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Nelson Lund brief in DC v. Heller:

On behalf of the Second Amendment Foundation, George Mason law professor Nelson Lund has written a meticulous textual analysis of the Second Amendment, in the Supreme Court handgun ban case, District of Columbia v. Heller.

In the tightly-written brief, Lund argues that every permutation of the militia-only interpretation of the Second Amendment leads to obviously absurd results. (Not only as a practical matter, but as a matter of textual interpretation.)

He urges that the language from United States v. Miller, suggesting that "'private citizens might have a right to possess weapons that are 'part of the ordinary military equipment or [whose] use could contribute to the common defense'" be treated as dicta. When Miller was decided, he observes, ordinary soldiers and ordinary citizens both owned bolt-action rifles; today, the Miller test would create a constitutional right to machine guns.

Lund explains the preamble of the Second Amendment as an "ablative absolute or nominative absolute. Such constructions are grammatically independent of the rest of the sentence, and do not qualify any word in the operative clause to which they are appended. The usual function of absolute constructions is to convey some information about the circumstances surrounding the statement in the main clause."

A telling example is provided by Article 3 of the Northwest Ordinance:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

This provision -- ratified by the same Congress that drafted the Second Amendment -- attests to a belief in the beneficent effects of schools and education. But it does not imply that "[r]eligion, morality, and knowledge" are their only purpose.
[Side note: the inclusion of this quote in the briefing can be traced to independent scholar David Young having seen the quote above the entrance Angell Hall, at the University of Michigan. It is a perfect example of the importance of inscribing in stone the noblest statements of public virtue, so that those statements will be known to future generations, and will be used to encourage liberty and responsible self-government.]

As for the rest of the brief, it merits the reader's careful study. No brief in this case is as lucid. As a former Supreme Court clerk, Lund writes with the precision that is typical of Solicitor General briefs. It is not uncommon for briefs (on whatever issue) to puff up themselves with bombast and extravagent language. The Lund brief is a superb example of how to write authoritatively but not pompously; for the latter mode betrays an underlying insecurity about the correctness of one's argument.

There are many excellent briefs on both sides of District of Columbia v. Heller. The readers of this weblog include lawyers of varying degrees of experience, and law students; some of them have an interest in Second Amemdment issues, while almost all of them aspire to improve their brief-writing. If you want to read a model Supreme Court brief, this is the brief to read.

Nathan_M (mail):
Do you have a link to the brief? I can't find it on the SAF site.
2.10.2008 4:00am
pjh:
Here it is.
2.10.2008 4:48am
Brett Bellmore:

When Miller was decided, he observes, ordinary soldiers and ordinary citizens both owned bolt-action rifles; today, the Miller test would create a constitutional right to machine guns.


No, the government created a constitutional right to machine guns, by deciding that they would be the equipment of ordinary soldiers. I think that the objectively best interpretation here is that the 2nd amendment guarantees, not creates, a right for the average citizen to be armed in a fashion comparable to the average soldier. In the words of Tenche Coxe, "Their swords, and every other terrible implement of the soldier, are the birth-right of an American" If the government thinks machine guns are too awful for the average person to own, it should rethink arming it's soldiers with them.

Really, what Lund is playing at is just another version of the same "The Constitution means whatever I personally think it would be prudent it mean." game all the guys on the other side are playing at.
2.10.2008 8:08am
PersonFromPorlock:
Incidentally, "No brief in this case as lucid." is either drôle or a mistake. Two mistakes, actually.
2.10.2008 9:24am
RKV (mail):
Thank you Brett - well said. See also Article 1 Section 8...

"the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions"

Quite a number of other arms are protected by the 2nd Amendment. For instance if the police use switchblade knives, batons, saps (aka blackjacks) or mace, in the course of their duties, the people have a right to keep and bear them as they are part of the normal equipment used in enforcing the law by government agents. Here in the PRK, citizens are legally prohibited from owning the same. Unconstitutionally I might add. Otherwise we end up with the model the British used in their 1689 Bill of Rights.

"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;"

Which limits on possession of arms subject to a religious test, a property test and legislative process our Founders explicitly rejected in crafting the Second Amendment. The differences are not optional...

