Legal Filings

The judge, it seems, was none too happy about the outcome, but felt that it was dictated by the Protection of Lawful Commerce in Arms Act: 

The D.C. Council, she wrote, had determined that assault weapons have "little or no social benefit but at the same time pernicious consequences for the health and safety of District residents and visitors." Congress, however, "has trumped local law by passing legislation to protect the profits of such manufacturers," she wrote.

Of course, the legislation doesn't protect "profits"; it just protects the manufacturers from liability.  If the DC Council is right about the social value of firearms, then surely no one would want to buy a firearm and all the manufacturers will shortly go out of business.

This particular case is as close to a slam dunk as we are likely to see from the POLCIAA.  I'm not surprised by the outcome.  Any judge with a minimal respect for the law would be compelled to find similarly. 

11 Consistent with this selective approach, the District Court placed unwarranted reliance on the Supreme Court?s dismissal of a direct appeal in Burton v. Sills, 394 U.S. 812 (1969), a Second Amendment decision in the New Jersey Supreme Court. The Supreme Court is not obligated to hear any case outside its original jurisdiction; its refusal to do so is no comment on the opinion?s merits.

12 The District Court adopted two portions of the now-vacated opinion in Seegars v. Ashcroft, 297 F. Supp. 2d 201 (D.D.C. 2004): one citing various cases purportedly rejecting an individual right to arms under state constitutional provisions, but see supra, p. 13 n.5; and another listed conflicting modern circuit court opinions and concluded that ?this debate, which has resulted in a circuit split, is a prime subject for review by the Supreme Court.? Seegars, 297 F. Supp. 2d at 228. Plaintiffs agree with the latter observation.

13 Cases read Miller as being limited to its facts: ?we do not feel that the Supreme Court in [Miller] was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go.? Cases, 131 F.2d at 922. Yet the First Circuit refused to offer its own guide for interpreting the Second Amendment. ?[I]t seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.? Id.

14 Quilici held the Illinois Constitution permitted a municipality to ban handguns provided it did not ban all firearms. The Court did not reach the Second Amendment argument, as it held the Second Amendment was not incorporated by the Fourteenth Amendment as applicable to the states. Quilici, 695 F.2d at 270. Quilici?s subsequent collective rights discussion is plainly dicta.

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The DC Appeals Court has scheduled oral argument in Parker v DC for November 13th, 2006.  Hopefully, by then, I will have all the briefing documents posted.  The presiding judges will be Henderson, Griffith, and Silberman, which answers my earlier question about whether the same mix of judges would be maintained throughout.

The deadline to file was June 1st, and like clockwork the brief is available from the counsel's website.  All the delays in getting this document posted and analyzed were mine; it's a big document, coming in at 80 pages, and took me a while to digest, and then even longer to put together an analysis.  To support the depth of the document I will be maintaining a table of contents in this post, and linking to areas of deeper analysis from it.

1. Jurisdictional Statement
2. Statement of Issues
3. Statement of the Case
   
4. Statement of Facts
5. Summary of Argument
1. FOP I
2. FOP II
   
6. Argument
1. Standing
   
1. Failure to assert until prompted
2. Specific and Personal Threats of Prosecution
   
2. 2nd Amendment
1. The Supreme Court has repeatedly suggested an individual right
   
1. Printz v United States
2. Lewis v United States
   
2. Implicit Adoption within this Circuit
   
3. The Clear Intent of the Framers
4. Textual Analysis
1. The Preamble does not limit the Right
2. The Militia is synonymous with The People
3. Consistent usage throughout the Bill of Rights
4. The Right to Privately Possess and Carry Ordinary Firearms
5. The District Court Failed To Address Plaintiffs? Arguments
3. The Possession of Ordinary Handguns is Protected
   
4. The Right to Keep and Bear functional Arms
7. Conclusion
8. Footnotes
   

 

The District Court correctly concluded that Defendants? belated standing defense lacks merit. In addition to the other threats, Defendants referred to the intent to prosecute Plaintiffs as ?fact.? It is pointless to argue the finer nuances of what those various statements intended to convey. If these statements did not communicate the sort of direct and specific threats of prosecution that, under Seegars, qualify as a ?polar extreme? where ?clarity prevails,? they are certainly threatening enough. To deny as much is to deny the very possibility of preenforcement challenges to unconstitutional statutes.

Here the difference between Parker and Seegars is clear.  The Parker counsel put a lot of effort into establishing standing, and were able to benefit from a lot of mistakes the District's counsel and defendents made.  That makes standing in this case almost a given for an honest judge, absent menuvering about whether or not the plaintiffs are actually militia members or not. 

Yet the District Court erred, as a matter of law, in upholding the regulations.  Logic, history, the Constitutional text?s plain meaning, and the weight of Supreme Court and circuit precedent all establish that the Second Amendment secures fundamental individual rights. At the absolute minimum, such rights guarantee a law-abiding citizen?s ability to possess a functional firearm, including a basic handgun, within the home.

That right there is a large part of why this case is such a good one.  The District's gun laws are so draconian that they are vulnerable to a direct challenge without needing to weight issues of public safety against Constitutional interests.  It is a lot easier to fudge the law when you start assigning weights to policies and trying to handwaving about compelling state interests than when measuring an absolute Constitutional right against an absolute prohibition.  In a way, it's shocking the laws lasted as long as they have.  It shows how far we have fallen, in some ways.

The opinion below should be reversed, with instructions to enter judgment for Plaintiffs on their motion for summary judgment.

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BECAUSE THE RIGHT TO KEEP AND BEAR ARMS IS A RIGHT TO KEEP AND BEAR FUNCTIONAL ARMS, D.C. CODE § 7-2507.02 IS UNCONSTITUTIONAL.

Plaintiffs submit that to the extent the Second Amendment guarantees the right to keep and bear arms, the right must extend to functional guns within their own homes. Just as the First Amendment guarantees more than the possession of blank newsprint and ink, the Second Amendment guarantees more than a right to possess metal and springs. And just as the First Amendment would not sanction an act mandating the capping of pens at all times, neither does the Second Amendment tolerate laws requiring, without meaningful exception, the disabling, locking, or disassembly of all guns. The right to keep and bear arms implies the right to keep and bear arms in such conditions that they are readily accessible to be used effectively when necessary.

