Historic Supreme Court Brief Filed in Second Amendment Challenge to D.C. Gun Ban

dcguncase.com ^ | February 4th, 2008 | Alan Gura

[El Gato]

And the Supremes actually partially validated the 2nd Amendment by saying that a short-barrelled shotgun was not protected by the 2nd Amendment, _only_ because it wasn’t militarily useful, and not used by military/police at the time. Thus, they indirectly ruled that militarily useful firearms were protected.

Actually they did not rule that such a shotgun was not protected. Rather they ruled that neither they, nor the original district court, could "take judicial notice" that it was militarily useful. They established "The Test" but didn't actually apply it to short barreled shotguns. They sent the case back to the district court for further proceeding, where the rule would be applied. Unfortunately those proceedings never took place. Miller was dead, and Layton copped a plea in return for probation.

[El Gato]

I agree. They will try the case on the basis of some legal obscurity; e.g. D.C.'s standing before the court because they aren't a state, or some other crap, but they WILL NOT directly confirm the individual right to keep and bear arms.

Not with the way the Court itself wrote the Question.

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 firearms for private use in their homes.

Thus they at least imply that the second protects "rights of individuals", and they must determine what those rights are, or are not, in order to answer the question of whether the laws indicated violate those rights.

[El Gato]

So all a court/legislature needs to do is say that a particular type of firearm is either "not in common use" among civilians for ordinary purposes or they can claim that the weapon would not have "military utility in time of need."

Legislatures *claim* lots of things, but courts are not obliged to believe or support those claims.

[El Gato]

Also, they didn’t note that “common use” should include stuff that _would_ be common if only it weren’t illegal for a long time

Actually they do, at least sort of.

In sum, an “arm” is protected under the Miller test if it is of the type that (1) civilians would use, such that they could be expected to possess it for ordinary lawful purposes (in the absence of, or even despite, legal prohibition), and (2) would be useful in militia service. The latter requirement may be in tension with the pre-existing right to keep and bear arms, which is not always related to militia service.17 In that respect, Miller may be in tension with itself. There is no justification to limit the Second Amendment’s protection to arms that have military utility.

I would add that there is similarly no justification to limit the protection to arms that have "legitimate civilian uses". I think that in the absence of legal prohibitions M-16s would be in fairly common use.

But I agree that they went too far in "regulation is OK for arms with no legitimate civilian purpose. The second amendment isn't about "legitimate civilian purposes.

[El Gato]

Should certain avenues of discussion not been blocked, this brief would have been badly sidetracked.

But the court likely will not even mention the dog that didn't bark, that is the arms other than those of concern in this case. As long as their ruling establishes an individual right, not restricted to militia service or members of State controlled militias, we win.

Then the next case will have to apply that individual right to other arms. Possibly "Ugly Black Guns" should such a ban be reintroduced. They are certainly in common use, and even for legitimate civilian purposes.

You'll notice that get really hypothetical when speaking of the what the Miller court might have decided had Miller had a BAR or a Thompson.

[El Gato]

Idiotic supposition with a lamebrain conclusion.

This from someone who defines "common use" as 100% use, and from that decides that since handguns are only issued to a large minority of troops, they aren't in common military use. Of course that would also exclude ever other issue weapon, since about 30% of troops in an infantry formation would not have long guns.

Also the same person who claims that since most folks don't actually put out fires with fire extinguishers, they aren't in common use either, even if everyone had one. Of course he was talking about the military use of handguns.

(Everyone issued a handgun does use it, in sense of firing it, if only to acquire some degree of proficiency with it. IOW to become well-regulated in the use of a pistol.)

[El Gato]

If civilians possessed a weapon for ordinary purposes (hunting and defense) it would have been a rifle

Now that depends on what they were hunting and what sort of defense. A musket could be loaded with birdshot, and used as a fowling piece, or it could be loaded with buckshot or "buck and ball", and make a good defensive weapon, although not as handy as it's short barreled cousin the blunderbuss. As you point out, rifles were expensive and slow. Slow might be a bigger problem in the "Big Woods" than "inaccurate", not so much so in more open country, but expensive would be a limitation everywhere. Many colonists, especilly on the frontier were people of extremely modest means.

[El Gato]

You say it explains just one (of many) reasons to protect the right. Would you allow the U.S. Supreme Court such latitude? "Yes, we know it says interstate commerce, but that's only one of many types of commerce that Congress can regulate."

