Court urged to hear D.C. gun case
Six Washington, D.C., residents on Thursday urged the Supreme Court to step in now to define the nature of the right to “keep and bear arms” under the Constitution’s Second Amendment — in short, to decide whether it assures a private, personal right to have guns in one’s home. The brief suggested a different version of the issue at stake than had been posed by the District of Columbia government in its appeal in District of Columbia v. Heller (07-290). The brief in response can be found here.
The brief on behalf of Dick Anthony Heller and five other Washingtonians said they welcome the city government’s “effort to have this Court review the nature of Second Amendment rights. This case presents the Court a unique opportunity to correct a persistent misconception that the people do not actually enjoy a right that is specifically enumerated in the Constitution. ‘The people’ — individuals in our country — retain the right to keep and bear arms. This case raises a profound constitutional law question in the context of a stark split of authority among the lower federal courts and state courts of last resort.”
When the city filed its appeal last month, here is the question it raised: “Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns.” The residents’ brief, however, said the Court should rewrite the question it will review to read: “Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.”
Attorneys for the gun rights advocates suggested that the District’s version of the issue was “tendentious” because “the question in this case is not merely whether the city may ban handguns as a subclass of firearm; the question is whether a law that prevents people from keeping functional firearms — of any kind — in their homes violates the ‘right to keep and bear arms’ recognized by the Second Amendment.”
The residents’ preferred question, the brief said, “fairly and accurately reflects all the laws adjudicated by the courts below….The code provisions at issue amount to a complete prohibition of the possession of all functional firearms within the home. The challenged laws are thus an absolute negation of the people’s right to keep arms. If the right exists, the laws must yield.”
The D.C. Circuit Court ruling that city officials are appealing, the response brief said, “struck down their statute banning the possession of all functional firearms.” That includes, the brief said, a provision that requires all guns kept at home to be unloaded and disassembled or bound by a trigger lock. “The court of appeals explained that allowing individuals to possess only non-functional firearms inside their home is tantamount to prohibiting such weapons outright.”
While the city had argued that its law would allow the use of rifles or shotguns in self-defense in the home, the brief said that the issue of arms available for self-defense was not litigated. The city’s “newly invented right of self-defense lacks legal support, lacks credibility, and contradicts the plain language of the statute.” City officials, it added, “cannot recast their draconian laws, or the nature of this case, by creative presentation of the question at issue.”
In arguing for its own version of the question presented, the new brief said that would put before the Court a “quite narrow” issue, with the Court confronted only with the issue of whether “the Second Amendment securs individual rights.” Ruling on the validity of a flat ban on “functional firearms within the home” would not require the Court to announce or clarify any constitutional standards, it said.
“The mere existence of he Second Amendment right would clearly be sufficient to dispose of the city’s general ban on functional firearms,” it declared. The Court also need not decide how strict a constitutional test to apply to regulations that implicate that Amendment, it asserted.
The brief disputed the government’s anti-crime policy rationale for the local handgun ban, but said it will reserve most of its response to that for briefing on the merits if the Court grants review.
Although only local resident Heller was found by the Circuit Court to have standing to challenge the local law, the response brief noted that Supreme Court Rule 12.6 treats as parties before the Court with the right to file documents all those who were parties in the lower court.
The other residents have filed their own petition in the Supreme Court (Parker v. District of Columbia, 07-335), attempting to regain “standing” in the case. Their appeal argued that the Circuit Court has long followed a flawed practice on the “standing” question. The city’s response to that petition is due next Friday, Oct. 12.
As Madison might have said of the District’s appeal…
if finally armed with the sanctions of a law, {it} will be a dangerous abuse of power, {we} are bound as faithful members of a FREE STATE to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against…
Comment by Michael Hansberry — October 4, 2007 @ 9:24 pm
what part of “shall not be infringed” is at issue here?
Comment by greg johnson — October 5, 2007 @ 11:25 am
The most devastating part of the brief is the last section, which answers the emotional claim by the city that it shouldn’t have to “stand by while its citizens die.” Actually, the respondents point out, the city has repeatedly asserted sovereign immunity precisely because it wants to be able to stand by while its citizens die.
Comment by Stuart Buck — October 5, 2007 @ 12:29 pm
In drafting the Constitutional Second Amendment the Founding Fathers had no idea about today’s modern automatic, advanced tech, or high caliber weapons like the assault rifles or AK-47 Russian knockoffs now killing police officers, and American Citizens coast to coast relentlessly. This travesty was further ordained with the lifting of restrictions by the current administration, as directed by the NRA to enhance profiteering for weapons manufacturers quite irresponsibly, the rich strive to get richer at the expense of these humanities. I see no mention in the brief concerning banning of assault or militaristic type weapons or ammunition. I do not believe the Second Amendment would encourage common citizens the right to own nuclear warheads or today’s military type weapons. Federal banning of certain types of ammunition sales would allow gun collectors o display fine examples as show pieces, but should forbid those weapons from ever being fired. I believe the NRA and Gun Lobby abuse the actual intent of the Second Amendment by promotion of militaristic weaponry passing it of as a ‘citizens right to bear arms’. I believe the Founding Fathers would not allow for common citizens to freely own or use these deadly hi-tech firearms. The Supreme Court should review this matter and limit what type a weapon may be freely owned, and which type should be banned. There may be a citizen’s right to own a gun, but there is no right to own certain ammunition. The actual intent of Founding Fathers is being overlooked, if not willfully-wrongfully abused, and exploited for profit. Thank you.
