Heller: The Good Guys Shoot Back, With Effect

D. C. vs. Heller has been called the most significant constitutional case of the year. It's easily that. It is also the most important Second Amendment case ever. If decided incorrectly, it may well over time affect our understandings of our rights under each of the others of the first ten amendments.

Several weeks ago I wrote an analysis of the brief filed with the Supreme Court by the legal team representing the District of Columbia, How Many Lawyers Does It Take to Make a Circular Argument? In Heller, a Lot! Coming from that experience, the brief filed by the Heller team is a rare treat. It is intellectually coherent, respectful of history, and comfortable with nuggets of humor and irony. In other words, for a legal brief, it is a rare delight to read though that is an admittedly a low threshold for enjoyability.

With citations, the brief runs for 82 pages. With a single exception, it is powerful and convincing. Unlike the D.C. brief, there is little evidence of authorship by committee.

Its bedrock principle is The Second Amendment Protects An Individual Right to Keep Ordinary Firearms, Unrelated to Government Military Service, which it supports with three principles.

• Preambles Cannot Negate Operative Text
• The Second Amendment's Plain Text Secures an Individual Right
• The Framers Secured an Individual Right to Keep and Bear Arms in Reaction to the British Colonial Experience

All of the following quotations are from the Heller brief. I have removed citations for readability.

They open with the point that the first clause of the amendment is not limiting, it is explanatory.

As Petitioners note, preambles are examined only (if) words happen to still be dubious.

They go on to argue that according to legal practice

The preamble can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be used to create doubt or uncertainty.

This is the legal equivalent of the layman's rhetorical what part of 'shall not infringe' do you not understand?

They make the point that if the preamble were all there were, it would mean nothing. The preamble cannot stand without the second clause. In contrast, the second clause has meaning, in fact the same meaning, with or without the first clause. Further, in 200 years of interpretation, the Constitution's other preambles, including it's very opening, have never been found limiting.

Although that [opening] Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power. . . .”

They point out several other internal preambles which cannot be construed as limiting to their operating clauses. They also point out contemporaneous usage of the same approach

The same Congress that passed the Second Amendment also reauthorized the Northwest Ordinance of 1787, containing this language: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

But nobody would seriously contend that were religion, morality, or knowledge one day found unnecessary for good government, schools should no longer be encouraged in the states of the former Northwest Territory.

Which leads to (what passes for) lawyer humor

Any preamble-based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context.

The argument with which we're all familiar is included, but this time cited from an earlier case

There should be no distinction among “‘the people’ protected by the Fourth Amendment, and by the First andSecond Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments…"

***
Conceding that the Second Amendment secures individual rights, Petitioners nonetheless argue that the term “bear arms” is exclusively military, such that the Second Amendment right can be exercised only under the direction of a governmental military organization. Putting aside this rather strange concept of rights—a “right”to particular weapons in an environment where the individual is obliged to obey orders, or a “right” to defend the government but not oneself or one’s family—the text does not support this notion.

***
“Keep and bear” embody distinct concepts in the Second Amendment, just as “speedy and public” reflect separate rights in the Sixth Amendment. Had the Framers eliminated either “speedy” or “public” from the Sixth Amendment, they would have significantly narrowed the right’s scope.

One would hope that quoting the man who wrote the words in the amendment might be convincing, here from James Madison in the Federalist Papers:

This militia reflected “the advantage of being armed, which the Americans possess over the people of almost every other nation,” in contrast to “governments [that] are afraid to trust the people with arms.”

One of the theories that Heller presents which will disappoint some is that arms protected by the Second Amendment are not all arms, but only arms that pass three tests, in this order:

• They were and are in common use, and
• They have a civilian purpose, and
• They are suitable for military use.

Those who hope–or fear–that Heller will open the door to private ownership of any kind of weapon should understand that this test precludes personal ownership of nuclear cannon, F-22 Raptors, and Seawolf-class submarines, as they will fail the first and second tests. On the other hand, it's pretty obvious that a Beretta pistol and a Colt rifle will pass. More on this later.

