Posted on 02/12/2008 4:16:45 PM PST by snowsislander
The issue in this case is whether three D.C. Code provisions violate a Second Amendment right to keep and bear arms for private use in one’s home. Under long-standing rules limiting its jurisdiction, the Court should not entertain the Solicitor General’s invitation to assess the constitutionality of the whole array of the current federal firearms statutes. Nor, in response to Petitioners and the Solicitor General, should the Court craft a standard of review not supported by the text to permit “reasonable” gun control. Rather, the Court should apply a standard of review dictated by the words and principles embodied in the Second Amendment, as directed by America’s founders.
According to its text, context, and historic setting, the Second Amendment protects an individual right to private possession and use of handguns in one’s own home. The individual right to keep and bear arms is essential to a “well regulated militia” — a self-bodying, self-governing association of people privately trained to arms, modeled after the colonial militia that took up their privately-owned firearms to defeat a tyrannical effort to confiscate their arms. In turn, a “well regulated militia” ensures the preservation of a “free state” by allowing all members of the American polity to exercise, if necessary, the sovereign right of the “people” to reconstitute their government.
In order to ensure its purpose to preserve the people’s liberties, the Second Amendment bans discriminatory legislation against classes of persons that, by nature, are rightful members of “the people.” In order to ensure its means to defeat tyranny, the Second Amendment bans discriminatory legislation against firearms that are essential to a preserve those liberties. By discriminating against law-abiding D.C. citizens and against handguns, the D.C. Code provisions violate both of these standards and, therefore, unconstitutionally infringe upon the right of the people to keep and bear arms.
[ ... ]
C. D.C. Code Provisions Impermissibly Classify Weaponry.
Petitioners have argued that the Second Amendment standard by a firearms ban or regulation is to be measured is whether the ban or regulation is reasonably related to public safety. See, e.g., Pet. Br., p. 42. Although Petitioners purport to assure the Court that its reasonableness standard could not be applied in such a way as to “effect[] functional disarmament,” nevertheless Petitioners’ “reasonableness” standard places the right to keep and bear arms in the discretionary bosom of the D.C. Council, leaving it up to the governors how far they can go before the people are functionally disarmed. Id., pp. 43-44.
Petitioners’ standard ignores the text which states — without exception reasonable or otherwise — that the specified right shall not be “infringed.” According to its ordinary meaning,“infringe” means to “break, as contracts”:
to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince ... infringes [a] covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done. [N. Webster, American Dictionary of the English Language (1828).]
In short, the argument that “the right of the people” is subject to reasonable regulation and restriction tramples on the very words of the Second Amendment, reading the phrase — “shall not be infringed” — as if it read “shall be subject only to reasonable regulation to achieve public safety.”
The proposed reasonableness standard also disregards pertinent constitutional history. In the 1689 Bill of Rights, the English “subjects” were deemed to “have arms for their defence suitable to their conditions and as allowed by law.” (Emphasis added). According to Petitioners’ standard of reasonableness, the right to keep and bear arms has been diminished by “practical realities,” such as “guns hav[ing] become cheaper and more lethal.” Pet. Br., p. 43. While such an analysis — that the Second Amendment guarantee changes with changing times — might be suitable if the 1791 American Bill of Rights read like its 1689 English counterpart, Petitioners’ reasonableness standard has no place in a Constitution designed to secure the blessings of liberty not just to the generation which ratified the document but to their “posterity” — all succeeding generations.
Finally, Petitioners’ reasonableness standard is inconsistent with this Court’s ruling in United States v. Miller, in which the Court applied the standard whether the weapon at issue “has some reasonable relationship to the preservation or efficiency of a well regulated militia....” Id., 307 U.S. at 178. Petitioners’ Brief not only rejects this test, but belittles it. See Pet. Br., p. 46. Judged by the Miller standard, there is no question that a handgun is reasonably related to the preservation or efficiency of a well regulated militia, being a firearm well-suited to individual ownership and private use and training, a prerequisite for the kind of readiness, discipline, and skill should the people find it necessary to take up arms against a tyrant.
I haven't read this brief closely, but it appears from quickly going through it that it is very strong on the origins of the Second Amendment, and then essentially ends with the material that I quoted from the very end of the brief.
I myself find that a compelling style of argument, if that is indeed what GOA has done (and if they have managed to do it coherently), and I think for originalists on the Court may also find it a strong form of argument if GOA has indeed gone that route.
We will see. This is such an important case, and I think about it a great deal.
The impact of a great decision from our Supreme Court would be perhaps the most important one for our society since literally Marbury v. Madison; the impact of even a lesser decision might still well be the most important decision in a generation.
PING for later
A collection of all the briefs may be found here:
http://www.dcguncase.com/blog/
A decent Wiki article is here (also lists the same link I pasted above):
http://en.wikipedia.org/wiki/Parker_v._District_of_Columbia
In the home?
Doesn’t make sense to me.
I think the courts want us to sue so they make their own language. I am just sick to death of the libs, communists and socialist baiting.
We should do our own thing and let them dry up and go you know where.
bumping to the top
It's relatively short, and uses the Court's own rulings, mostly on other issues, to make it's case.
Particularly interesting is the challenge to the Solicitor Generals brief that the Court should set up a lower standard of review for the Second Amendment's right than for other's protected by the Bill of Rights, on the basis that upholding the DC Court of Appeals would endanger some, many, maybe even all, federal gun control laws. They point out that the court has set the question, and it only involves three sections of DC law, and the Court's own rules, as well the Constitution itself (limiting the Court's power to "cases and controversies") require that they not consider other ramifications of their ruling.
They also take another effective swipe at the SG's assertion that Congress has "the general authority to protect the public safety by identifying and proscribing particularly dangerous weapons". They point out, using the Court's own ruling in "United States v. Lopez, 514 U.S. 549 (1995)" to point out that Congress has no such delegated power to protect public safety, even pursuant to the power to regulate commerce.
I'd say they were encouraging the Court to make a ruling that would indeed endanger most federal firearms laws, while assuring them that such would not necessarily flow from a standard of review other than those suggested by DC and the Solicitor General. IOW, that they leave the consequences to laws other than the 3 DC provisions to later cases.
They also include a veiled warning to the Court, and by implication to government in general (speaking of the events leading up to Lexington and Concord, where the Revolution was precipitated by an attempt to confiscate arms of the people) :
As was then, so it is now, that the American people seek to discern the intentions of an increasingly powerful central government, watching their servants on this Court to see if they will honor and uphold, or dilute or negate, the written words of the nation’s founders guaranteeing the right of a sovereign American people to “keep and bear arms.”
That's what the question as formulated by the court deals with. Given a favorable ruling in this case, that is one that affirms an individual right, and perhaps applies a higher level of scrutiny than DC or the US Solicitor General (I think actually the BATFE, whose chief counsel is on the brief, with the SG being the "council of record".) suggest, other laws will have to be taken up in other cases. Hopefully not all will have to be taken to the Supreme Court. But since it's government we are fighting, and they fight with our money, I wouldn't be surprised if each and every law, federal laws anyway, has to be fought to the Supreme Court. Local laws will fall, in the highest state courts, once the Supreme Court applies the second amendment to the states, if it ever does.
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