Comment by Kenneth John Bemis — October 5, 2007 @ 2:05 pm
The Founding Fathers did not play fast and lose with the words and context of the Constitution.
Comment by Charles Norris — October 5, 2007 @ 2:37 pm
Those last two paragraphs are a quotation from the brief. Anyway, I guess it’s a good lesson in the danger of using emotional rhetoric.
Comment by Stuart Buck — October 5, 2007 @ 2:49 pm
greg johnson: what part of “shall not be infringed” is at issue here?
None of it. What’s at issue is “the right of the people to keep and bear”, and what exactly that means.
Comment by Sean Flynn — October 5, 2007 @ 3:41 pm
This is a response to Kenneth John Bemis. Kenneth, Washington DC bans handguns and functional rifles and shotguns, none of which would qualify as “modern automatic, advanced tech, or high caliber weapons like the assault rifles or AK-47 Russian knockoffs”. Nor is it about nuclear weapons. This case is about the citizen’s right to keep a handgun, rifle, or shotgun in his home for self-protection. You appear to buy the “slippery slope” argument on this one, but good heavens. Do you really think that because individuals shouldn’t own thermo-nuclear weapons that they also shouldn’t be allowed to own a six-shot revolver? This case is about small arms, not “hi-tech firearms”. As to the Supremes deciding what types of guns we can and cannot carry, they are unlikely to do so because it wasn’t an issue raised by the lower courts. The point you raised will have to be adjudicated at a later time.
Comment by Matthew A. Givens — October 5, 2007 @ 4:16 pm
As another response to Keneth John Bemis - Like the DC government, you’d be better served if you based you arguments on facts rather than emotional rhetoric. “Hi-tech” firearms, especially military-type assault rifles, are not “killing police officers, and American Citizens coast to coast relentlessly”. Check the crime stats. These weapons are almost never used in crimes, despite the fact that they are readily available and quite popular among gun enthusiasts. While there is a certian fuzzy-headed intuitive logic to the idea that they would be particularly dangerous (and hence make them an attractive scapegoat for those who would ban all weapons), such a conclusion belies a complete ignorance of the technical and historical aspects of firearms (firearms of 2 centuries ago were generally of a higher caliber than those today, for example), and of the reality of violent crime in the US.
As to the Founding Fathers’ intent, again, facts speak louder than emotional appeal or personal preference. Even a slightly educated analysis of the intent of the Second Amendment would show that it was clearly included so that the individual citizens of the Republic could defend the rest of their rights against any possible future tyranny by their own government, imposed through the use of military force (including the more modern advent of police forces). That being the case, they would clearly expect that the MOST protected arms would be those of the type used primarily by individual infantry soldiers in a contemporary military unit, and hence useful for militia service (the test for protection of an arm under [I]Miller[/I]), were the need of their service ever to arise. While the concept of an armed populace, capable and willing to protect their liberty from both internal and external threat, may be contrary to the view of the nation you and many others would like the US to be, it was the very core of what the Founding Fathers’ intended, and is, whether you like it or not, the nature of the nation they set up.
Comment by Robert Villa — October 6, 2007 @ 12:16 pm
In response to:
“In drafting the Constitutional Second Amendment the Founding Fathers had no idea about today’s modern automatic…weapons” : by Kenneth John Bemis on October 5, 2007 @ 2:05 pm.
The same argument could apply as well to the First Amendment with the unseen developments of film, video, pornography, and the Internet. If technological advancements can render a “fundamental right” obsolete, then just what is the real issue here? Rights or technology? Or is clouding the rights issue with a technology argument an honest strategy regarding “rights”? I think not. This ploy has a whiff of “separate but equal” to it. At this time in our history the Second Amendment issue is not about maximum technology, but about the minimum standards of the fundamental right of personal and national defense. Or “Minimum Code” in the parlance of architecture. Just what is the minimum “arm” (weapon) that a person can “bear” (carry) and not infringe upon the rights of others to be able to “bear” similar “arms”? The “nuclear weapons” argument is a red herring and an emotional appeal to the ignorant. The issue before the court is both one of intent and degree. Is the Second Amendment an individual right, as are all other rights, enumerated or not, in the Bill of Rights? If it is then, a fundamental right, what are the “minimums”? Archaic or modern. If “archaic” then is this a form of infringement? Would a return to the printing press be constitutional? If “modern” to the point of fully automatic weapons, is this beyond “original intent”? It is time for the Supreme Court to define the 2nd. Amendment as an individual right without the Orwellian, “collective rights” oxymoron, and to decide upon the “minimums”. In deference to the amendments “militia clause”, the minimums would be what the common, squad level, foot soldier had in WWII. That is a SEMI-automatic long gun of 7 shots such as the .30-’06 M-1 rifle , a pump or double barrel shotgun, a 6-shot, SEMI-automatic side arm such as the 1911 .45 Colt, and/or 6 shot S&W .38sp. revolver. These are the minimums, not the maximums, for those who’s right to “keep and bear arms” should be protected. Beyond that, there is room for the addition or proscription of certain equipment in the learned discussions of Congress or state legislatures. America is too important to consider any less.