“For those who believe it to be outdated, the Second Amendment provides a good test of whether their allegiance is really to the Constitution of the United States, or only to their preferences in public policies and audiences. The Constitution is law, not vague aspirations, and we are obligated to protect, defend, and apply it. If the Second Amendment were truly an outdated relic, the Constitution provides a method for repeal. The Constitution does not furnish the federal courts with an eraser.”
KLEINFELD, Dissent from denial of rehearing en banc Nordyke v. King,
2.10.2008 10:16am
ReaderY:
A basic principle of constitutional interpretation is that no word is superfluous. An argument that a whole clause is superfluous strikes me as dead on arrival. It strikes me that Miller's costruction of "a well-regulated militia" as referring to the types of weapons involved is a reasonable attempt to find operative meaning in every clause and hence preferable to an interpretation that results in superfluities.

As Brett Belmore notes above, militia-like paramilitary organizations have played an increasing role in contemporary warfare, and their weaponry has become more sophisticated than in the 1930s. Given that the AK-47 has long been the modern militia weapon of choice, I agree a fair interpretation of Miller in the context of modern milita warfare would require inclusion of automatic weapons in the protected class. Frankly, most serious contemporary militias that actually have fighting pontial and don't exist solely for show have access to anti-tank and anti-helicopter missiles.
2.10.2008 11:06am
Bender (mail):
A historical aside: The Northwest Ordinance -- the only major piece of legislation passed under the Articles of Confederation -- is well worth a read. Along with the Declaration of Independence, the Articles of Confederation, and the Constitution it forms what has been called the "organic law" of the USA. It also sheds some valuable light on the intent of the founding fathers. First, it bans slavery from the new territories, making it clear that, at the time, slavery was seen as a moral blot that would in time be eradicated. Second, it establishes a method for creating new states from the Northwest Territory and adding them to the union. The intent was to remove the new country from any kind of colonial dominion: Territories were to become federated republics as soon as practicable. Third, it clearly establishes a means -- short of taxation -- for government to provide basic services such as education to citizens. Anytime our federal republic has drifted from any of these principles it has found itself in hot water.
2.10.2008 11:12am
Wondering Willy:
ReaderY,

"A basic principle of constitutional interpretation is that no word is superfluous." Read Alan Gura's Respondent's Brief and you will come to question that conclusion.

Further, let me ask you this. Should your proffered rule of constitutional interpretation trump the actual intended-by-the-drafters and understood-by-the-ratifiers meaning of a provision of the Constitution?
2.10.2008 11:24am
seadrive:

If the government thinks machine guns are too awful for the average person to own, it should rethink arming it's soldiers with them.


As a matter of logic, this is weak. Soldiers are selected from the population according to certain qualities, and are trained. There are many things expected of a soldier that are not expected of the average person.
2.10.2008 11:39am
Brett Bellmore:

Should your proffered rule of constitutional interpretation trump the actual intended-by-the-drafters and understood-by-the-ratifiers meaning of a provision of the Constitution?


Clearly not. Mine certainly doesn't. I do understand what Gura and Lund are about: They think the Court might shy away from upholding the true meaning of the 2nd amendment, so they're trying to craft an attenuated version of it the Court would be willing to uphold, perhaps with the notion that later we could start pushing for something more accurate.

As a tactic, perhaps defensible, but I don't think it's intellectually honest. The 2nd amendment genuinely means something fairly radical by today's standards, though not by the standards widely held within living memory. In fact, that ought to be one of the points we make in court: It can not be seriously suggested that respecting the 2nd amendment in it's full glory would have horrible consequences: The members of the Court themeselves grew up in a nation where the 2nd amendment was for the most part observed, and it was not a hellhole.
2.10.2008 11:40am
Brett Bellmore:
Seadrive, it would be weak logic if there were no 2nd amendment. The 2nd amendment stands for the proposition that the public be armed in the same manner as the military, both so that an armed force can be raised from the public very expediently, AND so that the government can not think to be able to overawe it's own citizens with it's military force.

Literally, the government decides what constitutes "arms" in a Second amendment sense, by what it decides to arm it's own military with. If it doesn't wish us to have a constitutional right to own assault rifles, it has two choices: Either stop issuing them to the troops, or amend the Constitution.
2.10.2008 11:43am
wuzzagrunt (mail):
He urges that the language from United States v. Miller, suggesting that "'private citizens might have a right to possess weapons that are 'part of the ordinary military equipment or [whose] use could contribute to the common defense'" be treated as dicta. When Miller was decided, he observes, ordinary soldiers and ordinary citizens both owned bolt-action rifles; today, the Miller test would create a constitutional right to machine guns.

