DC Gun ban trial

Discussion in 'National Laws, Bills and Politics' started by Gunstar1, Jul 6, 2006.

  1. Gunstar1

    Gunstar1 Administrator

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    SAF has posted 2 friend of the court briefs in favor of overturning DC's gun laws on 2nd amendment grounds to the appeals court for the Parker case.
    Georgia is one of those 13 states.

    http://www.saf.org/dc.lawsuit/parker.amicus.brief.pdf (NGO's and prof's)
    http://www.saf.org/dc.lawsuit/state.ag. ... signed.pdf (13 AG's)

    Both have great arguments.
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    This would be a good time to post this link, where, beginning about the 16th post or so, the history of this Cato Institute lawsuit, including the NRA's attempts to torpedo it through both litigation and legislative action, are explained in detail.

    Link: http://www.georgiapacking.org/forum/vie ... ght=parker
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, I hate to step into it with legal minds greater than myself, but the first brief sucks.

    It argues for the public benefits of firearms and explains how effective they are at self defense, and, while I agree with that, a constitutional right (the Parker case is asking for the DC Circuit to recognize a Second Amendent right of individuals to possess functioning firearms within their homes, i.e., reverse the District Court ruling that there is no such right in existence) does not depend upon whether the right is beneficial or effective.

    Would anybody argue a First Amendment case and base their arguments on whether the speech is effective in getting the government to change its policy?

    Does this sort of argument leave one to assume that there is no First Amendment right if the government does not change policy based on free speech?

    Does this leave us to assume that Don Kates would argue against a Second Amendment right to possess a firearm in the home if firearme were not effective or had no measurable benefit in terms of self defense?
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The second brief, the one by the attorney generals as amicus curiae, including our own Attorney General, Thubert Baker, is much better, and gets at the substance of the matter. You will be please to learn that Georgia's Attorney General also filed a brief in the Seegars case in DC (which ultimately lost on the standing issue rather than on the Second Amendment - this was the NRA case).

    I am pleased to see that Attorney General Thurbert Baker believes:

    "The individual right to keep and bear arms is protected by the United States Constitution and [Georgia's Constitution] . . . Given the significance of this fundamental right, the States have an interest in ensuring that the Second Amendment is accorded its proper scope in neighboring jurisdictions."

    and

    "Finally, amici States have an interest in ensuring that their citizens who choose to travel to other jurisdictions while carrying properly licensed weapons remain free from unconstitutional arrest and prosecution in the District of Columbia."

    While that last part is really outside the scope of the present lawsuit, it really outlines what is at stake in this case. If there is a Second Amendment right at all, can it be doubted that the next case will be one about "bearing" the arms, in addition to just "keeping?"

    This is probably the best case I have seen in a long time for going up to the U.S. Supreme Court on the Second Amendment issue.

    Now if only the composition of the Court would only change by one or two more justices . . .
     
  5. Gunstar1

    Gunstar1 Administrator

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    I always thought that a friend of the court brief was supposed to offer different views that the petitioner may not have expressed or that it counters an argument the state or other anti-gun freind-of-the-court might present.

    They way we see the second is the same, however there are those that think the BOR is a "living breathing document" and the second is a "collective right". Thier argument may be such that if the collective body of people decide firearms are not effective (except for LEO's and Military) then that collective has the right to ban them (similar to San Fran's ban).

    I am not saying that they should have to prove firearms are needed, but that they may be countering a claim that they are not needed.
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The second brief (the AG brief) is worth reading for its discussion of Miller alone. They hit on the points that I always hammer away at, but appellate courts tend to ignore . . .

    The most important point is the quote in Miller relating to the "militia" being expected to show up "bearing arms supplied by themselves." That kind of undercuts the National Guard-issued-weapons-only view.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The "collective" argument is that the "militia" statement in the introductory clause means that the Second Amendment protects only the right of the State, as a collective, to keep and bear arms, and ensures that the federal government will not infringe upon that State "right."

    :idea:
    I ask this question to the collective viewpoint: If we write the Amendment another way, is your argument still valid?

    A well educated electorate, being necessary for the security of a free state, the right of the people to keep and read books, shall not be infringed.


    Does this mean:

    (1) Only well educated voters can have books?

    (2) Since the "state" is mentioned, are books to be allowed only with state permission?

    (3) Does "the people" refer only to those who are well educated?

    (4) Does "the people" refer only to those actually registered to vote?

    (5) Do minors have the right under this amendment to the Constitution to possess any books, even for very limited purposes, or is this a right of adults only?

    (6) Is this really addressing a right, or is it addressing a state power instead, to be protected from encroachment by the federal government?

    Wouldn't this right protect the right of children to keep and read books for the purpose of rearing up a well educated electorate, familiar with books and their reading?

    :?:
     
  8. viper32cm

    viper32cm New Member

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    I must read these when I have time.

    I'm interested in their treatment of Miller, I really want to write a paper on Miller.

    This whole "living document" BS pisses me off. If a word (or set of words) can mean anything, then it (or they) mean nothing. This statement of simple logic should be more than enough to defeat the "living document" argument. It's really just playing with fire.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    When reading Miller look for the following phrases:

    In the absence of any evidence; and

    Certainly it is not within judicial notice.

    Being a student, you know the meaning of the words "judicial notice." The reason the court is addressing the issue of judicial notice is that there was an absence of any evidence in the record relating to whether a short barreled shotgun is any part of the "ordinary military equipment." No evidence was presented!

    Most people just gloss over this when reading the opinion and therefore miss the true import of the holding.

    Now, I hope you will not.

