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The "Failed State" Brief in DC v. Heller:

On behalf of several association of private security guards and detectives, and the Buckeye Firearms Foundation, a brief in DC v. Heller supplies the facts of the appalling mismanagement and institutional incompetence of DC's Metropolitan Police Department. Almost everyone who lives or works in the District of Columbia is well aware that the District's government performs very poorly compared to almost all other big-city governments in the United States. Nevertheless, the Buckeye brief is shocking.

The four core empirical subparts of the brief are titled: "The MPD Has A Significant Problem Hiring And Retaining Qualified Police Officers." "The MPD Has A Significant History Of Mismanagement." "The District's '911 System Is A Joke'." and "The MPD Has A Significant History Of Corruption." Every one of these points is proven beyond a reasonable doubt, relying almost entirely on reports in Washington newspapers.

Moreover, although paying for security, through a private security guard firm, is still legal in DC, the MPD controls the licensing of security guards, and works hard to suppress the private security business through licensing abuse, and by prosecuting security guards on specious charges.

The brief then points out that the DC government enjoys civil immunity from persons who are injured because the MPD's non-feasance, even when persons were injured because they relied on false promises from DC 911 operators that help was on the way.

Thus, the decent, law-abiding citizens of the District have no other recourse but to protect themselves (or to hire security guards, if the , and, the brief argues, the Court should recognize the right of the District's citizens to do so themselves.

Sean M:
I am not sure one can prove something beyond a reasonable doubt using newspaper articles.

Because that relies on the accuracy of the newspaper articles.

And if there is one thing we know, it's fallibility of newspapers as an information gathering resource. After all, Dave has an entire column dedicated to media criticism.
2.10.2008 8:11pm
PersonFromPorlock:
On the other hand, a USSC ruling - even if it's only implicit - that the media can't be trusted to get things right would occasion a little Schadenfreude!
2.10.2008 8:33pm
George Weiss (mail):
the same people who are anti gun will say the citizens should use the democratic process to make the city not immune to lawsuits over city nonfeasance.

im pro gun- but this brief strikes me as a a real stretch for relevancy
2.10.2008 8:47pm
Carl in Chicago (mail):
George Weiss wrote:

...this brief strikes me as a a real stretch for relevancy


From the brief:

The District of Columbia Metropolitan Police
Department has failed to provide adequate police
services to the District of Columbia's citizens.

...
Even in a jurisdiction that is (emphasis mine) effective at providing police services, the police will never be able to provide completely thorough protection from criminal attack; they cannot be everywhere at once. Courts have consistently recognized and endorsed this premise (emphasis mine) in the cases immunizing the police for failing to protect the public. The only way to avoid this framework from having the singularly unconscionable result of the government creating a powerless victim class is for this court to interpret the Second Amendment as guaranteeing the fundamental, individual right to keep and bear firearms.
...
...this holding would empower citizens to defend themselves where the police cannot.


Please explain, Mr. Weiss, how you can honestly opine the irrelevance of the statements above.
2.10.2008 8:58pm
EH (mail):

the same people who are anti gun will say the citizens should use the democratic process to make the city not immune to lawsuits over city nonfeasance.

Are you really intending to hang your entire opinion on this strawman?
2.10.2008 9:09pm
George Weiss (mail):
well not all jurisdiction's civil immunity rules are the same.

some have different exceptions and limitations..and some require more or less outrageous behavior from the police.

i take it dc is pretty strict on the civil immunity side as opposed to the recovery of the innocent side.

the anti gun (and more direct) response to this is to reform those rules because dc has (admittedly) an incompetent emergency response system.

making the gun law unconstitutional is a roundabout way of solving some emergency situations (ones that need protection)..but reviewing civil immunity laws would help deter dc's incompetence in both police and fire and medical emergencies. such a direct solution would also be more fair to the innocent who are hurt because of the incompetence.

not every citizen can work a gun..but every citizen can hire a plaintiffs lawyer on contingency.

anti gun judges would see this for the roundabout policy argument it is..note the possible political solution, and dismiss it.
2.10.2008 9:20pm
runape (mail):
So long as you're painting with quite such broad strokes, you might note the fact that the plaintiff-respondent is himself a former employee of the same MPD.
2.10.2008 9:23pm
JohnO (mail):
To echo George Weiss's comment, could the result really depend on whether a local police force is competent or not? It seems to me that the trials and tribulations of the MPD is just nice filler that could be referenced by someone who has already decided the ban is unconstitutional, but I can't see how the MPD's foibles can change the meaning of the constitutional text.
2.10.2008 9:28pm
George Weiss (mail):
runape-

is your comment directed at me?