That is only different by degrees from the argument that the 2nd Amendment only guarantees a right to weapons in common use by the militia of 1789. I'll admit to a grudging respect for people who can say such things, while maintaining a straight face.
2.10.2008 12:01pm
PersonFromPorlock:

That is only different by degrees from the argument that the 2nd Amendment only guarantees a right to weapons in common use by the militia of 1789. I'll admit to a grudging respect for people who can say such things, while maintaining a straight face.

It's even better when you can get them to agree that the Press Clause doesn't guarantee a right to a high-speed rotary assault press.
2.10.2008 12:39pm
VincentPaul (mail):
ReaderY, A nominative absolute is not a clause (it has neither a subject nor a verb), and by definition has no grammatical connection with the rest of the sentence.
2.10.2008 12:39pm
therut:
I am amazed though why I can not say. The machingun boogy man is just a boogy man. It is not like they are banned. Everyone acts like they are evil incarnate and our country would explode if they were protected by the 2nd amendment. This of coarse is ludicrous. As they are owned now. All but 12 States allow ownership. The laws regultating them are not set in stone. There is no reason that the tax should be constitutional(it does nothing to prohibit ownership as it once did) or that futher ownship of new machinguns should be banned. The idea that the .gov can regulate something Constitutional by causing it to skyrocket in price should be unconstiutional as it descrimates by ability to pay as does the tax. NONE. Except the boogyman is going to get ya.
2.10.2008 12:45pm
Waldensian (mail):

No brief in this case is as lucid.

I thought the amicus brief filed on behalf of Jews for the Preservation of Firearms Ownership was its equal, or better.
2.10.2008 1:40pm
emsl (mail):
I do not want to get drawn into the machine gun debate. I do want to say that the brief is, as suggested, extremely well reasoned and persuasive. Those with a restrictive view of the Second Amendment should worry that Justice Breyer, someone that I expect most restrictive interpreters would assume is on their side, might be convinced by such a clear and cogent analysis of the way the amendment works.
2.10.2008 1:40pm
Mike Hansberry (mail):
b>[i]BREAKING NEWS ........ BREAKING NEWS .......[/i]
We interupt this post with a report from our DC correspondent:

Campus authorities reported earlier today that an ornery professor of selective history had punched and kicked the bucket.

Upon hearing the news, an esteemed Professor of Linguistics was heard to remark “What a waste, the poor bastid bruised his hand and he died!”






All kidding aside, the SAF brief is excellent but I was slightly disappointed to see that it did not directly address one of the key points of the Professors of Linguistics(POL) brief -that "bear arms" is an idiom as used in the Second Amendment.

There are several flaws in that(POL) argument.

Tenche Coxe's contemporary writings on the amendment as it was being drafted did not follow the idiomatic form that Professor Baron insists would have been understood at that time by persons of ordinary language skills.

"As the military forces which must occasionally be raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.”


The words "bear arms" do not stand alone in text of the amendment but are combined with "keep and" to give "keep and bear arms". Thus if the Linguistics Professors want to argue for an idiomatic meaning, they ought to supply examples of what "keep and bear arms" meant as used in a supposed figurative sense, rather than providing examples of what "bear arms" meant when used elsewhere as a figurative expression.

Furthermore, when viewed in the proper context, what the POL ought to be trying to shed light on is the meaning of "the right of the people to keep and bear arms" as the "right" is the subject of the main clause. The POL avoid taking notice of contemporary uses of the words "bear arms" in the context of a right to bear arms for obvious reasons.

The POL's idiom argument is a combination Logical Fallacies; Sleight of Hand (swapping "bear arms" for "keep and bear arms"), Out of Context interpretation(removing "bear arms" from context of rights) and Evidence Barring(Not taking into account contemporary sources which negate their assertion).
2.10.2008 1:54pm
gattsuru (mail) (www):
As a matter of logic, this is weak. Soldiers are selected from the population according to certain qualities, and are trained. There are many things expected of a soldier that are not expected of the average person.


Ignoring, for now, the falsity or accuracy of your statement, how about we take things to the more easily explained police officer?

