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aileron
02-04-2008, 11:14 AM
Here it is folks. Filed today. :)

http://dcguncase.com/blog/


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

February 4th, 2008 by Alan Gura

Washington, D.C.—Today, attorneys challenging Washington, D.C’s 31-year-old gun prohibition laws filed their written arguments in the U.S. Supreme Court. Washington, D.C. bans the possession of handguns outright, and further forbids rifles and shotguns from ever being operable in private homes for use in self-defense. The case, District of Columbia v. Heller, is named for Dick Anthony Heller, a private security guard who carries a gun at work, but cannot keep one at home to defend himself and his wife. “I’m fighting for the constitutional right of law-abiding individuals who live in dangerous communities to have a firearm to protect themselves and their families from rampant violent crime,” said Heller.

In March, the U.S. Court of Appeals for the District of Columbia Circuit declared D.C.’s gun prohibition laws to be unconstitutional. The city, with encouragement from the attorneys challenging the gun ban, asked the Supreme Court to review that decision. The Court agreed in November and set oral argument for 10 a.m. on Tuesday, March 18. A final decision is expected by June 30, 2008.

This historic brief marks the first-ever substantive merits argument filed in the Supreme Court on behalf of Second Amendment rights. In the only previous Supreme Court case addressing the Second Amendment, United States v. Miller (1939), the individuals claiming their rights were not represented by counsel and entered no appearance before the Court. This time, Second Amendment rights are being vigorously defended.

“The Second Amendment secures for Americans an individual right to defend themselves and their loved ones, at home, with ordinary firearms,” declared lead counsel Alan Gura of Gura & Possessky, P.L.L.C., who will argue the case before the Supreme Court. “The evidence of this simple truth is overwhelming, whether one looks at the Second Amendment’s text, structure, or history. When a fundamental right is at stake, the Supreme Court should rigorously scrutinize government regulations. And when a city tries to completely ban the exercise of a fundamental right, as Washington, D.C. has, the courts must step in and declare the law unconstitutional. If the D.C. ban is upheld, then every gun law, no matter how invasive, will be rubber-stamped by the courts and the Second Amendment will mean nothing,” added Gura.

“Residents of Washington, D.C. are not second-class citizens,” explained Clark Neily, co-counsel to the respondent and a Washington, D.C.-area public interest lawyer who specializes in constitutional litigation. “They enjoy the same right to defend themselves with ordinary firearms of their choice – including handguns – as the citizens of any other state, none of which bans handguns or functional long guns the way Washington, D.C. does.”



Robert Levy, a senior fellow in constitutional studies at the Cato Institute and also co-counsel to the respondent, stated, “The right to protect oneself in one’s home is among the most fundamental of all rights. The Second Amendment unambiguously states the ‘the right of the people to keep and bear arms shall not be infringed.’ It is time for the Supreme Court to recognize what the vast majority of Americans already recognize - namely, that the Constitution protects their right to keep commonly used firearms in their homes for lawful purposes.”

Filing.

http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf

AfricanHunter
02-04-2008, 11:17 AM
Time to start reading. Any news on the whole Solicitor General BS?

tmuller
02-04-2008, 11:21 AM
Well I certainly hope that the court sees this issue as clearly as I do and gets rid of the unconstitutional DC ban.

Piper
02-04-2008, 11:30 AM
"the Constitution protects their right to keep commonly used firearms in their homes for lawful purposes.

I really dislike this statement. Why can't they just say that the Constitution protects their right to keep commonly used firearms PERIOD. I spend the majority of my day outside and away from my home and the constitution protects that also.

bohoki
02-04-2008, 11:52 AM
I really dislike this statement. Why can't they just say that the Constitution protects their right to keep commonly used firearms PERIOD. I spend the majority of my day outside and away from my home and the constitution protects that also.

baby steps my friend

mymonkeyman
02-04-2008, 12:11 PM
I really dislike this statement. Why can't they just say that the Constitution protects their right to keep commonly used firearms PERIOD. I spend the majority of my day outside and away from my home and the constitution protects that also.

