DC's reply to brief in response (Heller)

[Kharn]

DC is at it again, they have replied to Heller's response to their petition for cert in the Supreme Court.

Here's the briefing and their attorney's blog about it.

For a good laugh during lunch, from page 5 & 6:

Second, the District does not in fact ban all “functional”
firearms. As the petition explains, District residents may use
lawfully registered rifles and shotguns in self-defense. Pet. 7
n.2, 28. Heller misreads D.C. Code § 7-2507.02, which prescribes
how a gun registrant “shall keep any firearm in his possession”
under normal circumstances, but says nothing about use during an emergency. The section merely requires firearms
kept at home to be kept safely—for instance, with a trigger
lock, a mechanism that, like a password on a computer,
allows the owner access in time of need. As reflected by the
fact that the District’s Council enacted this requirement secure
in the knowledge that “locked guns can be ready for use in under
a minute” (C.A. Br. 17 (quoting legislative history); see
Pet. App. 116a), it is incorrect to read Section 7-2507.02 to
prohibit use of a gun in self-defense in an emergency. Both
the D.C. Circuit and the D.C. Court of Appeals “have long
recognized exceptions to general law under exigent circumstances.”
C.A. Br. 17 (citing Wilson v. United States, 198 F.2d
299, 300 (D.C. Cir. 1952), and Emry v. United States, 829
A.2d 970, 972 (D.C. 2003)).6

Page 7:

The point, however, is largely academic because the District and the panel majority agree that Section 7-2507.02 should not be applied as a “functional firearms ban.”7

I wonder how many people have been charged under 7-2507.02 for having loaded firearms in their home...

Page 10:

The Council concluded that handguns pose dangers that far outweigh their utility. Nothing in the Second Amendment gives the courts a license to second-guess that eminently reasonable judgment.

Kharn

 

[-C4-]

:banghead:

Thats about all I can say to that. I have lived in DC Metro area my whole life and this stuff is just depressing.

 

[Henry Bowman]

As reflected by the fact that the District’s Council enacted this requirement secure in the knowledge that “locked guns can be ready for use in under a minute”

Good to know that at least the District Counsel is secure in their knowledge. And that "under a minute" will always be plenty of time.

 

[Cougfan2]

As it has been said many times, "when seconds count, the police are only minutes away". I guess they think you should ask the BG that's coming thru the door to wait a bit while you remove your trigger lock or reassemble your shotgun.

"OK, now I'm ready. Let's get it on!". :banghead:

 

[El Tejon]

If that is so, why do not D.C. police carry locked guns?

 

[Bartholomew Roberts]

Wow...talk about circular arguments... on page 4, D.C. points out that Heller offers state analogs to the Second Amendment. D.C. then argues that clearly they are not analogs to the Second Amendment because they protect the use of weapons for things like hunting and self-defense and clearly the Second Amendment doesn't do that.

Points for Orwellian chutzpah; but not so much for clarity of reasoning.

 

[hugh damright]

I think this attempt to spin the storage law to mean that a person cannot legally use a firearm in self defense is disingenuous.

 

[rdhood]

Don't have time to get into it now, but this response is lame.

They believe that a disassembled and/or locked firearm is a "fully functional firearm in time of need".

They try to say that Heller's arguments of the "individual" vs. "collective" rights imparted by the 2nd is not the same as their "the right protects uses for private purposes" and "uses related to service of state regulated militias".

They believe "the District's handgun ban does not infringe on the right to keep and bear arms under any view of the amendment."

Their arguments use semantic hair splitting, apparently aimed at trying to get a less precise decision that will leave room for future gun bans.

The 2nd says NOTHING about "private use" vs. "state regulated militias" (it says "a well regulated militia", which is certainly NOT the same as "state regulated", and goes on to describe the INDIVIDUAL's right), and the question of "individual right" vs. "collective right" holds.

