Analysis

Clayton Cramer examines the statistics from the 13 states that have already passed universal background check laws.

A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that?s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate...

Both Manchin-Toomey and Grassley-Cruz included a variety of other changes in federal gun laws, and some of them were very constructive. But as for the prosecution provisions, I think they were dubious.

Read the whole thing.

For the record, I agree that calling for more enforcement is not always a good idea -- but it's not the same thing as pointing out the lack of enforcement of existing laws when opposing new ones. 

... and has his first encounter with today's gun control laws.  When liberals collide with reality, it tends to leave a mark.

Amazingly, though, he still believes the BS:

Based my limited experience, it seems like when gun laws are written (mostly) by liberals (like me) who don't feel connected to gun culture you might end up with a hot-mess-of-a-law that makes it needlessly complicated for law-abiding tax-payers who wish to comply with the rules to acquire a gun for any non-crazy reason.  That's our current model in New Jersey.  Our model which I believe is broken.

So, existing gun laws are too strong (requiring a permit and a 6-week wait to buy a BB gun) and too weak (no photo id requirement, won't stop criminals).

On the other hand, the gun laws coming out of Washington DC are dictated by the NRA to conservative handmaidens in the House and Senate who are beholden to tea party whack jobs primary voters and the gun lobby. The idea of some deranged lunatic assembling a deadly cache in a McDonald's parking lot is chilling and infuriating.  With 40% of firearm transactions happening off the grid (via straw purchasing, for example,) it's simply too easy for stupid people to get guns in America.  And we have the NRA and Republicans in Congress to blame for it.

The idea that this guy thinks the NRA is powerful enough to write gun laws in DC despite having just seen a massive gun control push that gun owners (not JUST the NRA) -- only barely managed to stop is pretty far out there.

And that's why, despite the Senate stalemate, we must work for a more robust universal background check for anyone in any state who chooses to purchase a firearm.  We don't need another (Columbine, Aurora, Newtown, Tucson, et al) to prove why background checks are so critical.

So background checks are critical to stop mass murders, then?

• Columbine: Straw purchases by an individual who would have passed a background check, and a handgun sale to a minor, illegal.
• Aurora: His psychiatrist warned the police, who did nothing.
• Newtown: Killed his mother, who bought her guns legally.  Manchin admits his legislation would not have stopped Lanza.
  
• Tucson: Creeped out a lot of people, none of whom bothered to do anything that would have made him a prohibited person.  Would have passed a background check.
• Oh, and let's add one more... the brothers Tsarnaev, allegedly behind the Boston Marathon bombings, were investigated by the FBI after a tip from a Russian intelligence agency.  We don't know yet how they got their guns, but they did pass a much more serious background check that it takes to buy a gun.
  

Most people think of background checks as being in place to stop criminals from acquiring guns.  But buying guns is not the only way to acquire them.  Criminals generally steal them, or buy them from other criminals, and they won't do background checks on each other no matter how many laws you pass.  If they can't find enough to buy or steal, they'll smuggle them in with their drug loads, or buy them with special BATFE approval.

Background checks are actually in place for other reasons:

1. Maintain a distributed firearms registry for investigative purposes (in the 4473 form maintained by dealers). 
   
2. Deny criminals easy access to firearms.  Making it harder does help, if it doesn't set up a significant barrier to honest gun owners.

The 4473 form you fill out when you buy a gun is maintained by the dealer who sold you the gun, until they go out of business, and then the records are forwarded to the government.  It allows law enforcement to trace a recovered gun (say, at a crime scene) to its last commercial purchase.  It's a messy compromise between denying the government an official registry of all firearms and their owners, and allowing some information to be kept for investigative purposes.

The background check system does not, and can not, effectively prevent criminals from acquiring guns.  The technology is out of the bottle.

I just hope the national model for firearms screening won't follow New Jersey's reactionary template.

And his reality-rejection field is so strong that he thinks a national law written by the same ignorant anti-gun liberals he was just complaining about would be an improvement.

New York City Mayor Michael Bloomberg and former Rep. Gabby Giffords took on gun reform with the best of modern campaign tactics -- spend millions on new groups, air slick TV ads and tap into social media.

"It came down to politics the worry that that vocal minority of gun owners would come after them in future elections. They worried that the gun lobby would spend a lot of money and paint them as anti-Second Amendment," Obama said.

The total lack of self-awareness in the modern left leaves me speechless.

Turns out the NRA spends about as much money on pro-gun causes as Bloomberg does on anti-gun causes, and Bloomberg is only one of the anti-gun financiers.  (BTW, that's $4.64 per member for the NRA, and $24 million for Bloomberg by himself).

A lawsuit has been filed that threatens to strike down the entirety of the Affordable Care Act on procedural grounds -- by pointing out that the Constitution requires bills which raise revenue to originate in the House.  Obamacare did sort of original in the House -- as HR 3590, the "Service Members Home Ownership Act".  The Senate gutted the bill and replaced it with Obamacare, then sent the amended version to the House. 

It's not unusual for either body to "amend" legislation by completely replacing the original text.  The legal debate will undoubtedly deal with whether the earlier precedents can be distinguished from this new case on some technical grounds.  What they should do is come face to face with the absurdity of claiming that a bill which "originated" in the House as legislation dealing with home ownership for veterans can meaningfully be considered the same legislation after the Senate has gutted it and replaced it with a completely different piece of legislation, particularly a huge and controversial one such as Obamacare.

To be honest, I don't think the lawsuit is likely to succeed.  The shadow of the Supreme Court's prior ruling is likely to be rather intimidating to the lower courts, and the current members of the court have spoken on the law.  The only hope for a change would be Roberts -- he might see this as his way out of a bad decision.

