http://www.keepandbeararms.com/Silveira/Halbrook.asp
The whole transcript is too lengthy to cut and paste here, so here's an exerpt.
The whole transcript is too lengthy to cut and paste here, so here's an exerpt.
THE COURT: OKAY. THANK YOU.
Now we have the oral argument of Mr. Stephen Halbrook.
He describes himself as “the leading expert on the right to keep and bear arms.â€
MR. HALBROOK: IF THE COURT PLEASE, OF COURSE THESE ARE POLICY ISSUES THAT HAVE BEEN RAISED IN THE LAST PART OF MY BROTHER COUNSEL'S ARGUMENT, BUT WE DO THINK THERE IS SOME VALIDITY TO THOSE COMMENTS IN TERMS OF SHOWING THE INJURY IN FACT TO THE PLAINTIFFS.
THE COURT: WHAT ABOUT THE STANDING QUESTION? I MEAN THERE IS AN ADMINISTRATIVE PROCESS THAT WAS ESTABLISHED TO PETITION FOR LICENSES AND REGISTRATION, AND IF THOSE APPLICATIONS WERE DENIED, A PROCESS BY WHICH AN APPEAL COULD BE TAKEN ULTIMATELY, AND A DECISION BOTH ON STATUTORY GROUNDS AND CONSTITUTIONAL GROUNDS COULD BE ADDRESSED BY THE D.C. COURT OF APPEALS. WHY SHOULDN'T YOU BE REQUIRED TO GO THROUGH THAT PROCESS?
Immediately the judge asks about exhaustion of administrative remedies, the first issue on his mind. That is very revealing.
MR. HALBROOK: WELL, FIRST OF ALL, THE LAW CLEARLY STATES AS A STATUTORY MATTER THAT NO HANDGUNS WILL BE REGISTERED. SO THERE COULD NEVER BE AN ARBITRARY AND CAPRICIOUS ABUSE OF DISCRETION IN REFUSING TO REGISTER HANDGUNS.
That is true, but there are better answers. The NRA-Halbrook case is supposed to be a civil rights action under 42 USC §1983. Such cases never require exhaustion of administrative remedies. This is what the Supreme Court said in Patsy v. Bd. of Regents, 457 U.S. 496, 500-01 (1982):
“This contention need not detain us long. Beginning with McNeese v. Board of Education, 373 U.S. 668, 671-673 (1963), we have on numerous occasions rejected the argument that a 1983 action should be dismissed where the plaintiff has not exhausted state administrative remedies. See Barry v. Barchi, 443 U.S. 55, 63, n. 10 (1979); Gibson v. Berryhill, 411 U.S. 564, 574 (1973); Carter v. Stanton, 405 U.S. 669, 671 (1972); Wilwording v. Swenson, 404 U.S. 249, 251 (1971); Houghton v. Shafer, 392 U.S. 639, 640 (1968); King v. Smith, 392 U.S. 309, 312, n. 4 (1968); Damico v. California, 389 U.S. 416 (1967). Cf. Steffel v. Thompson, 415 U.S. 452, 472-473 (1974) ("When federal claims are premised on [1983] - as they are here - we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights").â€
Civil rights litigators usually know this from day one.
THE COURT: BUT YOU COULD STILL MAKE THE CONSTITUTIONAL CHALLENGE, COULDN'T YOU?
MR. HALBROOK: YOU CAN MAKE THAT, BUT, ON THE OTHER HAND, WHAT WE HAVE TO SHOW IN THIS COURT, WE CAN SHOW. THE FACT THAT IT MIGHT BE POSSIBLE TO HAVE THAT OTHER AVENUE DOES NOT PRECLUDE AN ACTION IN THIS COURT ANY MORE THAN ANY NORMAL CIVIL RIGHTS ACTION CAN BE FILED EITHER IN FEDERAL COURT OR STATE COURT. AND, IN THIS CASE, WE HAVE THE ADDED PROBLEM OF THE ATTORNEY GENERAL AND THE THREAT OF PROSECUTION BY THE ATTORNEY GENERAL, WHICH WOULD NOT BE THE CASE IF WE WERE FILING IN THE D. C. COURT OF APPEALS AND SIMPLY DOING LIKE A WRIT OF MANDAMUS, OR SOMETHING TO TRY TO REQUIRE THE D.C. POLICE TO REGISTER HANDGUNS.