They said it because: A) That's what directly at issue in the case, that D.C.'s ban doesn't let you have functioning guns in the home. D.C.'s concealed carry ban has not been challenged. B) Good supreme court litigators know that (the current) supreme court justices likes issuing narrow rulings.

Also, I got all hot and bothered when they went straight for the comparison to the Copyright and Patent clause.

Liberty1
02-04-2008, 12:42 PM
Also, I got all hot and bothered when they went straight for the comparison to the Copyright and Patent clause.

But I did like the comparison to the Northwest Ordinance of 1787. The antis will be gagging over that one. :)

dfletcher
02-04-2008, 1:45 PM
Having read the brief, does it seem the attorney for Heller is writing for a narrow ruling (hence the "in the home" qualification) but providing enough historic background as to persuade the court to write a broader decision?

A "victory" for Heller alone would be a very narrow ruling which allows him to keep a single functional firearm in his home. Only one, and after having passed some basic test. I presume this would be sufficient to require Chicago change its handgun ban, but would not be otherwise good news for any of us.

I guess it's wait & see time.

Liberty1
02-04-2008, 1:51 PM
but would not be otherwise good news for any of us.

The good news, even with a narrow decision in our favor, is that we would then have more solid ground on which to advance the next question.

Fjold
02-04-2008, 2:09 PM
Interesting reading. A very good history lesson for everyone and should be required reading in high school history class.

It certainly is "baby steps", besides no challenge to bear outside the home they concede all the NFA restrictions as "reasonable" also.

Ironchef
02-04-2008, 2:10 PM
Yeah, i don't like the "common" language in that argument. There's nothing common about the guns we all keep. It gives the anti's their first order of business as soon as the 2a is freed from bondage in that they will start making the list of what is common and what is not..and since they don't usually know jack about ANY firearms, they all become uncommon..except for that beautiful kentucky rifle used in Last of the Mohicans..which will be commonly accepted.

mymonkeyman
02-04-2008, 2:21 PM
Having read the brief, does it seem the attorney for Heller is writing for a narrow ruling (hence the "in the home" qualification) but providing enough historic background as to persuade the court to write a broader decision?

A "victory" for Heller alone would be a very narrow ruling which allows him to keep a single functional firearm in hishome. Only one, and after having passed some basic test. I presume this would be sufficient to require Chicago change its handgun ban, but would not be otherwise good news for any of us.

I guess it's wait & see time.

No matter what happens in Heller, the SCOTUS decision is not going to have direct application to State bans. That's because the 2nd amendment applies only directly to the Feds. To apply the bill of rights to the states, they must be "incorporated" through the 14th amendment. The test is whether or not the right is a "fundamental right," i.e. that it is "implicit in the concept of ordered liberty." Since D.C. is not a state, it is simply not at all an issue in the case. Also, if a state constitution has a similar clause as the 2nd amendment, the state court would not at all be bound to interpret it similarly to how SCOTUS interprets the 2nd amendment.

Almost, but not all of the Bill of Rights have been incorporated, such as the 7th amendment's guarantee of jury trials in civil cases, the 5th amendment's guarantee of an indictment before criminal prosecution, and the 6th amendment's requirement of a unanimous jury verdict in a criminal case.

No case has held the 2nd amendment to be incorporated. SCOTUS had rejected applying the 2nd amendment to the states prior to the incorporation doctrine, but has not addressed it since the incorporation doctrine was created.

Obviously, the question of whether you view the 2nd amendment as "implicit in the concept of ordered liberty," probably entirely and solely depends on whether you are pro-gun or anti-gun.

