Heller Update
DC’s brief is here. Reading now. They seem confused that the Solicitor General is on their side and act as though the SG is pro-Heller.
Thanks to reader Michael.
Update: Nothing new yet. Same old tired arguments about how the second amendment, like Laurence Tribe whose article from yesterday the brief references, doesn’t mean what it says.
Update 2: Also says something like: But in case it does protect a right, it doesn’t matter because states can ban guns anyway.
Update 3: And if those two don’t work, banning handguns is good because handguns are dangerous and not militia weapons.
Update 4: Complaints about strict scrutiny being too much.
Update 5: DC’s gun laws are reasonable. No kidding, they say that.
Update 6: that concludes the Cliff Notes version.
March 5th, 2008 at 5:36 pm
so in other words it’s probably not worth reading?
March 5th, 2008 at 6:24 pm
It’s worth skimming over. Bring a barf bag. This isn’t the tightly reasoned masterpiece Gura’s brief was.
March 5th, 2008 at 6:26 pm
Mike, I think they did a reasonable job at the strict scrutiny thing but the rest is, well, crap.
March 5th, 2008 at 7:24 pm
Yeah, the standard of review is “where the ducks are”. The late Neal Knox worried about this after Planned Parenthood v. Casey (1992), where the Supreme Court departed from strict scrutiny and used a balancing test in abortion cases.
March 5th, 2008 at 8:10 pm
What exactly is your beef with the brief? I think they are pretty convincing with the legislative history of the amendment. And the SG isn’t really on their side at all when the SG says it’s an individual right to weapons for personal use. I was pretty convinced when I saw that Heller could come up with NO uses of “bear arms” at the drafting or before that had to do with keeping guns for personal use.
March 5th, 2008 at 9:16 pm
Well with all due respect, Planned Parenthood was the work of O’Connor who was not the sharpest tool in the shed.
March 6th, 2008 at 12:39 am
Hey Bob, they don’t work on their own, it takes a person to use them. Duh!
March 6th, 2008 at 5:05 pm
Bob, the entire case is about keeping functional arms in the home.
The right is “to keep and bear arms.” As in the right to both “keep arms” as well as to “bear arms.”
Two rights are there, 1 is having a functional firearm and the other is carrying a functional firearm.
Heller only wants to have a functional firearm.
If all I want to do is to keep an arm, why would I need to even address what “bear arms” means?
So no, Heller’s brief did not reference bearing arms because that is not what the case is about. There is no point to show what “bear arms” means when you are only interested in defining what “keep arms” means.
Many of the Amicus briefs did go into the history of “bearing arms”, including the British Common law which we borrowed much of our laws from. That is what those briefs are for, to fill in blanks outside of the main questions that were addressed in the Heller brief.