Guns Case Reply Brief Available

Wednesday, March 5th, 2008 1:23 pm | Jason Harrow | Print This Post

The District of Columbia is filing its Reply Brief in the Supreme Court today in DC v. Heller, and it’s now available for download here.

A complete set of earlier filings is available here at SCOTUSwiki.



20 Comments »



  1. The Reply Brief contains a lie about the history of George Mason, the Virginia Committee of Safety, and the remolding of the militia. On Page 11 of the Reply Brief, they assert that individual arms were not used for insurrection and cite a letter from George Mason to Martin Cockburn which can be seen at http://www.virginia1774.org/GeorgeMasonMartinCockburnAug.html

    The Independent Companies noted in the letter were started by George Mason and were unlawful under Çrown Law. The chain of Command went from God to the King to the Royal Governor to the County Lieutenant in Virginia. Royal Governor Lord Dunmore demanded that the Independent Companies be disbanded in June of 1775. http://memory.loc.gov/cgi-bin/query/r?ammem/rbpe:@field(DOCID+@lit(rbpe17801700))

    George Mason obliged the Governor and turned the Independent Companies into Minute Men under the control of the County Committees and the Committee of Safety.

    Rudolph DiGiacinto
    Founder &c.
    Virginia1774.org

    Comment by Rudolph DiGiacinto — March 5, 2008 @ 5:28 pm

  2. Outside of the obvious fact that someone is getting nervous their arguments are not strong enough, by what rule is the city allowed at this late date to file an attack Brief against the respondent and does Mr. Heller’s attorneys have any time to file a counter of their own before oral arguments.

    Comment by James N. Gibson — March 5, 2008 @ 8:10 pm

  3. Perhaps in view of their admission that the militia was in a very real sense the people, maybe DC should re-state their first argument in this way:

    1 THE SECOND AMENDMENT PROTECTS ONLY
    PEOPLE-RELATED FIREARM RIGHTS.

    Comment by Mike Hansberry — March 5, 2008 @ 8:59 pm

  4. So DC thinks we, the people, are mere agents of the State governments. They need to be reminded of their error.

    For obvious reasons DC omits this part of Federalist 46 :

    “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error”

    But even the carefully selected phases from Federalist 46 that DC includes in their brief undermine DC’s position.

    From REPLY BRIEF FOR PETITIONERS:
    “Many viewed a professional standing army as a threat to liberty, preferring to keep military force in the hands of “the people,”assembled as citizen-soldiers, “fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.” Federalist No. 46 (James Madison). The militia— considered in this very real sense to be “the people”—would temporarily put aside their livelihoods to take up arms when called to defend their communities.”

    If the people did not have the advantage of being able to keep arms, they could not take them up in an emergency. DC’s idea that only those in the well regulated militia could keep arms is not only without foundation, but is contradicted by Fed 46 and the various founding era militia acts cited by the Court in US v. Miller.

    Note that Madison’s expression “half a million of citizens with arms in their hands” does not describe any “state militia” of the day, but is instead nearly the total number of men in the country capable of bearing arms.

    Comment by Mike Hansberry — March 5, 2008 @ 9:24 pm

  5. From REPLY BRIEF FOR PETITIONERS:

    “Respondent’s claim that the word “keep” means
    “possess at home,” RBr10, for example, says nothing about why arms could be kept at home. The purpose of the word “keep” was to ensure citizen-soldiers access to “Arms” so that, when called into service, they could “bear” them. See, e.g., LingBr27; BCBr20- 22&26. That was the meaning of “keep” in the most relevant authorities: contemporary state constitutions
    and militia laws. PBr16-17, 30. Respondent
    and his amici can point only to other statutes and
    contexts lacking the critical military language surrounding the word “keep” in the Second Amendment.
    RBr10-11; Brief of Cato Institute 12-14. “

    However there is clear evidence that at least Madison’s home state, Virginia, considered that the people would “keep” and use arms for militia as well as non-militia purposes. Although one could argue that hunting does provide a useful training which could be considered a “reasonable relationship” .

    From US v. Miller:
    “The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq….