EH-

a stawman is when you put words in the mouth of those you disagree with that they would not say and that damage their position. im suggesting a possible good argument that can be made by anti gun people who are reading this brief.
2.10.2008 9:30pm
runape (mail):
At David.
2.10.2008 9:32pm
George Weiss (mail):
john O-

true this brief is a policy argument not a substantive legal argument. but the people filing this brief know that since the substantive arguments can go either way..and since legal realists recognize that in reality...judges are often swayed by policy arguments even when the substance is clear.

im just syaing that as long as you have to bring in policy..make it more to the point than civil immunity laws for police...with this case woulnt change either way.
2.10.2008 9:36pm
Snitty:
I'm very unconvinced by their argument structure, that because the MPD sucks, then the 2nd Amendment has to be read to grant private rights. Regardless of which side of the argument you stand on, that's just not a proper constitutional argument.
2.10.2008 9:40pm
Houston Lawyer:
I believe the position is that the government can't be expected to be there to protect you and DC isn't even trying. In fact, they want to disarm you so you can't help yourself and then won't help you either. It almost appears that the only law they want to zealously enforce is the one providing that you can't defend yourself. Not a legal argument, but persuasive nonetheless.
2.10.2008 9:45pm
DJMoore (mail) (www):
Houston Lawyer gets it right. The point is that citizens must be able to defend themselves because the government cannot always and everywhere be trusted to do so.

D.C. deserves this punch in the mouth because in their brief they claimed, essentially, that they had a responsibility to protect their citizens that could only be met by rendering their citizens defenseless.

As Heller's brief points out, D.C. has several times successfully defended itself against suits claiming that the city had failed in its duty to protect citizens in known danger.
2.10.2008 10:03pm
BladeDoc (mail):

well not all jurisdiction's civil immunity rules are the same.


Being that they cited Federal Supreme Court cases which found police not to be immune for failure to protect torts isn't the above statement wrong? Or more specifically, nowhere in the US are the police liable for failure to protect.

Furthermore, how does one "use the democratic process" to reverse those findings? An amendment to the constitution? Surely nothing less can trump the Supreme Court.
2.10.2008 10:18pm
ReaderY:
I completely agree that the basic meaning of the constitution does not and should not depend on whether one thinks a particular administration is doing a good or bad job at the moment.

If the MPD is as incompetent as the brief claims, it would hardly be the first time an American government has been incompetent or even corrupt, Nor the last. No significance at all.

It's not the job of the judiciary to guarantee Americans good government. That's the job of the electorate.
2.10.2008 10:18pm
p3731 (mail):
Classic false dichotomy. The cops in DC can't do their job, therefore: I get a raise/the cops all owe me a dollar/it must be Wednesday. Total non sequitur. I hope they've got something stronger than that to bring before the Court. Also, as somebody has already pointed out, it's not even a *Constitutional* non sequitur, it's a policy argument, the same sort that conservatives are supposed to despise. Bad Volokh contributor, no biscuit for you.
2.10.2008 10:20pm
Richard Aubrey (mail):
So DC is a failed state. What else is new?

Question is...if allowing a constitutionally-protected right to citizens on the basis that their state has failed them is decisive, then do we have to prove everywhere the 2d is litigated that the local governing entity is failed?

There are other failed states. Pakistan is getting there, some places in subSaharan Africa come to mind, and in the Horn.

What else is allowable when a state has failed?
2.10.2008 10:21pm
frankcross (mail):
The failed state theory seems nutty. And Carl's post shows how it was unnecessary to the fundamental argument. Where exactly is the line drawn between a failed and a successful state? If there's a right to self protection, it shouldn't be contingent on some "percentage" of state failure.

And I don't think you can prove something to be a joke beyond a reasonable doubt.
2.10.2008 10:27pm
John Steele (mail):
As a third generation native of the District, this post brought back memories. When I was a kid in the 1960-70's, the Bethesda-Chevy Chase Rescue Squad went door to door soliciting donations in Northwest DC and would gladly drive acoss the border into NW DC. The conventional wisdom in my neighborhood was that in an emergency one should't call the DC ambulance but rather call the BCC Rescue Squad. As you'd imagine, that didn't make DC's ambulance drivers happy. One night, the animosity reached a boiling point over the body of a District resident who was being treated by the BCC squad, who had reached him first. The two squads had a fistfight above the body of the heart attack victim. Good times.
2.10.2008 10:37pm
An0n:
As long as some people take seriously the suggestion that average citizens don't need guns for self-defense because the police will protect them, evidence that the police cannot protect them (and in some cases don't seem to try very hard) will be relevant to the argument. And some people do take that suggestion seriously.

"Also, as somebody has already pointed out, it's not even a *Constitutional* non sequitur, it's a policy argument, the same sort that conservatives are supposed to despise."