Oops. Mr. Halbrook does not come back forcefully with the exhaustion of remedies case law, not a single one.
THE COURT: MAYBE THE ATTORNEY GENERAL, THROUGH THE UNITED STATES ATTORNEY'S OFFICE, HAS A DIFFERENT POSITION ON PROSECUTING THESE CASES IN LIGHT OF THE NEW POSITION THAT THIS ATTORNEY GENERAL HAS TAKEN REGARDING THE SECOND AMENDMENT. I DON'T KNOW IF THAT'S GOING TO HAVE AN IMPACT ON THE DECISION TO PROSECUTE OR NOT, BUT MAYBE THAT'S SOMETHING THAT NEEDS TO BE ESTABLISHED BEFORE THIS COURT JUMPS INTO THE FRAY.
MR. HALBROOK: I WOULD CERTAINLY SUPPORT A DISCOVERY PERIOD TO FIND THAT OUT. IT'S OUR UNDERSTANDING THAT THERE HAS BEEN NO CHANGE. WE ARE NOT AWARE OF ANY CHANGE. ALL OF US WHO PRACTICE CRIMINAL LAW KNOW THAT THOSE CASES CONTINUE TO BE PROSECUTED. THERE HASN'T BEEN ANY CHANGE SINCE THE YEAR 2000 WHEN THE ADMINISTRATION CHANGED. YOUR HONOR, THE FACT THAT YOU HAVE RAISED THE QUESTION -- I AGREE THAT WOULD BE AN INTERESTING QUESTION TO DISCOVER -- IF THE UNITED STATES WANTS TO COME FORWARD AND SAY, "WE ARE NOT PROSECUTING THOSE CASES." THERE STILL IS INJURY, EVEN IF THEY DECLINED TO PROSECUTE BECAUSE THE ARRESTS ARE STILL GOING ON. THERE ARE SEVERAL KINDS OF INJURY HERE THAT HAS NOT REALLY BEEN DISCUSSED SO FAR. AND IT GOES BACK TO –
THE COURT: BEFORE WE LEAVE FROM THIS PROCEDURAL ISSUE, CONGRESS WAS INVOLVED, OBVIOUSLY, IN THIS PROCESS THAT RESULTED IN THE ENACTMENT OF THESE STATUTES THAT ARE BEING CHALLENGED BECAUSE OF THE UNIQUE RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA. AND CONGRESS AUTHORIZED, THROUGH ITS INACTION AND SAYING TO THE DISTRICT, "YOU CAN ENACT THIS LAW," AND THEY HAVE DONE THAT WHEN THEY FELT THAT THEY DIDN'T WANT A LAW TO GO INTO EFFECT. AND A PART OF THE PROCESS WAS THIS ADMINISTRATIVE PROCEDURE THAT WAS CREATED FOR THESE TYPES OF CHALLENGES TO BE MADE. AND IF CONGRESS HAS, IN EFFECT, SPOKEN ON HOW THESE TYPES OF CHALLENGES COULD BE MADE, WHY SHOULDN'T I REQUIRE THAT YOU GO THROUGH THE PROCESS, GO TO THE DISTRICT OF COLUMBIA COURT OF APPEALS, RAISE YOUR CONSTITUTIONAL CHALLENGE, AND LET THAT COURT ADDRESS WHETHER OR NOT THERE IS, IN FACT, A VIOLATION?
Some observers saw this statement as indicating that the judge might require Mr. Halbrook’s clients to apply for permits and go through the administrative process.
Will Mr. Halbrook remember the non-exhaustion law of section 1983?
MR. HALBROOK: WELL, THERE IS NO MANDATE BY CONGRESS THAT THAT PROCESS BE FOLLOWED. CONGRESS HAS SET FORTH THE PROCESS. I THINK, IN THE TYPICAL SITUATION, IF YOU WERE APPEALING FROM A DECISION NOT TO REGISTER, LET'S SAY, A RIFLE, WHICH IS REGISTRABLE IN THE DISTRICT, THAT YOU COULD GO TO THROUGH THAT ADMINISTRATIVE AND THEN JUDICIAL PROCESS AND ARGUE ARBITRARY AND CAPRICIOUS. YOU COULD MAKE CONSTITUTIONAL ARGUMENTS IF YOU WISHED, BUT –
THE COURT: ARE YOU SAYING IT IS NOT DESIGNED TO DEAL WITH HANDGUNS -- THAT PROCESS?