Within memory of every adult then living, at the time of the drafting of the Constitution militias had begun and fought a war of rebellion. Their initial actions, including the battles at Concord and Lexington, were fought by volunteers without authority from the Crown.

Notably, pre-revolutionary Americans forming voluntary associa- tions for the purpose of resisting British rule, including Washington and Mason, employed the term “well regulated militia” to describe their associations.

These organizations were decidedly not sanctioned by any governmental authority.

Those volunteers supplied their own arms and ammunition and were dependent upon their own knowledge of how to use them. This was only the most recent example at the time of a pre-existing right to keep and bear arms.

There was excellent cause for the drafters to write of specific individual rights.

The rights secured by the first eight amendments were not conjured at random, but in reaction to specific outrages of the King’s rule. The Second Amendment is no exception. While Petitioners and their amici may not believe that English law secured an individual right to arms for self-defense, colonial Americans certainly did, and it was the repeated, wanton violation of that right that led them to demand and ratify the Second Amendment.

The argument is buttressed by legal usage prior to the existence of the Constitution.

So accepted was the notion that Americans had the right to arms that Crown prosecutors of the soldiers charged in the Boston Massacre invoked the victims’ right to armed resistance against abusive Redcoats. John Adams, in his successful defense of the soldiers, concurred: “Here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence. . . .”

To put it bluntly, the American revolution was caused by the attempts of the Crown to remove the private arms and ammunition of the colonials.

Not surprisingly, the Revolution’s first battle opened on April 19, 1775, with an ill-conceived British expedition to seize weapons from private property in Concord. Fear of arms seizures prompted Ameri- cans to transfer publicly stored weapons to their homes, and when Redcoats came to seize public and private arms alike, war erupted.

Earlier, when the various states began to authorize organized militias, Pennsylvania refused on religious grounds. Ben Franklin suggested that a voluntary association be formed instead to support a militia composed only of volunteers who had no objection to service. The 1747 Association was founded and enrolled 10,000 men. His Majesty's government took enormous exception. The King reacted by disallowing the law granting recognition of the group, but the Pennsylvania volunteers continued with their militia anyway. Some of the confrontations between the militias and the government were physical.

In 1774,

As war approached, clashes between voluntary militias and colonial governors became not merely philosophical, but physical. When Governor Dunmore seized the powder at Williamsburg, Patrick Henry’s Hanover Independent Militia Company forced restitution. One paper reported that as a “party of the militia being at exercise on Boston common, a party of the army surrounded them and took away their fire arms; immediately thereupon a larger party of the militia assembled, pursued the Army, and retook their fire arms.”

A second example of attorney humor:

Certainly Petitioners would not dispute Ameri- cans’ justification for revolting against Great Britain, an event that would not have been possible without the private ownership of firearms.

***
Demands for a bill of rights prevailed in five of seven constitutional ratifying conventions. The only provisions common to all were freedom of religion and the right to arms. New Hampshire’s convention demanded recognition that “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

These, then, were some of the explicit reasons that Madison wrote the Second Amendment.

Heller makes short order of the states' rights to a militia argument, pointing out that the federal government has plenary authority over the various state militias, thereby making any right to arm independently an argument that would change the federal structure itself.

Finally, the logic comes home: If there is an individual right, even if one in support of a state's militia, then an outright ban is unconstitutional because a ban is not "regulation," it is a ban.

With respect to Petitioners’ handgun ban, answering the threshold question resolves the case. If the possession of handguns is protected by the Second Amendment, handguns cannot be completely banned, however else the government may regulate their possession and use.

***
Certainly the government may ban arms that are not protected by the Second Amendment and regulate those that are, but the threshold question of whether an arm falls into the former or latter category cannot be avoided.