Of course, if Heller strikes down the DC ban, it is likely SCOTUS will have to address the incorporation issue, because it is likely that some state courts and federal appellate courts (e.g. Cal. Supreme Ct. & the 9th Circuit) would likely hold no incorporation, whereas probably some state or appellate court (e.g. 4th & 5th Circuit, or any state therein) would probably hold it to be incorporated. The real key will be to find a state or city somewhere with a conservative state or federal court with a real bad gun law that would obviously be stricken down under Heller. I think the best candidates for test cases would be Chicago's handgun ban with the 7th Circuit, and Maryland's Handgun Roster & "Assault Weapon" ban with the 4th Circuit.

Of course, those federal courts could rule against incorporation even though they are conservative. Also, SCOTUS could deny review necessary for a nation-wide holding (like how it denied review of all 2nd amendment cases for the almost 70 years between Miller and Heller).

Even if the incorporation question gets to SCOTUS, it could side the extreme right of the court (Scalia, Thomas) with the left side of the court. That's because Scalia and Thomas don't like the incorporation doctrine.

mymonkeyman
02-04-2008, 2:27 PM
Yeah, i don't like the "common" language in that argument. There's nothing common about the guns we all keep. It gives the anti's their first order of business as soon as the 2a is freed from bondage in that they will start making the list of what is common and what is not..and since they don't usually know jack about ANY firearms, they all become uncommon..except for that beautiful kentucky rifle used in Last of the Mohicans..which will be commonly accepted.

They don't argue that Congress or the D.C. gov't can decide what is "common," but rather that courts must categorically decide that the guns are common or not common. This is a good thing because it focuses on function and actual possession by citizens, rather than value judgments by legislatures.

For example, the AR-15 is the most commonly owned center-fire rifle in the US. It is categorically part of the group of rifles, which are commonly descended from the Rifles at the time of the Framers. Therefore banning it is a violation. Pistol grips and collapsible butt-stocks don't fit into the equation as relevant justifications to ban. (Note: If Heller goes our way, but Congress passes a new AW ban, a central and somewhat plausible argument for their side will be distinguishing semi-autos and regular rifles in "lineage" from firearms at the time of the Framers.)

Scarecrow Repair
02-04-2008, 2:32 PM
I notice several definitions of militia as all able boded males 18-50, 17-45, etc.

Is it possible this might make us old farts ineligible to keep and bear arms? I am not asking about the expected outcome, but as a twisted side effect, a sort of spasm revenge of the gun grabbers. For instance, if DC were to revise their law to only apply to households where any occupants were older than 50.

mblat
02-04-2008, 2:36 PM
I notice several definitions of militia as all able boded males 18-50, 17-45, etc.

Is it possible this might make us old farts ineligible to keep and bear arms? I am not asking about the expected outcome, but as a twisted side effect, a sort of spasm revenge of the gun grabbers. For instance, if DC were to revise their law to only apply to households where any occupants were older than 50.

No, that would be age discrimination..... and that verboten...

dixieD
02-04-2008, 2:36 PM
I notice several definitions of militia as all able boded males 18-50, 17-45, etc.

Is it possible this might make us old farts ineligible to keep and bear arms? I am not asking about the expected outcome, but as a twisted side effect, a sort of spasm revenge of the gun grabbers. For instance, if DC were to revise their law to only apply to households where any occupants were older than 50.


We'll need to get AARP to file an amicus brief;)

aileron
02-04-2008, 2:47 PM
I notice several definitions of militia as all able boded males 18-50, 17-45, etc.

Is it possible this might make us old farts ineligible to keep and bear arms? I am not asking about the expected outcome, but as a twisted side effect, a sort of spasm revenge of the gun grabbers. For instance, if DC were to revise their law to only apply to households where any occupants were older than 50.

No because they are asking whether you have to be in a militia to possess a firearm. Gura is establishing militia because the other side is trying to nullify it. If it goes our way, its moot.

hoffmang
02-04-2008, 3:56 PM
mrmonkey,

I'd suggest using search to , but 14th incorporation is going to be relatively straightforward. It will happen in the 9th Circuit following logic from a footnote in Silveira or it will happen in Chicago vis-a-vis their handgun ban.