If you think policy arguments are something new in Supreme Court briefs, you haven't been paying attention. The original Brandeis brief was filed over 100 years ago. There's been no dearth of copycats in the intervening century. And how conservatives (or libertarians, or others) feel about policy arguments isn't the question. If the Court likes policy arguments, it's a foolish lawyer who refuses to make them.

"I hope they've got something stronger than that to bring before the Court."

Depends who you mean by "they." You may note that the Buckeye Firearms Foundation is just one of many amici. Between Heller's brief and those of the amici supporting him (not all of which have been filed yet, presumably, since the deadline is tomorrow), there will plenty for the Court to consider on the pro-individual right side.
2.10.2008 10:56pm
Justin (mail):
A "failed state" has a meaning in international law. It's debatable whether Iraq is a failed state. DC, not so much.
2.10.2008 10:57pm
Elliot123 (mail):
Perhaps it isn't a good constitutional argument. However, it does point out that the very same problems which existed at the time of the drafting of the Constitution still exist today. The drafters knew the government couldn't respond to calls for help in time to protect a citizen; and it still can't.
2.10.2008 11:04pm
zippypinhead:
This brief, strictly speaking, is simply not relevant to the Constitutional interpretation question presented in Heller. But it's a good read, helps answer some of petitioner's (and fellow travelers') less cogent arguments, and does give a justification for the public policy argument for permitting The People the tools necessary to defend their own lives -- arguments which would be very relevant to the legislative future of D.C.'s gun control laws if the Court unexpectedly accepted petitioner's arguments [i.e., relevant to the Congressional repeal of the D.C. Council's ordinance if Heller comes out very differently than I expect].
2.10.2008 11:40pm
Steve2:
I was disappointed to see that the quotation marks in Part III's title are because they're quoting a newspaper editorial indictment of D.C.'s 911 in particular, rather than misquoting Public Enemy's indictment of 911 in general.
2.10.2008 11:54pm
Ryan Waxx (mail):
Irrelevant? Nelson Lund didn't think lack of personal security irrelevant in his brief:

According to what Blackstone calls "the
dead letter of the laws," personal security must be
very well assured in a city where almost nobody
except agents of the government is authorized to
possess an operable firearm. The reality is rather
different, and nothing in the Constitution requires
this Court to ignore that reality.


Of course, you could claim that he's just a sloppy writer that includes irrelevant details in his briefs, but I'm not sure that's really a plausible argument.
2.11.2008 12:09am
runape (mail):
If they really wanted to make a policy argument concerning the effectiveness of the police, one would think they have their incentives backwards - if armed citizens can solve all our problems, why bother with the police? Of course, that begs the question why bother with the brief -
2.11.2008 12:21am
eyesay:
Almost everyone who lives or works in the District of Columbia is well aware that the District's government performs very poorly compared to almost all other big-city governments in the United States.
One reason this might be so is that in most cities, the reward for being a great mayor or a great county supervisor or city council member is the prospect of getting elected to the state legislature or state executive, or to the U.S. House and Senate. None of these are available to politicians in the District of Columbia. The solution is either to make the District of Columbia a state, or cede it back to Maryland.

Meanwhile, in the words of James Otis, taxation without representation is tyranny.
2.11.2008 12:25am
M-K (mail):
I took these "policy" brief to be intended to refute the policy briefs on behalf of D.C. And a good idea, too.
2.11.2008 12:26am
Millenial Klingon (mail):
Critics of this brief are living in crazy land. Self-defense is justified in part because the police can't always protect you and if someone has to die, better the murderer than the victim. This brief points out that the police in this jurisdiction do not and will not and legally do not have to protect victims. The idea that a certain outcome of the case would end up depriving people of their only means to self-defense is not irrelevant, if one thinks that the Second Amendment is the codification of a common-law tradition including necessity and self-defense doctrines or if one cares about the practical consequences of judicial decision-making.
2.11.2008 12:56am
George Weiss (mail):
bladedoc-

the constitution does not mandate sovereign immunity... it allows it..the supreme court was interpreting the common law doctrine and any waivers there might be.

any exceptions to sovereign immunity are at the complete control of the political branches.

it is true that police are not libaile for failure to protect in almost any juristiction..but thats not becuase the conittuion requires it.

perhaps however...dc could give a limited exception to the sovereign immunity law for the outrageous situations as do occur in dc...
2.11.2008 12:59am
Asher Steinberg (mail):
So it's not the strongest argument in the world, but it puts some valuable information before the Court. I do hope they mentioned in the brief that, besides the difficulty of obtaining security, the vast majority of DC's citizens can't afford it.
2.11.2008 1:26am
Vinnie (mail):
eyesay:
Meanwhile, in the words of James Otis, taxation without representation is tyranny.