Their argument that they allow longuns in time "of need" falls way short. They are going to have to show that the disassembled or locked gun that they allow is sufficient to allow the use of the weapon in time of emergency... during a home invasion. All it would take are cases that show home invasions happen in seconds, and that is not sufficient time to assemble and load a rifle or to undo a trigger lock where the key is kept in a separate location.

And finally, there is the absurd notion that a ban on handguns does not infringe on the 2nd Amendment under "any view of the amendment". ANY view? Whether or not handgun bans infringe on the 2nd, I am SURE that a few justice questioning will present views under which it might, and immediately (upon asking the question) render the statement false.

This response is weak. Very weak.

 

[Bartholomew Roberts]

I also like the "Sure violent crime went up for most of the 30 years after the handgun ban; but it might have gone up worse without it! Also rape didn't go up - so how about that!" argument.

I wonder how they thought the appeals court order denying the motion to lift the stay helped their cause though? The appeals court pretty clearly took shots at the main argument being made here (longguns can still be used for self-defense). I guess maybe they thought if they showed it first and spun it, they could take out some of the sting they have already suffered over that.

 

[woerm]

slapping DC around in general

Hugh,

Good one,

also I was leafing through the amici on the Heller website
http://dcguncase.com/blog/case-filings/

American Civil Rights Union slaps DC upside the head quite nicely
I venture that the SCOTUS will dodge this one and deny cert.:banghead:
(hey it would be a win)

Then next year watch about 300 or so suits against 922(o) show up.
followed by similar fun and games against Chicago/NYFC/Kalifornica/

at best they may sustain with per curiam dicta on 2a as an individual right and require strict scrunity.

where would that leave concealed carry statues?

Hmmm AK and VT should be ok I'm not sure about the rest.

 

[zxcvbob]

Quote:
The Council concluded that handguns pose dangers that far outweigh their utility. Nothing in the Second Amendment gives the courts a license to second-guess that eminently reasonable judgment.

The court is gonna love that. (I thought only Congress could tell the SC what they could and couldn't rule on, and it's debatable whether even Congress has the authority to do that on constitutional cases -- unless they want to totally defund the court)

 

[ilbob]

The court is gonna love that. (I thought only Congress could tell the SC what they could and couldn't rule on, and it's debatable whether even Congress has the authority to do that on constitutional cases -- unless they want to totally defund the court)

Where in the constitution is the court given any authority to rule on the constitutionality of anything?

 

[atk]

ilbob,

Though this is a bit off topic for this thread,

Article III.

Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Judicial power must include determining legality of laws - if a law were illegal, who else would identify it?

 

[AntiqueCollector]

Where in the constitution is the court given any authority to rule on the constitutionality of anything?

"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Article III, Section 2. A lot can be read into this little section, just like the interstate commerce clause has been used so broadly...

 

[Bubbles]

Heller Goes to Cert Committee!

Justices to consider gun case Nov. 9

Wednesday, October 24th, 2007 12:04 pm | Lyle Denniston

The Supreme Court will consider two petitions growing out of the Second Amendment dispute over a District of Columbia ban on private possession of handguns at its Conference on Nov. 9, according to the Court’s electronic docket on Wednesday.

The two cases are the city’s appeal — District of Columbia v. Heller (07-290) — challenging a D.C. Circuit Court ruling last March striking down the handgun ban under the Second Amendment, and a cross-petition by five city residents — Parker v. District of Columbia (07-335) — seeking to join in the case to add their own legal complaints about the city gun control law.

Because the two sides have framed the Second Amendment question in different ways in their papers in 07-290, it is conceivable that, should the Court grant review, it might choose to rephrase the issue itself.

The earliest that an order on the fate of the two cases would emerge is probably Monday, Nov. 12. The case, if granted, would probably be heard in February or March.

 

[Ken]

"Where in the constitution is the court given any authority to rule on the constitutionality of anything?"

