Respondent's Brief in DC v. Heller:
On Monday, the brief for Respondent was filed in DC v. Heller, the Supreme Court's case involving the DC handgun ban. The brief for Petitioners (DC and Mayor Fenty) is here.
The first portions of each brief raise textual and historical arguments. DC argues that the preamble of the Second Amendment ("a well-regulated militia") controls and limits the main clause ("the right of the people"). DC emphasizes that militias are subject to limitless state control.
The Heller brief offers well-known rules of construction from the Founding Era to argue that a preamble doesn't limit the main clause. Both sides quote Marbury v. Madison. The Heller brief contains a great deal of American history, partly based on David Young's new book The Founders' View of the Right to Bear Arms (2007), which presents General Gage's disarmament of the citizens of Boston as one of the key causes of the decision of Americans to finally resort to armed revolution, and as the kind of abuse which the Founders wanted to prevent in the new nation.
The DC brief spends a significant amount of words arguing that, even if the Second Amendment applies to ordinary citizens, it does not apply in DC. The argument is predicated on "necessary to the security of a free State" being a reference to state governments, not a free polity. Respondent's brief gives short shrift to this argument, citing various cases that governance of the District of Columbia is controlled by various parts of the Constitution which only limit (or used to only limit) Congress, and not state governments. Eugene Volokh's Notre Dame L. Rev. article "Necessary to the Secureity of a Free State," collects every use of "a free state" during the Founding Era, and shows that the phrase was a term of art which was used only to mean "a free polity" and never to mean "a free American state government."
DC presents more social science data than does the Heller brief, which confines itself to some quick rebuttals. On both sides, the in-depth debate in social science is in the amicus briefs. (More on those next week, after the pro-Heller amici file on Monday.)
DC's gun lock law literally requires that all guns in the home (rifles, shotguns, or pre-1977 handguns owned pursuant to a grandfathering clause) be locked up or disassembled at all times. The locking law makes an exception for guns on business premises and for guns being used in sporting activities. DC concedes that a ban on use of long guns for self-defense in the home would be unconstitutional, but argues that the functional firearms ban must contain an implicit self-defense exception. DC points to a case where a court found that a duress exception must exist in an another law.
Heller retorts by pointing to the 1977 D.C. Court of Appeals (the District's equivalent of a state supreme court) case of McIntosh v. Washington. In that case, the Court of Appeals upheld the self-defense ban as an intended feature, not a bug, of the District's new gun law.
Both briefs are very well-written, and merit study by any law student or lawyer looking for good examples of persuasive brief-writing on sophisticated topics.
NRA brief in DC v. Heller:
The NRA amicus brief in DC v. Heller is now on-line. Although the Court will be deluged with amici, the NRA brief is likely to get a close read, for the same reasons that Justices pay close attention to the AFL-CIO brief in a labor case, or the ACLU brief in a free speech case. Here's a summary:
Part I goes through the major textual and structural arguments of the Second Amendment as an individual right. Does not use a lot of Framing Era quotes (of which there are a lot in Respondent's brief, and will be more in other amicus briefs). Explains how the right of the people to keep and bear arms makes possible the existence of a well-regulated militia. This argument is supported, in part, by a discussion of the NRA's own history is promoting marksmanship and safety training, including its leading role in certifying police firearms instructors. My favorite part is President Truman's letter thanking the NRA for its efforts during World War II, which "have materially aided our war effort."
Part II argues for a strict scrutiny standard in review of gun laws, based on Supreme Court precedent. It distinguishes "fundamental" from the way that term is used in deciding whether to incorporate a criminal procedure provision from "rights fundamental to our democracy." It notes that the Second Amendment declares itself to be "necessary to the security of free state", and therefore must be fundamental to American democracy itself.
The NRA brief engages the argument raised in pro-DC amicus from Professors Winkler and Chemerinsky. They had argued for a "reasonableness" standard of review (with "reasonablness" meaning, in effect, that almost any law short of total destruction of the right is permissible). The W&C brief reasoned that viewpoint discrimination is impossible in a Second Amendment context, and that therefore strict scrutiny is unnecessary. The NRA responds that viewpoint discrimination certainly is possible, especially under a weak standard of review, since gun laws could be used to disarm political opponents. The point could have been illustrated by abundant historical examples, but perhaps space limitations precluded this.
Part III addresses crime and accident statistics, and points out that only a minute fraction of the 200 million guns in America are misused. Modern state court cases (e.g., Rhode Island's Mosby v. Devine) as well as common law classics (Semayne's Case) are deployed to argue for the right of armed self-defense in the home.
The comments section of my previous post (on Heller's brief) was impressively thoughtful, as it was clear that commenters had read the Heller and DC briefs, and were offering commentary to advance the discussion. (Rather than getting into troll-fights over gun policy in general.) Commenters, keep up the good work! Please read the NRA brief before commenting, and of course also read the Winkler-Chemerinsky brief if you want to comment on the standard of review issue.
Claremont Institute Empirical Brief in DC v. Heller:
Just-posted: Marc Ayers (of the Bradley Arant firm in Birmingham) and Don Kates have written a Brandeis brief in the Supreme Court handgun brief. The brief is filed on behalf of the Claremont Institute and a group of scholars.
