Amicus Briefs for Petitioner in D.C. v. Heller:

On Friday, 20 amicus briefs were filed in support of the District of Columbia government, in the case challenging the District's ban on handguns and on functional firearms. The briefs are here.

Most notably, the Solicitor General asked that the decision of the Circuit Court of Appeals for the District of Columbia be reversed and remanded. Details are in Jonathan Adler's post, below.

If not for the massive volunteer work of persons concerned about the Second Amendment, George W. Bush would not have won the very close elections of 2000 and 2004. To state the obvious, the citizen activists would never have spent all those hours volunteering for a candidate whose position on the constitutionality of a handgun ban was "Maybe."

The SG brief was one that might have been expected from the administration of President John Kerry. As a Senator, Kerry voted for a resolution affirming the individual Second Amendment right, and also voted for more repressive gun control at every opportunity.

The 2004 Bush victory over Kerry made a great difference in the US posture at the 2006 UN gun control conference, and in the signature of the Protection of Lawful Commerces in Arms Act. The election does not appear to have made a difference in the management of the Bureau of Alcohol, Tobacco, Firearms & Explosives, or of the Office of the Solicitor General.

In the Comments below, there will be some people who want to engage in a troll-driven debate over the gun issue in general, and others who will want to criticize or praise the Bush administration for the SG brief. However, I encourage readers instead to read one of more of the amicus briefs in toto, and to offer thoughtful comments on the brief. Further, if you find factual errors, misleading statements, or erroneous citations in one of the amicus briefs, please point them out, and, if possible, provide any additional citation supporting your claim; please confine such error correction to narrow points, rather than broad argument over the thesis of a brief.

Update: Interviewed by Glenn and Helen Reynolds this weekend, Rudy Giuliani declared that he supported the individual rights Second Amendment, "as interpretted by the Parker decision." The comment would seem to put him at odds with the position of the Bush administration, whose brief claims that Parker was wrong as a matter of law, and should be reversed and remanded.

Related Posts (on one page):

  1. Amicus Briefs for Petitioner in D.C. v. Heller:
  2. DoJ Supports D.C. and Individual Rights Interpretation:
Gene Hoffman (mail) (www):
I've read them all and have a couple of thoughts:

The ADL brief's final footnote is rather amusing and sad as compared to the actual events of the Warsaw Ghetto Uprising.

The ABA's brief makes the obvious mistake of assuming that the stare decisis of Miller is about the person, not the firearm.

The Brady Campaign's brief specifically ducks the quote in Miller that "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." This brief seems to be the only one that notices the word "keep" but of course makes the "keep and bear" as an idiom argument.

It's amusing that the NAACP has to actually admit that stare decisis isn't always a good thing in the civil rights arena. Also - and I expect this is in the cards - The Deacons for Defense should serve as a fine counterpoint to how the right to arms has expanded the civil rights of African Americans.

I think it was Chicago's brief that stated that the 3rd Amendment had not been incorporated. It actually has been in the Second Circuit in modern times in Engblom v. Carey. Also Reinhardt's footnote in Silviera (quoted below) and the general reprehensibility of Cruickshank is an interesting counterpoint to the extent responses regarding the 14th should be briefed.

American Academy of Pediatrics - In the year in question there were only 4 times as many firearms homicides as deaths by accidental drowning.

VPC - I didn't know that "hosing down" was a technical term. Is this a case about firearms or firefighters?

The Cities make the Third Amendment argument which is incorrect as outlined above. They also attempt to state that somehow the District 10 miles square is not a part of the Federal government?

The linguists steadfastly avoid Webster's dictionary of the era and how it defines both keep, bear, and "well regulated."

A couple of general observations on everything but the Solomonic SG. The word "keep" is surprisingly absent from most of the arguments. At least the SG made the point that it is "the" right of the people, not "a" right of the people...

I'll be reading them again, but those were the things I noticed off the top that are interesting fodder (some of which I know are already included) for the pro civil rights side of this case.


The Silveira footnote:
In Hickman, we did not rely on our earlier decision in Fresno Rifle &Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992), that the Second Amendment is not incorporated by the Fourteenth and does not constrain actions by the states, although we noted in dictum that had standing existed, Fresno Rifle would be applicable. We undoubtedly followed that approach in Hickman because, as noted above, we must decide standing issues first. Fresno Rifle itself relied on United States v. Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S. 252 (1886), decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment’s Due Process Clause. Following the now-rejected Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights did not apply to the states), Cruikshank and Presser found that the Second Amendment restricted the activities of the federal government, but not those of the states. One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser rest on a principle that is now thoroughly discredited. See Emerson, 270 F.3d at 221 n.13. Because we decide this case on the threshold issue of standing, however, we need not consider the question whether the Second Amendment presently enjoins any action on the part of the states.
1.14.2008 3:43am
Josh644 (mail):
I'm confused by the following statement:

As a Senator, Kerry voted for a resolution affirming the individual Second Amendment right, and also voted for more repressive gun control at every opportunity.

One of these actions supports the second amendment, and the other gun control, yet they are presented as if they don't conflict.
1.14.2008 4:02am
markm (mail):
Josh, the point is that they do conflict - rather like the Ashcroft-Gonzales DOJ's apparent position that we have an individual right to keep and bear arms, but there's no such thing as an unreasonable restriction on this right...
1.14.2008 6:38am
Stormy Dragon (mail) (www):
I think this case is likely to end up doing to the second ammendment what other recent decisions have done to the fifth ammendment's emminent domain protections: there will be a theoretical individual right to possess firearms, but there will be no violation (however egregious) which seems to ever actually infringe that right in practice.
1.14.2008 7:17am
We pro-lifers are shocked -- shocked! to find that a GOP administration would pay little more than lip service to an issue of vital importance to the volunteers doing the campaign legwork. Never would have suspected it.

1.14.2008 8:30am
NaG (mail):
Actually, the SG's brief flat-out says that the individual rights view of the 2nd Amendment is the correct one, and utterly rejects as "incorrect" D.C.'s argument that the right must be cordoned within the militia clause. The brief even acknowledges that D.C.'s gun ban is probably unconstitutional. When it comes to the actual case at hand, the SG's brief is wholly on Heller's side.

However, the SG's brief is not aimed at the present case. It is aimed at those future cases that may arise if the Court takes the individual-rights view. Look at who is joining the brief on the very first page: the head of the ATF. As the brief reminds the Court, the federal government has an entire Bureau whose job it is to regulate firearms. Since I do not recall President Bush ever saying that the ATF should be scrapped because it violates 2nd Amendment freedoms, it is perfectly consistent for the SG to say that the D.C. ban is unconstitutional, but we need to preserve the less-onerus federal regulations. The current case does not concern the ATF, but the SG sees how it can, and is acting to draw a line whereby either the Court will strike down the gun ban but, in dicta, uphold ATF regulations; or will remand the whole thing so that a finer line may be drawn.

It is true that the SG does not want the same outcome that Heller wants. Heller doesn't want more litigation, he wants a resolution. However, I don't think the SG is against Heller's position, and it would be odd for the SG to be given some of the appellant's time during oral argument, because the SG would be doing everything he could to distance himself from D.C.'s argument.
1.14.2008 8:53am
On the SG brief: I knew better about the Bush family, I recall Bush's father going out of his way to limit gun owner's freedom once he got what he wanted from us. Same old skull and bones ruling class restrictions, different family member.

On the History Prof's Brief: It reads like some Jr Prof in some soft area like X Studies tried to explain in writing that you should deny the sky is blue because it is really red. I mean, they tried to claim that the amendment really says that all arms must be under government control by running to the margin for examples and throwing clouds of dust in the air.
1.14.2008 9:00am
Point of Fact (mail):
Could people actually read the briefs in detail and provide ammunition for the Respondents, please, as Kopel has asked?
1.14.2008 9:02am

As the brief reminds the Court, the federal government has an entire Bureau whose job it is to regulate firearms.

So, if Kansas had had "an entire Bureau" whose job it was to oversee segregation, that would have been a ponderable argument in Brown?
1.14.2008 9:02am
NaG (mail):
Just to add a finer point to it: if the Court rules for the individual-rights view and strikes down the gun ban, there will be lots of lawsuits challenging every little gun regulation. The SG does not want that. He wants the D.C. ban stricken. But he does not want to be putting out fires from a hundred gun regulation lawsuits that follow. From the SG's point of view, it would be easier to remand and have the parties flesh this out instead.