In most portions of the United States, the average policeman has no more accuracy qualifications than is required by most CCW classes. Federally, they are no more prohibited from accessing a new automatic or burst-fire weapon than the military.
2.10.2008 2:20pm
Dennis Nicholls (mail):
I think Lund has misinterpreted the Miller case, although in a different manner than the anti-gun people.

Miller's actual holding is of a rule of evidence: that the Court couldn't take judicial notice of whether Miller's sawed-off shotgun would be of use to a militia. From all my reading, I think the Court was going to set up a multi-level protected class interpretation of the 2nd A similar to current interpretation of the 1st A: "political speech" is more protected than "commercial speech" which in turn is more protected than "porno speech". Unfortunately we will never know since Miller got himself killed and the remand was therefore dismissed as moot.
2.10.2008 3:01pm
zippypinhead:
Lund wrote the following about the Miller test:


[A] significant gap has developed between civilian and military small arms. . . . The Constitution does not require this Court to blind itself to that post-Miller reality, or to hold that the civilian population has a right to keep every weapon that the militia can expect to find useful if called to active duty.

This is one of the few attempts I have seen to cogently argue that Miller's rather glib and factually unsupportable rationale for upholding the 1934 NFA should be disregarded. I suspect that at least the pivotal center of the Court is going to have some reluctance to sign onto a holding that necessarily must be read to invalidate current Federal restrictions on possession of machineguns, destructive devices, or other man-portable ordinance -- even if only based on a gut-level feeling that unrestricted civilian possession of such weapons would be "bad." Thus it seems that a repudition of the Miller test would provide a useful alternative to the Solicitor General's invitation to deflate the standard of review to achieve the same result.

But Lund does not take the next step to propose what, if any, test should replace the Miller test. It could be helpful if at argument counsel was able to articulate a standard for permissible types of arms that could supersede Miller, to satisfy any visceral concerns that some (most?) of the Court may have about the logical result of a strict-scrutiny application of the Miller test.

Incidentally, although not really central to Lund's insightful invitation to overrule Miller (and in fact arguably illustrative of the grossly inadequate factual record in that case): Lund is wrong about the state of military armaments at the time of Miller -- yes, the bolt-action Springfield 1903 was still the standard Army battle rifle, with the M1 Garand just having been authorized as the next generation battle rifle circa 1936. However, the M1918 Browning Automatic Rifle ("BAR") was well-established by this time as USGI one-man squad-level armament, and the M1921/28 Thompson submachinegun was officially adopted by the Army in 1938.
2.10.2008 3:26pm
PersonFromPorlock:

...the bolt-action Springfield 1903 was still the standard Army battle rifle, with the M1 Garand just having been authorized as the next generation battle rifle circa 1936.

To get really arcane, the US provisionally adopted the Pedersen Device (U.S. Pistol, Caliber .30 M1918), an attachment that turned the bolt-action Springfield into a semiautomatic, in 1918. Since the device required the user to remove the original Springfield bolt, which then tended to get lost, it didn't last long.
2.10.2008 4:26pm
seadrive:

Seadrive, it would be weak logic if there were no 2nd amendment. The 2nd amendment stands for the proposition that the public be armed in the same manner as the military, both so that an armed force can be raised from the public very expediently, AND so that the government can not think to be able to overawe it's own citizens with it's military force.



IMHO, you are lapsing from logical argument into legal argument.

Still, if you are going to compare the firearm in civilian hands to the firearm in military hands, don't you also have to compare the civilian to the soldier? I don't see that the militia argument gives the right to bear arms to a person unfit to serve in a militia, say a quadriplegic 80 year old.
2.10.2008 4:49pm
Jim at FSU (mail):
That brief is plain wrong about the military being armed with bolt action rifles at the time Miller was decided. The only reason the NFA wasn't found unconstitutional in Miller was because no one presented evidence on the militia utility of short barreled shotguns. If they had gotten to the merits, it would have been a very easy case.

