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Thread: Supreme Court & the DC Gun Ban

  1. #1
    Member JOAT's Avatar
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    Default Supreme Court & the DC Gun Ban

    Reprint of NRA-ILA Legislative Alert Bulletin for Friday, December 7, 2007:



    Now that the Supreme Court has agreed to review the decision of the U.S. Court of Appeals for the District of Columbia Circuit, in District of Columbia v. Heller (formerly Parker v. District of Columbia), which struck down three D.C. gun bans as unconstitutional, many newspapers are publishing editorials, opinion pieces, and letters to the editor that read suspiciously like the anti-Parker “essays” that the Brady Campaign has been posting on its website for the last few months.
    Here are the main points to use when refuting the Brady Campaign’s erroneous claims:



    1. The Supreme Court’s decision in Heller may be limited. The Supreme Court has said that its review of the Court of Appeals decision will be “limited to the following question: Whether [Washington, D.C.’s bans on handguns, on having guns in operable condition in the home, and on carrying guns within the home] 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 case doesn’t deal with carrying a gun away from home, doesn’t seek to overturn D.C.’s firearm registration law, and doesn’t seek to overturn other laws in D.C. or anywhere else.



    2. In U.S. v. Miller (1939), the Supreme Court recognized that the Right To Keep And Bear Arms is a right of private individuals. It did not, as the District of Columbia claims, consider the Second Amendment to protect only a right to be armed while serving in a militia, or a “collective right” of a state to maintain a militia. As the Court of Appeals noted in Parker, the Supreme Court said in Miller that the militia consists of “civilians primarily, soldiers on occasion . . . . bearing arms supplied by themselves.” (Emphasis added.)



    3. Under the Supreme Court’s decision in U.S. v. Miller, the District of Columbia’s ban on handguns is clearly unconstitutional. As the Court of Appeals ruled, “the District’s claim runs afoul of Miller’s discussion of ‘Arms.’ The Miller Court concluded . . . . that militiamen were expected to bring their private arms with them when called up for service. Those weapons would be ‘of the kind in common use at the time.’ There can be no question that most handguns (those in common use) fit that description then and now.”



    4. The Right To Keep And Bear Arms is clearly a right of individuals, because it existed prior to the Constitution. Gun control supporters talk in terms of whether the amendment “creates,” “grants,” “establishes,” or “confers” a right, because to acknowledge that the amendment protects a right that existed before the government did, would amount to admitting that the right belongs not to government, or those on duty in a government’s militia, but instead belongs to private individuals. But, the amendment does not say, “the people shall have a right to keep and bear arms.” It says, “the right of the people to keep and bear arms shall not be infringed.” (Emphasis added.) As the Supreme Court said in U.S. v. Cruikshank (1876), “This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed.”



    5. The Second Amendment protects The Right To Keep Arms, as well as the Right To Bear Arms. Brady claims that “the right to keep and bear arms” means only “the right to bear arms” (when on active duty in a militia), but that the Supreme Court should ignore the word “keep.” But the Court of Appeals rejected the idea that “keep” has no meaning, saying “we do not take it seriously,” and saying that it “mocks usage, syntax, and common sense,” adding, “Such outlandish views are likely advanced because the plain meaning of ‘keep’ strikes a mortal blow to the collective right theory. . . .We think ‘keep’ is a straightforward term that implies ownership or possession of a functioning weapon by an individual for private use.” Of course, to “keep” means “at home,” precisely what is at issue in Heller.



    6. When the Second Amendment was written, it was universally considered to protect a private Right To Keep And Bear Arms. The idea that the amendment protects a right to arms only when serving in a militia, or a so-called “right” of a state to have a militia, were first invented by activist lower courts in 1905 and 1943, respectively. Interestingly, the Brady Campaign adheres to both of the bogus theories, though they contradict one another.
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  2. #2
    Member JOAT's Avatar
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    Default Another update on DC case

    Briefs have been filed and can be viewed in their entirety here:

    http://www.gurapossessky.com/news/parker/pleadings.html

    Here is today's bulletin from the NRA-ILA on these briefs:


    As the date for Supreme Court argument in District of Columbia v. Heller approaches, the filing of briefs has begun. The District filed its brief last week. In addition, various “amicus curiae” (friend of the court) briefs were filed with the court.

