Amicus briefs for Heller available in guns case

Tuesday, February 12th, 2008 9:28 am | Ben Winograd | Print This Post

Click the links below to read recently filed amicus briefs in support of the respondent in the upcoming case District of Columiba v. Heller (07-290). For a list of amicus briefs filed in support of the District’s handgun laws, click here.

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27 Comments »



  1. Perhaps it is just me, but upon reading the NRA amicus brief it seems that the frequent references to gun ownership for self-defense purposes being a right of all American citizens rooted in democratic self-government sound an awful lot like an appeal for Breyer’s vote. The NRA brief reads like the missing chapter of Active Liberty.

    Comment by Jacques MacKenzie — February 7, 2008 @ 8:51 pm

  2. Anyone care to speculate as to whether or not Heller gets extra time for argument? It is suspiciously the only argument scheduled for the 18th even thought there are 3 scheduled for the 24th.

    Comment by Chris Gaskill — February 8, 2008 @ 2:26 pm

  3. I am pleasantly surprised & pleased to see that the majority of the Senate & the House signed onto an amicus brief in opposition to the D.C. gun ban. It was both informative and inspiring. I commend Senator Hutchison, Senator Tester and all the members of the Senate & Congress who stepped up the to the plate and stand up for what is right. The Bill of Rights and the Constitution are the foundation of this great nation of ours. It is what makes us a “free” people and gives us our identity as a “free” nation. It is not negotiable. And to see our most basic and fundamental rights being challenged on daily basis is appalling. There just is no logic in making it illegal to own certain types of firearms in the name of reducing gun violence or taking it out of the hands of violent criminals. The criminals do not follow laws, period. Therefore, what you have left are law abiding citizens who are disarmed and defenseless against violent criminals armed with illegal guns. It is THAT simple.

    Comment by Kenny Ng — February 10, 2008 @ 12:47 am

  4. Kenny Ng, you have no idea just how correct you are regarding how criminals don’t follow the law. Heck, according to several courts, they aren’t required to register firearms due to 5th Amendment protections.

    So why in the world are we as law abiding citizens punished for the acts of a violent few? Why also are we also placed in a position where we may not defend against an assault by criminals, governments, or other? Why should we not be able to be armed exactly as those who would do us harm? This is what the 2nd Amendment is about. ALL prohibitive gun bans are unConstitutional directly because the people that would do us harm will not abide by bans or registrations. They will use any and every weapon available against us. This includes handguns and machine guns. The enemies of freedom and America will use everything they can to destroy us. The Court has the responsibility lain upon its shoulders to do what Congress has been unwilling to do due to cowardice. Allow America and it’s citizens to be able to effectively fight and defend against those who would usurp our way of life and our freedoms.

    Mike

    Comment by Michael Saranos — February 10, 2008 @ 8:34 pm

  5. The gun-control mindset doesn’t differentiate between criminals and the rest of us. To them we are all potential murderers.

    Comment by Munango-Keewati — February 11, 2008 @ 12:37 pm

  6. I find it interesting how Congress and various state legislatures have craftily whitled away at what the People are entitled to under the unamibiguous language of the 2nd Amendment.

    What is the “line” that the People should not be trusted to cross? Machine guns, 50 caliber bullets, armor penetrating ammunition (virtually any large caliber hunting round), semiautomatic rifles, magazines holding more that 20 rounds, rifles with detachable magazines, scary looking firearms, any barrel with a bayonet holder?

    If the Framers vision is to hold true, shouldn’t the People be afforded the same access to arms as is enjoyed by your municipal police department? I hope the court makes an effort to establish the definition of what “arms” are protected by the Second Amendment and does so leaving little room for creative subclassing and scare tactics of the anti-gun lobby.

    Comment by Bryan Manka — February 11, 2008 @ 3:50 pm

  7. bryan,

    personally, why limit the OBJECT?

    after all my .50BMG rifle is currently sitting in my gun safe. DOING NOTHING.

    it’s not until I DECIDED to commit A CRIME with it, is when I CROSS the line. after all, a MURDER using a small .22LR revolver and one using a .50BMG rifle is still MURDER…

    Comment by leo divinagracia iii — February 11, 2008 @ 5:58 pm

  8. The proper standard would be any weapon that has an uncontrollable or unintentional fallout would fall outside of the scope of the 2nd Amendment. This would basically include radioactives, biologicals, and chemical warheads or devices that pose a lethal risk to higher life. All of the above expel a substance that is dangerous to life and the person deploying the device has no control of how the fallout disperses.

