DC vs HELLER Reply Brief is in

[Stubby]

Here it is, hot off the SCOTUS Blog press:

http://www.scotusblog.com/wp/wp-content/uploads/2008/03/07-290rb.pdf

[Adonlude]

I am not a legal type, could someone please explain what this is and what it means? Is this written by the supreme court or by the gun grabbers to the supreme court?

Thanks :confused:

[dasmi]

That's DC's brief to the court.

[yellowfin]

I read through the first part of it, and it's well put together for what it is, but it's a well polished pile of nonsense. After following this for so long it's now just making me steamed under the collar.

[tgriffin]

I just got finished reading that... first impressions are that it is SIGINIFICANTLY better written than their initial brief. The arguments are logically tighter, more convincing, and rely far more heavily on history to establish Framers original intent as argument to counter respondent's (Heller) brief.

This has me worried. I can't speak for the validity of the historical accounts and examples of Framers original intent (as presented), but I can say if they havent been manipulated to the point of misrepresentation, our side has its work cut out for them.

If I had to put money down, I would wager SCOTUS will tire quickly of ad nauseum supposedly 'contextual' representations of Framers original intent, and that will hurt DC's case. I still think that our side has the advantage in solid, demonstratable, logic & dicta over our opponents.

So bottomline: its my opinion that the other side has stepped up their game considerably, and is playing the "history" card to their benefit (I cant say how effectively), and has taken the contest to our sides door. The good news: our opponents interpritation of the historical events (state militia/no federal intervention with states matter) lacks in my opinion the reasonable logic that our side (vs individual right/people rising against gov oppression) has, at least from the popular historical understanding of events: a group of citizens rose up and organized to fend of british colonial oppression (ergo Framers would want to protect that ability for subsequent generations of Americans). The better news: they weren't able to shoot to @#$% our sides logic and arguments outright: they, as I read it, are relying HEAVILY on logic that might be rendered moot by stare decisis early on in the process of the judges debates.

[bulgron]

Sorry, but I'm constantly seeking to improve my lawyer-speak. What is 'stare decis'?

[Patriot]

Sorry, but I'm constantly seeking to improve my lawyer-speak. What is 'stare decis'?

Latin for "stand by the decision" or "let the decision stand"

[tgriffin]

Sorry, but I'm constantly seeking to improve my lawyer-speak. What is 'stare decis'?

Sorry I was typing quickly. It is "stare decisis". Im not a lawyer, I just spend too much time around them (not to mention here). The full term is "stare decisis et non quieta movere" which means "stand by decisions and do not move that which is quiet". In other words, as it applies to this case, and as I understand it, SCOTUS may decide to agree with certain decisions or precedent established by prior cases, such as portions of the appellate courts ruling on Parker v. DC. If, again this is an "IF" I understand it correctly, SCOTUS agree's with one particular fact or legal concept from a previous case, and that decision undermines the logic of, or invalidates one of DC's arguments, then theoretically, any subsequent logical argument that DC built upon that concept might go out the window. Think of a house of cards, which I fell is a fair description of how DC has built its case, if one of the "base" cards is removed (or any in middle really) the rest of the cards fall.

Example: DC contends as a result of "A", "E is true". DC makes the argument thus: Given "A" , "B" must be true. Since "B" = "C", & given "C", "D" must be true as well. "D" = "E" so as a result of "A", "E" is true.

If a lower court rules that given "A", "B" in fact is NOT true, and SCOTUS agree's with them, it doesnt matter what "B", "C", or "D" are, "E" is not true as a result of "A".

This only works if principles are built upon one another in the argument. I feel several area's of DC's argument are co-dependant in that manner, and as such are susceptible to the "house-coming-down-around-them" if SCOTUS holds one of principles of argument invalid by agreeing stare decisis with the previous decision.

I hope that makes sense, and that I'm not making an *** of myself. I'm sure Rob or one of the other lawyers will be by shortly to put me in my place if I am.

[edwardm]

Implied within the DC brief is that they apparently find it impossible for the government to ever act extra-Constitutionally, such that force would otherwise be required to restore Constitutional government.

How their counsel managed to draft and publish this, with straight faces no less, baffles and confounds me.



I just got finished reading that... first impressions are that it is SIGINIFICANTLY better written than their initial brief. The arguments are logically tighter, more convincing, and rely far more heavily on history to establish Framers original intent as argument to counter respondent's (Heller) brief.

This has me worried. I can't speak for the validity of the historical accounts and examples of Framers original intent (as presented), but I can say if they havent been manipulated to the point of misrepresentation, our side has its work cut out for them.