-Gene

mymonkeyman
02-04-2008, 5:06 PM
mrmonkey,

I'd suggest using search to , but 14th incorporation is going to be relatively straightforward. It will happen in the 9th Circuit following logic from a footnote in Silveira or it will happen in Chicago vis-a-vis their handgun ban.

-Gene

Thank you for suggesting that I use search, your belief in Silveria as binding in any way is severely misplaced. Firstly, extensive dicta in a footnote on an issue not addressed has absolutely no binding effect, and no judge later addressing the issue is required to follow the logic. Secondly, the footnote is actually substantively wrong in multiple respects, and reflects more Reinhardt's rhetoric than actual substantive legal reasoning. When Reinhardt says "[Presser and Cruikshank] were decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment's Due Process Clause" he is A) implying a falsehood because the SCOTUS has never held the entire Bill of Rights is incorporated, B) criticizing a prior 9th Circuit Opinion's reasoning on that point even though by 9th Circuit rules, the prior decision would actually be the one binding, C) espousing his own personal viewpoint that all of the bill of rights should be incorporated (other than that nasty 2nd amendment which he basically holds doesn't exist) D) espousing his own personal (repeatedly reversed by SCOTUS) viewpoint on how and when Supreme Court opinions are binding.

Incorporation is a live issue and a serious one. No matter what precedent exists before, the question of incorporation depends on the scope of the right, which depends on the answer in Heller. Essentially, there is no precedent.

This of course ignores other prudential limitations like standing.

CCWFacts
02-04-2008, 5:53 PM
I know the court is not taking up the "bear" question in this case, but the brief sure spends a lot of time talking about it. I like that because the "bear" issue is my personal hobby.

Also, this thing about "ordinary" arms: these are arms that are ordinary for both common use, and for military use. I would say that an M4, for example, is a perfectly ordinary military arm, and an example of a perfectly ordinary general use arm, because it's suitable for defensive use, target use, training, and (to some extent) hunting, all ordinary uses and activities.

Nodda Duma
02-04-2008, 6:14 PM
By the way, the Petitioner's brief (DC) can be read here:

http://www.csgv.org/atf/cf/%7B23E96A35-4C75-41EE-BDDD-4BD3A3B59010%7D/DC%20Heller%20Brief.pdf


Good to know both sides of the argument, and what Heller's argument is in response to. Personally, I think DC's argument is hogwash.

-Jason

aklover_91
02-04-2008, 6:27 PM
I know the court is not taking up the "bear" question in this case, but the brief sure spends a lot of time talking about it. I like that because the "bear" issue is my personal hobby.

Also, this thing about "ordinary" arms: these are arms that are ordinary for both common use, and for military use. I would say that an M4, for example, is a perfectly ordinary military arm, and an example of a perfectly ordinary general use arm, because it's suitable for defensive use, target use, training, and (to some extent) hunting, all ordinary uses and activities.

I submit to you that arms is a very broad and general term, and as the amendment doesn't state specifically what kind of arm, any weapon could conceivably be protected by the amendment.

Unless the weapon poses serious risk simply by existing, like a leaky nuke or some bio/chem weapon, there ain't really any grounds to regulate or control jack ****.

Until 'arms' stops meaning weapons, I don't see how anything can be controlled.

duenor
02-07-2008, 9:02 AM
sigh*
I would be incalculably happy if they'd allow me to carry a single-action 45 LC. Heck, Id be happy with cap and ball, concealed.

hoffmang
02-07-2008, 3:27 PM
Thank you for suggesting that I use search, your belief in Silveria as binding in any way is severely misplaced. Firstly, extensive dicta in a footnote on an issue not addressed has absolutely no binding effect, and no judge later addressing the issue is required to follow the logic. Secondly, the footnote is actually substantively wrong in multiple respects, and reflects more Reinhardt's rhetoric than actual substantive legal reasoning. When Reinhardt says "[Presser and Cruikshank] were decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment's Due Process Clause" he is A) implying a falsehood because the SCOTUS has never held the entire Bill of Rights is incorporated, B) criticizing a prior 9th Circuit Opinion's reasoning on that point even though by 9th Circuit rules, the prior decision would actually be the one binding, C) espousing his own personal viewpoint that all of the bill of rights should be incorporated (other than that nasty 2nd amendment which he basically holds doesn't exist) D) espousing his own personal (repeatedly reversed by SCOTUS) viewpoint on how and when Supreme Court opinions are binding.

