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LGBT brief in DC v. Heller:

A brief filed on behalf of Pink Pistols and Gays and Lesbians for Individual Liberty presents a LGBT perspective on the Second Amendment. The main arguments are: 1. LGBT people have a heightened need for handguns for self-defense, because of the frequency of hate crimes, the majority of which involve attacks in the home. 2. The militia-only interpretation of the Second Amendment would exclude LGBT people from the exercise of a constitutional right, since courts are extremely deferential to legislative/executive decisions on military issues, including discrimination against LGBT people in the military. Unlike with the other briefs that I've blogged on, there is no counterpart brief in support to the DC handgun ban to which I can link. No LGBT organization participated in an amicus brief on DC's side (although, of course, some of DC's other amici are "gay-friendly," just as many of Heller's other amici are).

Daniel Chapman (mail):
The second argument (at least as you paraphrased it) is very persuasive.
2.9.2008 3:42pm
Porkchop:
The second argument also applies to most women, as well as men over militia age.

Some of the other amicus briefs pointed out that the militia by statute includes only women who are actually in the National Guard. Men are in the statutory militia simply by being between the specified ages, but women have to take the affirmative step of enlisting.

Being well over the age of statutory inclusion in the militia, I sympathize with the exclusion argument. I hope I did not age out of being one the "people" several birthdays ago. (My teenagers don't think I ever was one, but that's a different issue.)
2.9.2008 4:32pm
JohnO (mail):
I'm surprised by the statement that most hate crimes against LGBT persons occur in the home. That seems counterinituitive to me.
2.9.2008 4:32pm
Joe Kowalski (mail):
I never realized that Saturday Night Live was so politically prescient. A quote comes to mind involving bedfellows that one would not expect...
2.9.2008 4:35pm
Clayton E. Cramer (mail) (www):
I wsa very pleased to see Pink Pistols' brief. No one should have to live in fear of thugs, and it doesn't matter if they are motivated by greed, intoxication, or hatred.
2.9.2008 5:09pm
Cornellian (mail):
Clayton Cramer must be feeling very conflicted right about now.
2.9.2008 5:10pm
Clayton E. Cramer (mail) (www):

I'm surprised by the statement that most hate crimes against LGBT persons occur in the home. That seems counterinituitive to me.
There are a lot of hate crimes against homosexuals that are vandalism against homes. Now, strictly speaking, you can't use a gun to stop a thug spray-painting "queer" on your house, but cringing in fear in your home because you aren't sure whether someone is going to stop at property damage is not a situation anyone should have to suffer.
2.9.2008 5:11pm
Clayton E. Cramer (mail) (www):

Clayton Cramer must be feeling very conflicted right about now.
Not in the least. You will notice that I posted something about this before you did. I was on a panel at the Gun Rights Policy Conference with a representative of Pink Pistols.
2.9.2008 5:12pm
federal farmer (www):
Their brief was one of the most difficult one to read from an emotional perspective (the other being the disabled veterans). Very compelling. I wonder if this kind of appeal has much weight with the black-robed ones. I would assume so...they are people after all.
2.9.2008 5:33pm
Truth Seeker:
I'm surprised by the statement that most hate crimes against LGBT persons occur in the home. That seems counterinituitive to me.


There are a lot of hate crimes against homosexuals that are vandalism against homes. Now, strictly speaking, you can't use a gun to stop a thug spray-painting "queer" on your house, but cringing in fear in your home because you aren't sure whether someone is going to stop at property damage is not a situation anyone should have to suffer.


I thnk what happens is the gay invites someone over after meeting in a bar (maybe for more drinks or pot) and the person isn't gay and doesn't realize the inviter is, and when the invitee finds out, he tries to kill the gay. I've read a few stories like this in the news. Some people think if a gay hits on them it means something about their own sexuality and they want to kill.
2.9.2008 5:42pm
GV:

I thnk what happens is the gay invites someone over after meeting in a bar (maybe for more drinks or pot) and the person isn't gay and doesn't realize the inviter is, and when the invitee finds out, he tries to kill the gay. I've read a few stories like this in the news. Some people think if a gay hits on them it means something about their own sexuality and they want to kill.


I can't be the only person that laughed out loud from reading this. I was going to write a substantive response, but where do you begin?

. . .