    …Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. “

    Comment by Mike Hansberry — March 5, 2008 @ 9:31 pm

  6. Michael, in what way is the stuff about the Pennsylvania Constitution incorrect? Even if it is incorrect, the 2nd Amendment did not track Pennsylvania’s. I think the stuff about conscientious objectors is pretty powerful, as is the fact that Heller has cited nothing which indicates that the drafters of the amendment were concerned with private uses of guns. If originalists want to be honest and really take the originalist position, they have to admit that the Framers were not concerned with private gun use when they drafted that amendment. Whether today we are concerned with such use is another matter.

    I would be surprised if the Court got to the incorporation argument, but who knows what will happen!

    Comment by Bill Schwartz — March 5, 2008 @ 10:10 pm

  7. Bill,

    In what way do you consider the stuff about the CO provision in Madison’s draft “powerful” support for DC’s position?

    “…no person scrupulous of bearing arms, shall be compelled to render military service in person”

    Surely Madison was referring to individuals as he wrote “in person” -so “bearing arms” was not something accomplished merely as a collective activity, nor by proxy, but was something done at least to some extent “in person”.

    Note also that while Quakers would not bear arms in defense of the themselves or the state, the PA Const. protects all citizens’ right to bear arms in defense of themselves and the state.

    See “A Declaration from the harmless and innocent people of God, called Quakers”.

    See also Bliss v. Commonwealth of Kentucky and note that Kentucky had adopted the 1790 PA right to bear arms provision. If you swallowed the Historians BS, this will be an eye opener for you. The right to bear arms espoused by the KY court in Bliss is much BROADER than most pro gun right courts would find today.

    Lastly see Aymette v. Tenn. and note that while that court interpreted “bear arms” to have an exclusively military meaning AND found that the Tenn. right to bear arms provision was ONLY for the common defense, that court none-the-less found that the right to keep and bear arms belonged to “every” free white male -not merely those men in the active duty state militia.

    There is simply no support from the founding era for the right to arms for well-regulated militiamen only claim of DC.

    Comment by Mike Hansberry — March 5, 2008 @ 11:54 pm

  8. Bill,

    You said:
    “If originalists want to be honest and really take the originalist position, they have to admit that the Framers were not concerned with private gun use when they drafted that amendment.”

    How do you know that to be the case? What evidence do you have that the framers were not concerned with private gun use when they drafted the amendment?

    From a purely logical POV, even if there were no evidence that private usage was discussed, Absence of evidence is not evidence of abscence.

    However from a historical POV, we do have Tench Coxe’s often cited newspaper articles published as the amendments were being drafted and debated in Congress stating the amendment meant that “the people are confirmed in their right to keep and bear their private arms”

    1) It is difficult to imagine that “private arms” could be assumed to be used for public purposes only.

    2) In those articles Coxe plainly used “bear arms” in a non-idiomatic way despite DC’s claims.

    3) There are multiple references that the amendments in general referred to personal rights.

    4) The earliest state supreme court case (Bliss) treated the right to bear arms as a broad private right.

    Comment by Mike Hansberry — March 6, 2008 @ 1:02 am

  9. Gentlemen, I wish to state “This Brief is hard to follow.” I’ve multiple PDFs open on my screen just to follow the arguments back to their source. And, so far, half the time the source is a document from the 2000 symposium on the 2nd amendment (The Bellesiles clam bake).

    Mr. DiGiacinto, the City seems bent on rewriting all history. In the Washington letters I have found multiple references to men being pushed, prodded, bribed, etc to bring their own guns to the revolution and not be supplied by the State or Congress. One letter I just reviewed had Washington saying that the men that brought their own guns received a certain bounty while to those who did not, a lesser sum.

    Mr. Hansberry- There was a title for the militia Madison was discribing “The Militia of the United States.” I have seen that title used in many early documents including the 1814 Monroe letter proposing the first Federal draft and the actual 1814 bill Congress debated for the first military draft.

    Mr. Schwartz, the early draft of the 2nd and the conscientious objector clause is a logic trap. They keep trying to argue that bear arms or arms has a military connotation only and therefore “Keep” must do the same. But the 9th circuit couldn’t make this jump in 2002 even under prodding from Jake Rakove. The linguist Brief they noted trys to argue it meant both possession in ones home and in a public arsenal (trying to have it both ways). The Brady Brief is simply a high school student essay with no substance.