Incorporation is a live issue and a serious one. No matter what precedent exists before, the question of incorporation depends on the scope of the right, which depends on the answer in Heller. Essentially, there is no precedent.

Clearly you are unfamiliar with the actual case history of the cases that would support the viewpoint that the 2nd isn't incorporated. I dare the 9th Circuit to hold that the Colfax Massacre - "The bloodiest single instance of racial carnage in the Reconstruction era" remains good law. I'm also well aware that Reinhardt's comments are dicta, but you did notice they are Reinhardt's, right?

This of course ignores other prudential limitations like standing.
Limits based on the Second Amendment being not an individual right. Getting civil standing is the easy part. I can think of (and have completed one) two ways off the top of my head.

-Gene

Liberty1
02-08-2008, 6:28 AM
sigh*
I would be incalculably happy if they'd allow me to carry a single-action 45 LC. Heck, Id be happy with cap and ball, concealed.

Please don't lower the threshold of "incalculably happy" any lower then an M4 peacefully slung over your shoulder with it's friend, the side arm, snugly enclosed in a holster on your hip. :D

mymonkeyman
02-08-2008, 9:59 AM
Clearly you are unfamiliar with the actual case history of the cases that would support the viewpoint that the 2nd isn't incorporated. I dare the 9th Circuit to hold that the Colfax Massacre - "The bloodiest single instance of racial carnage in the Reconstruction era" remains good law. I'm also well aware that Reinhardt's comments are dicta, but you did notice they are Reinhardt's, right?

The Colfax Massacre isn't law. United States v. Cruikshank is law. US v. Cruikshank has been overruled in at least part, because other amendments have been incorporated. But SCOTUS has repeatedly said that even if a prior decision has been undermined by subsequent decisions (i.e. the development of the incorporation doctrine), a Supreme Court's holding on a particular point of law (i.e. 2nd amendment inapplicability to the States) until overturned. "[I]t remains 'this Court's prerogative alone to overrule one of its precedents.' [citation]. That is so even where subsequent decisions or factual developments may appear to have 'significantly undermined' the rationale for our earlier holding." Roper v. Simmons, 543 U.S. 551, 594 (U.S. 2005).

Rheinhardt doesn't like that rule, so he frequently ignores it. It doesn't mean he is right. You have to understand, Rheinhardt isn't just very liberal, he's a very bad jurist at basics of procedure and constantly cuts corners to get whatever decision that he wants. That's why SCOTUS repeatedly issues per curium reversals of his opinions, they are trash.

EVEN IF the lower courts conclude Cruikshank has been overturned (or if an incorporation case goes to SCOTUS, who will almost undoubtedly conclude that its reasoning no longer applies), you still have the problem of addressing whether the 2nd amendment is a "fundamental right" "essential to a fundamental scheme of ordered liberty." Rheinhardt certainly didn't say it was, no court has held it is, and I doubt the answer of most liberal jurists would be yes. Even conservative justices may not give you the answer you like, as Thomas and Scalia both don't like modern incorporation clause jurisprudence.


Limits based on the Second Amendment being not an individual right. Getting civil standing is the easy part. I can think of (and have completed one) two ways off the top of my head.

It's not called "civil standing." It's called Article III case or controversy standing. You are right that some cases would be easier than others. You can take the Heller route and apply for permits where the statute allows that (e.g. in California apply for MG, DD, or SBS/SBR (only if Miller gets explicitly overturned in Heller), AW (after recieving title via bequest or intestate succcession to a registered AW), etc). But that mechanism is not available in all cases, e.g. the roster of handguns.