The main theme of the brief is debunking the "more guns, more murder" meme, which pervades the brief of DC and many of its amici. The theme is elaborated in the briefs of the American Academy of Pediatrics, of the American Public Health Association, and of Professors James Alan Fox and David McDowall.
The single largest topic is a 1991 article in the New England Journal of Medicine by Colin Loftin. The NEJM article reported that the DC handgun ban had reduced homicides and the suicide in the District.
The Claremont brief points out that the NEJM article used raw numbers rather than rates, and used the wrong start date for the law (which was delayed by an injunction issued by the D.C. Superior Court). Moreover, when one compares DC to the other 49 largest U.S. cities, or to Virginia and Maryland, the D.C. homicide rate grew worse in comparison to these other jurisdictions. Notably, a meta-study by the National Academies of Science agreed with the critiques of Gary Kleck and Chester Britt that the NEJM article's data were so fragile as to be of no persuasive value; even small adjustments of the start/end date negated the study's findings.
Given shorter treatment in the Kates/Ayers brief is another study which used the circulation of Guns & Ammo magazine as a proxy for gun ownership levels. The study found that higher circulation of Guns & Ammo was associated with higher homicide. This finding is frequently restated in the briefs of DC and its amici as a finding that more guns leads to more murder. Kates/Ayers cite John Lott's article pointing out that during the study period, Guns & Ammo was giving away a huge number of free copies (to maintain circulation numbers), and targeted the give-aways at cities where it was believed that crime was increasing. The circulation of other gun magazines (which were not using G&A's circulation-boosting method) shows no relation to homicide.
Kates/Ayers present extensive data showing that gun density is not related to homicide. For example, since the late 1940s, per capita gun ownership in the U.S. has soared, while homicide rates have fluctuated with little apparent relation to gun density. Likewise, comparative data from Europe show no relation between gun density levels and homicide rates.
DC has argued that its ban on possession of a functional firearm in the home contains an implicit exception for self-defense. Kates/Ayers explore what such an exception might mean, and argue that there is no way for a Court, or a DC resident, to discern the terms of the alleged self-defense exception.
DC v. Heller, amicus brief on racial issues:
In the Supreme Court's DC handgun ban case, a brief from the Congress on Racial Equality argues that there is a long history in America of gun controls being enacted and applied with racially discriminatory intent. A brief for GeorgiaCarry.org makes similar arguments, with more detail about Georgia. [I think it's wonderful to see a 21st-century in which a black man won 2/3 of the vote in the Georgia Democratic primary, and a gun-rights organization from Georgia is calling for the U.S. Supreme Court to pay attention to problems of racial discrimination.]
In support of the DC handgun ban, a brief from the NAACP LDF uses most of its words to argue against overturning what its says is the large body of anti-individual rights precedent. The brief also points out the high rate of gun crime victimization by blacks. Pages 29-31 of the NAACP LDF brief anticipate the arguments presented CORE/GeorgiaCarry briefs, and argue that the Fourteenth Amendment's equal protection clause is sufficient to address any problem of racial discrmination in gun laws. See also NAACP Br. at 19 n.20 (DC's ban is not racially discrminatory, and in any case, Equal Protection and Due Process, are sufficient to address the issue, without need for an individual rights Second Amendment).
I don't think there's any reasonable dispute that much of the gun control in American history is tainted by racial discrimination. But, commenters, do you think that the CORE and GeorgiaCarry briefs overcome the NAACP's anticipatory counter-arguments? Please write your comments after reading the briefs, rather than making other arguments which could have been made, but were not.
Congressional Brief in DC v. Heller:
A brief in favor of Respondent Heller has just been filed on behalf of 250 Members of the United States of House of Representatives, 55 United States Senators, and the President of the United States Senate, Richard B. Cheney. In January, a brief in support of the DC handgun and self-defense ban was filed by 18 Members of the U.S. House of Representatives. The latter brief suggests that "Consideration of, or deference to, Congress's experience as an interpreter of the Constitution, in appropriate circumstances, is entirely consistent
with the Court's role." Indeed true.
The 250/55/1 brief explains that Congress has repeatedly declared the Second Amendment to be an individual right, in the 1866 Freedmen's Bureau Act, the 1941 Property Requisition Act, the 1986 Firearms Owners' Protection Act, and the 2006 Protection of Lawful Commerce in Arms Act.
LGBT brief in DC v. Heller:
A brief filed on behalf of Pink Pistols and Gays and Lesbians for Individual Liberty presents a LGBT perspective on the Second Amendment. The main arguments are: 1. LGBT people have a heightened need for handguns for self-defense, because of the frequency of hate crimes, the majority of which involve attacks in the home. 2. The militia-only interpretation of the Second Amendment would exclude LGBT people from the exercise of a constitutional right, since courts are extremely deferential to legislative/executive decisions on military issues, including discrimination against LGBT people in the military. Unlike with the other briefs that I've blogged on, there is no counterpart brief in support to the DC handgun ban to which I can link. No LGBT organization participated in an amicus brief on DC's side (although, of course, some of DC's other amici are "gay-friendly," just as many of Heller's other amici are).