If I had to put money down, I would wager SCOTUS will tire quickly of ad nauseum supposedly 'contextual' representations of Framers original intent, and that will hurt DC's case. I still think that our side has the advantage in solid, demonstratable, logic & dicta over our opponents.

So bottomline: its my opinion that the other side has stepped up their game considerably, and is playing the "history" card to their benefit (I cant say how effectively), and has taken the contest to our sides door. The good news: our opponents interpritation of the historical events (state militia/no federal intervention with states matter) lacks in my opinion the reasonable logic that our side (vs individual right/people rising against gov oppression) has, at least from the popular historical understanding of events: a group of citizens rose up and organized to fend of british colonial oppression (ergo Framers would want to protect that ability for subsequent generations of Americans). The better news: they weren't able to shoot to @#$% our sides logic and arguments outright: they, as I read it, are relying HEAVILY on logic that might be rendered moot by stare decisis early on in the process of the judges debates.

[bulgron]

Implied within the DC brief is that they apparently find it impossible for the government to ever act extra-Constitutionally, such that force would otherwise be required to restore Constitutional government.

How their counsel managed to draft and publish this, with straight faces no less, baffles and confounds me.

It's a pretty socialistic idea, isn't it, that government can do no harm.

I'm sure more than one socialist is pushing these arguments from the D.C. side. Good news is, I don't get the impression that very many of the SCOTUS justices are socialists, or even lean that way.

But the idea of an armed masses is pretty frightening to the people sitting on top of the social-economic pyramid -- far more frightening than the idea of random violence or even government-supplied violence since they tend to be very well protected by the state's monopoly on force. Consequently, it's still anyone's guess how the court will rule on this one.

[bulgron]

I hope that makes sense, and that I'm not making an *** of myself. I'm sure Rob or one of the other lawyers will be by shortly to put me in my place if I am.

Given that I have a background in math and logic, what you write makes perfect sense to my non-lawyerly mind. What I don't know is the latin; I never did study latin much to my mother's dismay.

Thanks much for the explanation! :)

[Rob P.]

The reply brief has several flaws in logic.

First is the premise that there are 3 reasons to reverse the DC decision.

Their first reason (that it's a militia right) is pretty much counter to what is accepted. SCOTUS could agree with them but it's not likely given the phrasing of the issue by SCOTUS. The discussion also raises the illogical argument that an armed populace is supposed to be under gov control so that the armed populace CAN'T rebel against the gov. Which is directly counter to the Federalist papers and reasons for the creation of the amendment.

Their second reason is patently ridiculous. It's an argument that the 2d was not incorporated therefore it's a states rights issue and applicable to DC. DC is NOT a "state" therefore "state's rights" don't apply to it under the consititution. DC has no representatives in Congress because it is NOT a State. DC operates under FEDERAL law so laws which are applicable only to states do not apply to DC. Raising the argument that DC is entitled to restrict handguns because states can do so avoids the obvious.

The third argument is also ridiculous in that they're are saying that banning some weapons is perfectly OK because the amendment doesn't grant unlimited rights to own whatever one wants to. This is directly counter to Miller because the weapons they want to ban are those which SCOTUS has already deemed appropriate for citizens to have since these weapons ARE in normal use with the military. Secondly, the ban being challenged is a restriction on ALL firearms and not just "some". While it has pretty much been conceded that rifles and shotguns aren't covered by the constructive ban the restriction on how these firearms can be possessed goes beyond the rationale that "some firearms" can be "restricted" because the restriction applies to ALL firearms in ALL situations.

They are really reaching because I feel that they are quaking in their boots thinking that their precious handgun ban is about to go bye-bye. They are afraid that is that happens they and the Brady's are going to look EXTREMELY stupid to the voters.

BTW, "stare decisis" just means that some court somewhere already decided that particular issue so it is not in controversy or debateable. The higher the court, the less likely the previous decision can, or would, be overturned or re-decided in some other way.

[razorx]

I love this one from the brief.

"Since the Founding, state governments have extensively regulated private uses of guns. Liberty and justice have survived for two centuries despite the courts’ consistent refusal to recognize as “fundamental” the right respondent asserts here. See, e.g., United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (the “right to possess a gun is clearly not a fundamental right”)."

I can't even begin to understand why they would make such an idiotic statement. One could use this to justify every law created for the past two "centuries" under the guise of "liberty and justice have survived..." Reminds me of the line in the last Matrix movie similar to "there are levels of survival we are willing to accept". Define "survived".