Problem is, I do not think there is a reason for the Court to remand and develop the record in the way the SG wants. The issue in this case is whether the D.C. gun ban is unconstitutional. To rule on that does not require that the Court also evaluate and rule on every other gun regulation that is out there. I think the upshot will be that the Court will issue a narrow ruling espousing the individual-rights view and striking down the D.C. gun ban, but also mentioning (in Kennedyesque prose) that the 2nd Amendment does allow "reasonable" regulation. The D.C. laws will be described as something of an anomoly in the panoply of gun regulation.
1.14.2008 9:02am
NaG (mail):
PersonfromPorlock: Don't be dense. I did not say, and the SG does not say, that the mere fact that there is a department created for a certain purpose must thereby make that purpose constitutional.
1.14.2008 9:08am

I did not say, and the SG does not say, that the mere fact that there is a department created for a certain purpose must thereby make that purpose constitutional.

No, but you do seem to be saying that the existence of such a department is an argument for the constitutionality of that purpose. Otherwise, why bring it up?
1.14.2008 9:51am
PersonFromPorlock, it was pretty obvious that it was brought up because it explains why the Government has taken the position it has taken.
1.14.2008 10:17am
Orson Buggeigh:
Note to History profs -Michael Bellesiles has been shown to be a writer of fiction, not history. Recycling his arguments is poor work. Revise and resubmit for a grade, otherwise, it's an "F."
1.14.2008 10:18am
I just read Janet "Burn the children" Reno's brief.

She keeps saying that the constitution only grants a right to possession of an arm as part of a well regulated militia. She does not say what a militia is. She does not address why the 2nd uses "the people". She does not explain what the 2nd means given her position.

She pimps Miller as supporting her postion without explaining that it related to private ownership of military use arms. In fact, she doesn't really say anything other than pap.

She spends the second half of the brief dogging the DOJ for going back on her position on gun gun rights.
1.14.2008 11:07am
NaG (mail):
PersonFromPorlock: It is brought up because a ruling on the D.C. gun ban almost certainly will be interpreted to apply against all other gun regulations. As I said, the SG is not concerned about Heller as much as he is concerned about future litigation. Reminding the Court that there are other gun regulations out there that are NOT being challenged in this litigation is the point of bringing up the ATF. Nowhere does the SG assert that the existence of the ATF itself is an argument for constitutionality, and I have not stated anything that implies that view either.
1.14.2008 11:08am
Just Some Guy (mail):
I've read the briefs, and I'm frankly surprised that you're making as big a deal of it as you are. I'm hardly an Administration fan, and I would not be slow to believe they sold out on the Second Amendment, BUT THAT ISN'T WHAT HAPPENED.

They rightly recognized that today, in 2007, an evenly divided Supreme Court, with Justice Kennedy playing Sandra O, will decide the DC gun ban case. They affirmed their interpretation of the 2nd Amendment as being an "individual right," and invited the Court to agree with the general rule. THAT WOULD BE GROUNDBREAKING PRECEDENT POSITIVE FOR GUN RIGHTS.

However, because they are also good lawyers, they realized that Justice Kennedy would never overturn the DC gun ban. Period. Rave and cry about it all you want, you are simply demonstrating why ideology is generally a poor substitute for objective analysis.

Once the Supreme Court agrees with the HUGE argument that the 2nd Amendment guarantees an individual right, the cases will bounce around for a few years in the lower courts, but the political debate will be over. Within five years, a future Court will either affirm the prior holding and start striking down state/city laws, or they will overturn and risk a Republican takeover of Congress and the White House that could result in Federal preemption of some sort, anyway.

Honestly, if you can't do the same analysis and honestly come to the same conclusion, your clients shouldn't trust your judgment.
1.14.2008 11:28am
Mike M. (mail):
What strikes me is how much these amicus briefs are reminiscent of the arguments in favor of keeping segregation. Many of them are basically arguing in favor of ignoring the Constitution because following the letter of the law would inconvenience the government.

On the other hand, a right that people hold at the convenience of the government is no right at all.
1.14.2008 11:56am
dwlawson (www):
Some cunning linguists have also stepped into the fray.

The term “bear arms” is an idiom that means to
serve as a soldier, do military service, fight. To “bear
arms against” means “to be engaged in hostilities
with.” The word “arms” itself has an overwhelmingly
military meaning, referring to weapons of offense or
armor of defense. In every instance we have found
where the term “bear arms” (or “bearing arms”
or “bear arms against”) is employed, without any
additional modifying language attached, the term
unquestionably is used in its idiomatic military
sense. It is only where additional language is tacked
on, either to bend the idiom by specifying a particular
type of fighting or to break the idiom by adding
incompatible language, that the meaning of “bear
arms” deviates. In the Second Amendment, the term
is employed in its natural, unadorned state and,
therefore, one must conclude, was used idiomatically
to refer to military service.

Let's assume they are correct in their idiomatic argument (and I think they are) that bear arms alone is military and that adding phrases like (for personal defense or to hunt, etc) are deviations.

They are manifestly incorrect in their conclusion, that the 2A states 'bear arms' in an unadorned sense. It clearly adorns it with non-military usage when it ascribes the right to 'the people' instead of 'to the militia'.
1.14.2008 12:07pm
NaG (mail):
Just Some Guy: Are you really so sure that Justice Kennedy would never overturn a gun ban, but would instead allow for less-onerus regulation? What brings you to that conclusion?
1.14.2008 12:15pm
Grumpy Old Man (mail) (www):
I've read the SG brief. The strategy, it seems, is to get SC approval of the individual rights reading of the ban, trying to get maximum support (read, Kennedy)for that concept. It's hard to fault, as a strategy.

One could plausibly argue, of course, that whatever regulations are constitutionally permissible, the general ban enacted by DC is so extreme as to be facially unconstitutional. It's hard to fault the SG for taking a more cautious approach.

A related, ignorant question: regardless of the Second Amendment, what's the rationale for the Federal Government regulating gun ownership, sales, etc.? Anything beyond the Commerce Clause? They seem to have gone way beyond it.
1.14.2008 12:27pm
Randy Hudson (mail):
Brief of City of Chicago et al, section II, second paragraph:
"The text of the Second Amendment expressly en-
visions regulation. Its opening clause calls for a “well
regulated” militia. None of the rights that are fun-
damental, and therefore require strict scrutiny of
regulation, contains such a grant of government
regulatory power. There is no mention of a “well
regulated” press, for instance, in the First Amend-

This follows, and is about, a paragraph about Chicago's regulations and D.C.'s ordinances.

I thought the regulation mentioned in the Second Amendment meant something like "well-trained" or "well-ordered". If so, doesn't their argument fail?
1.14.2008 12:38pm
Letalis Maximus, Esq. (mail):
The SG's brief is about, and only about, the NFA and 18 USC section 922(o). Period. End of story. If the Second Amendment means strict scrutiny, the whole NFA taxation and 922(o) ban on post-1986 transferable machine guns scheme of regulation is at risk. With only heightened scrutiny, not so much.
1.14.2008 12:45pm
blackwing1 (mail):
In the second sentence of the second paragraph (on the 4th page of the .pdf) under "Statements", the DOJ brief claims that:

"Possession of machine guns is generally prohibited by 18 USC 922(o)…"

I was under the impression that the possession of machine guns by individuals is perfectly legal, although subject to extra regulatory scrutiny, through local sheriff's offices and the $200 transfer tax.

Newly-made machine guns (since 1986?) are completely prohibited except to police and military, but machine guns manufactured/imported prior to that date are (to the best of my imperfect knowledge) are possessible and transferable.
1.14.2008 12:55pm
I don't think the government's brief is all that far off base. There should be some modest regulation of firearms, fully automatic .50 caliber machine guns should probably be out of bounds, as well as handgrenades and landmines. I'd be comfortable with regulation that limited private citizens to the type and sophistication of arms their local police force had available.

