Seegars v Ashcroft: The Brief of the District of Columbia
This is another document I can't post in its original form. It covers 34 pages of argument relating to the various claims, largely but not entirely devoted to the 2nd Amendment.
The brief for the District of Columbia starts off by citing the issues presented. This is fairly standard boilerplate; it's supposed to be a place for each counsel to set out what they think are the issues in light of established facts. It's not supposed to be a place for actual argument, and I imagine that most courts would not look kindly upon counsel including in this section disputed assertions of fact without pointing out the dispute or noting it as an issue.
But that's exactly what the DC counsel did, in a manner that is clearly favorable to their case. They describe the first claim as "Whether plaintiffs have standing when the complaint alleges they intend to acquire pistols sometime in the future, no plaintiff has been threatened with prosecution, and the likelihood of prosecution of the misdemeanors is remote".
If you've been following along, you'll realize that those statements are targeted at Navegar, which appears to be the governing precedent regarding pre-enforcement standing challenges. According to Navegar, there must be a specific threat of prosecution for the plaintiffs to have standing; a general threat is not sufficient. There does not appear to be a dispute about the presence of a specific threat, but the DC counsel adds that the likelihood of prosecution of the misdemeanors is remote.
That latter statement seems to imply that the District does not aggressively prosecute the cases when it becomes aware of them. This is not the case, as I recall several people mentioned during the lower court hearings. The District actively prosecutes under this statute for those cases it becomes aware of. This seems to me to be an attempt at concealing the "just don't get caught" standard that was applied to Carl Rowan.
Were I a judge on this case, I wouldn't be happy about seeing the claim that the chances of prosecution are remote. They're only remote if you never need to use it. If you have to use it, prosecution is certain. But reinforcing the idea that prosecution is unlikely strengthens the case against standing. Very slippery.
The first of the real arguments in the case addresses the history of gun regulation in the District. The first example is an 1828 law prohibiting the possession of more than thirty pounds of gunpower and regulating its storage. I'm surprised they bothered to include this one; it's clearly a fire-safety measure rather than a gun control measure. Fire was a BIG risk.
The second example is from 1858 and is more relevant, since it made it unlawful to "carry or have concealed about their person any dangerous weapon, such as... a pistol". The law was first applied to the city alone, but then later on was applied to the entire District in 1871. It's interesting that such a law would have been passed so close to the Civil War. Tensions were definitely high and many other prohibitions on carrying concealed firearms were passed in the same period.
It absolutely must be noted that this provision prohibited carrying, not possessing. The intent is clearly to address public life, not activities in the home. Concealed-carry prohibitions have a much longer history than outright bans on ownership or possession in the home, and there is no indication whether the law had a licensing provision. Most states have reached a compromise on carrying concealed weapons, allowing licensed individuals to do so but prohibiting unlicensed carry; most states have shall-issue provisions so that anyone without a felony record can get a license.
Suffice it to say, then, that the 1858 law is not a directly relevant precedent. Carrying a firearm is historically subject to more regulation than owning and possessing one in one's home. Furthermore, although the brief is not clear on this point, there may have been a licensing provision under these early laws, which would further dilute the infringement.
The next law cited in the brief was passed in 1901, and made it unlawful to carry a weapons with an intent to use it unlawfully. It's unclear to me why this law needed in light of the earlier one; either it was intended to loosen the law, or the earlier law was undone somehow (such as being found unConstitutional, perchance?). This later law, with the requirement of "unlawful purpose", seems reasonable to me; proving unlawful purpose would be difficult unless you had a subsequent crime to prosecute as well.
In 1932, Congress enacted a law forbidding possession of pistols by drug addicts or persons convicted of specific crimes. Licenses were required to carry concealed weapons outside of your home, business, or land; possession of NFA weapons (machine guns, silencers, short-barrelled shotguns) was also banned.
