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Law Enforcement Brief in DC v. Heller:

Today the Independence Institute filed my amicus curiae brief with the United States Supreme Court, in the case of District of Columbia v. Heller.

The Independence Institute brief is joined by a broad coalition of law enforcement: the Maryland State Lodge of the Fraternal Order of Police (by far the largest rank-and-file police organization in Maryland), 29 of California's District Attorneys, the San Francisco Veteran Police Officers Association, the Texas Police Chiefs Association, the Southern States Police Benevolent Association, and many others.

Notably, the lead amici in the brief are the two national organizations of police firearms instructors, the International Law Enforcement Educators & Trainers Association (ILEETA) and the International Association of Law Enforcement Firearms Instructors (IALEFI). The brief explains how widespread civilian ownership of handguns contributes to the efficiency and success of police firearms training.

Part One of the brief summarizes the vast body of evidence showing how law-abiding citizens with handguns contribute to public safety. Surveys of criminals and of law-abiding citizens both indicate that defensive gun use is frequent in the United States, and provides a substantial deterrent to crime. Most notably, because approximately half of all American homes have a gun, only 13% of American home burglaries take place when the victim is home. In nations where handgun ownership is rare or illegal, the home invasion rate is about 50%.

A large number of confrontational burglaries (nearly a third) result in assaults or rapes, so defensive gun ownership in the home also reduces the assault and rape rates. The assault reduction alone makes the U.S. violent crime rate about 9% lower than it would be if home invasions took place at the rate typical in other countries. But in DC, the use of any gun for self-defense in the home is illegal.

DC and its amici claim, in effect, that ordinary, law-abiding citizens are too hot-tempered and clumsy to own a handgun for home protection. Part II of the brief refutes this invidious prejudice. The brief shows that the large majority of murders, including domestic homicides, are committed by people who already have criminal records--not by previously-law-abiding citizens. A half-century of data show that gun accidents have declined by 86% in the U.S.

Before the 1976 handgun ban, only 1/2 of 1% of crime gun seized by the D.C. police were lawfully-registered to District residents. Thus, the DC City Council cracked down on a population group (gun owners who obeyed the city's registration and licensing laws) which had almost nothing to do with the city's crime problem.

Part III relies on practical police experience to explain why handguns are the best arms for home defense, particularly in an urban area such as Washington, D.C.

Part IV suggests that strict scrutiny is the proper legal standard of review for most Second Amendment issues. Precedents from the U.S. Supreme Court and from state supreme courts point to the unconstitutionality of the DC ban on handguns and on self-defense.

Social science data about self-defense were little discussed in the briefs of D.C. and its amici, except that the American Public Health Association (APHA) brief does have a section arguing against Gary Kleck's figure of 2.5 million annual defensive gun uses. Some empirical issues related to the law enforcement brief are also discussed in the American Academy of Pediatrics brief, and the D.C. brief itself.

andy (mail) (www):
Can anyone recommend a particularly even-handed law review article on the 2nd amendment, as it relates to the individual vs. collective rights issue? most of what i've seen is blatantly partisan, although i haven't looked very hard.

i don't feel strongly about the issue either way, but am interested in learning about the original understanding of the amendment and its ongoing evolution to meet the changing needs of a maturing society (!).
2.11.2008 2:23pm
RL:
This brief is not as absurd as most of the others.

Still, the more of these briefs I see, the more this starts to look like a policy issue as opposed to a debate of constitutional magnitude. There is no reason that these amici cannot direct their policy arguments to the appropriate legislative decisionmakers.
2.11.2008 2:47pm
zippypinhead:
Good job on the amicus brief Dave! I think the Law Enforcement brief, along with the other amici's Brandeis briefs, will at minimum entirely cancel out petitioners' (and petitioners' fellow travelers') attempts to justify the D.C. firearms restrictions on statistical and social science grounds. In a worst case scenario, your brief and the other statistical amicus briefs lay out arguments that will be extraordinary valuable for the litigants if the Court remands Heller for further factual record development (especially if the Court does so after articulating a relaxed standard of review).

Although I did note with amusement the citations to various articles by some fellow named Kopel. I think in the Lund brief thread somebody asked if citing oneself was fair play... ;~)
2.11.2008 2:52pm
ClosetLibertarian (mail):
Nice brief, thank you. As mentioned, effectively cancels the crazy, you are safer without a gun arguments. Did you target any particular justices?
2.11.2008 2:58pm
Tony Tutins (mail):

the citations to various articles by some fellow named Kopel.