I'd also be favorable to limits on private arsenals, such as a 10 gun per family member limit.
1.14.2008 1:16pm
Letalis Maximus, Esq. (mail):
Yeah, I too worry about some guy shooting 63 guns at once.
1.14.2008 1:30pm
Andy Freeman (mail):
> I'd be comfortable with regulation that limited private citizens to the type and sophistication of arms their local police force had available.

That's a reasonable standard, but many people are surprised to find what their police force has. (Almost all of the big city police forces have machine pistols. They just don't carry them routinely in public.)

> I'd also be favorable to limits on private arsenals, such as a 10 gun per family member limit.

Why? (What's the policy argument and what's the "rights" argument? After all, no one cares about the capacity of my press.)
1.14.2008 1:33pm
I'd also be favorable to limits on private arsenals, such as a 10 gun per family member limit.

I'd be favorable to a limit on free speech from those who had opinion I do not like. Say, a restriction that any such family could only speak to 10 or less people per year.
1.14.2008 1:33pm
I wouldn't consider a ten gun limit unreasonable, because at some point there is transition from being a personal cache of firearms to a arsenal for an organization. It seems to comport well with my state constitution (Washington) which is one of the more gun friendly states:

The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

But it may well be a 10 gun limit is too restrictive, having 25 guns in a varied collection doesn't seem egregious, having 25 AR-15's in racks on the wall with thousands of rounds seems a little over the top.
1.14.2008 2:06pm
I'd be comfortable with regulation that limited private citizens to the type and sophistication of arms their local police force had available.

This would involve an enormous relaxation of federal and state firearms laws. I think it's a fabulous idea.

thousands of rounds

"Thousands of rounds" fits in a space the size of an attache case. "Thousands of rounds" is what I can go through in a weekend of target shooting.
1.14.2008 2:16pm
MXE (mail):
I don't see the point of "arsenal" (I would say "collection") limitations. If a group of armed radicals were to organize, wouldn't each member most likely own his/her personal guns, which would almost certainly number 10 or fewer each? That seems more likely than one "militia boss" personally owning the armory for the entire group.

Meanwhile the wealthy old sportsman who likes to collect fine over-under shotguns gets told that his collection is an "illegal arsenal."

And as for "thousands of rounds," most gun owners I know keep thousands of rounds. You can easily go through hundreds on a single range trip, and buying in bulk saves money (as with so many other products).
1.14.2008 2:23pm
NaG (mail):
Kazinski: How about someone who has an interest in collecting guns as a hobby?
1.14.2008 2:53pm
David E. Young (mail) (www):
An Analysis of the Heller Amicus Brief of various History Professors by David E. Young

Fully the first one-fifth of the History Professors' Heller amicus brief compares an American Bill of Rights provision (the Second Amendment) to the English Bill of Rights. During his speech introducing the protections that became the U.S. Bill of Rights into Congress, James Madison indicated that comparing the English Bill of Rights to American bills of rights was innaplicable. One reason was because Madison clearly understood the American bills of rights provisions were intended as limits upon the government, but the English Bill of Rights was only a limit on the king, or executive branch of government. Another reason for the innaplicability of such comparisons in Madison's view was that most of the protections found in any American bill of rights were not even mentioned in the English Bill of Rights. [182] In a similar vein, it should be noted that many details of the Second Amendment are not found in the English Bill of Rights, and those found are innaplicable in America. The Second Amendment is, for example, not related to the "subjects" of a king, is not limited to Protestants, and most certainly does not end with the phrase "as allowed by law".

The reason Madison brought up the above point during his Bill of Rights introduction speech was because the response of Federalists to Antifederalists' demands for a bill of rights during the Ratification Era had often been to divert discussion to an inapplicable point, the English Bill of Rights. While the Antifederalists jumped up and down pointing to the need of a Federal Bill of Rights based upon the protections found in all of the existing state bills of rights (every one of which had a Second Amendment related predecessor), the Federalists, eager to avoid discussing a subject that always lost them support, turned their gaze across the Atlantic Ocean to look at other things largely innaplicable. The Federalists refused to turn their gaze back at the American bill of rights demands until politically forced to do so. The comparisons in the History Professors' brief relating to the English Bill of Rights are just as innaplicable as the Federalist English Bill of Rights argument from the Founding Era.

The History Professors' brief next claims that the American state declarations of rights "operated not as legally binding commands". Yet George Mason, specifically discussing Sections 8 through 13 of the Virginia State Declaration of Rights in the Virgina Ratifying Convention(number 13 being the Second Amendment predecessor), indicated that the Virginia Bill of Rights declared certain rights to be paramount to the power of the state legislature. Since Mason wrote Virginia's Declaration of Rights, he would certainly seem to know better what its purpose was than the History Professors who are either unaware of this fact or have chosen to ignore his primary statement regarding the point. [140]

The amicus brief of the History Professors also strangely claims that in only two states were the state declarations of rights actually made part of their state constitutions. This is not correct either. In addition to the two states they cited, Pennsylvania and Massachusetts, the fact is that the states of North Carolina and Vermont also specified that their Declarations of Rights were part of their Constitutions. [76] In fact, both North Carolina and Vermont actually copied the Pennsylvania language regarding this point verbatim. Not only that, but a number of other important historical facts were either overlooked by or apparently unknown to the History Professors regarding the purposes for the state declarations of rights from the Revolutionary Era. [See 75-76]

The Professors next tie all state declaration of rights provisions of that period to the military and go off on a military purposes and militia powers tangent that diverges well away from any bill of rights related history or understanding of these bill of rights provisions. This is a major mistake because the Second Amendment and its predecessors, which were directly based upon the state declarations of rights, were not intended as alterations of the militia powers under Article I, Section 8 of the Constitution. George Mason, who formed the first two-clause predecessor version of the Second Amendment, which was later adopted with no or little change by four ratifying conventions (VA, NY, NC, and later RI), explicitly stated this fact. [133-134] The Second Amendment related predecessors had nothing to do with the militia powers specifically.

From this point on, the History Professors' brief deals with a bill of rights provision as if it were not a bill of rights provision at all. Their concluding militia related statement that the debate about the need for this bill of rights provision "was always about the militia and its public purposes, never about a private right" is completely contradicted by the historical evidence relating to the Second Amendment's development and implementation. There is not space to get into this all here.

Of course there were discussions about the militia powers and how they might be abused. There were amendments proposed by Pennsylvania, [101] Virginia, [138] and North Carolina, [156]which copied Virginia's, that specifically addressed those concerns. But the Second Amendment was not related to those amendments of Article I, Section 8 powers, because it was a bill of rights provision unrelated to any specific power. The Second Amendment was not a structural or power altering amendment any more than any other bill of rights amendments were intended to be structural or power altering amendments. The History Professors' brief does not address those three specific militia powers amendments, but rather insists that the Second Amendment was intended for the purpose that these other amendments clearly related to. It also ignores a large amount of important period information clarifying all of the above points.

The Heller brief of the History Professors is, because of the above specific and other historical oversights and errors, largely misleading regarding the Founders' own understanding of the Second Amendment's history and intent.

[The numbers above in brackets are page numbers from David E. Young's recently published book, The Founders' View of the Right to Bear Arms - A Definitive History of the Second Amendment. Information is availabale at The Origin of the Second Amendment website ]

David E. Young
Author - The Founders' View of the Right to Bear Arms
Editor - The Origin of the Second Amendment
1.14.2008 3:19pm
Robert J. Oneto (mail):
To: David E. Young

Thank you for your comments. The knowledge you share with us is simply terrific stuff.
1.14.2008 3:39pm
It should be relativly easy to craft regulations that distinguished between an arsenal and a collection. A collection by its nature has a variation and diversity of the items in the collection. An arsenal is going to consist of a uniformity of weapons and ammunition that by its nature is designed for arming a body of men. The weapons in an arsenal are somewhat fungible.

[DK: Not necessarily. Most collectors I know have one or more specialties, e.g., Winchester rifles from the 1870s, "Saturday night specials" from all eras. As with coins, there a lot of small differences between items which would be irrelevant to most people, but are fascinating to collectors.
1.14.2008 4:01pm
Andy Freeman (mail):
> I wouldn't consider a ten gun limit unreasonable, because at some point there is transition from being a personal cache of firearms to a arsenal for an organization.