The English Roots of the Right Arms. DC v. Heller brief:
A brief for the Cato Institute and legal historian Joyce Malcolm, in the DC handgun ban case, explicates the English common law roots of the American right to arms, and the development of that common law right in America.
Many of the briefs on both sides of this case has brief treatments of the English roots. A mistake in my view, since the material is so repetitious. The English issue is covered in some depth in a pro-ban brief filed by historians Jack Rakove, Saul Cornell, and others.
In my view, the Cato/Malcolm brief demolishes the claim that the 1689 English Bill of Rights, Blackstone's Fifth Auxiliary Right, and other common law sources did not recognize a right to own firearms in the home for personal defense. The Cato/Malcolm brief is far broader and deeper in its use of English sources, and requires no verbal gymnastics to attempt to explain away the plain languages of the key sources. Part II of the brief leads the reader through the development of the common-law right in America, from the colonial era through the 19th century.
Jeffrey Toobin has written that Justice Souter reveres the common law; if so, the Cato/Malcolm brief may be especially persuasive to him.
Women's Rights Brief in DC v. Heller:
A brief on behalf of 126 women state legislators, and several academics, presents a women's rights perspective on the DC ban on handguns and on home self-defense with any firearm.
Part I points out that, compared to the past, women are more likely to live alone. Young women are less likely to move straight from their father's house to their husband's house, but may instead live on their own. A large number of elderly women live alone, because they have outlived their mates, or for other reasons. Accordingly, the paternalistic assumption that all women are under the protection of a man has no validity today.
Part II notes the prevalence of violence against women, particularly domestic violence. (This point is also made at great length in a pro-prohibition amicus filed on behalf of many state domestic violence groups). The brief quotes Andrea Dworkin discussed the battered woman: "She has a constitutional right to a gun and a legal right to kill if she believes she's going to be killed. And a batterer's repeated assaults should lawfully be taken as intent to kill." Other feminist advocates of women's empowerment for self-defense are cited and quoted too.
Section B of Part II summarizes the relevant social science evidence, showing that armed self-defense by women is effective. Although the domestic violence groups cited studies showing that guns caused an increased risk of homicide to a domestic violence victim, the brief points out that the research shows an increased risk if an abuser has a gun. The data show no statistically significant risk for gun ownershp by victims who lives apart from the abuser and who has her own gun.
The remainder of Part II points out that under cases such as Castle Rock and Warren v. D.C. women are victimized because of law enforcement failure to act against known threats (or even women who rely on false 911 promises that help is on the way) have no legal remedy.
Part III points out that because most women have less upper body strength than men, a handgun is superior to a long gun for self-defense. Also:
Advocates of women's reproductive choice commonly argue that pregnancy disproportionately affects women due to their innate gender-based characteristics.
Thus, they argue, courts failing to recognize the right to terminate a pregnancy therefore discriminate against women and bar their ability to participate as
equal and full members of civil society. While choices about pregnancy no doubt impact a woman's ability to determine the course of part of her life, it is not clear
why such a right should be due greater protection than a woman's ability to defend her very existence.
The brief acknowledges that some women are hostile to gun ownership. Historically,
A large segment of women were likewise averse, moderately supportive or even downright indifferent to female suffrage and women's reproductive choice. However, the fact that
only some will choose to exercise their right to self-defense should in no way prove a legal impediment to those women for whom owning a firearm is necessary to their ability to determine the course of their lives and consequently their place in society.
Read in conjunction with the brief of the domestic violence groups, the two briefs present the court with the contrasting perspectives, in regard to the gun issue, of victim feminism and empowerment feminism.
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.
Jews for the Preservation of Firearms Ownership brief in DC v. Heller:
In the Supreme Court handgun ban case, the brief for Jews for the Preservation of Firearms Ownership presents an argument on a highly emotional topic in a very sober and solid manner. Gun bans do not always lead to genocide: Luxembourg bans all guns--and provided the sculpture of the destroyed revolver with a twisted barrel that now adorns the plaza outside the United Nations. The gun-hating government of the Duchy has not attempted genocide against is disarmed subjects. However, as the JPFO brief shows, governments which do perpetrate genocide do work hard to disarm the victims beforehand.
Addressing this argument is something which the anti-gun lobbies have rather conspicuously avoided over the years. In 1995, I participated in a international gun control symposium New York Law School; for my contribution, I wrote a favorable review of JPFO's book Lethal Laws. The staff of New York Law School Journal of International and Comparative Law contacted gun control groups, and solicited an article to counter mine. There were no takers.
While the pro-ban amicus briefs in DC v. Heller do anticipate some of the arguments (e.g., gun control's racist roots, Gary Kleck's figure of 2.5 million annual defensive gun uses) which were expected to be raised by Heller or his amici, none of the pro-ban briefs address the genocide issue. The closest thing to a counter-brief is that of by the Educational Fund to Stop Gun Violence, filed on behalf of a large number of organizations, including several Jewish ones. The brief argues that the Second Amendment could not possibly have been written to protect the means of resistance to tyranny. The EFSGV brief and the JPFO brief both provide evidence from Founding Era writings to support their respective arguments.
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.
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.
