Via another email from Joe Waldron:
SAF FILES AMICUS BRIEF IN D.C. GUN BAN CASE BEFORE SUPREME COURT
BELLEVUE, WA – The Second Amendment Foundation has filed an amicus curiae brief in District of Columbia v Heller, the appeal of the landmark case that overturned the district’s handgun ban on the grounds that it unconstitutionally violates the Second Amendment right to keep and bear arms.
Written by attorney Nelson Lund at the George Mason University School of Law, the brief has already earned praise of veteran Second Amendment authority David Kopel, who noted in remarks on a popular Second Amendment website, “If you want to read a model Supreme Court brief, this is the brief to read.”
In the brief, Lund notes that the Second Amendment right of the people to keep and bear arms would remain even if the militia were disbanded.
“Our 48-page brief is tightly written, and it refutes the contentions by anti-gunners that the Second Amendment only protects some right of the states to maintain militias,” said SAF founder Alan Gottlieb. “The brief, which can be read on our website at www.saf.org <http://www.saf.org/dc.lawsuit/saf.heller.amicus.brief.pdf>, gets right to the heart of this case. We also note that the opposition arguments are absurd, and explain why.”
SAF’s brief further reminds the court that “In liberal theory, the most fundamental of all rights is the right of self defense.” It also notes that ‘the people’ referred to in the Second Amendment “has always been a much larger body of individuals than the militia.”
“Congress cannot abolish this constitutional right of the people by abolishing the militia,” notes Lund in the brief. “Neither can the right be limited to contexts in which its exercise contributes to the functioning of an organized militia that Congress is not even required to maintain.”
“While anti-gun extremists are beating drums about the downfall of civilization if the high court upholds the individual right,” Gottlieb stated, “we believe that the time has come for the Second Amendment to take its place as the Constitution’s insurance policy against tyranny and as our guardian against unjust laws that leave us defenseless against a growing criminal element.”
The Second Amendment Foundation is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.
Update 8:20 AM: As outspoken as I am, I still wouldn’t have said this even though I think it is true (page 4):
United States v. Miller, 307 U.S. 174 (1939), suggests an interpretation that is different from petitioners’, and more facially plausible, namely that private citizens might have a right to possess weapons that are “part of the ordinary military equipment or [whose] use could contribute to the common defense.” Id. at 178. This test (which is not Miller’s holding) implies that American citizens have a right to possess at least those weapons that an unaided individual can “bear” and that “could contribute to the common defense.” Today this would include, at a minimum, the fully automatic rifles that are standard infantry issue, and probably also shoulder-fired rockets and grenades.
That should generate some PSH.
Update 8:40 AM: I like this (page 15):
The militia has always been a small subset of “the people” whose right to keep and bear arms is protected by the Second Amendment. James Madison, for example, estimated that the militia comprised about one-sixth of the population when the Constitution was adopted.
Most obviously, women were not part of the eighteenth century militia, nor are they included today (except for female volunteers in the National Guard). Women, however, have always been citizens and thus part of “the people.” See, e.g., Minor v. Happersett, 88 U.S. 162, 165-70 (1874) (although women did not have voting privileges, they were part of “the people” who ordained and established the Constitution, and they have always been citizens). Just as women have always been covered by the First Amendment’s “right of the people” to assemble and petition for redress of grievances, and the Fourth Amendment’s “right of the people” to be secure from unreasonable searches and seizures, women have always had the same Second Amendment rights as men.
Women have rights? Who would have guessed? Certainly not the D.C. anti-gun bigots.
Update 8:50 AM: From page 17 and 18 we have another great point:
The opposite form of noncongruence was also significant. Those who were physically unable to perform militia duties, as well as those aged 45 and older, still had all their political rights, including the right to vote. Besides the numerous men in these categories, many other citizens were legally exempted from militia duties.28 Thus, many men with full political rights were not subject to militia obligations. The noncongruence of the militia and the people points to another fatal defect in petitioners’ interpretation of the Second Amendment. Nothing in the Constitution purports to forbid Congress from exempting everyone from militia duties, as this Court has recognized. 29 It would be absurd to conclude that if Congress effectively abolished the militia by enacting such a universal exemption, the right of “the people” to keep and bear arms would thereby vanish. Congress cannot abolish this constitutional right of the people by abolishing the militia. Neither can the right be limited to contexts in which its exercise contributes to the functioning of an organized militia that Congress is not even required to maintain.
Update 9:05 AM: One should not retain the impression that SAF is arguing for the private ownership and use of machine guns and RGPs. They say:
[A] significant gap has developed between civilian and military small arms. Eighteenth century Americans commonly used the same arms for civilian and military purposes, but today’s infantry and organized militia are equipped with an array of highly lethal weaponry that civilians do not employ for self defense or other important lawful purposes. The Constitution does not require this Court to blind itself to that post-Miller reality, or to hold that the civilian population has a right to keep every weapon that the militia can expect to find useful if called to active duty.