    Anything short of that should be covered by the 2nd Amendment and should be out of bounds for any kind of restriction by the Government in regards to access by law abiding citizens.

    I would hope that SCOTUS would realize that prohibitive laws harm the nation and the kind of laws we need should be harsh and be directed towards the misuse of firearms. Exactly the same standard of free speech. Many people like to say that there are restrictions on free speech. There are but none are prohibitive, they are all responsive and that standard should be held across the board on the 2nd Amendment as well. You are not deprived of the ability to yell “FIRE” in a crowded theater, but doing so is a misuse of your rights and can be punished. Prohibitive laws are akin to thought regulation. Another slippery slope we should do well to avoid at all costs.

    Mike

    Comment by Michael Saranos — February 11, 2008 @ 10:14 pm

  9. I think the one distinction that gets lost is not every “weapon” is considered “arms” in a traditional sense. “Arms” would refer to “small arms” and not just “weapon.” Your typical person-deployable and usable gun. Even a crew-machine gun is not a traditional “arm” in a conventional T.O.E. Same with indirect-fire weapons like mortars or cannon. That is the reason we have terms like “artillery” “ordnance” “bomb” “rocket” “missle” etc.

    So maybe the “strict scrutiny” category is any military infantry shoulder arm or side arm, and their progeny? Not that I disagree with Michael’s reasoning. But I think the government’s “sky is falling” argument that we will be able to walk into Walmart and walk out with a RPG are slightly disingenious.

    Comment by Ken Hanson — February 12, 2008 @ 10:02 am

  10. Dear ScotusBlog:

    Your list above omits two briefs filed in support of Respondent:

    Academics
    http://www.gurapossessky.com/news/parker/documents/07290bsacBriefofAcademics.pdf

    Congress of Racial Equality
    http://www.gurapossessky.com/news/parker/documents/07290bsacCongressofRacialEquality.pdf

    Comment by Carl Dick — February 12, 2008 @ 11:16 am

  11. I have been perusing the various briefs, both defendant and respondant and see a, to me, curious blindeness around the Miller ruling.

    The ruling on the legality of the ownership of a sawn off shotgun was…..

    In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

    This has been taken time and again to show that a sawn off shotgun was not part of military equipment and therefore not liable to the protection of the Second Amendment.

    My concern is that is most certainly NOT what was said.

    The ruling was that no evidence was submitted and therefore the instrument was not within judicial notice to demonstrate the use.
    Even though this type and class of weapon was already in use and had been used widely during World War I.

    Is it me or is there a disconnect?

    If Miller had lived to submit proof would this have been overturned, should this be clarified as part of what is or is not a 2A protected class of instrument?

    Comment by Trevor Bayliss — February 12, 2008 @ 1:51 pm

  12. Evidence has now been presented by the Commander of the American forces General Washington on Pages 29-30 in the brief of Virginia1774.org

    Comment by Rudolph DiGiacinto — February 12, 2008 @ 3:53 pm

  13. Here’s a relevant quote from Clinton v. Englebrecht, 80 U.S. 13 (1871), which involved an act by a territorial legislature:

    “In the first place, we observe that the law has received the implied sanction of Congress. It was adopted in 1859. It has been upon the statute book for more than twelve years. It must have been transmitted to Congress soon after it was enacted, for it was the duty of the secretary of the territory to transmit to that body copies of all laws on or before the 1st of the next December in each year. The simple disapproval by Congress at any time would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body.”

    In the case of the DC handgun ban, the ban was against longstanding federal policy, as described by the amicus brief filed by majorities of the House and Senate. There’s no way that the implied consent of Congress can be reasonably inferred. And the lack of implied consent is made glaringly obvious by the amicus brief filed by majorities of the House and Senate.

    The Supreme Court should not reach the constitutional issue. The handgun ban should be struck down as unauthorized by Congress.

    Comment by Andrew Hyman — February 12, 2008 @ 9:55 pm

  14. “The handgun ban should be struck down as unauthorized by Congress.”

    Perhaps, if in the future it doesn’t take them 32 years to get around to it.

    Comment by Bryan Manka — February 12, 2008 @ 11:06 pm

  15. Sorry for the successive posts, but I have to ask Mr. Hyman. At what point do you think a reasonable person would consider the Congress to have given their “implied consent”?

