Quotas for traffic tickets, long denied by police but generally accepted as fact by drivers, are pretty bad. Speed limits are a revenue measure more than anything else. But the same principle, applied to air marshals and the terrorist watch list, is much much worse.
The simple truth is that there aren't enough terrorists for thousands of air marshals to identify one "suspicious act" a month, even if the only thing the terrorists were trying to do was fly around the US to scout out our air security. Most likely the terrorists aren't even bothering; they are looking for other methods of attack while we focus on costly security theater.
The only reason for this kind of quota is a beaurocratic exercise in justification. You see, if the terrorists aren't probing the airlines, we might decide to shift resources elsewhere and use less costly methods (like, say, armed pilots) to defend air travel.
The re-election of U.S. Rep. Mike Sodrel won approval, and he was
picked too as the champion of public service. Then again, he tied with
President Bush atop the list of those whom people suspect of being out
for themselves. Better to be both cheered and booed than ignored,
Sodrel said he has heard.
"I understand that I have disagreements (with some) -- what is in their best interests," Sodrel said.
Sodrel, a Republican, is opposed both by his Democratic
predecessor, Baron Hill, and by Libertarian Party nominee Eric
Schansberg. The latter received 72 votes, a pleasing total for a
candidate whose name was not among the choices included on the survey.
Does the result hint of public dissatisfaction with both Sodrel and
Hill? Schansberg likes to think so.
"We'll see how it goes," he said.
Twenty-six people who wrote Schansberg in also singled out U.S.
Rep. Ron Paul as their No. 1 good guy in government. Paul, of Texas, is
also a Libertarian, although he won his congressional seat as a
In the Moss survey, Paul finished higher than dozens of supposedly better-known local and state officials.
That's a pretty striking result when you're talking about a write-in candidate. Now, it should be noted that the poll was "unscientific", which in this context probably means the results are being reported straight to the readers. That's actually a bit of a good thing.
You see, the normal political polls ask a lot of people a lot of questions. They don't just ask who that person supports or would vote for; they ask if the respondent has voted before, and how often, what political party they belong to, and so on. They then run those numbers through a statistical analysis to try to weight the numbers properly to match exit polls, so that they can predict who will win an election better. One of the steps in that process is often weighting the results by party affiliation; that is, they look at their sample, compare it to the expected Republican/Democratic split, and adjust the results to match what they think the results would be if their sample party split matched what they think the real party split is.
There's a place for manipulations like that, and predicting elections is as fair a place for it as any. But when you are trying to guage public support for a candidate's proposals, or the candidate himself, playing too many games with the party split is a good way to lose information about those candidates who don't fit neatly into the two party system.
The Libertarian party is rapidly becoming the biggest thing in politics that nobody wants to talk about. The man is Eric Schansberg. He's an economist and public policy analyst with 15 years of experience as a university professor. Despite that environment, he's pro-life, and has a more coherent and a more rational position on Iraq than the national party's presidential candidate in 2004. Oh, and he has a blog.
Full-Disclosure: I don't know him personally, but I know people who do, and that's where I got the information.
This Circuit Has Implicitly Adopted The Individual Rights Model
This Circuit Has Implicitly Adopted The Individual Rights Model Of The Second Amendment.
Two years before Emerson, this Court suggested acceptance of the Second Amendment as an individual right. Although FOP II, supra, 173 F.3d 898, did not explicitly adopt the individual rights model, its analysis of Miller is plainly inconsistent with any ?collective rights? approach to the Second Amendment.
In the FOP I litigation, supra, 152 F.3d 998 and FOP II, supra, 173 F.3d 898, this Court considered a challenge by a police officers? organization to a law barring domestic violence misdemeanants from possessing government-issued firearms. The Court struck down the provision in FOP I as unconstitutionally irrational in violation of the Fifth Amendment?s Due Process Clause, as domestic violence felons who had presumably committed more serious crimes were allowed to retain their firearms while in police service. In so doing, the court noted that ?[d]espite the intriguing questions raised, we will not attempt to resolve the status of the Second Amendment right,? because the misdemeanant-felon disparity appeared so patently irrational. FOP I, 152 F.3d at 1002. In FOP II, this Court reversed itself on reconsideration, but not before reaching the police officers? Second Amendment arguments and providing a Miller analysis consistent with the individual rights perspective.
This Court first observed that Miller may propose nothing more than what Plaintiffs claim it means ? a test ?to separate weapons covered by the [Second] amendment from uncovered weapons.? FOP II, 173 F.3d at 906. Yet the FOP?s failure to argue Miller?s irrelevance to the question at hand led the court to ?assume the [Miller] test?s applicability.? Id.
What this means is that the FOP could have argued that the Miller test was not relevant to the second amendment rights of their members, because a specific type of weapon was not at issue. Because they did not, the court assumes that the test in Miller is applicable. I'm not sure how reasonable it is to make that assumption; this sounds at least a little bit like the court looking for a good excuse to rule against the plaintiff on this issue, and finding it in the Miller test.
The Court then faced the task of applying the Miller test to the challenged law:
[W]e are not altogether clear what kind of ?relationship? ? or, to quote Miller more precisely, ?reasonable relationship,?? is called for here . . . We suppose Miller would be met by evidence supporting a finding that the disputed rule would materially impair the effectiveness of a militia, though perhaps some other showing could suffice. We need not fix the exact form of the required relationship, however, because FOP has presented no evidence on the matter at all. FOP II, 173 F.3d at 906 (citations omitted).
FOP?s Second Amendment argument rested solely on the fact that ?in ?most? states, police officers can be called into service as militia members.? FOP II, 173 F.3d at 906. The Court found the argument unpersuasive because FOP failed to show that ?police officers [are] any more susceptible to such service than ordinary citizens (or in some cases, than males between the ages of 17 and 45).? FOP II, 173 F.3d at 906. Moreover, FOP failed to show how barring police officers convicted of domestic violence misdemeanors from possessing firearms would ?have a material impact on the militia.? FOP II, 173 F.3d at 906.
In other words, a statute barring a limited class of individuals from owning firearms may not offend the Second Amendment.10 Implicit in the Court?s reasoning, however, is that if a rule could be shown to impair a significant portion of ?ordinary citizens? from functioning as militia, that is, acting in armed concert for the common defense or in self-defense, or if a rule were to otherwise impair the effectiveness of a militia, it would violate the Second Amendment. Considering the Supreme Court?s admonition that members of the public were ?expected to appear bearing arms supplied by themselves,? Miller, 307 U.S. at 179, when called upon to serve in the militia, it appears this Court would not approve of the statutes challenged herein.
Relying upon the historic ?right of self defense and right of self preservation,? Abigail Alliance v. Von Eschenbach, ___ F.3d ___, 2006 U.S. App. LEXIS 10874, *26 (D.C. Cir., May 2, 2006), this Court recently found a substantive due process right of terminally ill patients to obtain drugs not fully approved by the FDA. If ?[b]arring a terminally ill patient from the use of a potentially life-saving treatment impinges on this right of self-preservation . . . .,? id., at *27, then surely barring a law-abiding citizen from possessing a functional firearm in her home likewise violates this right of self-preservation. Each law challenged here ?impinges upon an individual liberty deeply rooted in our Nation's history and tradition of self-preservation.? Id., at *45. Yet this Court was ?mystified? by attempts to fashion a substantive due process right to arms, because the Second Amendment provides such rights textually. FOP II, 173 F.3d at 906. Abigail and FOP II cannot be reconciled with the collective rights view of the Second Amendment.
Abigail is an interesting precedent to use. It's much more in the usual vein for a liberal court, and yet it goes directly to the point. If an individual has the right to obtain potentially life-saving drugs, based on substantive due process, does not an individual whose life is threatened by violence have a similar right to obtain proscribed arms? How much stronger is that argument when the 2nd Amendment explicitly conveys an almost unqualified right to arms?
Although Abigail is probably distinguishable if a court wished to do so, at first glance it has some precedential value. Little precedents like this, that suggest but do not bind, can add up to a big victory. But we shouldn't lose sight of the fact that the other side will still get the chance to argue their case, and cite their own precedents. There's more favorable material within the DC circuit than I had expected, but 30 years of gun control must have resulted in some precedents going the other way. We'll see what the other side comes up with.
Certificate As To Parties, Rulings, And Related Cases
I probably should have posted this first, but I confess to skipping right over it. This is the very first section of the Parker brief, laying out who is involved in the case, what previous rulings have been issued, and any related cases. It's basically a crib sheet for the judges so they know who is involved in the case and whether there are any other relevant cases they need to be aware of. It's straightforward with no surprises.
Certificate As To Parties, Rulings, And Related Cases
A. Parties and Amici
The parties in the District Court below were plaintiffs Shelly Parker, Dick Heller, Tom G. Palmer, Tracey Ambeau, Gillian St. Lawrence, and George Lyon; and defendants District of Columbia and Anthony Williams. All parties below are parties before this Court in this appeal.
Amici below for the appellants were the Heartland Institute and the American Civil Rights Union. Amici below for the appellees were the Violence Policy Center and the Brady Center to Prevent Gun Violence.
Amici on appeal for the appellants are the Heartland Institute, the American Civil Rights Union, the Second Amendment Foundation, the Citizens? Committee for the Right to Keep and Bear Arms, the Madison Society, Keep and Bear Arms Corp., the Congress of Racial Equality, the State of Texas, and the National Rifle Association Civil Rights Defense Fund.
Amici on appeal for the appellees are the Violence Policy Center, the Brady Center to Prevent Gun Violence, and Ernest McGill.
If you're wondering about Earnest, I think he's the individual behind the "Powtowmack Institute" that had some difficulties with the rules for corporate representation before the court. Specifically, the rules say corporations must be represented by counsel, and Earnest chose to file as an individual amici rather than appear through counsel in his corporate identity.
B. Rulings Under Review
The rulings under review are contained within the District Court?s Memorandum Opinion and Order issued March 31, 2004, per the Hon. Emmet G. Sullivan, granting defendants? Motion to Dismiss, denying as moot plaintiffs? Motion for Summary Judgment, and directing that judgment be entered for defendants. The District Court?s opinion is published at Parker v. District of Columbia, 311 F. Supp. 2d 103 (D.D.C. 2004). The rulings under review, and judgment being appealed, are set forth in the Joint Appendix at pp. 46-62.
C. Related Cases
The case on review has not previously been before this or any other court apart from the original proceeding in the United States District Court. Counsel is not aware of any related cases now pending before this or any other court.
Of course, Seegars would have been listed here if it was still pending. Since the Supreme Court has denied cert to that case, though, it's dead.
The Supreme Court has repeatedly suggested an individual right
The Supreme Court Has Repeatedly Suggested That the Second Amendment Secures an Individual Right.
The Supreme Court has never decided whether ?the right of the people? protected by Second Amendment inheres in individuals or is rather, as some suggest, ?collective.? Contrary to well-circulated myth, however, the Supreme Court?s only direct examination of the Second Amendment apparently supports the individual rights model. Miller, 307 U.S. at 174.
See also Misreading Miller. Reading US v Miller to support a militia-only collective right is extremely common but incorrect.
Miller raised a Second Amendment challenge to his indictment under the National Firearms Act for possession of an untaxed sawed-off shotgun. Rather than focus on the nature of the substantive right claimed by Miller, the Supreme Court focused on the sawed-off shotgun to which Miller claimed a right. Miller began by noting that among the powers of Congress lie certain prerogatives regarding ?the Militia.? U.S. Const. art. I, sec. 8, cl. 15 (?to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions?); U.S. Const. art. I, sec. 8, cl. 16 (?to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States . . .?). As the Second Amendment contains a prefatory justification clause providing, ?A well regulated Militia being necessary to the security of a free state,? U.S. Const. amend. II, Miller reasoned that ?[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such [militia] forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.? Miller, 307 U.S. at 178.
?With that end in view,? the Supreme Court next set out to define ?the militia,? concluding that ?militia? referred simply to members of the public capable of bearing arms in defense of the government if called upon to do so:
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
Miller, 307 U.S. at 178-79 (emphasis added). Reviewing ?the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators,? the Supreme Court determined
that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Miller, 307 U.S. at 179 (emphasis added). The ?militia system . . . implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.? Miller, 307 U.S. at 179-80 (citation omitted).
It is worth noting here that the militia system as implemented at the time the Constitution was written did involve some gun control laws. Those laws did things like require adult male citizens to own a firearm, keep a certain amount of powder and ammunition on hand, show up for weekly inspections and training, and provide for public funds to purchase firearms for those unable to afford them -- such funds to be repaid by labor or coin within a specified time, in case anyone was getting excited about a proto-welfare state.
That is a tradition that we have, sadly, lost.