D.C. Code § 7-2507.02 requires that all guns must be kept unloaded and either disassembled or bound by trigger lock at all times unless they are located in one?s business or while a person is engaged in recreational shooting. Yet the District?s self-defense law extends with equal force to a person?s home. Gray v. United States, 589 A.2d 912, 916 (D.C. 1991) (?imminent danger? would have supported deadly force in self-defense inside home); Cooper v.United States, 512 A.2d 1002 (D.C. 1986) (assuming no duty to retreat when attacked inside home by strangers, no ?castle doctrine? against co-occupants). Clearly, a person?s interest in defending against a home invasion far exceeds the interest in securing a business or recreation. ?Surely nothing could be more fundamental to the ?concept of ordered liberty? than the basic right of an individual, within the confines of the criminal law, to protect his home and family from unlawful and dangerous intrusions.? Quilici, 695 F.2d at 278 (Coffey, J., dissenting) (emphasis original).15

Plaintiffs would not object to properly tailored laws requiring the safe storage of firearms, provided the law permits the lawful use of the firearm within the home. But even the federal law barring felons from possessing firearms is understood to carry a justification exception. United States v. Gomez, supra, 92 F.3d 770; see also United States v. Mason, 233 F.3d 619, 622-23 (D.C. Cir. 2000). Certainly Plaintiffs have at least an equal interest in their fundamental constitutional rights as felons have in a necessity or justification defense.

Safe storage laws are generally not objectionable on principle, even within the bounds of the 2nd Amendment, assuming they are crafted narrowly.  The objections arise from the impossibility of enforcement and the use of such laws as a vehicle to prohibit self-defense use (as is happening here). 

The "necessity or justification" defense covers a few situations where felons have possessed firearms in the course of defending their lives from a violent attack.  While going out to deliberately obtain a gun would not be a defense, using one that was available on the scene would be acceptable.  Taking a gun from one of the attackers is one example.

The DC laws in question do not contain self-defense exceptions in the text, and they do not contain self-defense exceptions in the case law either.  In one of the earlier briefs in this case specific instances of individuals prosecuted for using a firearm in self-defense were cited.

Thus, while Section 7-2507.02 addresses an arguably appropriate area of regulation, it is unconstitutionally overbroad in its reach. The overbreadth is especially troubling considering Defendants? aggressive prosecution of gun owners in cases of admittedly lawful self-defense. Chief Judge Ginsburg suggested that the risk of prosecution in such cases is ?speculative,? Seegars v. Gonzales , 413 F.3d 1, 2 (D.C. Cir. 2005) (Ginsburg, C.J, concurring), while Judge Williams suggested the risk was real. Seegars, 413 F.3d at 2-3 (Williams, J.). The Court ordered the instant Plaintiffs to file additional briefs in light of the outcome of the Seegars rehearing petition. As Plaintiffs demonstrated with reference to specific cases, Judge Williams?s intuition is sadly correct: victims of home invasions who defend themselves with firearms are prosecuted for gun violations, even where the government does not question the legitimacy of using the firearm against the intruder. (Pl. Second Mot. To Issue Br. Schedule & Set Arg. on Merits, pp. 13-15).

The right to possess a non-functioning firearm within one?s home is no right at all. Defendants must be enjoined from enforcing D.C. Code § 7-2507.02 in a manner inconsistent with Plaintiffs? Second Amendment rights.

And there you have it.  The District's gun laws permitting possession of a long gun in the home if it is rendered inoperable are no more acceptable than one allowing possession of a printing press so long as it never printed anything.  Possession is meaningless without the right to use the object as intended.

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THE POSSESSION OF ORDINARY HANDGUNS BY PRIVATE INDIVIDUALS IS PROTECTED BY THE SECOND AMENDMENT.  D.C. CODE §§ 7-2502.02(a)(4) AND 22-4504 ARE THEREFORE UNCONSTITUTIONAL.

In theory, some sub-set of handguns might be designed that would fail the Miller test and be subject to prohibition. But in barring Plaintiffs from possessing all handguns, Defendants impermissibly infringe upon the constitutional right to keep and bear weapons in common use that are plainly suitable for lawful behavior. If any outright weapons prohibition fails the Miller test, it is D.C. Code § 7-2502.02(a)(4), barring Plaintiffs from possessing ordinary handguns within their homes, and its close cousin, D.C. Code § 22-4504, barring the unlicensed movement of handguns within a home.

One obvious candidate for a handgun that fails the Miller test is a single-shot .22 caliber target pistol.  Since Olympic-class shooters are rarely found holding up the local convenience store, this type of gun is rarely considered for bans. 

No court has seriously questioned whether a handgun, generally, is a Miller protected arm ?of the kind in common use? by the public, being either ?ordinary military equipment or [such] that its use could contribute to the common defense.? Miller, 307 U.S. at 178. Nor has any court applied Miller in the manner suggested by FOP II, yet concluded that an outright prohibition of handguns is compatible with an effective militia. FOP II, 173 F.3d at 906. Such a prohibition would quite clearly ?materially impair? the efforts of civilians otherwise capable of bearing arms from maintaining order.

Although it is not mentioned here, Miller dealt with a sawed-off shotgun and made no ruling on whether or not the firearm could contribute to the common defense.  Handguns are obviously part of the common military equipment, being standard issue for some members of the military.  They are also useful for maintaining public order generally, as evidenced by their use by police.

The Miller case failed because Miller's counsel did not introduce any evidence showing the weapon in question was useful for a militia.  Keep an eye out below for how the Parker attorneys avoid that same mistake.

To the extent such questions were raised in Emerson, the Fifth Circuit had no difficulty disposing of them in a footnote. Concerned primarily with the question of whether the Second Amendment conferred an individual or ?collective? right, the Miller analysis of the handgun in Emerson merited only the following observation:

There is no contention here that the Beretta pistol possessed is a kind or type of weapon that is neither ?any part of the ordinary military equipment? nor such ?that its use could contribute to the common defense? within thelanguage of Miller (nor that it is otherwise within the kind or type of weapon embraced in the government's second Miller argument, e.g., ?weapons which can have no legitimate use in the hands of private individuals? so as to be categorically excluded from the scope of the Second Amendment under Miller's holding).

Emerson, 270 F.3d at 227 n.22.

Likewise, in adopting the collective rights theory ?without further analysis or citation of authority,? Emerson, 270 F.3d at 224, the First Circuit conceded that a .38 caliber revolver would not be proscribed under the Miller test, as such a handgun ?may be capable of military use . . . at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber.? Cases v. United States, 131 F.2d at 922-23;13 see also Quilici v. Village of Morton Grove, 695 F.2d 261, 266 (7th Cir. 1982) (?Handguns are undisputedly the type of arms commonly used for recreation or the protection of person and property?) (internal citations omitted).14

Remember the Miller test: capable of contributing to the common defense, in common use at the time, has a legitimate use, and part of the common military equipment.

