Seegars v Ashcroft: The Brief of the NRA

Another unpostable document, this one 20 pages. It's surprising that the plaintiffs have taken less space to make their arguments than all other parties and amici in the case. Just another factor that makes me think that maybe the NRA is hoping to lose the case.

Another unpostable document, this one 20 pages. It's surprising that the plaintiffs have taken less space to make their arguments than all other parties and amici in the case. Just another factor that makes me think that maybe the NRA is hoping to lose the case.

Halbrook has some interesting arguments that show up here for the first time in the case as far as I can tell. It's a much better brief than the arguments in his complaint. This is not unexpected, according to my theory of the case, as he was expecting to lose on standing issues at the District Court. Once the District Court reached the merits of the 2nd Amendment unfavorably, however, he must argue more in earnest in hopes of convincing the appeals court to undo some of the damage.

Also consistent with this theory, Halbrook's arguments on the standing issue remain weak. I suspect his optimal outcome at this point would be for the District Court to rule that the whole case should have been dismissed for lack of standing, thus overturning the 2nd Amendment portions of the ruling, or else to moderate that ruling. Halbrook basically argues that the plaintiffs are forced to choose between vulnerability to criminals and violating the law; the problem is that they ignored the third option (to attempt to register their firearms and pursue that process).

It's not inconceivable that the court would agree with his arguments and grant standing, but I suspect the appeals court will prefer to defer to the legislative process in this case. Quite simply, it lets them duck the issue.

Hailes shotgun is dealt with separately and more convincingly. Because we are in the Appeals Court rather than the District Court at this point, I think it would be too late for Hailes to file a declaration indicating that she had in the past removed her trigger lock from her shotgun in anticipation of having to use it in self defense. I have little doubt in my mind that she has done so, and it should remove any remaining question of standing.

Halbrook proceeds to examine the DC Code and it's relationship with the authorizing legislation passed by Congress. There's not really much of interest here. There can be little debate that the District's regulations are, in fact, unnecessary, unusual, and unreasonable. The question is whether the Home Rule legislation in 1973 is the ruling law, or if the earlier law (with the "necessary, usual, reasonable" trifecta) remains binding. That sort of legal minutea belongs to experts. Suffice it to say that a plausible argument is made.

The case dealing with the Civil Rights statutes (42 USC 1981) basically boils down to argument by implication. There are explicit statements in the legislation that it was intended to protect "the full and equal benefit of all laws and proceedings for the security of person and property"; that's a strong implication that 2nd Amendment rights were protected by the legislation as well. The only problem is that white citizens living in the District do not enjoy firearms rights any greater than black citizens living in the District. Certainly this condition violates their civil rights, but it appears to do so equally and without discrimination in the letter of the law.

The letter of the law is not the only way to challenge a statute under civil rights law. Challenges can also be brought on an "as applied" basis, with the idea being that police and prosecutors can apply a law in a discriminatory fashion even if it is written fairly. For example, if no caucasians are ever charged with carrying a concealed firearm, despite evidence that they do so, you can challenge the law to get it struck down based on the abuse of police or prosecutors. Another avenue is to demonstrate racial motivations behind the enactment of the law, even if those motivations are not explicit in the text.

The problem with making those claims in Seegars is that they need to be supported by actual evidence. I haven't seen any references to such evidence in the briefs, although it could have been filed as an appendix and I just happened to miss the reference. In all honesty, though, I don't think it's there.

So what this argument comes down to is whether the civil rights legislation in question prohibits non-discriminatory violations of civil rights, and whether the possession and use of a firearm in self-defense is such a protected civil right. There are indications of Congressional intent along those lines, but any judge willing to "interpert" the 2nd Amendment out of existance will not blink at doing the same to civil rights legislation when the civil rights involved are firearms rights. This claim will, I think, be determined by the 2nd Amendment claims.

And, finally, the meat of the issue: the 2nd Amendment arguments. Halbrook notes that that amendment does not delegate any power to the states. He attacks several of the DC quotations as either dicta (non-binding language in a court ruling) or simply failing to address the right to keep and bear arms, instead merely expressing concern over the militia. He notes that the government brief is ignoring the fact that "the people" is a term of art with consistent usage, preferring to translate "the people" into "the militia" and from there into the National Guard. Halbrook does not miss the point that the National Guard is actually a component of the armed forces when called up by the federal government, and not a part of the militia. I seem to recall there is a statute that explicitly defines "the militia" as excluding the members of the National Guard.

Halbrook discusses US v Miller fairly well, covering the point that the Supreme Court remanded for further proceedings, to determine whether the short-barrelled shotgun Miller possessed had military utility, rather than overturning the case or finding that the shotgun had no militia nexus. And he is careful not to make the same mistake as in Miller; he provides the evidence that a handgun is a arm in current use with military utility.

Some additional historical evidence concerning the use of "bear arms" in a non-military connotation is presented. It should not be impossible for the court to rule that "bearing arms" is exclusively military in usage. They can argue intent of the Constitutional language, of course, but clearly other uses exist, and so the argument must be made.

The historical discussion is well-done, covering both the intent of the founders based on the various proposed amendments and the State constitutions, as well as the implications of ratifying the 2nd Amendment while declining the ratify amendments asserting state control over the militia. It also includes this excellent quote from a prominent Federalist concerning the 2nd Amendment:

As civil rulers, not having their duty to the people, duly before them, may attempt to tyrannize, and as the military forces which shall be occasionally raised to defend our country, might pervert their power to the injury of their fellow-citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

Halbrook raises and discusses the Miller test (eg, does the firearm have military utility?). This is a discussion that is very nice to see in a courtroom on the 2nd Amendment. Miller has been blatantly misread for far, far, far too long.

Overall, Halbrook brings a great deal of historical knowledge to the table. That is clearly his best area. His arguments on other points are less persuasive. As I have noted in the past, the standing issue is a particular weakness. However,

This entry was published Sat Sep 24 10:43:35 CDT 2005 by TriggerFinger and last updated 2005-09-24 10:43:35.0. [Tweet]

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