As of 1939 the United State infantry (army and marines) was widely equipped with a variety of weapons that go far beyond "bolt action rifles." Note that the equipment designation often includes the year the weapon was adopted...
-belt fed machine guns, viz., the .30-06 caliber M1919 air cooled and M1917 water cooled light machine guns and the .50 caliber browning M2. The belt-fed guns are arguably crew served, but only in the same sense that bolt action sniper rifles are crew served- the weapons can function and be carried by a single user, but it is far less efficient than with helpers to spot targets, carry spare ammo and barrels and fill in for wounded crew members.
-submachine guns, viz., the .45 caliber M1927 and its variants, the .45 caliber M3 "grease gun" and the .45 caliber Reisling.
-30 caliber carbines, such as the M1 and M2 Carbines, both chambered in .30 carbine, an intermediate rifle cartridge. The select fire model was originally intended to be introduced in 1938 but was delayed till 1944. The select fire version is arguably one of the earliest examples of an assault rifle.
-early attempts to fill the role of the assault rifle. The Browning BAR and M1 Garand were both in widespread use at the time. Although they are much more powerful than modern infantry rifles, they clearly occupy the intermediate position between bolt action rifles and submachine guns that was eventually filled by the modern assault rifle.
-various types of combat shotguns were in widespread use during the civil war, wwi and wwii. Long before the 1939 Miller decision, recognizably modern combat shotguns (e.g., tube fed pump and semiautomatic varities) were already in use.
-semiautomatic pistols such as the M1911 colt automatic pistol
-revolvers such as the M1917 revolver weapon that used the same ammunition with half-moon clips to hold the rimless ammunition
-the M2 fragmentation hand grenade, in common use since the 1920s

There are other weapons as well, the standard infantry weapons of the US as of 1939 was a VERY long list. This doesn't include weapons in use by OTHER countries nor in widespread unofficial use by the soldiers themselves such as the KA-BAR bowie or various personal firearms. It also doesn't include the large number of novel weapons developed during WWII such as the M6 Bazooka.
2.10.2008 5:13pm
Dave Hardy (mail) (www):
How 'bout this argument from the preamble (preview of Academics for the 2A brief to be filed tommorrow:

Principle of interp: an operative clause should be read, at the very least, in a way that makes accomplishing the object of a preamble more likely. (At the very least, because a drafter may not state every objective.).

Objective stated in preamble: we MUST ("necessary") have a well regulated militia.

Read the operative clause as "everybody can have guns." Well, the people can have them, and we know the majority (and in 1789 the great majority) will do so, and learn how to use them. This makes it easier and cheaper to create a well regulated militia. It makes accomplishment of the preambular purpose easier and more likely.

Read the operative clause in a way that allows broad categories of guns to be outlawed. How does that make a well regulated militia more probable? Government has to figure out, not only how to turn an armed militia into a well-reg'd one, but how to create an armed militia in the first place, and train them.
2.10.2008 9:21pm
Jim at FSU (mail):
Ooh yeah, tomorrow is the deadline. Should be a nice flood of quality briefs.

I really wish I had been farther along in my legal career when this case came up so I could have participated in a more meaningful way than just cheering from the sidelines. On the other hand, I am grateful that I was far enough along to able to meet all the people involved in this and fully appreciate what was happening.
2.10.2008 10:15pm
ReaderY:
On reflection this case does not require deciding what types of arms the Second Amendment covers.

I understand Lund is attempting to find a way out of Miller, perhaps because he sees it as leading to a position of protecting heavy arms he may fear the Justices would be unwilling to go, so as to give an intermediate option of protecting small arms but not anything heavier. But there's no need for the Supreme Court to overturn a precedent here.

On reflection, it seems to me that the boundaries of the "what kind of arms was the Constitution trying to protect" question should await a case that actually tests them.

That said, in my view there is a strong place for stare decisis so long as the Supreme Court is attempting to do its job of a close reading of the Constitution's text in light of its history. People can disagree, and can get these things wrong, but courts shouldn't flip-flop just because their personnel changes.

I see cases where the Supreme Court has abandoned text and history and instead explicitly read its own policy views into its decisions as fundamentally different. I don't see Miller as such a case. It may have gotten the wrong take on both text and history, but the Justices were attempting to do their job. I think overturning Miller would have to address stare decisis issues, not just the question of whether the Miller position is correct as an original matter. I also don't see that the issue was dicta in Miller; the Court needed to decide it to determine that the type of weapon Miller was convicted for was outside the Second Amendment's scope.
2.10.2008 10:33pm
TomB (mail):
Yes, very well written brief by Lund. Even if there are a few mild logic issues.