As the Fifth Circuit explained in Emerson, the Supreme Court?s treatment of the issue in Miller indicates that the militia ?referred to the generality of the civilian male inhabitants . . . and to their personally keeping their own arms, and not merely to individuals during the time (if any) they might be actively engaged in actual military service or only to those who were members of special or select units.? Emerson, 270 F.3d at 226.
See also my reporting on the Emerson case. It's thinner than I remember writing, though, so I'll probably have to fill in the gaps later. The short version is, Emerson was a Texas doctor who went through a messy divorce, had some nasty allegations made about him by his ex-wife involving threats, had a restraining order issued against him (as is almost routine), then was charged with possessing a handgun while the restraining order was in effect. He fought the charges on the basis of the Second Amendment right to keep and bear arms, and won in the lower court. The appeals court reversed, saying that the Second Amendment does not bar limitations of rights with appropriate due process and the restraining order had minimally sufficient due process to survive the challenge, while finding that Emerson did in fact have an individual right to keep and bear arms. The Supreme Court denied cert.
Despite the outcome it is one of the most significant of the modern Second Amendment cases out there, not least because it creates a circuit split; the 5th Circuit held in that case that the 2nd Amendment protects an individual right and the 9th Circuit has held in other recent cases that the 2nd Amendment "protects" a practically-nonexistant collective right. A circuit split is one of those situations that the Supreme Court prefers to resolve itself.
The Miller defendants? membership in the constitutional ?Militia? was unquestioned. ?Had the lack of [militia] membership or engagement been a ground of the decision in Miller, the Court?s opinion would obviously have made mention of it. But it did not.? Emerson, 270 F.3d at 224 (footnote omitted).
Rather, the case turned on whether the sawed-off shot gun in question was a weapon in ordinary use suitable for such common defense:
In the absence of any evidence tending to show that possession or use of a ?shotgun having a barrel of less than eighteen inches in length? at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
Miller, 307 U.S. at 178 (emphasis added) (citation omitted).
Miller?s expansive definition of ?militia? as comprising private individuals capable of acting for the common defense and ?expected to appear bearing arms supplied by themselves and of the kind in common use,? Miller, 307 U.S. at 179, has never been questioned by the Supreme Court. In referencing the case, subsequent Supreme Court opinions confirmed that Miller merely set forth a test for whether a particular weapon is covered by the Second Amendment. Printz v. United States, 521 U.S. 898, 938 n.1 (1997) (Thomas, J., concurring); see also Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (Miller held that ?the Second Amendment guarantees no right to keep and bear a firearm that does not have ?some reasonable relationship to the preservation or efficiency of a well regulated militia.??)
In United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court was called upon to define ?the people? entitled to the Fourth Amendment?s protection against unreasonable searches and seizures:?[T]he people? protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
This is Constitutional mojo that's pretty hard to shake. The Constitutional usage of "the people" is consistent across the Bill of Rights (as well as the rest of the document). By this argument, if we have an individual right to speak freely, assemble freely, practice our religion freely, and so on, then we must also have a right to keep and bear firearms freely. Most arguments suggesting otherwise focus on the militia clause, believing (as a matter of convenience) that it overrides or limits the reference to "the people".
Verdugo-Urquidez, 494 U.S. at 265 (citation omitted) (emphasis added); see also Patton v. United States, 281 U.S. 276, 298 (1930) (?The first ten amendments and the original Constitution were substantially contemporaneous and should be construed in pari materia.?), overruled on other grounds, Williams v. Florida, 399 U.S. 78 (1970).
Likewise, the infamous Dred Scott case argued no Southern state would have adopted a constitution obligating it to respect privileges and immunities of citizenship held by African-Americans, including ?the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.? Scott v. Sandford, 60 U.S. 393, 417 (1857) (emphasis added).
The Dredd Scott decision isn't exactly a high point of Supreme Court jurisprudence, being as it is a distinctly anti-civil-rights case. Nonetheless it is useful for its enumeration of the common and expected rights of citizens (which, in context, were being denied to black citizens). Keep that in mind if you read any news reports or commentary criticizing the case for citing Dredd Scott. The same rights that were denied to black citizens in the South are presently being denied to all citizens in the District of Columbia, regardless of race. Our case seeks to restore those rights.
The Supreme Court has never described the explicit protections of the Bill of Rights as being set forth only in the First and Third through Eighth Amendments. Rather, the Court has spoken favorably of the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms . . .
Duncan v. Louisiana, 391 U.S. 145, 166-67 (1968) (Black, J., concurring) (quoting statement of Sen. Howard, Cong. Globe, 39th Cong, 1st Sess., 2765-2766 (1866) (emphasis added)). ?[L]iberty encompasses  more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments." Planned Parenthood v. Casey, 505 U.S. 833, 847 (1992) (emphasis added). Thus, [t]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.Casey, 505 U.S. at 848 (quoting Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (emphasis added)); Moore v. City of East Cleveland, 431 U.S. 494 (1977) (same).
Planned Parenthood v Casey is an interesting cite. It's one of the major abortion cases, a followup to Roe v Wade. The latter decision is infamous for it's "penumbra" of rights that "emanate" from the right to "privacy" never mentioned in the Constitution. I suppose it's inclusion is meant somewhat to appeal to the more liberal members of the court, who may need reminding that one of their most cherished rights is protected by a far slimmer legal threat than the 2nd.
Thus, although the ?collective rights? theories find no support in Supreme Court precedent, the Supreme Court has long indicated that the right to keep and bear arms is no different from any other constitutional right: rights belonging to ?the people? belong to individuals.
The most frustrating part of this whole situation is that, in fact, the Supreme Court has made its pseudoposition clear without actually having the guts to decide a case that way and start knocking down some gun control laws.
Printz v United States is a Brady
instant-check case. Following the passage of the background check
requirement on firearms sales, local jurisdictions were required to conduct their own
background checks prior to firearms sales while the Attorney General
set up a national system. Some local officials didn't like the
requirement (it was an unfunded mandate) and sued; there was a circuit
split that the Supreme Court resolved by ruling the requirement was
The relevant text is from the concurrence of Justice Thomas:
The Court today properly holds that the Brady Act violates the Tenth
Amendment in that it compels state law enforcement officers to "administer
or enforce a federal regulatory program." See ante, at 935. Although I
join the Court's opinion in full, I write separately to emphasize that
the Tenth Amendment affirms the undeniable notion that under our Constitution,
the Federal Government is one of enumerated, hence limited, powers. See,
e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) ("This government is acknowledged
by all to be one of enumerated powers"). "[T]hat those limits may not be
mistaken, or forgotten, the constitution is written." Marbury v. Madison,
1 Cranch 137, 176 (1803). Accordingly, the Federal Government may act only
where the Constitution authorizes it to do so. Cf. New York v. United States,
505 U.S. 144 (1992).
In my "revisionist" view, see post, at 941 (STEVENS, J. dissenting),
the Federal Government's authority under the Commerce Clause, which merely
allocates to Congress the power "to regulate Commerce . . . among the several
States," does not extend to the regulation of wholly intrastate, point-of-sale
transactions. See United States v. Lopez, 514 U.S. 549, 584 (1995) (concurring
opinion). Absent the underlying authority to regulate the intrastate transfer
of firearms, Congress surely lacks the corollary power to impress state
law enforcement officers into administering and enforcing such regulations.
Although this Court has long interpreted the Constitution as ceding Congress
extensive authority to regulate commerce (interstate or otherwise), I continue
to believe that we must "temper our Commerce Clause jurisprudence" and
return to an interpretation better rooted in the Clause's original understanding.
Id., at 601 (concurring opinion); see also Camps Newfound/Owatonna, Inc.
v. Town of Harrison, 520 U.S. 564, 620 (1997) (THOMAS, J., dissenting).
Even if we construe Congress' authority to regulate interstate commerce
to encompass those intrastate transactions that "substantially affect"
interstate commerce, I question whether Congress can regulate the particular
transactions at issue here. The Constitution, in addition to delegating
certain enumerated powers to Congress, places whole areas outside the reach
of Congress' regulatory authority. The First Amendment, for example, is
fittingly celebrated for preventing Congress from "prohibiting the free
exercise" of religion or "abridging the freedom of speech." The Second Amendment similarly appears to contain an express limitation
on the Government's authority. That Amendment provides: "A well regulated
Militia, being necessary to the security of a free State, the right of
the people to keep and bear arms, shall not be infringed." This Court has
not had recent occasion to consider the nature of the substantive right
safeguarded by the Second Amendment.[fn1] If, however, the Second Amendment
is read to confer a personal right to "keep and bear arms," a colorable
argument exists that the Federal Government's regulatory scheme, at least
as it pertains to the purely intrastate sale or possession of firearms,
runs afoul of that Amendment's protections.[fn2] As the parties did not raise this argument, however, we need not consider it here.
Perhaps, at some future date, this Court will have the opportunity to determine
whether Justice Story was correct when he wrote that the right to bear
arms "has justly been considered, as the palladium of the liberties of
a republic." 3 J. Story, Commentaries § 1890, p. 746 (1833). In the
meantime, I join the Court's opinion striking down the challenged provisions
of the Brady Act as inconsistent with the Tenth Amendment.
That's a pretty strong endorsement for our side from Justice Thomas. However, unfortunately, it's dicta (a judge writing explanatory text on which the actual decision does not rest), and has significantly reduced precedential value for that. In the absence of direct precedent it can still carry some weight, and is certainly better than nothing. We owe Thomas a debt of thanks for this sort of concurrence, as it lays the groundwork for cases like this that do directly address the issue.
[fn1] Page 938 Our most recent treatment of the Second Amendment occurred
in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the
District Court's invalidation of the National Firearms Act, enacted in
1934. In Miller, we determined that the Second Amendment did not guarantee
a citizen's right to possess a sawed-off shotgun because that weapon had
not been shown to be "ordinary military equipment" that could "contribute
to the common defense." Id., at 178. The Court did not, however, attempt
to define, or otherwise construe, the substantive right protected by the
[fn2] Page 938 Marshaling an impressive array of historical evidence,
a growing body of scholarly commentary indicates that the "right to keep
and bear arms" is, as the Amendment's text suggests, a personal right.
See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American
Right 162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of
a Constitutional Right (1984); Van Alstyne, The Second Amendment and the
Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The Bill of Rights
and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992); Cottrol &
Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration,
80 Geo. L. J. 309 (1991); Levinson, The Embarrassing Second Amendment,
99 Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning
of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Other scholars, however,
argue that the Second Amendment does not secure a personal right to keep
or to bear arms. See, e.g., Bogus, Race, Riots, and Guns, 66 S. Cal. L.
Rev. 1365 (1993); Williams, Civic Republicanism and the Citizen Militia:
The Terrifying Second Amendment, 101 Yale L. J. 551 (1991); Brown, Guns,
Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's
The Embarrassing Second Amendment, 99 Yale L. J. 661 (1989); Cress, An
Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist.
22 (1984). Although somewhat overlooked in our jurisprudence, the Amendment
has certainly engendered considerable academic, as well as public, debate.
You know, I just love to see Bogus cited on this topic.
Lewis v United States concerns a defendent who was convicted of a felony without the representation of counsel, and was subsequently charged with being a felon in possession of a firearm. He argued that the prior conviction, being obtained against him without benefit of legal counsel, was not valid and could not be a predicate for the offense of firearm possession. The defendent lost his challenge, but the court ruled narrowly, noting that convicted felons could expunge their convictions before obtaining a firearm.
The firearm regulatory scheme at issue here is consonant with the concept of
equal protection embodied in the Due Process Clause of the Fifth Amendment if
there is "some `rational basis' for the statutory distinctions made . . .
or . . . they `have some relevance to the purpose for which the classification
is made.'" Marshall v. United States, 414 U.S. 417, 422 (1974), quoting
from McGinnis v. Royster, 410 U.S. 263, 270 (1973), and Baxstrom v. Herold, 383
U.S. 107, 111 (1966). See Vance v. Bradley, 440 U.S. 93, 97 (1979). [445 U.S. 55, 66]
The second amendment commentary comes in the footnote.
[Footnote 8] These legislative restrictions on the use of
firearms are neither based upon constitutionally suspect criteria, nor do they
trench upon any constitutionally protected liberties. See United States v.
Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to
keep and bear a firearm that does not have "some reasonable relationship
to [445 U.S. 55, 66] the
preservation or efficiency of a well regulated militia"); United States v.
Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5
(CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United
States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three
cases holding, respectively, that 1202 (a) (1), 922 (g), and 922 (a) (6) do not
violate the Second Amendment).