So what? If the folks in said organization can own guns, an ownership restriction doesn't disarm organizations.

An ownership restriction may disarm groups of poor people. Is that the goal? Is it a good goal?
1.14.2008 4:37pm
Andy Freeman (mail):
> It should be relativly easy to craft regulations that distinguished between an arsenal and a collection.

Feel free to craft regulations that make distinctions that you're now claiming are important. If you fail, as the "ban assault weapons" people do, you can always blame pro-gun folks for failing to make a distinction that you thought was obvious and that they said was impossible. As in that case, their failure clearly justifies imposing restrictions that don't make those distinctions.

> A collection by its nature has a variation and diversity of the items in the collection.


> An arsenal is going to consist of a uniformity of weapons and ammunition that by its nature is designed for arming a body of men.

Not at all. An armed body with a diversity of weapons can do more things than one with identical ones. (At best, there's uniformity WITHIN a type of weapon, but that's a very different thing.)

> The weapons in an arsenal are somewhat fungible.

The US Army's arsenal does not work that way so why would a private one be any different?

If you're going to make a technical gun argument, it helps to actually know the technology.

I'll go out on a limb and guess that Kazinski is male. It's often harder to teach men about guns because they think that their genital configuration was a package deal with certain skills and knowledge.
1.14.2008 4:50pm
blcjr (mail):
Kazinski wrote:
I'd also be favorable to limits on private arsenals, such as a 10 gun per family member limit.
S let's take a family of three. That's 30 guns. Now justify why that is a "reasonable" limit as opposed to, say 15, or 150, for three people. Cannot be done. The number is arbitrary. Any number is arbitrary.
1.14.2008 5:19pm
MXE (mail):
It should be relativly easy to craft regulations that distinguished between an arsenal and a collection. A collection by its nature has a variation and diversity of the items in the collection.

This is sort of interesting, because the precise example I used of a sportsman with over 10 fine over-under shotguns is itself a counterexample to this principle. That's over 10 guns that are functionally equivalent in loading mechanism, overall type (shotgun), gauge of ammunition (perhaps some variation there, but mostly 12ga), barrel length (probably all within 26-32 inches), and sporting application. The main differences would be in manufacturer, engraving, customization, etc.

My best gun-collecting friend is a collector of surplus bolt-action Lee-Enfield rifles. He has about seven right now. The differences are so minor that a relative newbie like me can barely even notice -- mostly the factory location and date of their manufacture, and some minor component differences.
1.14.2008 5:39pm
Well, so far I haven't seen any examples of a collection that couldn't be distiguished between what I would consider an arsenal. But lets flip the question on its head, is there anything in the second ammendment that would allow the government to prevent someone from having 25 basically identical AR-15's on racks on the wall with thousands of rounds of ammunition stockpiled? I think there is. If the second ammendment is an individual right, then I think the government should be able to restrict its excercise to a scale that is individual by nature.

I don't think that Hells Angels chapters should be able to stockpile large arsenals, or drug gangs, or para-military organizations. I believe in the second amendment as an individual right not a collective right.
1.14.2008 6:44pm
I am proud to claim to be a well read layman. To the best of my ability, I have been following this case, and read the DOJ brief, and others. I am a Wisconsin farmer and desire the outcome of this Supreme Court Case to result in the greatest psooible freedom for Mr. Heller and other DC individuals to legally possess weapons, including common handguns. My belief is that if DC residents can have legal handguns, so will I. What is good for one American is good for all of us. I consider this case to be very important to our basic civil liberties.

That said, I admit I am a bit confused over the DOJ brief. Again as a layman, I agree with what is basically said, but wish it were presented from the other side. In the interest of caution and preservation of rights, I hope the court decides in favor of Heller.
1.14.2008 6:55pm
subpatre (mail):
There Kazinski goes with his "thousands" again. I agree . . . that restricting Kazinski's postings to an arsenal of thousands of letters is reasonable. I believe in the first amendment as an individual right not a collective right. (end sarcasm)

The point is that "thousands of rounds" to firearms is not a large quantity; no more than "thousands of letters" is to sentences.
1.14.2008 7:34pm
MXE makes a good point with the rifles. Would you say that it doesn't matter if the AR-15s come from different places? Likely they would, and would thus slip through a "loophole" allowing the arsenal. Some guns are worth more in series, as well. I lack the knowledge, but many guns are more valuable with two or three with progressive serial numbers, I'd imagine there's places where you could get 10 guns in a row, as part of a collection.

Trying to make limits with machines guns is another difficulty. There were civilian owned ships-of-the-line, and artillery pieces, etc. In fact, Congress frequently issued letters of marque and reprisal authorizing these private ships to engage in privateering. Crew served weapons like the M2 and light artillery would be protected. In fact, for the 2A to have any real teeth, they're needed--to counter armored threats.

Things like nukes would be limited by economics. I doubt even Gates could afford the insurance, and all the economic responsibility involved with the things. I want a .50 machine gun, but I'd hardly ever be able to feed it much.

Now, as proven, gangsters and terrorists and the like ignore such laws, so making such laws does very little. Better to invest the energy in detecting the people, rather than the devices.
1.14.2008 7:55pm
k parker (mail):

The problem isn't to figure out something that matches your individual experience, it's to write a law that will distinguish the two cases. This is much harder then a glib "what I would consider", isn't it?

And phooey on "thousands of rounds". There's no point in belaboring what others have already said about that not being a large number. But just in case you're a hoplophobe who doesn't have any actual experience with these things, let's compare it to golf: how many balls do you think a serious amateur or semi-pro golfer will hit in a single session at the driving range? And how often might he or she do that in a given month?
1.14.2008 8:03pm
Brett Bellmore:
I'm still unclear as to what the point is in prohibiting private arsenals. Any given weapon in said arsenal can only be fired by one person at a time, after all. Sure, you might invite your neighborhood over to all pick up one gun, but how's that different from them each starting out with just one gun in their own home? Which Kazinski doesn't seem to care to defend prohibiting, at this time.

As a practical matter, the word "arsenal" is merely being used to bring in military connotations, without any logical rationale for caring whether a private individual has one.
1.14.2008 8:10pm
Xrlq (mail) (www):
The SG brief was one that might have been expected from the administration of President John Kerry. As a Senator, Kerry voted for a resolution affirming the individual Second Amendment right, and also voted for more repressive gun control at every opportunity.

That analogy is over the top. First, John Kerry isn't exactly known for his moderate views vis a vis Bill Clinton, and it's quite a stretch to assume his Solicitor General would have taken a more rights-friendly approach than Seth Waxman infamously did take. Second, while heightened scrutiny is not ideal, it beats the hell out of rational basis, the one "test" that would have given the Kerry Administration the luxury of affirming an individual Second Amendment right while simultaneously allowing government to restrict it whenever it wants, for whatever reason it wants, as long as it has as reason (and not necessarily even a good one). Third, and far more importantly than anything in this brief, does anyone seriously believe that President Kerry's two Supreme Court appointments would be as likely to rule favorably on the Second Amendment as Justices Roberts and Alito are?!

Talk about the perfect being the enemy of the good. Yeesh.
1.14.2008 9:01pm
Mike Hansberry (mail):
re: The Professors of Linguistics.

Their disagreement with Lund in regards to Absolute construction is not in the operation of such clauses, but in the assumptions that one would logically make were the stated rationale not present. Lund rightly assumes that the right would not be infringed regardless, but the professors think that the right would be infringed absent the belief that “a well regulated militia is necessary to the security of a free state”. However, the professors provide no support for the idea that rights are to be infringed unless a rationale exists for not infringing them.

When discussing idioms the professors neglect to mention that "bear arms" does not stand alone in the Second Amendment. The words are "keep and bear arms" and so the idiomatic meaning of "bear arms" is lost.

Mary knows how to stir the pot.
Mary knows how to hold and stir the pot.

The first is the idiom meaning to cause trouble, the next is understood in the literal sense, though it contains the very same words "to stir the pot" because the phrase is modified from the familiar form.