But the reason for all this discussion is the lack of clarity of the short 2nd amendment itself. And why is it so short? Why is it grammatically tortured? Why is it amendement #2.

My (Occam's) reason is this: the right of the people to keep and bear arms was so basic, so well understood, and so uncontroversial that little discussion or clarity was needed by the framers.

"Oh of course we should mention arms, so just throw something quick into the Bill of Rights and let's get on to the other items that need to be hashed out!"

Everyone knew what it meant, and the Framers are rolling over in their graves. How could we make something so complicated?
2.10.2008 11:17pm
M-K (mail):
Read Joyce Malcolm's brief. She covers the 2A background brilliantly.

Am I the only one who doesn't consider the second amendment's grammar "tortured"?

"The sky being cloudy, he carried his umbrella." Nothing unclear about that. "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
2.11.2008 12:23am
David E. Young (mail) (www):
When one figures out where the two-clause Second Amendment came from and what it meant to those who wrote it, it all becomes very clear.

The original two-clause version was written by George Mason for the Antifederalists in the Virginia Ratifying Convention. He used his original 1776 well regulated militia Virginia State Bill of Rights language verbatim. To this he added Pennsylvania style BR language. The original was two declarations with no dependencies.

The well regulated militia language that many think strange for a BR because to them it implies controlled by the government came from Mason in 1776 Virginia. In 1774-5 Virginia, prior to hostilities, Mason and others helped form defensive associations to defend against unconstitutional actions of the government. Mason described the Fairfax Independent Company as a well regulated miltia. It was not under government control, it was organized to defend against government officials and forces.

Is it getting any clearer yet? Don't forget the history.
2.11.2008 12:37am
ReaderY:
In the Northwest Ordinance example, I don't think the preamble completely irrelevant. One could argue, for example, that its reference to "religion, morality", etc. might be relevant to the framer's views in a case on University chaplains, school prayer, or similar, among other examples.
2.11.2008 12:38am
ReaderY:
I would agree, based on the history of splicing two separate clauses, that the Second Amendment recognizes two rights: a right of a state to maintain and regulate a militia, and a right of the people to keep and bear arms. But Miller's view that the clauses have some relationship does not strike me as unreasonable.
2.11.2008 12:41am
michael (mail) (www):
Re: The Miller decision. In the WWII island hopping campaign against the Japanese, a US Marine general might have a personal bodyguard. The bodyguard's primary weapon was a short barreled shotgun. Don't think the Marines can't comment on constitutional law.
2.11.2008 12:57am
Jim at FSU (mail):
We didn't get into WWII until December 1941, about 2-3 years after Miller. But short barreled shotguns were in wide use during WWI as trench guns.
2.11.2008 1:08am
Jim at FSU (mail):
ReaderY:

Take the first clause alone and it has no legal meaning. It states a principle and nothing more. A well-regulated militia is necessary to the security of a free state. Ok, fine. Does this alter the balance of power? Does it recognize or grant a legal right? The Supreme Court has held that it does not (Perpich v DOD, etc). Congress retains control over the militia.

The second clause alone still has meaning- it recognizes a right of the people to keep and bear arms and forbids transgressions against this right.

The last question is whether there is anything indicating dependency of the 2nd clause upon the first. If the founders wanted to indicate dependency, they could have easily done so. But they didn't. At best, you can imply that protecting the right in the 2nd clause was motivated by the sentiment expressed in the 1st clause, but that doesn't create a legal dependency.
2.11.2008 1:17am
Concerned:
A non-substantive question:

Is anyone else at all troubled by the author of an amicus brief citing to his own forthcoming article, as Lund does at page 5 of the brief?

Is it slightly unsavory self promotion (a stab at getting the article cited in the opinion)? A way to evade page limitations? A common practice that I've never noticed before?

Will it soon be standard practice for counsel for the parties to write lengthy articles to be published shortly after the briefs go in? (I worked on a brief to the Court some years ago where we joked about doing just that. It seemed too crass for serious consideration.)

I should note that this probably wouldn't have struck me had this brief not been called out as a model.
2.11.2008 1:53am
K Parker (mail):
ReaderY
A basic principle of constitutional interpretation is that no word is superfluous. An argument that a whole clause is superfluous strikes me as dead on arrival
And just who among 2nd amendment proponents argue that the initial clause has no meaning? I can't think of one. The actual argument is between those who think its meaning is in providing the background, motivation, and justification for the amendment, and those who think it overthrows the plain meaning of the main clause.
2.11.2008 2:26am
wuzzagrunt (mail):
I read the 2nd Amendment as a literate tradesman, and not as a legal scholar. At the time of the founding, even persons who could not read could be expected to understand their rights if the document was read to them. There is no secret decoder ring required to plumb its meaning.

