Podcast on Framing Brief in DC v. Heller:

At, I interview Hamline law professor Joe Olson for 44 minutes about the Academics for the Second Amendment brief he co-authored in District of Columbia v. Heller. The brief addresses many of the same issues about the framing of the Second Amendment as those raised in a brief written by Carl Bogus (Roger Williams Law School), Jack Rakove, Saul Cornell, and others. The podcast is available in MP3 or streaming format.

Bogus is as Bogus does (mail):
Carl Bogus is aptly named.
2.22.2008 6:51am
Liberal Libertarian:
Short rant:

The brief addresses many of the same issues about the framing of the Second Amendment as those raised in a brief written by Carl Bogus (Roger Williams Law School), Jack Rakove, Saul Cornell, and others.

Then they should have coordinated and not filed both. Too many "me too" amicus briefs are being filed at both the merits and the cert stage that are merely repeating each other and of the mertis briefs.

The Court should require counsel to certify that they have made a reasonable effort to see what others are writing (its not hard to do; I have an active amicus practice at the Court and we routinely coordinate to ensure that we are not filing duplicative briefs) and that they believe they are making a novel point.

New Rule 37.3(a)(amicus have 7 days after merits briefs to file) is a good first step to ensure that one has the opportunity to review the party briefs. But a quick conference call often sorts out who is filing what.
2.22.2008 9:24am
Carl in Chicago (mail):
Liberal Libertarian wrote:

Then they should have coordinated and not filed both. Too many "me too" amicus briefs are being filed at both the merits and the cert stage that are merely repeating each other and of the mertis briefs.

Sir, the Rakove, Bogus, Cornell etc. brief was filed on behalf of DC; the Olson and Hardy brief was filed on behalf of Heller. These are not "me too" briefs that merely repeat each other. They both analyze history and the ratification and arrive at fundamentally different conclusions regarding the nature of "the right of the people to keep and bear arms."
2.22.2008 10:08am
Some of the the Respondent's amici did coordinate with each other. They are the briefs that label the subject on the cover page thus "[Ratification and Original Public Meaning]."

Rakove et al support the Petitioner (District of Columbia) and are on the opposite side of all the issues.
2.22.2008 10:17am
occidental tourist (mail):
somebody beat me to the obvious point that Bogus is on the opposite side from law professors for the 2nd amendment, so when Dave said it covered the same ground he didn't mean that it did so with the same analytical result.

I can see how liberal'tarian might have been confused. He is posted just down the road from me at Roger Williams University and publishes in the popular press in RI as well as in legal circles. I go out of my way to bite my tongue off at the temptation to misuse his appellation. (and BTW, might be looking for someone who could come for some modest travel contribution in mid-March -- maybe on their way to or from the oral argument -- to debate him in this particular area.

You could post ideas here if that is within the politenesses of this board or e-mail me at

I think argument coordination is useful but has reasonable limits. This is still a case in controversy. The parties in interest at least aren't supposed to coordinate although, informally speaking, that seems to be a rule sometimes observed in the breech. Presuming Amici having similar interests would write similar briefs, I think some informal parsing of approach is beneficial.

I hope that the briefs are self sorting qualitatively, not only just the abstract quality of argumention and research, but in the sense that an important facet is the unique fit of the brief arguments to the interest of the Amici. This is the theoretical seat at the table and a focus of the best briefs I believe.

So if there are a bunch that repeat each other despite this, that is why the justices have clerks. I'd even create a level of intern clerks for cases like to identify overlap and so forth.

I have one whiney complaint with all these brief links you have been posting Dave, and it isn't your fault but I'm wondering if anyone has a convenient workaround.

I print these things out and put 'em on the back of the WC to get through 'em all. (Thus my ablutions only allow me to comment on one brief every day or two. Least scatilogical reference I could imagine and although the dictionary denies the connotation I imply, the ads that come up on when you put in ablution are for colon cleansing so I think it works).