Historical briefs in DC v. Heller:
The brief of Academics for the Second Amendment discusses the drafting and ratification of the Second Amendment. It argues that the history clearly points to an uncontroversial individual right to arms for private purposes, and argues that DC's theory of the Amendment's meaning is based on proposals which Madison and Congress rejected. My favorite part of the brief is its use of the phrase "a tub to the whale."
A brief from the Institute for Justice supplies the history of the Reconstruction Congresses, and of the 14th Amendment. It shows that (whatever implications one might draw about incorporation), the understanding of the Second Amendment at that time was that it was a personal right to arms for private purposes, particularly the purpose of defending the homes of freedmen from Klan attacks.
And a brief for the President of the Pennsylvania Senate provides the history of the right to arms in that state.
These briefs counter arguments raised by DC and by its amici historians. As both these briefs acknowledge, proving that the 1776 Pennsylvania Constitution right to arms was not a right to self-defense arms is essential to their cause. Strangely, they cite a forthcoming article in a Rutgers law review, written by a protege of Saul Cornell, which appears to have not been made available, in its pre-publication form, anywhere the public can review. Keeping that article out of sight of Heller and his amici perhaps betrays a grave lack of confidence in whether that article's claims could withstand serious scrutiny. I am unaware of any pre-publication article that has been cited by Heller and his amici which is not already available on SSRN or another public web site.
Battle of the Attorneys General in DC v. Heller:
In January, former Attorneys General Janet Reno and Nicholas Katzenbach, joined by 11 former important US DOJ lawyers filed a brief in support of the DC handgun ban. The brief argues that from the 1930s until 2001, the US Department of Justice had the position that the Second Amendment does not guarantee an individual right. The brief argues that the DOJ supported the "collective right" theory, and appears unaware that this theory has been abandoned even by gun control groups and their academic allies. (The replacement is "narrow individual right," a right which applies only to persons actually on duty in a state militia.)
Today a counter-brief was filed on behalf of two former Attorneys General (Edwin Meese and William Barr), two former Acting Attorneys General (Stuart Gerson, under Clinton; and Robert Bork, under Nixon), and several other former high-ranking DOJ lawyers.
The brief begins by describing three different cases (under Presidents Andrew Johnson, Ulysses Grant, and Benjamin Harrison) in which the the US DOJ took the litigation position that the Second Amendment is a broad individual right. Next, the brief quotes FDR's AG Homer Cummings, testifying in support of the proposed National Firearms Act of 1934, who explained that the Act was not a violation of the Second Amendment because it taxed and registered machine guns and short shotguns, but did not ban them. The Reno brief had attempted to claim that Cummings was discussing the scope of congressional Article I power, but omitted the fact that Cummings was answering a Representative's question about the NFA "escaped" from the "provision in our Constitution denying the privilege to the legislature to take away the right to carry arms."
There then follows an intricate analysis of positions in DOJ briefs in future years, Office of Legal Counsel memoranda, and Presidential bill-signings. The argument is that, contrary to the Reno brief's claims, the Executive Branch position was not consistent with the position of Attorney General Katzenbach that there is no individual right to arms.
Part II responds to arguments raised by the Reno brief, and by the current Solicitor General, that the rule announced by the D.C. Circuit, invalidating the handgun ban, would threaten federal laws against possession of guns by convicted felons, or against machine guns. Part III urges the Court to confine its ruling to DC's ban on handguns in the home, rather than addressing restrictions on uncommon guns.
Both of the former DOJ briefs might be viewed in a broader context. One of the officials in the Reno brief is former Solicitor General Seth P. Waxman. On Aug. 22, 2000, Waxman wrote a letter affirming the position which the DOJ had taken in the Fifth Circuit's Emerson case, that the Second Amendment is no bar to the federal government taking away people's guns. Indeed, at oral argument before the Fifth Circuit, the DOJ position had been the Second Amendment does not even prevent the disarmament of an on-duty militiaman. Waxman became the first Solicitor General in history to have his words reprinted on presidential campaign billboards. Thanks in part to the NRA publicizing Waxman's words, George Bush won narrow victories, and thus the election, in strongly pro-gun states such as West Virginia. The results of the 2000 election represent "a constitutional moment" repudiating the Waxman/Reno view of the 2d Amendment--just as an overly restrictive view of the 1st Amendment was repudiated by the public in the election of 1800 (which also was very close, and was contested for months after the polls closed). Today, even Senator Hillary Clinton has moved away from the Reno/Waxman position; in the final Nevada debate, she stated: "You know, I believe in the Second Amendment. People have a right to bear arms."
State-level Battle of the Attorneys General in DC v. Heller
Thirty-one state Attorneys General filed an amicus brief in support of Heller. Part I.A. is a solid textual and historical argument for the Second Amendment as a meaningful individual right. Well-written, but I'm not sure it adds much to the treatment of these issues in Respondent's brief. Part I.B. adds some material on post-Miller cases in which the Supreme Court acknowledged the Second Amendment as similar to other Bill of Rights provisions (e.g., Konigsberg, Eisentrager).
Part II supports the D.C. Circuit's having found the handgun and self-defense bans to be facially unconstitutional, and takes on the Solicitor General's argument for intermediate scrutiny in Second Amendment cases. The Attorneys Genera argue for strict scrutiny. In Part III, the Attorneys General reassure the Court that none of the laws which the Solicitor General worried about (felon-in-possession ban, machine gun ban, undetectable firearms ban) would be endangered by strict scrutiny.