The District Court recognized the social utility of handguns. Delahanty v. Hinckley, 686 F. Supp. 920 (D.D.C. 1986), question certified, 845 F.2d 1069 (D.C. Cir. 1988), certified question answered, 564 A.2d 758 (D.C. 1989), aff?d, 900 F.2d 368 (D.C. Cir. 1990). In Delahanty, plaintiff police officer, injured in the assassination attempt on President Reagan, sued the manufacturer of Hinckley?s handgun on a products liability theory, reasoning that the gun?s inexpensive nature made it particularly attractive for criminal misuse.

I sometimes wonder if the Hinckley case was the one that kicked off the whole product-liability angle on gun control.  I should do some research on it and see who was behind it sometime.

The District Court rejected the argument as a matter of tort law, since the gun functioned properly. However, the District Court also observed that ?the theory raises concerns which reach constitutional dimensions.? Delahanty, 686 F. Supp. at 928. Apart from the irrational result of privileging plaintiffs shot by cheaper weapons, the Court recognized that many law-abiding citizens ?must resort to the purchase of a cheap handgun? for legitimate self-defense. Id. The District Court was especially troubled by the implication of banning cheaper handguns as ?ghetto guns,? which would suggest acceptance of an unlawful disparate impact upon the rights of low-income and minority individuals. Delahanty, 686 F. Supp. at 929.

You can't ban cheap handguns, since you would be violating the 2nd Amendment rights of the poor.  This would be an excellent follow-up argument to use against the ban on post-1986 machineguns; by raising the price of permitted weapons to insane levels, only the rich can fully exercise their 2nd Amendment rights.  Of course, it would probably be easier to attack the ban on the basis of greatest congruence to military weapons.

Defendants cannot carry their burden of establishing that a generic handgun is not in common use, has no legitimate use in the hands of individuals, cannot be used to provide for the common defense, and is not ordinary military equipment. It is within judicial notice that Defendants provide their police officers handguns; clearly, Defendants recognize that handguns are useful for lawful self-defense and maintaining public order. Indeed, Defendants see to it that plaintiff Heller is allowed a handgun, at least to maintain order within the confines of his workplace.

There it is: we do not need to rely on judicial notice for whether a handgun is useful for maintaining public order and contributing to the common defense: one of the plaintiffs is a security guard and is allowed to possess and use a handgun for that purpose!

Handguns plainly pass the Miller test as weapons protected by the Second Amendment, the rights to which ?shall not be infringed.? U.S. Const. amend. II. D.C. Code § 7-2502.02(a)(4), barring Plaintiffs from obtaining handguns by forbidding the registration of such weapons, violates Plaintiffs? rights under the Second Amendment. It necessarily follows that D.C. Code § 22-4504 also violates the Second Amendment, at least to the extent it requires an unavailable license to move handguns within one?s home.  That restriction frustrates the keeping and bearing of constitutionally protected arms, equivalent to imposing an independent ban on such weapons. While Plaintiffs do not here challenge the application of Section 22-4504 to public areas, it is notable that even obscene materials not otherwise protected by the First Amendment may be viewed in the privacy of one?s home. Stanley v. Georgia, 394 U.S. 557 (1969). The exercise of Second Amendment rights within the home is entitled to no less protection. ?The government bears a heavy burden when attempting to justify an expansion, as in gun control, of the ?limited circumstances? in which intrusion into the privacy of  a home is permitted.? Quilici, 695 F.2d at 280 (Coffey, J., dissenting).

Defendants? handgun ban also fails the D.C. Circuit?s alternative Miller test set forth in FOP II, 173 F.3d at 906, in that it materially impairs the effectiveness of the militia. Shelly Parker and Tracey Ambeau require handguns to act in concert with others for the common defense. JA 21, 29. Dick Heller is more effective with a handgun than he might be with another type of firearm, JA 23; why else would Defendants supply him (and others) with a handgun for his policing duties? JA 22. Tom Palmer and George Lyon would also be more effective militia members had they the option of using handguns. JA 25, 31.  None of this should be surprising; handguns are extremely practical for many lawful defensive uses.

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Papers, Please has the scoop on Gilmore v Gonzales.  Gilmore is one of the founders of Sun Microsystems, who has used his fortune to do good deeds (such as his involvement with the Electronic Frontier Foundation) and fight crime.  Gonzales is the Attorney General of the United States, and his job is to fight crime.  Unfortunately, they are both working on slightly different definitions of what a crime is.

Specifically, Gonzales thinks that it's a crime to allow someone to board an airplane without identifying themselves with some form of government-issued identification.  Gilmore thinks forcing someone to present government-issued identification to travel is a crime.  There's an obvious conflict here, and the Supreme Court may be the one to decide who's right.   A petition for certiorari [PDF] has been filed.

The last case we saw addressing this issue was Hiibel.  That didn't turn out so well -- the Supreme Court upheld the conviction for failure to identify to a police officer.  Hopefully we'll get a better result this time, but frankly, I have slim hopes for a major change so soon after the earlier ruling.

The District Court Failed To Address Plaintiffs? Arguments.

The District Court conceded that ?plaintiffs? arguments [concerning the meaning of Miller] are not without merit.? JA 52. Yet without engaging their substance, it dismissed Plaintiffs? arguments because if the Supreme Court truly thought that Miller was being read to stand for a proposition much greater than the Court intended, it surely would have taken one of the opportunities it has had in the last sixty five years to grant certiorari and correct the misunderstanding. This Court is thus reluctant to accept plaintiffs? reading of Miller.
JA 52.

Respectfully, parties are entitled to have their arguments considered, even if the Supreme Court has not taken an opportunity to endorse their positions. Nor may denial of certiorari be construed as an endorsement of the lower court?s opinion.

Indeed, Miller carries more precedential weight than any number of certiorari denials. Notably the District Court did not extend its logic to the denial of certiorari in Emerson, a missed opportunity to reject Plaintiffs? claims.11 Emerson v. United States, 536 U.S. 907 (2002).

This is a brilliant piece of lawyering between the Emerson judges and the Parker counsel.  (Not that this was planned, but I remember commenting on what the Emerson decision set up when the appeals court decision was published, and the Parker counsel has made brilliant use of it).

Consider: The Emerson decision in the appeals court upheld the Lautenberg restrictions on firearms possession as having the minimal amount of due process required to validate the infringement of a 2nd Amendment right to possess arms.  In the course of deciding this, they reached the merits of the 2nd Amendment claims and found in favor of an individual right with extensive and detailed analysis.