I was dissapointed to see that the NRA beleives the second amendment should have no effect on felon-in-posession laws. Professor, do you believe there could be valid as-applied challenges to the felon-in-posession statute?
2.9.2008 5:52pm
Nessuno:
I think the first two sections were pretty standard fare, but the third section is indeed very persuasive. As they argue, allowing the collective right argument to prevail would strip the right from homosexuals entirely, as well as every other group or individual deemed not qualified for military service.

The idea that someone who is of poor health or disabled (and thus unqualified for service) cannot own a gun is perverse. It is frequently these individuals who most need to equalizing defense potential of a firearm.
2.9.2008 6:06pm
CEB:

I can't be the only person that laughed out loud from reading this

You're not. The best part is that Truth Seeker's fingers revolted and sabotaged his effort to type "I think."
2.9.2008 6:06pm
Nate W. (mail):
The second argument is fallacious. The statement that "The militia-only interpretation of the Second Amendment would exclude LGBT people from the exercise of a constitutional right" assumes the conclusion that there is an individual right to bear arms. The militia argument is that the right to bear arms belongs effectively to states, not to individuals. If this is the case, then no one is being excluded from the exercise of a constitutional right, because there is no constitutional right that an individual could exercise. I'm agnostic about the second amendment personally, so I don't really have a dog in this fight. But don't get too excited about the argument in this post: from a logical standpoint it is wretched.
2.9.2008 6:30pm
CEB:

The second argument is fallacious. The statement that "The militia-only interpretation of the Second Amendment would exclude LGBT people from the exercise of a constitutional right" assumes the conclusion that there is an individual right to bear arms.

And the fallacy is so blatant most of us didn't (so it seems) even notice it. It's a good example of how the more outrageously false a statement or argument is, the more believable it is.
2.9.2008 6:42pm
CEB:
...unless the constitutional right prof. Kopel is referring to is something other than the right to bear arms. (equal protection, e.g.)
2.9.2008 6:44pm
Soronel Haetir (mail):
Unless of course you combine the militia only argument with the militaristic wording argument and reach the conclusion that the people as indiviuals have the right to participate in organized militias which could work to the advantage of the LGBT cause.
2.9.2008 6:51pm
pluribus:
Clayton E. Cramer:

I wsa very pleased to see Pink Pistols' brief. No one should have to live in fear of thugs, and it doesn't matter if they are motivated by greed, intoxication, or hatred.

Everybody has the natural right of self-defense, and the use of guns is certainly basic to that that right, so I agree completely with your statement. And it is good that some people who don't generally line up on the right/conservative side of the spectrum can agree with this basic proposition.

The next step, however, is to determine what restrictions--time, place, manner, etc.--would pass constitutional muster, but still leave the individual right intact. I can't imagine a right that is completely unfettered, but my mind is open to instruction on the question.
2.9.2008 6:55pm
wekt:
Nate W. said:

The second argument is fallacious. The statement ... assumes the conclusion that there is an individual right to bear arms. The militia argument is that the right to bear arms belongs effectively to states, not to individuals

No, neither party raises the naive collective-rights misinterpretation. Both parties admit that the Second Amendment is an individual right, and the Question as formulated by the Justices presume that the Second Amendment protects and individual right. Heller argues that 2A protects private keeping and bearing, whereas DC argues that it only protects the right of individuals affiliated with a state-regulated militia.
2.9.2008 7:10pm
Clayton E. Cramer (mail) (www):

Everybody has the natural right of self-defense, and the use of guns is certainly basic to that that right, so I agree completely with your statement. And it is good that some people who don't generally line up on the right/conservative side of the spectrum can agree with this basic proposition.
The person representing Pink Pistols sounded more libertarian than liberal from some of what she said.

The next step, however, is to determine what restrictions--time, place, manner, etc.--would pass constitutional muster, but still leave the individual right intact. I can't imagine a right that is completely unfettered, but my mind is open to instruction on the question.
Vermont and Alaska are pretty close to unfettered. No permits are required to carry concealed or openly. There are restrictions are where to carry (courthouses, jails, and a few other obvious places--and some unobvious ones for Alaska), but it is still pretty unfettered.
2.9.2008 7:55pm
Clayton E. Cramer (mail) (www):

I thnk what happens is the gay invites someone over after meeting in a bar (maybe for more drinks or pot) and the person isn't gay and doesn't realize the inviter is, and when the invitee finds out, he tries to kill the gay. I've read a few stories like this in the news. Some people think if a gay hits on them it means something about their own sexuality and they want to kill.
I rather doubt it. You would have to be pretty clueless not to figure out the inviter is gay. There are people who actively seek out homosexuals to pick up, and then commit murder. There are also homosexuals who are very conflicted about their sexuality, and seek out other homosexuals to murder.
2.9.2008 7:57pm
Nate W. (mail):
No, neither party raises the naive collective-rights misinterpretation. Both parties admit that the Second Amendment is an individual right, and the Question as formulated by the Justices presume that the Second Amendment protects and individual right.