    In the end if Bare arms or arms can be proven to be something other then Military in connotation then the premise that keep is also military falls apart. Which brings us to the Cities 1794 Oxford Definition “those instruments of offense generally made use of in war.” Generally, in Websters, can mean “not excluding or exclusive to.” Thus the definition they gave in PETBr 15 can be also written as “Those instruments of offense, not excluding or exclusive to, those made use of in war.” Also in Aymette Vs State “The arms, the right to keep and bear which is secured by the constitution, are such as are “usually” employed in civilized warfare,” in both cases the words specifically, or only were not used. The definition is broader.

    Comment by James N. Gibson — March 6, 2008 @ 2:44 am

  10. Mr. Gibson: The procedure is: petitioner files its Appelent’s Brief; respondent files its Appellee’s Brief in opposition; petitioner then may file a Reply Brief. That’s it. The City has followed appellate procedure in filing a Reply Brief, and Heller, by rule, is not able to file a reply to it.

    Comment by James N. Markels — March 6, 2008 @ 9:33 am

  11. But no one so far has shown that there WERE drafters of the amendment concerned with personal uses of arms. They rejected language that would have done this.

    Coxe’s article was certainly not influential as it was only ignored by most of the press. Coxe himself says that he just “threw these remarks together.”

    As for the CO provision, I think clearly supports the idea that bearing arms meant for military purposes.

    I also think that some people are misreading the brief. They’re not denying that it’s not an individually enforceable right; the question is what is the scope of the right.

    Comment by Bill Schwartz — March 6, 2008 @ 9:37 am

  12. Bill,
    It does not matter if they intended the amendment to protect private uses anyway.

    The amendment mandates that the people be armed in order to provide for a well-regulated militia because that was required to preserve a free state.

    They were specifically addressing the fear that a standing army or select militia would transgress the liberty of the people.

    The remedy for this was to protect the right of the whole body of the people to keep and bear arms.

    Yes, it is all about the militia. We the People comprise the militia whether we enroll in a state militia or not. Private arms ownership and use of said arms to gain proficiency is protected by the amendment.

    Don’t like it, repeal it and face the consequences.

    Comment by David Lawson — March 6, 2008 @ 10:11 am

  13. Bill,

    Your said:
    “But no one so far has shown that there WERE drafters of the amendment concerned with personal uses of arms. They rejected language that would have done this.”

    Do you a single source from the founding era saying that ONlY the people in the active duty militia have a right to keep and bear arms.

    You said:
    “Coxe’s article was certainly not influential as it was only ignored by most of the press. Coxe himself says that he just “threw these remarks together.” ”

    How much press did the altrernate argument -that only those men in the active duty militia have a right to keep and bear arms -get?

    You said:
    “As for the CO provision, I think clearly supports the idea that bearing arms meant for military purposes.”

    Why is that? Were Quakers ONLY opposed to militia service in defense of the state but willing to bear arms in their own defense?

    You said:
    “I also think that some people are misreading the brief. They’re not denying that it’s not an individually enforceable right; the question is what is the scope of the right.”

    If DC accepts that Mr. Heller and the others have a right (of any scope) to keep and bear arms apart from actual service in the militia -that is news to me.

    Comment by Mike Hansberry — March 6, 2008 @ 6:25 pm

  14. on the subject of people owning guns while not serving in the militia, many Moravians, and quite a number of Quakers did not serve for their religious beliefs. To believe they were prohibited from owning arms they would use for hunting or protecting their fields, crops and homes is insane. These people who were mostly rural relied on hunting for added food for their families. To bar them because of their beliefs and to also require them to purchase a substitute (or pay a fine for not serving in the militia) would have been excessive even for the early United States.

    Second, regardless of Perich Vs Department of Defense, the militia system started under the 1792 militia act was enforced for almost 50 years. Given that fact and that men in the militia at 18 only served for 27 years until they exceeded the militia age, what happened to the guns these men owned when they became too old to serve. By the arguments put forward by the Bellesiles faction their homes were raided and their property taken without compensation. Yet you would think there was some record of this.

    As for the argument the gun was transfered to the man’s son, if a man had a son at 20 yrs of age he would still have seven years of service in the militia when the boy reached 18 and had to enroll. Second problem, what if he had more then one son.

    Finally, in the early 1800s there was discussion in congress of changing the age for militia service. Avoiding the discussion of lowering the start age to 16 years, there was also some talk of having the men between 45 and 60 placed in an alarm grouping. If these men were not still armed would this not be a nearly impossible suggestion.