Comment by Charles Norris — October 6, 2007 @ 1:05 pm
Perhaps a reasonable level of allowable weaponry would be what was available for individuals when the 2nd amendment was written. I have read accounts of duck hunters in the 1700s using cannon with 3-inch bores to hunt ducks. Apparently they could bring down as many as a hundred ducks with one shot - try doing that with an AK-47!
Comment by Gordon Frampton — October 8, 2007 @ 4:02 pm
It amazes me that any American citizen would fight to be disarmed. As a member of the black community I have noticed that our own Jesse Jackson in Chicago is the King of Corruption and Leads the black community in a fight to disarm the public. We more than any other race need to be armed and protected. Don’t let people like him that are fundamentally wrong talk you into surrendering any rights including the one to keep and bear arms. I hope for the good of all citizens, (especially blacks) that the D.C. case is ruled in a specific manner that allows our nation to retain the right to own and protect ourselves with firearms.
Comment by Randall Sprinkleman — November 9, 2007 @ 7:33 pm
The argument is made that the founding fathers didn’t anticipate high power, military weapons. Here is the problem with that–when the Bill of Rights was created, the civilian population had the same weapons as the military. There weren’t watered-down versions of guns that the military used. So yes, they did consider high powered military weapons. They wanted civilians to have free access to the same weapons the military was using. The fact that weapons technology has increased has no bearing.
Comment by John Guzik — November 25, 2007 @ 9:41 pm
Whatever the 2d Amendment says, was meant to say or is construed to say, it is without argument that we have long been disenfranchised from certain gun ownership in our homes. cf. sawed off shotguns and fully automatic weapons. As a gunowner, I therefore hesitate to argue to the court that a firearm is a firearm is a firearm the decision could be adverse to my admittedly predudiced interests. Better all weapons than none. It is discomforting that the decision will be in the context of DC, a quasi state governed by the Congress with abbreviated voting rights.
Comment by David M. Williams — December 17, 2007 @ 4:35 pm
I believe that if the Founding Fathers could view us as we are now, they wouldn’t be at all appalled with the technological advances in weaponry, but with the degradation of ethical and civic virtue.
Our moral fabric has deteriorated to a state of suspicion and mis-trust even amongst neighbors. The population has reached saturation densities in most urban areas, and local involvement has largely dropped off to less than 1% of the civil composition.
I own magazine fed, semi-automatic rifles, and they exsist purely and entirely to defend my home, my family and my nation. This is true of the majority of military pattern weapons, and their owners.
The reality is that the police have no legal obligation to assist you in ANY situation. They are a public service, and as such your physical well-being is your own responsibility. As many found out in the 1992 LA Riots, and the more recent events in New Orleans after Hurricane Katrina, taking up arms to defend ones life and family is not a far-fetched “Mad Max” fantasy of bunker-dwelling right wing extremists.
It is a very real threat. Consider the population of your nearest metropolitan city, and then research the number of police assigned to the city’s department.
Seattle for example:
Residents: 600,000+/-
Police Officers: 1300+/-
History has poised this question in a multitude of ways, but ultimately it is your responsibility to ask yourself as a citizen: “In a situation where my life is at stake, do I want to bet on assistance?”
Buy a military pattern weapon, and learn to use it. There is a reason the Swiss have not been invaded.
Comment by Aaron Schroeder — January 12, 2008 @ 11:40 pm
Article 1 Section 8 states in part “the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” As in “US v. Miller” arms which are suitable for militia service are the ones protected by the Second Amendment. If you don’t like that legal fact see Article 5.
“For those who believe it to be outdated, the Second Amendment provides a good test of whether their allegiance is really to the
Constitution of the United States, or only to their preferences in public policies and
audiences. The Constitution is law, not vague aspirations, and we are obligated to protect, defend, and apply it. If the Second Amendment were truly an outdated relic, the Constitution provides
a method for repeal. The Constitution does not furnish the federal courts with an eraser.”
KLEINFELD, Dissent from denial of rehearing en banc Nordyke v. King,
Comment by R. Keith Vance — February 8, 2008 @ 5:56 pm