The District of Columbia’s legal brief to the Supreme Court in the Heller case, where the District defends its version of gun control against a decision by the Second District Court of Appeals that the District is violating the constitutional rights of its residents, was due and filed January 4th. Interestingly, the filing was simultaneous with the resignation of the District’s top lawyer and the firing of her special assistant on the case. To say it is rare to change lawyers after they’ve filed a brief before SCOTUS but before oral arguments is to understate the situation.
But, not to worry. To prepare its case, the District hired seven outside attorneys, some of the top guns—no pun there!—from two of the area’s most prestigious and expensive firms, to help write and now perhaps argue its case.
The brief, 58 pages in chief with 162 separate citations, likely cost DC taxpayers at least $500,000, perhaps twice that, for research and writing. The result bears the hallmarks of authorship by a brilliant committee of highly skilled, charged and ego-endowed lawyers. It is a writing of which only a lawyer—no, only a conclave of lawyers paid by the word or the hour—could be proud. Each point is made with pinpoint precision in a well-organized pyramid of arguments, crafted and printed only after hours, days and weeks of research, collaboration, argument and honing by memo.
In the end, though, the DC brief shares the failing of all committee works in that the logic is unconvincing. It fails because it is alternately both over-reaching and terminally circular.
The arguments fall into three groups, The Militia, The District and The Regulation:
First: The Second Amendment Protects Only “Militia-related” Firearm Rights.
This gets 35 pages of coverage. It is the major thrust of their argument and is, therefore, the most convoluted.
The District deconstructs, in more ways than one, the language of the Constitution in order to argue that the Second Amendment protects only members of state militias from being disarmed by Congress.
Their linguistic arguments bear (no pun) on four points:
- “Bear” is a strictly military term.
- “Arms” is a strictly military term.
- “Keep” is most often a military term and in this case means that members of the militia may “keep” on hand the “arms” that they’re required to available to them.
- “People” means “members of state militias.”
Others have done the historical research the language deserves, so I'll leave the area to them.
DC’s lawyers recognize that the Second Amendment may protect a possible “pre-existing” right that predates the Constitution. However, they dismiss that possibility as lacking a “persuasive reason” to be believed.
While DC recognizes and even observes for the Court that under Article I, Section 8,
“Congress shall have the power… (t)o provide for organizing, arming and disciplining the Militia,”
and that Congress may from time to time call up the militia for national service, its lawyers then argue that the Bill of Rights amends the Constitution to explicitly deprive from Congress any power to ever disarm the very same folks that it is specifically charged with arming.
Their theory is that the various states might have need of militias to protect themselves from, among other things, threats from the federal government, and only independent state forces can assure against that threat.
The primary concerns that animated those who supported the Second Amendment were that a federal standing army would prove tyrannical and that the power given to the federal government in the Constitution’s Militia Clauses (of the Constitution, in Article 1, Section 8) could enable it not only to federalize, but also disarm state militias.
So,
The Bill of Rights limited the federal government to protect both individual liberty and states’ rights. In the context of the Second Amendment, both causes were served by establishing a check on a new federal government that might otherwise disarm the people serving in state militias under the powers granted by the Militia Clauses.
The authors don’t explain why the states required to ratify the Bill of Rights would rely on militias that are subject to the will of Congress for protection from that same, possibly “tyrannical,” federal government.
Actually, they describe the army as being potentially tyrannical, apparently confusing the role of tyrant and his tool, a common problem among some classes in DC.Either alternatively or in addition, they also seem to argue that the members of the militia—this would be
the people, who are different from
the people who have rights of assembly and freedom from searches—may have an actual duty to arm themselves with militia-style weapons, a duty DC's lawyers see as imposed by… the Second Amendment.
Their brief explicitly confirms “the right of citizens (in the militias) to
own guns to support those militias…” (Emphasis added.)
Why DC would concede actual ownership of the militia's weapons to the members escapes me, but vertigo was setting in so I'll let it go.So, Congress arms the militias… as do the states… as do the members themselves. Once armed, the members own the weapons, which apparently no one can take from them.
