I know a little something about state constitutional RKBA and I can tell you that Gura made exactly the wrong argument– he started talking about how courts had interpreted these provisions 100 years later. Stevens was having none of this: he was allowed to make his point that it was 12-2 for a collective right in the early state constitutions. The correct argument was to put this in historical context: the citizens had just fought and won a revolution. Everybody was armed– what the state constitutions were saying was:”Hey, we will never disarm the militia like the British just did!” The English did something similar after they kicked James II out– they put a provision in their bill of rights guaranteeing an individual right for Protestants to have guns for personal protection. Stevens also made a big deal about this English bill of rights language showing that the english predecessor to the second amendment allowed parlimentary regulation of the right.

Gura could have neatly wrapped both these issues up together: The English Bill of Rights was adopted in the context of a revolution against a Catholic King who had disarmed the Protestants and ignored Parliament. The state bills of rights were adopted in the context of a revolution against an imperial power who had disarmed the militia.

Pennsy was an outlier because it was full of Quakers who were pacifists, and so they made the right one of self defense rather than military. Vermont had like 12 people in it when they became a state so they basically cribbed Pennsy’s constitution to save money. The Federal Bill of Rights was adopted in the context of nation-building: the convention toned down the states’ fire-breathing militia rhetoric in the first clause of the second amendment and then, in the second clause, reaffirmed the common law RKBA of individuals which was protected by the English bill of rights but, without making it explicity subject to congressional regulation.

Mike Brown
March 19, 2008
Lewiston Pistol Club email list, Heller Argument.
[Mike is our resident lawyer at the club and top dog at Idaho SSA.–Joe]

Demoting the Second Amendment to some lower tier of enumerated rights is unwarranted. 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. These are not second-class concerns. Yet preservation of human life is also the government’s chief regulatory interest in arms. Constitutional review of gun laws thus finds both individual and governmental interests at their zenith.

Alan Gura
Robert A. Levy
Clark M. Neily III
February 24, 2008
RESPONDENT’S BRIEF On Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit
[As I write this the oral arguments have just started. I’m anxiously scanning websites and listening to the news for hints as to what happened.–Joe]

On July 6, 1775, after Lexington and Concord, after General Gage had declared martial law in Boston on June 12 of that year, Congress issued the Declaration of the Causes and Necessity of Their Taking Up Arms. In the Declaration the Congress states, as one of the reasons for taking up arms, that Gage had disarmed the people of Boston and seized their weapons. Finally, one year after the Declaration of Causes, the Continental Congress concluded that it was forced to declare independence.

It would seem strange if the authors of the Bill of Rights were to insist upon protecting other rights against government interference yet exclude from that protection the auxiliary right which is necessary to protect the most fundamental of all rights, the right to life. Recall that the confiscation of private arms was list as one of the causes for taking up arms against the Crown. Recall that the Declaration of Right asserted that we are entitled to the protection of the laws of England, including the right to arms for self-defense, which was declared to be our birthright which was restored by act of parliament. Would they have written such amendments to protect against oppressive government, having recently experienced oppressive government, without protecting the auxiliary right which is necessary to protect the one right without which no other right may be enjoyed? Of course, as we have said, contemporary thinkers believed that this right had been secured in the Second Amendment.

At the time Madison wrote the Second Amendment, there was a right of the people to keep and bear arms for self-defense. This right was believed, by the Framers, to be an right inalienable. Every word of the Constitution, and the articles of amendment, was written, approved, and ratified by men who believed this.

James H. Warner
February 2008
Brief for amici curiae Disabled Veterans for Self-Defense and Kestra Childers in support of respondent.
[Only one more day until oral arguments.–Joe]

In 1946 there were 34,400 civilian firearms per 100,000 Americans and the murder rate was 6.9 per 100,000 population; 60 years later in 2004, gun ownership had almost tripled (85,000 guns per 100,000). Yet the murder rate had actually declined to 5.5 per 100,000. This evidence discredits the simplistic notion that increasing the civilian gunstock produces concomitant (or any) increases in murder.