These briefs are taken out of the archaic brief size for the supreme court. The .pdfs all open as letter size pages with the text occupying barely more than 50% of the page. But if I tell acrobat to print 2 document pages per output page in layout mode, instead of getting reasonable size readable text better filling the page, it shrinks each lettersize page with all the wasted space to a half sheet so the text is smaller than even my 20/20 vision wants to deal with and there is still a similar percentage of wasted white space.

Now I favor whacking down as many trees as we can but I am still homo economus, and paper costs money. And worse from a cost/lack of benefit perspective, my laser printer counts up my pages and locks me out from printing once I have gone through a certain number of pages whether there is toner left or not. Then I have go down to Cartridge World and dicker with them to change the chip so I can keep printing until I actually run out of toner (often twice as many impressions as the printer would allow).

Anyway, nuff whining. I've tried changing the page size in acrobat reader and the full acrobat to no avail. It seems to recognize the new page size but instead of offering me the option to clip the existing page it just shrinks it whol including wasted white space. The part of the print driver I'm using that allows you to change the size at which the page prints and thus clip the document if you set a magnification larger large than the page size, but it doesn't work if printing thumbnails, i.e. more than one page of the document per output page.

Tried importing the pdf's into Indesign but it's clunky,(doesn't autoflow the pages as it would text, you can import the whole thing but you have to manually click at the head of each succeeding indesign page to have it place another page of the .pdf and in Bogus's brief -- although I haven't had this problem on every one -- it obviously came from a 'spread' formatted document and the extra white space keeps moving back and forth from left to right duplicating the differing relationship to the binding of successive pages) so that I would have to individually move the text and edit boundaries on every one of the 48 pages in order to then be able to print the document book style on 8.5 x 11.

Well, needless to say, I just printed it out as was, but I'm wondering if anyone has other workarounds I haven't considered. I suppose I could copy all the text since it is searchable and paste it into microsoft word. I'll try that next time and report.

Meanwhile, I'll get back to you on the content of the question after I have a couple bran muffins.

2.22.2008 1:25pm
M-K (mail):

Somewhat extensive experience with Acrobat leads me to believe that there is no good solution. The closest would be, as you suggest, to export the text to Word (rtf?) and reformat. Some of the briefs are image scans, so those would require OCR (in Acrobat Standard or Professional, Document > OCR Text Recognition), export, and reformatting--with a fair number of OCR errors.

A better solution would be to read them on a laptop.
2.22.2008 5:59pm
James Gibson (mail):
I am having trouble understanding the last two comments. Is this a discussion on the quality of the Ipod interview, the quality of the Various Heller briefs (for or against) or over what software someone needs on his computer. To Occidental Tourist, try Acrobat reader 8 pro. I use it all the time to copy from PDFs. As for OCR software, its only useful for Tiffs and other high end image files. I use Readris 11 for converting the Tiffs of the congressional record into word files. I can state I have a fine word file collection of the Federal debates on the original 1814 military draft law, and some sections of debate regarding the impact of the 1792 militia act. Which brings us back to the point, the quality of the Ipod interview.

First, Roger Sherman was the Senator from Connecticut, not Rhode Island. He was known as the most honest man in Congress by Jefferson and I have his this comment from him in regard to the 1792 militia act provision requiring the men of the nation to buy a firearm for militia duty.

Mr. Roger Sherman said it appeared to him, that by the Constitution, the United States were to be put to no expense about the militia, except when called into actual service. The clause is not so explicit as might have been wished; but it will be difficult to fix the construction mentioned by the gentleman from North Carolina. What relates to arming and disciplining means nothing more than a general regulation in respect to the arms and accountrements. There are so few freemen in the United States who are not able to provide themselves with arms and accountrements, that any provision on the part of the United States is unnecessary and improper. He had no doubt that the people, if left to themselves, would provide such arms as are necessary, without inconvenience or complaint; but if they are furnished by the United States, the public arsenals would soon be exhausted.