If the 2nd had been written as: "The means to defend one's person, family, and property against criminal marauders, being necessary to the maintenance of ordered liberty, the right of the people to keep and bear arms shall not be infringed.", then it could be reasoned that the right was restricted to personal defensive weapons. That would not preclude the right to rebel against tyranny, but would rationally limit the right "keep and bear" to certain classes of weapons.

The Militia Clause expands the enumerated right to militarily useful arms, for the common defense, vs. limiting the right to bear arms for personal protection. IMO, one must jump through flaming rhetorical hoops. to argue otherwise.
2.11.2008 10:03am
Gramarye:
Brett Bellmore wrote:
Literally, the government decides what constitutes "arms" in a Second amendment sense, by what it decides to arm it's own military with. If it doesn't wish us to have a constitutional right to own assault rifles, it has two choices: Either stop issuing them to the troops, or amend the Constitution.
This would lead to absurd results: a constitutional right to private ownership of aircraft carriers, stealth bombers, ICBM's, and nuclear warheads. The military is as much "armed" with them as it is with infantry rifles.

Even if the right were "restricted" to those weapons in use by the National Guard (i.e., the "Militia," as opposed to the Army and Navy provided for separately in the constitution), it would still produce a constitutional right to far more than just infantry weapons, with no self-evident limiting factor. Perhaps you believe that the Second Amendment actually should reach so far, but I suggest that that places you in the same category as those who would have the First Amendment protect the right to shout "fire" in a crowded theater.
2.11.2008 10:19am
XON:
Gramarye,

While Lund's brief was ambitious, slightly self-serving, and by no means a model of clarity of rhetorical elegance, you have wonderfully illustrated why lawyers have to go to such excruciatingly arcane analyses on these issues: folks like you wandering around claiming that anything that is not part of your beliefs is absurd. I'd bet you'd be first to the ramparts if we asserted that your ability to make a million dollars is absurd, also. Because, really, who needs a million dollars?

Actually, more directly, your comment embodies the specific, particular urge to tyranny so odious to the drafters, and indeed, all people inclined to freedom. The only remedy to people who think that the world exists solely within the limits of their comprehension, and that they are free to use armed force against what they deem absurd, is, precisely, the resort to the full range of arms of war.
2.11.2008 10:51am
Brett Bellmore:

This would lead to absurd results: a constitutional right to private ownership of aircraft carriers, stealth bombers, ICBM's, and nuclear warheads.


Only if you refuse to distingish between arms and armaments, a common step in constructing 2nd amendment strawmen.
2.11.2008 12:48pm
Tony Tutins (mail):
The similar phrasing of the Northwest Ordinance is a strong point because failing to teach religion in public schools (the prefatory purpose) does not invalidate tax-supported education (the operative part of the sentence.)

However, the association of "bear arms" with religious scruples in an early draft of the Second Amendment is a weak point of the brief, because it allows a strictly military definition of bear arms. Discussion of "well regulated" in different contexts would also help the brief.


But Miller's view that the clauses have some relationship does not strike me as unreasonable.

The Miller opinion's discussion of the Second Amendment reads like stream-of-consciousness, or thinking out loud. The opinion shows the defect of ex parte proceedings in the Supreme Court.

Given that the AK-47 has long been the modern militia weapon of choice, I agree a fair interpretation of Miller in the context of modern milita warfare would require inclusion of automatic weapons in the protected class.


Not to mention the AK's are old enough to classify as a "relic or curio."

re: egoism: I was struck by this bit of Lund's footnote 17: On the contrary, the analysis presented here and infra produces a much more coherent and cogent interpretation of the whole text than the one offered by these amici and by petitioners. Go me!
2.11.2008 2:58pm
Supreme Court Reader:
"If you want to read a model Supreme Court brief, this is the brief to read."