    My take on Miller is that lower courts are bound to recognize a Second Amendment right to keep and bear arms that can be shown to be part of the ordinary military equipment. As to the collective and individual argument, well, the Supreme Court recognized that the militia were expected to show up with arms supplied by themselves. That is kind of tough to do when one cannot now buy an M4 (a rifle that did not exist in 1986, when Reagon signed the Orwellian-named Firearm Owner's Protection Act), at least not legally. If you, as a law abiding citizen of the United States, cannot buy a light arm that is part of the ordinary military equipment because of a statute prohibiting such purchase or even possession, then I believe that statute infringes on the Second Amendment.

    I readily recognize that this is my take on Miller, and the lower courts interpret it very differently.

    Let us have your take on it once you have given it a read.
     
  10. viper32cm

    viper32cm New Member

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    WOW, that second brief ROCKS.

    Makes me wish I was helping put this case together.

    Malum, IMO you are right about Miller. The only reason that Miller didn't get to keep his shotgun is because the SCOTUS was unaware that a SBS was indeed a part of ordinary military equipment. (Trench guns in WWI). In that respect I kind of like Miller. It basically gives us the right to own anything the military has or had. The judicial notice thing is key though, as Malum pointed out.

    Further, I think that a principled reading of Miller would lead to the overturning of most if not all of the gun control statutes enacted by congress since NFA '34 (and maybe NFA '34). Further, since the 14th Applies the first 10 to the states, every state restriction would have to go bye bye too. I'd be a lot like Chada v. INS but a hell of a lot more fun.
     
  11. jrm

    jrm Sledgehammer

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    Viper,

    While I firmly believe the 14th amendment applies the entire BOR to the states, SCOTUS has not so ruled with respect to the 2nd amendment. Of course, implicit in such a ruling would be a ruling that the 2nd amendment guarantees an individual right, rather than a collective right (because it is not necessary to protect the state from itself).
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Should be an easy call, though, given the legislative history showing southern states denying newly freed black citizens their right to keep and bear arms was one of the concerns over which the Fourteenth Amendment was written and ratified.

    This came up during debate, and there is no "other side of the argument" as far as I am aware.
     
  13. kkennett

    kkennett New Member

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    In fact, I think most of the Framers would have been sorely disappointed that the 14th had to be written at all. As the states were 'closer' to the people, they viewed the Fed gov as the primary danger to individual liberty. Having recently defeated the British, in light of France's rising troubles, and in general skepticism of national governments, I don't think the Founder's would have given serious consideration to the states becoming an impediment to the RKBA.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I don't know. States were very actively interfering with rights, and there did not seem to be much of a way to fix it without some constitutional authority to do so.

    If you read the text, it does not seem like such a bad idea.

    Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    Section. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

    Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

    Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
     
  15. viper32cm

    viper32cm New Member

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    The fact that the 14th hasn't been used to apply the 2nd as of yet made me very angry when I found that out.

    It's a dream of mine.

    A conservative friend of mine once told me he didn't think the 14th should apply the 2nd because it's too vague. :roll:

    I read a third party platform a while back that advocated the repeal of the 14th Amendment. It was kind of funny; obviously something major would have to change in the country for that to pass.

    I too don't think the founders would be terribly happy about the 14th. They CERTAINLY wouldn't be happy about the administrative state that we have created.
     
  16. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, you have to get them to accept that it protects a right at all against even a federal statute before you can get them to accept that the "right" should be incorporated via the 14th so as to be applicable to the states.

    The 1842 case of State v. Nunn (run a search on this forum) held that the Second Amendment applied to the State of Georgia, was not a limitation on Congress only, and was a right of men, women, and children (how else to "raise up" an effective militia?).

    But there is not a single modern case (last century or so) in federal court striking down a single federal gun control law on Second Amendment grounds (were there any federal gun laws more than a century ago?). The fact that no laws have been struck down is telling.


    By the way, don't bother arguing with me by citing to Emerson, as you will note that the federal statute at issue in that case was upheld.
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    WHile reading Miller, do not forget to read the case cited therein for that proposition:

    Thus in Aymette v. State [2 Humph., Tenn. 154 (1840) ], supra, it was said (p. 158):
    ‘As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution."


    Also, read Emerson for its comments on Miller, including quotes from the government brief. U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001). Warning - it's 65 pages!
     
  18. viper32cm

    viper32cm New Member

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    The "robber and the assassin" hmmm.....

    Basically in modern day terms "guns particularly suited for the comission of crime"

    But what are those? All the examples I can think of would have a legitimate military purpose. Except for, saturday night specials possibly, but that battle is nothing new.

    Note to self: make sure you get the testimony of a firearms expert in the trial court record so when you are on appeal you can argue it.
     
  19. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I submit that under this test the weapon most protected by the Second Amendment for individual ownership and carry is the select fire automatic rifle or light machine gun.

    Sorry to get us so far off subject, though.

    I was quite pleased to read that Thurbert Baker signed on to this amicus brief, above. I am eager to see what will happen to the Parker case. The Court of Appeals may still try to weasel out on standing grounds, though, as it did in Seegars.
     
  20. viper32cm

    viper32cm New Member

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    Reading some of the secondary sources I did last night the judicial outlook seems very negative. The courts have used the excuse of a narrow interpretation of the 2nd time and again to weasal out of invalidating federal gun law.

    Which is funny when you compare the ammount of statutes on the books in regards to guns versus the number of statutes that were invalidated in INS v. Chadha when the Supreme Court held the legislative veto was unconstitutional (something like 230+ statutes).

    I know were dealing with an intermediate appeals court and not the USSC, but still.