to the Court, suggesting that a later court might find a way to uphold the regulation of machineguns. It's not for this court to determine whether machineguns meet the Miller test. It is sufficient that handguns do.
On page 65 I see a statement that Congress has the power to regulate guns in DC. That is true, but it understates the challenge of meeting "strict scrutiny" for which the brief argues.
I don't see these statements as in any way reducing the force of future arguments to overturn the machine gun ban. Nor do I see anything that would aid the liberals on the Court in undermining our Second Amendment rights.
In reply to post 22...
Then we pray to the Good Lord. If SCOTUS rules the wrong way, there will surely be war and our nation will suffer greatly.
I did note an interesting discrepancy though... In a 1989 document referenced in the brief, they cite 120,000 transferable machine guns in the registry after the ban. Yet, in a recent edition of SAR magazine, the BATFE states there are over 180,000 transferable machine guns in private hands. Bear in mind that both numbers come after the 1986 ban on new manufacture of machine guns for private use.
Me thinks that there be something fishy about that. I’d like to see an undisputed fixed number from the BATFE and evidence to prove that there hasn’t been any add ons for “friends” since the 86 ban. Somehow, I think BATFE would “fail the test” again.
Mike
Washington and Jefferson for starters. Both were members of the "Gun Culture", and also big time gun nuts.
But of course that isn't why it's in the Constitution. It's in there for two, perhaps three, reasons, depending upon how one looks at it.
The first reason was to obviate the need for a large standing army to protect the country from invasion, at least until a regular army could be mobilized. They described such a standing army as "the bane of liberty". The second and related reason was to be able to overwhelm that whatever size army the Federal government fielded, should the federal government become tyrannical. Thus they wanted a "well regulated militia", one properly trained and equipped for that function, which could only exist independent of Congressional actions, if the right of the people to keep and bear arms was protected.
"One loves to possess arms, though they hope never to have occasion for them.
"Thomas Jefferson -- Letter to George Washington, 1796. ME 9:341
"None but an armed nation can dispense with a standing army. To keep ours armed and disciplined is therefore at all times important, but especially so at a moment when rights the most essential to our welfare have been violated."
--Thomas Jefferson to -----, 1803. ME 10:365
"A well-disciplined militia, our best reliance in peace and for the first moments of war till regulars may relieve them, I deem [one of] the essential principles of our Government, and consequently [one of] those which ought to shape its administration."
--Thomas Jefferson: 1st Inaugural, 1801.
"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun, therefore, be the constant companion of your walks."
-- Letter to Peter Carr, 1785. ME 5:85, Papers 8:407
As to who are the militia, Jefferson tells us that as well
"[The] governor [is] constitutionally the commander of the militia of the State, that is to say, of every man in it able to bear arms."
--Thomas Jefferson to A. L. C. Destutt de Tracy, 1811.
where does this anarchy exist? where did it ever exist, except in the single instance of Massachusets? and can history produce an instance of a rebellion so honourably conducted? I say nothing of it's motives. they were founded in ignorance, not wickedness. god forbid we should ever be 20 years without such a rebellion. the people cannot be all, & always, well informed. the past which is wrong will be discontented in proportion to the importance of the facts they misconceive; if they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. we have had 13. states independant 11. years. there has been one rebellion. that comes to one rebellion in a century & a half for each state. what country before ever existed a century & half without a rebellion? & what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms. the remedy is to set them right as to facts, pardon & pacify them. what signify a few lives lost in a century or two? the tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. it is it's natural manure.
Thomas Jefferson to William Smith, Paris Nov. 13. 1787.
At a time, when our lordly masters in Great Britain will be satisfied with nothing less than the deprivation of American freedom, it seems highly necessary that something should be done to avert the stroke, and maintain the liberty, which we have derived from our ancestors. But the manner of doing it, to answer the purpose effectually, is the point in question. That no man should scruple, or hesitate a moment, to use arms in defence of so valuable a blessing, on which all the good and evil of life depends, is clearly my opinion. Yet arms, I would beg leave to add, should be the last resource, the dernier resort.
George Washington letter to George Mason, Apr. 5, 1769
When we assumed the Soldier, we did not lay aside the Citizen; and we shall most sincerely rejoice with you in the happy hour when the establishment of American Liberty, upon the most firm and solid foundations shall enable us to return to our Private Stations in the bosom of a free, peacefully and happy Country.
Reference: Maxims of George Washington, Schroeder, ed. (94)
Heck there wouldn't even need to be such a thing as "Class 3 Dealer", just your friendly gun or hardware store, like before 1934.
See tag line.
That's pretty much the argument of "Janet Reno, et. al. in their amici brief.
It's also a significant portion of the Brief for the United States (IOW, the Bush administration)
They can't have that!
No "appearance" about it. The government, that is the FDR administration, appealed directly to the Supreme Court, without bothering with the appropriate Court of Appeals. (Which I think would have been the 8th. It would be today anyway).
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