This is what OCR software is good for, putting the entire text before the people and not the streamlined text the gun controlists like to put forward. Federalist 46, gutted of all sentences pertaining to the Militia of the United States in the 9th circuit court's 2002 ruling. And then the selective rewrite of Federalist 29 by the City of Washington DC to change the meaning 180 degrees. The deletion of all references to the Militia of the United States in JCS Volume 57 when everything pertaining to militia was moved to Volume 6 in 1993.

There is a lot of deliberate mis-representation going on both in the Briefs and the blog postings. So what do I hear on the Ipod interview, polite disagreement over the English Bill of rights. Want to read on what they got wrong there, read Joyce Malcolm in the CATO Brief. She's the expert on that period. Then jump to the real issue of the Historian's Brief, this almost last paragraph, "This brief takes no position on how well armed Americans were, something historians are still trying to gauge. It assumes that many Americans owned firearms and expected them to remain relatively easy to obtain. What this brief does argue, however, is that these private aspects of the ownership of firearm never crossed the threshold of constitutional significance in 1787-1789". Can you say Bellisiles everyone.

How well armed they were is still being gauged. It wasn't even disputed until Bellisiles wrote his book which was immediately taken as an indisputable fact by these historians. Now that the book is discredited the Bellisiles faction still says its being gauged.

Well gauge this, I have compared the militia returns with the Federal census for 1800, 1810, 1820, and 1830. I find that the returns usually had close to 60% of the eligible male population on the roles with enough pistols, rifles and muskets to arm half of them. That means at a minimum (key word minimum) one out of every three men was armed in America prior to 1840. In reality, since we can't be sure that the men not on the roles were unarmed we easily could have on average half of all men owning some form of firearm.

Worse for the Bellisiles faction is this part of a speech by Tennessee Governor Blount to volunteers in 1812. "Very small bore rifles are not desirable for military service. It is recommended that none be taken along of less caliber than sixty balls to the pound". That means that men owned guns that because they were small caliber (Squirrel or coon guns) would not have been listed on the militia roles. Shotguns were almost never listed on the Militia returns (some exceptions) because they did not meet the 1792 law's requirements. So were there more guns in America then listed on the returns, you bet. But get these historians to say that. These are the facts that should be presented to the court to dispute the claims of the Bellisiles faction.
2.23.2008 12:23am
occidental tourist (mail):
Two 'stylistic' rules questions.

Did they grant Amici more pages? I thought you only get 30.

When citing a list of Amici on the cover, is there a convention as to how many you list before you get to et al.

"real danger of public injury from individuals" sounds like strict scrutiny to me. This provision illustrates the concern that abstract expressions of danger rather than probative concerns about the anti-social propensities or self-control of a specific individual are the underpinnings of legitimate firearms regulation under that forumulation.

Given that this formulation was part of the unavailing Pennsylvania dissent, it is interesting that they should choose to conclude their brief with such an affirmation.

I think they do well to style themselves as historians (there is one law professor amongst the 15 Amici) in juxtaposition to, say, 'Academics for the 2nd Amendment' which is an organization "formed by law school teachers". That said, this gives them no monoply on history, I just think they have defined the context from which they argue in an advantageous way.

I don't pretend to have more than a selective commmand of the history (although that is somewhat different than the notion of selective application) required to muster support for what I see as the glaring logical conundrum of Rakove et als argument.

If one accepts their contention that significantly more direct contention over the militia power indicates that there was not a widespread concern or founding intention to protect an individual right, one must first address the plain language adopted. Why was the right stated in the name of "the people" rather than either in the dual nature of the 10th amendment, or as Rakove et al suggest that history tells us to read the amendment as:

"A well regulated Militia, being necessary to the security of a free State, the right of the States to keep arms and the bearing of them by their militias, shall not be infringed."

Why did the plain language speak to the right of the people specifically. This appears to be the central argument of the law professors for the 2nd amendment. I look forward to that brief as today's reading.

