Friday, January 04, 2008

DC Heller Brief

The DC Heller Brief was recently released. As has been noted elsewhere, it is long. This part, at the top of page 15, is interesting

Nothing about this language or the opening clause as a whole so much as hints that the Amendment is about protecting weapons for private purposes.

“. . . the right of the people to keep and bear Arms, shall not be infringed.”

The second clause standing alone also has a dis-tinctly military cast. The crucial words are those that define the “right of the people” that the Amendment protects: “to keep and bear Arms.”

“Arms” are military weapons. The term histori-cally meant “[i]nstruments of offence used in war; weapons,” and the Oxford English Dictionary notes a 1794 dictionary that understood “arms” as “those in-struments of offence generally made use of in war.”

So far it seems that I am in agreement with DC.

Then they go on to say that not only are "arms" military weapons, but to "keep and bear" them has military connotations as well. Further, they focus on the notion of a "well regulated militia," and claim that it is the focus of the Second Amendment. We all knew how they were going to approach this case in this way. This paragraph on page 21 sums up DC's argument:

The Framers’ phrasing of the Second Amendment was in fact a natural way to protect a militia-related right. As the majority itself emphasized, the surrounding amendments are part of “a catalogue of cherished individual liberties.” Given the context, it made perfect sense to speak of “the right of the people” to describe what rights the people held against the federal government. Entitling individuals to exercise this right only as part of a state-regulated militia was consistent with the Framers’ recognition that the states and the people would defend each others’ interests.
I have an idea how Heller's attorneys will respond, but I do wonder how the Supremes will judge the arguments. DC certainly has done their homework, as far as a lay person like myself can tell.

The District of Columbia spends many pages outlining the crime problem that DC had before the ban , and how handgun use was an integral part of this crime. They spend many more pages dissecting the very few words in one of the shorter amendments in the Bill of Rights. They claim that the right of the people so clearly and briefly stated is not what it appears to be, but is instead a much more complicated right of the states, even though the framers were not so miserly with words in other amendments, such as the Seventh or Eighth.

A federal election looms, the Supreme Court is about to decide a Second Amendment case for the first time since before WWII. Indeed, a new era is upon us.


Post a Comment

Testing ...

<< Home