Seegars v Ashcroft: The Brady Amici

The Brady Amicus Brief is available online, so I can post this one as well as analyze it. It's 53 pages, the longest of the lot.

The Brady/VPC brief begins its analysis by selectively citing US v Miller, using the same arguments that by now should be extremely familiar as part of the common misreading of the Miller decision. They selectively quote the decision as below:

In United States v. Miller, 307 U.S. 174, 178 (1939), the Supreme Court held the "possession or use" of a weapon must bear "some reasonable relationship to the preservation or efficiency of a well regulated militia" to receive Second Amendment protection. Since Miller, the Supreme Court has twice confirmed this approach to Second Amendment analysis, and nearly every federal court of appeals to consider the issue has rejected the contention that the Second Amendment addresses or protects any right to own or use firearms unrelated to militia service.

This summary is deceptive. The analysis in US v Miller focused on the firearm, not on the individual; it is the firearm which must have some reasonable relationship to the preservation or efficiency of a well regulated militia. The Brady brief here is setting itself up so that it can be read correctly (eg, "firearms unrelated to militia service") or incorrectly ("right to own or use firearms"). See the complete quote below:

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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

Note how the above quote focuses on the weapon's relationship to militia service, not the individual's relationship to militia service. As discussed earlier, Aymette v State of Tennessee also focused on the weapon (a Bowie knife), not the individual. What the Supreme Court is saying here is that there is no evidence before the court that a short-barrelled shotgun has military utility. Presenting such evidence would have resulted in the decision by the lower court to overturn the National Firearms Act being upheld.

Thus, they remanded the decision to the lower court for more fact-finding -- specifically, on whether that type of weapon was suitable for militia use. Had Miller or a representative appeared before the Supreme Court or before the lower court, evidence for the military utility of a short-barrelled shotgun could have been readily presented, resulting in the dismissal of charges. That interpertation is only strengthened by the following two paragraphs, also from Miller:

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] 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.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough 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.

The key points to note here is that the Militia consists of all males physically capable, and when called, they were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. To follow US v Miller and the intent of the founders properly, every male citizen -- including those in the District of Columbia -- should be obligated to own an M-16 rifle and a Beretta M9 pistol. Not merely permitted, but obligated. Obviously, our legal tradition has come a long way from that.

The Brady brief would rather let you think that it is the individual who must have the relationship to militia service.

To be sure, proponents of the individual-rights approach have weighed in with numerous articles suggesting a private right to own firearms was a central concern of the Framers.1/ Texas Br. at 21-22. These authors generally rely upon a small set of historical references. However, as discussed below, a more objective sifting of the historical record shows that discussions regarding the Second Amendment were inextricably linked with the Anti-Federalist goal of ensuring that the state militia were well-armed, well-trained, and protected from destruction by a too-powerful federal government. It is only by quoting materials out of context and "pepper[ing] their quotations with the tell-tale ellipses that invite critical readers to check what has been omitted" that individual-rights proponents create the historical illusion of a population preoccupied with the private ownership of firearms. Rakove, supra? at 161.

After the games they played with the Miller decision, detailed above, the Brady attorneys have the gall to suggest that they are "objective", while individual-rights proponents are quoting materials out of context! There can be no rational dispute that the Brady attorneys are working for an organization with a substantial bias on this issue.

The historical facts indicate that the 2nd Amendment was, in fact, intended to protect the ability of the States to maintain and call upon a militia in order to oppose a federal government, should that become necessary, and even in the face of neglect by either the Federal or State governments in arming and disciplining the militia. The amendment accomplished that purpose by securing to the people (not the States) the right to keep and bear arms. The central government is thereby prohibited from disarming the people, and thus, also prevented from disarming the States.

There is no other way to interpert the Amendment in an environment where private citizens were expected to provide their own militia arms. The only way to secure the Militia was to secure the private right of each citizen to keep and bear their own militia arms. Yet the Brady brief continues to cite Miller with their favorite misleading quotations. While they chastise the individual-rights proponents for "peppering their quotations with the tell-tale ellipses that invite critical readers to check what has been omitted", they are guilty of the same offense without even the infamous "tell-tale ellipses" that would invite a critical reader to discard their assertions upon checking the original source!