This has got to be the most unintentionally funny thing you have ever written. The brief doesn't qualify as one of the more embarassing ones that are regularly filed in the Supreme Court, but it is hardly a model. For a model, go to http://www.usdoj.gov/osg/briefs/2007/2007brieftypes.html and click on any brief.

Looking only as far as page 3, the summary of the argument is one paragraph long. That is not what the Supreme Court expects.

Turning to page 4, we find Part I, in which the first paragraph posits that Petitioner's interpretation leads to "one of three untenable conclusions." Just one? Is it that there are three possible conclusions, all of which are untenable, or is this a guessing game? After setting out the three possibilities and stating that the Petitioners "appear to adopt" the third, the brief then gives three reasons why that option is "fatally flawed." The first reason is: "First, like the second alternative,
it entails an historically unsupported assumption
that the Second Amendment substantially
altered Congress’ Article I authority to regulate the
militia."

This sentence has several problems. First, it begins with "like the second alternative." There has, at this point in the brief, been no substantive discussion of the second alternative, so what use is it to compare the third alternative to the second? Second, it asserts that there is "an historically unsupported assumption," which is itself an unsupported statement. Third, that sentence is the entirety of the discussion about this point. It is certainly no model of Supreme Court advocacy to just throw out phrases like "fatally flawed" and "historically unsupported" without giving a little flavor of why you think that's so.

The textual discussion (admittedly without having read the whole thing) looks like it reads much more smoothly, but this simply is not a "model brief" in the Supreme Court.
2.11.2008 3:00pm
Waldensian (mail):

Not to mention the AK's are old enough to classify as a "relic or curio."

I never thought about it, but until now I never pondered whether I could purchase an AK (or at least the semi-auto-only version) with my 03 FFL. Where do I find such beasts? SKSes, on the other hand, no problem.
2.11.2008 8:05pm
federal farmer (www):

This would lead to absurd results: a constitutional right to private ownership of aircraft carriers, stealth bombers, ICBM's, and nuclear warheads. The military is as much "armed" with them as it is with infantry rifles.


Yeah, I just want one of those cool giant camo trucks that I see the guard guys driving down the interstate!

Anyway, militia don't carry WMD's. WMD's are weapons that the state uses to commit genocide.
2.11.2008 11:18pm
federal farmer (www):
Wait a second, I have a serious question regarding this brief.

In their press release, SAF says:


Congress cannot abolish this constitutional right of the people by abolishing the militia,” notes Lund in the brief. “Neither can the right be limited to contexts in which its exercise contributes to the functioning of an organized militia that Congress is not even required to maintain.”


Can someone explain to me how Congress can abolish the militia? Isn't the militia "necessary"? I think the 2nd Amendment requires the militia. No militia, no free state.
2.11.2008 11:22pm
zippypinhead:
Waldensian wrote:

I never thought about it, but until now I never pondered whether I could purchase an AK (or at least the semi-auto-only version) with my 03 FFL. Where do I find such beasts? SKSes, on the other hand, no problem.

Read the statute and BATF regulations. A Class 03 C&R FFL ("curio &relics" license -- basically vintage firearms over 50 years old) only gives you the right to directly purchase a C&R firearm in interstate commerce without the expense and hassle of a FFL-to-FFL transfer (it also gets you the dealer discounts at places like Brownells, Numrich, etc. and can pay for itself with just one order, but that's besides the point). The C&R FFL explicitly does not override the NFA or other Federal, state or local laws restricting possession of firearms. Meaning you cannot purchase a machinegun without going through the same hoops as anybody else. Nor can Heller get around D.C.'s handgun ban by getting a C&R license and purchasing a C&R eligible M1911 or Luger. Even the Congressionally-chartered Civilian Marksmanship Program cannot ship a WWII M1 Carbine to C&R holders New Jersey, as that rifle is specifically listed as a prohibited "assault weapon" under state law.

For the uninitiated: SKS's are a Russian 1940s semi-auto design (and all but the Chinese commercial ripoffs have really neat and "scary" integral bayonets), and the former east block has been exporting them from their arsenal storage depos for years to get cash. They're cheap and useful for hunting up to whitetail deer-size game, and in some parts of the U.S. are known as the "poor man's .30-30." Although given how expensive 7.62x39 ammo has been getting lately as Uncle Sam has been busily buying it up to arm the Iraqi army, I'm not sure how much the "poor man" can afford to actually shoot one anymore...
2.13.2008 11:12am