Wa Post, Feb 5: "Lawyers Fighting Gun D.C. Ban Argue Against Militia Focus.

[jfh]

from the Post today--

• 
  
  Lawyers Fighting D.C. Gun Ban Argue Against Militia Focus
  
  By Robert Barnes
  Washington Post Staff Writer
  Tuesday, February 5, 2008; Page A03
  
  If the Constitution protects an individual's right to possess a handgun, then the District's ban on such arms must be declared unconstitutional, lawyers for the man challenging the "nation's most draconian gun laws" told the Supreme Court yesterday.
  
  Lawyers for Dick Anthony Heller, a security guard, filed a brief saying that the District's categorical restrictions are so broad that they cannot comply with the Second Amendment's protection of the right to bear arms.
  
  "However else [the District] might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional," wrote Alan Gura, one of three lawyers representing those who challenged the District's 1976 ban.
  
  District of Columbia v. Heller, to be argued before the justices March 18, promises a historic examination of the Second Amendment, which holds that "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
  
  It has been 70 years since the court's last substantive review of the Second Amendment, and supporters and opponents of gun control remain adamantly divided on whether it protects an individual's right to possess guns or only provides a "collective" right of citizens related to military service.
  
  The U.S. Court of Appeals for the District of Columbia Circuit last spring became the first appeals court to use the individual-rights interpretation of the amendment to strike a gun-control law. Most of the courts that have examined the issue have ruled that it protects only the collective right.
  
  But Heller's brief said the amendment's preamble referring to the militia gives one, but not the only, reason the framers considered the amendment necessary.
  
  "No doubt or ambiguities arise from the words 'the right of the people to keep and bear arms shall not be infringed,' " the brief contends. "The words cannot be rendered meaningless by resort to their preamble."
  
  The District has said that even if there is an individual right to gun possession for self-defense, it can ban handguns if it provides access to other categories of firearms. The city permits citizens to own rifles and shotguns, though they must be kept either unloaded and disassembled or outfitted with trigger locks.
  
  Heller said it is "dubious" that those restrictions afford citizens even a fully functioning firearm. Even so, it does not mean the government can ban handguns "any more than the government could prohibit books because it permits newspapers and considers them an 'adequate substitute.' "
  
  Gun-rights supporters were shocked last month when U.S. Solicitor General Paul D. Clement, who represents the Bush administration and the government, agreed that the Second Amendment provides an individual right but also said that the appeals court had used the wrong standard in evaluating the District's law.
  
  Clement said the D.C. Circuit's broad opinion could call into question federal gun-control measures, and he recommended that the District law be sent back to lower courts for evaluation "under a more flexible standard of review."
  
  Heller's brief said gun limitations should be held to the court's most restrictive scrutiny.
  
  "Demoting the Second Amendment to some lower tier of enumerated rights is unwarranted," the brief said. "The Second Amendment has the distinction of securing the most fundamental rights of all -- enabling the preservation of one's life and guaranteeing our liberty."
  
  ​

Here's the current link to the article....

Jim H.

 

[Megistopoda]

Washington Post:

Hello from Chicago. The title of this article, "Lawyers Fighting D.C. Gun Ban Argue Against Militia Focus" is misleading, and perhaps disingenuous.

To the contrary, Heller/Gura are NOT arguing against a militia focus. The following passage from their summary explains:

"The Second Amendment’s text thus reflects two related, non-exclusive concerns: it confirms the people’s right to arms and explains that the right is necessary for free people to guarantee their security
by acting as militia."

They are by no means arguing against a militia focus - they are arguing that the guarantee of the amendment, the "right to keep and bear arms" is not exclusively controlled by the necessity of the militia.

"By its own terms, the rationale of the Second Amendment’s preamble is not exclusive. The operative rights-securing clause is grammatically and logically independent of the preamble. Skilled diplomacy, a powerful army, or adherence to the constitution may sufficiently provide for “the security of a free state,” and still the people would enjoy their right to arms. Most critically, the preamble cannot contradict or render meaningless the operative text."

 

[yokel]

Would-be caretaker elites such as the current United States Solicitor General, take heed:


RESPONDENT’S BRIEF:

“If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to
do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial
opinion.” Ullman v. United States, 350 U.S. 422, 427-28 (1956) (citation omitted).

Petitioners plainly disagree with the Framers’ Second Amendment policy choices. Petitioners’ remedy must be found within the Constitution’s Fifth Article, not with linguistic sophistries or an anemic standard of review that would deprive the right of any real force.