The Brady brief next cites Lewis v United States, a Supreme Court decision denying firearms rights under the 2nd Amendment to a convicted felon. This case should not have any implications for the rights of a citizen in good standing. It is well established that the rights of a felon may be restricted through due process of law without implicating the rights of honest men.

If "people" is to be given a consistent meaning throughout the Bill of Rights, so too must "militia"; to interpret the Amendment otherwise would be to apply inconsistent interpretive principles to two words within the same sentence. And if "militia" is to be read consistently throughout the Constitution, it can only be understood to refer to a military unit. Thus, the terms "militia" and "people" are not interchangeable, and the Second Amendment's reference to both the "militia" and "the people" does not support Plaintiffs' individual-rights view.

Contrary to the assertion here, no one is claiming that "the militia" is interchangable with "the people". The militia is a military unit called up from the people. But the right is secured to the people, whether they are called up at the present time or not. Were it not so, the people would be unable to appear "bearing arms supplied by themselves". There is no inconsistency here.

The Brady amicus enters the realm of Madison's draft amendment and against demonstrates that they do not understand how an individual right to keep and bear arms protects the collective right of the States to maintain a militia:

This historical argument against Plaintiffs' individual-rights interpretation is buttressed by the evolution of the Amendment's text. Madison's initial proposal provided: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." The Complete Bill of Rights: The Drafts, Debates, Sources and Origins 169 (Neil H. Cogan ed., 1997) (emphasis added). Madison's proposed exception for "religiously scrupulous" objectors was subsequently omitted, but its inclusion in the initial draft supports two conclusions.

It is important to recognize two things when considering this draft and its conscientious objector provision. First, it was in fact not adopted; second, the conscientious objector provision represents an individual right not to be subject to military service. There is no argument that the 2nd Amendment was written in the context of a State militia subordinate to government, but that does not detract from the individual right to keep and bear arms that makes such a militia possible. Referencing an individual right to refuse military service for religious pacifists merely strengthens the notion that the right to keep arms is individual.

The historical record of the debates surrounding adoption of the Bill of Rights further indicates the drafters were repeatedly presented with and rejected language that would have created the individual rights Plaintiffs claim are found in the Second Amendment. The Pennsylvania Anti-Federalists, in a publication entitled Reasons of Dissent, included fourteen proposed amendments to the Constitution. Finkelman, supra at 206. While some were adopted virtually verbatim, the First Congress substantially modified the seventh proposed amendment, which affirmed the right of the people to bear arms "for the defense of themselves and their own state" and prohibited the enactment of any law to disarm "the people or any of them unless for crimes committed, or real danger of public injury from individuals." Id. at 209 (emphasis added). If Congress had incorporated these provisions into the Second Amendment, "the constitutional principle of private ownership of weapons would have been clear." Id. Instead, "Madison and his colleagues in the First Congress emphatically rejected the goals and the language of the Pennsylvania Antifederalists" relating to bearing arms. Id. at 208-12.

This is another common anti-gun argument from the historical perspective. The idea is that the framers considered and rejected versions of the 2nd Amendment that would have made the nature of the right clearly an individual one. That's a reasonable argument to make in the abstract, but there are other reasons that the framers might have chosen to reject these specific versions: they limit the right to keep and bear arms by placing requirements upon the purpose of the arms.

A proposed version of the 2nd Amendment that would have limited the right to keep and bear arms to "the defense of themselves and their own state" would have refused protection to hunting arms, or arguably allowed limitations of the number of guns owned (after all, you can only use one gun at a time to defend yourself). Their second rejected draft would have allowed individuals to be disarmed for parking tickets, or on merely a generalized claim that the disarmament addressed the "real danger of public injury" that the District is purporting to base its handgun ban on.

The fact is, those provisions were rejected, not because they would solidify an individual right, but because they would limit it. The framers wanted no excuse for disarmament. They know that government can find an excuse for anything, and so they insisted that no excuse was acceptable.

