Analysis

The Second Amendment Foundation's Amicus Curiae brief in the Parker case.

There's an article by Don Kates in the Legal Times, discussing his amici in the Parker case.  I have that brief, but I haven't gotten around to analyzing or posting it yet, so consider this a teaser!

Hat tip to Of Arms And The Law for the article.

The Framers Clearly Intended That The Second Amendment Guarantee An Individual Right To Keep And Bear Arms.

?The founding generation certainly viewed bearing arms as an individual right based upon both English common law and natural law, a right logically linked to the natural right of self-defense.? Kasler v. Lockyer, 23 Cal.4th 472, 505 (2000) (Brown, J., concurring). ?[T]he history of the Second Amendment reinforces the plain meaning of its text, namely that it protects individual Americans in their right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training.? Emerson, 270 F.3d at 260.

Ah, the Emerson case.  A cite to that case somewhere was almost inevitable.  The basic story is simple: an ordinary non-criminal individual went through a messy divorce; his wife alleged that he made threats against her; a boilerplate domestic-violence restraining order was issued, barring Emerson from possessing firearms; he then possessed one (if I recall correctly, he had a collection) and was charged.  There's more information on Lautenberg, the law responsible for this restriction (and named after the politician responsible for it), over at Gun Law News. 

I don't have as much information on Emerson online as I should.  I distinctly remember following that case and writing about it, but the database only has a few brief articles about it.  I'll come back to that case later, so look for more analysis in the near future -- as soon as I'm done with the current backlog of Parker documents.

After the Constitution was submitted for ratification in 1787, its Antifederalist opponents charged that the vast powers granted the federal government over military affairs would allow Congress to  destroy the militia through neglect or deliberate action, replacing it with a standing army designed to oppress the people. John Dewitt captured a key Anti-federalist fear when he predicted that, using its authority over the militia and its power to ?To raise and support Armies,? U.S. Const. art. I, sec. 8, cl. 12, Congress ?may arm or disarm all or any part of the freemen of the United States, so that when their army is sufficiently numerous, they may put it out of the power of the freemen militia of America to assert and defend their liberties?.? The Antifederalist Papers, 75 (M. Borden, ed. 1965).

The attentive will note that this is exactly what happened.  The standing army maintained by the Federal government  has taken over the complete role of national defense from state forces and the militia generally.  Even the National Guard, often described as a state militia by those who favor the collective-rights interpertation of the 2nd, is subject to Federal control.  The size and power of the United States military is exactly what the Founders feared would occur, and exactly what they wrote the 2nd Amendment to counter.  No matter how strong and powerful the standing army, the goverment has no power to disarm the people, and thus the militia can be called up in extremis to oppose that army.

There are many who would claim that victory in such a battle would be impossible.  That's debatable, but doesn't address the main point.  That there is a militia, even a vestigial one, backed by private arms, means that resistance to a tyrranical government remains possible.  That is what the Founders sought to ensure: that the government they had created would never be able to rule by force alone.  Any government that sought to do so would first need to disarm the people, either repealing or simply ignoring one of the nation's foundational laws, and the very attempt to do so would be a warning of nefarious intent.

The Founders sought nothing less than to ensure that a second revolution would be possible, should the central government they sought to create turn against the people.  They had fought their own revolution just a few years before, a revolution that was started by a British attempt to confiscate private arms from the people.  Is it so difficult to believe that they would seek to ensure such a thing would be possible a second time, should it become necessary?

The responses to such fears offered in the Federalist Papers show two things: (1) the Federalists, like the Anti-federalists, viewed the militia as consisting of all male citizens capable of bearing arms; and (2) the Federalists believed that widespread individual ownership of firearms would prevent the militia from being overpowered by any standing army, should the federal government ever become oppressive. Thus, in Federalist 29, Hamilton writes:

[I]f circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to  the liberties of the people, while there is a large body of citizens little if at all inferior to them in discipline and the use of arms, who stand ready to  defend their own rights and those of their fellow citizens. The Federalist No. 29, at 145 (Alexander Hamilton) (G. Carey, J. McClellan eds. 1990).

In Federalist 46, Madison echoed Hamilton?s argument by pointing to ?the advantage of being armed, which the Americans possess over the people of almost every other nation,? and contrasting this situation with that of Europe, where ?the governments are afraid to trust the people with arms.? The Federalist No. 46, 244 (James Madison) (G. Carey, J. McClellan eds. 1990). In America, any threat represented by a standing army would find its counterweight in ?a militia amounting to near half a million of citizens with arms in their hands?? Id.

We need to do a little math to get proper perspective on this number.  Madison is suggesting that a tyranical government would be opposed by an armed militia of half a million citizens.  That's a fairly big number -- if Al Qaeda had half a million armed members, we would be in real trouble.  And the current strength of the active-duty US Army (as of 2004) is  about 500K, with National Guard and Reserve troops adding another 700K.  But to truly understand what Madison is suggesting we have to place that number in context.

In 1790, the year of the first Federal Census following the ratification of the Constitution, the population of the United States was 3,929,214.  (Official but harder to read table)  So Madison was suggesting that the militia which would take up arms in response to government oppression constituted a full 1/8th of the population.  In modern terms (assuming a current population of approximately 300 million), that's 37 million people. 

Those numbers make it clear that the 2nd Amendment protects a near-universal right even if it is assumed that only militia members have the right to keep and bear arms.

