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Briefs Filed in D.C. Gun Ban Case

Friday, January 18, 2008

As the date for Supreme Court argument in District of Columbia v. Heller approaches, the filing of briefs has begun.  The District filed its brief last week.  In addition, various “amicus curiae” (friend of the court) briefs were filed with the court.

U.S. Department of Justice Brief 

Gun owners are understandably dismayed about the brief filed by the U.S. Department of Justice (DOJ). 

Although the DOJ brief was filed on the same day as “friend of the court” briefs supporting the District of Columbia (DC), it does not support DC’s position but rather its own unique point of view—a view with which the NRA still disagrees.   

The District is asking the Supreme Court to reverse the decision by the U.S. Court of Appeals and find that the Second Amendment does not protect a broad individual right.  DOJ is supporting a different view—that the Second Amendment does protect an individual right, and that the case should go back to the lower court to apply a different standard of review. DOJ suggests applying a lower level of constitutional scrutiny than the Court of Appeals adopted.  The NRA disagrees and believes the lower court’s ruling should be upheld.     

NRA believes that the right to arms is a fundamental right; as with other fundamental rights, laws restricting that right deserve the highest level of scrutiny.  The NRA and those seeking to overturn the gun ban believe that the scope of the Second Amendment is clear. Contrary to DOJ’s suggestion, this case is not about felons or machine guns.  This case is about law-abiding people who want handguns and long guns for self-defense.  The total ban on self-defense gun ownership in D.C. is so severe that it should be found unconstitutional under any level of scrutiny, and we will make that point in our “friend of the court” brief when it is filed next month. 

Finally, while NRA strongly disagrees with many of the arguments in DOJ’s brief, there are a few areas of agreement. Notably, DOJ agrees that the Second Amendment protects an individual right, and that it applies to the District, even strongly hinting that under the lower “heightened scrutiny” it supports that D.C laws could be unconstitutional. This was not the position of the previous administration.  In fact, Clinton administration Attorney General Janet Reno and Solicitor General Seth Waxman, along with other DOJ officials from the Clinton administration have filed their own brief in support of the District, arguing that there is no individual right at all to possess guns outside of government service.  

DOJ also recognizes that the Second Amendment protects a right to self-defense, and that the right to arms was a pre-existing right protected, but not created, by the Constitution.           

If you would like to express your opinion of this brief directly to DOJ, please call the Department’s Press Office at: (202) 514-2007.  You may also contact DOJ by clicking here.

Hoping Something Will Stick To The Wall: Gun Ban Groups’ Briefs

Nearly two dozen briefs have been filed with the U.S. Supreme Court by individuals and groups supporting D.C.’s bans on handguns, having a gun assembled within the home, and carrying a gun within the home. 

On the whole, the briefs misrepresent the text and history of the Second Amendment, and misrepresent the Supreme Court’s past decisions relating to the Second Amendment.  They falsely claim that D.C.’s gun laws have reduced crime, falsely claim that upholding the appeals court’s decision will necessarily lead to invalidating many other gun control laws at the federal, state and local levels, and falsely claim that if the amendment protects an individual right to arms, the Court should let elected officials ride roughshod over the right anyway. Many of the briefs cite questionable studies conducted by researchers that support gun control, and that were paid for by foundations that endorse gun control. 

The briefs can be viewed at www.gurapossessky.com/news/parker/pleadings.html, but here are some highlights: 

  • Former Clinton Administration Attorney General Janet Reno and various former Johnson, Carter and Clinton administration Justice Department officials say that D.C.’s bans should stand because “Congress has enacted a series of statutes regulating firearms possession and use”—though, as they also point out, “gun violence continues.” They also falsely claim that the notion that the Second Amendment protects a right of a state to have a militia “is amply supported by the Second Amendment’s text, drafting history, and historical context.” In fact, there is nothing of the sort in the text or history.  Even D.C. is not claiming that the amendment protects a “state’s right”; rather, it is claiming that the amendment protects a right of a person to be armed only when serving in a militia. 