Don't go there or us smokers will have to remind you of our nimbers.
2.11.2008 1:58am
Vinnie (mail):
numbers that is.
2.11.2008 2:05am
Elliot Reed (mail):
I do agree that this brief doesn't seem particularly relevant to the issue of whether the Second Amendment protects an individual or "collective" (i.e. state's) right. If it's a state's right then the city wins, but if it's an individual right there's another issue: given that the Second Amendment protects an individual right, does the D.C. gun ban, as applied to respondents, violate that individual right? The Buckeye brief could, in theory, be relevant to that question.

Is there a need for SCOTUS to even decide that second issue though? It could just articulate the appropriate individual-right standard and remand for consideration of the issue under the new standard, with full presentation of relevant evidence and counter-evidence.
2.11.2008 2:27am
Millenial Klingon (mail):
and remand for consideration of the issue under the new standard

Why remand when ample evidence and argument is before the court? You have statistics and public policy arguments and facts as to how the law operates. If the argument is that there is a right that mandates evaluating the D.C. ban at a particular level of scrutiny, this information is relevant to scrutinizing the constitutionality of the D.C. ban. Remand is a waste of time and resources.
2.11.2008 3:05am
banduraj (mail):

I do agree that this brief doesn't seem particularly relevant to the issue of whether the Second Amendment protects an individual or "collective" (i.e. state's) right.

True, it is more of a policy argument. And I would say a counter to some of the other briefs. With that in mind, it may be focused at some of the more liberal judges, or as others have put it, use what ever arms (pun intended) are at your disposal.

If it's a state's right then the city wins, but if it's an individual right there's another issue: given that the Second Amendment protects an individual right, does the D.C. gun ban, as applied to respondents, violate that individual right?


I have seen this mentioned before and now I have to ask how this plays out if this is the case. Assuming we get no ruling on individual or not due to it being a state right, does that incorporate it right there even though incorporation is not part of the case?
2.11.2008 9:03am
Bretzky (mail):
Either the law is constitutional or it isn't. Considering that public police forces didn't even exist at the time of the constitution's writing, their ability to "protect and serve" is irrelevant to that question.

The law seems constitutional to me, even if it's not sensible. The law-abiding residents of DC should be able to arm themselves for protection if they so choose. If the people of DC decide that removing guns from the city (not that this law will actually accomplish that) is the better course, then they should be allowed to follow it. The individual right to own a gun guaranteed by the constitution has no meaning outside someone's participation in the militia, which hasn't existed since before the Civil War.

On another line, the discussion about the DC police reminds me of a recurring item in News of the Weird called "The District of Calamity". It details the countless acts of corruption and incompetence that the DC government visits on its citizens every year. But, in a democracy, you get the government you vote for and deserve.
2.11.2008 9:26am
JohnR(VA) (mail):
If the Metropolitan Police Department were the only game in town, it would be room for grave concern. However, there are at least a half-dozen federal police forces deployed in D.C., particularly around the embassies and the parks, in marked and unmarked cars, SUVs and vans. The newest entrant in the policing sweepstakes is an SUV I saw on Thursday marked "FBI Police-Canine." Even the FBI wants in on the action, it seems.The firepower the federal vehicles carry would shock the average resident. It's awesome.

So there's a lot more in the way of law enforcement prowling the streets than one might imagine simply reading this court filing. All of them, I believe, have the authority to make arrests for any local violations. So it's MPD to the tenth power, IMHO.
2.11.2008 9:43am
byomtov (mail):
if one cares about the practical consequences of judicial decision-making.

You mean if one likes "legislating from the bench?" I thought conservatives hated that.

Yet, an awful lot of the arguments on this issue, not just this brief, seem to be based on policy preferences. What else is new?
2.11.2008 10:03am
Student:
The excellent argument that the government ought not deprive a citizen of the right to defend themselves without guaranteeing their safety is practically buried in this very poor brief. I don't think the bumper sticker slogans that speckle the brief are going to sway the court.
2.11.2008 10:09am
Eli Rabett (www):
It is your basic suburban libertoon bull crap. Of course, if you really want to be safe, why not ride in one of those Blackwater convoys, might be a bit dangerous to those on the street, but what the heck, they didn't pay for protection.
2.11.2008 10:09am
William2008:
Weiss and others criticizing this amicus brief regarding ineffectiveness of police protection in DC are missing the point.

In the District of Columbia (and all American jurisdictions to my knowledge) police are immune from civil liability if there is a failure to protect citizens. The courts have ruled - correctly - that a police force is not a guarantor of citizen safety. As is often repeated - correctly - the police cannot be all places at all times.

Therefore, it is highly ironic that the District government argues in its brief that citizens' safety is to be protected by the police to the exclusion of citizens' ability to do so via gun ownership.

To say that the legislature can undo this police department immunity is silly for several reasons.

First, the police department should be immune from civil suit - they cannot, even if they were managed perfectly, guarantee citizens' safety.