Idioms have certain properties that the Linguistics professors simply gloss over.*&q=Idiom

Furthermore the professors do not consider how the Second Amendment was described at the time of its drafting. Tench Coxe's observation that the provision confirmed the people in their "right to keep and bear their private arms" was distictly non-idiomatic.
1.14.2008 9:31pm
Andy Freeman (mail):
> I don't think that Hells Angels chapters should be able to stockpile large arsenals, or drug gangs, or para-military organizations.

Good for you, but the proposed law doesn't provide that benefit. Each of the members can own, so they can be collectively armed without running afoul of the "arsenal" law.

BTW - If they're bad people, why are we letting them have 1 gun, let alone 10? Answer - the above isn't a serious argument, it's merely an appeal to emotion.

We've already seen something that is clearly a collection that runs afoul of the law.

In short, the law doesn't provide the promised benefit AND it does infringe on something that was supposedly okay. So much for good faith.

And, we still haven't seen a response to the point that lots of active shooters go through thousands of rounds in a weekend.

Interesting point of fact - .22 LR, the most common round, is typically sold in "bricks" of 500. These bricks cost less than $15.

What's the big deal about buying a "season's worth" of ammunition during the once a season sale? (Remember, we already know that it won't disarm any of the "bad" groups.)
1.14.2008 9:55pm
We've heard a lot over the years what rights we'd have if the 2nd, amendment is a collective right, basically none. But no one, at least here, seems to be able to come up with a definition of what an individual right is.

Take home ownership for example, although it is un-enumerated, I don't think anybody doubts there is a right to own and occupy a home. Yet there are zoning laws, there is imminent domain, there are taxes on that right. And there are reasonable limits imposed such as not allowing a 14,000 sq ft house to be placed in a neighborhood of 3,000 sq ft houses.

There has to be some place in the continuum between the unfettered right to have tactical nukes and a total DC type ban where there is some government regulation of the right to keep and bear arms. Obviously the strict scrutiny envisioned by the most zealous individual rights proponent does not include tactical nukes, but now you have introduced some scope of regulation, its limits need to be defined. Does strict scrutiny encompass regulations preventing felons from possessing firearms? How about people under restraining orders?

As a general proposition I think, citizens should be limited to the general level of arms available to the police, and in some scope that is in keeping with an individual exercising an individual right.
1.14.2008 10:29pm
Gene Hoffman (mail) (www):
First - can we stop the side conversation and go back the briefs please?

There is an important error in the SG's brief. The SG's brief argues that the lower court's decision, in overturning the handgun ban, would also overturn the ban on fully automatic handguns. However, that's demonstrably not true as Parker did not touch DC Code § 22-4514 which bars the possession of machine guns and short barreled rifles specifically.

1.14.2008 11:13pm
Why is it such an unimaginable thought to actually amend the Constitution? It seems like almost every interpretation people put forward as the correct interpretation is based on the following:

Interpretation A leads to results I don't like, and may even find ridiculous
Therefore, interpretation A isn't correct

Well, I don't know enough about the second amendment to know whether or not it allows for a ban on private keeping and bearing of nuclear weapons. But so what if it does? Amend the GD Constitution to allow for the government to ban nuclear weapons. Or say right in the amendment that they're banned. I mean, why is this result so damn impossible?

How many people actually favor a policy but recognize that it's unconstitutional and favor an amendment to realize their policy goals? Some pro-lifers, right? Anyone else? Or does everyone else just say, "Well, we don't want people to have arsenals, so it must be constitutional to have a reasonable regulation that prohibits private arsenals?" or, "Biodiversity is good, and let's pass federal laws to regulate local development."

Is it just too hard to amend the Constitution? Is there a chance that the nuclear weapons prohibition amendment wouldn't pass?

1.14.2008 11:23pm
Robert J. Oneto (mail):
Good Call Gene. You're really throwing down the gauntlet, aren't you? I'll try to read all of the briefs as well, and find any errors if I can, but competing with you... that may be out of the question.
1.14.2008 11:34pm
PETN Sandwich (mail):
Just poking my nose in...

And off on a tangent, with regard to the 'well regulated militia' aspect of the argument - handguns are NOT classical arms WRT military ops or constabulary actions.

Check your local police force, the handgun is for defense; the pike, bill, halberd, brown bessie, kentucky long gun, M-14, AR-15, whatever and shotguns are for going AFTER a bad guy. Check your Geneva convention, the hand gun is for defense of medics, chaplains, and civilians; Long arms are weapons of war.

Handguns and pocket knives have no more to do with the 2nd than do quill pens with the 1st.

{that is a fact jack. <-- an dat was a period}

Conversely - You do in fact have the opportunity to make all the nasty military arsenal shiite you want, to keep and sell it to who you want... unless you really think PFC Snuffy is making M-60s and Airman Wright is building B-52s and all their load.
1.15.2008 12:25am
Math_Mage (mail) (www):
PETN Sandwich, your argument seems to be contingent on the interpretation of the Second Amendment as purely military in application. It's also wrong, since it seems to assume that defense is not a valid military application. I'm sorry, you just fail.
1.15.2008 1:07am
Robert J. Oneto (mail):

You point out the narrowness of the question that the Court posed, but I'm wondering about how much the Justices will worry about the broad implications of whatever decision they hand down.

For example:

The SG has asked the Court to recognize the right to keep and bear arms as an individual right, yet the SG has also asked the Court to allow the DC city council, and I guess by proxy, the US government, to ban the possession of an entire class of firearm (handguns), as long as an alternative type of firearm is available for use by the citizens of DC, and as long as the government can demonstrate a reasonable need to deny access to this type of firearm.

Now, I can understand how the Court might want to keep the principles of this case confined to this very narrow issue. But, on a broader level, how are these principles any different from the SG asking the Court to recognize the right to due process as an individual right, yet also asking the Court to allow the US government to deny access to an entire class of due process (e.g. trial in a federal civilian court), as long as a reasonable alternative is available (e.g. trial by a military tribunal in Guantanamo Bay) as long as the government can demonstrate a reasonable need to deny access to this type of due process?

I'm not necessarily saying that the above analogy is correct or applicable, but do the Justices worry about the potentially broad implications of their actions or decisions? And if so, how might this shape their actions in this case? Or can they confine the implications of their actions to the narrow question at hand?
1.15.2008 1:38am
PETN Sandwich (mail):

"PETN Sandwich, your argument seems to be contingent on the interpretation of the Second Amendment as purely military in application. It's also wrong, since it seems to assume that defense is not a valid military application. I'm sorry, you just fail."

.. ever been military?... NO.... Thank you for your timely response.

... it is NOT my argument that the 2nd is ONLY for offense, and despite what any number of men in black dresses may say, handguns are by military and police terms are purely defensive.

I was simply presenting a factual (boots on the ground) alternative perspective on this whole 2nd/militia argument - handguns are not weapons in any sense WRT what a military weapon would be - If one holds to the argument that the 2nd only considers 'military' weapons, then handguns are trivial (in the mathematical sense, given your nic, I hope that helps).
1.15.2008 2:05am
Nicholas Moran (mail):
>Check your Geneva convention, the hand gun is for defense of medics, chaplains, and civilians; Long arms are weapons of war.

I would just like to counter that. I went to Iraq armed with both an M-4 carbine (Kindof a short M-16) and an M-9 sidearm. The carbine's main advantages are the retention of most of a rifle's range with the ability to be relatively easy to handle in the confines of a vehicle such as an APC. Due to the power and range of the 5.56mm vs the 9mm, the carbine was obviously the preferred weapon in most situations.

However: There were occasions where I would sling the carbine, and draw the sidearm as I went looking for the opposition. These were circumstances of very close quarters, such as houses or thick vegetation, where the length of even the carbine could hinder engagements.

I would also make note of the 'Liberator' .45ACP pistol of World War II, whose purpose was purely offensive: It was a concealable weapon to be used to kill an enemy soldier, and allow the user to take that soldier's long arm.

In a nutshell, police use pistols because they don't need anything larger for their defensive use. However, that does not mean that pistols cannot have an offensive use.

