Saturday, January 5, 2008

That's all they've got?

D.C.'s brief that's been filed in Heller is full of unsubstantiated assumptions and quite a few blatantly illogical arguments. Not only that, but some of those arguments are directly contradicted by precedent set in Miller.

A few things have caught my eye thus far in their brief.

"In 1994, the Council extended the prior require-ment that those who “carry” concealable weapons in public be licensed. A license is now required regardless of where such a weapon is carried."

Thus D.C. law effectively makes it a crime to move a gun from room to room within ones own home. This essentially makes it illegal to have a gun in your home, since you can't freely transport it within your home. The law also has no self-defense exception. I hope the justices recognize the audacity of such a law.

Attorney's for the District go on to say the following about the Parker decision against them.
"The majority also invalidated the licensing law. It ruled that individuals have not only a constitutional right to possess a handgun, but also an ancillary right to move it about their homes for self-defense. PA54a. Although the District construes D.C. Code § 22-4504(a) as a licensing provision, not a flat prohibition on the use (“carrying”) of handguns, the majority held it facially unconstitutional on its contrary reading."

They say themselves that "A license is now required regardless of where such a weapon is carried" but then claim that the Court was wrong to say that the licensing provision was unconstitutional. If the law requires a license, as the District clearly states, "regardless of where such a weapon is carried." then it is certainly logical to conclude that such a law prohibits "an ancillary right to move it about their homes for self-defense."

Also, what are the terms of the "licensing requirement" they speak of? If it is virtually impossible for the average D.C. resident to be granted a license then it can be considered a prohibition on the use/carrying of firearms. If residents need a permit to possess a gun but can't get one, then their right is rendered meaningless.

Next D.C. says this

"The drafting history and recorded debate in Congress confirm that the Framers understood its military meaning and ignored proposals to confer an express right to weapon possession unrelated to militia service."

Really? I think they might want to read the Federalist Papers. They're effectively saying the founders meant for us to be able to own weapons in defense of the state, but not for self-defense purposes.

Another main premise of their arguments hinges on D.C.'s status as a federal enclave and not a state. They posit that the 2nd Amendment doesn't apply to the District because it's not a state, and further that it was meant to protect states from the Federal government, thus it's purpose is not applicable in the district. This also ignores a prior drafting of the 2nd Amendment in which James Madison had originally used the words "Free Country" rather than "Free State." That should make it obvious what the words "free state" mean.

This is also a patently ridiculous argument. As I pointed when reading Judge Henderson's dissent in Parker. If the 2nd Amendment doesn't apply to the District because of it's non-state status, then are the 1st, 3rd, 4th, 5th, 13th, 14th etc. not binding against the District? The Bill of Rights was specifically drafted to serve as a constraint on Federal power. The 2nd Amendment doesn't yet apply to the states via the 14th Amendment, but it certainly applies to the Federal Government. The original intent of the Bill of Rights was to restrict the powers of the Federal Government. If the 2nd Amendment doesn't restrict the States, nor restrict the District because it's not a State, then who does it restrict?

On page 10 of the brief they state,

"The Framers created a federal enclave to ensure federal protection of federal interests. They could not have intended the Second Amendment to prevent Congress from establishing such gun-control measures as it deemed necessary to protect itself, the President, and this Court..."
Where in the Constitution or the Federalist Papers do the founders express concern that the Federal government might need to protect itself from the States or the people?

They state that the words "free state" do not mean free nation and do not allow for the people to rise up against a tyrannical Federal government. They explain that such a reading of a "right to rebel" is inconsistent with the militia clause and the treason clause.

It is simply inconceivable that the founders would have considered the right to rebel against a tyrannical government to be treason and thus taken steps to prevent it. They themselves had just rebelled against England, so saying that there is no implicit "right to rebel" in the 2nd Amendment is ludicrous.

Concerning the "reasonableness" of the District's laws, well that's a no-brainer. There's no provision for self-defense and you need a license just to "carry" your gun from room-to-room in your own house. Long-guns must be disassembled and locked up and ammo must be locked in a separate location. If that's "reasonable" then what is the district's idea of "unreasonable?"

The key arguments seem to be as follows
1. The 2nd Amendment protects only militia-related rights and "military arms" - Handguns don't fall under "military arms" despite their use by every modern military in the world.
2. D.C. isn't a state, so the 2nd doesn't apply
3. The District's gun laws are "reasonable" - they put this one out in case the 1st two arguments fail.

The brief actually isn't terribly written considering the difficulty of the arguments they're trying to make.

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