  • Anti-gun criminologists James Alan Fox and David McDowell make the remarkable claims that the “The D.C. gun law is an effective mechanism for reducing handgun violence,” “the effectiveness of the D.C. gun control law demonstrates its reasonableness,” and “the D.C. gun control law effectively reduces the supply of handguns in the district.” Of course, within 15 years of the law going into effect, D.C.’s murder rate tripled and, if crime statistics are any measure, the law “reduces the supply of handguns in the district” only among law-abiding people. 

  • The NAACP says, “nothing has changed in regard to the Second Amendment that would justify this Court in radically departing from its jurisprudence here.” Fair enough. In U.S. v. Cruikshank (1876), the Court said the right preexisted the Constitution.  In Presser v. Illinois (1886), it said gun control cannot have the effect of disarming the citizenry.  In U.S. v. Miller (1939), it said that the militia consists of individuals “bearing arms supplied by themselves.” And in U.S. v. Verdugo-Urquidez (1980), it said “the people” means the same thing in the Second Amendment that is means everywhere else in the Constitution. 

  • The American Academy of Pediatrics, Children’s Defense Fund and several other groups “dedicated to … removing handguns from homes and communities across the country,” urge the Court to uphold D.C.’s gun bans “regardless of whether the Second Amendment protects the right to possess guns for private purposes,” because, they say, “handguns are more lethal than other types of firearms” and “the dangers of handguns cannot be overcome by gun safety instruction.”

  • The American Public Health Association and several other public health groups espouse the ludicrous view that “public health research [a euphemism for studies paid for by anti-gun foundations, and that use disputed methodology to endorse gun control] may be relevant to assessing the constitutionality of the statutes at issue.”  

  • The Brady Center and some law enforcement groups admit, “There is no question that the right protected by the Second Amendment extends to ‘the people.’” They argue, however, that “the question is how that right is defined …. Under the ‘militia purpose’ view, the Second Amendment guarantees an individual’s right to keep and bear arms to the extent the person is engaged, or seeks to be engaged, in the conduct sanctioned by the text, i.e., possessing and using arms as part of a well regulated militia.” The Court of Appeals rejected this view, and thoroughly explained why it did so. 

  • The Violence Policy Center says—incorrectly and irrelevantly—that “the handgun industry has shifted production from revolvers to high-capacity semiautomatic pistols, the modern handgun is designed for superior lethality, the ammunition capacity of handguns has increased dramatically, handguns have higher caliber ammunition designed for increased lethality, [and that] handguns used today are more concealable.” 

  • 18 (out of 535) Members of Congress claim that, in Heller, the Court of Appeals “reads the Second Amendment as creating an individual right,” even though, as noted above, in Cruikshank the Supreme Court ruled that the amendment protects a preexisting right. 

  • Several mayors and other officials from cities, each of which they say “has developed regulatory programs to address the particular risks and threats posed by gun violence,” and which, not surprisingly, have a disproportionate share of “gun violence” in the country. They also claim that the Second Amendment limits only the federal government, forgetting the Supreme Court’s decision in Presser, that “the States cannot, even laying [the Second Amendment] out of view, prohibit the people from keeping and bearing arms, as so to deprive the United States of their rightful resource for maintaining the public security and disable the people from performing their duty to the general government.”

  • Several D.C.-based activist groups say that even if the amendment protects an individual right, the Court should “accord substantial deference to the decisions of elected officials who must decide how to regulate the availability and use of weapons in the interests of public safety and according to the particular needs, concerns, and conditions of their own communities.” Of course, as is taught to every schoolchild in America, rights are supposed to be protected against those who would legislate them out of existence. 
The brief for those seeking to overturn the D.C. laws will be due on February 4; friend of the court briefs supporting their side will be due a week later.  We’ll keep you up to date as the case progresses.
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