MR. HALBROOK: BY AND LARGE IT'S NOT, OTHER THAN WITH THE EXCEPTION OF YOU COULD RAISE CONSTITUTIONAL ISSUES, BUT YOU CERTAINLY COULDN'T RAISE STATUTORY ISSUES BECAUSE THE STATUTE CLEARLY STATES HANDGUNS SHALL NOT BE REGISTRABLE. AND YOU COULD NEVER MAKE AN ARBITRARY AND CAPRICIOUS ARGUMENT THERE THAT HERE I MET ALL THE QUALIFICATIONS, CLEAN RECORD AND WHATNOT. THEY WOULD BE COMMITTING AN ILLEGAL ACT UNDER THEIR ORDINANCES IF THEY DID REGISTER A HANDGUN. AND WE HAVE MORE THAN ONE FEDERAL CONSTITUTIONAL CLAIM AT ISSUE HERE. WE HAVE A FEDERAL STATUTORY CLAIM, THE ENABLING ACT. AND WE THINK THE FEDERAL COURT IS A PROPER FORUM TO BRING THAT CASE IN. IF WE ESTABLISH STANDING AND RIPENESS AND WE ESTABLISH OUR CAUSES OF ACTION, THEN THIS IS AN APPROPRIATE PLACE. THE FACT THAT WE MIGHT HAVE BEEN ABLE TO LITIGATE SOME OF THESE CLAIMS ELSEWHERE DOESN'T MEAN WE CAN'T DO IT HERE. AND, ALSO, WE ARE LOOKING FOR PROTECTION FROM PROSECUTION BY THE U.S. ATTORNEY'S OFFICE, NOT JUST –
THE COURT: ASSUMING YOU ARE CORRECT ON THIS PROCEDURAL ISSUE, WHAT'S YOUR INJURY?
MR. HALBROOK: THE INJURY WOULD BE SEVERALFOLD. ONE IS THAT THE PLAINTIFFS WISH TO GET HANDGUNS TO PROTECT THEMSELVES. THEY WANT TO REGISTER THEM. WE ARE NOT CONTESTING THE REGISTRATION SCHEME. THEY ARE VICTIMS OF CRIME. THEY LIVE IN CRIME-RIDDEN NEIGHBORHOODS. THIS IS ALL IN THE COMPLAINT. IT HASN'T BEEN CONTESTED. THEY WOULD BE ABLE TO PROTECT THEMSELVES.
THERE IS ALSO A CONSTITUTIONAL RIGHT AT STAKE, AND ENTERING INTO THE STANDING JURISPRUDENCE IS THE ZONE-OF-INTEREST CONCEPT, WHICH IS MENTIONED IN NAVEGAR BRIEFLY, THE FACT THAT IF YOU HAVE A CONSTITUTIONAL OR STATUTORY RIGHT TO SOMETHING, YOU MIGHT HAVE INJURY STEMMING FROM THAT. SO THEY ARE BETWEEN THE CLASSICAL ROCK AND HARD PLACE IN THE WORDS OF NAVEGAR. EITHER THEY EXPOSE THEMSELVES TO POTENTIAL ARREST AND PROSECUTION AND INCARCERATION -- A CRIMINAL RECORD -- OR THEY FORGO THE ACTIVITY. AND BY FORGOING THE ACTIVITY, THEY ARE DEPRIVED OF THE EXERCISE OF A CONSTITUTIONAL RIGHT, AND THEY ARE THREATENED WITH CRIMINAL VIOLENCE IN THEIR OWN HOMES. SO THAT'S THE INJURY IN FACT. AND THOSE KINDS OF INJURIES AREN'T DISCUSSED IN NAVEGAR. I THINK MAYBE A BETTER EXAMPLE WOULD BE TO COMPARE THE THREAT OF CRIMINAL VIOLENCE WITH THE ABBOTT LABORATORIES RIPENESS DISCUSSION. THE INJURY IN FACT WAS THAT THE PLAINTIFFS WOULD HAVE TO PUT DIFFERENT LABELS ON PRESCRIPTION MEDICINE. OUR INJURY IS THE THREAT OF CRIMINAL VIOLENCE AND THE VIOLATION OF A CONSTITUTIONAL RIGHT.