This means the government won't be inclined to appeal; after all, they won the case and got their conviction.  The plaintiff appealed, but the Supreme Court was free to deny certiorari.  Doing so leaves the original decision in place.  The original decision is a 5th-circuit appellate-level ruling (en banc if I recall correctly) that has extensive analysis of the 2nd Amendment claim and finds for an individual right, all of which was necessary in order to examine and eventually reject Emerson's claim.  Because of this, the entire 5th Circuit now has an individual right precedent on the books that lower courts are bound by.

That sets up a long-term circuit split (with the 9th Circuit, which has ruled for a collective right in a number of cases) that can only be resolved by the Supreme Court.  In the meantime, it gives us a pro-individual-right precedent to cite in other cases like this one.  One of those followup cases will presumably be accepted by the Supreme Court eventually, and that case will likely be a well-crafted civil rights case like Parker rather than a criminal defense (with apologies to Emerson, who most likely does not deserve what he got).

In addition, the way Emerson was decided allowed for a delay in resolving the 2nd Amendment issue at the Supreme Court.  When the decision was handed down, remember, we didn't have either Roberts or Alito on the court.  Those two judges are presumed to be good votes on the gun issue.

And here we have the Parker attorneys making use of that setup.  They are citing Emerson extensively as precedent (admittedly out of circuit precedent, but still valid in the absence of conflicting in-circuit precedent) in the context of a cleanly-crafted case before a circuit that has had 5 years of a (relatively) conservative President and Senate to appoint judges.

Having rejected Plaintiffs? admittedly meritorious arguments regarding Miller ? principally because the Supreme Court had not reviewed collective rights interpretations of that case ? the District Court did little more than cite those interpretations as a basis for its holding. It did not analyze Miller itself, or those cases upon which it relied, most of which, in turn, contain virtually no discussion of Miller either.12

Similarly, the District Court approvingly cited Lewis, supra, 445 U.S. at 65 n.8, for the proposition ?that a statute that criminalizes possession of a firearm by a convicted felon "?[did not] trench on any constitutionally protected liberties.?" JA 51-52. Lewis does not elaborate, but Plaintiffs would not quarrel with the notions that felons may be disarmed without impairing the Militia?s effectiveness, and that felons, by their criminal activities, forfeit any number of constitutional rights available to the law-abiding.

As for Emerson, the court below refused to engage the Fifth Circuit?s reasoning, preferring to side with the concurring opinion?s assertion that the majority opinion is largely dicta. Yet the District Court?s opinion in Emerson held that the Second Amendment secures an individual right to keep and bear arms and dismissed the government?s indictment on those grounds. Emerson v. United States, 46 F. Supp. 2d 598 (N.D. Tex. 1999), rev?d, 270 F.3d 203 (5th Cir. 2001).

The Fifth Circuit, in reversing that outcome, necessarily reviewed the District Court?s individual rights analysis. See Emerson, 270 F.3d at 265 n. 66.

Dicta is a term of art for the sections of a legal opinion not necessary to decide the case; those sections don't have value as precedent.  It's sometimes difficult to distinguish dicta from the important parts of a decision, especially since most judges try to avoid writing it.  The district court refused to consider Emerson as precedent, saying that the individual rights analysis is dicta; yet both 5th circuit courts in Emerson found for an individual right.  It cannot be dicta in the lower court because that court overturned the Lautenberg law; the appellate court opinion on an individual right cannot be dicta because it overturned the lower court's decision after reviewing the individual right finding. 

Even if the District Court wishes to argue that the individual rights findings in Emerson at the appellate court were dicta because they did not overturn the lower court's findings, that leaves the lower court's findings in place -- and they are equally strong for the individual rights perspective.  There's no way for the collective-rights view to effectively neutralize Emerson's individual rights precedent when used to support a carefully crafted civil rights case.  The whole thing is a brilliant piece of legal strategy.

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The Right To Keep And Bear Arms? Is The Right To Privately Possess And Carry Ordinary Firearms.

As discussed above, Miller set forth a test for determining which ?arms? are protected by the Second Amendment: ?ordinary military equipment? that could ?contribute to the common defense,? Miller, 307 U.S. at 178, and is of a type in
common use that people may be expected to own. Miller, 307 U.S. at 179. That test cannot sensibly mean that the Second Amendment merely guarantees individuals sent to battle the right to carry a gun. Such an interpretation would

either (1) contemplate actual military service . . . other than that which is ordered or directed by the government; or (2) construe the constitutional provision as saying no more than that the citizen has a right to do that which the state orders him to do and thus neither grants the citizen any right nor in any way restricts the power of the state.

Emerson, 270 F.3d at 232 n.30 (emphasis original). One may also imagine instances where military personnel are ordered to refrain from having weapons; surely the Second Amendment would not guarantee a right to carry arms in derogation of contrary orders.

The questions thus naturally arise ? what are the meanings of ?keep? and ?bear?? ?Bearing? simply means carrying, without any necessary military connotation:

Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment (?keep and bear Arms?) (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.? Emerson, 270 F.3d at 232 (quoting Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)).

Neither does the verb ?keep? necessarily carry a military connotation. ?Though the terms are related, the distinct right to ?keep? arms is individual and a helpful antecedent to bearing arms in a militia.? Nordyke, 319 F.3d at 1195 (Gould, J., specially concurring). ?Keep? as used in the Second Amendment can relate only to an individual right. Emerson, 270 F.3d at 232 (considering ?keep? separately from ?bear?). After all, if citizens cannot ?keep? guns, they cannot be ?expected to appear bearing arms supplied by themselves and of the kind in common use at the time? if called for duty. Miller, 307 U.S. at 179. If a gun is kept, but not borne upon the person, the gun is possessed in the sense that it is the subject of a person?s dominion and control. Ordinarily, an object would be ?kept? in the home or on possessed land.

There's not much for me to add, here.  We're establishing that the right protects the right to own and carry ordinary firearms. In that process the two terms need to be understood separately.  To "bear arms" is sometimes considered a term of art referring to military service, but evidence from the time indicates that that usage was not restrictive; it was just as possible to bear arms on a leisurely stroll through the countryside as it was to bear arms in a militia.  (That example is from one of Jefferson's writings).  And, of course, to "keep" arms never had a military connotation and means simply to possess or own them. 

It should be noted that "keeping" arms is mostly what this case is about.  The District's laws against bearing arms are equally draconian and in fact sufficient to make carrying a functional firearm between two rooms within your own home a violation.  This case, however, is focused on establishing the right to keep and bear arms within ones own home rather than outside of it.  The right to carry arms in public will have to be addressed in a later case, unless we get lucky and the decision includes it voluntarily.

