pageok
pageok
pageok
NRA brief in DC v. Heller:

The NRA amicus brief in DC v. Heller is now on-line. Although the Court will be deluged with amici, the NRA brief is likely to get a close read, for the same reasons that Justices pay close attention to the AFL-CIO brief in a labor case, or the ACLU brief in a free speech case. Here's a summary:

Part I goes through the major textual and structural arguments of the Second Amendment as an individual right. Does not use a lot of Framing Era quotes (of which there are a lot in Respondent's brief, and will be more in other amicus briefs). Explains how the right of the people to keep and bear arms makes possible the existence of a well-regulated militia. This argument is supported, in part, by a discussion of the NRA's own history is promoting marksmanship and safety training, including its leading role in certifying police firearms instructors. My favorite part is President Truman's letter thanking the NRA for its efforts during World War II, which "have materially aided our war effort."

Part II argues for a strict scrutiny standard in review of gun laws, based on Supreme Court precedent. It distinguishes "fundamental" from the way that term is used in deciding whether to incorporate a criminal procedure provision from "rights fundamental to our democracy." It notes that the Second Amendment declares itself to be "necessary to the security of free state", and therefore must be fundamental to American democracy itself.

The NRA brief engages the argument raised in pro-DC amicus from Professors Winkler and Chemerinsky. They had argued for a "reasonableness" standard of review (with "reasonablness" meaning, in effect, that almost any law short of total destruction of the right is permissible). The W&C brief reasoned that viewpoint discrimination is impossible in a Second Amendment context, and that therefore strict scrutiny is unnecessary. The NRA responds that viewpoint discrimination certainly is possible, especially under a weak standard of review, since gun laws could be used to disarm political opponents. The point could have been illustrated by abundant historical examples, but perhaps space limitations precluded this.

Part III addresses crime and accident statistics, and points out that only a minute fraction of the 200 million guns in America are misused. Modern state court cases (e.g., Rhode Island's Mosby v. Devine) as well as common law classics (Semayne's Case) are deployed to argue for the right of armed self-defense in the home.

The comments section of my previous post (on Heller's brief) was impressively thoughtful, as it was clear that commenters had read the Heller and DC briefs, and were offering commentary to advance the discussion. (Rather than getting into troll-fights over gun policy in general.) Commenters, keep up the good work! Please read the NRA brief before commenting, and of course also read the Winkler-Chemerinsky brief if you want to comment on the standard of review issue.

Arkady:
One thing that did strike me in the brief was the assertion (that I have no reason to doubt) that there are 200 million legally owned firearms in the U.S, of which 60-65 million are handguns. This in a population of 300+ million. That's a lot of guns. I myself favor the individual right interpretation of the 2d, but the above facts seem to show gun ownership in this country is not that severely burdened.
2.7.2008 6:22pm
Vivictius (mail):
While it may not be severely burdened currently, that is not reason to allow it to become so.
2.7.2008 6:27pm
H Bowman, MD:
Arkady: Makes me worry about all those unarmed people.
2.7.2008 6:53pm
DonP (mail):
"... gun ownership in this country is not that severely burdened."

Maybe not where you sit but come to Chicago and see what "burdened" means.

We have the same handgun de-facto ban as DC (registration closed over 25 years ago), a "so called" assault weapons ban, of course Class 3 is illegal in this state (in fact IIRC the 1934 NFA was written around the echo of Chicago full-auto weapons).

You are allowed to own shotguns and rifles that hold no more than 10 rounds and only if they are not listed as "assault" weapons like an M-1 Garand or M-1 Carbine circa 1942.

In the primary Tuesday we had several County level candidates proposing eliminating all gun stores in Cook and the collar counties as the latest way to "stop gang violence". (I frequently see many Latin Kings in their colors standing at the Cabela's gun counter ahead of me to buy an over and under Italian shotguns).

We are also the last of two states that forbid any form of concealed carry, except, of course, for every member of the Chicago City Council and a handful of the Mayor's friends.