If you are interested in reading about the court's ability to, at least, declare statutes unconstitutional, read about Marbury v. Madison here:

http://en.wikipedia.org/wiki/Marbury_v._Madison

 

[K-Romulus]

DC makes a lot of big claims regarding the Heller team's "out of context quotes" from 18th and 19th century texts. Maybe Steven Halbrook's law review article debunking this claim (first made by Saul Cornell) should be circulated in chambers.

ETA: Link to article here - http://law.bepress.com/cgi/viewcontent.cgi?article=8710&context=expresso

St. George Tucker, known as “America’s Blackstone” and author of the first
commentary on the Constitution in 1803, described the Second Amendment
right of the people to keep and bear arms as “the true palladium of liberty.” In
a recent symposium at the William and Mary College of Law, Prof. Saul Cornell
presented Tucker as an adherent of the view that the Amendment guarantees
a collective or civic right to bear arms in the militia, not an individual right
to have arms for self defense or as a dissuasion to tyranny. In response, my
article scrutinizes Tucker’s work in detail to demonstrate that Tucker did indeed
interpret the Amendment as protecting individual rights, and that Tucker’s
views are a significant reflection of the intent of the Framers.

 

[Henry Bowman]

DC makes a lot of big claims regarding the Heller team's "out of context quotes" from 18th and 19th century texts.

At this statge, the DC lawyers may figure that the Supremes are either going to take it up or not, no matter what they say, and are just writing for thier fan club's enjoyment.

 

[Ragnar Danneskjold]

Where in the constitution is the court given any authority to rule on the constitutionality of anything?

Guess who gave the Supreme Court the authority to rule on constitutionality.....
The Supreme Court.

You read it right. They gave themselves the authority.

 

[igor]

An oldie but a goodie: Supreme Court rules Supreme Court rules

 

[Brett Bellmore]

unless they want to totally defund the court

Nope, can't even do that. See atk's helpful post:

and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

They don't have the choice of not paying the Justices. Arguably, they don't even have the choice of not giving them cost of living adjustments, given that inflation is a result of Congressional policy. I suppose they could stop paying the heating bill, but the next time the Court met in thermal underwear to rule on the constitutionality of Congress's latest usurpation, they might not be as deferential as usual.

 

[AntiqueCollector]

They don't have the choice of not paying the Justices.

They are not required to increase their pay with inflation. And they can so defund the court that while the justices get their pay, no other funds to keep the court running (building upkeep, paper, etc.) are granted, making the justices use their pay to keep the court running...

 

[DKSuddeth]

And they can so defund the court that while the justices get their pay, no other funds to keep the court running (building upkeep, paper, etc.) are granted, making the justices use their pay to keep the court running...

In order to shut down, or defund, one branch of government, the congress would have to shut down, or defund, the whole government. defunding the judicial, which is a specifically enumerated power in Art 3 of the constitution, would not only be illegal and unconstitutional, but also political suicide.

 

[Gunnerpalace]

When (not if, when) 922(o) goes down it will be one of the greatest things ever done for RKBA, I can see an influx at the ATF of applications for MG's, and of course the prices go from 60 to 0 in 3.2 seconds, unless the gun dealers try the pre-ban and post-ban sale approach, anyway still is going to rock.

 

[illspirit]

At this statge, the DC lawyers may figure that the Supremes are either going to take it up or not, no matter what they say, and are just writing for thier fan club's enjoyment.

I was just about to suggest that instead they're writing things for the media to use to spin the trial (and subsequent ruling) in their favor. But then I realized their fan club and the media are one and the same. Carry on.

But, seriously, it seems to me they've all but conceded the loss, and are merely playing to the court of public opinion now. Should the Court see through this smokescreen, Fenty and friends will no doubt use it to further confuse the public (eg. "look at the evidence they ignored!") while they play the activist judge card.

It would be great if this tactic backfired on them and cause a larger split in our favor. Regardless of any of the Justices agendas, I can't imagine they take to kindly to being lied to. While this may be wishful thinking, it would be rather hard for the antis to cry about judicial activism if it ends up 6-3 or greater on the side of an individual right.