As to the Rakove et al I think the militia context of the argument over the founders concerns, both in consequence of the preamble and the preponderance of congressional and popular debate over control of militia composition, training, and prerogatives, is certainly not to be dismissed or disregarded.

But if Shay's Rebellion somehow informed the debate as to the potential for militia to have irregular as well as regular outcomes, in a way that the founders thought they could explicitly posit as outside the republican consensus, they would never have granted this right to "the people".

They could have granted it to any qualifying for militia service as 'regulated'. One cannot presume the founders to possess such a significant precision and economy of language as they did and ignore this glaring linguistic puzzle. I guess that is a rhetorical point, as Rakove et al do just that.

As close as they come to addressing this argument are the concerns of Washington and others that a nationally regulated militia of the entire body of the people would be too cumbersome to train and keep in readiness. Thence we are given to understand that national governance over the composition of the militia was preserved by rejection of the house amendment to the draft 2nd amendent to add "composed of the body of the people" after "well-regulated militia".

But with the understanding that the federal government would be free to draw upon the body of the people to the depth it deemed sufficient in calling up the militia is neither mutually exclusive of the concept of the militia as a whole, where, say, the abled bodied freemen of ages 16-24 were called for training by the national government against some exigency and the remainder, considered to be a cumbersome addition to a lithe fighting force, would remain as the home guard; nor federalist recognition that a proposal to explicitly limit the right to arms to that portion of the citizenry that federal officials felt most relevant to the facile exercise of the federal militia power WOULD NEVER FLY.

Agree regarding Rakove et al'selective use of Federalist 46, a tactic that they, ironically, accuse proponents of the individual right of. Madison couldn't have said it any more clearly:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.

In opening and closing this thought, Madison speaks directly about people being widely armed as precedential to the notion that their concerns regarding the ambitions of a national government can find aid in the appointment of militia officers by subordinate governments.

This reflects the integral understanding that the power to resist tyranny was one fundamentally opposed by an armed populace.

Despite the arguable bias of this brief, it nonetheless argues on organic constitutional ground and perhaps the most important result of this case is to propel the issue of textual and originalist interpretation to the fore. Indeed the award for the MOST IRONIC CONTRIBUTION has to go to these historians banking on the argument that there could be no implicit guarantees as to the rights to arms for other purposes since no founder would have conceived of a federal right to regulate them other than as an application of the explicit militia power:

Outside the question of whether militia members would be armed at national, state, or personal expense, there was no credible basis upon which the national government could regulate possession of firearms.
(emphasis added)

How this concept could not apply to the founders understanding of the commerce clause is beyond me so these folks are either intellectually honest classic liberals truly concerned that the sweep and context of the founding inform our constitutional debate, or they are getting ready with a whole lot of duplicitious arguments about why the founders imagined that the people could be dispossessed of of a bit of wheat by federal statute but were blithely unware the federal government would ever see it as within the national purview to enact police power regulations over the possession of firearms.

Lastly, I mentioned that there was one law professor amongst the Amici although another participants implicitly as counsel. Professor Bogus is just the kind of law professor his own brief is cautioning against and has made some outrageous but clever public statements about the conservative nature of gun control claiming Edmund Burke for his authority that make his brief look a wealth of discretion by comparions. See Providence Journal here. and my response here.

And to conclude with Madison once more, it is just his understanding of what individual rights were to mean in a compound republic that gave him to understand not only that states served to protect individuals from federal tyranny, but the vice versa as well. As to the third branch enforcing this through incorporation of the bill of rights as against the state, that is a functional concept certainly not attached to Madison, but structurally the governments were set against one another. The exercise of state prerogatives holds no monoply on the protection of liberty, rather it is presumed that the contention for power between the governments in defining the limits to their powers enacted by the constitution, the bill of rights, and later amendments, that protects liberty:

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.
Federalist 51

2.23.2008 12:08pm