Along those lines: No love for Chuck M.? Since Don Kates retired, he's been the point man for gun rights advocacy in California.
2.11.2008 3:06pm
RowerinVa (mail):
A note as to the "gun accident" rate:

The news frequently reports that a person accidentally shot him/herself while cleaning a gun. Never believe this. This is a euphemism for suicide -- sometimes a knowing euphemism by the reporter, sometime a credulous reporter, who knows nothing about how guns work, misinformed by family telling a white lie. When you clean a gun, you unload and disassemble it -- otherwise you can't get to where the dirty parts are -- and this makes it impossible to shoot yourself accidentally. Also, guns and even most gun parts are made to hold so that they point away from you, even when you are cleaning them. There may be one person a year actually killed while cleaning his gun, but I doubt it.

Obivoulsy, I can't point to empirical evidence to prove my point. But I bring this up to advise you to read "gun accident" statistics with a jaudiced eye. A large number of "accidental" shootings are misreported suicides and murders.

But this is irrelevant to the 2d Amendment, which is a Constitutional provision, not a policy argument.
2.11.2008 3:20pm
Soronel Haetir (mail):
As for the law review article question, I wouldn't expect much more than the usual retreads on either side. This issue is made much hotter by the lack of cases.

Just hoping I don't have to witness the second US civil war.
2.11.2008 3:37pm
darelf:
After reading a few of these, even the "pro" 2nd amendment side, I find myself asking - "Are the justices really swayed by arguments as flimsy as these?" I don't mean this particular one ( which is much better than most, but still nowhere as good as the Respondent's Brief ), but rather even the "D.C. Police Suck" brief.... honestly people. Is it just me?

After reading the Respondent's Brief, maybe I just had too high of a bar set for the one's to follow.....
2.11.2008 3:53pm
SDProsecutor:
I can't help but wonder if any of the 18 District Attorneys who signed an amicus on behalf of Petitioner would change sides if they became aware of the statistics cited here.
2.11.2008 3:54pm
common sense (www):
Doesn't the policy argument matter, even on a Constitutional question? Looking at 1st Amend law, can't the FCC censor some speech as a policy matter, despite the fact that any censorship is clearly against the text of the amendment? So, even if the Court finds an individual right, doesn't the respondent need to win on the policy side- the interest might be legitimate, but the means to get there is obviously wrong. I think that is the point of these briefs.
2.11.2008 3:57pm
Tony Tutins (mail):
If I could quote from David Hardy quoting from Sanford Levinson quoting a Professor Bobbit, one of six types of constitutional interpretation is "Prudentialism," whereby one picks an interpretation which will maximize desired outcomes and minimize undesirable outcomes.
2.11.2008 4:22pm
Carolina:
Andy,

I am not sure exactly what you are looking for. Any article you read is going to come down on one side or the other, though many law review articles taking the individual-rights side are written by people that would be difficult to call "partisan," whatever that means in this context (e.g., Sanford Levinson, Akhil Amar, etc).

If you are trying for an overview of the issue, you can't do better than reading both briefs in the Heller case.

If you want more, read the DC Cir Opinion in Parker, the 5th Circuit's Opinion in Emerson, and the 9th Circuit's panel opinion as well as the various dissents from denial of en banc rehearing in Silveira v Lockyer.

If you still want more, those opinions and briefs, taken together, will contain citations to almost every (if not literally every) law review piece or scholarly book
ever written on the subject.
2.11.2008 4:35pm
Allan (mail):
I agree with RL.

The question before the court is not: Is having "arms" in the house a good idea?

The question is: Can the government prevent its citizens from having "arms" in the house, whether it is a good idea or not?

Would the proponent's position change if we could prove that 100% of the time having "arms" in the house resulted in the death of one or more individuals, regardless of criminal activity? I would think not.

Would the opponents position, that the government can regulate weapons, change if we could definitively show their would be no crime if everyone carried? Probably not.

I wonder whether there will be some point that the Supreme Court draws the line. We have the Lautenburg Amendment (prohibiting gun ownership to those who commit misdemeanor crimes of domestic violence (with no military exception) and other laws that prohibit ownership of guns by felons. If the right to bear arms is that of a citizen and is absolute, logically, how can these laws stand? It is no answer that by becoming a felon, I lose rights, for that is based upon law, not a constitutional provision.

I also wonder how the historical arguments can stand scrutiny when there are so many anecdotes of gun control in the "wild west"? It seems to me that many frontier towns required people to check their weapons before entering the city limits.