Second, Congress would have to pass such a law (repealing police department immunity in DC) and a President would have to sign it. That's simply not going to happen, no matter how much you think it should.

Third, and most important, giving a citizen the right to sue the police department for failing to protect the citizen is a hollow victory at best.

If a person breaks into your home at night, and you call 911, and while you're waiting for the police to arrive, the intruder rapes and kills your wife, will your ability to sue the police "make you whole"?

There is a long-standing right of self defense that has been a part of Anglo-American law for centuries. Indeed, even the UN recognizes the right of a person to protect themselves. For the citizens of the District to want to protect themselves is a desire for the most fundamental of human rights.

To suggest that suing the police is a remedy that's as good as killing an intruder before he kills and/or rapes you or your family is sophistry of the worse type. It's placing the importance of words above the importance of human life.
2.11.2008 10:16am
The Ace (mail):
it's a policy argument

Thank you for noting the obvious.

By the way, the city is run by Democrats. Proof positive that modern liberals shouldn't be anywhere near power.
2.11.2008 10:38am
Carl Donath (mail):
Yes, the brief is light on strict legalities.
In a case like this where everyone is trying to squeeze obscure legalisms out of every text they can, a reality check is refreshing: "the prospect of imminent death focuses the mind wonderfully."

DC's brief pleads that disarming citizens is vital to protecting them; whatever else their appeal entails, that is the very essence of their claim. This "Failed State" brief gives lie to that claim, demonstrating that DC not only is fighting for the power to disarm citizens but also has repeatedly fought for the right to NOT protect them, and while the brief may be largely anecdotal, SCOTUS judges reside &work in DC and are aware of the truths thereof.

Yes, it is light on legalese. It also shows the real-world effects, which are very far from the original intent of the Constitution. DC's crime rate is the natural consequence of the "collective rights" theory - practically proving such an interpretation is not what the Founding Fathers had in mind.
2.11.2008 10:41am
David Hodges (mail):
This post reminds me of a personal experience with the startling incompetence of the DC police. Once, while I was on vacation, my apartment was burglarized. My roommate reported it to the police and the detective came and took notes. One of the things stolen was a check of mine. The burglar went to the bank and forged my signature in a check for himself.
When I called the bank to report it, they let me know that the man was a bank member and they had 1) his driver's license, 2) a surveillance video of him walking in and depositing the check, and 3) his bank information. Further, they expressed fully their intent to cooperate with the DC police and gave me information so that the detective could contact them.
Despite all of this, despite the fact that the detective's beat was Tenleytown (probably the safest area of DC) and despite my numerous calls and e-mails to the detective, the "investigation" never had a pulse.
Thanks Detective Vernon Jones and MPD!
2.11.2008 10:41am
The Ace (mail):
This post reminds me of a personal experience with the startling incompetence of the DC police

Yes, when my car was stolen, on Cap Hill no less, I remember the detective assigned to the case telling me "if you find any leads, call me."

Nice.
2.11.2008 10:50am
Gramarye:
Having just finished reading the Nelson Lund brief, I felt that this "Failed State" brief (as good a moniker as any) was a serious let-down in terms of both style and substance. This is barely more than a blog post in brief format (and is arguably even less useful, given that it doesn't actually have links to primary sources as a blog post would have). This is not to dispute any of the factual assertions of the brief about the current state or recent historical performance of the D.C. government and police.

I call to mind Prof. Kopel's observation in his post about the Lund brief, holding that brief up as one that did not commit this error:
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.
While he doesn't say so much regarding the "Failed State" amici, I think this might well exemplify what he was talking about. The Lund brief was powerful precisely because it avoided the kind of bombast that this brief apparently embraces.

I certainly would not commend this brief for study to any moot court team I was coaching.
2.11.2008 10:50am
NaG (mail):
Klingon: Except all the evidence piled up in these amici has yet to be vetted by a trial court. BFF's argument, if it is to be part of the decision-making process, is entirely supported by evidence that has not been presented until now. If the Court decides that the effectiveness of the local police is important to the decision of how much leeway the local government gets to restrict gun rights (a very highly unlikely result, since it would be impossible to create an objective test for and would inspire huge amounts of needless litigation), it would not simply count everything in BFF's brief as true and rule from there. It would remand for further factfinding.

The main purpose of BFF's brief, as has already been ably pointed out, is to undermine the credibility of a part of D.C.'s brief. D.C. has taken the position that it should be able to ban guns in order to maximize law enforcement ability. BFF points out that D.C. has utterly failed to prove that the gun ban has resulted in reasonable, or even minimal, law enforcement. Thus, D.C.'s argument on that point is blown. It's not a legal argument. Just pure credibility.
2.11.2008 10:58am
A. Zarkov (mail):
The incompetence of the DC government extends far beyond the MPD to most other city services. Can anyone think of anything in DC that works? Yet this same government purports to tell us that they know a gun ban is in the city's best interest.