    If failing to act for 32-years act on a law that:

    (1) is within their immediate jurisdiction,
    (2) the majority of their membership considers to be blatantly unconstitutional,
    (3) has arguably contributed in a steady increase in crime ;

    isn’t construed as implied consent then, with all sincerity, what would you suggest is the tipping point?

    Comment by Bryan Manka — February 12, 2008 @ 11:25 pm

  16. Ken, I’d agree except that many crew served weapons from the era of the Founding Fathers were privately owned as noted in many historical texts. Ships of war and cannon are the most commonly referenced though mortars and other implements requiring more than a single person to employ were commonly privately owned.

    With the technology today, for the citizens of the United States to be effective if an insurgency or outright invasion takes place, we must have the ability to present arms beyond rifles, shotguns, and handguns against our foes. Though highly unlikely, if faced with a foe that has armor, destructive capabilities such as rockets and artillery, we must be able to respond in kind or have a means to neutralize these arms in the hands of an invader. Without this aspect, the 2nd Amendment is meaningless. We as citizen soldiers must be able to perform effectively in the field should something happen and the current restrictions on arms prevents this. I personally view those that support bans on guns of any catagory as aiding any potential enemies.

    Mike

    Comment by Michael Saranos — February 13, 2008 @ 12:22 am

  17. Hi Mr. Manka. You say that “the majority of their membership considers to be blatantly unconstitutional.” If that’s been the consistent view of Congress, then how can you infer consent?

    Comment by Andrew Hyman — February 13, 2008 @ 2:44 pm

  18. Mr. Hyman. I read your original comment to suggest that the case should be remanded to the lower court for further review. I see that I misunderstood the point you were making. Chalk my reaction up to minimal sleep and a busy day.

    My sincere apologies.

    Comment by Bryan Manka — February 13, 2008 @ 3:01 pm

  19. Adrew: How can the Court reach that issue when it was never raised by the parties involved, there was no evidence provided to the trial court on this, and it is not even mentioned in the Court’s own description of the Question Presented?

    Even if the Court thinks about this ancillary problem, the opinion will merely state, “We will assume for the purposes of this opinion that the statutes in question were consented to by Congress.” And then they will go on to the constitutional matter at issue.

    Comment by James N. Markels — February 14, 2008 @ 10:15 am

  20. James,

    Picking up where you left off, there is a similar problem with the Dept. of Justice brief. D.C. raised no further issues of material fact in response to Heller’s summary judgment motion. Both D.C. and Heller - both parties - have conceded that there are no further factual issues in this case. All outstanding issues are issues of law. Why would the Supreme Court ask some lower court for the answer to a purely legal question?? They’re supposed to tell the lower courts what the law is.

    Comment by Robert Hilton — February 14, 2008 @ 9:42 pm

  21. The second amendment recognizes the God-given right of the people to protect the precious gift of life by the use of privately owned and readily available firearms. Unwarranted interference (Infringment) with this right weakens the people’s right of self protection of innocent life. How it it that the agents of Ceasar, sworn to uphold our constitution, escape accountability for the loss of innocent lives of victims disarmed by unconstitutional gun laws… unable to fend off the criminal element at large in our land? Who will speak for the muted dead who in their last breath wished for some mercy or means to defend their life blood as it was being spilled by godless murderers? Who will stand up for the rights of future victims who will die at the hands of evildoers enabled and made strong by unconstitutional gun laws that disarm only the law abiding citizen?
    We are born with the inherited law of God. It is our conscience. Man made laws simply reflect our god given conscience. All the laws made to protect us from murder, crime and evil are ineffectual if one refuses to be guided by his conscience. By all human accounts, the recent Illinois murderer was a “good guy” until he walked onto a stage in a government mandated “gun free” zone and once again, played out the all too familiar scenario of murdering defenseless innocent loved ones. We become enraged when we see innocent seal pups being bludgeoned to death on our tv screens. When will the outrage over the slaughter of our innocent ones compel us to demand the end of the rape of our second amendment rights and freedoms so many of our families have paid for in blood?
    A firearm is simply an inanimate object that like any other man made device such as a motor vehicle, can be used to accomplish the conscious will of the operator, whether for good or for evil. In the end, it is the personal conscience, not man made law, that drives us to act for good or bad.
    Most of us that make up the society of humans on this earth are guided by our conscience to do good. The right of the people to keep and bear arms when left unmolested, has a great net result of good for the people and society as a whole. End the infringement of our individual civil rights and liberties as recognized and protected by the second amandment to the constitution of these United States. Honor the millions of our bravest who made the ultimate sacrifice on the altar of freedom so we, as a people, could continue to enjoy, cherish & preserve our way of life as a free people.