And, if I have the absolute right to bear arms, what right does the government have to tell me that I cannot carry one onto a plane or into a federal building, or, say, a federal penitentiary?

In any case, I think that overturning the D.C. law will cause more far litigation than it is worth and force the Supreme Court to draw arbitrary lines.
2.11.2008 5:28pm
Tony Tutins (mail):

There is no reason that these amici cannot direct their policy arguments to the appropriate legislative decisionmakers.

Yes there is, if the Court follows its reasoning in City of Boerne v. Flores. The Court ruled in City of Boerne that it alone could define the substantive rights guaranteed by the Fourteenth Amendment—- Congress could neither add nor subtract from what the Court decided we could have.
2.11.2008 5:44pm
andy (mail) (www):
Carolina -- thx for the info.
2.11.2008 6:01pm
Sam Draper (mail):
I think these "policy" briefs are important for at least two reasons.

Pauline Kael once wrote, disbelieving the outcome of the Nixon-McGovern election of 1972, "Nixon can't have won; no one I know voted for him." A substantial part of the American public feels comfortable with firearms and literally could not imagine life without them. That segment of the public is generally not well represented in elite institutions like the Supreme Court. Many of the elites in our country, particularly those who are influential in the media and academia, share a hatred of guns, and I think it is useful to remind the justices that this is a minority position. There are many millions of people in this country who possess guns for very good reasons that have nothing to with criminal intent. The "conventional wisdom" of the media and academia on gun issues is simply wrong.

I think the second reason that the briefs are helpful is that the support the position that a high level of scrutiny should be applied. If the second amendment were solely about arming the arguably obsolete militia, that right could be protected but given a low level of scrutiny. If the purpose is weak, the protection can be weak. By showing that the right to protect one self is still a vital and continuing part of the national fabric, I think the justices will apply a higher burden on gun control.
2.11.2008 6:17pm
federal farmer (www):

In any case, I think that overturning the D.C. law will cause more far litigation than it is worth and force the Supreme Court to draw arbitrary lines.


Than it is worth? Who are you to decide whether it is "worth it?"

Hey, if it saves one life...isn't it worth it?
2.11.2008 6:25pm
therut:
My right alone(not counting every other FREE person in the world)to KEEP AND BEAR ARMS in worth any amount of litigation. Litigation is the easiest way to go at this point.
2.11.2008 6:36pm
Waldensian (mail):

When you clean a gun, you unload and disassemble it -- otherwise you can't get to where the dirty parts are -- and this makes it impossible to shoot yourself accidentally.

Well, not totally impossible. I think there probably are people idiotic enough to kill themselves while attempting to clean firearms. Although I would agree that the number of people who actually do so is.... perishingly?.... small.
2.11.2008 7:47pm
The Drill SGT:

When you clean a gun, you unload and disassemble it -- otherwise you can't get to where the dirty parts are -- and this makes it impossible to shoot yourself accidentally.


Speaking as a sort of "gun professional", there are however a fair number of folks who hurt somebody, sometimes themselves by shooting someone with an "unloaded gun".

stuff happens.
2.11.2008 8:17pm
Allan (mail):
Therut,

I really have no position on the issue. I am torn between the right to bear arms for the individual and the need to have some regulation to ensure a semblance of order.

I assume, therefore, that you would not oppose felons having firearms. Or misdemeanants. You would repeal the Lautenburg amendment. Nothing wrong with that, just trying to see where we are.

Once we get pistols in the house, would you be ok with shotguns? rifles (with scopes)? What about sawed off shotguns? Semi-automatic weapons are surely ok. What about automatic weapons? Why not? Of what caliber? Any caliber? Then, of course, RPGs and mortars would be ok. And I have to defend myself, so I would need anti-personnel mines and claymores. But, if I have those, to protect myself against the government, I, of course, would need Stingers and other anti-aircraft weapons. Why not a Howitzer and an Abrams tank? They would make my house much safer.

The point is not to be satirical. The point is that, if there is a line, it must be drawn somewhere. Either we have the right to bear arms, and that means ALL arms, or we do not have the complete right. Where is the line? Who draws it?

I do hope the Supreme Court, if it overturns the DC law draws it somewhere. Otherwise, we will have Roe v. Wade over again. And wouldn't that be ironic.
2.11.2008 10:12pm
Brett Bellmore:
Why wouldn't we repeal the Lautenberg amendment? What other constitutional right might you forfeit, decades later, as a result of having some time in the past pled guilty to a misdemeanor because the fine was cheaper than hiring a lawyer to fight the charge? Could we, twenty years hence, strip every one found guilty of speeding of, say, their right to vote? Maybe around 2040 take the right to free speech away from anybody who today got caught jaywalking?