Nor may the government justify a ban on a particular firearm simply by claiming to allow the possession of others. While it is a dubious proposition that Petitioners allow individuals any firearms for private home use, the government’s compliance with the Constitution by allowing rifles would not permit the government to violate the Constitution by banning handguns—any more than the government could prohibit books because it permits newspapers and considers them an “adequate substitute.”

Some will be disappointed with this, but it is important to remember that the Heller team's task is to win this case. If it turns out this is the first step of a necessary many, so be it.

Arms that may have great military utility but which are inappropriate for civilian purposes are still sensibly excluded from the Second Amendment’s protection, as civilians would not commonly use them.

Interestingly, though, this really does seem to work in a way that the Court might find reassuring. This approach might reduce to a minimum future "fact finding" litigation, as the three-way test noted above will be much simpler to determine than many of the social issues presently facing the court. For instance, taking the quotations from Miller

No court has questioned that a handgun, generally, is an arm “of the kind in common use” by the public and is either “ordinary military equipment” or otherwise useful in a manner that “could contribute to the common defense.”

Which they expanded with

That handguns are appropriate tools for lawful self- defense and are a class of weapon “of the kind in common use,” Miller, 307 U.S. at 179, has been within the judicial notice of this Court and lower federal courts for nearly a century. Nearly forty percent of firearms produced today are handguns.

And concluded the point with

No trial is required to establish that handguns continue to be in common use for legitimate purposes and that their possession can contribute to the common defense. Handguns are therefore protected arms under Miller, and the right to “keep” them “shall not be infringed.”

They compared the Second Amendment with the First, with an eye towards the liberal Justices

That the “keeping” at issue here relates to the home is significant. Even obscene materials not otherwise protected by the First Amendment may be viewed in the privacy of one’s home. The exercise of Second Amendment rights within the home is entitled to no less protection. “The government bears a heavy burden when attempting to justify an expansion, as in gun control, of the ‘limited circumstances’ in which intrusion into the privacy of a home is permitted.”

They took the opposition to task for factually overreaching a couple of times.

Petitioners and their amici greatly overstate our Nation’s history of handgun regulation. Washington, D.C.’s complete handgun ban was the first such prohibition on American soil since the Revolution. The fact that “never before in the more than two hundred years of our Republic has a gun law been struck down by the federal courts as a violation of the Second Amendment,” Brady Br. 29, is a testament to the extreme nature of Petitioners’ enactments. Notably, Petitioners’ state amici do not defend or endorse a total handgun ban, which none of them maintains.

And this, a lawyer's way of calling out "pants on fire."

Various briefs invoke Georgia’s 1837 ban on the sale of certain pistols, but none mentions that the act was struck down—on Second Amendment grounds—in an as-applied challenge by a man who openly wore a prohibited pistol.

I was extremely disappointed that the Solicitor General came into the case supporting the concept that a ban is only regulation. It is unfortunate that the Heller team felt they needed to spend so heavily to rebut the Bush administration, as they did.

The Solicitor General greatly overstates the D.C. Circuit decision’s implications for laws governing machineguns. Courts understand that the decision below striking down the handgun bans “address[es] only the possession of handguns, not machine guns.”

And unlike the laws at issue here banning handguns,19 federal law does not ban the private possession of machineguns, of which approximately 120,000 are in lawful civilian possession.

But this case is not about what regulations ought to govern machineguns. The question is whether the arms at issue—including handguns—are protected at all. They are.

And in a footnote, with irony

The Solicitor General’s “reasonable alternative” test would demand that individuals wishing to exercise a fundamental constitutional right demonstrate their need to do so, subject to the skeptical review of officials hostile to the right. For example, a would-be handgun owner might have to show that she was physically incapable of using a rifle or shotgun. The Miller test anticipates this problem: Because handguns are in common use they are constitutionally protected, meaning an individual has the right to choose a handgun as the type of weapon she would keep at home for lawful purposes.

In strong language, they argue for strict scrutiny of any proposed governmental regulation of a core right.

The Second Amendment has the distinction of securing the most fundamental rights of all—enabling the preservation of one’s life and guaranteeing our liberty.