I DON'T SEE THAT AN ECONOMIC INJURY IS SOMETHING THAT IS MORE IMPORTANT THAN AN INJURY REGARDING THE THREAT TO THE INTEGRITY OF ONE'S PERSON, AND ONE'S HOME, AND ONE'S FAMILY. THE CASE LAW IS PRETTY CLEAR THAT THE RIGHT TO LIFE IS FUNDAMENTAL. THOSE KINDS OF INJURIES DON'T FIGURE INTO THE NAVEGAR ANALYSIS BECAUSE THAT WAS A MERE CORPORATION BRINGING THE LAWSUIT. AND IN REGARD TO THE FACT THAT THERE HADN'T BEEN A SUBSTANTIAL THREAT OF PROSECUTION IN THAT CASE -- DON'T FORGET THAT THE PART THAT THE COURT WOULDN'T CONSIDER -- THE CAUSES OF ACTION THE COURT WOULDN'T CONSIDER WAS BASED ON THE DEFINITIONS THAT WERE ALLEGED TO BE VAGUE. AND THERE WAS ALSO A COMMERCE-CLAUSE CHALLENGE THERE AS WELL. BUT THE POINT IS THAT THIS HAD NOT BEEN ENFORCED, AND IT WAS UNCLEAR HOW THE AGENCY, A.T.F., WAS GOING TO ENFORCE THOSE PROVISIONS. THEY DIDN'T CLEARLY APPLY TO THE PLAINTIFFS.
This question suggests that the judge is still looking for a technical ground to throw out the case.
The standing discussion in Gratz v. Bollinger, 539 U.S. ___ (2003), would have been powerful to use here. One of the students did not apply for admission there, just as Seegars et al did not apply for gun permits. Still the student had standing. Page 12 & 13 of Gratz were fine arguments to make, but Mr. Halbrook did not do so.
THE COURT: WELL, YOU DO AGREE THAT THESE STATUTES ARE NOT UNCONSTITUTIONAL ON THEIR FACE, RIGHT? I MEAN THEY CAN BE APPROPRIATELY APPLIED TO A CERTAIN SEGMENT OF SOCIETY, YOU WOULD AGREE, RIGHT?
MR. HALBROOK: NOT NECESSARILY. HERE'S WHAT I WOULD SAY IN RESPONSE.
THE COURT: A CONVICTED FELON WHO HAS USED GUNS IN THE PAST COULD NOT BE PROSCRIBED FROM HAVING A HANDGUN?
MR. HALBROOK: THAT PERSON HAS NO STANDING TO RAISE THE SECOND AMENDMENT, BUT IF LAW-ABIDING CITIZENS, WHO ARE QUALIFIED TO POSSESS GUNS UNDER DISTRICT AND FEDERAL LAW –
THE COURT: WHAT IF A PERSON HAS A MENTAL HEALTH ISSUE?
MR. HALBROOK: RIGHT. FEDERAL LAW PRECLUDES PERSONS WHO HAVE BEEN COMMITTED TO MENTAL INSTITUTIONS –
THE COURT: WHAT IF A PERSON HASN'T BEEN COMMITTED, BUT THEY HAVE GOT SOME HISTORY OF PROBLEMS THAT MIGHT POTENTIALLY CAUSE THEM TO BE A DANGER TO SOCIETY IF THEY HAVE ACCESS TO A HANDGUN?
MR. HALBROOK: WELL, IF A LEGISLATIVE BODY WANTS TO LEGISLATE ON THAT, THEY ARE FREE TO DO SO. AND THE FACT IS THAT THE FEDERAL STANDARD, FOR EXAMPLE, IS EITHER ADJUDICATED MENTAL INCOMPETENT OR HAS BEEN COMMITTED TO A MENTAL INSTITUTION.