BTW the government incompetence seems to have leaked into other sectors such as medicine. I know someone who had a double hernia, yet three DC surgeons, one of them chief of surgery at a major teaching hospital, failed to find the second. So did two doctors of internal medicine along with one ER doctor. That's six. He went to NYC and saw three doctors (one a surgeon), and they all found the second hernia in a few seconds. He also discovered that his records at the DC teaching hospitals contained serious errors and omissions. They couldn't even take his patient history accurately.
2.11.2008 11:38am
Dennis Nicholls (mail):
Another way of viewing the relevance of this brief...

DC may plead in the alternative that A) the 2nd A isn't an individual right, and B) even if it is, the DC law passes "strict" or "intermediate" scrutiny because it's so important to government. This brief attacks the second part of the DC argument: it isn't a critical government interest if it demonstrably isn't working.
2.11.2008 11:43am
andy (mail) (www):
Can anyone recommend a fairly neutral law review article (or perhaps even a case or amicus brief?) that goes through the individual vs. collective rights arguments objectively?

I don't know much about the 2nd amendment but would like to catch up on the Heller debate. Everything I've seen so far has seemed pretty one-sided (although I haven't looked around much). If someone can point me to a neutral analysis of the original history and (groan) "evolution" of the 2nd amendment, I'd be appreciative. Thanks.
2.11.2008 12:46pm
ClosetLibertarian (mail):
It does seem a little off target but it is in response to off target arguments from DC. However, the chances of the appeal succeeding would probably be greater if DC was the safest city in the US. The fact that DC is not more embarrassed about their crime is more evidence of their incompetence.
2.11.2008 12:57pm
MXE (mail):
It does seem a little off target but it is in response to off target arguments from DC. However, the chances of the appeal succeeding would probably be greater if DC was the safest city in the US.

Quite correct. The necessity of legal handgun ownership is often questioned on the grounds that "we have police for that sort of thing." Obviously in D.C., we don't.

Yes, none of this directly bears on the question of original meaning. That doesn't mean it's totally irrelevant to the case, and it's addressing arguments that the other side has made and will continue to make.
2.11.2008 1:23pm
Adam J:
By the way, the city is run by Democrats. Proof positive that modern liberals shouldn't be anywhere near power.

And proof positive that (most) modern conservatives are hypocrites. Conservatives, with all their concern for judicial activism and legislating and whatnot, should find this brief completely unpersuasive, since it attempts to convince judges to rule on a constitutional argument based on a policy preference- rather than what the original meaning of the Constitution is. Remarkably however, we find a number of conservatives, like yourself, abandoning this principle to leap to the briefs defense.
2.11.2008 1:29pm
wuzzagrunt (mail):
Adam J:
And proof positive that (most) modern conservatives are hypocrites. Conservatives, with all their concern for judicial activism and legislating and whatnot, should find this brief completely unpersuasive, since it attempts to convince judges to rule on a constitutional argument based on a policy preference- rather than what the original meaning of the Constitution is. Remarkably however, we find a number of conservatives, like yourself, abandoning this principle to leap to the briefs defense.

Except that when the evidence of history, legal theory, and social policy all support the "conservative" case, charity dictates that we be forgiven for acting like we've just won the Trifecta.
2.11.2008 2:03pm
Bretzky (mail):
andy:


Can anyone recommend a fairly neutral law review article (or perhaps even a case or amicus brief?) that goes through the individual vs. collective rights arguments objectively?

I don't know much about the 2nd amendment but would like to catch up on the Heller debate. Everything I've seen so far has seemed pretty one-sided (although I haven't looked around much). If someone can point me to a neutral analysis of the original history and (groan) "evolution" of the 2nd amendment, I'd be appreciative. Thanks.

I think you might find it difficult to find something neutral on the subject because the Supreme Court has mostly sat on the sidelines of the second amendment debate. Any neutral discussion of the "evolution" of a constitutional history must to a large extent deal with how the Supreme Court has handled it, which, with the second amendment is almost nonexistent.

I am certainly not a second amendment scholar, but the article that I have found most useful is "The Second Amendment in Context: The Case of the Vanishing Predicate" by H. Richard Uviller and William G. Merkel. You can find it in the Chicago-Kent Law Review.

I believe that the article was also expanded into a book by the authors, or--given the length of the article--was merely published as a book too.
2.11.2008 2:05pm
Fredrik Nyman XXX (mail):
I think that this brief should also be considered a response to the Solicitor General's brief, suggesting that strict scrutiny is inappropriate.

Let's suppose, for argument's sake, that some justices are swayed by petitioners' argument that intermediate scrutiny is the proper standard; and that some kind of licensing scheme would pass muster. I think that this brief would help counter that kind of argument, by reminding the justices that the District has a long history of corruption and incompetence, that calls into question the District's ability to run such a licensing scheme.

