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    Greg and Beth

    the political and personal musings of two
    mountaineers living in west-central Florida
     
    Thoughts on DC's Brief Comment
    Gregory Morris, 1/4/08 7:50:47 pm
    SCOTUSBlog has the PDF.

    First, thought:
    One of their reasons for asking that the DC Circuit Court's ruling be overturned is: "We've been regulating guns for two centuries, so we should still be allowed to." Were I a judge, I'd kick you out of the courtroom for saying something so unbelievably stupid. A) just because it has happened in the past doesn't mean it was ever valid (easiest example: slavery.) B) This case isn't even about whether or not DC may regulate guns. It is about whether they may ban possession of handguns and functioning long guns entirely.

    After that, the brief goes on to explain that since Heller et. al. are not members of an "organized" militia, they have no guaranteed rights under the Second Amendment. I guess this is what the case is all about. The Second Amendment does not include the word "organized", rather it uses the term "well regulated" (which I suppose can be argued to mean the same thing.) The question the court will have to answer is, does the Second Amendment require membership in an organized militia (I don't think it does) and if so, the court could not very well rule in that way without making a statement as to what constitutes an "organized militia".

    DC also brings up Miller, which was bound to come up, since the collective-rights crowd leans so heavily on it. First of all, Miller is bad precedent, but not just for the obvious reason. It is also not-so-clearly written. Regardless, the fact remains that the opinion is still interpreted differently by each side of this case. The interesting thing is, DC's brief assumes they are right about what Miller means, even though I'm sure the argument will be made later that they are wrong.

    There are too many shaky limbs they are leaning on here. Any half-competent lawyer will have no problem shooting them down. "We're not a state so the constitution doesn't apply to us" has been my favorite throughout this case. Here's another:
    The majority further invalidated the trigger-lock requirement. The District construes D.C. Code § 7-2507.02, which has never been interpreted by local courts and appears never to have been enforced, to permit a lawfully owned gun to be used for self-defense. The majority nevertheless read it to forbid that use and on that reading held the provision facially unconstitutional.
    You are saying that "we still allow you to take minutes to unlock and load your firearm while thugs are breaking down your door and murdering you." Gee thanks, fellas. I find it interesting that you are worrying so much about a law which is "never enforced".
    A well-regulated militia is the antithesis of an unconnected group of individuals...
    Heh. Yeah. I could argue that I'm connected to every American by nature of our collective duty to protect the nation, but that sounds silly on a court document. Rather, I would simply counter with the fact that it is actually the people who have the right, per the full text of the amendment, not the militia. If the right was being granted to some "organized militia", you'd think that it would have read "...the right of the organized militia to keep and bear arms shall not be infringed." The popular militia is comprised of "the people" anyway, and I figure the supreme court will recognize that.
    The second clause—“the right of the people to keep and bear Arms, shall not be infringed”—equally addresses the possession and use of weapons in connection with militia service.
    It does? Man, do I feel stupid. All this time I've been keeping guns around for non-militia purposes like hunting and self defense.
    History confirms the District’s reading. ... There is no suggestion that the need to protect private uses of weapons against federal intrusion ever animated the adoption of the Second Amendment.
    The evidence may not be written into the constitution, but you can't say "history confirms" what you believe, when you are blatantly ignoring history!

    There's lots more, but I don't have the time or energy to wade through it all right now. I don't know how lawyers manage to write so much, nor how judges (well, their clerks at least) manage to read all of it.

    [Comments are closed after a month.]

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