One could also contrarily argue that it is evident that DC handgun ban is not necessary since "liberty and justice have survived..."

It is silly statements like this that can undermine their position by obviously displaying their irrational bias. If there are three good rationales for a position, don't add a fourth if it is weak and even worse, petty. Each rationale should stand on it's own, but the fourth can drag down the other three.

[Patriot]

I love this one from the brief.

"Since the Founding, state governments have extensively regulated private uses of guns. Liberty and justice have survived for two centuries despite the courts’ consistent refusal to recognize as “fundamental” the right respondent asserts here. See, e.g., United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (the “right to possess a gun is clearly not a fundamental right”)."

They're arguing something very specific here. One of the criteria SCOTUS has set forth in the past and used since in deciding which "rights" are "fundamental rights" is

neither liberty nor Justice would exist if they were sacrificed

Which, IIRC, is from an older case Palko v Connecticut.

Their argument, accordingly, is that

the “right to possess a gun is clearly not a fundamental right”

[Bucc]

Implied within the DC brief is that they apparently find it impossible for the government to ever act extra-Constitutionally, such that force would otherwise be required to restore Constitutional government.

How their counsel managed to draft and publish this, with straight faces no less, baffles and confounds me.

After hearing Henry Waxman say he found it alarming that Americans would think they ever needed a gun to defend themselves from the government I can't be baffled by it.
If the guys who run the government insist they and their increasingly militaristic police and actual military are of no threat the the US in the face of numerous persons in the various Legislatures calling for an end to posse comitatus then I'm not surprised by anything they say or their minions do.

I'm not optimistic on Heller.
Not after the same group of criminals upheld walmart stealing your house for "the betterment of the community at large" in Kelo.
I say good luck to us.

[hoffmang]

The difference between Kelo and Heller is that there was a long line of SCOTUS cases that showed that Kelo was likely to be decided the way it was.

If you apply that logic to Heller, there is only one case - where the defendant wasn't represented, and it still went basically our way. The US made DC's argument in Miller and lost. See http://www.hoffmang.com/firearms/us-miller-brief.pdf

Though I agree this was better written, they're still horribly wrong on the history. Our side's historians can illuminate that well if anyone is interested: http://www.gurapossessky.com/news/parker/documents/07-290bsacAcademicsforSecondAmendment.pdf

Then there is the Tribe/WSJ conspiracy...

-Gene

[Solidmch]

I read through the first part of it, and it's well put together for what it is, but it's a well polished pile of nonsense. After following this for so long it's now just making me steamed under the collar.

They are trying to polish a turd.

[Scarecrow Repair]

They're arguing something very specific here. One of the criteria SCOTUS has set forth in the past and used since in deciding which "rights" are "fundamental rights" is

neither liberty nor Justice would exist if they were sacrificed

Which, IIRC, is from an older case Palko v Connecticut.

Their argument, accordingly, is thatthe “right to possess a gun is clearly not a fundamental right”

Deacons for Justice! Deacons for Justice!

There's a PRIME example of guns being necessary for liberty and justice.

[Sleepy1988]

They're arguing something very specific here. One of the criteria SCOTUS has set forth in the past and used since in deciding which "rights" are "fundamental rights" is

neither liberty nor Justice would exist if they were sacrificed


Which, IIRC, is from an older case Palko v Connecticut.

Their argument, accordingly, is that

the “right to possess a gun is clearly not a fundamental right”




Isn't their argument correct here then? What example of firearms being employed against the government to preserve liberty and justice on a large scale could the plaintiff side site?

[alpha_romeo_XV]

What is a “brief”?

For those of us that have had the “pleasure” of having your case taken to the appellate court, an appeals hearing, be it a circuit court, a state supreme court, or the US supreme, it is essentially “tried” by the written briefs - one from each side. One brief by the petitioner and the other is a “reply”. It is not a venue for either side to present new evidence or testimony (direct/cross). The oral arguments are really just a formality. The panel will have read the briefs prior to hearing and absolutely made up their minds. Questions to each side's counsel are really just a way to “rub it in” i.e. asking questions whose very nature exposes the points of law that are the basis for the decision.

Decisions can be split. My 9th circuit case (reply by me) was 3 – 0 in my favor. I was awarded “costs” as a matter of process. A “fees” award would have required additional hearing back in a trial court to decide. It is a perverted, if not sadistic system that grants a respondent $300 in “filing costs”, but then says “go spend more $ on a lawyer” to recover the $30,000 in “attorneys fees” the petitioner’s action just bled you out of. Full knowing the whole point of the appeal was just to bleed you in the first place.