    U.S. Department of Justice Brief

    Gun owners are understandably dismayed about the brief filed by the Department of Justice (DOJ).


    Although the DOJ brief was filed on the same day as “friend of the court” briefs supporting the District of Columbia (DC), it does not support DC’s position but rather its own unique point of view—a view with which the NRA still disagrees.


    The District is asking the Supreme Court to reverse the decision by the U.S. Court of Appeals and find that the Second Amendment does not protect a broad individual right. DOJ is supporting a different view—that the Second Amendment does protect an individual right, and that the case should go back to the lower court to apply a different standard of review. DOJ suggests applying a lower level of constitutional scrutiny than the Court of Appeals adopted. The NRA disagrees and believes the lower court’s ruling should be upheld.


    NRA believes that the right to arms is a fundamental right; as with other fundamental rights, laws restricting that right deserve the highest level of scrutiny. The NRA and those seeking to overturn the gun ban believe that the scope of the Second Amendment is clear. Contrary to DOJ’s suggestion, this case is not about felons or machine guns. This case is about law-abiding people who want handguns and long guns for self-defense. The total ban on self-defense gun ownership in D.C. is so severe that it should be found unconstitutional under any level of scrutiny, and we will make that point in our “friend of the court” brief when it is filed next month.


    Finally, while NRA strongly disagrees with many of the arguments in DOJ’s brief, there are a few areas of agreement. Notably, DOJ agrees that the Second Amendment protects an individual right, and that it applies to the District, even strongly hinting that under the lower “heightened scrutiny” it supports that D.C laws could be unconstitutional. This was not the position of the previous administration. In fact, Clinton administration Attorney General Janet Reno and Solicitor General Seth Waxman, along with other DOJ officials from the Clinton administration have filed their own brief in support of the District, arguing that there is no individual right at all to possess guns outside of government service.

    DOJ also recognizes that the Second Amendment protects a right to self-defense, and that the right to arms was a pre-existing right protected, but not created, by the Constitution.

    If you would like to express your opinion of this brief directly to DOJ, please call the Department’s Press Office at: (202) 514-2007.


    Hoping Something Will Stick To The Wall: Gun Ban Groups’ Briefs


    Nearly two dozen briefs have been filed with the U.S. Supreme Court by individuals and groups supporting D.C.’s bans on handguns, having a gun assembled within the home, and carrying a gun within the home.
    On the whole, the briefs misrepresent the text and history of the Second Amendment, and misrepresent the Supreme Court’s past decisions relating to the Second Amendment. They falsely claim that D.C.’s gun laws have reduced crime, falsely claim that upholding the appeals court’s decision will necessarily lead to invalidating many other gun control laws at the federal, state and local levels, and falsely claim that if the amendment protects an individual right to arms, the Court should let elected officials ride roughshod over the right anyway. Many of the briefs cite questionable studies conducted by researchers that support gun control, and that were paid for by foundations that endorse gun control.