THE COURT: WHAT ABOUT THE DISTRICT'S POSITION THAT EVEN IF WE GET TO THE CORE ISSUE, YOU CAN'T MAKE A CLAIM THAT THERE IS AN INDIVIDUAL RIGHT TO BEAR ARMS, AND THEIR POSITION IS PREDICATED ON LANGUAGE THAT HAS BEEN ESPOUSED FROM THE SUPREME COURT, STARTING WITH THE MILLER OPINION, WHICH IT SEEMS TO BE INDICATING THAT YOU CAN'T READ OUT THOSE PORTIONS OF THE SECOND AMENDMENT THAT MAKE REFERENCE TO THE MILITIA. AND AS THE SUPREME COURT INDICATED IN MILLER, YOU HAVE TO LOOK AT THAT PERSPECTIVE IN DECIDING WHETHER THERE IS A RIGHT.
If the judge agrees with D.C., then Mr. Halbrook has lost the Second Amendment argument.
Now would be the time for a powerful reply summarizing the strengths of the Second Amendment position and citing the numerous judicial and scholarly authorities, especially the helpful opinions in Emerson and Silveira, representing nine federal circuit judges.
MR. HALBROOK: YES, YOUR HONOR. WHAT THE SECOND AMENDMENT DOES IS TO RECOGNIZE THE SUBSTANTIVE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS. AND THEN IT GIVES AN IMPORTANT FEDERAL OBJECTIVE, A REASON WHY THEY ARE PUTTING THAT IN THE BILL OF RIGHTS. AND IT'S THAT A WELL-REGULATED MILITIA IS NECESSARY FOR THE SECURITY OF A FREE STATE.
The powerful response did not happen.
THE COURT: WE DON'T NEED A MILITIA ANYMORE, DO WE? I MEAN WE HAVE THE NATIONAL GUARD. WE HAVE GOT THE STRONGEST MILITARY IN THE WORLD -- MORE WEAPONRY THAN ANY OTHER SOCIETY COULD PROBABLY EVEN IMAGINE. SO WHY IS THERE A NEED FOR INDIVIDUALS TO HAVE WEAPONS IN ORDER TO PROTECT THIS NATION?
MR. HALBROOK: WHETHER THERE IS A NEED FOR A MILITIA ANYMORE, THE RIGHTS STILL EXIST AS DECLARED IN THE SECOND AMENDMENT. AND IT WOULD BE, I THINK, NOT TRUE TO THE SPIRIT OF THE BILL OF RIGHTS TO SAY THAT A RIGHT DOESN'T EXIST BECAUSE ONE OF THE NEEDS FOR THAT RIGHT IS NO LONGER CONSIDERED POLICY.
This was a good time to reply that millions of individuals every year need defensive weapons to protect their homes and businesses.
THE COURT: YES, BUT IF THE DRAFTERS OF THE BILL OF RIGHTS, WHEN THEY DRAFTED THE SECOND AMENDMENT, WANTED TO CREATE AN INDIVIDUAL RIGHT RESPECTIVE OF THE NEED FOR MILITIA, THEY COULD HAVE JUST SAID THAT.
They did say it, and they also mentioned an additional purpose. James Madison said it, describing the Bill of Rights as “personal rights.†The adjacent amendments say it.
Congress did not say the Second Amendment was a right of the State, but of the people. You can ask the same question. If Congress intended a state right, they could have said so or omitted the Second Amendment altogether. Look at the early authorities who were close to this. ETC.
MR. HALBROOK: YOUR HONOR, WHAT THEY SAID IN THAT AMENDMENT -- THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHOULD NOT BE INFRINGED, AND WHY WOULD THAT SUPPORT A MILITIA -- WHETHER THERE IS A MILITIA OR NOT, IT WOULD HELP ENCOURAGE A MILITIA BECAUSE GENERALLY PEOPLE AT LARGE WOULD HAVE FIREARMS AND KNOW HOW TO USE THEM. THEY WOULD TARGET-PRACTICE WITH THEM, AND IF THERE WAS A NEED TO CALL OUT MORE THAN THE NATIONAL GUARD -- LIKE IN WORLD WAR II, THERE WERE STATE PROTECTIVE FORCES CALLED OUT IN EVERY STATE, BEARING THEIR OWN ARMS -- PEOPLE WHO WEREN'T DRAFTED.