The case under discussion here, at least, is not motivated by money or revenge, but surly to answer a fundamental human rights issue.

[Patriot]

Finally, the right to own particular weapons for
private purposes is not “so rooted in the traditions
and conscience of our people as to be ranked as fun-
damental [and] implicit in the concept of ordered lib-
erty, such that neither liberty nor justice would exist
if they were sacrificed.” Washington v. Glucksberg,
521 U.S. 702, 721 (1997) (citations and quotation
marks omitted). Since the Founding, state govern-
ments have extensively regulated private uses of
guns. Liberty and justice have survived for two cen-
turies despite the courts’ consistent refusal to recog-
nize as “fundamental” the right respondent asserts
here. See, e.g., United States v. Toner, 728 F.2d 115,
128 (2d Cir. 1984) (the “right to possess a gun is
clearly not a fundamental right”). This Court should
decline the invitation to protect that right and si-
multaneously elevate it to fundamental status. See
ChiBr16-20 (not fundamental under selective incor-
poration doctrine).

This the full paragraph from DC's brief. My understanding is that the citation from Washington v Glucksberg combines three criteria SCOTUS has established over the years as a test for determining whether something is a fundamental right:

-"implicit in the concept of ordered liberty" (Palko v Connecticut [1937])
-"neither liberty nor justice would exist if they were sacrificed" (Palko)
-"deeply rooted in this Nation's history and tradition" (Moore v East Cleveland [1977])

SCOTUS has used one or more of these criteria in quite a few decisions. I can't really make an acceptably informed comment on their merit or applicability to Heller (being very much a layman/student when it comes to law).

I do feel that it would be both tragic and absurd if a test designed to justify SCOTUS' "creation" of unenumerated rights ended up being the basis for a ruling that made the clearly enumerated RKBA - in effect - a "second class" right.

[SvenFrost]

Isn't their argument correct here then? What example of firearms being employed against the government to preserve liberty and justice on a large scale could the plaintiff side site?

Just off the top of my head...

1. The American Revolution - the Battle of Lexington and Concord took place April 19, 1775, when the British sent a regiment to confiscate arms and arrest revolutionaries in Concord. The "Revolutionaries" were upset about a series of crippling taxes and "Intolerable Acts," including one which altered the Massachusetts charter and restricted town meetings (freedom of speech issue). See http://en.wikipedia.org/wiki/American_Revolution#Intolerable_Acts_1774

2. The Polish Warsaw Ghetto Uprising of 1944 - where poorly armed Jews attempted to stop the transport of the remaining ghetto population to the Treblinka extermination camp. Until they were crushed by Jürgen Stroop. They were too poorly armed and you know the result. See http://en.wikipedia.org/wiki/Warsaw_Ghetto_Uprising

It could NEVER happen here, right? Google "eugenics" which was practiced in the US and California through at least the late 1960's.

Not a dig, but those who forget history are doomed to repeat it.

Best,
Sven

[Scarecrow Repair]

Just off the top of my head...

AND the Deacons for Defense and Justice, who used arms to keep the KKK infested city, county, and state governments at bay 1964-1969. It really can't be beat as a recent example of using guns to preserve liberty and justice. Both sides try to ignore it: conservatives because it was armed blacks, and liberals because they used guns.

[Inoxmark]

Methinks each judge has long since decided where they stand on the issue and no briefs or brilliant oral arguments are going to change a thing. We just don't know the score yet.

[SvenFrost]

Did anyone else notice that Tribe's WSJ op-ed piece from March 4, 2008 is cited in a brief filed March 5, 2008. I wonder...

-Sven

[BillCA]

I could only get so far into the brief before my dinner wanted to make a reappearance. :puke: But I did manage to get part way through their argument about the militia and the "well disciplined militia..." clause.

D.C. makes three arguments for their case;
1: Interpretation of 2nd is militia rights because that makes sense to us.
2: It's a state's right issue cleverly disguised as a right "of the people" and since we're not a state, it doesn't apply to us anyhow, whatever it guarantees. We're special.
3. You don't get a choice of what you can have under the 2nd. If we decide a weapon is too dangerous for citizens to have, well, we can ban it as long as we leave you something else. Like a .17 caliber rimfire short single-shot, break-open rifle weighing 13 lbs. :rolleyes:

Okay, that's my initial take on their argument summary.