I would also think that it's helpful how this brief reminds the justices that the petitioners contradict their own claims; here, the District argues it has a duty to disarm its residents in order to protect them, but in other contexts, the District has successfully argued that it has no duty to protect its citizens.
2.11.2008 2:15pm
The Ace (mail):
Conservatives, with all their concern for judicial activism and legislating and whatnot, should find this brief completely unpersuasive, since it attempts to convince judges to rule on a constitutional argument based on a policy preference-

No, I actually want them to rule on what the constitution (and federalist papers) actually says on the matter.

Pretty pathetic attempt at changing the topic and arm waving.

And again, Democrats have ruled DC for over 40 years.
It's going swell.
2.11.2008 2:33pm
The Ace (mail):
Remarkably however, we find a number of conservatives, like yourself, abandoning this principle to leap to the briefs defense.

I'll go slow, since, well, you're obviously slow.

1. The brief responds to claims made by the District government.

2. I didn't set up, condone, encourage, or approve of the Supreme Court becoming a political body that makes rulings based on preferred policy outcomes. People like you did. Now that it's thrown back in your face, you're stamping your feet.

3. The brief is only supplementary to the central issue, which is the 2nd Amendment clearly confers and individual right which the District of Columbia goverment, Democrats all, are happily violating.

4. Remember clown, you leftists are "civil libertarians" for "privacy" except, well, when you're clearly not.

Thank for participating.
2.11.2008 2:37pm
Bruce:
I served on a grand jury in DC. There are lots of arrests, based on good police work and sufficient evidence, and there are plenty of prosecutions that result in convictions. Saying DC law enforcement is so ineffective DC is essentially a state of nature might line up well with a standard mythology bought into in some quarters, but it is not accurate. Next brief.
2.11.2008 4:59pm
Tony Tutins (mail):
Another reason this brief is relevant: Let us say that the Court decides that the standard of review is not strict scrutiny, but rational basis. The corruption and incompetence-based failure of the police to protect the citizenry helps demonstrate that the law is completely irrational.

The Deshaney case cited stands for the proposition that governments can't take away your ability to take care of yourself. Kozinski made a similar point dissenting in US v. Lopez, stating that the government could not fairly deprive a felon-government witness of protection, then prosecute him for arming himself with a shotgun.

Classes on Constitutional and legal principals were taught not by a lawyer but by a police officer who had not been in a courtroom in a decade.26

Just wondering now when the last time any of the VC law professors were in a courtroom.
2.11.2008 5:06pm
Fredrik Nyman XXX (mail):
Bruce:

Isn't that (raw # of arrests) somewhat beside the point? If 1/2 of all crimes result in arrests, 1/2 of all arrests result in prosecution, and 1/2 of all prosecutions result in convictions, that would be a pretty big indictment of DC's law enforcement institutions regardless of what the number of arrests is.
2.11.2008 5:24pm
Clayton E. Cramer (mail) (www):
I am amused at the number of liberals now whining that the Court should just make decisions based on the law (and especially, stare decisis) who seem to have forgotten how social science arguments--a policy question argument if there ever was one--were central to Brown v. Board of Education striking down "separate but equal" as intrinsically unequal.

I agree: the Court should make decisions based on the law. But don't tell me that there's something improper about countering DC's claim that the Loftin study showed that the law saved lives.

I look forward to the day when the Court says that they are deciding questions of law, and that all this other stuff is irrelevant to their decision. In the meantime, those of you who have relied on Brandeis briefs for much of a century to get the Court to act as superlegislature should stop whining that we are using your tools in defense.
2.11.2008 5:29pm
Clayton E. Cramer (mail) (www):

Conservatives, with all their concern for judicial activism and legislating and whatnot, should find this brief completely unpersuasive, since it attempts to convince judges to rule on a constitutional argument based on a policy preference- rather than what the original meaning of the Constitution is.
It isn't the conservatives on the Court that this brief is trying to persuade. It is the liberals who claim to believe in that living, breathing, constantly mutating Constitution.
2.11.2008 5:32pm
Clayton E. Cramer (mail) (www):

Can anyone recommend a fairly neutral law review article (or perhaps even a case or amicus brief?) that goes through the individual vs. collective rights arguments objectively?

I don't know much about the 2nd amendment but would like to catch up on the Heller debate. Everything I've seen so far has seemed pretty one-sided (although I haven't looked around much). If someone can point me to a neutral analysis of the original history and (groan) "evolution" of the 2nd amendment, I'd be appreciative. Thanks.
I have never seen a neutral analysis of this question. EVER. It's a rather emotional subject. I would recommend that you read material from both sides--and then start checking their citations for accuracy. I've done that to both sides, and while there are mistakes and overly anxious misreadings on both sides, it isn't a balanced set of results.

