Category: 2nd Amendment

March 18th, at 10:00AM. Good luck Mr. Gura. Everything rides on this.

What if Washington Post instead of publishing this editorial, had published this one, pretending for a second that the Heller case was not about guns, but about something else:

On Jan. 11, the DC Appleseed Center for Law and Justice filed a brief in the Supreme Court, asking the court to uphold the District’s segregation law in the case of District of Columbia v. Heller. Our brief was co-sponsored by the D.C. League of Women Voters, the D.C. Chamber of Commerce, the Federal City Council, DC for Democracy and the Washington Council of Lawyers.

All of these local organizations have one key interest in common: They believe that important public policy questions affecting District residents should be decided by local elected officials, not by the federal courts.

In Heller, the U.S. Court of Appeals for the D.C. Circuit struck down the District’s segregation law on the grounds that any law segregating blacks and whites is, necessarily, a violation of the Fourteenth Amendment’s equal protection clause. We believe this is wrong.

Nearly every state has a law dictating that blacks and whites must use separate facilities, such as public restrooms and drinking fountains. And those laws vary not only as to the kinds of places that are segregated, but where blacks may or may not go in many cases as well.

There are hundreds of state and local segregation laws. Each of those measures was enacted by local elected officials in response to local needs and desires. And each of those local governments is called on to balance people’s desire to not use the same facilities as blacks against the obligation to ensure blacks also have separate but equal facilities.

In the District — where race mixing is particularly acute — our elected mayor and council struck this balance by prohibiting blacks in certain public places for whites but permitting separate facilities for blacks. Congress could have overturned this decision, but it did not.

People in other parts of the country might have struck this balance differently. In fact, many jurisdictions have permitted blacks and whites to freely use the same facilities, and freely intermingle, when the District’s elected officials have not.

But the question is not what is the right policy for the District but who should make that policy. The standard the Supreme Court should apply in the pending segregation case is whether the District’s segregation law is reasonable. And “reasonable” means that the law is a reasonable public safety response to the city’s race problems, and protects residents’ right to separate, but equal facilities for the various races.

The plaintiffs in Heller would prefer a segregation law different from the one enacted by the D.C. Council. But the Supreme Court should not defer to the plaintiffs and use the Fourteenth Amendment as a vehicle for federal courts to micromanage race relations in this country.

Instead, as Justice Anthony Kennedy said in a case we quoted in our brief, local legislatures should be allowed to devise “various solutions” to local problems “where the best solution is far from clear.” That is what our mayor and council did. The Supreme Court should uphold their decision.

This country, thanks to the works of a certain man, that this day has been set aside in honor of, wisely rejected the notion that the federal government had no role to play when it came to ensuring equal protection under the law, and protecting fundamental rights of its citizens, all its citizens, regardless of state laws to the contrary.  Walter Smith should understand the dangers of reviving this kind of thinking where fundamental rights are concerned.  Sullying the constitution for the sake of local interests does not have a proud history and tradition in this country.  Let’s leave that practice in the past where it belongs.

Hat tip to War On Guns for the pointer.

Is it even possible to withdraw an Amicus Brief that’s been filed with The Supreme Court? I suppose The Administration could repudiate it, which I doubt you’ll see out of Bush, but I don’t know whether it could be withdrawn.  Even if it could, can you prevent the justices from reading it? I think the damage is done here, with no real way to punish the lame duck Administration.

I’d suggest we keep focused on 2008 here, but I’m not sure there’s much for gun rights folks to get excited about in a prize fight between Romney and McCain.

I’m sure most of you heard of the group of historians who published a brief favoring The District in Heller. Clayton Cramer points out some important facts about these historians, and is asking for some help in digging up information:

Now, I ordinarily wouldn’t see much point to embarrassing these people by pointing out that they were taken in by this tenured conman–after all, many professional historians were. But when you tell the Supreme Court, “Trust us! We’re experts on this subject of the Second Amendment and guns in early America,” it doesn’t say much when it turns out that they were snookered by one of the grossest, most obviously fraudulent history books that I have ever seen–and this is a topic on which they are claiming to be experts! (And a law professor, James Lindgren, and myself, who is nobody, ended up spotting and exposing the fraud.) So here’s what you can do: find any published reviews by any of the fifteen historians above of Arming America and send them to me, pronto. Here’s what I have so far:

Read the whole thing.

Here’s an amicus brief filed on behalf of The District of Colombia from former Clinton Administration officials.

The question presented in this case is whether the Second Amendment prevents the District of Columbia from enacting public safety measures such as the handgun law at issue here that are designed to combat the violence that firearms enable a criminal to perpetrate against the District’s citizens.  Amici submit that the answer is no.  Properly understood, the Second Amendment does not prohibit a legislature from enacting a law that has neither the purpose nor the effect of interfering with a State’s operation of its militia in accordance with state and federal law.  That was the position the United States Department of Justice maintained  throughout the Twentieth Century in successfully defending federal firearms laws against Second Amendment challenge and in evaluating the constitutionality of proposed firearms legislation.

This isn’t to say I’m happy with the Bush Administration.  Bush has not been the friend to gun owners he should have been to deserve an endorsement from the NRA, but it’s worthwhile to consider what kind of brief we’d be looking at had Gore won in 2000, or Kerry won in 2004.

I’m guessing these guys Dave Hardy is talking about don’t have much experience filing briefs with the Supreme Court.  So the Supreme Court actually pays someone to sit there and count the words to make sure it’s just within the right limit?

Take a look at Clayton Cramer’s and Joe Olsen’s response to one of D.C. major assertions in Heller, that “bear arms” has some kind of military connotation.

Looks like DC filed it on time.  I guess you have to hand it to their attorney, who’s timeliness was rewarded by a sacking.

Hat Tip to Dave Hardy

Alan Morrison, who was handling the case on behalf of the District of Columbia, has been fired.

UPDATE: Dave Hardy has more.

Jeff Soyer relays a story about a felon charged with carrying a firearm asserting his second amendment rights.  Now, if I recall, New York is in the second circuit court of appeals, which has taken no position on the second amendment.  I expect the lower courts will end up ruling the second amendment is no obstacle to disarming felons, but we’re going to see a lot of cases of criminals challenging their conviction on gun charges by asserting their second amendment rights, and Jeff is absolutely correct to point out the Brady’s will be happy to point to all of this as an example of what will happen if second amendment rights are taken seriously.