I'm not sure how favorable this cite is, aside from reinforcing the notion that Miller dealt with "firearm[s]" that had a reasonable relationship to the preservation or efficiency of a well-regulated militia, rather than "people" having that relationship. While the language is correct for that inference the citations don't look terribly promising, as they are upholding some of the significant gun control laws. I'll have to look at the cases before feeling comfortable about citing this. For now, let's not forget that the Parker attorneys presumably did and felt it was worth it.
This is the meat of the case -- the argument (or at least the first part of that argument) that the 2nd Amendment presents an individual right to keep and bear arms.
THE SECOND AMENDMENT TO THE UNITED STATES CONSTITUTION PROTECTS AN INDIVIDUAL?S RIGHT TO KEEP AND BEAR ARMS, EVEN WHILE NOT ENGAGED IN STATE SERVICE.
Justice Story argued that ?[t]he right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic.? 3 Joseph Story, Commentaries on the Constitution, p. 746 (1833). An examination of the Second Amendment?s history, text, and structure, separately and within the context of the Constitution as a whole, confirms ?that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as [an ordinary] pistol . . . that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller.? United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001) (citing United States v. Miller, 307 U.S. 174 (1939)).
Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is . . . to arm "We the People" so that ordinary citizens can participate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities . . . Rather, the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes . . . a right that directly limits action by Congress or by the Executive Branch . . . . 1 Laurence Tribe, American Constitutional Law, n.221 at 902 (3d ed. 2000) (emphasis added).
There's not much to be said that isn't already in the brief. The details of the argument will follow.
B. Defendants Have Specifically And Personally Threatened Plaintiffs With Prosecution Should They Act On Their Sincere Intent To Engage In Proscribed Conduct; Accordingly, Plaintiffs Have Standing To Pursue Their Second Amendment Claims.
When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.
Seegars, 396 F.3d at 1251 (quoting Babbitt v. United Farm Workers Nat?l Union, 442 U.S. 289, 298 (1979)) (other citations omitted).
In Seegars, this Court accepted that ?the conduct that plaintiffs would engage in is at least arguably affected with a constitutional interest,? Seegars, 396 F.3d at 1254, and accepted the ?assurance of [plaintiffs?] conditional intent to commit acts that would violate the law,? Seegars, 396 F.3d at 1255, but nonetheless found plaintiffs lacked standing because they ?allege[d] no prior threats against them or any characteristics indicating an especially high probability of enforcement against them.? Id.
Seegars acknowledged that assessing the credibility of a prosecutorial threat is no simple matter. In requiring plaintiffs to show more than ?a conventional background expectation that the government will enforce the law,? Seegars, 396 F.3d at 1253, this Court also made clear that actual threats against specific plaintiffs are not the minimum threshold for standing ? they are the polar extreme by which standing is obviously present.
Ironically, here the Seegars case, which lost on the standing issue, is clarifying the question of standing in a manner favorable to this case. The decision almost begs to be distinguished in favor of the record that Parker established, since that record does include actual, specific threats of prosecution. I'm almost tempted to suspect that the judges had Parker in mind when writing their opinion, but that's pure speculation. It should make this particular hurdle a bit easier.
That's still not a sure thing.
[T]he severity of the required threat is independent of the doctrinal hook. Unfortunately the adjective ?credible? says little or nothing about the
requisite level of probability of enforcement, and clarity prevails
only at the poles. If the threat is imagined or wholly speculative, the
dispute does not present a justiciable case or controversy. Evidence
that the challenged law is rarely if ever enforced, for example, may be
enough to defeat an assertion that a credible threat exists. By
contrast, actual threats of arrest made against a specific plaintiff
are generally enough to support standing as long as circumstances
haven?t dramatically changed.
Seegars, 396 F.3d at 1252 (citing Steffel v. Thompson, 415 U.S. 452, 459 (1974)) (other citations omitted).
The unambiguous statements in this case, in open court and to the
media, concerning what Defendants would ? not might, but would ? do to
these specific Plaintiffs were they to violate the challenged laws, go
far beyond anything contained in the Seegars record. Defendants?
threats against Plaintiffs are ?actual? and ?specific,? Seegars, 396
F.3d at 1252. One can hardly imagine a more specific threat of
prosecution than the threat conveyed in a front page newspaper article
quoting Defendant Mayor?s spokesperson and the Deputy Mayor ? except,
perhaps, for opposing counsel?s admission, in response to the District
Court?s specific query, that Plaintiffs could expect ?no? immunity from
prosecution, and it is a ?fact that if, in fact, they break the law . .
. we would enforce the law that they?re breaking.? JA 66-67. This
threat was repeated, albeit with the mild qualifier ?normally,? on page
five of Defendants? February 23, 2005 submission to this Court.
It is for future cases to clarify where, in the space Seegars left
between a generalized grievance and an actual, specific threat of
prosecution, standing in pre-enforcement challenges begins taking form.
In this case, ?clarity prevails . . . at the pole.? Seegars, 396 F.3d
at 1252. Having been advised by Defendants of their intent to prosecute
Plaintiffs, the District Court correctly concluded it had no choice but
to reach the merits of the case.
That's about the story on standing. The only real weakness in the case is the scarcity of favorable case law that directly addresses the 2nd Amendment, and Seegars partially addresses that.
All things considered, we're likely to win on the standing issue. Seegars was a close call but the flaws that caused trouble for them aren't present in Parker. That brings us to the merits of the case...
A. Defendants? Failure To Assert A Standing Defense Until Prompted To Do So By The District Court Casts Doubt On The Merits Of The Standing Argument.
It is generally considered necessary in legal argument to raise any possible objections or defenses at the first opportunity to do so, on pain of losing access to those defenses should they be raised later on. The reason for this is simple fairness; it would not be proper to allow one party to make arguments that the other party has no opportunity to address, or to petition for an appeal on the basis of available defenses not raised during the original trial. Without rules like that, skilled lawyers could keep a case in the air, and going nowhere, for years. (Some might say they can do so despite these rules even today).
Here, the defendants did not raise the standing issue in the lower court until questioned by the judge about their failure to do so. This isn't quite the same thing, since the issue was raised and addressed (but the plaintiffs were found to have standing). I don't know what the rules would say about this situation, particularly given some of the strange gyrations the case went through, but it's certainly a great big glaring hole in the argument for the defense.
As this brief argues, one of the simplest explanations for why the standing defense was not raised is that the defendants didn't think it had any merit, and so was not even worth trying. An alternative would be that they didn't think of it at all, which isn't very flattering either.
Unfortunately, since it did get raised, they didn't miss their chance to argue it and they can continue to argue the standing issue on appeal. It's a little bit of a pity, since lack of standing is one of the common ways of getting rid of a 2nd Amendment lawsuit without actually ruling on the right to keep and bear itself. If they had forgotten about it entirely the case would probably be simpler.
I do wonder if the judge was trying to be helpful in bringing up the issue.
Defendants failed to question Plaintiffs? standing until prompted to do so by the District Court during oral argument. Had the District Court not raised the issue, Defendants would not have addressed it themselves:
THE COURT: You didn't raise [standing] as a basis for your motion to dismiss.
MS. MULLEN: No, we did not. . . .
THE COURT: When were you planning to raise it? Had I not raised it, were you going to raise it today? MS. MULLEN: No, I was not planning on raising it today.
THE COURT: When were you going to raise it? On appeal?
MS. MULLEN: The issue was raised in the Seegars case as it applied to the U.S. We didn't raise it in the Parker case . . . it's not anything that we have presented to the Court thus far. . .
THE COURT: I'm curious. Had I not raised the issue, were you going to raise it this morning?
MS. MULLEN: No, I had not intended on raising it this morning.
Defendants? amici likewise failed to raise standing in their voluminous briefing:
THE COURT: I don't recall if you, in your brief, address the issue of standing or not. I don't recall.
MR. NOSANCHUK: We did not address the issue of standing.
THE COURT: Everyone recognizes on this side there's no standing, but no one raised it. I find it mystifying.
MR. NOSANCHUK: Right. Well, Your Honor, we would, obviously, be happy to submit supplemental briefing.
THE COURT: No. I was just asking questions. I'm not trying to signal my opinion that there's not standing. It was just a legitimate question to ask. So I hope I'm not sending the wrong signals to everyone that there's no standing here. But, I mean, constitutional scholars and lawyers of long standing and no one raised it? Don't turn your head away. I mean, if I hadn't raised it, it was not going to be raised?
It is self-evident why Defendants and their amici never thought to raise a standing defense: they knew it lacked merit. Even before responding to Plaintiffs? complaint, Defendants had proclaimed on the front page of the Washington Times that Plaintiffs were a threat to public safety who should expect no quarter from the city?s zealous prosecution efforts. On summary judgment, Defendants admitted that the laws are zealously enforced. And during oral argument, they candidly confirmed that Plaintiffs would be prosecuted if they violated the challenged laws. Thus, it presumably never occurred to Defendants to assert a standing defense because they had every intention to prosecute the Plaintiffs should they exercise their right to keep and bear arms.
It's unfortunate that willingness to prosecute is only one of several components required to establish standing. I think there's little room for doubt; the City isn't going to wear kid gloves with the Parker plaintiffs. It would take a lot of handwaving to work around that component of standing. It would not be unprecedented but it would be a stretch.
The second component, a real case or controversy, is similarly easy. There isn't much doubt that the plaintiffs have a real case -- they have real and strong reasons to possess firearms within the District and at least one has applied for a permit and been denied.
The only serious question is whether the 2nd Amendment protects their right to possess functional firearms. Obviously most of the readers here believe it does. Convincing a court to rule that way is not necessarily easy, however, especially given a lack of serious precedent on our side. This particular bar should be a fairly easy one to cross if the First Amendment is the standard, but it's not. We'll just have to wait and see.
Plaintiffs plainly possess the three elements of standing necessary to bring this action: (1) the challenged laws implicate a constitutionally protected zone of interest, (2) Plaintiffs? intent to violate the law is uncontested, and (3) in contrast to the sparse factual record of Seegars v. Ashcroft, 396 F.3d 1248 (D.C. Cir. 2005), Plaintiffs have established receiving actual, specific threats of prosecution.
There is nothing speculative or hypothetical about this lawsuit. If
Plaintiffs exercise their constitutional rights, Defendants will
Of these three elements, the most difficult to establish will probably be the first. It's hard to contest intent; even if it was attempted, many of our plaintiffs have significant reason to fear for their safety without arms, and some already own firearms (stored elsewhere). The facts on the record make it fairly clear that prosecution is not a hypothetical. The defendents may attempt to argue that prosecution is not a certainty, but their own record suggests that they are unlikely to succeed.
The real question is whether the restriction on firearms is an infringement upon a Constitutional right. We all know that the Constitutional text is straightforward, but the legal issue has been clouded. Most of the favorable precedents for pre-enforcement challenges come from First Amendment law. It doesn't necessarily carry over to the Second. There are other, unfavorable precedents that do apply to the Second. In short, this area of law is both sparse and contradictory.
Turning to the merits, this Court recently observed, ?the Supreme Court's guidance has been notoriously scant? regarding the Second Amendment. Fraternal Order of Police v. United States (?FOP II?), 173 F.3d 898, 906 (D.C. Cir. 1999). Lower federal courts are presently divided on the question of whether the Second Amendment guarantees a personal right to keep and bear arms; a so-called ?collective right? of the states to arm the militia3; or a hybrid ?sophisticated collective right,? by which individuals enjoy a right to keep and bear arms, but only in service of the state.4 For much of the mid-twentieth century, versions of the ?collective rights? theories were summarily adopted by federal courts with little or no analysis of constitutional text, history, or structure.
But as this Court has recognized, ?[a]nalysis of the character of the Second Amendment right has recently burgeoned.? Fraternal Order of Police v. United States (?FOP I?), 152 F.3d 998, 1002 (D.C. Cir. 1998) (citations omitted). As courts and scholars have finally begun to apply meaningful, non-cursory, analysis to the Second Amendment, the trend strongly favors the ?individual rights? model long ago embraced in state courts.5 In the wake of an impressive array of scholarship from across the ideological spectrum,6 the Fifth Circuit became the first federal appellate court to thoroughly examine the text and history of the Second Amendment. Based on its exhaustive analysis, the Fifth Circuit concluded that the Framers of the Bill of Rights intended to, and textually did, guarantee in the Second Amendment an individual right to keep and bear arms, unrelated to militia service. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
The Emerson case got quite a lot of attention at the time. It produced a lengthy and well-researched opinion that found the Second Amendment was an individual right. These are good things. The problem is, that same decision found that the restriction on firearms possession by those under a domestic-violence restraining order was not an infringement.
It's sort of like a boxing match where one boxer knocks out his opponent a second after the bell rings and loses on points.