Finally, I have checked the Geneva Conventions, and I'm fairly sure that the US Army did as well when they armed our medic with an M-16. See FM 4-04.2, which authorises pistols, submachineguns and rifles, but does not authorise machineguns, grenade launchers or anything else which 'may jeopardise the protected status' of the medical unit.
1.15.2008 2:35am
kat-missouri (mail) (www):
I'm a layman (woman?). My experience is more historical. From that aspect, I was surprised to read the SG's brief and see the argument being based on "a well regulated militia". Being relatively new to the 2nd Amendment fight, I had no idea that Supreme Court had already demonstrably supported that position in a previous decision or how that had effected gun rights since then.

I am frankly amazed that this language has stood, even in the face of re-affirming an "individual right" to "keep and bear arms", to validate any form of limitations and restrictions on the American citizen or his/her right to bear arms.

First, using framing era history, "well regulated" militias were hardly by the book. Any book. And often had no written standing orders or regulations beyond a possible announcement of a militia being formed in the community and duly authorized by the state. Even then, that would be stretching the probabilities and reality to believe that all of these militias were so designated and authorized by a state or federal agent or agency upon formation (federal agencies not existing at he time of some of these formations). while it might be true that many did seek and obtain such recognition upon attempting to join with regular forces or with the state militia, it certainly did not mean that such authorizations were sought or obtained upon initial forming of the organization or for all at any time.

Secondly, when such written regulations did exist, as pertaining to the arming of the militia, it was either understood or written that the members would appear with their own "arms". These regulations also did not LIMIT the type or quantity of arms that the members should own or bring to formation, but set a MINIMUM expectation. A militiaman who showed up without at least a rifle would be hard pressed to perform his duties. Other MINIMUM expectations might have included instructions for officers to have a sword and a pistol and NCOs to have the same. However, that did not LIMIT their ability to obtain and carry such personal arms as they saw fit. The same with any private militiaman. Some of whom carried on their persons tomahawks, pistols, knives, pikes, blunderbusses (often loaded with shrapnel type ammunition as a precursor to modern shotguns) and various other "arms".

Those MINIMUM expectations can be seen in later militias throughout the war of 1812, the Mexican-American War, the Civil War and other conflicts and non-conflict situations throughout our history.

Further, using Framing Era examples, one would have to expand that "right" to include such weapons as cannons and volley guns (the precursor to the machine gun). Point of fact, the militia at Concord, made up of private citizens of Concord, had in their possession three 24 pound cannons along with a large stockpile of powder, ball and other weapons, all stockpiled in private residences in the community. These cannons and stockpiled munitions were of particular interest to the British during their raid. They took great pains to destroy them in attempt to repress the militia's ability to rebel. They had also rendered them defenseless from other attacks.

This was the "shot heard round the world" and can hardly be stricken from any argument that rests upon "history". It was these actions of the then still recognized government of the colonies that weighed heavily on the minds of the framers when they wrote both the Declaration of Independence and, later, the Constitution. That the then government of the colonies had attempted to render them incapable of enforcing or defending their basic rights to life and liberty as well as their right or ability to "abolish" any government that no longer represented "the people".

We are talking about the men who through largely private auspices acquired arms of all nature to stage just such a rebellion. It is highly incomprehensible, having just rebelled and won their own independence, that they would write any article or amendment that could expressly allow the government, state or national, to "regulate" that ability, possibly into non-existence. Or, only allow the militia to exist under the strict organization and authorization of state or national government, rendering it unlawful to arm or act without that authorization. Rendering the citizens incapable of doing exactly the thing that our modern nation was formed upon: abolishing a tyrannical government and establishing a government of the people as they saw fit to guarantee their liberty and safety.

Another example alluded to was the use of cannon and other "mass damage" weapons obtained and used by private citizens operating private ships. While the Constitution expresses the legislature's ability to issue letters of marque to such people, it cannot be said that they had set any minimums or limitations on the arms such ships could carry. Nor did they ever attempt to deprive private ships and citizens from obtaining or using these weapons in defense against pirates, privateers, or other government navies. Such an act would have severely damaged the economic capabilities and survival of these citizens and, thus, damaged the economy and survival of these United States.

Second, I think this suit would have been interesting had it been brought by a woman. Based on the argument that the government can regulate arms under the guise of this "well regulated militia", the Constitution expressly establishing the "militia" to be all MEN between the ages of 18 and 45 in Article I, Section 8, amendment 14 giving "all citizens" (including women) equal protection under the law, wouldn't such interpretation of the "militia" purpose and any subsequent laws that banned citizens (expressly including women) from owning a weapon be violating their equal rights?

Just a thought.

Of course the reason that the DoJ had to enter into this case was to protect existing laws and organizations as well as protect the courts, not just from a multitude of 2nd Amendment suits, but from huge numbers of appeals from people convicted of, either solely or in conjunction, violating certain arms laws, either state or federal. particularly if such laws were rendered unconstitutional by a wide decision.

It also saves the SC from having to reverse previous decisions. It could present a real burden on the local, state and federal courts. On the other hand, these burdens are no reason to maintain unconstitutional restrictions. Paying lip service to the idea that the "right" is an individual one, while insisting that the government (local, state or federal) has the right to establish a limit on that "right" or to express any restrictions on what constitutes "adequate" or "appropriate" to self defense or the defense of the community within a militia, seems a gross violation of the idea of personal safety (life), responsibility and liberty.

Frankly, the Solicitor General or a "friend" should have expressed to the District of Colombia the idea that they should just repeal their hand gun ban and protect them and the federal government from the possibility of having such a conflict or experiencing such burdens. DC could have done so while limiting their own exposure to suits and appeals by placing strict dates by which this ban was eliminated.
1.15.2008 2:39am
Kharn (mail):
Gene Hoffman:
"There is an important error in the SG's brief. The SG's brief argues that the lower court's decision, in overturning the handgun ban, would also overturn the ban on fully automatic handguns. However, that's demonstrably not true as Parker did not touch DC Code § 22-4514 which bars the possession of machine guns and short barreled rifles specifically. "

DC's machine gun ban includes any weapon capable of holding over 12 rounds, regardless of how it comes from the factory. You can find a >12 round magazine for almost any weapon ever made that accepts a detechable/removable magazine, including almost every semiauto handgun ever made. Only revolvers (and some firearms equipped with tubular magazines) are gaurenteed to be incapable of holding over 12 rounds due to the nature of their design, so if DC's machine gun ban remains, a vast majority of the commercially-available semiauto handguns would still be banned as "machine guns" under DC law.
1.15.2008 9:11am
NaG (mail):
Wouldn't it be relatively easy for the U.S. government to insist that all/most contracts for the purchase of military arms from private companies have a clause restricting sale of those same military arms to private consumers? For example, when buying a warplane from Lockheed Martin, the government could insist that Lockheed not sell that same plane to any American citizen. There would be no reason for Lockheed to refuse since it's not like the private market for warplanes would be very large. Same for warships, LAWs, grenades, missiles, tanks, etc.

I apologize for being off-topic.
1.15.2008 9:20am
banduraj (mail):
gifted, and more so, kat-missouri, seems to have hit the nail on the head here. Thanks kat-missouri, very good read.

I can see why the SG wrote the brief that it did. The federal government has to protect it's self and it's laws. It is also likely that -as it was mentioned before- the SG was attempting to protect the courts from the burden of cases that could be generated out of the result of a Heller win with strict scrutiny being recognized.

I only hope the SCOTUS can see past this for what it is and weigh in on the side of the individual.
1.15.2008 9:50am
Gene Hoffman (mail) (www):

This case was originally Parker v. DC. Mrs. Shelley Parker was found not to have standing to challenge as she wasn't denied a handgun permit (she wished to keep a loaded shotgun as I recall.) She and the other Plaintiffs are cross appealing the standing decision.

1.15.2008 11:19am
kat-missouri (mail) (www):
thank you, Gene. I was wondering if it had been attempted. It just seemed that the language could be held to expressly be denying women their equal rights to life and liberty having established the "militia" as the basis for determining weapons.

so, I suppose as women are not the sole targets nor denied the same restrictive access, they cannot claim their rights are being violated. I'm glad that they are appealing because, regardless of how they are equally oppressed, the language seems to conflict with the notion of equality.
1.15.2008 12:23pm

I don't think that Hells Angels chapters should be able to stockpile large arsenals, or drug gangs, or para-military organizations. I believe in the second amendment as an individual right not a collective right.