Unwilling to accept the Federalists? assurance that the proposed Constitution contained no power that would allow the federal government to oppress the people, the Anti-federalists continued to oppose  its adoption without, at a minimum, specific protections for individual rights. Due to their influence, five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress. All five demanded protection for the right to bear arms; and all five made plain that the right to be protected belonged to individuals, not state governments. New Hampshire?s proposal provided that ?Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion,? language that unmistakably protects individual rights quite apart from any militia service. 1 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 326 (2d ed., 1836). Virginia?s proposal, which served as a model for Madison?s draft, provided ?That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free State.? 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 658 (2 ed., nd 1836). Thus, the language proposed by Virginia sets out the individual right and the preference for a militia in two unambiguously independent phrases, while at the same time making clear that the ?militia? and the ?people? are one and the same.

Well, not quite the same.  The people have the right to keep and bear arms, that a militia may be formed from the body of the people at need. It should be understood that the right belongs to the people (a universal protection) even though the militia is necessarily a more limited subset of the people.  But we should not lose sight of the fact that a "more limited subset of the people" is approximately 1of every 8 people expected to bear arms in defense of their nation.

Having secured the Constitution?s ratification, the Federalists were nonetheless mindful of the reservations with which the Constitution was ratified and the popular desire for a written declaration of rights. In his first inaugural address, President Washington signaled that a Bill of Rights might well be desirable, and would pose no threat to the young Constitution. Emerson, 270 F.3d at 244 (quoting President Washington, Inaugural Address, April 30, 1789) (citation omitted).

Accordingly, on June 8, 1789, then-Congressman James Madison proposed several amendments to the Constitution ? including one that provided in pertinent part that ?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 . . . .? That the amendment was designed to  secure a personal right of the citizen rather than a collective right of the states is clear from Madison?s notes for the speech introducing the amendments, ?They [the proposed amendments] relate first to private rights,? 12 Papers of James Madison 193-194 (C. Hobson et al., eds. 1979), and his initial proposal to place the amendment alongside other individual rights already protected by the Constitution in Article I, sec. 9 ? following the habeas corpus privilege and the proscriptions against bills of attainder and ex post facto laws together with Madison?s own proposed protections for speech, press, and assembly. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 169 (N. Cogan, ed., 1997).

It is worth noting here that the Bill of Rights does clearly and unequivocally deal with private, individual, rights.  With the exception of the 9th and 10th Amendments, attempting to construe the rights protected by the Bill of Rights to a collective entity simply doesn't make sense. 

Madison?s colleagues clearly understood the amendment to protect an individual right. As Rep. Fisher Ames of Massachusetts described Madison?s proposals, ?The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.? Letter from Fisher Ames to George Richards Minot (June 12, 1789) (excerpt reprinted  in David Young, The Origin of the Second Amendment 668 (2nd ed. 1995)). The revised text of the amendment, as ratified, differs from Madison?s draft (among other ways) by moving the hortatory language about the militia to a prefatory clause, or preamble: ?A well regulated Militia, being necessary to the security of a free State . . . .?

For those not familiar with the language of the time, the right of conscience was language usually used for describing religious freedom.  That is a clearly individual right.  The right to change the government is more problematic; the right to vote is individual but the right to change the government is a collective result of those individual rights. 

At the time no tension appeared between the preamble and the operative clause protecting the right of the people to keep and bear arms. Its wording ?made perfect sense to the Framers: believing that a militia (composed of the entire people possessed of their individually owned arms) was necessary for the protection of a free state, they guaranteed the people's right to possess those arms."  Kates, supra n.6, 82 Mich. L. Rev. at 217-18.

Indeed, throughout the entire legislative record, from proposal of the amendment through ratification, no assertion of a ?collective rights? view can be found. ?If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the eighteenth century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.? Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 83 (1984).

While obviously records are not complete, we have a large number of papers dating from those days.  It strains credibility to suppose that not a single paper suggesting a collective-rights view would have survived when so many papers denoting the individual rights view are available today.  This is not a debate that occurs in a vacuum, but in the full context of our historical knowledge. 

Every notable constitutional commentator of the 19th Century understood the Second Amendment secures individual rights. Supreme Court Justice Joseph Story called the right protected by the amendment ?a right of the citizens? and noted that ?One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms . . . .? Story, A Familiar Exposition of the Constitution of the United States, 264-265 (1842). St. George Tucker, the earliest prominent commentator on the Constitution, regarded the Second Amendment right as equivalent to Blackstone's ?right of the subject,? protecting ?The right of self defence [which] is the first law of nature.? 1 St. George Tucker, Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia, 143, 300 (1803). William Rawle, in his 1829 treatise, also affirmed the individual rights view,  declaring that the amendment?s wording was broad enough to protect the right from state infringement as well as federal:

No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.  William Rawle, A View of the Constitution of the United States of America 125-26 (Da Capo Press 1970) (2nd ed. 1829).

The ?collective rights? model of the Second Amendment is clearly a revisionist phenomenon. The Framers, and all prominent scholars for whom the Framers were within living memory, envisioned the Second Amendment as securing an individual right.

What this brief does not touch on is the original reason for this "revisionist phenomenon".  To put it bluntly -- following the Civil War, if a black citizen was to be granted the full rights and responsibilities of an American, certain states were not willing to allow the right to keep and bear arms to be one of those rights.  Instead, they passed laws restricting the right to arms generally, and then neglected to enforce those laws against individuals they approved of.  For more information on this, see The Racist Roots of Gun Control, by fellow blogger and author Clayton Cramer.

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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.

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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.

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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 unConstitutional. 

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 Second Amendment.

[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.

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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).[8]   [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.

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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)).

This reading of Miller agrees with my own.

 Professor Tribe agreed in his treatise:

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.

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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...

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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.

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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 prosecute them.

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.

Here, we begin to get into the parts of the argument that David Hardy (Of Arms and the Law) found interesting.

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.

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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 court¹ we 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 due process.

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.

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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:

[10] 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.

[11] 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. 

[12] 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.

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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 criminal misuse.

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 spun.

So what's the issue here?

Gun control.

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 why.

(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.)