There are many people, a good number with seats on Capitol Hill (and a couple running for a seat at 1600 Pennsylvania Ave.), that would, given any chance, extend that kind of restriction across the entire country.
2.7.2008 6:59pm
Helen:
We would not have counted the number of racially integrated schools in the country in 1954 and decided that the right to attend an integrated school was not severely burdened.
2.7.2008 7:10pm
JohnS:
The number of guns legally owned in the US is probably closer to 300 million than 200 million. Gary Kleck quoted BATFE figures indicating 235 million through 1994. BATFE has the manufacturing reports from 1998 - 2006 here, showing generally over a million each of handguns and rifles and about 750K shotguns each of those years. Guessing that 1995-1997 were about the same as 1998-2000, that adds around 36 million guns to the civilian gun stock, or 270 million at the end of 2006.

In 2005 there were about 223 million US residents 18 years of age or older, possibly qualified to legally own a firearm. The distribution of those guns is usually acknowledged to be 'uneven'.
2.7.2008 7:20pm
Wondering Willy:
The NRA has not always been the best of friends to gun owners, often times succumbing to politically popular regulation. But the brief is good!
2.7.2008 7:29pm
Clayton E. Cramer (mail) (www):

I myself favor the individual right interpretation of the 2d, but the above facts seem to show gun ownership in this country is not that severely burdened.
Unless, like the plaintiff in this case, you live in the District of Criminals.
2.7.2008 8:19pm
Breyer for the NRA? (mail):
Perhaps it is just me, but 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.
2.7.2008 8:49pm
Chris Mazur:
The total number of firearms in circulation is not at all surprising when you consider that many firearm enthusiasts own a dozen or more guns. The more important statistic when determining ease of ownership would be the total number of firearm *owners*, and how they are distributed across the US.

If a map was made you'd see dense ownership rates in certain states (NH, VT, ?Texas), as well as rural areas, but near-absence of ownership in other areas (LA, Chicago, NYC). Hopefullly the Heller team is starting a process that will lead to more uniform (and prevalent) legal gun ownership throught the country.
2.7.2008 9:19pm
Waldensian (mail):
In general, I think the NRA's brief compares favorably to respondent's brief. It seems to hold the flow of the argument better, and admirably resists the urge to descend into too much detail. A fine piece of work.
2.7.2008 9:33pm
NickM (mail) (www):
Has any brief so far advocated for importing the "undue burden" standard from abortion case law into firearms cases?

That standard might well attract several judges.

Nick
2.7.2008 10:32pm
MXE (mail):
I myself favor the individual right interpretation of the 2d, but the above facts seem to show gun ownership in this country is not that severely burdened.

Well, pretty much 100% of Americans own knives. I'm sure there are more than a billion civilian-owned knives floating around the red, white 'n' blue. Those are "arms," too. So let's ban guns entirely; it won't put a dent in that statistic.

The total number of firearms in circulation is not at all surprising when you consider that many firearm enthusiasts own a dozen or more guns.

I don't have a source to cite, but I believe the average gun owner has four or five guns. So the percentage of gun owners in the general population is relatively low, though when you look at households rather than individuals, the number is pretty high. (30-50% IIRC.)
2.7.2008 10:37pm
boo:
Kudos to the NRA for using the preamble (usually used by liberals to water down, if not empty of meaning, the amendment) as further support for strict scrutiny. I hadn't heard that argument before.
2.7.2008 10:38pm
Tony Tutins (mail):
The W&C brief seems quite circular to me: the existing regulations are reasonable, thus rational basis review is appropriate. Cleburne seems like a thin foundation for everything they want to load onto it. They assert Not all fundamental rights trigger heightened scrutiny, and then cite the right to homosexual sodomy as one of these. Well, the right to homosexual sodomy is not enumerated, for one thing. And despite Scalia's baiting the majority, the majority declined to find it fundamental.

They disparage the right to keep and bear arms as essentially just a property right (like owning a printing press?) And they pretend that "well-regulated" means regulation as we understand it in the post-FDR Alphabet Soup agency era.

The other things that bothered me was their blithely referring to cases decided before incorporation began with Chicago &Northwestern Ry, and with cases decided before strict scrutiny was first used with Korematsu.
2.7.2008 11:23pm
Tony Tutins (mail):
Big chunks of the NRA brief sound weak, filled with words suggesting handwaving, like "Indisputably", and uncompelling passages like this: Had Americans in 1787 been told that the federal government could ban the frontiersman in his log cabin, or the city merchant living above his store, from keeping firearms to provide for and protect himself and his family, it is hard to imagine that the Constitution would have been ratified. It's not hard for Chemerinsky to imagine, probably.