As early as 1875, the federal government adopted the litigating position that the Second Amendment secures an individual right to keep and bear arms. United States v. Cruikshank, 92 U.S. 542 (1875). Emerson?s ?individual rights? model is now the position of the United States.7 Most recently, an extended, scholarly memorandum opinion for the Attorney General concluded that ?The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.? Steven Bradbury, Howard Nielson, Jr., and Kevin Marshall, Whether the Second Amendment Secures an Individual Right, http://www.usdoj.gov/olc/secondamendment2.htm (Aug. 24, 2004).
Although the nature of Second Amendment rights is a question of first impression in this circuit, this Court?s opinions in FOP I, supra, 152 F.3d 998 and FOP II, supra, 173 F.3d 898, express a clear openness to the individual rights model. In FOP I, this Court explicitly avoided the question of whether the Second Amendment guarantees an individual right, but on rehearing in FOP II, analyzed a Second Amendment challenge in a manner consistent with the individual rights position.
Here's what's going on. In FOP I, a police officers union sued the government alleging that the prohibition on firearm purchases by those subject to domestic violence convictions or restraining orders violated a laundry list of laws and constitutional prohibitions, including the 2nd Amendment. The government explicitly avoided analysis of the 2nd Amendment claims, deciding the case in favor of the plaintiffs on equal protection grounds, but did note that the law would fail even the most permissive standard ("rational basis") for 2nd Amendment review.
In FOP II, the Second Amendment claim is reached. Although it fails (since barring those persons convicted of a domestic violence misdemeanor from militia service would not substantially impair the preservation and efficiency of a well-regulated militia), the analysis is consistent with the individual rights model. The decision additionally notes that police officers are not more likely to be called into militia service than ordinary citizens.
For more on these two cases, see my specific analysis of the FOP cases, linked above.
Considered analysis of the history, text, and structure of the Second Amendment, as well as of the Constitution as a whole, makes clear that citizens enjoy an individual right to keep and bear personal firearms outside the context of military service. The Supreme Court?s only direct Second Amendment precedent, United States v. Miller, 307 U.S. 174 (1939), presumes the individual rights model, while other cases reflect the commonsense assumption that the Second Amendment, like other Bill of Rights provisions, guarantees individual rights.
This is true, but there's a catch; the Supreme Court rarely takes cases that address the 2nd, and precedent from the lower courts is usually (but not always) against us by the least direct route possible.
The Amendment?s preamble, like other prefatory language in the Constitution, cannot be construed to negate the Amendment?s operative clause. The ?collective rights? theories are incompatible not only with the Second Amendment?s text, but conflict with the clear weight of history as well as the plain text of various other constitutional provisions. But rather than engage the relevant text, history, and precedent, the District Court?s analysis rejecting Plaintiffs? claims was limited primarily to observing that the Supreme Court has not reversed the courts that have adopted the contrary viewpoint.
One of the watchwords of Supreme Court jurisprudence is that refusing to hear a case (denial of certiorari) does not reflect on the merits of the case and has no precedential value. Nonetheless, in the absence of more concrete guidance, the lower courts seem willing to take the implication in this type of case. It's an error, but an understandable one.
To recognize the constitutional right is to decide for Plaintiffs. This Court need not decide whether the Second Amendment guarantees a ?fundamental? right entitled to the protection of strict scrutiny,9 a nonfundamental right subject to rational basis review, or some other class of right entitled to an intermediate level of protection. Plaintiffs do not challenge laws imposing any particular regulation on their Second Amendment rights. Plaintiffs challenge a complete ban on the possession of any functional firearm within their homes.
What's being said here is that the Parker case doesn't risk making substantial new precedent with regard to gun control laws. It's about a complete ban, not about registration, licensing, safety classes, concealed carry, etc. The court will not need to decide anything about the level of scrutiny applicable to Second Amendment rights (which would set a precedent affecting many other cases); instead it can rule narrowly that a complete ban on functional firearms violates the Second Amendment regardless of the level of scrutiny applied.
It doesn't mean that a win here won't eventually shake things up, but it won't happen in this case.
Whatever else the government may do with respect to gun ownership, a total prohibition of functional firearms within the homes of peaceful, law-abiding citizens ? including a ban on the ownership of a handgun, the quintessential personal firearm ? is flatly inconsistent with the Second Amendment?s guarantee of a right to keep and bear arms.
There being no factual dispute as to either Plaintiffs? intent to exercise their constitutional rights or to Defendants? vigorous enforcement of that prohibition, the Court should reverse the decision below and remand with instructions to grant Plaintiffs? motion for summary judgment.
I think this would result in the case being sent back to the lower court with explicit instructions to rule favorably. I'm not sure it's possible to win a motion for summary judgement and then lose the judgement itself, but since we are briefing the merits, presumably any decision issued by the court would be on the merits and the lower court would be bound thereby.
Three criminals, one armed good guy. Good guy wins. It's a good thing that the handgun ban was struck down recently, or the police might have felt obligated to track down the good guy and arrest him for defending himself.
Fraternal Order of Police II (wrt the Second Amendment)
The Parker brief I have been analyzing cites two related cases, the Fraternal Order of Police v United States (FOP I, FOP II).
Their cite of these cases is something new and I will thus examine each
case in detail as it affects the 2nd Amendment. Some background: in
1996 Congress passed the Lautenberg Amendment which bars firearms
possession from individuals convicted of a domestic violence
misdemeanor or those subject to a domestic violence restraining order.
FOP II takes on the Second Amendment by way of a "substantive due process" challenge.
FOP argues that § 922(g)(9) violates the substantive due process
guarantee of the Fifth Amendment by "unnecessarily and irrationally
burdening important individual interests in possession of a firearm in
the public interest, in serving the communit[y], and in pursuing an established
career." FOP Br. at 36. The second interest has clearly not attained
the status of a fundamental right. As to the third, it is true that if
government action against a particular person "precludes" him
from pursuing his profession, that action can infringe a "liberty
interest"; if so, the predicate procedures must satisfy due process
requirements. See Kartseva v. Department of State, 37 F.3d 1524,
1529-30 (D.C. Cir. 1994). But FOP's claim is that § 922(g)(9) violates
"substantive" due process; yet it has failed to develop either
a factual record or the legal standard for evaluating whether § 922(g)(9)
burdens the liberty interest so deeply as to require even justification.
In other words, this court is saying that the FOP failed to introduce evidence supporting the claim that the Lautenberg Amendment infringes a police officer's right ("liberty interest", which probably results from case law more than actual Constitutional law) to pursue a career. There's not much to disagree with here. Personal decisions to commit crimes have consequences, often including the inability to continue in an established career. People with felony convictions (outside law enforcement, anyway!) usually have a hard time finding work, and this is rightly seen as a consequence of their choices rather than an infringement on their "liberty interest".
Accordingly we turn directly to the claim arising from the Second Amendment.
First we note that on appeal FOP also raises an independent Second Amendment
claim. But as it did not do so in the district court1we do not address it in that form. We must confess, however,
that we are mystified by the decision to advance a substantive due process
claim based on an explicit Second Amendment right in preference to a simple
assertion of the explicit right itself. It is not apparent how a claim
might be strengthened by being tucked into the catch-all of substantive
I suspect that the FOP was not seeking to strengthen their claim by wrapping it in substantive due process, but was rather seeking to prevent their case from overturning firearms laws generally. They want their members to have firearms rights without impacting the ability of their members to confiscate firearms from felons or domestic violence abusers. Don't forget that the law in question applies to restraining orders, often issued routinely for divorce cases and the like.
If police officers are subjected to a restraining order that bars their possession of firearms, they can't do their job. That's the liberty interest. But an ordinary citizen who is subject to such an order would not have the "liberty interest" of pursuing a career infringed unless he happened to work in firearms. The FOP here is just protecting their own by working within a more convoluted framework.
Now, that may be giving them more credit than they deserve, since they did raise the Second Amendment directly in their appeal. However, since they did not do so in the lower court, the appellate court ignores the direct claim and focuses on the indirect "substantive due process" claim. So it might have been a simple mistake by the FOP.
In any event, the claim obviously requires us to consider the Second
Amendment right, on which the Supreme Court's guidance has been notoriously
scant. The government argues that FOP's claim fails because FOP has not
"alleg[ed], much less prov[en], that section 922(g)(9) has any relationship
to the 'preservation or efficiency of a well regulated militia.' "
Gov't Br. at 35 (quoting United States v. Miller, 307 U.S. 174,
178 (1939)). Since Miller dealt with Congress's authority to prohibit
ownership of short-barreled shotguns, FOP could have challenged the test's
applicability by arguing that it serves only to separate weapons covered
by the amendment from uncovered weapons. It did not do so, and we thus
assume the test's applicability.
This is one of a very, very few decisions I have read that correctly interperts US v Miller. The court deserves credit for that. More importantly, in this case the application of the Miller test is binding precedent within the same circuit.
But we are not altogether clear what kind of "relationship"--or,
to quote Miller more precisely, "reasonable relationship,"
id.--is called for here. This Miller test appears in some sense
to invert the commercial speech test, which requires the government to
show that legislation restricting such speech bears a reasonable relationship
to some "legitimate" or "substantial" goal. See,
e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
416 (1993); Board of Trustees v. Fox, 492 U.S. 469, 480 (1989).
We suppose Miller would be met by evidence supporting a finding
that the disputed rule would materially impair the effectiveness of a militia,
though perhaps some other showing could suffice. We need not fix the exact
form of the required relationship, however, because FOP has presented no
evidence on the matter at all.
This is a little concerning. I don't recall any evidence on the record in Parker concerning the suitability of any of the weapons desired for militia use. Admittedly the District's wide-ranging ban certainly infringes such weapons, but Miller failed precisely because such evidence was not within judicial notice -- that is, the justices could not assume it without evidence.
I'll have to remember to go back and look for such evidence.
Instead FOP simply argues that, in "most" states, police officers
can be called into service as militia members. But none of the nine states'
provisions it cites appears to make police officers any more susceptible
to such service than ordinary citizens (or in some cases, than males between
the ages of 17 and 45). In any event, § 922(g)(9) does not hinder
the militia service of all police officers, only of domestic violence misdemeanants
whose convictions have not been expunged, etc. FOP never indicates how
restrictions on the latter, relevant class would have a material impact
on the militia.
In all honesty excluding those convicted of, or subject to restraining orders concerning, crimes of domestic violence would probably not significantly impact the militia. It is an individual disability that requires court action to invoke, not a universal one. This is certainly not the case in DC, where the prohibition is universal.
There is also a more subtle point in play here; the analysis is applied with the assumption that the individual police officers have Second Amendment rights linked to a militia and that militia service is very broad (eg, males aged 17 to 45 years). They are implicitly assumed to have rights derived from the Second as unorganized militia members despite no presentation of evidence that police officers are more likely to be called into militia service than ordinary citizens otherwise considered members.
It looks to me like we have a legitimate, individual-rights precedent here, albeit implied rather than explicit.
The downside is that the FOP lost this case; they did not get the requested immunity from the Lautenberg Amendment and remain barred from possession of firearms following domestic violence convictions or restraining orders. The tests applied to reach that decision are still precedential, however, and will almost certainly reach a different result if applied to the facts of the Parker case.
Fraternal Order of Police I (wrt the Second Amendment)
The Parker brief I have been analyzing cites two related cases, the Fraternal Order of Police v United States (FOP I, FOP II). Their cite of these cases is something new and I will thus examine each case in detail as it affects the 2nd Amendment. Some background: in 1996 Congress passed the Lautenberg Amendment which bars firearms possession from individuals convicted of a domestic violence misdemeanor or those subject to a domestic violence restraining order.
FOP I pretty much explicitly avoids the 2nd Amendment, deciding the case on equal protection grounds:
 Equal protection analysis is substantially identical under the
Fifth Amendment and the Fourteenth. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 227 (1995). Usually the outcome turns largely on the level
of scrutiny to be applied. If a law neither burdens a fundamental right
nor targets a suspect class, courts must uphold the legislative classification
so long as it bears a rational relation to some legitimate end. See, e.g.,
Heller v. Doe, 509 U.S. 312, 319 (1993). Laws that fall into either of
the above categories, however, are subjected to strict scrutiny. See, e.g.,
City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40 (1985)
(discussing tiers of scrutiny). The Order concedes that persons convicted
of domestic violence misdemeanors are not a suspect class but asserts that
the 1996 amendments impinge on a fundamental right - the right to bear
arms guaranteed by the Second Amendment. The government responds that the
Second Amendment right does not belong to individuals, but exists only
in relation to "the preservation or efficiency of a well regulated militia,"
United States v. Miller, 307 U.S. 174, 178 (1939), and that the 1996 amendments
do not restrict state militias.