THE COURT: BUT AT THAT TIME THE MILITARY MIGHT OF THIS NATION HAD NOT BEEN ESTABLISHED, AND, THEREFORE, IN ORDER FOR THE NATION TO PROTECT ITSELF, THERE WAS A NEED FOR INDIVIDUAL CITIZENS TO HAVE WEAPONS SO THAT IN THE EVENT OF AN ATTACK, THE NATION WOULD BE ABLE TO CALL THOSE PEOPLE TOGETHER AND FORM A MILITARY THAT WOULD BE ABLE TO PROTECT THE NATION. BUT THAT'S NOT THE CASE HERE. I MEAN WE CALL UP THE NATIONAL GUARD ALL THE TIME, AND WE HAVE GOT A READY AVAILABLE CACHE OF GUNS AND WEAPONRY AVAILABLE FOR THEM.
This is a common gun control argument that needs to be answered fully every time.
Individuals, homes, and businesses do need arms now. The police and military are not enough. They government takes no responsibility for protecting citizens in individual cases.
MR. HALBROOK: THIS IS A PUBLIC POLICY ARGUMENT, I THINK. AND THE EXTENT TO WHICH THE SECOND AMENDMENT IS CONSIDERED NEEDED ANYMORE, I THINK THAT IF THE CONSTITUTION PROVIDES FOR SOMETHING CALLED THE RIGHT OF THE PEOPLE, AS IT DOES IN THE SECOND AMENDMENT -- ONE CAN MAKE PUBLIC POLICY ARGUMENTS ABOUT THE FIRST AMENDMENT RIGHT OF THE PEOPLE TO ASSEMBLE AND SAY THAT THAT'S NO LONGER NEEDED, OR BECAUSE OF THE DRUG WAR, WE DON'T NEED THE RIGHT OF THE PEOPLE TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE.
FIRST OF ALL, WE DON'T KNOW WHETHER THAT WILL ALWAYS BE THE CASE THAT AN ARMED POPULACE WILL NEVER BE NEEDED IN THE FUTURE FOR A FUTURE CONFLICT. BUT, SECONDLY, I DON'T THINK THAT AN ARMED INVASION FROM ABROAD, FOR EXAMPLE, IS THE ONLY PURPOSE TO SECURE A FREE STATE. CERTAINLY ON THE FACE OF THE AMENDMENT, IT REFERS IN THE PREAMBLE TO THE MILITIA BEING NECESSARY TO SECURE A FREE STATE. I THINK SECURING A FREE STATE ALSO MEANS THE POPULACE BEING ABLE TO PROTECT ITSELF FROM CRIMINAL VIOLENCE. A FREE STATE MEANS A POLITY OR A POLITICAL BODY WHERE THERE IS FREEDOM -- A COMMONWEALTH, SO TO SPEAK, AND THE WORD "SECURE" IS THERE. NECESSARY TO SECURE. THAT DENOTES THE WORD SECURITY.
THE COURT: ISN'T THE NATIONAL GUARD THE EQUIVALENT OF WHAT WAS THE OLD MILITIA?
MR. HALBROOK: IT ACTUALLY IS NOT, YOUR HONOR. THE PERPICH CASE DECIDED BY THE SUPREME COURT IN 1990 HELD THAT THE NATIONAL GUARD WAS FORMED UNDER THE FEDERAL POWER TO RAISE ARMIES AND NOT THE MILITIA CLAUSE OF ARTICLE I, SECTION 8. AND, THEREFORE, THAT'S WHY THEY CAN BE MOBILIZED AND SENT TO IRAQ AND OTHER PLACES LIKE THAT, BECAUSE THEY ARE NOT THE MILITIA. THEY ARE THE MILITIA WHEN THEY ARE NOT IN U.S. SERVICE, BUT THEN THEY PLAY A DUAL ROLE. WHEN THEY ARE FEDERALIZED, THEY ARE NO LONGER CONSIDERED MILITIA. SO, IN ANY EVENT –
THE COURT: BUT IF THEY ARE NOT FEDERALIZED, THEN THEY ARE THE EQUIVALENT.