Section III, stuffed with solid arguments backed by facts and figures is the tightest section. The other two could well be rewritten to eliminate some of those flights of rhetoric. I'm going to flag well-written and poorly written parts.

Section I: Strong points:
- Right of the people from Constitution
Section II Weak points
- Miller Court reference
- Discussion of "well-regulated militia" disappears into discussion of the outstanding job the NRA has done, finally emerging with An effective militia cannot spring forth fully-formed from a people unfamiliar with
firearms.
Shouldn't that conclusion be signposted up front? Perpich case not used to full effect; fox in henhouse metaphor should have had its neck wrung.
- Just a lot of bad writing. The latter point is rendered moot -- who writes like that in this day and age? :)
- Citing Newdow? Wasn't that dismissed for want of standing? What precedential value does that have?

Section II is less bad, but still has some crappy writing, e.g. In this, Petitioners could not be more mistaken. Take that, you petitioners!
- I do not follow the comparison of the First Amendment's fundamentality to the Second.
- It would be fanciful to posit is another phrase that should be strangled at birth.

The rest of Section II, regarding strict scrutiny and overbreadth, is OK

I recommend that someone send Goodwin Procter a case of Strunk and White, ASAP.
2.8.2008 12:18am
federal farmer (www):

You are allowed to own shotguns and rifles that hold no more than 10 rounds and only if they are not listed as "assault" weapons like an M-1 Garand or M-1 Carbine circa 1942.


Actually the M1-Garand is not banned in Chicago. My registration of one was denied but only because I went over the not-defined-by-law 30 day time limit to register it. I have an appearance to appeal based on the fact that I kept the rifle (and all but one of my guns) outside the city pending regisration.
2.8.2008 12:21am
federal farmer (www):

If a map was made you'd see dense ownership rates in certain states (NH, VT, ?Texas), as well as rural areas, but near-absence of ownership in other areas (LA, Chicago, NYC).


There are tons of guns in Chicago. And believe it or not, but we do have a form of concealed carry here as well. It's just the law-abiding citizens that are disarmed.
2.8.2008 12:24am
Jacktastic (mail):
Discussion of "well-regulated militia" disappears into discussion of the outstanding job the NRA has done, finally emerging with An effective militia cannot spring forth fully-formed from a people unfamiliar with
firearms. Shouldn't that conclusion be signposted up front?


Isn't the point that what the NRA has historically done can only exist in the absence of regulation? In other words, the Confederate army could have resurged and we wouldn't have won WWII?

I do not follow the comparison of the First Amendment's fundamentality to the Second.

Isn't the National Rifle Association an association? I think the point is that both are essential to citizen participation in democratic self-governance. No individuals with guns, no democracy.

Also, Goodwin Procter isn't Gibson Dunn. There may have been a stronger version of the brief before evil, gun-hating liberals got their hands on it. Perhaps that version was stronger.
2.8.2008 2:02am
Millenial Klingon (mail):
2.8.2008 3:05am
ClosetLibertarian (mail):
I feel a little better about the chances for Parker/Heller after reading the respondent and NRA brief. Any result is possible but at least some of the better arguments have been presented.

The arguments about number of guns being evidence of no over restrictive regulation seem very odd to me. Is the number of computers or typewriters evidence that there are no unconstitutional or restrictive laws on free speech (look at China)? I own more than one hand gun because they have different purposes (some small, some automatic, etc.) and also serve as a backup because they do fail, like owning more than one car. Secondly, I can't bring any of them into DC where I am most likely to need one.
2.8.2008 11:14am
Clayton E. Cramer (mail) (www):

I don't have a source to cite, but I believe the average gun owner has four or five guns. So the percentage of gun owners in the general population is relatively low, though when you look at households rather than individuals, the number is pretty high. (30-50% IIRC.)
I think one of Kleck's books makes the point that the average number of guns per household of those houses with guns went from 4 to 5 in the 1980s-1990s--largely a function of increasing wealth.

I am not average, of course. I can't immediately tell you how many guns I own. I would have to go open the safes and start counting.
2.8.2008 1:57pm