On page 23, note 6, the Attorneys General likewise signal that they are not worried that the Second Amendment would endanger appropriate gun controls in the states, for the Attorneys General announce that the Second Amendment should be incorporated.
The brief serves as counterpoint to a pro-Petitioner amicus brief filed by 18 big-city District Attorneys, which warned that affirming the D.C. Circuit's decision would unleash a dangerous set of challenges to gun controls.
Five state Attorneys General had filed a brief in support of D.C. That brief also argues against making the Second Amendment enforceable against the states (based on the argument that the Second Amendment is a federalism protection).
At Concurring Opinions, Michael O'Shea has created maps showing the 31 pro-Heller states, the 14 neutrals, and the 5 pro-DC states.
It may be that the incorporation issue explains why some state Attorneys General stayed neutral, rather than join the 31. It is also interesting that Illinois, which joined New York's amicus brief in favor of D.C.'s cert. petition, is neutral at the merits stage.
Goldwater vs. the Solicitor General, in DC v. Heller:
The brief of the Goldwater Institute in District of Columbia v. Heller is another brief that merits study by persons interested in seeing a model of a first-rate Supreme Court brief. Lawyers on the brief are led by Bradford Berenson, of Sidley & Austin, and by Clint Bolick, of Goldwater.
The brief's focus is responding to a section in the Solicitor General's brief, which had argued for intermediate scrutiny as a the standard of review in Second Amendment cases. The Goldwater brief is not a brief of firearms law experts; it is the brief of Supreme Court precedent experts, and it cites a vast number of cases to make its argument that strict scrutiny is the proper standard.
The Goldwater brief has an inherent advantage, since it devotes all 9000 words to a topic which the Solicitor General covered in just a few pages. But even with the limited space available, the Solicitor General's brief was surprisingly shallow. The SG brief more or less declares its intermediate scrutiny test by fiat, and for support pointed to some election law cases.
Yet a short, well-written brief from the Libertarian National Committee points out, the cases cited by the Solicitor General themselves have a strict scrutiny standard. (Strict scrutiny for an "undue burden" on voters, intermediate scrutiny for everything else.) The Solicitor General brief just pointed to the intermediate scrutiny part of the election cases.
My guess is that there was something odd in the drafting of the Solicitor General brief. The brief was filed electronically late in the day when it was due. (UPDATE: A VC reader points out that the meta-data for the SG's PDF says that the file was created at 9:14 PM on January 11, the due date.) The brief has no Table of Contents or Table of Authorities--both of which are required by Supreme Court rules. My guess would be that there was no time to prepare these mandatory parts of the brief because the brief took a sudden change in direction, perhaps on the day it was due, and all the available time was consumed by trying to cobble together an intermediate scrutiny section of the brief. Just a guess, but the absence of a TOC and TOA surely suggests that there was some unanticipated time crunch at the end. (UPDATE: Another commenter says that the SG frequently files late, and adds the TOC and TOA later.]
Errors Brief in DC v. Heller:
A brief of the Citizens Committee for the Right to Keep and Bear Arms, and for several scholars, takes an unusual approach. As far as I know, it's the first brief of its kind in a Supreme Court brief (although my knowledge of amicus briefs is far from comprehensive). Written by Washington state lawyer Jeff Teichert, the "Errors Brief" focuses entirely on refuting what it sees as plain errors in the briefs of DC and DC's amici. The 9000 word limit drastically reduced the number of items which could be addressed, and the brief chooses to address some items at relatively great length, rather than greatly shrinking certain discussions so as to address more items briefly.
District Attorneys, the ABA, and precedent in DC v. Heller
In the Supreme Court's Second Amendment, the American Bar Association filed an amicus brief in support of the DC handgun and self-defense ban. The brief argued that respect for stare decicis should compel the present Court not to recognize the Second Amendment as an individual right.
A related brief was filed by the District Attorney of San Francisco, joined by 17 other District Attorneys (including 5 from New York, and 4 from California). The brief makes its own argument about stare decisis, and warns that affirming the D.C. Circuit's recognition of an individual right would lead to vast challenges to federal and state laws against gun possession by convicted criminals, as well laws providing sentence enhancements for use of a firearm in a crime.
These arguments are addressed in pro-Heller amicus brief of the Maricopa County District Attorney, which is joined by 12 other District Attorneys (including Hamilton County, Ohio, and Carroll County, Maryland).
In Parts III and IV of the brief, Maricopa points to state cases from Arizona and federal cases from the Fifth Circuit, to show that application of a strong standard of review for the individual right to arms does not lead to the wholesale invalidation of gun control laws. Accordingly, the Maricopa brief argues for strict scrutiny as the proper standard of review. (My own brief
, filed on behalf of a law enforcement coalition including 29 California District Attorneys, also supports strict scrutiny, and has a short discussion of state right to arms cases upholding bans on gun possession by criminals.)
Parts I and II of the Maricopa brief present some standard textual and legal history arguments for the Second Amendment as an individual right. As in so many of the amicus briefs, it would have been better if the brief had omitted points which were already made in Respondent's brief.