Now that would make for an interesting social order, especially given that the purpose of these militias is to protect the states from the military might of the United States. I can see it now. Washington and Kansas get the Boeing aircraft, California the Northrup goodies. Utah and Colorado the biological and nerve stuff. The nuclear toolkit… hmm.Finally, as others have pointed out,
Glenn Reynolds and
Don Kates first among them with their paper "
The Second Amendment and States' Rights: A Thought Experiment," when one defines the Second Amendment as
requiring state militias and argue that it
explicitly forbids Congress from disarming them, one creates the real potential for a supra-military force. On this point alone, a DC win could change the core dynamics of our federal republic government.
It would certainly change the attendance at and dynamics of state militia meetings!Second: The Second Amendment Does Not Apply to Laws Limited to the District of Columbia.This is worth five pages in the brief, but even so circularity seems to rule, while over-reaching comes in a close second.
The writers acknowledge that the Bill of Rights was written to protect citizens from the predations of a too-powerful federal government, primarily by placing restrictions on its power.
According to the District, the Second Amendment doesn’t apply to it because:
The District isn’t a state and therefore isn’t entitled to a militia, the members of which would otherwise be protected from disarmament by Congress. The lawyer who wrote this section of the brief included as part of his argument that there could be no conflict between the District, its citizens and Congress specifically
because Congress retains ultimate legislative power over whether and how to arm any militia, even when it delegates power to the District’s local government.
I wonder if he read the first section of the brief?The authors make the point that because the Second Amendment doesn’t
(yet!) apply to the states, it is unlikely that the Framers meant for Congress to be more limited in its powers in the seat of power, the federal district, than are the various states. They describe the ability to enact firearms regulation as “the most important power of self-protection” Congress has, an interesting perspective to the thousands of Capitol police, Secret Service, and military members tasked with protecting those folks.
Again, the circular: They argue that because the District Council is only a creature of Congress and not Congress itself, the Second Amendment cannot restrict its powers. By the same logic, it is difficult to imagine any limitation imposed by the Bill of Rights that cannot be ignored with impunity by the politicians of the District of Columbia on the same basis. Free speech, well, no. Fourth Amendment protections, uh, well. Heck, why not save a few bucks and house the troops amongst the residents, too?Third: The District’s Reasonable Gun-Control Laws Do Not Infringe The Right to Keep and Bear Arms (sic)Wherein the rabbit popped down the hole, spun several times, and re-emerged a natural blonde.DC states the factual basis on which the Council based its regulatory framework
After concluding that existing laws were insufficient, the Council reasonably found that it could substantially reduce the tragic harms caused by guns by regulating which weapons are available to District residents, how residents should store them, and who should be licensed to carry concealable weapons.
Note: The District uses the term “concealable.” Fast readers might slide over the term, thinking it means “concealed.” Not so. While more than 40 states now either allow or license citizens to carry weapons concealed on their person, the District requires a license to carry any weapon, at any time, in any location if that weapon is capable of being concealed. In other words, to carry a pistol from the kitchen to the bedroom requires a license issued by the District. To round the circle, any pistol for which a license is sought must be registered. However, no handguns manufactured or brought into the District in the last 30 years are eligible to be registered. Catch-22.According to DC lawyers, a “ban,” and yes they use that word, on the registration of handguns is defined as “reasonable regulation” of “particularly dangerous types of weapons.”
The regulation was promulgated when the District
“reasonably found that a handgun ban would mitigate the very serious problem of handgun violence in the District, including the use of handguns in crimes and their misuse by normally law-abiding citizens.”
They acknowledge that the use of handguns in DC was substantially more prevalent than it was nationally, that in the year prior to the ban
“In 1974, handguns were used to commit 155 of the 285 murders in the District.”
They neglect to mention that in later years the number of murders in DC nearly doubled even while the population fell substantially, leading to the common description of the District as the murder capital of the country.
They then attempt to square the round circle. This is probably the most target-rich paragraph in the entire brief, so much so that highlighting would only blight the words. I’d guess it is also probably the most expensive paragraph, given the number of lawyers who must have shipped in their best thoughts on how to state this.
