Friday, January 04, 2008

DC Fires Lawyers, Files Anti-Gun SCOTUS Brief in Heller

After firing two of its leading lawyers leading its appeal of Heller to the Supreme Court, the District of Columbia today filed its legal brief defending its right to ban handguns and restrict possession of rifles to those that have been dismantled.

As expected, DC built its arguments on three legs:

  1. The Second Amendment protects private possession of firearms only for those actively serving in a state-sponsored militia.
  2. The Second Amendment does not apply to DC because DC is not a state.
  3. The Districts ban on handguns is a reasonable regulation allowed under the Second Amendment.
I'll post further analysis shortly, but you will find the 80 page PDF of DC's filing here.

Hat Tip: SCOTUS Blog
RELATED LINKS: Where's the Militia? I Want to Enlist!
SCOTUS Discovers 2nd Amendment, Decides It Needs Attention

Interesting that they'd fire the lawyers who wrote the brief before they make the oral arguments, which are due in 4 months.

1 comment:

Anonymous said...

The first argument was answered before the DC brief was written, see
Barnett, Randy E., "Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?"

The next argument (that DC is not a state) was answered very well by the majority in Shelly Paker vs. DC:

"First, the dissent (and the District) mistakenly reads “a free State” to mean an actual political unit of the United States, such as New York, etc., rather than a hypothetical polity. In fact, Madison’s initial proposal to the First Congress stated that a well-regulated militia was “the best security of a free country.” THE COMPLETE BILL OF RIGHTS, supra, at 169. The House committee then substituted “State” for “country” when it initially altered Madison’s proposal. We have no record of the House committee’s proceedings, but it is not credible to conclude that a profound shift was intended in the change from “country” to “State,” particularly as there was no subsequent comment on the change.

The use of both the indefinite article and the modifier “free” with the word “state,” moreover, is unique to the Second Amendment. Elsewhere the Constitution refers to “the states” or “each state” when unambiguously denoting the domestic political entities such as Virginia, etc. With “a free State,” we understand the framers to have been referring to republican government generally.”

I'll add my own 2 cents here concerning the DC is not a state claim.

From Madison’s Memorial and Remonstrance(1785):
"We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined. " (my emphasis in boldface)

Was Madison referring to Virginia as “a free state” in the sense that the commonwealth was one of the states of the Union? Or was he characterizing Virginia as “a free state” meaning a non-tyrannical government in which citizens were able, and duty bound, to defend their rights against dangerous abuses of power by the government?

The answer to that question is found in the list of reasons that Madison gives for opposing the Bill for establishing a provision for teachers of the Christian Religion –the first of which concerns the protection of an individual’s right to worship as his own conscience directs and includes Madison’s observation that the will of the Majority sometimes tresspasses on the rights of the minority. Thus the concern is not merely for the freedom of action of the “state” or the “government” but for the freedom of the individual in relation to government.

"Because we hold it for a fundamental and undeniable truth, "that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considerd as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority"

Returning to the Second Amendemnt, one could, as a thought experiment, try adding the words “of the union” after “A well regulated Militia being necessary to the security of a free state”.
Is the meaning retained?
What function would the word “free” have in that sentence?
Would it act to limit the protection to only “free” states?
Which states were not free?

Did the framers believe that "a well regulated militia" was necessary only to "free states" of the union, or did they hold that belief as a general proposition, and assume that the Union was a "free state" in the sense that Madison earlier used the phrase in Memorial and Remonstronce ?

Mike Hansberry

See also Volokh Conspiracy -Straight out of Blackstone- for a discussion of this topic.