This argument is about whether the 2nd Amendment applies to a police officer. The government makes the usual militia argument, equating the militia with the National Guard or Reserve forces. They cite US v Miller for this proposition, in my opinion incorrectly. If the police officers are considered militia members, then the equal protection test would have to apply the strict scrutiny standard to determine the constitutionality of the law in question. If they are not militia members, then the rational basis test applies.
 Analysis of the character of the Second Amendment right has recently
burgeoned. See, e.g., Akhil Reed Amar, The Bill of Rights 257-67 (1998);
David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying
Second Amendment, 101 Yale L.J. 551, 572-86 (1991); compare Hickman v.
Block, 81 F.3d 98, 101-03 (9th Cir. 1996), with United States v. Gomez,
92 F.3d 770, 774 n. 7 (9th Cir. 1996). Despite the intriguing questions
raised, we will not attempt to resolve the status of the Second Amendment
right, for we find that the 1996 amendments fall into the narrow class
of provisions that fail even the most permissive, "rational basis," review.
See, e.g., City of Cleburne, 473 U.S. 432.
Here, the court ducks the 2nd Amendment question. It concludes that it doesn't matter whether the police officers have 2nd Amendment rights or not, because the law in question would fail the rational basis test.
 Section 925 extends the "public interest" exception to all sources
of the firearm disability except domestic violence misdemeanors. It thus
allows the states to arm police officers convicted of violent felonies,
and even crimes of domestic violence so long as those crimes are felonies,
while withholding this privilege with respect to domestic violence misdemeanors.
No reason is offered for imposing the heavier disability on the lighter
offense. The government's brief argues that a special focus on domestic
violence as compared to other misdemeanors is rational, and we agree. The defect is the neglect of more severe crimes
of domestic violence, about which the government says nothing.
There is additional analysis supporting this conclusion, explaining why the domestic violence prohibition on police officers specifically (but not on the general population) fails the rational basis test. It applies to police officers specifically because there are exceptions for arming felons "in the public interest" but not for arming those subject to the Lautenberg provisions "in the public interest".
Personally, I don't find enlisting felons as police officers in the public interest at all, but that's a different argument.
See also FOP II, which does reach the Second Amendment claims.
According to Dave Kopel at The Volokh Conspiracy, the UN conference on "small arms" is ending without a final treaty and without any follow-up conferences scheduled... primarily because the US ambassador to the UN refused to back down.
As he puts it, the outcome would have been very different had Bush not been in office. A Democratic presidential appointee would almost certainly not have had the spine to resist.
There's been some excitement over at SaysUncle's place. It seems one of his friends was raided by the BATFE. There was quite a bit of confusion on all sides, and as a result, it's useful to consider the sequence of events:
Scoot, the accused, breaks up with his ex.
The ex calls the police, telling them that Scoot has "machineguns".
The ATF get excited and conduct a raid. They forget to bring a search warrant, but get one a few hours later.
Searching the house, they don't find any machineguns.
They DO find lots of documentation about firearms, along with "assorted gun parts" and machine tools.
They don't find any machinegun parts, but they talk to Scoot's current girlfriend about how she "knows he was making machineguns, right?"
Finally, after all the dancing around, Scoot is apparantly charged with being a felon in possession.
We all know that being a felon in possession of a firearm is a big no-no, and that's the impression that will be left in most minds after reading this story... that is, that the BATFE is actively knocking on doors and searching homes looking for violent criminals in possession of firearms. Perhaps not quite door-to-door but not far off and only a tip away. Very scary for the violent criminals illegally possessing firearms.
But that's not what really happened.
What really happened was that someone was living their life, to all my knowledge peacefully, and because someone they married got angry, the government will now ruin their life.
The BATFE did not arrive because Scoot had committed a violent crime; nor because he was planning one; nor because he was enabling others to commit violent crimes. They showed up because an ex-wife wanted to ruin his life, and was willing to tell lies (or, at best, speak in ignorance) in order to accomplish her goal.
They showed up without a warrant -- probably just a few minutes after she said "machineguns". They couldn't wait even two hours to get a warrant before sticking their own fancy guns in Scoot's face on the word of an angry ex-wife.
When they didn't find machineguns, they went digging. They tried to accuse him of making machineguns, but apparantly couldn't make that stick either. Finally they settled on felon-in-possession; unfortunately that part of the story appears to be accurate. Scoot seems to be a convicted felon, a fact that a law enforcement officer should be able to determine readily enough. It seems likely to stick because it seems to be true... but it's important to remember that it was the last thing on the list.
I don't know the man, and I don't know if he could be trusted with a gun. I do know that this isn't about his criminal history, or any of his actions relating to firearms, or any real and immediate threat posed to public safety. It's about a failed relationship and a woman willing to hurt a man she once loved.
The government isn't anything more than a weapon in her hand.
The period of time a law-abiding gun purchaser must wait before taking possession of their legally-purchased firearm.
Victimization period, noun:
The period of time between the criminal obtaining their firearm illegally,
before the victim can obtain their own firearm to use in self-defense, and the death of the victim.
One of the favorite policies of those seeking more gun control is the
concept of a mandatory waiting period, also called a "cooling off"
period, on firearms sales. The theory is, an honest citizen goes
through some event that enrages them -- divorces are commonly cited --
and goes out to buy a gun. The dealer requires that the purchaser wait
a few days (usually 3) before actually taking possession of the gun.
The honest citizen thinks about his actions during that time and
decides not to commit the murder.
There are a lot of problems with this theory, but they all boil down
to one simple fact: criminals do not obey laws. Nearly 80% of murderers
are already legally disqualified from owning firearms (before they
committed their murder), so they could not acquire a firearm from a gun
dealer anyway; no waiting period will be enforced by the local drug
dealer who has a handgun business on the side. That same statistic
shows that the "honest citizen" who suddenly snaps and buys a commit to
murder someone close to him is false; criminals commit murders, not
honest citizens, and they don't buy guns legally to do it.
No statistics are available on whether criminals buy guns for a
specific crime, or if they simply have a gun and make use of it; even
so, no one contends that illegal guns are hard to acquire, or that a
criminal is habitually disarmed. Whether acquired illegally or already
owned, no criminal will have trouble putting his hands on a handgun if
he needs one.
That's why a waiting period is really a victimization period.
The criminal will have absolutely no trouble putting their hands on a firearm. But the honest citizen is a different matter. Every
second that the honest citizen is without a gun due to a waiting period
law is a second that their life is forfeit to any criminal who choses
to take it.
Let's look at an example, Honest Holly and Crooked Chris. They were
happily married until Crooked Chris started doing drugs and abusing
Honest Holly; as soon as the abuse got bad enough, Holly gave up on
Chris and divorced him. During the proceedings, Chris becomes violent
and makes threats against her and her children. She moves into a
shelter for battered women, applies for a concealed handgun permit, and
buys a gun.
Then the dealer tells her about the waiting period. She must wait
three days to purchase a firearm. She returns to the shelter.
Crooked Chris, meanwhile, visits another gun dealer. He also gets
told about the waiting period, but rather than spend the time "cooling
down", he goes to ask his drug dealer to get him a handgun. To corrupt
a saying, ask your drug dealer for an illegal firearm and call the
police; see which one gets there first. Chris lurks outside his kid's
school (ignoring the "no guns in school" law, of course) and follows
the kid home to find his ex-wife Holly in the shelter. Then, using his
gun, he kills her and their children, then commits suicide.
Not very pleasant, is it? If only Holly had not been subject to the
victimization period, she might have saved her own life, and that of
her kids. It's not certain, of course, but it's a damn sight better
than the alternatives.
But the fact is, every hoop that the law requires an honest citizen to
jump through in order to purchase a gun legally is a hoop that denies
Holly the right to defend herself. Every single one.
Holly doesn't need a cooling-off period. She's scared for her very
life. Like most gun owners, she doesn't ever want to shoot anyone. In
fact, if she's like most women, she probably didn't ever think of
owning a gun and would much rather not. Maybe she was even a supporter
of gun control before her life was turned upside down by the criminal
she married. But none of that matters, because without a gun she is only one more statistic -- one more firearm death that will probably be used as a case for more gun control.
And that's the greatest irony of all. Each victim of the Victimization
Period will be used in the call for more gun control -- even though it
was gun control that killed them.
And Crooked Chris? In this narrative he started out an honest
citizen, because that is the only way a waiting period could have any
effect at all; background check laws would prevent a convicted criminal
from purchasing a firearm legally, allowing Chris to bypass his trip to
the gun dealer entirely, and force him to go straight to his drug
According to the Firearms Law Center, the current list of states with victimization periods is:
One of the favorite topics of the anti-gun lobby is the supposed "gun
show loophole", which somehow makes it OK for criminals to buy guns, so
long as they do it at a gun show. Sounds pretty horrifying, doesn't it?
If only it was actually true.
The fact of the matter is that there isn't a gun show loophole at
all. Gun sales are under the same laws as all other firearms sales (in
states that have not enacted tougher requirements already) -- that is,
if you are a firearms dealer you need to run a background check before
selling a gun to an individual. If you are NOT a firearms dealer, you
can make a private sale to someone else without the need to conduct a
background check. But according to federal law, you must be a dealer if you make a living selling firearms.
When the anti-gun lobby speaks of the "gun show loophole", what they are really talking about are private sales.
In the United States, it is still legal to own property -- firearms --
and sell that property without government permission. If you want to
sell a gun, you can sell it to a dealer, or you can try to find a buyer
yourself -- perhaps a friend of yours, or a friend of a friend, or by
taking an ad out in the local paper... or by taking the firearm to a
Since private citizens do NOT have access to the NICS instant-check
system brought into being by the Brady Bill, there is no way for them
to conduct a background check for a private sale. Thus, they can sell
without that check.
Otherwise, they couldn't sell at all, or they would be forced to pay a
tax to run a check through a licensed dealer -- surely an
overly-restrictive process for most private sales.
Part of the confusion stems from the number of private sellers at
gun shows. There are often quite a few, and sometimes they have a large
number of firearms for sale. Some of these individuals may appear to
border on being firearms dealers. Why are they making private sales
rather than obtaining dealer status?
Because the government is discouraging them from doing exactly that.
It used to be fairly easy (if invasive) to become a firearms dealer.
You got yourself fingerprinted, possibly talked to your local police,
and filled out some forms for the BATF. That gave you legal license to
act as a firearms dealer (and the legal responsibility to conduct
background checks). However, in recent years, the BATF has begun a
campaign of harassment intended to reduce the number of licensed
dealers, and this campaign has targetted first and foremost those
licensed dealers without a formal storefront -- ie, those individuals
who registered as dealers because they did a large amount of firearms
business, but who did not have it as a full-time occupation.
These were the individuals spending a lot of time buying and selling
at gun shows -- the "almost dealers" we see today in many cases were dealers before the BATF made it too troublesome to retain that status for something not a full-time occupation.
Sure, there are others making private sales. These are mostly people
selling off their gun collection, or that of a deceased relative, or
people selling one or two guns at a time and buying about that many
back. These people aren't selling lots of guns over time; those selling
collections reach the end of their collection and stop selling, and
those who are just interested have a low volume overall.
So if there are lots of people making private sales at gun shows...
blame the BATF. They don't have to harass people doing the right thing
by becoming dealers, even without a standard storefront for their
business. But they did, and do... and as a result, the gun show
A popular tactic for gun-control advocates is to call for laws
regulating firearms "like cars", since we all know that cars are
licensed by the government, have mandated safety inspections, a
detailed registration system, and are as popular as guns, if not even
more. This comparison as an argument for gun control is fatally flawed
when the details are examined.
First, cars are not "licenced". Drivers are "licensed" to operate
their vehicles on public roads, but are free to operate without a
license on private property. You can buy a car without presenting a
driver's license (just be sure to bring a truck or trailer to tow it
off). The proper analogy for a driver's license is a state-level
concealed-carry permit, which is the corresponding "public operation"
of a firearm. Under this system, a concealed carry license could be had
with no training needed by passing a simple test -- a test so simple,
in fact, that practically anyone can pass, whether they can drive or
not. Driver's licenses from any 1 state are honored in all 50 states,
without worries about reciprocity agreements. So if you license guns
like cars, you are actually advocating fewer restrictions on guns.
Second, cars are subject to stringent safety standards mandated by
the government. Surprise, so are firearms! The government maintains a
licensing system for manufacturers of firearms -- and dealers as well,
which you don't see for cars. However, compared to cars (which produce
over 30,000 annual accidental fatalities), firearms are much less dangerous; accidental deaths from firearms are very low, and the numbers have consistently dropped every year
for quite some time. Firearms are not magically exempted from product
liability, and if there were serious safety problems, lawsuits
(non-frivolous ones, that is) would be rampant.