    Comment by James N. Gibson — March 6, 2008 @ 8:13 pm

  15. The Bill of Rights has direct lineage from the anti-federalist debates during the state voting on the original constitution. One of the more well published and well read of these was the Pennsylvania Dissent which clearly spoke of the need of an amendment to protect the rights of the individuals to keep and bear arms for the purposes of hunting, self-defense and defense of the state.

    This places the individual right of private firearm use in the direct lineage of the Bill of Rights as part of the public debate.

    Comment by William Sweeney — March 6, 2008 @ 8:40 pm

  16. Gentlepeople:

    I am neither a lawyer nor a historian. I must say, however that reading all these briefs has been a very useful exercise.

    Also, this Blog has been of great value as well.

    Regards, and thanks so much
    Mike Gorman (Bowie, Maryland)

    Comment by Michael M. Gomran — March 7, 2008 @ 6:42 pm

  17. The term “bear arms” was frequently used in the Constitutional period to refer to individuals carrying arms for individual purposes. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1086176 for many examples.

    Nathan Kozuskanich’s Rutgers Law Journal and University of Pennsylvania Journal of Constitutional Law articles attempt to obfuscate this, but fail. See http://www.claytoncramer.com/weblog/2008_03_02_archive.html#3466369651048613111 for the very serious flaws in the Journal of Constitutional Law article and http://www.claytoncramer.com/weblog/2008_03_02_archive.html#4373283378863325154 for the Rutgers Law Journal article’s very serious problem.

    The Journal of Constitutional Law paper is essentially Kozuskanich putting his fingers in his ears and screaming, “I can’t hear you” about the individual uses of “bear arms” in the period. (He has read the paper by Joe Olson and myself mentioned above, and chooses to ignore every example but two.)

    The Rutgers Law Journal article is more problematic, and has apparently crossed over into academic fraud, because he cites Bellesiles’s Arming America as evidence that guns were scarce. While acknowledging that other papers “contradict” Bellesiles on this claim, he does not acknowledge that the gun scarcity claim was based on probate data falsification that caused Bellesiles to “resign” from a tenured position, and caused an unprecedented revocation of the Bancroft Prize.

    The equivalent would be if Kozuskanich had cited the Hitler Diaries that were published in 1983, and then indicated that there was some question about their veracity.

    Comment by Clayton E. Cramer — March 8, 2008 @ 4:39 pm

  18. Its obvious that Mr. Kozuskanich needs to work on his premise. For the words Bear Arms to have only the military meaning, as put forward going back to 2002 in the 9th circuit court ruling, one should be able to go through several thousand uses of the word in old documents and never find a single non-military use. Instead, as the author states, he found four such non-military uses. That’s actually evidence that the premise is wrong.

    Besides, the library of congress search engine is hardly the last word on finding references to words or wording in the collection. Its not a search engine of the complete text but a search of upper level words. For example, I found under Military Affairs, 1810, Pg 264 a reference to the possibility that men would use publicly supplied arms “for gunning.” But when you type this phrase into the search engine, all you’ll find are references to Bedford Gunning.

    In that same regard, I just tried the exact phrase Bear arms in the Library of Congress search engine and got 100 hits, not the 42 of this gentleman. Under Borne Arms I had 35 more hits for the exact phrase and under Bore Arms 18 hits. In the end however looking in a database of government documents can hardly be the best place to look for references to any of these phrases in a more domestic context. Its like looking for medical references in an engineering text book.

    Comment by James N. Gibson — March 9, 2008 @ 3:36 am

  19. I find odd that the Petitioners started out with a collective rights interpretation in their Merits Brief but ended up on a civic rights interpretation in their reply brief. The difference between the Petitioners’ two briefs should be sufficient to show how intellectually bankrupt the Petitioners’ position is.

    Moreover, the Reply Brief is an extended exercise in question begging and special pleading. The District of Columbia not a state. The Second Amendment is at its high tide in D.C., not at its ebb. To assert otherwise, and cite a Laurence Tribe op-ed for the assertion, is a true act of desperation, given how many cases before the Supreme Court Laurence Tribe has lost.

    Comment by Jacques McKenzie — March 9, 2008 @ 3:53 am

  20. Oh, and the Petitioners’ Reply Brief is racist.

    Comment by Jacques McKenzie — March 9, 2008 @ 3:56 am

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