    Comment by Enness Theodore Arnold Jr. — February 15, 2008 @ 3:47 pm

  22. If you take a look at the Docket at
    http://www.supremecourtus.gov/docket/07-290.htm

    it appears that they report only 44 Amici brief for the Respondant where this site shows 47, as does the DCGunCase.com site.

    As there are no rules for names, it is tricky to sort out, but to me it appears that:

    The .gov Docket lists the NRA twice where one should probably be the NSSF.

    And that these three briefs are left off the Docket (using your names):

    American Civil Rights Union
    Citizens Committee for the RKBA
    International Scholars

    Am I wrong? If not, is there a problem that they don’t show on the online Docket?

    Comment by Joe Rickershauser — February 15, 2008 @ 4:21 pm

  23. The Docket at
    http://www.supremecourtus.gov/docket/07-290.htm
    has been updated, partially correcting items in my previous comment.

    The National Rifle Association is still listed twice (with no mention of the unrelated National Shooting Sports Federation).

    Briefs for the
    American Civil Rights Union
    Citizens Committee for the RKBA [Correcting Myths]
    have been added.

    Still no mention of
    International Scholars

    Comment by Joe Rickershauser — February 19, 2008 @ 1:16 pm

  24. Here is the thing. If any of these “gun laws” really did any good, especially the D.C. Ban, I would be inclined to support them.

    Having been a Special Police Officer in D.C. including more than a few shifts spent in Public Housing and some “rough little cuts” here and there I can assure you they don’t.

    As much as I love liberty and cherish gun ownership, I would hold hands with Sara Brady and throw all of my guns off the fourteenth street bridge if these laws did any good. (despite the fact that all of my guns together have killed fewer people than Senator Kennedy’s car)

    20,000 gun laws on the books and they don’t work. Total bans haven’t helped in Australia, England, Jamaica and a slew of other places.

    England is an Island for crying out loud and they can’t stop armed criminals with a total ban.
    I hope the court uses some common sense along with a sense of duty and remembers their oaths of office on this one.

    Comment by Douglas Wade Beatty — February 19, 2008 @ 6:19 pm

  25. In times like this, I wonder if there is any hope left for this country. More people die every year from medical malpractice then in all the gun crimes put together.

    I’ve heard all the arguments for gun control and I personally think there are all full of sh@#. The one rings in my mind to this day. It involved a environmetalist who stated all guns should be banned. So I told him in that case then the cops won’t need them either. The gentlemen I was discussing this with then stated, “The cops need their guns because there will still be illegal guns out there.” So you see by his own admission gun control does not work. He stated it and still won’t believe it won’t work.

    There is a fine line on what is considered arms. In the time the Constitution was written, weapons of war, including cannons, warships, and other things, were personally owned. Is it time for this to be recognized? I don’t know. But we need to take this one step at a time.

    Oh, before i forget I’ll add one of my personal favorites for the .50 cal ban. This weapon can be used to take down an airliner on take off. This one had me ROTFLMAO. Even if you managed to hit a target moving at 140 mile an hour from the very extended range you would have to shoot from, the single 671 grain round you would get off could not due enough of damage to make the airliner crash, even if it hit the engine. Most people can’t shoot 100 yards let alone from a couple of thousand. Too many variables come into play. Not to mention the fact that this weapon is not easily hidden due to the sheer size.

    Hopefully the Justices will see all of this for what it is, and decide that the RKBA is an individual right.

    Comment by Mike Fletcher — February 20, 2008 @ 3:39 pm

  26. The Docket now has all the corrections that I mentioned in post #22.

    http://www.supremecourtus.gov/docket/07-290.htm

    The last four entries for Feb 11, and the deletion of a duplicate from the Feb 7 entries have brought it into agreement with the other sources.

    Comment by Joe Rickershauser — February 21, 2008 @ 10:27 am

  27. Hello,

    When reading the Amicus Brief by the Form Generals it was stated that:
    “Private handguns are Military handguns”.

    If they meant that a private individual owning handguns promotes handgun training , I can see that.

    Unfortunately from all the Military people I have talked to in the last few years I have heard that it is Forbidden to carry a personally owned firearm when in Combat.

    Why the apparent contradiction?

    Comment by David Tweed — March 31, 2008 @ 11:57 pm

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