Third, despite speed limits nationally being around 65 mph, car
manufacturers continually build cars capable of exceeding this limit --
often by a factor of two or even three! Yes, you can buy a car today
that is capable of achieving 3 times the national speed limit (195mph).
Or even higher. What's the appropriate analogy? Just try to buy a gun
that exceeds the "bullet speed limit" -- fully-automatic firearms are heavily
regulated. Or do you want to be fingerprinted the next time you go to
buy a Corvette? Better remember to get permission from your local
police officers, too. And they might just ask if you are planning on
In fact, it's more constructive to examine the ways that guns differ from cars in regulatory terms.
You don't need to pass a background check to buy a car.
You can buy as many cars per month as you can afford.
There are no safe storage laws for your car.
I don't need a government license to manufacture a car, or modify my own.
Mistakes with your car result in minor fines that can continue
for years before losing your driver's license is a serious possibility.
The press has been making a lot of noise about a bill that recently
passed the House. The bill would make explicit the long-understood
principle that manufacturers are not legally liable for the criminal
misuse of their legal products. The only thing about this bill that
should surprise anyone is that Congress felt the need to make the
principle explicit. After all, we all recognize that you can't sue a
brewery because someone got drunk, tried to drive home, and killed
someone in an accident. When criminal misuse begins, legal liability
ends -- in fact, legal liability often ends well before the point of
So why does Congress feel the need to restate this principle? Well, it
seems that a certain group of people think that a political hot-button
issue is enough to override the usual principles of law. They think
that a pitiful enough victim will melt the heart of a judge enough to
allow their claims to pass. And if it doesn't, well, there's always
another victim, another judge, another jurisdiction.
Because there are lots of victims, but there is only a very small group
behind the lawsuits. Yes, that's lawsuits -- plural. It's not a single
abusive lawsuit, it is a systematic pattern of abuse. Not incidentally, exactly the sort of problem that a change in the law is meant to correct.
When I say a "certain group of people", I'm not referring to some
nebulous grouping on the level of "people who like black cats". No, I'm
referring to organizations. Perhaps 5-10 different organizations,
counting a number of city governments and an approximately equal number
of political organizations.
Oh, didn't I mention that? These suits are all brought by non-profit political lobbying groups,
often in collaboration with city governments or puppet victims as the
official plaintiffs. But these political organizations are paying the
legal costs for the suits. Makes you go "hmm", doesn't it?
The truth is, these political organizations are trying to use the
courts to force their targeted organizations to do business differently
-- or not at all. They want court settlements or a judge's
court-ordered sentence, but if they can't get either, they'll settle
for suing their targets over and over and over again until they go
bankrupt. After all, it's a lot easier and cheaper to file a lawsuit
than it is to defend against one.
And who knows? If they keep trying, maybe they'll eventually get a
judge willing to be swayed by his personal biases long enough to get a
verdict in their favor. But that's not really a necessary part of their
strategy; driving their targets out of business would do just fine.
And we're not talking about a safety issue here. These aren't SUVs
with faulty tires and a tendency to roll over and play dead. We're
talking about ordinary household items being used to commit crimes and
then blaming the manufacturer of the product -- sort of like driving
drunk, killing someone, and then suing the bar that sold you the beer
along with the company that brewed and bottled it.
By this time you're probably not surprised that these groups have
chosen this particular tactic because they can't get their programs
through the legislature. They've been trying for about 70 years, and
until recently they've had some amount of success. The past few years
have seen their efforts dry up, though, and even in many places get
rolled back. They're nervous. They're afraid. They're realizing that
the American people really, fundamentally disagree with the principles
they have chosen to dedicate their lives to supporting. And so they
grasp at straws, and their allies in the media help them out by
spinning the issue the way that these special-interest groups want it
So what's the issue here?
If this surprises you, or if you're familiar with the issue but
haven't heard it described this way before, maybe it's time you asked
(Note: This is an older article that I am reposting to get it into the archives properly. The bill I mentioned was the first version of the Protection of Lawful Commerce in Arms Act, which has since become law.)
A recent article on the website http://jointogether.org/
proposes to examine the similarities between two researchers on the
topic of firearms and the results of allegations concerning their
personal behavior and the validity of their work. It makes the claim
that certain similarities exist between the case of Michael Bellesiles,
an anti-gun historian and author of the controversial Arming America, and the case of John Lott, an economist and author of More Guns, Less Crime and The Bias Against Guns.
In both cases, allegations about improper behavior were made, and the
JoinTogether organization wishes to claim their subsequent treatment
differed -- presumably the result of their differing views on gun
Who is John Lott?
John Lott is an economist who has studied the intersection of firearms and crime extensively, including two books on the topic (More Guns, Less Crime, and The Bias Against Guns).
He is probably the most-cited authority on the issue. His opinion
pieces on the subject are published in major newspapers; he freely
shares his data with anyone who cares to ask for it. While a few
researchers have challenged some of his conclusions, none have ever
credibly accused him of falsifying data, and his responses to his
critics are well-reasoned. In short, his academic credentials are
impeccable. Anti-gun forces have been searching for some way to attack
or discredit his work for years, and failed to find any real basis in
his research itself. Unfortunately, they have found other grounds.
The first problem originated some years ago, when Lott claims to
have conducted a poll on a gun-related issue, which he then cited in
several editorials and interviews. When questioned, he was unable to produce the data
in support of his poll; he claimed the data had been lost in a computer
crash. He has been unable to produce clear evidence that the poll ever
took place, but has posted evidence supporting that claim. Since that time, he has redone the poll at his own expense and produced substantially the same results.
Finally, the article quotes Chris McGrath of "Handgun-Free America" saying that Lott's The Bias Against Guns contains unsubstantiated claims, specifically regarding:
claims that one-third of the post-1997 public school shootings had been stopped by armed citizens before police could arrive
claims that concealed-carry permit holders "virtually never" commit crimes
McGrath admits that Lott provided page numbers from his book to support
the first claim, but asserts that the page numbers cited don't actually
support it. I don't have Lott's book available right now, so cannot
verify the claim either way (I will post an update when I can do so).
But I can say that McGrath is wrong about his second accusation;
"virtually never" does not mean "never", so a single counterexample is
not sufficient to disprove it. Concealed-carry holders as a group
commit far fewer crimes than the general population; for example, in
Florida, concealed-carry permit holders have a crime rate of .02% (2
hundredths of a percent), or 2 crimes committed per 10,000 permit
holders. That's "virtually never" in anyone's book.
And in late-breaking news, another controversy has appeared. This one, if accurate, does in fact cast doubt on Lott's results and integrity. Whether the accusations are accurate is still in question; Lott has posted responses here and here.
Who is Michael Bellesiles?
Michael Bellesiles was a history professor who wrote the controversial book Arming America,
claiming that an examination of the historical evidence revealed that
early Americans had far fewer guns than is generally thought. His
research included studies of probate records (ie, inventories of
possessions, typically performed after the owner dies in the course of
executing a will), anecdotal accounts from the period, and similar
sources. Upon initial publication, his book received rave reviews from
the press, and was awarded the prestigious Bancroft Prize.
Shortly after the publication of his work, questions concerning its
accuracy in certain areas begin to arise. Those questions originated
primarily from independent individuals investing their personal time to
check the sources Bellesiles was citing, and concerned the core of
Bellesiles' work in several different areas. The most in-depth
refutation of Bellesiles' work comes from Clayton Cramer.
The most significant allegations concerned the probate records.
Bellesiles claimed to have spent years visiting various archives and
libraries around the country, taking painstaking handwritten notes from
the probate and court records by means of "tick marks" on a series of
notepads. A variety of problems arose from this:
Bellesiles, when asked to provide his data, claimed to have lost
the records. After several different excuses, he finally settled on
claiming that the records were destroyed during a flood of his offices.
While the flood is a verified event, university officials indicated
that very little actual damage was done.
Independent individuals seeking to duplicate his results from the same original sources found huge errors,
both misreporting firearms as "old or broken" when there was no such
indication, and in simply miscounting the numbers listed. While there
is room for difference in methods and interpretation from such
searches, the errors found were far more substantial than could be
explained in that manner, and were universally in favor of Bellesiles' premise.
In at least one case, Bellesiles claimed to have examined
probate records that do not exist. After this was pointed out, he made
several different attempts to correct his citation by changing the
location of the records he had examined. After Bellesiles finally
settled on the location of the records he claimed to have examined,
publicizing their "rediscovery" to answer his critics, independent
investigators contacted the staff of the archive. There was no record of Bellesiles' claimed first visit, and the records at that location did not match Bellesiles' description of them.
In cases where primary sources were cited, investigations
uncovered several mis-stated quotations. Taken individually these could
easily be honest mistakes; taken together, and the alterations
universally supporting Bellesiles' premise, they are vulnerable to
accusations of deliberate misrepresentation.
Throughout the length of the controversy, Bellesiles repeatedly
denied almost all allegations (to his credit, a subsequent printing of
the book did contain some minor corrections). He changed his story
about his missing data (the compiled probate records) in particular
several times, and focused his defenses of the work primarily on
attacking his critics.
After almost two years of non-stop criticism from a number of separate
sources, and increasingly poor defenses from the author himself, his
employer (Emory University) opened an investigation into the
accusations by a board of independent investigations. The report from that investigation indicated that although substantial errors in citations and evidence were found, there was insufficient evidence to prove deliberate misrepresentation in the areas they were asked to investigate.
In other words, the investigative committee stopped a hair short of
accusing a prize-winning professor of history and nationally-known
author of deliberate fraud. Reading between the lines, it is clear that
they did so not because they thought Bellesiles was innocent of the
charge, but rather that they felt they could not prove it. As the
evidence (Bellesiles' records) had been destroyed, and the question of
deliberate fraud versus inadvertent misrepresentation is a matter of
intent and notoriously hard to prove in borderline cases, the committee
was careful to stick to accusations it could support rather than
engaging in speculation on Bellesiles' mental state.
Even without an accusation of deliberate fraud, the report amounted
to damning evidence of incompetence. Shortly following the publication
of the report, Bellesiles resigned, presumably under pressure from the
university. While his letter of resignation, also published, did not
admit wrongdoing, it also did not attempt to address any of the
accusations in the report.
Telling the difference
So what is the difference between the cases? Well, the difference in
outcomes is obvious; Bellesiles resigned his position and has had his
work thoroughly discredited. Lott has been attacked by gun control
lobbying groups, but has kept his job, continued to publish articles in
newspapers concerning the implications of his research, and in general
has remained a player in the debate.
But is this difference valid? The Join Together article seems to be
suggesting it is not; in other words, that Lott should be subject to
penalties similar to those imposed upon Bellesiles. The NRA is
mentioned several times throughout the article as leading the attacks
upon that historian, giving the (false) impression that it was behind
most of the criticism and somehow applied political pressure to force a
negative outcome. This is supposed to simultaneously vindicate
Bellesiles as a victim of the gun lobby, discredit Lott by continuing
to publicize the accusations, and impugn the honesty of those who
support gun rights by suggesting their criticism of Bellesiles was
politically motivated rather than based on the merits of the claims.
The problem with that premise is simple: it's complete nonsense.
The differences between the cases of Lott and Bellesiles derive from
fundamental differences in the accusations, and are then magnified by
the response to those allegations. The fact is, the allegations against
Bellesiles came from a multitude of sources, independently verified
several times over, and concerned the core of his work. Bellesiles'
responses to the allegations have consistently been inadequate.
Moreover, rather than a single error or even a few, multiple errors
were uncovered, indicating a pattern of at best sloppy record-keeping
-- and at worst, deliberate deception. Bellesiles is open to the
accusation of deliberate fraud because his errors are both systemic and always seemed to occur in the same direction;
that is, misquotes were always misquoted in ways that favored his
premise, guns in probate records were always undercounted rather than
overcounted, and so on.
In short, while Bellesiles' errors were systemic, suggestive of bias in
their direction, and undermined the foundations of his premise, Lott's
missing survey represents a tiny fraction of the data he used for his
books. It's removal from consideration in no way damages the core
premise of his work, and even his critics do not claim otherwise.
In fact, Lott's critics are generally content to debate interpretation
of the data, rather than challenging the data itself or the validity of
his methods; indeed, many of those critics are dependent upon Lott's
own data for their criticisms, even while they refuse to provide their own.
The secondary accusation regarding Lott's creation of an internet
persona to post positive reviews about his work, while not particularly
flattering, does not in any way impugn the validity of the work itself.