Your library probably has For the Defense of Themselves and the State (Praeger Press, 1994) by yours truly. While there has been some new material found since I wrote it, you will find that most of the legislative history that appears in these briefs is in my book.
2.11.2008 5:36pm
DJMoore (mail) (www):
"...It isn't a balanced set of results."

Do I detect a slight hint of derisive understatement?

BTW, sir, I see the amicus brief from Academics for the Second Amendment is up on Scotusblog, and that you provided "historical assistance". Thank you very much for your defense of our liberty.

VC regular Randy Barnett was a co-counsel.
2.11.2008 6:09pm
Millenial Klingon (mail):
It's not a legal argument. Just pure credibility.

Please see Clayton Cramer's response. He beat me to it.
2.11.2008 7:54pm
Clayton E. Cramer (mail) (www):

"...It isn't a balanced set of results."

Do I detect a slight hint of derisive understatement?
Just a little! Even subtracting out Michael Bellesiles's "scholarship," their side manages to get more errors in single books or articles than our side manages combined. For example: citing the Tennessee law upheld in Aymette as a handgun control measure--when it only regulated knives. Citing Georgia's 1837 ban on sale of concealable handguns--and neglecting to mention that the ban was struck down by the Georgia Supreme Court for violating the Second Amendment! Claiming that "bear arms" is almost used in a military context--when there are dozens of counterexamples that I was able to find without leaving my desk.
2.11.2008 9:54pm
Clayton E. Cramer (mail) (www):

BTW, sir, I see the amicus brief from Academics for the Second Amendment is up on Scotusblog, and that you provided "historical assistance". Thank you very much for your defense of our liberty.
Your welcome. You may find my book Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007) of interest. It's more the cultural history of guns in America than the legal history, but that also makes it a bit more interesting. You will learn things that you probably will find surprising--for example, there were mandatory gun carrying laws in a number of colonies.

There's also some stuff that's somewhat tangential to gun ownership. For example, free blacks not only could and did vote in the 17th century in Virginia, South Carolina, and Maryland--but a black man was elected to the Maryland legislature in the 1640s.
2.11.2008 10:10pm
Bruce:
Fredrik:

My point is simply that there is operational law enforcement in DC. There may be problems, but calling DC a "failed state" is ludicrous.

Looking at the brief, it seems the newspaper cites are all from the mid-1990s and (oddly) the early 80s. My experience is post-2000. At best, this brief is making an accurate claim about conditions 10 or more years ago. At worst, it's grossly exaggerated no matter what time period we're talking about.
2.11.2008 11:00pm
federal farmer (www):

when there are dozens of counterexamples that I was able to find without leaving my desk.


To be fair, all desks are not created equal...I have to think that your desk is more like an 'assault' desk with respect to historical information!

Psst...don't let Dilan know that I'm praising you...he get's jealous.
2.11.2008 11:07pm
K Parker (mail):
Clayton,
there were mandatory gun carrying laws in a number of colonies
Hey, don't stop there--weren't some of them mandatory bring-your-gun-to-church laws? That ought to make some thoroughly postmodern heads explode! :-)
2.12.2008 3:36am
Adam J:
Ace- Ad hominem aside- I don't think you see my point. I haven't changed the topic or engaged in "arm waving"- whether this brief should be relevant is a central topic of many posts. If you believe policy arguments should be used in Constitutional cases, then that's fine. But if believe policy arguments shouldn't be used in Constitutional cases- you shouldn't just change your mind because this policy argument happens to be in your favor. That is what people call hypocrisy (although feel free to call it "throwing it back in our faces if it makes you feel better).


Cramer- "I am amused at the number of liberals now whining that the Court should just make decisions based on the law (and especially, stare decisis) who seem to have forgotten how social science arguments--a policy question argument if there ever was one--were central to Brown v. Board of Education striking down 'separate but equal' as intrinsically unequal."

You've got to be kidding me. Proving that separate but equal wasn't equal was NOT a policy question argument. The law called for equality (not separate but equality)- perhaps you should read the 14th amendment. Case law (Plessy) claimed separate but equal was Constitutional because it was indeed equal. The question of whether seperate but equal amounts to equality under the 14th amendment is a legal question- and the "social science arguments" helped prove that seperate but equal was not equal.

Also, you should know that I believe that the second amendment is an individual right &that DC should not be able to create a flat prohibition of firearms - although to say that is clear from the text or history is an overstatement.
2.12.2008 2:20pm
federal farmer (www):

Hey, don't stop there--weren't some of them mandatory bring-your-gun-to-church laws? That ought to make some thoroughly postmodern heads explode! :-)


I imagine quite a few folks are glad Jeanne Assam brought her gun to church.
2.13.2008 12:40am