Marc James Ayers
February 8, 2008
Brief of criminologists, social scientists, other distinguished scholars and the Claremont Institute as amici curiae in support of respondent.
[Only two more days until oral arguments.–Joe]

A collective right view could logically include all variety of weapons currently within the federal arsenal, because the states would be empowered to arm themselves sufficiently to thwart those same federal forces. Pet. Br. 21. Given the fact that there is no Constitutional limitation upon the types of weapons that the federal government can possess, a collective states’ right position could logically require a similar freedom for the respective state militias. If the logic behind the Second Amendment is to preserve the right of states to maintain militias that constitute a counterweight to federal forces, as Petitioners contend, then states would logically be allowed to keep and bear even the most potent and destructive weapons of modern warfare.

Renee L. Giachino
February 11, 2008
Center for Individual Freedom
[Only four more days until oral arguments.

Wow! For some time now one of my biggest fears in this case was the concern the Court might have about the harmful consequences of deciding the 2^nd Amendment was an individual right. It never occurred to me the consequences of a decision that it is “state right” (there is no such thing, states have powers not rights) might be an even bigger issue–it means the individual states are constitutionally justified if they want nukes. I love it, sort of a Cornelian dilemma for the fuzzy liberals.–Joe]

Amici therefore set out below the right to have and use arms in English law by the time of the Founding. Amici then show how early American authorities claimed and extended that right, including in interpreting the Second Amendment. The English right was a right of individuals, not conditioned on militia service; individuals might exercise the right collectively, but the unquestioned core was a broadly applicable and robust right to “keep” firearms in one’s home for self-defense. Even the “well recognized exceptions” confirmed this core right, by focusing on the carrying, not the keeping, of weapons. That core right is what the District of Columbia tramples. It bans keeping a handgun in one’s home (including use there in self-defense) and keeping any functional firearm in one’s home.

C. Kevin Marshall
February 8, 2008
Brief of the Cato Institute and history professor Joyce Lee Malcolm as amici curiae in support of respondent.
[Only five more days until oral arguments.

This brief makes it very clear the individual right to keep and bear arms was universally agreed upon, not only in America, but in England at the time of the writing of the 2^nd Amendment. It is not a recent “invention” by the Apex of The Triangle of Death.–Joe]

The District of Columbia Metropolitan Police Department (MPD) has failed to provide adequate police services to the District of Columbia’s citizens. The District is consistently a national leader in various crime categories while simultaneously demonstrating inability to adapt or change under the crippling bureaucracy endemic to the District. Compounding this deadly combination of high crime and inflexibility are constant examples of corruption, incompetence and outright misfeasance in the operation of the department.

[…]

Unfortunately, this is not a mere phase or temporary problem for the District. Since the 30-plus year old implementation of what amounts to a complete ban on owning, carrying or using firearms for self-defense, the MPD has cycled through new chiefs and precinct commanders with depressing frequency. The only constant within the department has been the incompetence, corruption, cronyism and failure to perform the most basic duty of a police department–to protect and serve.

L. Kenneth Hanson III
Brief of Buckeye Firearms Foundation LLC, National Council for Investigation and Security Services, Ohio Association of Private Detective Agencies, Inc., dba Ohio Association of Security and Investigation services (oasis), Michigan Council of Private Investigators, Indiana Association of Professional Investigators, and Kentucky Professional Investigators Association, as amici curiae supporting respondent.
[Only six more days until oral arguments.

I’ve only read about a quarter of the briefs supporting the respondent but surprisingly this brief makes the strongest case, for me, for supporting the RKBA in D.C. Had they concluded, instead of urging the court to affirm the lower court decision, asked the court to issue varmint hunting licenses (no bag limits) for residents for the taking of D.C. cops and politicians I would have cheered.

Assuming you have the stomach and the blood pressure meds for it, read the whole thing.–Joe]

Guns are not pathogens, and the loss of lives from guns is not a public health phenomenon in any meaningful sense. Vaccines could be taken as a public health analogy for guns. Vaccines are widely recommended or even mandated with the support of the APHA and AAP despite the fact that many are killed or injured by them, and their effectiveness is imperfect. But the APHA’s and AAP’s logic could be applied to vaccines with the false conclusion that all vaccination programs are harmful because all vaccines have some side effects. The benefits of vaccines and guns are both indirect, but the benefits are very real in both cases, and it is essential to address those benefits in any argument attempting to ban the product.

