A brief in favor of Respondent Heller has just been filed on behalf of 250 Members of the United States of House of Representatives, 55 United States Senators, and the President of the United States Senate, Richard B. Cheney. In January, a brief in support of the DC handgun and self-defense ban was filed by 18 Members of the U.S. House of Representatives. The latter brief suggests that "Consideration of, or deference to, Congress’s experience as an interpreter of the Constitution, in appropriate circumstances, is entirely consistent
with the Court’s role." Indeed true.
The 250/55/1 brief explains that Congress has repeatedly declared the Second Amendment to be an individual right, in the 1866 Freedmen's Bureau Act, the 1941 Property Requisition Act, the 1986 Firearms Owners' Protection Act, and the 2006 Protection of Lawful Commerce in Arms Act.
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- District Attorneys, the ABA, and precedent in DC v. Heller
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- LGBT brief in DC v. Heller:
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- Claremont Institute Empirical Brief in DC v. Heller:
- NRA brief in DC v. Heller:
- Respondent's Brief in DC v. Heller:
Anyway, all the brief says is:
1. Gun control oppresses blacks.
2. Condorcet, Condorcet, Condorcet.
3. List of signatories.
Which is all it needs to say.
My thought, if the militia is the only object of the Second Amendment: Congress has neglected to arm and train the unorganized militia (whose existence Congress recognized when it passed the Dick Act), so under the Constitution, the militia must be free to arm itself, the NRA doing an admirable job of training the militia.
2nd Amendment is just about all SPH does: http://www.stephenhalbrook.com/
They are essentially saying that they want SCOTUS to remedy the problem that they have the means and intent to remedy. Since a majority of both houses signed on, it would seem they could pass the act and moot the case. If I were the court, I'd think that I wish that I had known there was such support in Congress back when I could have denied cert!
Of course, as a resident of Chicago, I am happy with how things are going.
Yeah, that's interesting, isn't it? I presume it is because the Administration (qua Administration, of which the Vice President is a part) has filed a separate brief. This is a brief of legislators, and thus we get the Vice President's role as legislator here.
Didn't Glenn Reynolds just write a law review article on the VP's as legislative official rather than executive official?
If the notably ambidextrous* Cheney signed with the right hand, he was thinking Executively, and would therefore render the brief Confidential.
On the other hand (ba-dump-bump) if he went at it south-paw, then he was thinking Senatorially, and it's OK to read the brief.
*This non-fact plucked from the aether strictly for comic effect; actual handedness of the VP is unknown to the writer.
"the right of the People to keep and bear arms shall not be unreasonably restricted."
It would pass in a heartbeat. End of all of this textual/historical quibbling.
I don't see why we can't just pass a 28th Amendment stating "Each citizen shall possess the individual, fundamental right to keep and bear arms."
I am not sure I want strict scrutiny applied to the right to bear arms. Under the Court's test, strict scrutiny generally means no restrictions. In the case of the right to bear arms, would statutes restricting the ability of felons to keep arms survive strict scrutiny? I am not sure that such a law would survive the narrow tailoring aspect of strict scrutiny.
But Congress never has. Over successive iterations of Congress on votes on various bills relating to gun rights, the people's representatives, by supermajorities each time, have come to the very same conclusion since the beginning of the nation. That suggests, inductively, that the right is there. If it's not there, then what does Congress keep making sure to respect on behalf of the vast majority of its constituents? Clearly, millions of millions of Americans throughout history have thought they had such a right. Were they all -- including the Framers -- wrong, simply because RANDOM LIBERAL DUDE ON THE STREET from central casting disagrees?
Tcha; longwinded. Just say "stare decisis."
Yes. The NRA's amicus brief deals with this issue at some length, and I think quite convincingly.
That quite obviously is a cynical misinterpretation of the brief's reasoning. I guess you're the guy from central casting, eh?
Assume Heller instructs courts to look at post Heller restrictions "with a view toward the'well regulated militia'" purpose (as the NRA defines "well regulated militia").
Could a State ban gun collections of more than, say, 20 guns? Even under a strict scrutiny review standard, a limit of 20 guns might pass muster (kind of a pun there). An able bodied man does not carry 20 guns into battle and a "well regulated" militia is, in part, one that shoots well. If one practices with only 5 guns, one will be better regulated, yes?
Couldn't the Court then sidestep the whole issue and say, "Well, you (Congress) have the means and intent to remedy, so you do it."?
Wouldn't that be the nonjudicially-active way to go?
We hold these truths to be self-evident:
That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.
How can I have life if I can't be free to defend/protect it?
How can I have liberty if unarmed and unable to fight for it?
How can I be happy in bondage to a better armed enemy, or worse, a tyranny in our own Capital?
Freedom is the solution to the human condition.
