DC's reply to brief in response (Heller)

[AntiqueCollector]

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.

No it's not illegal. It's in fact one of the largest checks Congress has on the other branches, the control over the funding...it would likely be political suicide right now but then again, if they make enough unpopular rulings, it might not be at some point in the future.

 

[AntiqueCollector]

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.

I think it's still an if, everything is in the air right now, until we see what the SCOTUS does. But I truly am looking forward to the day I can buy a brand new, affordable machine gun...I think if either A) cert is denied or B) an individual rights ruling is made by the SCOTUS we are looking quite possibly at the end to the MG ban. Of course it'll take a lawsuit. Someone with lots of money simply needs to send in a form to the ATF to make a new MG when the time comes, get denied and go from there, through the DC circuit...

 

[Aguila Blanca]

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.

Only a complete and TOTAL moron could possibly write that nothing in "... the right of the People to keep and bear arms shall not be infringed" gives the court a license to second guess a blatant infringement.

 

[strat81]

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.

In other news, it is illegal to own a television or radio in DC. A newspaper is just fine, thank you very much!

 

[AntiqueCollector]

I imagine the justices will not like DC saying the courts don't have the right to question them and their laws. Judges tend to not like statements like that one...

 

[raz-0]

I think this can be determined clearly.

The DC attorney shall be given one shotgun, unloaded, and with lock, as well as a brand new box of shotgun shells. These shall be placed within a locker to simulate a closet, with the exception of the key, which shall be in the attorney's pocket.

The Other attorney shall be given one claw hammer and shall stand 28 feet away from the DC attorney.

The judge shall activate a buzzer, at which time the attorneys will attempt to kill each other, and we will determine if the shotgun stored as required by law is indeed fully functional.

 

[Guido2006]

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.

That part is what worries me. Might offer any easy out for the court to avoid answering the carefully crafted narrow question posed by Levy and Gura. While weak, DC's only hope does seem to be muddying the waters by trying to change the focus from "individual right" to "handguns are bad".

 

[Thain]

Ask any lawyer, law student, or high school debate star... If you aren't going to win the case on the facts, the issues, and the evidence you have only one shot: make public policy arguement.

Its like Thank You For Smoking; I don't have to prove that I'm right, I just need to prove that you are wrong. `Cuz, if you're wrong then I must be right...

 

[jrfoxx]

I think this can be determined clearly.

The DC attorney shall be given one shotgun, unloaded, and with lock, as well as a brand new box of shotgun shells. These shall be placed within a locker to simulate a closet, with the exception of the key, which shall be in the attorney's pocket.

The Other attorney shall be given one claw hammer and shall stand 28 feet away from the DC attorney.

The judge shall activate a buzzer, at which time the attorneys will attempt to kill each other, and we will determine if the shotgun stored as required by law is indeed fully functional.

I second the motion to make "Lawyer Fighting" the new National Passtime.('Cause cock fighting and dog fighting are just cruel...)

 

[glummer]

Tactical success for them?

One of their tactics seems to work, even for 2A supporters; they talk about guns, not laws:

The Council concluded that handguns pose dangers that far outweigh their utility. ... eminently reasonable judgment.

The Council does not control handguns; they control only the laws, and thus, control only law-abiding people.
Their true position then, is "The Council concluded that handguns in the posession of law abiding people pose dangers that far outweigh their utility.
That is totally UNreasonable.
Arguments about guns, per se, are irrelevant, since the government will never have physical control of all guns; the government only controls the LAWS, and, indirectly, law-abidng people.
Gun control can only be reasonable if controlling the already-law-abiding is reasonable.
That's a position that most antis won't even admit to out loud, much less publicly support.
Whenever we allow the argument to be about guns, rather than laws, we are being out-maneuvered.

 

[romma]

I am hopeful yet dubious as to how this court views any individuals rights after the Kelo fiasco decision...

 

[rdhood]

glummer wrote:
Whenever we allow the argument to be about guns, rather than laws, we are being out-maneuvered.

This is true. The 2nd is about "arms".... not "guns". But since this ban is of a particular arm, a handgun, it is not possible to completely limit the subject to laws. Heller made sure to note that this is purely about laws, and they have ATTEMPTED to limit the argument to "Keep" rather than "Bear". They tried to limit the discussion to "keep" rather than "bear" so that D.C. could not make comments like "Heller would like to openly carry automatic weapons to High School football games". In terms of guns, Heller deferred to Miller and a few other cases to determine that "arms" included "guns" suitable for military use, which includes handguns, rifles, automatic weapons, etc.
So, IMO Heller decided to argue ONLY the possession (keep) part of the 2nd in order to not confuse the "keep" vs. "carry" arguments. Certainly one might expect to "keep" in his home any firearm that he was legally allowed to possess. So they claim that handguns are allowed by previous precedent, and argue the law pertaining to the "keep" portion of the 2nd.