Nope, in fact you don't believe in the Second Amendment as either an individual or a collective right. You believe in it as a privilege that can be extended, withheld, or modified arbitrarily.

The exercise of a right does not need your approval. Although individual rights do have natural limits, those limits are defined naturally by whether and when they infringe other people's rights.

There is no negative right. That is, there is no right for you or anyone else to deny other people their rights even when you really don't like it when they exercise those rights. Not too long ago many people really, really didn't want a black person in the South to own even one. They exercised a negative right.

One major benefit in having rights in the first place is that unpopular people can exercise them.

You use too many words by the way and post far too often. Although I concede that you have some right to speak your mind--First Amendment and all that--and I would not infringe upon that right for all the world, the framers of the Constitution could not have envisioned the Internet or other modern means of communication. So they would not have approved your excessive verbiage. I know that.

From now on please limit your posts to one every thirty days and no more than ten words to a post. It's reasonable regulation. I know that. And I wouldn't say so unless I did.
1.15.2008 3:22pm
glangston (mail):
The Stern Collection

Just so you can see for yourself what a collection is, as opposed to the dreaded "arsenal"

Not much difference is there?

Page down a little to get to the Stern Collection.
1.15.2008 5:15pm
Back to Dave Kopel's opening question, and hopefully getting away from the emotional rants and personal attacks --

Choosing between "individual" versus "collective" Second Amendment theories is the easy part of the Supreme Court's job. It appears that the Solicitor General's brief realizes this (although it of course starts by repeating DOJ's current position on this issue), and focuses on the harder question -- the standard of review to apply. As every law student knows from studying Con Law, the standard of review is often outcome-determinative. There are a number of different standards under which rights infringements can be adjudged, ranging from strict scrutiny to quite deferential standards requiring only some articulated rational basis for the regulation. Here, the standard of review the Court says should be applied to firearms laws will determine which side is ultimately viewed as the winner in Heller.

The SG tries to articulate a standard that, if applied to existing Federal laws, would preserve the current Federal regulatory scheme, including the NFA, the GCA's firearms possession disabilities and FFL licensing, current background checks, etc. It's naive for folks to think the Justice Department would NOT support current Federal law (that's their job, right?). It is also clear that the SG really doesn't care either way if D.C.'s local handgun ban survives.

One could argue that under a strict scrutiny standard even the 1934 NFA and 1968 GCA get tossed out, while a mere rational basis standard could preserve 99% of the most stringent firearms restrictions, including but not limited to the D.C. handgun ban, assault weapons bans, comprehensive firearms registration and owner licensing, prohibitions on concealed carry, etc. Outcomes at either extreme are likely to appeal to 2 or at most 3 Justices. Which means the most likely outcome will be an articulation of an "intermediate standard of review" -- but as every law student also knows, such standards are never the model of clarity. The SG's brief makes no real headway in proposing a clear, easily-applicable standard.

So, is it possible to "improve" on the SG's position? How does one articulate a bright line in a way that would garner a majority of the Court's votes, do the least damage to core Federal firearms regulation, but that the NRA, for example, could also live with? When the pro-Heller amicus briefs are filed next month, the brief that can do this the best will be the one that the Justices pay the most attention to. Give the Court a set of principles that lead to the outcome a majority can live with. That's the challenge.

I admit I don't have *The* Answer.

Incidentally: many of the "lines" that people propose drawing are silly: No more than 10 similar firearms? Well, you've just criminalized the .22 rifle range at every Boy Scout camp in America. Strictly regulate semi-automatics? If Cho at Virginia Tech had practiced with a revolver speed-loader, he might have done more damage with a brace of more powerful .357s than he did with his 9mm Glock and little .22 Walther. For that matter, Cho with an unchoked pump shotgun could easily have been as deadly in that environment (the Columbine shooters each had 12-gauge shotguns as well as pistols). Even the absurd argument for limiting the Second Amendment to muzzleloaders (the "did they have it in 1791" rule) doesn't solve everything -- D.C. snipers Mohommod/Malvo only fired 1 shot from their Bushmaster at each of their victims -- on a functional level they could have been as effective with a modern in-line muzzleloader. As would nearly every firearms-related suicide or accidental discharge situation cited by proponents of strict bans -- it only takes one shot, after all.
1.15.2008 7:47pm
Ian Argent (www):
The DOJ brief lit the fuse that the SCOTUS tried to quench with their limited definition of the question at hand. What' at the other end of that fuse nobody knows (except possibly Justice Kennedy)...
1.15.2008 9:06pm
Ian Argent (www):
Blogged at my own place
1.15.2008 10:15pm
I do not see why it would be such a big deal to oveturn most gun control laws. It is not like they have been around that long. There is NO clear evidence they do anything to stop crime generally. Not one shread of evidence. Just b/c it makes the .gov job easier or the prosecutors job easier does not seem to me to make much sense. If we did away with due process, trial by jury, all the techicalities lawyers and Judges have come up with that can throw out evidence,oveturn a case cause appeal upon appeal and cost the citizens alot of money to just protect some little Constitutional Rights why not protect the 2nd also? Why? Free Speech causes more death than the 2nd ever has. Free Speech allows governments to be overthrown, fights to happen, racial slurs, all kinds of porn etc. but we protect it none the less cause you can not be free without it. Same with the 2nd. Rights must be proteced even if a guilty murderer goes free. Is that not the liberal thing to believe and do????? Do you think there will be riots, beatings and killings if the 2nd amendment was protected like there was with the end of Segregation? I doubt it. What is the .gov afraid of? Surely not THE PEOPLE.
1.15.2008 10:21pm
Xrlq (mail) (www):
So, is it possible to "improve" on the SG's position? How does one articulate a bright line in a way that would garner a majority of the Court's votes, do the least damage to core Federal firearms regulation, but that the NRA, for example, could also live with?

I think a few minor edits to the brief would have gone a long way. Replace all references to "heightened" scrutiny with "strict," re-write the discussions about other laws to make them agnostic as to constitutionality rather than assuming off the bat that they are constitutional, and you've got a brief that preserves all of the federal government's arguments, while at the same time asking for the most favorable decision the NRA can reasonably hope for. Too bad they wrote that other brief instead.
1.15.2008 11:01pm
As I said, economics would block nuclear weapons. Permits for the explosives and nuclear materials* cost money, and you'd need insurance. Who'll give you homeowner's insurance with a nuke in the basement? You know how expensive plutonium and the high explosives needed(potent ones, not just TNT or something), and the electronics, and then add on the maintenance. Try to get a power plant to sell you plutonium in the first place. Good luck!

A terrorist would be the only one interested. And you know he's not buying it at Wal-Mart. The same holds true to other weapons of massive(or not quite as massive) destruction. Can't feed it, and not much fun. Even SAMs and anti-tank missiles aren't going to be very often. Shooting down airliners or blowing up politicians' limos are already illegal, not much more to that. You can't control the people that would do this sort of thing, so why bother?

A man-o'-war could devastate a city with shore bombardment. I'd imagine that cost somewhere inline with a nuke today. They would think it quite elegant that we have the ability to do it with one missile today, and point out that nukes and most delivery systems are too expensive, a farmer'd rather buy a tractor, or a city man a car(or me a whole lot of .50 BMG and 40mm grenades).

Thus, without these laws, I'm not running out to buy a howitzer or ICBM, and with them, New York City will still go bye-bye. Better to spend your law enforcement money on finding the terrorists, which you have to do anyway.

Thus, there are already checks and balances on this right. Reasonable people will engage in reasonable activity, and may even be able to stop the people who wouldn't be stopped by all your laws anyway.

*Such permits, BTW, I don't see as an infringement. Safe storage isn't just a good idea for your sake. Most of the argument here is personal responsibility, and it's well within the gov's duties to make sure that your explosives are stored in such a manner that they can't accidentally blow up your neighbor's house. He'd have the right to do that himself(he'd have the right to shoot you if you tried a gun on him, too), so it's something he can delegate to the gov. I would say that it should be a state thing, rather than federal.
1.16.2008 1:22am
The ABA Brief makes me slightly embarrassed to be an attorney.

Breaking down the argument, in the first section a claim is made that it is important in the rule of law to have a consistent structure of decisions to allow regulatory schemes to function properly.