The amendment was a constitutional atrocity, in so many ways it staggers the imagination. Repealed? The Court should have struck it down so hard Lautenberg's ancestors would have felt the blow.
2.11.2008 10:58pm
federal farmer (www):
I'm a bit confused as to why someone who has served the time for their particular crime, and all probation, would not have all rights restored. Either they belong in jail or out amongst us.

Perhaps we felonize too many things? Others have made this point and I find it compelling...why would we allow someone we don't trust with guns out amongst us?

I'm willing to draw the line at small arms. M16 with Grenade launcher at maximum. Weren't the militia primarily infantry? We can leave the howitzers to the artillery crews.
2.11.2008 11:03pm
Tony Tutins (mail):
why would we allow someone we don't trust with guns out amongst us?

Someone who has demonstrated their unfitness to own firearms shouldn't have one. I never realized there was a lobby for the rights of wife beaters to own firearms -- perhaps they should join with the child molesters fighting for the right to live by playgrounds and schools.

Felons traditionally were stripped of their civil rights, but even further back felons received the death penalty, so it wasn't such a big deal back then. I have no problem with the idea that someone forfeited the right to keep and bear arms by committing a felony -- if you don't want to receive the penalties attached to crime don't do one.
2.12.2008 2:24am
markm (mail):
"I never realized there was a lobby for the rights of wife beaters to own firearms"

If it was only convicted wife beaters that lost the right to bear arms, there wouldn't be a problem (except for lawlerly concern with the ex post facto penalties in Lautenberg), but by including anyone with a domestic violence restraining order, it means you can lose the RKBA on a mere accusation - of a type that is often leveled falsely as a tactic in contested divorces. At least in Michigan, all it takes to get a domestic violence restraining order is an affidavit claiming that a third party felt threatened. That's hearsay evidence, not of an action but of a feeling.
2.12.2008 8:42am
Tony Tutins (mail):

by including anyone with a domestic violence restraining order, it means you can lose the RKBA on a mere accusation

That would seem like a due process violation of the 5th and 14th Amendments: deprivation of property and a civil liberty.
2.12.2008 12:57pm
Clayton E. Cramer (mail) (www):

I also wonder how the historical arguments can stand scrutiny when there are so many anecdotes of gun control in the "wild west"? It seems to me that many frontier towns required people to check their weapons before entering the city limits.
Oddly enough, these don't seem to show up much in court cases. When they do, such as In re Brickey (Ida. 1902), the Idaho Supreme Court struck down such a ban on carrying loaded firearms for violating both the Idaho Constitution and the Second Amendment.

And, if I have the absolute right to bear arms, what right does the government have to tell me that I cannot carry one onto a plane or into a federal building, or, say, a federal penitentiary?
Same reason that your right to freedom of speech doesn't include the right to tell off the judge in a courtroom, or to file a "creative" tax return (you know, creative in what you write for the deductions), or the right to set up a webcam from your prison cell.

In any case, I think that overturning the D.C. law will cause more far litigation than it is worth and force the Supreme Court to draw arbitrary lines.
Unlike the arbitrary lines drawn right now that prohibit law-abiding adult residents of DC from having a loaded firearm in their home, while across the river in Virginia, law-abiding adults can carry guns on the street.
2.12.2008 3:53pm
Clayton E. Cramer (mail) (www):

I'm a bit confused as to why someone who has served the time for their particular crime, and all probation, would not have all rights restored. Either they belong in jail or out amongst us.

Perhaps we felonize too many things? Others have made this point and I find it compelling...why would we allow someone we don't trust with guns out amongst us?
Yes, we felonize too many things--and have reached the point that the most serious crimes (murder, rape, robbery) tend to get lost in a sea of other felonies. As Tony Tutins points out, felonies in 1789 were largely hanging offenses. Prohibiting a felon from owning a gun is less serious than prohibiting them from breathing. They should stop whining.

Maybe we need fewer felonies.
2.12.2008 3:56pm
wuzzagrunt (mail):
Since it is unlikely that we'll ever get back to a culture that considers execution or, liftime imprisonment, a sensible penalty for all violent felonies, then "relieving" a convict of some rights seems prudent. Still, is there any public safety interest in making it illegal for a tax cheat to own a gun? We need fewer felonies, but we also need to recognize that all felons are not bloodthirsty killers.
2.13.2008 5:14pm