Nor does Lott's response to these accusations suggest an ongoing
credibility or ethical problem. (In an recent and interesting twist,
the Emory Wheel has published a story claiming Bellesiles invented his own internet persona to defend his work; as with the Lott case, this is hardly flattering but not actionable fraud).
That lack of a solid academic basis for complaint about Lott is
sufficient to explain the difference in treatment, but there is another
factor, perhaps equally important. That factor is the difference in
response to criticism.
Lott has continually faced his critics, provided them with his laboriously gathered data set for analysis, and authored substantial replies to their criticism. In cases where his behavior was less than perfect, he's admitted what he did, admitted that it was a mistake,
and explained his motives. In short, he has behaved like a credible
academic participating in a legitimate public policy debate.
Bellesiles, on the other hand, has not done so. He has refused to
participate in forums about the flaws in his work. He makes several
differing excuses concerning his inability to provide the data he used.
Upon investigation of these claims, they were found to be lacking. He
has yet to substantially reply to most of the criticisms leveled
against his work. His work has been investigated and found lacking by an impartial committee of historians, and the evidence was sufficient to warrant a resignation.
While the cases appear similar on the surface, the details differ
substantially, and from those details the difference in result is
derived. Had Bellesiles been revealed only to have used a fake identity
to promote his work, he would have been embarrassed, no doubt; but he
would not have lost his job. Had Lott failed to provide data supporting
his core premise or consistently misrepresented his results, doubtless
his own position would have been at risk. But the cases are not
identical, and we should not be surprised when the results also differ.
The controversy surrounding Bellesiles has mostly died down. Bellesiles
resigned his position at Emory, had his Bancroft Prize rescinded, and
the original publisher is no longer publishing his book. With the
exception of the article to which this is a response, there has been
little mention of him for some time now.
However, the controversy surrounding Lott continues to evolve, with
new allegations being made. Lott continues to respond to these
allegations. While I can't predict what the final outcome will be, as
events are developing even as this paper is written, there is a clear
pattern with respect to the Bellesiles case: Lott is freely providing his data and making constructive responses to critics. Bellesiles could never manage a coherent response; just excuses.
No one should expect their statements to be taken on faith. People will
check up on claims that are made to influence public policy, and they
will be able to determine whether those claims are valid or not. A
responsible advocate will have that information ready to have to
provide to his critics, even if that provides his critics with more
ammunition against him, because the search for truth is more important.
This philosophy is anathema to many advocacy organizations, primarily
because they have gotten away with deceiving the public for years,
supported in many cases by collaborators in the media who, as with
Bellesiles, find the statements of those they agree with too
comfortable a fit with their own worldview to aggressively search for
the facts. But public policy is too important for comfortable
Most people even vaguely familiar with the legal issues surrounding firearms
ownership have heard of the "Miller Case" (US v Miller, 1939) and
recognize it as the most recent Supreme Court statement relating directly to the
2nd Amendment. Those inclined to restrict firearms tend to interpret Miller
as stating that the right to own firearms is connected with the individual's
membership in a militia -- ie, they argue, the National Guard in modern times.
This argument is flawed on several levels, but primarily because it misreads
what Miller actually says.
Before delving too deeply into the case itself, some discussion of the
circumstances is warranted. The historical record indicates that Miller
was charged with owning an unregistered sawed-off shotgun. This was the
first real test of this particular gun control law, and Miller himself
may have been a somewhat unsavory character.
Despite this, he prevailed in his initial case, getting the charge
dismissed before trial on 2nd Amendment grounds. The government
appealed to the District Court, and the dismissal was upheld. The
government then appealed to the Supreme Court, which agreed to hear the
case. However, neither Miller nor his legal counsel showed up at the
Supreme Court to make their arguments. In a move that seems unusual in
retrospect, the government was allowed to make their case without the
defense present for a rebuttal.
It's hard to believe the Supreme Court would agree to hear a case
without the defendants present! Much harder to believe that that case
could go on to become one of the most important cases in modern law,
and yet on Miller alone are predicated a litany of gun control laws. If
you've already begun to suspect that the result of the Miller case was
not what we would normally term "justice", you are correct... but it
Since the Supreme Court was hearing the government's appeal of two
lower courts dismissing the firearms charges against Miller, their
decision in favor of the government merely overturned the dismissal,
permitting the trial to continue in the original court. This trial
never occurred; speculation is that Miller was dead or in prison by
this time. In any event, Miller was never brought to trial and never convicted.
While this doesn't prevent the precedent in the case from being cited,
it does weaken the case itself. Miller was given no opportunity to
press his case before the Supreme Court, nor to correct it at the lower
court, which could have changed the results. It's not a bad outcome for
him, considering he avoided conviction, but it definitely counts as a
missed opportunity for firearms rights. It also means that US v Miller
should not be read as the final word on firearms law; it was a case in
progress, never completed.
Having established that Miller is an unusual case, and a poor one to
set binding precedent with, it is worth exploring why the case is so
pervasively cited in 2nd Amendment law. The answer is simple: there is
little else to cite from the Supreme Court on the 2nd Amendment, and
there is nothing else to cite from the Supreme Court on the 2nd Amendment that supports gun control. Nothing. If you want to use Supreme Court precedent to uphold a challenged gun control law, you cite Miller -- you have nothing else.
There are a number of other Supreme Court cases that deal tangentially
with gun control (for ex, a case where a black man was denied his civil
rights, with the judge indicating that the man could arm himself if
allowed his 2nd Amendment rights; also a recent case overturning the federal "no guns near schools" law on a commerce-clause challenge) but none of them are favorable to the gun control cause. They are thus ignored.
With the background thus examined, it is now possible to examine the
Supreme Court ruling itself. The questions before the court were:
Does the 2nd Amendment protect the right to own a firearm in general?
Does the 2nd Amendment protect Miller's specific right to own a firearm?
Does the 2nd Amendment protect the particular firearm at issue?
The government argued that all three should be answered in the
negative. They claimed that Miller was not a member of a militia, and
that such membership was a requirement for protection under the 2nd;
they also claimed that the firearm in question (a short-barreled
shotgun) was not suitable for militia use.
The court itself says:
In the absence of any evidence tending to show that
possession or use of a "shotgun having a barrel of less than eighteen
inches in length" at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep and bear such an
instrument. Certainly it is not within judicial notice that this weapon
is any part of the ordinary military equipment or that its use could
contribute to the common defense.
Clearly, the court is ruling that the 2nd Amendment does not protect ("within judicial notice", which is important) this specific weapon, a short-barreled shotgun, because the court does not know that a short-barreled shotgun is a military weapon. By implication, the first two questions before the court are answered positively, and Miller as an individual is protected under the 2nd Amendment.
Miller was not a member of the national guard, though he could be
argued to be a member of the unorganized militia (defined by Congress
to be all males from 19-45 -- by modern interpretation, all males
physically capable of acting in the common defense). If militia
membership is required for 2nd Amendment protections, it is clearly a
very broad membership encompassing most of the citizenry.
So Miller is protected under the 2nd Amendment, but his weapon is
not. Why not? Well, the court says that it is not within judicial
notice that his weapon would be part of the ordinary military
equipment. The implication is that a weapon which IS part of the
ordinary military equipment would be protected -- that is,
fully-automatic assault rifles (M16s), sniper rifles, handguns,
arguably even tanks and fighter planes are part of the ordinary
The purpose for a short-barreled shotgun in those days was probably
most often related to criminals, however. Shotguns are powerful
weapons, and when sawed short, they could be concealed under a long
coat or trench coat easily. This was before the days when concealed
carry permits became popular, and a concealed firearm was often
considered a criminal firearm (at least in the mind of the public).
Thus, the court was stating "This is a firearm modified for criminal
use, and thus not protected." They stated this based on judicial
notice, which is a form of fact-finding that is significantly less
adversarial than the usual formats. Adversarial fact-finding was of
course impossible, since Miller was not represented. Had Miller been
represented, the obvious counter would be to provide facts to the court
indicating that short-barreled shotguns were part of the normal
military equipment and could contribute to the common defense. Such
weapons were used regularly in trench warfare in WWI, and demonstrating
this should not have been a problem.
Had the case gone to trial at the lower court, this would also have
provided an opportunity for Miller to present the evidence, leading to
another dismissal on the same grounds. But as noted earlier, the case
did not go back to trial at the lower court, and Miller was neither
tried nor convicted.
To summarize, the Supreme Court ruled by implication that Miller was
protected personally despite not being a member of a militia, also by
implication that weapons in the common military equipment are protected
weapons, but specifically that it did not know (within judicial notice)
that the short-barreled shotgun was a military weapon.
Yes, this is the same case regularly cited by those favoring gun
control to support bans on handguns, machine guns, and sniper rifles
(all military equipment) because the 2nd Amendment, in their theory,
protects only members of the militia (in their theory, the National
Guard) despite the fact the actual ruling said the exact opposite on those same points!
Makes you wonder, doesn't it?
(Note: This is an older article I've had around for a while, but not actually in the weblog software; it was just a standalone file. It's easier to find if I put it in with the rest.)
The statement of facts is an attempt to lay out the objective truth about what happened to result in the lawsuit. During an appeal, generally the court attempts to treat the facts as settled by the trial sort undisturbed; the appeal is for issues related to the law, and how it relates to the facts, rather than for the facts themselves. This is obviously not a hard and fast rule, as there can be quite a bit of nuance involved as to what constitutes a matter of fact and what constitutes a matter of law. For our purposes, however, there are few contested facts in this case.
At the time this litigation commenced, Plaintiff Shelly Parker resided in a high-crime Northeast Washington, D.C. neighborhood. Her anti-drug civic activism attracted threats to Parker from drug dealers interested in preserving the status quo. Parker is thus highly motivated to keep a handgun at home in the event the criminals plaguing her former neighborhood make good on their threats. JA 20-21.1
Motivation can be an important component of standing. The idea is that someone with a strong motivation to challenge a law would be more likely to engage in the prohibited conduct should the law be struck down. The idea is to prevent people from engaging in lawsuits that don't have an immediate effect on their lives; "Maybe someday I might want to own a gun" isn't a very compelling reason to strike down a law. Needing to own a gun for an urgent matter of self-defense is much more pressing. Generally courts seek to decide real cases not hypotheticals.
Defendants are comfortable entrusting Plaintiff Dick Heller with a handgun, but only while he is on duty as a District of Columbia Special Police Officer. Heller is allowed to carry a loaded handgun in defense of the federal judiciary at the Thurgood Marshall Federal Judicial Center on Capitol Hill, but when he returns to his Southeast Washington home, Defendants insist he be disarmed. Heller lawfully owns various firearms located outside the city, including handguns, which he wishes to keep at home in a functional condition. JA 22-23. Heller attempted to register a handgun for home possession, but was refused in accordance with Defendants' total prohibition on private handgun possession. JA 32.
Here we have several important components to the case. Plaintiff Heller already owns firearms; for him, once the law is overturned, simply moving those firearms into his city residence would be sufficient. Heller has also attempted to register a handgun and was refused. These two facts puts his challenge a notch or two less hypothetical than Parker's.
The fact that Heller is trusted to carry a firearm within the city for his employer is also a significant point. It makes it very difficult for the city to argue that the plaintiffs are unsuitable for handgun ownership, or that he was denied permission to register a handgun for his home due to some personal failing. He was denied because all applications are denied.
Finally, the application is itself a hedged bet: dicta in some of the Seegars decisions has suggested that, to be certain of standing, plaintiffs should attempt to register a handgun and appeal the denial. While this is probably unnecessary, it's not a bad idea to have at least once plaintiff who has tried to jump through the hoop.
A gay man, Plaintiff Tom Palmer has used a handgun to successfully defend himself against a hate crime. JA 24. Like Heller, Palmer and Plaintiff George Lyon are experienced with firearms, and each own a variety of long guns and handguns that they intend to keep inside their District of Columbia homes in a functional state. JA 24-25, 30-31. Plaintiff Tracey Ambeau intends to obtain a handgun for home defense, as a long gun would be too cumbersome for her to operate. JA 28-29.
With these plaintiffs we are hedging different bets. Ambeau is attacking the distinction made between handguns and long guns; if she is unable to effectively operate a long gun then the court cannot reasonably rule that the ban on handguns is valid because long guns are available. Palmer is someone who, like Parker, has a reasonable expectation of danger (in Palmer's case due to his sexual orientation), and that danger is if anything more likely to strike outside his home.
We are not likely to get any sort of legal carry from this lawsuit directly, since the District would undoubtedly respond to a loss by enacting the strictest law they felt would survive court challenge, but it won't hurt to try.
Lyon is probably present for his long guns. Remember, it's legal to own a (registered, strictly limited) long gun in DC; it's just not legal to have it in functional condition.