Perhaps the most important argument--which I wish would have been a major Part of somebody's brief--is connecting the Second Amendment to the substantive due process line of cases. Justice Harlan's definition of Fourteenth Amendment "liberty" in his Poe v. Ullman
dissent included "the right to keep and bear arms." This definition has been repeated many times in important cases in which the Court has protected unenumerated rights, including Griswold
, Roe v. Wade
(Stewart concurrence), Moore v. East Cleveland
(right of extended family to live together), Casey v. Planned Parenthood
(Kennedy-Souter-O'Connor opinion), and Lawrence v. Texas
. The point is not that the right to arms is dependent on substantive due process; rather, the point is that the key modern cases for unenumerated "liberty" rights all acknowledge the right to arms.
The brief of Grass Roots South Carolina does a reasonable job of arguing for the right to have a handgun in one's home as within the penumbral protection of constitutional "privacy", but that brief too overlooks the force of Justice Harlan's Poe
language, which is clearly beloved by Justices Kennedy and Souter.
The other brief which address the "don't disturb precedent" argument is the one
from the Center for Individual Freedom
. It argues that the Court's 1939 Miller
case was ambiguous, and thus set no anti-individual rights precedent. The brief discusses various circuit court of appeals decisions which have, in purported reliance on Miller
, ruled against an individual right; the brief argues that these over-reading cases deserve little respect as precedent.
Part II argues that the "collective/states right" interpretation would, if actually endorsed by the Court, lead to drastic changes in current practices: states would have the right to sue the federal government over militia issues, to claim authority to disregard federal gun controls which interfere with the states' militias (e.g., a Rocky Mountain state legislature enacts a law declaring all able-bodied adults to be part of its militia, and ordering those adults to arms themselves with, inter alia, machine guns and mortars), or to challenge federal deployment of National Guard units outside a state's boundaries
Whether federal courts would rule in favor of a state on any given "militia rights" issue is, of course, uncertain. But a state's rights Second Amendment would open the door for a wide variety of challenges. In contrast, an individual rights Second Amendment fits quite easily with over 200 years of state law experience of an individual right to arms, a right that exists in over 40 state constitutions.
As pointed out in
the brief of the American Legislative Exchange Council
, there have been two dozen laws which have been declared to be unconstitutional violations of a state right to arms provision. And, quite obviously, there are thousands more which have not. Using already-developed analyitical techniques from the state cases (e.g., overbreadth, narrow tailoring), which are themselves based on federal First Amendment jurisprudence, would not be difficult for federal courts analyzing Second Amendment challenges to federal gun laws.
Rather notably, the ABA and San Francisco District Attorney briefs failed to point to a single case anywhere in the nation where a felon-in-possession law or a sentencing enhancement for actual use of a firearm in a violent crime was declared to violate a state constitutional right to arms.
If you'd like to read more blog analysis of the various briefs in DC v. Heller
, check out Liebowitz's Canticle
Military Brief in DC v. Heller:
A group of retired military officers, mostly Generals or Admirals, has filed an amicus brief in District of Columbia v. Heller.
Part I of the brief looks at framing of the Second Amendment, and importance of federal control of the militia for national defense. The brief argues that DC's theory allows the states (including DC acting in a state-type role) to destroy the effectiveness of the militia by preventing citizens from having arms. The brief suggests that DC's argument is contrary to the constitutional plan for federal militia supremacy.
Part II argues that the widespread citizen gun ownership is essential to the national defense, because soldiers who have prior experience with gun use as civilians make much better marksmen. Because handguns are common in military use, handgun experience is highly relevant. This is similar to the police training argument that I made, on behalf of law enforcement firearms training associations, in my own brief, although the military argument is much more extensive.
Finally, the brief explains how citizens, even those not serving in the standing army, contribute to the national defense. Examples are the American Revolution, the Battle of New Orleans, and the defense of Alaska and Hawaii after Pearl Harbor. There is also a good discussion of Switzerland during WWII.
The Appendix includes letters to the National Rifle Association by Presidents Roosevelt, Truman, Eisenhower, and Kennedy, and by several FDR officials, thanking the NRA for its role in promoting civilian marksmanship as a means of aiding national security.
No brief filed by Petitioner or its amici addresses these issues.
Below the fold: Maryland Governor Herbert O'Connor's March 10, 1942 radio address, asking for volunteers from, inter alia, the "membership rolls of Rifle Clubs, Trap Shooting Associations, Skeet Clubs and sportsmen's groups of every type" to help defend Maryland against potential German incursions, such as saboteurs. "[T]he volunteers, for the most part, will be expected to furnish their own weapons....The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity."
Archives of Maryland Online, Volume 409, Page 616
State Papers and Addresses of Governor Herbert L. O'Conor
MARYLAND MINUTE MEN
RADIO STATION WFBR AND MARYLAND COVERAGE NETWORK
March 10, 1942
THE sincere hope of every person in Maryland is that our State may never experience invasion or attack. That we should consider such a thing as possible is in itself a terrible shock to the American state of mind. Nevertheless, with so much of the world overrun by the enemies of Democracy, and with the invasion of Java and New Guinea as
well as other points in the Australian Archipelago fresh in our minds, we would be foolish, indeed, not to be prepared, as completely as possible, for any such happening, even here in Maryland.