As they argued against the individual right, I made some personal comments in my notes;

D.C. admits to the concept of militia being citizen-soliders in at least 2 places up front;

Many viewed a professional standing army as a threat to liberty, preferring to keep military force in the hands of "the people," assembled as citizen-soldiers


The militia— considered in this very real sense to be "the people"—would temporarily put aside their livelihoods to take up arms when called to defend their communities.
Of course, D.C. will argue the state would issue and then recover all weapons used for a militia, like some kind of statewide armory. One only need to consider the difficulty of dispersal and transport of arms in 1787 to understand that a broke & fledgling country could not afford a network of armories.


One clause of the Constitution was thus a lightning rod for criticism: Article I, § 8, cl.16, which gave Congress the power "to provide for organizing, arming, and disciplining, the Militia." The notion that the distant national government could "provide for [the] . . . arming" (and thus effectively the "disarming") of the militias became "a topic of serious alarm and powerful objection." 3 Joseph Story, Commentaries on the Constitution of the United States § 1201, at 84 (1833).
The main concern was that congress could simply neglect the militia altogether (as it has actually done) and render it legally and effectively impotent.


As its text makes clear, the Second Amendment directly responded to this grant of power. The
Amendment prevents Congress from interfering with the right of the people of each state to arm a well regulated militia composed not of professional soldiers, but of the people themselves.
If this be true, what then is the difference between congressional neglect and neglect by the state legislatures? Shall we always trust one but not the other? To trade a national tyranny for a local one?


Respondent and the United States offer competing readings of the Amendment which are not only
unsupported by its text and history, but utterly at odds with both. Respondent’s proposed right of insurrection turns history on its head: states wanted to maintain control over the arming of their militias to defeat, not to promote, rebellion. And the United States’ reading engrafts onto the Amendment a freestanding personal liberty right unrelated to any state’s ability to maintain a militia.

If states feared the interference or tyranny of a national government run amok and wished to maintain control over their own militias, would this not promote rebellion against an over-reaching federal institution? Or is D.C. arguing that rebellion is only within the province of governments and not of the people so bitterly oppressed?

At about this point I couldn't take the palpable elitist tone of the brief and had to stop. I'll try again after dinner digests. :cool:

[Inoxmark]

The right of the people to keep and bear arms in connection with militia service was a preexisting right, recognized by states prior to the Founding in an effort to provide for their defense. Massachusetts and North Carolina, for instance, recognized the right of the people to “keep and bear
arms for the common defense” and “to Bear Arms, for the Defense of the State.”This logic doesn't make any sense at all. So if drafted or called for service "for the Defense of the State" only then an individual would have a "right" to bear arms? What kind of right is it, that you cannot refuse it? Seems that there are (and pretty much always have been) laws that harshly punish those that choose not to exercise this so called "preexisting right".

At this point if there's one thing I am sure of, it's this: should the decision not go our way, the minority's dissent would be brilliant.

[sierratangofoxtrotunion]

This logic doesn't make any sense at all. So if drafted or called for service "for the Defense of the State" only then an individual would have a "right" to bear arms? What kind of right is it, that you cannot refuse it? Seems that there are (and pretty much always have been) laws that harshly punish those that choose not to exercise this so called "preexisting right".

At this point if there's one thing I am sure of, it's this: should the decision not go our way, the minority's dissent would be brilliant.

That sounds like the "right to be issued a rifle when you're drafted." That's... kind of absurd. Why else would you be drafted? To be cannon fodder?

[Glock22Fan]

2. The Polish Warsaw Ghetto Uprising of 1944 - where poorly armed Jews attempted to stop the transport of the remaining ghetto population to the Treblinka extermination camp. Until they were crushed by Jürgen Stroop. They were too poorly armed and you know the result. See http://en.wikipedia.org/wiki/Warsaw_Ghetto_Uprising

As I remember it, a handful of poorly armed citizens kept the might of the German empire, including tanks and the Waffen SS, at bay for several weeks (two months?). I believe that the German High Command was tearing its hair out. Unsuccessful perhaps, but a mighty effort for all that.

Proof of the value of armed citizens against repression or guerilla forces generally.

[Glock22Fan]

That sounds like the "right to be issued a rifle when you're drafted." That's... kind of absurd. Why else would you be drafted? To be cannon fodder?

I've always thought that. If the state has a right to organize an armed militia, then of course the members will be armed. Why bother to write such drivel into the Bill Of Rights if that's all it means?

[AKman]

I'm sure the timing of Heller and the agreement with Canada to use foreign troops during civil emergencies is just a coincidence.

[Scarecrow Repair]

I'm sure the timing of Heller and the agreement with Canada to use foreign troops during civil emergencies is just a coincidence.

Don't forget that black helicopter I saw yesterday.