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?The People? Protected By The Second Amendment Are The Same People Protected Throughout The Bill Of Rights.

This point was clearly settled by the Supreme Court in United States v. Verdugo-Urquidez, supra, 494 U.S. 259. The Framers knew how to distinguish between the concepts of ?people? and ?states,? doing so explicitly throughout the original Constitution and Bill of Rights. See, e.g. U.S. Const. amend. X (?The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.?) (emphasis added). Indeed, the very phrase used to describe the Second Amendment?s subject ? ?the right of the people? ? also provides the subject of the First and Fourth Amendments. See also U.S. Const. amend IX (?rights . . . retained by the people.?)

Moreover, as the Fifth Circuit noted, construing the Second Amendment as a right of the states to arm a militia ?would be in substantial tension with Art. I, sec. 8, cl. 16 (Congress has the power ?To provide for ... arming ... the militia. . .?).? Emerson, 270 F.3d at 227. And interpreting the Second Amendment as if it secured an individual right to keep and bear arms, but only while serving in the military, would be equally unpersuasive. Presumably if the states would conscript people into military units, members of such units would be armed. After all, ?No State shall, without the Consent of Congress . . . keep Troops, or Ships of War in time of Peace . . . or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.? U.S. Const. art. I, sec. 10, cl. 3. If congressional consent or emergency conditions allowed a state to raise an army or navy, there would be no need to guarantee the rights of soldiers and sailors to keep weapons.

There's not much to comment on here.  The people are the people.  The usage is consistent. 

The usual argument from collectivists is that the States were prohibited from maintaining a standing army without consent of Congress, and yet permitted to form one in emergencies, but without a right to keep and bear arms, where would they get the arms on short notice to arm their army?  Under this theory the 2nd Amendment would protect the right of the states to maintain an armory.

That theory is lacking, however, in several areas.  It does not account for the right to bear arms; such a phrasing implies individuality.  States are not said to bear arms; they would field an army.  Bearing arms is an activity performed by a person, not a state.  And, of course, if the Framers had meant to say state they would have said state. 

If the people's right to arms is healthy and respected, there is no need for the State to maintain its' own armory; for the people will come when called to service with their own arms.  An armory would be necessary for a State seeking to maintain a standing army, of course, but the Constitution is strongly prejudiced against such a creature.  We maintain one today only after bitter lessons learned from two World Wars.

And if the 2nd Amendment is to be read to protect a right of the States to maintain armies, it would be in direct conflict with the sections of the Constitution that requires the States to have the permission of Congress (or an emergency, such as an invasion) to do so.  Several of the Founders are on record as stating that the Bill of Rights does not conflict with any of the powers stated earlier in the document; that is, the federal government was not granted any power to regulate speech, or the press, or to institute a state religion, or to restrict the arms available to the people.  But if the 2nd protects a State's right to form an army, it would be in conflict with the powers already granted to the federal government.  Since the Framers don't think it was, it must mean something else.

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To The Extent The Preamble Serves As An Operative Guide, It Does Not Limit The Rights Of The People, As ?Militia? Is Practically Synonymous With ?The People.?

Miller viewed the preamble as an interpretive guide, a common practice of statutory construction used in determining legislative intent. Yet even to this extent, the preamble cannot substantially limit the rights of the operative clause.

?Ordinarily courts do not construe words used in the Constitution so as to give them a meaning more narrow than one which they had in the common parlance of the times in which the Constitution was written.? United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 539 (1944). Consistent with this practice, Miller correctly gave the word ?militia? its traditional definition as comprising all men capable of bearing arms, and reasoned that the Second Amendment protects the type of arms that such people ? private individuals ? could be expected to own and use for the common defense if called upon to do so.

Considering the persistent mischaracterization of the opinion, it bears repeating that Miller concluded ?the militia? are not ?troops? or ?standing armies,? but ?civilians primarily . . . all males physically capable of acting in concert for the common defense . . . expected to appear bearing arms supplied by themselves and of the kind in common use at the time? if called for duty. Miller, 307 U.S. at 179.

If you are a male of military age and do not own an AR-15 type rifle, the Founders would be very wroth with you for slacking your civic duties.  In some communities at the time the Constitution was written, you would even have been fined.  In that context, how could the 2nd Amendment not protect individual, private ownership of arms?

Miller?s ?militia? definition is consistent with the Fifth Amendment?s guarantee that individuals may only be charged with serious crimes ?by presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.? U.S. Const. amend. V. The Militia is obviously a concept apart from the army or navy, and its members are entitled to the protection of the grand jury when not actively defending against invasion or insurrection. The Supreme Court has recognized that the militia and the armed forces are different concepts. ?Congress was authorized both to raise and support a national army and also to organize ?the Militia.?? Perpich v. Dept. of Defense, 496 U.S. 334, 340 (1990). Congress defines ?the militia of the United States? as comprising all able-bodied males between the ages of 17 and 45, as well as male members of the National Guard up to age 64, who are or intend to become citizens; as well as female members of the National Guard. 10 U.S.C. § 311. Excluded from this definition of Militia, among others, are ?members of the armed forces, except members who are not on active duty.? 10 U.S.C. § 312(a)(3).

If you read the above and your jaw is still on the floor, I will reiterate.  By current law, every able-bodied male citizen of legal age is or at some point was a member of the militia.

Expanding on 10 U.S.C. § 311, Plaintiffs urge only one modification to Miller?s definition of ?Militia.? In the years following Miller, the Supreme Court held that the Fifth Amendment?s Due Process Clause guarantees the equal protection of the law vis-a-vis the federal government on par with the Equal Protection Clause of the Fourteenth Amendment. Bolling v. Sharpe, 347 U.S. 497 (1954). As women are now considered capable of acting in concert for the common defense, and equal heirs to the natural rights preserved in the Bill of Rights, Miller?s concept of the militia should be read in light of the modern understanding of the Fifth Amendment to include female as well as male civilians.  Allowing men, but not women, the right to keep and bear arms would not survive the heightened review to which gender-based distinctions are subjected. See, e.g. United States v. Virginia, 518 U.S. 515 (1996) (women entitled equal access to military education).

This should be non-controversial, since gender distinctions are definitely viewed with suspicion when enshrined in law.  It could have interesting consequences, though, since this argument would eventually lead to women being eligible for the draft.