Our people didn't want this war and, prior to the dastardly and cowardly attack on Pearl Harbor, the thought of sending American troops to fight in far-away lands was abhorrent to the minds of every American. Recent developments of the most threatening nature,
however, have completely changed America's attitude toward the present conflict. The unexpected and continuing success of the Japanese forces, who have swept everything before them except General MacArthur's heroic band in the Philippines, have impressed on our minds most forcibly that new tactics are demanded.
That is why, in the recent past, there has become evident a tremendous demand on the part of Americans everywhere, that our leaders forsake a defensive policy and pursue this war in typical American fashion by carrying the offensive to the enemy at every
But this plan, if adopted, will make necessary additional protective forces in the states of our Country, particularly those like Maryland, situated along the coastlines. It is about this matter of necessity that I desire to speak to the people of Maryland tonight.
Let us review briefly the various steps, and then consider why and to what extent Maryland confronted with danger and what we must do at once to protect our citizens. The Federal Government faces the tremendous task of training the largest military and naval
establishment in our Nation's history. After the hundreds of thousands, and even millions, of our men are trained and equipped, they must be transported, far and wide, over the seven seas to overcome the enemy outside continental United States. Every available man in the combat forces will be needed in this far-flung offensive. This means that if any number of soldiers, trained for military operations, would be retained within the United States for guard duty, or for any other routine defense purpose, that would entail a loss to our Country's striking power.
The Federal Government, of course, is the one which assumes the responsibility for the conduct of war. But the State Government has its obligation, also, to its citizens. That obligation includes protection to our people. It was for this reason that more than a
year ago I asked the Maryland General Assembly to authorize the creation of the State Guard, the primary purpose of which was to have a mobile protective force ready to move in any direction to maintain the safety and security of our people and their property. It is with pleasure that I can report to our people that the State Guard is completely drilling.
The State Guard numbers approximately 2, 700 officers and men. Supplementing it is a Special Military Police Force, the members of which are on continuous duty and assigned exclusively to the guarding of our State's bridges, important water supplies, and other vital points, described by the War Department as having important bearing on the war effort. The number of this force is approximately 300.
To the credit of the members of our present Guard, it can be said that they have responded to every requirement since our Nation entered the war, despite unexpected difficulties under which they have at times been required to perform their duties. The public will understand that up until now the State's defensive efforts have consisted mainly in protecting those installations and locations which the War Department consider as vitally important.
Now, however, a greater possible danger must be faced by our people. Situated as we are and exposed as our State is, we must be prepared for the worst. Since the outbreak of hostilities at Pearl Harbor, I have been in touch, at regular intervals, with United States officials who have imparted information revealing the danger that besets us. I owe it to the people of the State to report that we are in jeopardy, and that we must be prepared for trouble both from without and from within our State.
Only today, for instance, have I been advised by the Commanding General of the First Army, in New York, that the presence and increasing activity of enemy submarines off the Maryland Coast require additional drastic measures.
With the prospect that the regular Army units will be engaged in more important operations elsewhere, and with our State Guard and Military Police assigned to particular functions, it is felt absolutely necessary to have an additional protective force-: as a home guard-for the protection of our various communities. Competent military officers, one of whom, our capable and experienced Major General
Milton A. Reckord, will speak to you in a few minutes, advise that there is need of this further, wide-spread, alert defense organization to cope with and to be available instantly for any sudden attack by parachute troops, by forces landed from the sea by
enemy sympathizers within our State.
I propose to meet this need by the organization in every part of the State of a Reserve Militia. The completed plan has just been approved by General Reckord, as Commander of the Third Army Corps. It offers the opportunity for every able-bodied man to assist in protecting his home and his community against enemy activities. The militia will be
organized under our State Law, and the men who enlist at this time of our grave emergency will be known as the "Maryland Minute Men."
The mission of the Maryland Minute Men is to furnish immediately, local protection against parachute troops, saboteurs, or organized raiding parties. It is planned that the units be confined to their own communities so that there will be assurance at all times that every residential section of Maryland will have protection.
No prescribed complete uniform will be required. Distinctive arm bands and caps or other items may be furnished by the State, the County, or by the men themselves. For the present the hard-pressed Ordinance Department of the United States Army cannot be expected to furnish sufficient arms, ammunition, or equipment. Hence, the volunteers, for the most part, will be expected to furnish their own weapons. For this reason, gunners (of whom there are 60, 000 licensed in Maryland), members of Rod and Gun Clubs, of Trap Shooting and similar organizations, will be expected to constitute a part of this new military organization.
Officers will be drawn from the immediate area in which they are to serve. As Army officers have pointed out to me, the familiarity of the members with their particular locality, with the terrain and road not in the respective communities, will be of great value in resisting any hostile efforts against residential areas and important
No intensive training program will be adopted. While sufficient preparatory work must be undertaken by the Minute Men, care will be taken to avoid unnecessary demands upon their time. No guard duty is to be included as a regular part of the program for the new force.
