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Women's Rights Brief in DC v. Heller:

A brief on behalf of 126 women state legislators, and several academics, presents a women's rights perspective on the DC ban on handguns and on home self-defense with any firearm.

Part I points out that, compared to the past, women are more likely to live alone. Young women are less likely to move straight from their father's house to their husband's house, but may instead live on their own. A large number of elderly women live alone, because they have outlived their mates, or for other reasons. Accordingly, the paternalistic assumption that all women are under the protection of a man has no validity today.

Part II notes the prevalence of violence against women, particularly domestic violence. (This point is also made at great length in a pro-prohibition amicus filed on behalf of many state domestic violence groups). The brief quotes Andrea Dworkin discussed the battered woman: "She has a constitutional right to a gun and a legal right to kill if she believes she's going to be killed. And a batterer's repeated assaults should lawfully be taken as intent to kill." Other feminist advocates of women's empowerment for self-defense are cited and quoted too.

Section B of Part II summarizes the relevant social science evidence, showing that armed self-defense by women is effective. Although the domestic violence groups cited studies showing that guns caused an increased risk of homicide to a domestic violence victim, the brief points out that the research shows an increased risk if an abuser has a gun. The data show no statistically significant risk for gun ownershp by victims who lives apart from the abuser and who has her own gun.

The remainder of Part II points out that under cases such as Castle Rock and Warren v. D.C. women are victimized because of law enforcement failure to act against known threats (or even women who rely on false 911 promises that help is on the way) have no legal remedy.

Part III points out that because most women have less upper body strength than men, a handgun is superior to a long gun for self-defense. Also:

Advocates of women's reproductive choice commonly argue that pregnancy disproportionately affects women due to their innate gender-based characteristics. Thus, they argue, courts failing to recognize the right to terminate a pregnancy therefore discriminate against women and bar their ability to participate as equal and full members of civil society. While choices about pregnancy no doubt impact a woman's ability to determine the course of part of her life, it is not clear why such a right should be due greater protection than a woman's ability to defend her very existence.
The brief acknowledges that some women are hostile to gun ownership. Historically, A large segment of women were likewise averse, moderately supportive or even downright indifferent to female suffrage and women's reproductive choice. However, the fact that only some will choose to exercise their right to self-defense should in no way prove a legal impediment to those women for whom owning a firearm is necessary to their ability to determine the course of their lives and consequently their place in society.
Read in conjunction with the brief of the domestic violence groups, the two briefs present the court with the contrasting perspectives, in regard to the gun issue, of victim feminism and empowerment feminism.

John (mail):
Just as a matter of Supreme Court practice, to what extent are amici, or parties, permitted to bring facts before the Court that are not in the Record? To what extent are they permitted to cite expert opinion that is not in the Record? I realize that to some extent you can put in a brief whatever you want, but it appears everyone is doing this on the assumption that the Court will, in fact, rely on facts and opinions from these briefs that are not in the Record, not subject to cross-examination, etc.
2.9.2008 7:18pm
ChrisIowa (mail):
Expand John's comment to include the Justices and Clerks. It's my understanding that Blackmunn did a considerable amount of research about abortion on his own prior to the Roe decision. (I happen to think that decision to be right though I am not an attorney so it really doesn't count) To what extent is the Supreme Court allowed by their own rules to include other information?
2.9.2008 8:25pm
not a lawyer:
Not a lawyer, but I'd guess Supreme Court Justices can look at anything they want to look at to make their decisions. They could hunt for messages in their morning oatmeal, if they wanted to.
2.9.2008 9:11pm
Alan Gunn (mail):
The argument about handguns being better than long guns for people with low upper-body strength cites nothing in support of this point, and it seems wrong. Anybody strong enough to fire a double-action revolver can certainly handle a 20-gauge shotgun or a carbine with ease. I know a small but young and physically fit woman who was unable to fire my revolver (a Taurus: nothing special), but who did very well with a rifle on her first try. There are advantages to handguns, and some--like portability and concealability in a purse--may be particularly relevant to women. But the brief's upper-body strength argument seems unpersuasive to me. That point aside, it's not bad.
2.9.2008 9:47pm
Dave Hardy (mail) (www):
Had a death penalty appeal in the state Supreme Court some years ago. In oral argument, the State complained I'd cited studies of homicide that weren't in the record.