As Professor Akhil Amar concluded, ?the militia is identical to the people . . . .? Akhil Amar, The Bill of Rights 51 (1998); see also Nordyke, 319 F.3d at 1195-96 (Gould, J., specially concurring). The two are synonyms. There is, quite simply, no support for the contrary proposition that ?militia? means ?states? or ?soldiers.?

Plaintiffs raised these arguments in their pleadings below, and clarified, at oral argument, that they are as much members of the ?Militia? described in the Constitution as was Mr. Miller, as is any other citizen. JA 69, 71-72. Indeed, at oral argument, Plaintiffs also noted they fall within the definition of the militia under D.C. Code § 49-401. JA 72.

This is significant because the plaintiffs are not just militia members under federal law but also under local law.  This counters the argument that a state or local government might define "militia" differently than the federal government; at least in this case the definition is similar enough to be irrelevent.

If anyone can provide the actual text of 49-401, I'll post it here, but a quick look didn't locate it.

The District Court acknowledged Plaintiffs? claim to Militia membership:

THE COURT: Essentially, so the record is clear, Plaintiffs, indeed, contend to be members of a well-regulated militia as opposed to a state-sponsored militia ?

MR. GURA: Correct . . . They are members of the Militia. . .

THE COURT: All right, I understand your argument.

JA 74. Thus, the District Court clearly erred in holding that ?none of the Plaintiffs have asserted membership in the Militia.? JA 61. Plaintiffs have always maintained that ?Militia? was correctly defined in Miller in a manner that includes
them.

I would speculate that the District Court perhaps meant that the plaintiffs did not assert membership in a state-sponsored militia, but didn't actually write that.  At first glance it seems like a pretty minor mistake.  However, given the context, it could easily constitute reversible error -- that is, an error of fact that would have changed the outcome of the case.  While the lower court's interpertation of the 2nd Amendment could easily provide that sort of error, if the appeals court is inclined to give some deference to the militia link this minor error could easily provide an excuse to do so. 

One possible outcome of the case, therefore, would be a remand to the lower court with instructions that the plaintiffs are members of the militia and the lower court should start over from there.  That's essentially how the Miller case turned out; the judges said, "Hey, there's no evidence this type of firearm has anything to do with militia service; go back and figure that out, then try again."  Unfortunately, in that case, the trial never continued; which left the Supreme Court's reinstatement of the charges against Miller the final word on the matter.

I don't think it's likely we'll see a ruling like that after the degree of briefing effort gone into this case, but you never know. 

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The ?collective rights? interpretations of the Second Amendment depend entirely upon reading its explanatory  preamble as a limit on the substantive right preserved in the amendment?s operative clause. Apart from the contrary history discussed above, the argument fails as a matter of grammar, statutory construction, and precedent.

As a simple matter of English grammar, the Second Amendment?s first clause is prefatory and explanatory; it does not modify the subject ?right of the people.? The ordinary grammatical rule is consistent with ?longstanding and generally accepted principles of statutory construction, that, at least where the preamble and the operative portion of the statute may reasonably be read consistently with each other, the preamble may not properly support a reading of the operative portion which would plainly be at odds with what otherwise would be its clear meaning.? Emerson, 270 F.3d at 233 n.32 (citations omitted).

Aside from the analysis in Emerson, there are many cases where people have independently asked experts on the English language this exact question.  I'm not aware of any such query that suggested the preamble was a firm limitation.  One of the earliest attempts to perform this analysis was an article by J Neil Schulman entitled The Unabridged Second Amendment.

That the Second Amendment?s preamble cannot be read to  eviscerate the substantive rights clause is also clear upon examining the manner in which the Supreme Court has interpreted the other two constitutional preambles. With respect to the opening preamble, the Supreme Court has long held that ?[a]lthough that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.? Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905). Plaintiffs are unaware of any case in which a court has interpreted the preamble as a limitation, enjoining governmental action as inconsistent with ?establish[ing] justice,? ?insur[ing] domestic tranquility,? ?promot[ing] the general welfare,? or ?secur[ing] the Blessings of Liberty.? U.S. Cost. pmbl.

One flaw in this argument is that the preamble to the Constitution itself is explicitly set apart from the rest of the document, while the 2nd Amendment's preamble is within the same sentence.  Yet, given that the 2nd Amendment consists of only a single sentence, that's not necessarily a strong argument.  The legal interpertations of preambles in general are useful, however.

The Copyright and Patent Clause preamble would arguably possess greater operative force than that of the Second Amendment, as it begins with ?To,? the infinitive that introduces most powers of Congress. If Congress has the powers ?To lay taxes,? U.S. Const. art. I, sec. 8, cl. 1, ?To borrow Money,? U.S. Const. art. I, sec. 8, cl. 2, and so on, then the power beginning, ?To promote the Progress of Science and the useful Arts,? U.S. Const. art. I, sec. 8, cl. 8, could stand alone absent the remainder of the Copyright and Patent Clause. In contrast, the Second Amendment?s preamble would in isolation do no more than declare an ideal.

This is a better analogy for our point, since this preamble is also contained within the same sentence, and there are precedents relating to its interpertation and lack of limitation.  Some of those precedents have unamusing consequences; for example, one major problem with software patents is that they do not "promote the progress of Science and the useful Arts," but instead impede that progress.  The patent office is unable or unwilling to properly filter out unoriginal patents, and lawsuits have been filed challenging the continuing expansion of copyright terms designed to keep Mickey Mouse in Disney's pocket. 

There are some more details on those cases below, and they constitute useful Supreme Court precedent on interpertation.

Still, courts have not barred Congress from issuing copyrights and patents that do not ?promote the Progress of Science and Useful Arts.? See, e.g. Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981) (?Congress need not ?require that each copyrighted work be shown to promote the useful arts? . . .?) (citation omitted).

In Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), aff?d sub nom Eldred v. Ashcroft, 537 U.S. 186 (2003), plaintiffs asserted that Congress did not ?Promote the Progress of Science and useful Arts? in lengthening the terms of pre-existing copyrights, because doing so provided no incentive to create new works. The plaintiffs argued that the phrase ?limited Times, ? U.S. Const. art. I, sec. 8, cl. 8, should be interpreted to reach ?only as far as is justified by the preambular statement of purpose: If 50 years are enough to ?promote . . . Progress,? then a grant of 70 years is unconstitutional.? Eldred, 239 F.3d 372, 377-78 (D.C. Cir. 2001).

This Court rejected that argument. The Supreme Court precedent marshaled in support of Eldred?s argument ?never suggests that the preamble informs its interpretation of the substantive grant of power to the Congress.? Eldred, 239 F.3d at 378 (citation omitted).