 

[Smurfslayer]

What would happen if...

What if DC withdraws?

What if USSC grants cert, and then DC withdraws it's appeal? No precedential value correct? (other than 1st circuit).

 

[Noxx]

I imagine the justices will not like DC saying the courts don't have the right to question them and their laws. Judges tend to not like statements like that one...

I was thinking the same thing. Takes some really amazing hubris to make that statement.

 

[RoadkingLarry]

Just remember guys, the folks that wrote that tripe for DC are examples of the best and brightest of the anti-gun crowd, and yet we are still playing catch-up...

 

[rdhood]

yet we are still playing catch-up...

We have the 2nd Amendment. They have been passing laws in an attempt to nullify it ever since.

Catch up will ALWAYS be the condition of the pro-2A crowd. Catch-up in terms of striking down the laws that nullify the 2nd. Since we can't strike those laws before they are passed, we will always play catchup.

 

[AlabamaFamilyMan]

LAWFIGHT

"...with the exception of the key, which shall be in the attorney's pocket. "

Remember, some lunatic is breaking in and attacking. There should several similar keys in his pocket, and he has to get the right one, under panic and
fear.

 

[RLsnow]

why would the attourney need his gun? of course he will have a "less lethal" thing instead like pepper spray.

so we give the "bad guy" a pair of glasses and something covering his mouth and such...without telling the attourney, then he can try to spray the burgular, then as its not working proceed to get his shotgun, having made absoliutely certain lethal force is the last option...

(terribly sorry for mispelled words)

 

[DragonRider]

I agree with Smurfslayer, what would happen at this time if DC withdrew their case??

 

[Bubbles]

what would happen at this time if DC withdrew their case??

That's the beauty of Heller's response. Even if DC withdraws the case can progress because Heller also supported the case moving forward and cited the disparity in the way the lower courts have interpreted the meaning of the Second Amendment.

Mayor Fenty really, really, really messed up the anti's by deciding to go forward. If he'd been smart he'd have accepted the ruling from the DC Circuit Court of Appeals and simply started to permit residents to own handguns provided they were registered. Now he's facing (at worst, in his mind) the USSC potentially declaring that RKBA is a civil right and the incorporation of the Second Amendment.

 

[Megistopoda]

Bubbles, I agree, except for the incorporation part. Unless the SCOTUS rules very broadly, which seems a long shot.

Incorporation will likely be tackled in another case...but Heller would set the stage for that quite nicely.

The mention/reminder of incorporation (the "Spectre of Incorporation" as mentioned by O'Shea) in Heller's response (actually, two different places) is probably what excites me the most about this whole shootin' match.

O'Shea's comments can be read at Prawfblawg: http://prawfsblawg.blogs.com/prawfsblawg/2007/10/what-happened-1.html#more

 

[Bubbles]

Bubbles, I agree, except for the incorporation part. Unless the SCOTUS rules very broadly, which seems a long shot.

I was just stating Mayor Fenty's biggest nightmare. I also don't think the USSC will address incorporation either, but I'm betting the anti's have run through the "worst case" (for them) scenarios, which is why many of them tried to discourage Fenty from filing the appeal.

 

[ilbob]

I was just stating Mayor Fenty's biggest nightmare. I also don't think the USSC will address incorporation either, but I'm betting the anti's have run through the "worst case" (for them) scenarios, which is why many of them tried to discourage Fenty from filing the appeal.

Seems to me incorporation is not at issue in this case, since it does not involve a state, and very clearly DC is covered by the US constitution, being as it is a creature of the federal government. I think they will rule narrowly in favor of the 2A but it will only apply in DC because that is a much simpler question than incorporation. But you never know.

 

[LAR-15]

Since D.C. is not a state, how does that affect Heller's outcome on the states, territories, indian country and commonwealths?

 

[Mojo-jo-jo]

Since D.C. is not a state, how does that affect Heller's outcome on the states, territories, indian country and commonwealths?

USSC has jurisdiction over the entire USA, therefore a USSC ruling applies throughout the country.

I can't comment on Indian reservations. I know that they are "sovereign nations," but I don't know how sovereign. If abortion is legal and narcotics aren't, then I would assume federal law applies.