Retired officers of the regular Army, Marine Corps or State Guard will be sought to supervise the training. The program will embrace basic field training and basic small arms instruction. The field training will include the study of terrain from the military
viewpoint, establishment and maintenance of communications, practice assemblies in daylight and in dark, and other courses. Arms instructions will cover teaching how to load and unload weapons, examination of weapons as to working order; effective firing
positions, special instructions in sighting and aiming, rapid firing technique, and other duties.
Military officials, in emphasizing the value of such an organization point out that the familiarity which the members will enjoy with the faces, customs and habits of their neighbors in the community, makes them most valuable in combating sabotage efforts. They will detect, even more quickly than a secret service man from the outside, any
strange faces in the community, or any unusual activities on the part of local inhabitants.
The Maryland Minute Men, armed with weapons with which they are thoroughly familiar from long use, operating in a community in which they are accustomed to every road and trail and stream, and aroused to fighting pitch by the knowledge that they are serving to protect their own homes, their family and all that they hold dear in life, will prove a staunch defense against any enemy activity.
Through conferences among the Military, Naval, State Guard and Minute Men officials, operation plans for each area will be carefully prepared, I am assured by the Third Corps Headquarters. Surveys will be made to determine the importance of facilities and installations which might be subjected to sabotage and raids; the availability of
Military and Naval police and State Guard forces; and the quality and type of communications which are available for notification for additional protective forces when necessary.
Based on these surveys, definite missions will be assigned each of the organizations concerned; and the proper liaison will be arranged. All available firearms will be reported and those individuals to be armed with rifles will be assigned to tasks where the long-range and accurate fire of rifles will be necessarily employed. Those to be
armed with shot guns will be assigned tasks where the short range, spreading fire of shot guns will be most effective.
As I attempted to outline before, no unnecessary discipline and training will be required. However, as this is serious business there will be exacted from all members obedience to orders, sobriety, and self-sacrifice. Military advisors suggest that time need not be spent on close-order or other military drill. It is not intended that this
be a parade organization. But officers and men must be willing to cooperate and to devote time and work to meet any local situation.
I should also point out another cardinal rule of the new organization. We all know that an enemy raiding party does not stop to give considerations to a victim's social background, or to his political affiliation, or to class distinction. Therefore, I give
assurance that such considerations will completely absent from the organization, training and discipline of the Maryland Minute Men from top to bottom.
I now issue a call for volunteers to serve as Maryland Minute Men. Arrangements have been made to accept enlistments at once. State headquarters for the new organization will be the Office of the Adjutant General of Maryland, Fifth Regiment Armory, Baltimore.
However, persons can make known their readiness to serve at any of the State Armories, one of which is located in all the counties of Maryland except five. In these five counties; where no armories exists, namely, Garrett, Howard, St. Mary's, Calvert and Charles Counties, other headquarters will be established, the location of which will be made known through the local press.
Already arrangements are made to receive group enlistments from the membership rolls of Rifle Clubs, Trap Shooting Associations, Skeet Clubs and sportsmen's groups of every type. The number of units to be formed in different sections of the State will depend upon the size and population of the area and also upon the important public facilities and military objectives, which are designated by the War Department in different sections of our State.
I wish to repeat that in every move, with respect to this organization, the advice and direction of Army officials will be sought, as has been the practice in connection with the organization and functioning of the Maryland State Guard.
And so, my fellow-Marylanders, I ask your support and assistance in this new undertaking which will be maintained at a minimum of expense. It will however, represent a maximum of protection by civilian soldiers, whose first duty it will be to stand in defense of
their home, in protection of plants and facilities which are essential to life.
To these men, many of whom will be veterans of the last war, who incidentally may have "chafed at the bit" when they have observed their sons and younger men marching away recently to the Country's defense, let me say that here is an opportunity that will make them truly an important part of the public defense forces. Here is a function of military organizations to which they can address themselves with enthusiasm, because it will be of utmost importance and will thereby release a number of regular Army forces for combat service abroad.
Inconvenient, yes; overtime work, yes. But let us remember that hardships and privations are now being suffered for us by General MacArthur and his valiant men in Bataan. Those who do not leave United States as a part of the armed forces to avenge the wrong done
to Americans and to the United States flag abroad, will be untrue to these American boys if we do not protect their homes and their communities while they are away fighting for us. Let us preserve the communities and their firesides, so that there will be a familiar place to which they will be welcomed on their return after victory has, been won.
The flower of America's young manhood now being sent to distant parts of the world will face the period of hardship and discouragement. But like the Crusaders of old, they are privileged to fare forth to free a land of civilization from the Barbarians.
America's Crusade today is to wipe the scourge of slavery from a world of Hitler and the Japanese war lords, and to establish once and for all time the freedom of man and his dignity as an individual, and this should awaken a responsive chord in every heart.
No, we didn't want this war. We went to all lengths to avoid it. And in so doing we laid ourselves open to just the very reverses that lack of preparedness has occasioned. Now that we are in this war, however, now that we know how necessary it is to fight as we have never fought before, not only to defend our Democracy, our own freedom, but to bring back freedom to all the enslaved people of the earth, we know America shall not fail. Maryland today, as in every other crisis in our Nation's history, pledges itself to stop short of nothing to preserve American ideals and American privileges for
generations to come.