The Chief Justice replied, "You're saying I'm not allowed to look things up in a library?"

The State responded that I shouldn't have attached copies. The CJ replied, "So he saved me the trouble of going to the library. I appreciate that."

The State said they still thought it was a subterfuge. The CJ simply said "I suppose we have a difference of opinion there, don't we?" The audience howled. This did not do wonders for my opponent's morale.
2.9.2008 9:52pm
BRM:
An appellate court can't rely on facts outside the record when reviewing the factual findings and application of the law by the lower court. However, an appellate court can consider anything it finds relevant when reviewing the law and the policy arguments in favor of differing interpretations of the law.
2.9.2008 10:01pm
Wondering Willy:
Alan Gunn,

Your experience is directly contrary to mine. And if your friend had trouble operating a double-action revolver, why didn't you tell her to cock it first?
2.9.2008 11:19pm
Lior:
In fact, Petitioners' Amici Curiae opens (sic) its
argument by stating that, when a gun is in the home,
an abused woman is "6 times more likely" to be killed
than other abused women.


I have seen several petitioner's-side briefs trying to refute this assertion, and none have made the obvious point that there is a clear selection effect here: the greater risk the woman believes herself to be in, the more likely she is to buy a gun.
2.10.2008 12:42am
Lior:
petitioner's side => repondent's side
2.10.2008 12:42am
theobromophile (www):
I have seen several petitioner's-side briefs trying to refute this assertion, and none have made the obvious point that there is a clear selection effect here: the greater risk the woman believes herself to be in, the more likely she is to buy a gun.

Or that the class of gun-owning abusers and non-gun-owning abusers may be different.

Now, a silly question: is the "six times" figure for abused women, or all women? (Do we have the same problem we have with robberies?)

Maybe I'm a crazy feminist, but I like the idea of giving abused women some power. I also like the idea of removing men's (generally) superiour physical strength from the equation. We cannot regulate away sexual dimorphism, but we have the technology to make it a moot point. Sounds good to me.
2.10.2008 1:24am
Millenial Klingon (mail):

Maybe I'm a crazy feminist, but I like the idea of giving abused women some power. I also like the idea of removing men's (generally) superiour physical strength from the equation. We cannot regulate away sexual dimorphism, but we have the technology to make it a moot point. Sounds good to me.


Ruth? Ms. Bader Ginsburg? Is that you?
2.10.2008 2:42am
Soronel Haetir (mail):
God created man but it took Sam Colt to make them equal.
2.10.2008 7:23am
Alan Gunn (mail):

if your friend had trouble operating a double-action revolver, why didn't you tell her to cock it first?

Because her thumb wasn't strong enough to cock it. Anyway, shooting a revolver single action wouldn't be all that practical in a self-defense situation.

I didn't mention autoloaders, but there you have questions of strength needed to rack the slide. And, for any handgun, there's recoil, which may bother some small people. A .357 magnum fired from a handgun generates a big kick; the same cartridge in a rifle, even a light one, hardly makes an impression. A weapon that produces too much recoil for the shooter to be comfortable with won't be fired much, and a handgun, if not practiced with a lot, is best left in the safe.
2.10.2008 8:58am
Eli Rabett (www):
I believe this is in the throw the spaghetti against the wall and see what sticks class of briefs. Loretta Bobbett rejoices.
2.10.2008 9:09am
gattsuru (mail) (www):
Anybody strong enough to fire a double-action revolver can certainly handle a 20-gauge shotgun or a carbine with ease. I know a small but young and physically fit woman who was unable to fire my revolver (a Taurus: nothing special), but who did very well with a rifle on her first try.


A Bersa Thunder .380 weighs approximately 1.43 pounds and is in a generally acceptable, if a little weaker than ideal, chambering. A Ruger 10/22 (a highly underpowered option) weighs about 5.75 pounds, and going to a serious self-defense chambering typically adds a pound or more. A loaded Mossberg 500 weighs close to 10 pounds.