No. The question presented does not assume that there is an individual right:
Whether the following provisions — D.C. Code §§ 7.2502.02(a)(4) [banning handguns], 22-4504(a) [banning gun carrying, including at home], and 7.2507.02 [requiring all guns to be both unloaded and locked or disassembled] — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

Also, from the Petitioner's argument:
1. The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes. Instead, it protects the possession and use of guns only in service of an organized militia.
Br. of Pet'r, at 8. This sentence doesn't say that the right belongs to the individual. The ownership of guns could be controlled by the organizer of the militia, the state.
2.9.2008 8:53pm
Cornellian (mail):
Vermont and Alaska are pretty close to unfettered. No permits are required to carry concealed or openly.

I seem to recall that former Vermont Governor Howard Dean got an "A" rating from the NRA.
2.9.2008 9:32pm
wekt:

No. The question presented does not assume that there is an individual right:


Whether the following provisions — D.C. Code §§ 7.2502.02(a)(4) [banning handguns], 22-4504(a) [banning gun carrying, including at home], and 7.2507.02 [requiring all guns to be both unloaded and locked or disassembled] — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?


If there were no individual right protected by the Second Amendment, then the phrase "the Second Amendment rights of individuals" would fail to refer.
2.9.2008 10:07pm
Asher Steinberg (mail):
As convincing as the arguments on Heller's side are, I think that suggesting strict scrutiny as the standard of review could potentially be a fatal flaw for his case. I just think that the notion of applying strict scrutiny to gun laws will make Kennedy really skittish, and if they don't get his vote it will be pretty hard to win. The argument made in the Chemerinsky brief for reasonable basis review is pretty specious and circular - gun laws are reasonable, so reasonable basis review should apply - but I think that intermediate scrutiny would stand a much greater chance of commanding a majority of the Court. Heller's counsel should at least be willing in oral argument to accept intermediate scrutiny as a fallback position.
2.9.2008 11:11pm
Wondering Willy:
Asher Steinberg,

This case isn't an appeal in a civil case over money damages. Alan Gura should not be willing to accept a scrutiny tier other than strict scrutiny in oral argument. Further, I think it's rather naive to suggest that the justices aren't going to do what they're going to do whether Gura indicates a willingness to accept less or not.
2.9.2008 11:24pm
Truth Seeker:
I rather doubt it. You would have to be pretty clueless not to figure out the inviter is gay.

Oh, well, the last murder of a gay I read about was a few months ago a gay brought a guy home to smoke pot and the picked up guy was so mad the gay hit on him that he killed him. He was only intersted in the pot. I only know what I read in the papers.

Next time I won't write "I thnk.." I'll write, "The last murder..."
2.9.2008 11:45pm
Eli Rabett (www):
Another throw the spaghetti against the wall brief. Of course, I doubt there is an analysis of the number of gays and lesbians killed by handguns accompanying.
2.10.2008 9:11am
Jim at FSU (mail):
I really found the Brandon Teena thing utterly confusing the way the LGBT amicus explained it. The way they described it, it sounded like two gay men kidnapped a heterosexual man and sodomized him, later killing him and his girlfriend. It sounded like a pretty horrible thing to do, but not exactly an anti-gay hate crime. In fact, it seemed like an odd crime to highlight in an exposition of why homosexuals require firearms for self defense.

Imagine my surprise when I looked on wikipedia and saw that Brandon was actually a woman who considered herself to be of male gender. Rather than simply pointing this out, they continually refer to Brandon as male ("boyfriend", "him", "he", etc) even though her lack of biological maleness was the motive for the crime and the reason that the crime is mentioned in the brief.

I point this out because it is incredibly confusing, not out of personal animus towards lesbians or transgendered people.