The Supreme Court was only slightly more generous:

[W]e have described the Copyright Clause as ?both a grant of power and a limitation,? and have said that ?the primary objective of copyright? is ?to promote the Progress of Science.? The ?constitutional command,? . . . is that Congress, to the extent it enacts copyright laws at all, create a ?system? that ?promotes the Progress of Science.?

Eldred, 537 U.S. at 212 (citations and footnote omitted) (emphasis added).  Acknowledging that the Clause as a whole may act as a limitation, the Supreme Court gutted the effect of the preamble by confirming that promotion of the Progress of Science and useful Arts is not the power?s sole objective. Moreover, ?it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives.? Id., (citations omitted). Congress had a rational basis for determining that the extension of existing copyright terms ?promoted the Progress of Science.? Ibid.

It should be noted here that Eldred [PDF] is a case from 2003.   Although we have replaced 2 justices since then, we can have a pretty good idea what the court thinks about preambles from this case, and the fact that the precedent is recent will make it hard to dismiss or counter with opposing or narrowing precedents. 

Eldred?s lesson for the Second Amendment is clear. If the ?Progress? limitation in the Copyright and Patent preamble cannot restrain Congress from creating a system that retroactively benefits existing copyrights, neither may a conceptualized ideal of a ?well-regulated militia? restrain ?the people? from exercising their ?right to keep and bear arms,? which ?shall not be infringed.?  This is especially so considering the accepted principle that the powers of Congress ?are few and defined,? Lopez v. United States, 514 U.S. 549, 552 (1995) (quoting The Federalist No. 45, pp. 292-93 (C. Rossiter ed. 1961)), while rights of the people include even those not enumerated in the founding document. U.S. Const. amend. IX. At most, the preambular language of the Copyright and Patent Clause establishes a highly-deferential test that all but the most unjustifiable patent and copyright laws would pass. The fundamental rights secured by the Second Amendment are entitled to no less protection than Congress?s copyright and patent powers.

No less, but perhaps more, since there is a certain amount of tension between the 1st Amendment and the copyright clause.

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This statement essentially outlines the reasons the present court has jurisdiction over the appeal.  It's straightforward.  Jurisdiction is a different question than standing (which has been an important issue in this case before).  Since this case was brought and decided by the District Court, the DC Circuit Appeals Court pretty much automatically has jurisdiction over the appeal.  The appeals court itself could decide that it doesn't have jurisdiction and the lower court should not have had jurisdiction either, but that's a different matter.

This part is mostly a formality.  The only hint of a jurisdictional question in this case came in the lower court, where the city argued that the plaintiffs lacked standing because they should have attempted to register a handgun and appealed the denial to an administrative court that would have jurisdiction over the denial of a handgun registration permit.  Since the plaintiffs did not follow that course of action, instead raising the Constitutional challenge directly, that issue will be fought on grounds of standing rather than jurisdiction.

Plaintiffs-Appellants (?Plaintiffs?) seek declaratory and injunctive relief barring enforcement of various District of Columbia statutes as unconstitutional.  The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343. 

This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1291. The District Court issued an opinion and order granting Defendants-Appellees? (?Defendants?) motion to dismiss, denying Plaintiffs? motion for summary judgment, and directing entry of judgment for Defendants on March 31, 2004. JA 46. Final Judgment for Defendants was entered the same day. JA 62. Plaintiffs timely filed their Notice of Appeal on April 6, 2004. The appeal is from a final order and judgment that disposed of all parties? claims.

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According to the Supreme Court docket, the deadline to respond to the Seegars petition for certiorari has been extended through November 21st, 2005.  Doesn't mean much of anything, I don't think, except that we'll have to wait that much longer.

I haven't had a chance to read through this yet. But this is the ruling on the major campaign financee law passed last year.

The vote was 5-4. Fairly close, which should not surprise anyone.

This will serve as a blog summary of comment links. First, Clayton Cramer talks about the implications of the decision for free speech. Volokh comments about media organizations, the sheer length of the decision, and two judges switching sides.

The regular media is reporting on the story, too, but they are biased, as favored parties under the bill. Reason has a modest proposal of sorts. The Washington Post notes that traditionally opposed civil rights groups are agreeing on this issue. Harkening back to old poli-sci courses, I think the past few years have been trending towards the "death" of the old political parties, and their subsequent rebirth with new issues; the Republican party has the "neocons", and the Democratic party will continue to decline until they take a stand as the "civil rights party". But that won't work unless they can stomach the 2nd and lure away gun rights activists, and that's not going to be easy.

This is one of those annoying cases that would have been prevented by S1805 had it become law. This ruling is the 9th Circuit refusing to hear an appeal "en banc", ie, by a panel of all judges on the court. The result of the refusal will be the case moving forward in the lower court.

The basic facts of the case, quoting from one ofthe dissenting opinions:

This is indeed a tragic case. On August 10, 1999, Buford Furrow, a mentally troubled man who was prohibited by federal law from purchasing a gun, approached the North Valley Jewish Community Center (JCC) in Granada Hills, California. He was armed with a number of firearms. He entered the JCC and proceeded to shoot and injure three young children, one teenager, and one adult. Furrow fled the JCC and, later that day, shot and killed Joseph Ileto, a United States Postal worker.

This action, as it comes before this court, is not against Furrow or even against the entities that sold the weapons to Furrow, but against the entities that manufactured the weapons outside of California and sold them outside of California.

The plaintiffs allege that the defendant gun manufacturers and distributors produce, distribute, and sell more firearms than legal purchasers can buy, and that they knowingly facilitate, and benefit from, a secondary market where persons who are illegal purchasers and have injurious intent obtain their firearms. Plaintiffs do not allege that Glock did anything illegal. Rather, they argue that Glock knew that the secondary market regularly provides guns to criminals and underage end users, but nonetheless failed to exercise reasonable care to protect the public from the risks created by the distribution and marketing schemes that create an illegal secondary market.

In other words, the gun manufacturer in the Buford Furrow case should somehow have prevented Furrow from acquiring firearms in a secondary transaction to which they were not a party. As you may recall, Furrow was nuts, and even recognized it himself. He was also a prohibited person (by reason of conviction for violent crimes), and the police were supposed to confiscate his firearms -- but they "never got around to it". Oh, well. There's another good quote that really expresses the legal theory of this case perfectly:

Thus, General Motors could be sued by someone who was hit by a Corvette that had been stolen by a juvenile. The plaintiff would allege that General Motors knew that cars that can greatly exceed the legal speed limit are dangerous, and through advertising and by offering discounts, it increased the attractiveness of the car and the number of Corvettes on the road and thus increased the likelihood that a juvenile would steal a Corvette and operate it in a injurious manner.