As far as I am concerned, though, the Constitution says what it says, and the Senate's practice of using shell legislation to get around this requirement needs to be stopped, regardless of existing precedent to the contrary.  Obamacare is a better place than most to start.  Let's hope at least 5 Justices agree with me.

... and questions why no one is looking at the 6 states that require background checks for all private-party sales to see if the idea even works.

Now, if you ask me, it doesn't work, and it's obvious that it doesn't work, because criminals get their guns from other criminals and theft, and neither process involves a background check no matter what the law says.  And because it's obvious it doesn't work, no one on the gun control side wants to study it.

Read the whole thing.

Kopel, Cramer, and Joseph Olson collaborate.  They conclude that bans on switchblades, gravity knives, butterfly knives, and locking knives are unconstitutional -- rightly so.  I've cut myself more than once with knives that lack a lock-open feature, it really is a safety issue. 

Did you know that in Texas you can get a license to carry a concealed firearm, but you can't get a license to carry a concealed knife?  What kind of sense does that make?

We have several concerns about the proposal including the burden it would place on law-abiding gun owners, the failure of the DOJ to prosecute prohibited persons who attempt to buy firearms and the cumbersome delays that it would place on legal purchasers, while leaving criminals free to buy firearms illegally on the black market.

Read the whole thing.  We need to make sure that any ban on private transfers doesn't make it out of Congress, and your legislators need to hear these arguments in order to understand the issues.

... that explains, in part, why our country is so screwed up.

Burdened by unfunded public pension liabilities and healthcare costs, state and local governments are in bad shape, considering the willingness of voters to embrace new spending proposals and their general reluctance to pay taxes to finance them.

Responding to the latest round of public budget "crises," policymakers around the country have begun reviving an old, but not necessarily good idea with added enthusiasm?taxing "sin." What better way to raise revenue than to find something that your neighbor buys or an activity he engages in that you don't like and tax it?

You could argue that the whole Bureau of Alcohol, Tobacco, and Firearms is about "sin taxes".  Read the whole thing, but I want to call out a specific part of the article for a little extra commentary:

Millions of dollars have been spent to thwart taxation of the soft drink industry's products and to prevent existing taxes from being raised. In 2009 alone, the industry spent more than $57 million on lobbying. Such lobbying expenditures are socially wasteful. How much money is now being spent attempting to block Mayor Bloomberg's ban on 32-ounce soft drink containers?

It's obviously not in the public interest for government to constantly threaten to tax or ban items the public desires to use and considers worth the costs.  Nonetheless, we frequently see our elected "representatives" making exactly that sort of threat.  Why?

There are a couple reasons, most of which are touched on in the original article.  Revenue for the public coffers that is taken from only a subset of voters is one significant reason, but there is another, subtler way that revenue is involved.

Consider: what happens when a politician leaves office?  Sure, sometimes they leave in disgrace after a scandal and spend time in rehab or jail... but what about the more typical case of a Washington politician who retired from a federal government position or lost an election?  Well, lots of them become... lobbyists.

Sin taxes -- and many other ways that the government is an intrusive, bullying busybody aggressively involving itself in as many lives as possible in the most annoying way possible -- represent what amounts to an investment in a politician's retirement plan, because corporations pay lobbyists huge sums of money to make annoying government laws and regulations go away.

Sometimes the lobbying succeeds, sometimes it doesn't, but companies have to pay because the lobbying is cheaper than the threat of regulations and cheaper than the legal costs of challenging an unbearable regulation in court. 

"Nice industry you have here.  Be a shame if someone regulated it."

What if a politician actually believes in the laws and regulations they passed, though? 

Don't worry, that never actually happens. 

However, sometimes a politician anticipates running for office again and wants to avoid the appearance of corruption by lobbying against things he might want to vote for, or did actually vote for in the past, or the like.  In that case, he doesn't go into the lobbying industry.  Instead, he goes into consulting, where companies pay him millions of dollars for his expertise in following the laws he played some part in drafting, amending, or hell, even just flipping a coin and voting on.

It's instructive, because the same thing is happening here, just on time-delay.

Take how they measure gun ownership. Believe it or not, this study measures gun ownership by looking at the share of suicides committed using firearms.

Then the authors go on to commit an egregious and basic statistical error. They claim that states with higher gun ownership have higher gun death rates. But wait a second -- most gun deaths are gun suicides. And what they call "gun ownership" in their study is also measured by gun suicides.

In other words, all the study proves is that more gun suicides leads to, well -- more gun suicides. Any serious statistical journal would not have published such nonsense.

Read the whole thing to find out about the other problems with the study, but the problem above is enough to discredit it completely.  It's a basic mistake that anyone with a few college courses in statistics should be able to catch.

Most medical doctors (the study was published in a medical journal) are well outside their realm of competence when trying to do things related to guns.  Unfortunately, most doctors seem to think that being an expert in one thing makes them an expert in everything.

Lott links to the Boston Globe discussing the increase in crime since Massachusetts passed a gun control package in 1998.  The number of guns registered in Massachusetts dropped 86% following that law's passage, so clearly it had a major effect on legal gun owners.  The effect on murders with guns was also significant: it nearly doubled from 65 in 1998 to 122 in 2011.  Aggravated assaults and robberies with firearms rose 20-30%.

Some blame the failure of the gun control laws on surrounding states with laxer laws, but it's generally illegal (for handguns, at least) to purchase firearms outside your state of residence without going through a licensed dealer, so that can't possibly be the problem.

Lott has graphs, too.

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.

Return to the table of contents.

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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