Also, I was under the impression that most crimes are committed against heterosexuals like myself. Isn't it kind of disingenuous to restrict your comparisons to the extremely narrow category of "hate crimes?" Won't this necessarily skew and invalidate all comparisons you make?
2.10.2008 2:15pm
gattsuru (mail) (www):
Generally speaking, Jim @ FSU, the preferred method for referring to a transgender individual is by the gender they display(ed). While I don't believe Mr. Teena could have changed his or her legal gender (although it may have been possible, depending on which state he or she attempted to get the birth certificate change done), I expect that there's been a editorial decision to keep what the GLT movement believes to be the 'correct' wording in place.

Given that the rape and triple homicide were one of the most major tests of hate crime law and some other legal issues, that the subject was covered by not only a conventional documentary but a fairly well-known film, and is even being taught in some legal settings, I'd hope that most new legal interns, clerks, or Supreme Court justices would be able to figure it out or at least notice it enough to research the matter.

Finally, the sexuality of rapists is not always limited to their targets; this behavior can be observed in prisons.

Isn't it kind of disingenuous to restrict your comparisons to the extremely narrow category of "hate crimes?" Won't this necessarily skew and invalidate all comparisons you make?


Perhaps. I expect the writers hope to balance their argument from the perspective that any wide category issues will obviously not focus heavily on a 5% portion of the populace, and that the statistical odds of such an event occurring are not usually considered important by the SCOTUS.
2.10.2008 3:05pm
gattsuru (mail) (www):
I rather doubt it. You would have to be pretty clueless not to figure out the inviter is gay.


You'd actually be surprised, sometimes. While there are (too many) irritatingly flamboyant gay men running around, there are also folk who it's surprisingly difficult to tell their sexuality.

Even there, you can usually tell if they're trying to hit on you, but not every reason to be invited to someone's house is for sex.

And, of course, if there weren't a lot of clueless people going around, it'd be impossible to come up with a good explanation for the success of the Democratic party or most modern TV programming.

[i]That said[/i], I can't validate this data. I can find reports claiming more hate crimes occur in or near residential properties than anywhere else, but I can neither find the initial FBI report, nor find any breakdown of [i]who's[/i] residential properties are involved, nor find a breakdown by type of 'hate crime'.
2.10.2008 3:50pm
Glenn W. Bowen (mail):

I thnk what happens is the gay invites someone over after meeting in a bar (maybe for more drinks or pot) and the person isn't gay and doesn't realize the inviter is, and when the invitee finds out, he tries to kill the gay. I've read a few stories like this in the news. Some people think if a gay hits on them it means something about their own sexuality and they want to kill.


I'll amend that scenario- I knew three gay men, all murdered in their apartments, because they picked the wrong guy up, took him home, then the guys, in each case, robbed and killed them.

the three frequently picked up strangers for anonymous sex.

in a large urban area, this is not unheard of. also, some people just want to get in that position so they can beat and abuse a gay person- also not particularly rare.
2.10.2008 4:04pm
Daniel Chapman (mail):
I wonder how many women who pick up anonymous men for sex in large urban areas get robbed and killed...

Maybe it's not a good idea to do that, eh?
2.10.2008 10:00pm
Cornellian (mail):
Oh, well, the last murder of a gay I read about was a few months ago a gay brought a guy home to smoke pot and the picked up guy was so mad the gay hit on him that he killed him.

That's the story his defense lawyer tries to sell to a gullible jury in the hopes they'll let his client get away with murder.
2.11.2008 2:39am
Clayton E. Cramer (mail) (www):

I wonder how many women who pick up anonymous men for sex in large urban areas get robbed and killed...

Maybe it's not a good idea to do that, eh?
Looking for Mr. Goodbar is one of the most chilling films that I have ever seen. It was a couple of days after watching it before I overcame the trauma. And it fits this perfectly.
2.11.2008 9:44pm
Clayton E. Cramer (mail) (www):


Oh, well, the last murder of a gay I read about was a few months ago a gay brought a guy home to smoke pot and the picked up guy was so mad the gay hit on him that he killed him.

That's the story his defense lawyer tries to sell to a gullible jury in the hopes they'll let his client get away with murder.
That might work in a liberal area--not in Idaho.
2.11.2008 9:45pm
Clayton E. Cramer (mail) (www):

Another throw the spaghetti against the wall brief. Of course, I doubt there is an analysis of the number of gays and lesbians killed by handguns accompanying.
I can't recall ever reading a news account of a homosexual murdered with a handgun. I'm sure it happens--but just about every gay-bashing crime that I've ever read about involves fists, clubs, or feet. There seems to be a need to be up close and personal.
2.11.2008 9:48pm