That about says it all.

The Hiibel case involves a man who refused to show ID to a police officer. (The officer was supposedly investigating an allegation of domestic abuse, but did not inform Hiibel of this, and the allegations were groundless). He was subsequently arrested and charged with obstruction of justice solely for refusing to provide identification. This should be a fairly straightforward case, except that it would interfere with the government's ability to act out their "Big Brother" fantasies.

It was argued before the Supreme Court on March 22nd, and we are still awaiting a ruling.

As readers may recall, Ashcroft v Raich was argued before the Supreme Court recently. The transcript of the oral arguments is now available.

The case is an interesting one. It's a California medical marijuana case, argued by Randy Barnett of the Volokh Conspiracy on commerce clause grounds. The idea is simple: if the federal government, under the commerce clause, can regulate (ie, forbid) the in-state growth and consumption of marijuana that never crosses a state line, then it's powers are essentially limitless. The abuse of that clause is what has given us our modern government.

The current court has taken steps to rein in governmental authority under the commerce clause, and for that reason this is a significant case. Speculation is that the justices are sympathetic to this line of argument. Let's hope so; it's our last, best hope for a peaceful return to a Constitutional form of government.

In my earlier writing on the scheduling motions in the Parker v DC case, I noted that whether the newspaper article (referenced by the Parker attorneys as containing a specific threat to prosecute them) would be admitted into the record would depend on what the specific rules covering hearsay.  A commenter was kind enough to leave a link to the Federal Rules of Evidence on that post.  It looks to me like the statements in that article will past muster, and here's why:

Rule 801 (d): Statements which are not hearsay

(2)Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Statements by the mayor's spokesman to the press surely falls under either 2(A), 2(C) or 2(D).  We'll have to see how the District disputes that, of course; they will try to find a way to do so. 

This is a fairly surprising opinion in favor of gun rights.  It's surprising simply because it is a pro-gun ruling, but also because the conservative justices tended to oppose the gun-rights position, while the liberal justices argued that a conviction in a foreign court could not be trusted.

This issue isn't an easy one.  It's reasonable and almost necessary for someone convicted of a violent felony in another country to bear the consequences of that choice even when they move to the United States, so long as they had a fair trial and their crime would also be a felony in the US.  That makes it more of a case-by-case thing than anything else to my view.  

This is exactly the sort of problem that would be solved by a functioning (ie, funded) program to restore firearms rights.  There used to be one, where convicted felons could apply to the BATFE to have their rights restored if they had served their time and been upstanding citizens.  But Congress dropped funding for it.  The lack of a program for this has generated other cases as well (US v Bean).

What are the advantages of a program for the restoration of rights? 

It recognizes that people can reform.  A violent criminal may reasonably be forbidden the possession of arms, for fear he will pose a greater danger to society and his fellow citizens armed than unarmed.  But a reformed man with a violent past still possesses his right to self-defense, and may no longer pose a danger to the community.  Present law and general practice considers a felony conviction to be, in essence, a mark of cain -- making it almost impossible to live a peaceful and honest life.   This is counterproductive.

It allows the unusual cases like this one a hearing that does not expose a citizen to unnecessary criminal liability.  The case here concerns a man who bought a firearm after being convicted, in Japan, of smuggling firearms.  Japan's laws are much stricter than our own concerning firearms, and it's entirely possible that the individual concerned was convicted for conduct that is perfectly legal in the United States.  Since the conviction occurred in Japan, it wasn't entered into the NICS system.  There's no way for an individual in this situation to know whether he is allowed to possess a firearm or not.  Applying for a restoration of rights would provide a clear answer without actually purchasing a firearm and being charged with its possession.

This principle has appeared in the Parker v DC and Seegars v Gonzalez cases as well.  Simply put, it should not be necessary to violate the law and await prosecution in order to determine whether a particular course of action is lawful.

Finally, it would allow an administrative remedy to manifestly unjust cases.  As an example, I'll take US v Emerson, a 2nd-Amendment case that generated a lot of attention in the Fifth Circuit and briefly looked as if it might see Supreme Court review.  Emerson was involved in a divorce, allegedly threatened his wife's boyfriend with a handgun, and on the basis of that allegation a restraining order was issued.  This is evidently a routine practice in less-than-amiable divorces (and, as far as I'm concerned, that's one more reason that marriage is not for me).  The restraining order made it a felony for Emerson to possess a firearm.  Not realizing this, he tried to purchase a firearm and got in trouble as a result. 

The problem was the lack of due process in the case.  Emerson was convicted of the firearms possession charge on the basis of the restraining order, which he had never had opportunity to dispute.  A restoration process would enable him to regain his firearm rights.

Instead, because Congress is afraid of the issue, we get cases like this one.

Lots of people have written about this one:

• Jed at FreedomSight
• David Hardy at Of Arms and the Law
• Juan Non-Volokh
• Xlrq at damnum absque injuria
• Red State lawblog
• Countertop Chronicles
• Matt at Stop the Bleating!
  

Of Arms & the Law notes that the Supreme Court has remanded US v Stewart back to the 9th Circuit for reconsideration in light of Gonzalez v Raich.  This is not an unexpected action (in fact, Heartless Libertarian predicted it).  The Supreme Court is basically saying, "Hey, we think you might want to think about this again after you take a close look at this other case we just decided." 

I think, but am not sure, that the case goes back to the same panel that issued the ruling.  If that panel so chooses, they can render a very similar decision, and try to differentiate their case from Gonzalez v Raich.  If they do, the case will likely be appealed back to the Supreme Court, which may or may not choose to agree with the differentiation.  More likely, however, the panel will take the remand order as a strong hint from the Supreme Court to reverse their prior ruling. 

The Heartless Libertarian noted in his prediction that a remand would offer the opportunity for Stewart and the panel to recast their argument as a purely 2nd Amendment one.  It may offer that opportunity, but I doubt it would be successful.  The 9th Circuit has ample precedent to rule unfavorably on 2nd Amendment issues.  While I'm not sure if that precedent is binding on the panel in Stewart, it's certainly something that they will be reluctant to challenge.  A commerce-clause challenge was an end-run around anti-2nd-amendment precedents; that's why it was successful.  A pure 2nd Amendment challenge is unlikely to succeed in the 9th Circuit.

But we may be about to find out for real.

This is the Attorney General's filing in defense of Missouri's concealed-carry law.