Before accepting this law as a useful precedent, though, I would carefully consider the parallels to the NFA Act. Although many understood the NFA to ban the weapons mentioned here, in reality the NFA only required an outrageously expensive tax stamp. Similarly, this law does not ban concealed carry -- it merely requires a license. And, of course, it must be noted that this law foreshadows the provisions of the NFA itself, which probably would have been struck down had US v Miller reached its' proper conclusion.
The brief has a footnote on this law noting that the NRA was an enthusiastic supporter. It should be noted that the NRA has given no indications that their position has changed; they still support the NFA and licensing of concealed carry.
The brief covers the arguments in the city council over the handgun ban extensively. By doing so, they again manage to introduce inaccurate information before the court. They do this by means of the trigger-lock requirement; the discussions on that requirement included an attempt to extend the "place of business" exception to the home, and the testimony they quote includes "More than that, that loaded weapon in the home often winds up in a criminal usage... Somebody goes and gets that gun in a moment of passion and shoots somebody else with it where otherwise they may have slapped them."
Since that claim is couched in hypotheticals it's not disprovable. But the word "often" is suspect. Certainly it has happened, and will probably happen again; but the vast majority of murderers have a long criminal history which already prohibits them from possessing firearm by way of the District's 1932 law. The specific implication being made here is to "domestic violence" incidents, and in the 1990s, a domestic violence conviction became sufficient to deny an individual the right to own a firearm.
I don't have statistics for 1976 on hand, but the ones cited from the testimony look suspicious to me as well. Specifically, "gun related accidents happen four times more frequently than incidents where gun-wielding homeowners foil intrusions" (see Kleck), and "children under 14 account for one quarter of accidental deaths."
The attorneys for the District point out that the complaint alleges a 5th Amendment violation but the brief filed by the plaintiffs does not argue that portion of the case. That's either a sign that the claim is being dropped or that the NRA just forgot to argue that claim. It's odd.
The 2nd Amendment arguments focus on the militia issue and the collective rights interpertation. "A constitutional right can be collective. Some state constitutions expressly recognize a right to arms for defense of the state." Except that the right is of the people, not of the state; and the state constitutions citing defense of the state usually also cite defense of the individual; and the brief once more misreads US v Miller to apply the militia test to the person rather than the weapon.
The claim is advanced that the 2nd Amendment was intended to resolve an unsettled ambiguity over whether the militia would have armed if Congress failed to provide them. The claim is that the First Congress rejected a right to arms unrelated to the militia.
I don't find this argument convincing. The ambiguity was resolved by ensuring a private right to arms, as many states acknolweged by passing laws requiring that every citizen possess arms for militia purposes provided by himself.
The District's attorneys argue a backup position as well, claiming that even if the 2nd Amendment conveys a personal right, the District's laws are "reasonable", and argue for a "reasonableness" standard based on some states' use of the same. I think this is clearly the wrong standard for a Constitutional right; furthermore, no state has found complete handgun bans "reasonable". Some cities or townships have, but not states.
Another latent issue here is that the District's attorneys argue that there are many other weapons available for self-defense use, and handguns are thus unncessary. This is correct, when discussing home defense (and if you ignore the fact that those other firearms must be trigger locked at all times). But only handguns can conveniently be carried on a regular basis in public.
Regarding the civil rights and legislative authority issues the District makes the same arguments I mentioned while discussing the lower court ruling: the plaintiffs did not allege purposeful racial discrimination, and the 1973 Home Rule legislation is probably a better source of authority for the statute. In my opinion the former argument depends on facts not in evidence, and the latter is really a technical matter of law which I am not qualified to consider.
In their 2nd Amendment arguments, the District cites the same language as the States amici brief, indicating that you cannot discard any of the Constitutional language, but must apply it so that every word has meaning. What they are missing here, and in their later discussion of US v Miller, is that individual ownership of arms is a necessary component of a militia. A militia is not composed of professional soldiers, such as the Army, Navy, and Air Force. It is composed of every citizen prepared to take up arms to defend his home.