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Congressional Brief in DC v. Heller
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Which Republican Senators didn't sign? (I'm slogging through the list)
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Baucus, Casey, Feingold, Johnson, Lincoln, Nelson (NE), Salazar, Tester and Webb
Aha! "Obviously the drafters of this language simply incorporated the "keep and bear" provisions from the Second Amendment, which we show were only applicable to militiamen serving in a well regulated militia. The probable intentions of the drafters, in changing from 'right of the people' to right of 'each citizen,' must have been concerns that noncitizens were covered by the original 2nd Amendment. (citations to lots of news stories on illegal immigation)."
It's hard to draft language that cannot be perverted *some way*.
clearly, since Cheney is the Root of All Evil (tm), he must be ambisinistrous, not ambidextrous.
if my latin checks out, that means with two left hands, whereas ambidextrous means with two right hands.
The VP is a constitutional office, not an agency. Moreover, he is elected, so the logic underlying the unitary executive doesn't apply.
Senators Clinton and Obama didn't sign the brief. But not to worry, they still support the Second Amendment!
I was pleasantly surprised to see DiFazio among the House Democrats signing on.
An renewed 2nd amendment would likely be interpreted based on the text. There would be no Clauswitzian fog of interpretation since it would be passed in 2008, rather than 1791 and a modern court would soon apply it. Don't forget many state courts are sympathetic, and would interpret the new amendment in a favorable way.
Once the historical sources of the two-clause Second Amendment become more clear to everyone, it will become apparent that the authors of the Second Amendment were were truly geniuses. We do not need to change the Second Amendment, just better understand it. There is nothing ambiguous about it if one simply relies on the Founders' own understanding.
Not the Illinois state courts, the New York state courts, the Massachusetts state courts, the California state courts (no equivalent of the 2nd Amend. in California) etc. etc.
Only 9 democrats in the Senate actually care about civil rights.
while i am of the school that the 2nd amendment clearly recognizes an individual right, and frankly that prohibition of concealed (or open) carry in ANY state is a violation of the 2nd...
i think it's a bit much too imply that the problems with the 2nd are SOLELY because of the gun-grabbers twisting. it is not written as clearly as it could be.
compare, for example, with what the WA constitution says about gun rights: "SECTION 24 RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."
that is certainly clearer than the 2nd. even a liberal could understand it.
i am aware that thankfully even many legal scholars on the left (tribe etc.) have come around to the correct view that the 2nd recognizes an individual right, but let's not pretend that it couldn't have been written better. if it had, like WA's, it would take away some of the gun grabber's ammunition, so to speak.
it's JUST confusing enough to allow gun grabbers something, however slippery, to hang on to
"is not written as clearly as it could be."
My view of the Second Amendment is not that of someone in the legal profession, it is of someone who does historical research. The Second Amendment is just as clear as any other provision in the Bill of Rights. The problem is not with the Second Amendment, but rather with those looking at it today being unwilling or unable to find out exactly what the Founders' meant by the language they used or exactly how the Second Amendment came in to being and who was responsible.
The only "correct" view is the Founders' view. From my point of view, which I try to base solely on the understanding of the Founders, the Second Amendment is very clear, even first clause. The well regulated militia clause has a history that is just now starting to be discovered by others.
I have spent, literally, 37 years researching what the Second Amendment meant to the Founders'. My book on this subject was just published on December 21st, 2007 (The Founders' View of the Right to Bear Arms - see the www). It was cited several times in the respondent's brief for Heller.
I urge those who are so sure that the Second Amendment is not clear to look at the historical information and find out why all of the following descriptions that are often used to describe it are largely due to ignorance of its actual history: ambiguous, puzzling, strange, confusing, etc., etc., etc. It's not puzzling to me.
Yes, that's it ::rolls eyes::
Yes, it is perfectly reasonable to take the position that "shall not be infringed" is really code for "may be infringed upon for any reason whatsoever".
Change the wording to reflect a right to abortion, or same sex marriage, and we'd see how confusing liberals find it.
As regards the Second Amendment, Section Seven of "The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to Their Constituents" proposes:
Crunch this and you end up with something very like the Second Amendment, which arguably means that the Second ought to 'unfold' into something very like the Pennsylvania dissenters' original.
It was Mason's "model" Bill of Rights that Madison promised to support the provisions of. It became the model for all four of the last ratifiying conventions. Virginia adopted it almost verbatim. North Carolina copied Virginia verbatim. Mason sent his Bill of Rights to New York Antifederalists who used it as the basis New York's Ratification Declaration of Rights. Later, Rhode Island relied on New York's Declaration of Rights.
This and a lot more information is all available in the book that is cited several times in the respondent's brief, The Founders' View of the Right to Bear Arms. It represents a lifetime of research, and as noted previously, was just published on December 21st. Very few people are aware of its existence yet. If you are interested, go to the www above.