    The briefs can be viewed at www.gurapossessky.com/news/parker/pleadings.html, but here are some highlights:
    • Former Clinton Administration Attorney General Janet Reno and various former Johnson, Carter and Clinton administration Justice Department officials say that D.C.’s bans should stand because “Congress has enacted a series of statutes regulating firearms possession and use”—though, as they also point out, “gun violence continues.” They also falsely claim that the notion that the Second Amendment protects a right of a state to have a militia “is amply supported by the Second Amendment’s text, drafting history, and historical context.” In fact, there is nothing of the sort in the text or history. Even D.C. is not claiming that the amendment protects a “state’s right”; rather, it is claiming that the amendment protects a right of a person to be armed only when serving in a militia.
    • Anti-gun criminologists James Alan Fox and David McDowell make the remarkable claims that the “The D.C. gun law is an effective mechanism for reducing handgun violence,” “the effectiveness of the D.C. gun control law demonstrates its reasonableness,” and “the D.C. gun control law effectively reduces the supply of handguns in the district.” Of course, within 15 years of the law going into effect, D.C.’s murder rate tripled and, if crime statistics are any measure, the law “reduces the supply of handguns in the district” only among law-abiding people.
    • The NAACP says, “nothing has changed in regard to the Second Amendment that would justify this Court in radically departing from its jurisprudence here.” Fair enough. In U.S. v. Cruikshank (1876), the Court said the right preexisted the Constitution. In Presser v. Illinois (1886), it said gun control cannot have the effect of disarming the citizenry. In U.S. v. Miller (1939), it said that the militia consists of individuals “bearing arms supplied by themselves.” And in U.S. v. Verdugo-Urquidez (1980), it said “the people” means the same thing in the Second Amendment that is means everywhere else in the Constitution.
    • The American Academy of Pediatrics, Children’s Defense Fund and several other groups “dedicated to … removing handguns from homes and communities across the country,” urge the Court to uphold D.C.’s gun bans “regardless of whether the Second Amendment protects the right to possess guns for private purposes,” because, they say, “handguns are more lethal than other types of firearms” and “the dangers of handguns cannot be overcome by gun safety instruction.”
    • The American Public Health Association and several other public health groups espouse the ludicrous view that “public health research [a euphemism for studies paid for by anti-gun foundations, and that use disputed methodology to endorse gun control] may be relevant to assessing the constitutionality of the statutes at issue.”
    • The Brady Center and some law enforcement groups admit, “There is no question that the right protected by the Second Amendment extends to ‘the people.’” They argue, however, that “the question is how that right is defined …. Under the ‘militia purpose’ view, the Second Amendment guarantees an individual’s right to keep and bear arms to the extent the person is engaged, or seeks to be engaged, in the conduct sanctioned by the text, i.e., possessing and using arms as part of a well regulated militia.” The Court of Appeals rejected this view, and thoroughly explained why it did so.
    • The Violence Policy Center says—incorrectly and irrelevantly—that “the handgun industry has shifted production from revolvers to high-capacity semiautomatic pistols, the modern handgun is designed for superior lethality, the ammunition capacity of handguns has increased dramatically, handguns have higher caliber ammunition designed for increased lethality, [and that] handguns used today are more concealable.”
    • 18 (out of 535) Members of Congress claim that, in Heller, the Court of Appeals “reads the Second Amendment as creating an individual right,” even though, as noted above, in Cruikshank the Supreme Court ruled that the amendment protects a preexisting right.
    • Several mayors and other officials from cities, each of which they say “has developed regulatory programs to address the particular risks and threats posed by gun violence,” and which, not surprisingly, have a disproportionate share of “gun violence” in the country. They also claim that the Second Amendment limits only the federal government, forgetting the Supreme Court’s decision in Presser, that “the States cannot, even laying [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government.”
    • Several D.C.-based activist groups say that even if the amendment protects an individual right, the Court should “accord substantial deference to the decisions of elected officials who must decide how to regulate the availability and use of weapons in the interests of public safety and according to the particular needs, concerns, and conditions of their own communities.” Of course, as is taught to every schoolchild in America, rights are supposed to be protected against those who would legislate them out of existence.
    The brief for those seeking to overturn the D.C. laws will be due on February 4; friend of the court briefs supporting their side will be due a week later. We’ll keep you up to date as the case progresses.
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  3. #3
    Member stevelyn's Avatar
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    As usual the NRA hitches itself up to a train they tried to derail.
    Now what ?

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    Member JOAT's Avatar
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    NRA has supported this cause from the very beginning. I've been following them with it. Why would you oppose overturning anti-gun legislation or the NRA?
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    Member Eastwoods's Avatar
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    Quote Originally Posted by stevelyn View Post
    As usual the NRA hitches itself up to a train they tried to derail.



    Please explain what you mean by this statement, for those of us that are in the dark.?

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    Default I would never live in DC...

    What a hornets nest.

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