In 1994, the Council extended the prior requirement that those who “carry” concealable weapons in public be licensed. A license is now required regardless of where such a weapon is carried. The licensing requirement, which enables the District to prevent felons and other dangerous persons from keeping concealable weapons, is separate from the registration requirement applicable to all firearms. Absent the handgun ban, District residents could register handguns and then apply for licenses to “carry” them. (Quotations marks in the original.)
To translate from the committee wordsmithing: Prior to 1994, a license was required to “carry” a concealable weapon in public, whether or not the weapon was concealed. That law was “extended” to cover carrying a concealable weapon anywhere. Anywhere. Even kitchen to bedroom, or from closet to hall, even out of a drawer where it has rested legally, untouched for 30 years, in order to greet a burglar in the entryway. This was designed to keep undesirables from “keeping,” there’s that military term, a weapon. In the final sentence they’re making the argument that this law is not unconstitutional because it is only a “licensing” requirement and if it were not for the ban, a different law entirely, it would not be… effective. No harm, no foul, no possibility of constitutional infringement.The brief expressed what seemed like surprise at the appellate court’s findings.
The majority also invalidated the licensing law. It ruled that individuals have not only a constitutional right to possess a handgun, but also an ancillary right to move it about their homes for self-defense.
For those keeping track, the argument is that the ban is not unconstitutional because it is only a registration requirement and the licensing requirement is not unconstitutional because were it not for the ban there wouldn’t be an issue.
There’s enough slippery slope language here to keep the NRA in rhetorical ammunition for a century.In a later argument, the attorneys reach too far to rely on truth
In any event, subsequent evidence supports the Council’s judgment that banning handguns saves lives.
Perhaps they haven’t seen the numbers of the lives lost in the murder capital of the country since they deprived its citizens of any possibility of self defense. Here is a graphic that I cite below in
SCOTUS Discovers 2nd Amendment, Decides It Needs Attention.As someone once asked, “With friends like this, who needs enemies?”
UPDATE: According to
The Washington Post, Acting DC Attorney General Peter Nickles fired lead attorney Alan Morrison because of a lack of confidence in the only Supreme Court specialist employed by the District. Morrison, who has argued 20 cases before SCOTUS and wrote the brief filed Friday, attributes his termination to politics. The District, in a move that didn't please some city leaders, has delegated oral arguments to a private lawyer, a former Solicitor General in the Clinton administration. Mr. Nickles also bolstered his outside team with a third brand-name law firm. This in a case that anti-gun groups urged the District
not to take to the Supreme Court because of the risks of losing, and which Mayor Fenty now
describes as "the most significant legal case in the history of the District of Columbia."
Alan Gura, lead attorney for Mr. Heller and the chief strategist for the District's opponents,
described the District's arguments in the brief as "creative but wrong."
Randy Barnett, a law professor at Georgetown University and contributor to the respected
Volokh Conspiracy blog, agreed that the District's argument is "strained," and
described it as being "at odds with the text and the original meaning of the Second Amendment and the rest of the Bill of Rights."
UPDATE II: Professor Barnett is also author of an article certain to be cited when the Heller team replies.
Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? is available here. Hat tip to Anonymous in the comments for the reminder.
UPDATE III: Fred Thompson
adds his thoughts.
UPDATE IV: Commenter jmwildenthal points out that
The Washington Times is quoting Acting DC AG Nickles as commenting that the three law firms are donating their services on the
Heller case. Earlier reports from the same news conference quoted Walter Dellinger as saying that he "has been working on the case pro bono."
If all three firms are chipping in all their costs, that's a pretty substantial contribution on the part of
Akin Gump Strauss Hauer & Feld LLP,
O'Melveny & Myers LLP and
Covington & Burling LLP.
RELATED LINKS: DC Fires Lawyers, Files Anti-Gun SCOTUS Brief in HellerWhere's The Militia? I Want to Enlist!
I know that Justice Thomas never asks questions from the bench. He views it as unnecessary given these are the best arguments from the best, most expensive lawyers in the land. This might warrant an exception, though.
The question I’d ask: Is this really the best you can do?