MR. HALBROOK: THEY ARE THE ORGANIZED MILITIA. THE FEDERAL STATUTE RECOGNIZES THE UNORGANIZED MILITIA AS WELL. BUT, OF COURSE, LIKE OTHER COURTS –
THE COURT: WHAT'S THE UNORGANIZED MILITIA?
MR. HALBROOK: THAT WOULD BE ALL ABLE-BODIED MALES FROM AGE, I THINK, 18 TO 44, OR SOMETHING LIKE THAT. IT'S DEFINED BY FEDERAL STATUTE. EVERY STATE HAS AN UNORGANIZED MILITIA ALSO DEFINED BY STATUTE. AND THESE ARE PEOPLE WHO ARE CAPABLE OF BEING CALLED OUT IN THE EVENT OF AN EMERGENCY, IF THE NATIONAL GUARD IS MOBILIZED AND SENT ABROAD, FOR EXAMPLE. BUT SECURITY MEANS SECURITY IN YOUR OWN HOME AS WELL AS SECURITY FROM FOREIGN INVASION, FOR EXAMPLE. AND IT WAS ALWAYS THE ROLE OF THE MILITIA, AS WELL AS ALL ABLE-BODIED PEOPLE, WHEN YOU GO BACK TO THE HUE AND CRY, FOR EXAMPLE, TO PARTICIPATE IN THEIR OWN PROTECTION OR TO ASSIST LAW ENFORCEMENT IN APPREHENDING FLEEING FELONS AND THINGS LIKE THAT. AND THAT MIGHT HAVE FALLEN INTO DISUSE TO SOME EXTENT, BUT CERTAINLY THE ABILITY OF A PERSON TO PROTECT THEMSELVES IN THEIR OWN HOME, I THINK, IS ENCOMPASSED WITHIN THE PURPOSE OF THE SECOND AMENDMENT.
THE COURT: WOULD YOU HAVE TO, ON THE MERITS, ESTABLISH EMPIRICALLY THAT THE ABILITY TO POSSESS A GUN DOES, IN FACT, ENHANCE YOUR ABILITY TO PROTECT YOURSELF?
You certainly could establish that. Here you might cite Warren v. District of Columbia, 444 A.2d 1 (D.C. 1983), where D.C. police neglect allowed three rapes to destroy the lives of three unarmed women. The women sued D.C. for damages and were thrown out of court.
MR. HALBROOK: NO. I DON'T THINK WE DO HAVE TO DO THAT EMPIRICALLY BECAUSE THE CONSTITUTION HAS ALREADY SET THE VALUE THAT YOU HAVE A RIGHT TO KEEP ARMS. THERE IS NO MORE FUNDAMENTAL WAY TO KEEP ARMS THAN IN THE HOME, AND ARMS ARE CONSIDERED -- NORMAL COMMON ARMS ARE RIFLES, PISTOLS AND SHOTGUNS. AND THAT'S A HISTORICAL TEST AND A TEST THAT IS, I THINK, PRETTY UNIVERSAL THROUGHOUT THE VARIOUS STATES BECAUSE MOST STATES ALSO HAVE RIGHT-TO-BEAR-ARMS GUARANTEES. IT'S NOT AN EMPIRICAL ISSUE. IT'S NOT AN ISSUE ABOUT WHETHER D. C. --
THE COURT: THE GOVERNMENT CAN PUT RESTRICTIONS ON THE RIGHT TO BEAR ARMS.
MR. HALBROOK: YOUR HONOR, WE ARE HERE WANTING TO REGISTER HANDGUNS. WE ARE NOT HERE WANTING UNRESTRICTED ACCESS. WE'RE NOT HERE ASKING TO CARRY THEM, OTHER THAN IN THE HOME.
THE COURT: YOU'RE SAYING THAT THE GOVERNMENT CAN IMPOSE REASONABLE RESTRICTIONS?
MR. HALBROOK: YES, YOUR HONOR. YES, YOUR HONOR.
Here Mr. Halbrook appears to support any so-called reasonable regulation. He wants to register handguns. He says nothing about the right to arms. He does not invoke strict scrutiny. He gives away most of the farm.
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