The Framers, living in a time when various social and political upheavals seemed to threaten the integrity of the new republic, would have been extraordinarily reluctant to eviscerate the capacity of the government to suppress domestic insurrections. See generally Finkleman, supra at 218-222; see also Federalist No. 9 (Hamilton) (in which Hamilton, in defense of the Constitution, wrote, "[a] Firm Union will be of the utmost moment to the peace and liberty of the States" and "would prevent domestic faction and insurrection"). It is therefore exceedingly unlikely that they would have adopted a provision seriously undermining the ability of the government to suppress domestic insurrections. If the First Congress had created an individual right to bear arms, it would have deprived itself of the power to regulate the flow of weaponry even in those places where it had plenary jurisdiction, such as the District of Columbia and the federal territories. Finkelman, supra at 211. Any such weakening of the national government's powers would have been contrary to the overall thrust of the new Constitution. "The goal was to prevent anarchy, violence, and rebellions. This prevention was accomplished by controlling the militias and the army and by retaining the right to limit weapons to those who formed 'A well regulated Militia.'" Id. at 222.

It is absurd to suggest that the 2nd Amendment would limit the ability of the central government to put down insurrections. Insurrections and rebellions are not put down by gun control. Nor can the Brady attorneys point to contemporaneous gun control laws. The District of Columbia passed its first gun control law in 1858, more than 60 years after the debates on the 2nd Amendment and the Constitution. If gun control was seriously considered to be a necessity, and permitted by the new Constitution, why was it not enacted immediately?

The Framers' general reluctance to impose constraints on the broad police power of the states likewise supports a militia-based interpretation. See Rakove, supra at 112-113 (emphasizing prevailing understanding of states' police powers, "which authorized government to legislate broadly in pursuit of the public health and welfare"). If the Framers had intended to proscribe state legislation limiting the ownership of dangerous weaponry, or even to restrict significantly the scope of such legislation, one would expect at least some discussion of this controversial contraction of state power during the otherwise wide-ranging debates over the Bill of Rights. Instead, "there is not a single statement & [indicating] any congressman contemplated that [the Second Amendment] would establish an individual right to possess a weapon." Silveira, 312 F.3d at 1085 (citing Rakove, supra at 210-11); see also Don Higginbotham, The Federalized Militia Debate: A Neglected Aspect of Second Amendment Scholarship, 55 WM. & MARY Q. 39, 40 (1998) ("from the Revolution to the eve of the Civil War, there is precious little evidence that advocates of local control of the militia showed an equal or even a secondary concern for gun ownership as a personal right").

Whether or not the 2nd Amendment was intended to bind the states is irrelevant to this discussion. The 2nd Amendment clearly binds the federal government, and it is the federal government which possesses legislative authority over the District of Columbia. Even if the States were permitted to disarm the people, something which would undoubtedly have shocked the Founders to the core, the 2nd Amendment would have prevented the federal government from doing so.

The lack of concern from the Founders shows not that the right was not a personal one, but that the individual right to bear arms was not considered to be under threat. What frontier government could possibly deny its citizens the use of arms? Such a government would ensure its own destruction.

The absence of any recorded controversy on this point strongly suggests that those who created the Bill of Rights did not believe the Second Amendment constrained the freedom of the states to exercise their police powers by regulating the ownership and use of arms within their borders.11/ Plaintiffs imply gun regulation is a modern innovation, but early Americans accepted the notion that groups of citizens could be disarmed without infringing state constitutions. For example, Pennsylvania, through the Test Acts of 1776, disarmed those who refused to take a loyalty oath. Cornell, supra at 231-232. Similarly, early state governments monitored gun ownership and regulated weapons storage. Saul Cornell, "Don't Know Much About History" The Current Crisis in Second Amendment Scholarship, 29 N. KY. L. REV. 657, 672-674 (2002).12/

Well, gee, Pennsylvania in 1776.. I can't think what might have been going on at that time, and in that region, that would encourage the government to disarm those who refused to support that government. I vaguely remember something about a revolution in progress. In fact, I might even guess that, in 1776, the government that imposed that particular gun control law was the same government that was shortly thereafter overthrown by the American Revolution. Certainly, however, a gun control law passed in 1776 cannot be construed as evidence regarding the intent of the 2nd Amendment... as the Constitution itself was not written until 1787.

Overall, the Brady brief evidences a consistent blindness to the idea of an individual right.