Seegars v Ashcroft: Amici from the States

Several states combined their efforts and filed a joint amici brief (in layman's terms, a "friend of the court" brief filed by someone not a party to the case). The States in this brief include Texas, Alabama, Florida, Georgia, Idaho, Kansas, Louisiana, Michigan, Mississippi, Montana, Nebraska, Ohio, South Dakota, Utah, Virginia, and Wyoming. Not a bad list. Their brief covers the following points:

1. The District Court was wrong to deny the individual right view
1. The "right of the people" is individual
2. The court misinterperted "keep" and "bear arms"
3. The militia clause does not create a collective right
4. Scholary commentary supports an indidvidual right
5. The history of the amendment demonstrates an individual right
2. The DC laws are unConstitutional
3. The DC laws are not "usual", "reasonable" or "necessary"

The States indicate that they are becoming involved because they are concerned about the precedent that this case may set. No shit; of course they are concerned. Presently, all states allow their citizens to possess handguns for use in self-defense; while some other cities have similarly tough restrictions, those restrictions are not threatening to the same degree as an improper precedent here would be. The cities cannot compel the States to ban handguns, but the federal government could conceivably do so if the 2nd Amendment is rendered irrelevant.

One of the reasons the States note is that they wish to protect their citizens (note the archaic usage of State citizenship -- good touch, that) who wish to lawfully carry a firearm in DC from being unlawfully arrested and prosecuted. This argument may fail, because of the exception for non-residents that the Seegars complaint uses to base its equal-rights claim, but it makes me wonder if the Firearm Owner's Protection Act (which established uniform standards for firearm transportation) might not provide a defense against the DC law for non-residents. It might be that that exception was specifically intended to recognize the protections of the FOPA.

The States note that the legislatures of all 50 states permit handgun ownership. I'm not sure this is correct; what about Hawaii? Currently, it seems that Hawaii requires a permit for all firearms. There has been talk of a complete handgun ban, and I do not know if one has passed or not. I assume the States would have checked, though.

The States make the same arguments on Presser v Illinois, noting that the those opinions were issued before the broad-based incorporation doctrine was established. They also note a specific Supreme Court precedent in District of Columbia v Thompson Co.: "no constitutional barrier to the delegation by Congress to the District of Columbia of full legislative power subject of course to constitutional limitations".

That's a good precedent, it eviscerates something the District Court spent a lot of time trying to establish. Most of the time, precedent trumps argument, especially when you are talking about a Supreme Court precedent. I do not see how the Court of Appeals can fail to overturn that section of the lower court's ruling in light of this precedent.

In arguing against the collective rights interpertation, the States note the distinction between a "right" and a "power", between "the people" and "the States", and similarly note the common language with the other individual-right amendments. All of these are excellent points. The 2nd Amendment may have been intended to protect the ability of the States to raise a militia and oppose a tyrannic central government, but it did so by securing an individual right.

Notable as well is the States' comment on Miller, which follows substantially similar lines to my own commentary (Misreading Miller). As Supreme Court rulings go, Miller is far from perfect, but it does protect an individual right to military weapons when properly read. Unfortunately the decision is sufficiently subtle to make reading it properly fairly difficult.

In their linguistic analysis the States note that the term "the people" is a term of art that must be applied consistently throughout the bill of rights. The District Court did not address this at all, preferring to focus its analysis on the militia component of the amendment. This is not surprising, as the collective-rights analysis falls apart when the term is understood consistently. If "the people" is a collective, then no individual can sue for violations of his right to assemble, or for being subjected to an unreasonable search; perhaps the State should be expected to sue itself? Not only is such a result absurd, it is contrary to precedent.

The discussion also contains a historical footnote describing the intent of James Madison to insert the 1st and 2nd Amendments into the Constitution itself (rather than appending them), and planned to do so alongside the other listed individual rights (bills of attainder, habeas corpus, and ex post facto laws).

Although they do not follow this analysis further, it is useful to refute the District Court's point concerning the conscientious objector clause that was considered but not inserted into the 2nd Amendment. Although such a clause suggests that the 2nd Amendment was concerned with military service in the militia (something that is undeniably, but not exclusively, true), it also demonstrates that the rights were to be applied individually. Individuals can be conscripted and conscientious objectors need protection; collectives need no such protection.

Another excellent linguistic argument revolves around the word "keep", which the District Court chose to construe as a unitary term of arm ("Keep and bear arms") meaning military service. Not only is this contrary to the plain meaning of the words, it renders the inclusion of the word "keep" meaningless. There are, of course, Supreme Court precedents holding that each word in the Constitution must be given force; you cannot interpert the Constitution by selectively ignoring words that contradict your desired result. They also have some historical references for the use of "bear arms" outside of a military context, and in at least one case the writing explicitly includes the military context. Clearly, then, while bearing arms may have a military connotation, it is not limited to such use, nor can it be construed as a unitary phrase to disregard undesirable meaning.

And as an amusing side note, they cite fellow blogger Eugene Volokh's The Commonplace Second Amendment.

To deal the death blow to the preamble argument, they cite Eldred v Ashcroft, a somewhat unfortunate decision concerning copyright law. In essence, Eldred held that the clause "To promote the Progress of Science" in the section of the Constitution governing the copyright power did not limit Congress to legislation that actually promoted the progress of science. I don't think the Eldred decision was right, but the law with respect to the influence of such a prefatory clause is reasonable. More importantly, it is a decision from the current court (issued in 2003). As such, I'd like to thank the States for taking the lemon and making lemonade.

(In my opinion, Eldred should have been decided based on the "for a limited time" clause; Mickey Mouse should be in the public domain already).

The States also cite the same quotation I used in reference to the Militia, indicating that even if that clause does limit the scope of the right, the militia is still a body composed of every individual citizen capable of bearing arms, rather than a selected group specifically authorized to do so. In case you've forgotten, that quote is "Who are the Militia? They consist now of the whole people." That's a powerful quotation that should not be forgotten. Even a right limited to militia membership is still an individual right.

And the Militia Act is also cited, which famously defined the Militia to be "each and every free able-bodied white male citizen of the respective states... of the age of eighteen years, and under the age of forty-five years". The 14th Amendment will dispose of most of the limitations expressed therein should it ever become necessary to do so. The Militia Act actually required gun ownership by all members of the militia. How far we have fallen!

The States dispose of the historical and scholarly arguments in short order with relevant quotations, drawing the distinction between a right intended to preserve a state militia's ability to resist oppression and a right limited to preserving that ability. The Framers sought to preserve the militia by preserving the right of the public to keep and bear arms, but that does not mean that the keeping and bearing of arms must preserve the militia.

The States close by arguing that the DC Code regarding firearms is not usual, reasonable, or necessary (terms derived from the Congressional legislation delegating the legislative power). While they have very good arguments, I fear that the existance of the 1973 Home Rule legislation, which does not appear to contain those limitations, will trump their arguments.

Overall, this brief is absolutely devasting to the District Court's ruling on the 2nd Amendment. It will be very difficult for the Appeals Court to reject these arguments and uphold the District Court's ruling. That's not to say they will not find a way, of course.