In fact, I would not be surprised to learn that between the various plaintiffs, a variety of long guns are present -- some registered, some not, some legal under the city's insane definition of "machine gun", others not. There needs to be enough variety to answer any sort of objections raised by the city, and in the event we win a victory, there may well be follow-up lawsuits planned to attack the registration requirement and strict design limitations.
Plaintiff Gillian St. Lawrence keeps a lawfully registered shotgun in her Washington, D.C. home. As required by law, the gun is not operable and would not be useful in case of need. St. Lawrence has no objection to a requirement that the gun be stored securely when not in use, but believes her intent to render the gun operable for self-defense in case of need should not make her a criminal. JA 26-27.
Here is another hedged bet. In case all the other plaintiffs are dropped for one reason or another, St. Lawrence is someone who has jumped through all the hoops to purchase and register a long gun. Her only complaint is the requirement that the firearm remain inoperable. This plaintiff allows the court to leave the handgun ban intact, while still ruling favorably on the 2nd Amendment and the right to keep and bear arms for self-defense.
The important thing to remember here is that the object is to produce a favorable ruling on the right to keep and bear arms from the Supreme Court. The details of how far such a right protects a gun owner can, and probably will, be hashed out in subsequent lawsuits and legislative activity. Overturning the requirement to maintain legally-owned long arms in a non-functional state based on a 2nd Amendment right would be a step forward, no matter how narrowly crafted the decision, and it's better to offer the court an opportunity for a narrowly-crafted solution than to expect a complete reversal of course all at once.
Having established who the plaintiffs are, and what they would like to do, the next step is to spell out the laws being challenged:
Plaintiffs have good reason to fear arrest, prosecution, incarceration, and fine should they act on their sincere desire to possess functional firearms within their homes. D.C. Code § 7-2502.01(a) provides that "no person or organization in the District shall possess or control any firearm, unless the person or organization holds a valid registration certificate for the firearm." Although registration certificates are available for certain long guns, D.C. Code § 7-2502.02(a) provides in pertinent part, "A registration certificate shall not be issued for a . . . (4) Pistol not validly registered to the current registrant in the District prior to September 24, 1976." "'Pistol' means any firearm originally designed to be fired by use of a single hand." D.C. Code § 7-2501.01(12). Defendants thereby maintain a complete ban on the home possession of handguns not registered prior to September 24, 1976.
This is, of course, the handgun ban. Notice how the law itself is spelled out along with its consequences.
D.C. Code § 7-2507.02 provides in pertinent part: [E]ach registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.
Accordingly, Defendants prohibit the possession and use of lawfully owned firearms for self-defense within the home, even in instances when armed self defense would be lawful by other means under District of Columbia law.
Here, again, we have the same story. State the law, spell out the consequence and how it interferes with the desired behaviors of your plaintiff. In this case we are specifically targeting the law's lack of an exception or affirmative defense for cases of self-defense. The definition allows for "recreational purposes" or for possession of a functional firearm at a place of business, but does not have any allowance for self-defense use of the firearm at home.
There are other tactics that could be applied here. Rather than a direct challenge, someone who used a lawfully-owned firearm in self-defense could request that the court carve an exception to the law through case law and precedent rather than a Constitutional challenge. Or, the courts could rely on discretion and simply not charge individuals who used legally-owned firearms in self-defense.
The problem with those strategies, of course, is that they put people in a cloud of uncertainty. Prosecutors have demonstrated that they don't feel particularly merciful about the everyday citizen who violates the District's gun control laws, by (among other things) threatening the plaintiffs in this case with prosecution. The gun control laws in question are serious enough that few people not already criminals are willing to risk becoming "criminals" simply for having a self-defense firearm. Relying on the courts to carve out exceptions just isn't going to work in this case.
Even the movement of a handgun from one location to another on one's property carries a criminal penalty. Former D.C. Code § 22-3204 provided that those moving a gun within their dwelling, business, or possessed land were exempt from the licensing requirement for carrying a handgun. However, Defendants now actively enforce D.C. Code § 22-4504, which provides that carrying a handgun without a license in one's home, business, or on one's land is unlawful -- even if the handgun is legally registered. "It is common knowledge . . . that with very rare exceptions licenses to carry pistols have not been issued in the District of Columbia for many years and are virtually unobtainable." Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994).
This provides an interesting picture of how the DC legislature backed itself into this ban. First it was no new registrations; then existing registrants were prohibited from doing anything with their firearms. There is no single law that provides for a ban. Instead, the combination of a license requirement, a refusal to issue new licenses, and extreme criminal penalties for "carrying" a firearm even on your own property are used to encourage even those who had legally registered their handguns to somehow dispose of them.
A first violation of the ban on the possession of handguns or other functional firearms within the home is punishable as a misdemeanor by a fine of up to $1,000, imprisonment of up to one year, or both. D.C. Code § 7-2507.06.
Defendants concede that these laws are zealously enforced. For example, Plaintiffs filed a motion for summary judgment with thirty-four separate assertions of undisputed material facts, the last of which stated that "Defendants actively enforce D.C. Code §§ 7-2502.01(a), 7-2502.02(a)(4), 7-2507.02, and 22-4504." JA 19. Defendants did not contest this assertion. JA 33-36. The District Court was thus free to treat this as admitted. D.C. LCvR 7.1(h), 56.1. Likewise, Defendants did not dispute the fact that carry permits are unobtainable. JA 19 (undisputed material fact no. 32).
This is one of the significant differences between the Parker and Seegars cases. The Seegars case proceded forward rapidly, but lost on grounds of standing -- the courts were not convinced that the issue was sufficiently immediate. That happened, at least in part, because the government attorneys argued that the plaintiffs might not be prosecuted, and many of the parties being sued in Seegars were not even responsible for enforcing the law. No one seriously believes that the laws in question would not be enforced as a general rule, but the court cannot simply take that on faith. It must be established as part of the record.
The Parker attorneys have made significant efforts to establish a record on enforcement of the laws they are challenging. It's a large part of why their challenge survived to the merits of the case and the Seegars challenge did not.
By listing the active enforcement of the law as an assertion of fact in their summary judgment motion, the Parker attorneys made that assertion part of the case. The City's attorneys had the opportunity to contest it. In fact, the purpose of a summary judgment motion is to skip the fact-finding sections of a case and reach an immediate legal decision when facts are not in dispute; it allows the courts to proceed more rapidly when both parties agree on all relevant facts and merely want a decision as to how the law applies to those facts.
One way to defeat a motion for summary judgment is to establish that there is a dispute of asserted facts. This would not guaranty a win on matters of law (the decision could still go either way), but it shortens the case considerably. More importantly, though, once those facts are asserted they must be challenged in the response -- or the opportunity to do so is lost. By not challenging that assertion, the City essentially admitted that they enforce the law vigorously and is now blocked from disputing that at the appellate level. It may not be impossible to dispute it, but it would certainly be difficult to do so. Legal arguments almost reflexively deny or dispute such assertions on first impression whenever possible, simply to preserve the opportunity to dispute them later on (and more vigorously) if necessary.
This is a legal argument that is significantly stronger than what might be expected in a non-legal setting. Not disputing that assertion of fact in a case where standing is an issue represents a significant error on the City's part, one that the Department of Justice attorneys involved in the Seegars case would have undoubtedly prevented had they been involved. This assertion of fact represents good legal strategy from our side and a bad mistake on the City's part.
Defendants have trumpeted their vigorous enforcement of the challenged laws. For example, Defendant Mayor Williams and Police Chief Charles Ramsey held a "town hall" meeting concerning these laws, attended by Plaintiffs Parker, Heller, and St. Lawrence. Williams called the gun ban a "core law" of the city, part of its "fundamental core culture." In response to a complaint by an Advisory Neighborhood Commissioner that criminals arrested with guns quickly re-appear on the streets with new guns, Mayor Williams stated, in part, "we need tougher enforcement." JA 83, 85, 87.
This is another combination of effective moves by our side and mistakes from the other side. Politicians, being politicians, like to talk -- and that's usually a bad idea when there are lawsuits pending. Nevertheless, the mayor and police chief of DC (both of whom are named defendants) chose to hold a town meeting in order to talk about the District's firearms law. Our side leaped at the chance to attend in person, with the result that the political statements made in that meeting can be entered into the record of the case as evidence of vigorous enforcement by the City.
Police Chief Ramsey called the challenged laws "good solid laws," and warned, "if we relax our gun laws . . . we are opening the floodgates . . . for unintended [bad] consequences." Ramsey added that 2,000 guns were confiscated in each of the past two years, and his department confiscated 1,400 guns in the first half of 2005. JA 84, 86, 88.
It's one thing to say that a law is vigorously enforced, and another to have actual numbers of confiscated firearms over time. This sort of data could perhaps be obtained through other sources, but getting it for free is nothing to sneeze at! In my personal opinion, the City must really be kicking itself over that town hall meeting. But that's not their worst mistake by far.
Defendants have repeatedly confirmed that they would prosecute Plaintiffs for violation of the challenged laws if Plaintiffs were to possess handguns or other functional firearms within their homes. At oral argument, the District Court clearly expressed its understanding that Plaintiffs would be prosecuted for violating the challenged statutes:
MR. GURA: . . . We can resolve this [standing] question very easily if opposing counsel would tell us that the city has no plans to enforce this law, that my clients are free to possess firearms.
THE COURT: I can probably answer that question for the city. JA 64.
But the District Court did not have to answer the question for the city -- its counsel did:
THE COURT: . . . The city is not going to essentially grant immunity to these people. If they go out and take steps to possess firearms, they'll be prosecuted, I assume. They're not going to get a free ride because they're a plaintiff in this case, are they?
MS. MULLEN: No, and I think that Your Honor is correct, but I don't think the fact that if, in fact, they break the law and we would enforce the law that they're breaking, that that necessarily confers automatic standing on them in this case. . . JA 66-67 (emphasis added).
Plaintiffs Heller, St. Lawrence, and Lyon were present in the courtroom to hear the city's attorney confirm that they would be prosecuted were they to act on their present intention to exercise their constitutional rights.
Again with the direct threats of prosecution to the plaintiffs in person, in court, on the record, from the official legal representative for the city! The standing question really has been a comedy of errors for the defense here.
The city has already backed away from the position expressed by their counsel here; several briefs have debated the meaning of this passage as the city tried to climb out of the hole it had already dug. However, it seems pretty clear to me what it means.
Apparently believing, erroneously, that standing could be defeated so long as Plaintiffs had not yet broken the law, Defendants confirmed to this Court that "if they [Plaintiffs] break a law, the District would normally enforce it." (Def.-App. Opp. & Mot., 2/23/05, p. 3 (emphasis original).)
The Washington Times's front page carried an article about this lawsuit two days after it was filed, quoting the Mayor's official spokesperson and the District's Deputy Mayor for Public Safety and Justice. The pair reiterated Defendants' zealous commitment to enforcing the District's gun bans and expressed their belief that Plaintiffs would pose a danger to themselves and to others, including children, "which is not what we want." Jon Ward, "Residents Challenge District's Gun Ban," Washington Times, February 12, 2003, p. A1.
Readers may recall that these newspaper articles were a minor issue in the briefs at the lower court, when the City wanted those articles struck from the record as hearsay. They failed and those articles are still available for use in the appeal.
The side issue of the City claiming that plaintiffs be dangerous to themselves and to others, including children, is just another example of how silly the arguments against gun ownership are. There is no evidence that gun control laws make anyone safer. Including children.
Taken together, the Defendants' in-court threats (both verbal and written), that they would prosecute Plaintiffs for violating the laws; their summary judgment admissions regarding their zealous enforcement of the challenged laws; and the various proclamations to same effect communicated to Plaintiffs and others by the District's Mayor, Deputy Mayor, Police Chief, and Spokesperson, strongly validate and reinforce Plaintiffs' "actual and well founded fear that the law would be enforced against them" should they choose to exercise what they believe are their constitutional rights. Virginia v. Am. Booksellers' Ass'n, 484 U.S. 383, 393 (1988).
... and those, ladies and gentlemen of the audience, are the facts of the case. We'll see what the other side chooses to dispute, if anything.
The case cited, Virginia v. Am. Booksellers' Ass'n, 484 U.S. 383, 393 (1988) (sorry, I couldn't find a link quickly), is a widely-cited First-Amendment case, usually used for the principle that the harm resulting from a regulation may occur in the form of self-censorship rather than actual prosecution. It is probably intended to reinforce the point that actual prosecution is not necessary in order to establish standing to challenge a law. The difficulty comes from the fact that the 1st Amendment is often treated with more deference than the 2nd in the courts, so this citation is not necessarily dispositive. The defense will undoubtedly cite some 2nd Amendment cases in response.