***
The government’s fears of a meaningful Second Amendment standard are unfounded. Seven years ago, the Fifth Circuit announced a version of strict scrutiny to evaluate gun laws under the Second Amendment, permitting regulations that are “limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” (applying Emerson, restrictions are “limited” and “narrowly tailored” but “[p]rohibiting unlawful drug users from possessing firearms is not inconsistent with the right to bear arms guaranteed by the Second Amendment”). Large cities in the Fifth Circuit remain generally more peaceful than Washington, D.C.

They take the D.C.'s supporters to task for attempting to define legal standards by use of pop-psychology.

The careless handling of social science by Petitioners and their amici underscores the impropriety of adopting anything but the highest level of scrutiny for regulations implicating Second Amendment rights. The matter is only peripheral to the case, but some remarks are in order.

They point a little loaded irony at the American Bar Association.

Putting aside the likelihood that the Constitution embodies at least some policy choices the ABA finds uncongenial, the cited study does not support the conclusion.

And more factual over-reaching by others.

Petitioners also persist in relying upon a deeply flawed study claiming their handgun ban reduced deaths. Putting aside that correlation does not equal causation, even the correlative relationship is dubious. The study measures death with raw numbers rather than rates, thus ignoring the city’s dramatic depopulation through the studied period. Between the two ten-year periods examined in the study, Washington’s average annual population declined 15%.

When one examines homicide rates, the supposed benefits disappear. The suicide prevention benefits are likewise overstated. Moreover, the study ends in 1988, a year in which the murder rate doubled pre-ban levels, and one year before a severe crime increase. In 1991, the peak year, the homicide rate tripled pre-ban levels.

They point out that a remedy exists for those who believe the Constitution is wrong.

“If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.”

Petitioners plainly disagree with the Framers’ Second Amendment policy choices. Petitioners’ rem- edy must be found within the Constitution’s Fifth Article, not with linguistic sophistries or an anemic standard of review that would deprive the right of any real force.

They conclude with a simple section title one would think would be simply enforced:

THE GOVERNMENT OF THE NATION’S CAPITAL MUST OBEY THE CONSTITUTION.

Which was supported by an argument that I suspect was crafted with four specific justices in mind.

Accordingly, Congress can exercise general police powers within the District, “so long as it does not contravene any provision of the Constitution of the United States.” For example, Congress may operate public schools in the District of Columbia, a power otherwise reserved to the states. But such schools cannot be segregated.

***
Indeed, because the Constitution with its Bill of Rights applies directly to the federal government, of which the city is a creature, Petitioners are bound to respect even those rights that are not incorporated as against the states through the Fourteenth Amendment.

And, at the very end, they stick the pig.

Finally, there is no logic to Petitioners’ extraordinary claim that gun control “is the most important power of self-protection” for the seat of government. The District Clause, after all, allows Congress to “[erect] Forts, Magazines, Arsenals, dock- Yards and other needful Buildings.” Congress surely has the power to regu- late firearms in Washington; but if Congress felt that disarming Americans at home were necessary for its security, it might have attempted to do so in the first 177 years of the city’s service as the seat of govern- ment. As recent history demonstrates, those who would attack our capital are hardly deterred by Petitioners’ ban on handguns and functional firearms in the home.

I haven't covered every point. Any omissions are mine, not the Heller team's.

For those who like to review it for themselves, you can find the brief here. I would encourage all who are interested to give it a good read.

UPDATE: According to Rep. Jo Ann Emerson, MO-8, more than 100 Members of Congress will be filing an amicus brief this week supporting Heller. H/T to Of Arms & the Law.

UPDATE: According to Republican Senator Kay Bailey Hutchison, she will file on Monday an amicus brief signed by by 55 Senators and 250 House members. That represents a majority of the U. S. Congress. Strong political message to follow. This will certainly offer significant political cover should the Supremes rule correctly.


Lots of shooting, lots of smoke, but I believe it is the good guys who are left standing.