In practical testing, a properly maintained Bersa Thunder took less force to bring back the slide -- when done properly -- than taking apart a kitchen mixer for later cleaning.

In general, if you have a gun a healthy person over the age of fifteen can not manually cock, you either need to invest in some gun oil and a cleaning once a century, and/or get rid of the New York trigger.

There's more perceived recoil, more from the lack of support against the shoulder, but in my opinion the recoil from most pistol chamberings is vastly overstated.
2.10.2008 12:18pm
anyone:
It's not the best brief I've ever read. Good idea; bad execution. But written poorly enough that it shouldn't do harm; rather than slog through it, clerks will sit it aside to read any of the other briefs.
2.10.2008 12:19pm
wuzzagrunt (mail):
Alan Gunn, there are more one-handed guns in the universe than magnum revolvers. Plenty of people have been summoned to unscheduled meetings with The Big Guy when small caliber, semi-automatic handguns were brought to bear. They may not be the optimal choice for personal defensive weapons, but better than the NYC Police Department's recommendation to use your cell phone to dial 911.

Women can certainly learn to effectively handle shotguns and rifles--and 1911 pistols, and large frame revolvers--but they do require more training and practice to become competent.
2.10.2008 12:47pm
zippypinhead:

The argument about handguns being better than long guns for people with low upper-body strength . . . seems wrong. Anybody strong enough to fire a double-action revolver can certainly handle a 20-gauge shotgun or a carbine with ease.

Nope. Long guns don't work for everybody. I currently see this issue with an elderly relative (long-time CCW holder and Korea vet who earned an "expert" rating 57 years ago). Because of physical impairments he can no longer even keep long guns as light as an M1 Carbine or Mini-14 accurately on target at the range, except from the bench. He's still able to do about as well as I can with his Sig P229 (a compact 9mm semi-auto handgun) at 7 yards, and he is at least comfortably on the paper at 25 yards. So for now we don't have to have that awkward conversation about "taking away his keys" to the P229 because he's no longer safe. Although (speaking selfishly) our last trip to the range did cause me to "pre-inherit" a Remington 700 BDL and a cherry 1944 Inland M1 Carbine from his collection after he realized he's no longer a rifleman.

If D.C.'s invitation to adopt a presumption that one can adequately defend oneself with a rifle or shotgun is accepted, the scope of one's Second Amendment rights may depend on whether one can produce a doctor's note at a court hearing attesting to the fact that one cannot adequately control a long gun? What a mess THAT would be...

Incidentally -- it's ironic that the old guy's M1 Carbine would have landed him in jail if he had been unlucky enough to live someplace like New Jersey, where it is specifically prohibited as an "assault weapon." Except for a famous photo of Malcolm X holding that model (outfitted with a 30-round M2 magazine so it looked real "scary"), I couldn't find a reference to that WWII classic having been used to commit any crime since about 1964. Sad...
2.12.2008 3:01pm
federal farmer (www):
The M1 Carbines are coming up for sale at CMP (Civilian Marksmanship Program) once again. Of course I can't buy one living in Chicago.
2.13.2008 12:53am
zippypinhead:
FF: The Chicago handgun ban is infamous, but I didn't know Chicago also banned the M1 Carbine. That's absurd! A 65-year old carbine isn't the sort of gun a gang-banger or street thug would ever gravitate towards. Then again, I believe the M1 Carbine is one of many rifles specifically identified in Rep. McCarthy's proposed (but DOA) Federal "assault weapons" ban renewal/expansion. Let's not tell her that a federally-chartered corporation is selling such naughty old weapons to (qualified and screened) civilians, shall we? Frankly I'm worried that President-elect-maybe Obama's "violence policy advisor" is also reading the Heller amicus briefs, and just learned for the first time from the Generals' brief that CMP exists. And is drafting a position paper to recommend shutting it down on Jan. 21, 2009 as a "threat to public safety."

The old guy relative bought his carbine in '68 when he was concerned the rioting might spread to the suburbs, and figured that since it worked for him in Korea the carbine would probably also work just fine to defend his neighborhood. Fortunately he never had to test his hypothesis. Good Second Amendment story, though.
2.13.2008 7:08pm