As proof of this principle, they offer the following statement The number, diversity, and long history of regulatory enactments demonstrate that this principle of Second Amendment law has become “embedded” in our “national culture.” Dickerson v. United States, 530 U.S. 428, 443-44 (2000).

Dickerson is, of course, the Miranda case, not a Second Amendment case.

They attempt to explain away Brown by disposing of it in one sentence. Of course, Brown is the quickest way to disprove their argument.

Then they attempt to claim that a vast body of prior law says that the right to keep and bear arms is not an individual right. Other than the expected Miller argument attempting to tie in the class of weapons to who may own one, they dig up a few Southern cases, both pre-and post-war. There are so many snide and snarky comments I could make here, so I won’t.

Moving on, the entire next section of the brief is an impassioned plea to find that there is no individual right to keep and bear arms in the Constitution, because the following areas are based on that assumption: gun banning legislation; gun banning social policy; gun banning criminal sentencing policy; and gun banning administrative regulation.

They do not explain why existing policy and regulations are a reason to truncate a constitutional right, just that the right will mean the government will have to change some rules.

Having thus made some of the weakest arguments ever raised to violate a constitution right, they then turn to something even weaker. They feel that if gun ownership is a constitutional right then courts may have to make a factual determination when faced with a violation of that right. Not a joke, that is their argument. Courts will have to make factual findings.

It seems that making factual findings is hard, and in this right it will be even harder because under Parker the Second gives a right to rifle, long barreled shotgun, and handguns appropriate to military service at the time of the Constitution until now. Therefore, judges would be required to make a factual finding as to whether a particular category of firearm fits those needs.

The brief goes on for several pages explaining why it would be so hard for a poor judge to be required to make a factual finding. Anyone with any knowledge of firearms or the military recognizes this as utter crap that it is. If a judge is able to make a decision as to who is at fault in an auto accident, he is certainly capable of cracking open a government supply catalog or a history book, and reviewing the wide range of weapons that the US military has employed, beginning with its earliest duties under General Washington.
1.16.2008 9:32am
Sam Draper (mail):
Reviewing the DOJ's brief made me realize how strikingly congruent the Court of Appeal's opinion is with Miller. The focus is first on the nature of the weapon, with the government being unable to restrict possession of small arms by citizens (other than those under disability). All other restrictions must be reasonable so as not to infringe on the basic right.

The amicus briefs come across as very sloppy intellectually, but I imagine that was necessary. The Second Amendment is clumsily written, but it can easily be understood to guarantee and an individual right while the text must really be tortured or even altered to come up with a collective right.

I think it is odd that the briefs keep arguing that the 2nd amendment confers some right on the states or the militia. The amendment uses indefinite articles when referring to these entities; it is talking as much about the militia and states of Athens and Switzerland as Virginia. You would think that if the founders had intended to confer some specific right on our militias or states, rather than just setting out a general principle of good government, they would have used a definite article. It is like the amicus are changing the amendment to read "The well regulated Militia, being necessary to their Security of the States..."

Another oddity is that the linguist’s brief, and some others, raise the argument that “bear” is only used in a military context, but New York uses the word in relation to an individual right (“The States Have Established Workable Rules to Protect an Individual Right to Bear Arms.”).
1.16.2008 11:20am
Not only is the ABA brief embaressing the ACLU has stated the same wimpy attitude on their web site. They say even if the 2nd amendment protects an individual right (which they do not support) it has been so infringed upon that there is nothing we can do about it. I am paraphrasing. I can not believe they would say such a stupid thing. Good Grief. Do they not realize how lefty that makes them appear. They fight to the teeth for their view of other Constiutional rights to the point of absurd arguments but the poor 2nd has been so infringed in the past they see now way to correct that misjustice. SHAME. One of the reasons I can not support the ACLU. If they would take this view of a Constitutional Right they have no integrity. NONE.
1.16.2008 12:13pm
I think some group needs to counter the ABA brief with four words:

Brown v Board; Buck v Bell.
1.16.2008 5:08pm
I take as nearly a given that the individual rights theory is going to prevail in Heller: fearless prediction: S.Ct. comes down 7-2 on the side of an individual right. But that doesn't answer the question of what sort of right to keep and bear arms is ultimately going to emerge, depending on the standard of review adopted (see my post from yesterday for some ruminations on that point). I think that is where the Court is likely to fracture, possibly without even a majority consensus. How much regulation is permissible -- where to draw the line -- may be almost as unclear after Heller as it is now.

But as I've been struggling myself with the line-drawing questions posed by Heller, I'm increasingly coming to the view that the ultimate outcome after this case and the inevitable follow-on litigation may be that one simply cannot differentiate the right to keep and bear firearms based on functional criteria or type.

Or to put it differently, if the Second Amendment permits individual citizens (without a recognized rights disability like status as a convicted felon or mentally infirm) to keep and bear arms, they can keep or bear arms, period. With "arms" basically meaning any functional type of personal small arms, including individual or squad select fire and automatic machine guns (e.g, M14, M16 and M1918 BAR) and short-barrelled shotguns (e.g., WWI "trench guns" thru some modern combat shotguns). Especially since both those categories of NFA-regulated arms are modern light infantry analogues to shoulder- and hand-fired weapons commonly available in 1791. There may be some leeway for carry restrictions and perhaps even mandatory firearms safety training and safe storage laws via a gloss on the "well regulated" clause. But I think parts of the 1934 NFA and 1986 FOPA could be history, not to mention the D.C. handgun ban. And after follow-on litigation about incorporation, so will New Jersey's prohibition on "assault weapons," Chicago's handgun ban, California's magazine capacity limits, etc.

However, I doubt the Court will ever find a Second Amendment right to keep and bear WMD, missiles, or artillery, as some posters have suggested. I think a rational line in a Constitutonal sense can probably be drawn at personal versus crew-served weapons based on there being no indication at the time of the Bill of Rights that local able-bodied citizens were expected to own and bring their own personal cannons to respond to an emergency (the privateering example is inapposite since that was in essence authorized only upon issuance of a discretionary license from the government in the form of letters of marque and reprisal). I suspect a similar but less compelling argument can be made about most items under the 26 U.S.C. §5845(f)(1) part of the definition of "destructive device" (a/k/a "stuff that explodes"). Outcome oriented? Yes. Subject to criticism? Perhaps. But frankly I think the Court will work very hard to find there is no Constitutional right to own stuff bigger than small arms without govt. approval.
1.16.2008 8:38pm
You had to have a letter of marque and reprisal to get protection from the gov for privateering, but the ships and guns were privately owned despite. There were numerous armed merchants, some close to being ships-of-the-line themselves, and they operated with indifference. The British or whoever might be pissed that they can't attack those ships as easily, but the gov didn't care.

I'll have to dig for it, but there are records that when the Mormons went west, some of the wagon trains had cannon with them, and I doubt those were authorized by Congress. I wouldn't mind if they ruled nuclear weapons not covered, but it's not necessary.
1.16.2008 11:27pm
Ian Argent (www):
All a letter of marque and reprisal let you do was use your already-owned crew-served weaponry (which you carried against pirates) against other merchanmen without being hung as a pirate yourself, if you were caught by your own navy - and sell the proceeds legally. But a merchanman was likely to carry a few crew-served weapons EVEN IF they were never going to use them.

Privateers may (or may not) have been well-regulated in the 18th century sense - but they were still individuals in possession of privately purchaed heavy artillery. The government neither issued cannon along with the letter of marque, nor required the cannon to be dismounted and stored off the ship when the letter of marque was withdrawn; much less prevent the ownership of the cannon without a letter of marque.

All this is rather far afield of the issue in question - which is "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?"

The SCOTUS should not care what the issues outside that question are - since that's the question they are deciding.

Leave the questions raised by the DoJ brief for a different lawsuit.
1.17.2008 12:03pm
Sam Draper (mail):
I think a lot of the briefs lose sight of the fact that the question in Miller was not whether Congress could ban certain firearms; technically, the question was whether Congress could require them to be registered under the NFA. The weapon in that case could certainly be made legal by registering it. So Miller presented a different question than Heller; is a registrations requirement an “infringement?” That is maybe arguable, but it is much more difficult to argue that a complete ban is not.
1.18.2008 10:51am