The brief argues that the preamble does not restrict the operative clause. "interstate" does restrict/modify "commerce"

Although Congress is also given the power to regulate foreign commerce and commerce with the Indian nations. Congress has only those powers specifically delegated to it. They were only delegated the power to regulate those three types of commerce. Certainly not "intrastate commerce" nor "anything which affects" the commerce they have the power to regulate, since that would be pretty everything.

The two situation are not even comparable.

[El Gato]

Just not on what it explains. I contend it explains when the right is protected.

When? Nothing in the amendment indicates that the protection only applies at some times. Or did you mean "who"? Well the operative clause says "who". The preamble explains "why", that is: why the right of the people is protected by the Amendment.

[El Gato]

I agree with your assessment, but NFA rules won’t be changed without a lot of kicking and screaming from the left...

It will be fun to watch. I'll bring the popcorn.

Actually it will probably be done in a single court case. Probably the '86 ban will go first however, then the "infringements" of the NFA, but both at once is a possibility.

If the ban goes first, expect Congress to try to increase those infringements, particularly the amount of the tax, back to something prohibitive..thus engendering the next court case, for which there is plenty of precedent to the effect that a exercise of a right cannot be specifically taxed. It can be taxed as part of general broader tax. For example if there was a federal sales tax that applied to broad range of items not just arms or a narrow class of arms, that would be OK.

[El Gato]

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.

But that was a contention, ignored by the Court, in the Government's brief.

Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law

Thus it can at least be inferred that the Court has already rejected the "the people means the militia" and the "militia" means state controlled military organization.

[El Gato]

We did not have a well regulated militia when the Revolutionary war began.

At least in Massachusetts, we did. The Minute Men were definitely well regulated and the regular militia companies, who were not quite as well trained, were also pretty well regulated. Ask General Gage and Lt. Col Smith of His Majesty's Army. If not for Gage sending up Lord Percy with a couple of cannon, while the colonial cannon had been dismounted and hidden so the Regulars could not confiscate them, and their carriages burned by the Regulars, Lt.Col. Smith's force would have been all but wiped out. And that was with very little input from "higher command" on the colonial militia side. Even the "Old Men of Menotomy" were pretty well-regulated, in spite of being totally unorganzied, and over age. Even old "Mother Mother Batherick" proved to be pretty well-regulated.

Make no mistake, the first battle of the Revolution was fought between a "well-regulated" militia force and the British Regular Army, not between an armed mob and a much better trained and equipped Regular Army force.

[wastedyears]

Understood

[robertpaulsen]

You're right. "When" is not the word I was looking for. "In association with" is better.

The right is not protected for all persons. It's not even protected for all citizens. It's a right protected for a certain group of individuals for a certain purpose.

Hence, the preamble -- which doesn't limit the right, merely explains it.

[WorkerbeeCitizen]

Very good research nicmarlo, and exactly on point.
(the only way to prevent all our other woes is for the “people” to be armed).

[robertpaulsen]

So they had a choice to either amend the newly ratified constitution or simply add an amendment accomplishing the same thing. They chose the amendment and added it with others to form the Bill of Rights.

Seems to me it was a matter of convenience rather than some clue "as to the real meaning".

[robertpaulsen]

"This from someone who defines "common use" as 100% use"

Never did. But if that's the only way you know how to debate, go for it. My argument centers around the Miller court's "has some reasonable relationship to the preservation or efficiency of a well regulated militia".

How do you describe "common use"? Worn on the hip and cleaned once a month? (Oh btw, it's common military use.)

[robertpaulsen]

"if it is of the type that (1) civilians would use"

Now you're just making things up as you go.

[robertpaulsen]

Well, if muskets were as versatile as you say, used for hunting and defense, people would have already had them and there would have been no need in the Militia Act of 1792 to give Militia members 6 months to acquire one.

You pick the strangest points on which to take a stand.

[Dead Corpse]

While in Boot Camp at MCRD San Diego, we were taught that ANYTHING can be a weapon. Bare hands, a pencil, a rock, a sharpened stick, soda can, a sock,... any thing. We even had manuals on improvised weapons. All services touch on this subject from what I've heard from folks who went through training in other Branches.

As a "militiamen" who may some day have to fight not only invaders, but possibly ones own government, ANY weapon that could be used to do so is fair game. A nail file, a zip gun, an M-134D mini-gun, a Howitzer 105mm.

To say that "government" may define what is and is not a "militia" weapon could have us fighting our own government with little more than squirt guns and harsh language.

Most definitely NOT what the Founders intended.