Andrew L. Schlafly
February 7, 2008
Brief for amicus curiae association of American Physicians and Surgeons, Inc. in support of Respondent.
[Only seven more days until oral arguments.–Joe]

When viewed from a national perspective, the right to keep and bear arms is not an archaic right. The right to arms is deeply rooted in our nation’s tradition and history. The Second Amendment to the Bill of Rights was adopted in 1791. The earliest guarantees to arms were adopted in 1776 by Pennsylvania and North Carolina. The most recent guarantee was adopted by Wisconsin in 1998. Since 1945, twenty one (21) states have adopted or readopted the right to bear arms in their state constitutions. Presently, forty-four (44) states have a guarantee to arms. The people have spoken in support of the right to arms. It is a mainstream right that is still valued in the 21st Century, and it is a vital part of the Constitution.

Robert Dowlut
February 2008
Brief for amicus curiae American Legislative Exchange Council in support of respondent.
[Only eight more days until oral arguments. This brief includes all the state constitution provisions for the right to keep and bear arms. A nice reference.–Joe]

Of course, we also urge the Court to reject the invitation of Petitioners to read a fundamental Constitutional right stated in plain English in the text out of the Constitution altogether. The American people can read, and they can see that unlike some of the other rights found by the Court on the basis of complex reasoning, the Constitutional text forthrightly promises that “the right of the people to keep and bear arms shall not be infringed.” No amount of artful linguistic acrobatics or fanciful historical tales can rub those plain words out of the text. We respectfully submit that the rights clearly stated in The Bill of Rights should be read broadly and vigorously enforced, rather than minimized to suit a particular ideology.

Peter J. Ferrara
February 2008
Amicus curiae brief of the American Civil Rights Union in support of respondents.
[Only nine more days until oral arguments.–Joe]

The Second Amendment did not erupt in a philosophical vacuum. The Amendment, like the remainder of the Bill of Rights, arose from widely shared judgments regarding citizenry, government, and the distribution of power. Three of these judgments are particularly relevant here.

Private possession of arms is not merely acceptable, but virtuous.

[…]

There is a natural right to arms, linked to that of self-defense.

[…]

A militia composed of all freeholders and voters is the only safe and effective defense of a republic.

David T. Hardy
Brief of amicus curiae, Academics for the Second Amendment
[Remember that. It is not merely acceptable, but virtuous! Don’t let the bigots try to shame you.

Only 12 more days until the oral arguments.–Joe]

Even in their homes, LGBT individuals are at risk of murder, aggravated assault and other forms of hate violence because of their sexual orientation. In fact, the home is the most common site of anti-gay violence. Thus, for certain LGBT individuals, the possession of firearms in the home is essential for a sense of personal security — a fact generally lost in the majoritarian debate about restricting individual’s access to, and use of, firearms. As shown below, not only do members of the LGBT community have a heightened need to possess firearms for self-protection in their homes, the Second Amendment clearly guarantees this most basic right. This Court should not permit the democratic majority to deprive LGBT individuals of their essential and constitutional right to keep and bear arms for self-defense in their own homes.

Michael B. Minton
Brief of Pink Pistols and gays and lesbians for individual liberty as amici curiae in support of respondent.
[As suggested by Kevin I downloaded the entire set of Heller briefs from Constitution Arms and found it quite useful.

One of the points made in the Pink Pistols brief is that majority rule without the minority right to self-defense leads to physical abuse and even death of those minorities. The essence of the way I see it is the minority individual has a much easier time defending themselves in court against a prosecution than being protected from the initial attack by an uncaring or hostile police force. Think of it in terms of what is required for successful prosecution versus a successful unlawful attack on the minority individual. Or, if you want, use the old standby, “It’s better to be judged by 12 than carried by six.”–Joe]