The District addresses the argument in the State Amici brief, which cited Eldred v Ashcroft for the claim that a prefatory clause did not express a limitation. I don't particularly like the Eldred decision, but the argument made by the District is basically "Well, the Supreme Court didn't specifically overturn this other case, so we'll use the standard in this other case..." That other case is from 1966 (Graham v John Deere). Eldred is from 2003. I think Eldred is binding here.
The District also makes the mistake of claiming that a "well-regulated" militia means one controlled by the legislature. In fact, at the time the 2nd Amendment was written the meaning was closer to "properly functioning". This is a common and convenient mistake by those seeking to nullify the right to bear arms.
They make the familiar claim that the National Guard is the militia. This is absurd on its face, and even contrary to DC law which they themselves cite. They do have some decisions to cite for it; that doesn't surprise me. Courts have been desperate for years to deny the right to keep and bear arms. They cite one of them: "An 'unorganized militia,' a vestigial remnant of the 18th century system, exists on paper but current serves no function".
In the red states, we call this "the law", and it is not within the judicial power to ignore the law, only to apply it. Still, they do have a fair number of decisions to cite for this principle that membership in the unorganized militia does not trigger a Second Amendment right. Being wrong is rarely sufficient to stop a court.
The brief discusses at length the objections to giving the federal government control over the militia. Some of those objections seem prescient; that the federal government may disarm the militia by neglecting to train and discipline them, for example, which is clearly exactly what has occurred.
Robertson v Denver is cited. The case deals with a county in Colorado which decided to ban "assault weapons". The argument for this law claimed assault weapons were used in 10% of all crimes, 30% of organized gun trafficing, and 12% of drug-related foffenses". It's unclear what definition of assault weapon they were using.
The New England Journal of Medicine is cited at least once, for a study in 1991 supposedly demonstrating that the handgun ban coincided with a sharp drop in firearms crimes within the District. I'm skeptical. The NEJM is the same journal that published Kellerman, and medical doctors are not criminologists.
With respect to the trigger-lock provisions, the District is claiming that the trigger lock can be removed quickly in an emergency and that this ensures the weapon is available for self-defense. Whether they are right about the trigger lock is questionable, but they are wrong on the law: even if the trigger lock could be removed in time for use in self-defense, there is no provision in the law allowing that to be done. Thus, a resident of the District who did so would be subject to prosecution.
I will not bother to address in detail the District's arguments concerning the Home Rule statute (since I think they are probably right on that point) or their discussion of the civil rights statute (ditto).
Overall, the arguments here are mostly well-supported by precedent and by a number of historical accidents. To counter them, it must be understood that while the militia is intended to be a tool of a properly-functioning government, the 2nd Amendment does not merely secure the right of a State to arm its militia: it secures the right of the people to arm themselves. This does not preserve the militia itself, but it preserves the ability of the States to quickly form a new militia at need from the body of the people.
The thrust of the District's arguments is that the drafters of the bill of rights were interested in preserving a state militia against government power. This is accurate; the primary concern at the time was whether the new federal government would overpower the States (as in fact occurred in the Civil War). The idea of a threat to disarm individuals was not seriously considered because it was completely irrational; the United States was a frontier country beset by many enemies, and government protection was not available.
That is the bridge between the debates, which assumed the people would never be disarmed and therefore did not need to debate it, and the resulting amendment, which was intended to protect the ability of the States to call forth a militia, and which accomplished its purpose by securing the right of the people to maintain themselves in arms even in the face of Federal and State neglect.
In short, the 2nd Amendment was intended for exactly the situation in which we find ourselves today: the Federal Government has instituted a standing army, the States have permitted the militia to fall into neglect, in favor of a National Guard subservient to federal control. The only remaining palladium of liberty is the people's right to arms, by which the States may call upon the unorganized militia to resist tyranny should such become necessary.
The people are the militia.
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