It's not about guns...
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District of Columbia and Adrian M. Fenty,
Mayor of the District of Columbis,
Petitioners,
v.
Dick Anthony Heller,
Respondent
On Writ of Certirorari to the
United States Court of Appeals
for the District of Columbia Circuit
Parker et al. v. DC Gov.
was appealed to the Supreme Court as DC Gov. v Heller.
Certiorari was granted Nov. 20, 2007.
Oral
arguments were held March 18, 2008.
The Supreme Court released its opinion on June 26, 2008.
http://www.potowmack.org/hellerSC.pdf
More discussion is on the
HOMEPAGE
.
We should not have to wait until an issue gets to the Supreme Court to have enlightened, civicly responsible public discourse. The gun lobby first argued its anarchic doctrine in US v. Francis J. Warin in the US Court of Appeals, Sixth Circuit, in the 1970s. The armed populace fantasy lost. The gun lobby and its libertarian allies retreated into the law journals for twenty years to fabricate with an enormous volume of pseudoscholarship its preposterous doctrine. Now with a growing number of anarchic, politically appointed, highly ideologically motivated federal judges the doctrine has made its way through the federal appeals courts to the Supreme Court.
The first case was US v. Timothy Joe Emerson
in the US Court of Appeals, Fifth Circuit, in 1999.
Briefs filed in Emerson are at
http://www.potowmack.org/emeramic.html
Emerson was the opportunity to begin public
discourse on the most vital and fundamental issues of
political life, the relationship between citizen and state,
the difference between the Constitution as a frame of
government and the Constitution as a treaty among
sovereign individuals, the difference between
civil society and the State of Nature which is
the state of anarchy. It did not happen.
Other cases have been:
Silveira v. Lockyer
http://www.potowmack.org/silveira.html
Nordyke v. King
http://www.potowmack.org/nordyke.html
Both in the Ninth Circuit.
The current round began with Parker in the US
Court of Appeals, DC Circuit, in 2003, filed by Cato
Institute lawyers on behalf of residents of the District of
Columbia to challenge DC's absurd, counter
productive, unenforceable gun control law. The case
was immediately followed by the National Rifle
Association's case Seegars et al. v. DC Gov.,
Ashcroft.
http://www.potowmack.org/seegars.
html.
The NRA sought to combine the cases so it could
control them. The NRA does not want gun rights cases
in court. It cannot control federal judges with
demagoguery. Seegars and Parker
proceeded separately and were decided in conflict with
each other.
Nineteen briefs in support of the DC Government were filed Heller. The Potowmack Institute was not able to file to the Supreme Court in Heller because the obstacles of great expense and finding an experienced Supreme Court lawyer. The Bush DOJ petitioned the court to remand the case to the appeals court for further consideration. Remanding would have given the Potowmack Institute opportunity to file a brief with the benefit of having read all the other briefs filed. It probably would not have made any difference. The justices were hell bent on making a political ruling.
What is most striking about the briefs is that the enormous volume of argument, history, constitutional doctrine presented in the briefs in support of the DC Government is nowhere a part of the larger public consciousness. The gun rights crowd follows these cases with intense interest. There is nothing at all comparable on the gun control side. There are more than 250 individual and group co-signers to the DC support amici. The Potowmack Institute has tried to enlighten the rank and file of some of these co-signers to what James Madison was really describing in Federalist Paper No. 46 for as much as ten and fifteen years and found nothing but blank stares and overt hostility that there something more to this than promoting trigger locks. Now they have signed on, many years and many dead bodies later, to briefs that make the case. Despite the great volume of information and argument there are still very important arguments that have not been made.
The reason why there is a claim to be privately armed for individual
self-defense is because the gun lobby, led by the NRA, works very
hard and very successfully to defeat any laws that would apply
against the lawless because the same laws would apply against the
"armed populace at large", a collection of sovereign individuals who
made a treaty not a government, which the NRA argued without
success to the Supreme Court in Perpich.
http://www.potowmack.org/nraperp.pdf,
against the NRA's "armed citizen guerrillas",
http://www.potowmack.org/emerappd.html#ak47
http://www.potowmack.org/parkappe.pdf, p. 40
and others with insurrectionist fantasies. Any judicial protection for
a fundamental or procedural right to private gun ownership outside
of a military or militia context validates an anarchic, insurrectionist
doctrine.
The one point of policy which the armed populace at large fantasy cannot accommodate is accountability to a governing authority. Accountability means specifically registration of ownership. Registration is what the gun lobby, led by the NRA, works hardest to prevent. It has not, shall we say, registered on the gun rights militants yet that they did not get what they want in the Judge Silberman's Parker opinion. After many pages of fallacious pap about an individual right to be privately armed outside of any military or militia context Judge Silberman falls back on original design and intent as manifest in the militia concept:
Registration of ownership, militia call up, proficiency testing, public safety regulation, screening for militia suitability. Hey, these are the makings of a firearms policy. A coerced civic obligation (conscription) trumps all other rights, interests and considerations. The Supreme Court has not invalidated Silberman's conclusions. If the issue is addressing gun violence, the DC Government did not need to take this case to the Supreme Court. It needed only take Judge Silberman at his word, abandon its unenforceable gun law, come up with a new law that it might be able to make work, and then to make it work for real take the same policy conclusions to Congress for a national firearms policy.
The gun lobby would fight viciously an attempt to implement Judge Silberman's policy conclusions. Can't we make this election season interesting? Can't we ask presidential candidates particularly Republican candidates who pander to the gun vote: Do you accept and support Judge Silberman's conclusions and will your administration work towards a national firearms policy based on these conclusions?
The opinions of the courts, the briefs below and the present election season are an opportunity to change the political culture. Will it happen? The gun vote is not about guns. It is about controlling political outcomes in a much larger political struggle over the modern state and the political economy of capitalism. The gun vote will remain a pernicious and obstructionist factor in American politics until it is addressed on its proper terms and neutralized. Judge Silberman has given the opportunity. Will it happen?
Petitition of Petitioner District of Columbia, filed Jan. 4, 2008
Petitition of Respondent Dick Anthony Heller, filed Feb. 4, 2008
Brief of the Bush Adm. Department of Justice
See NRA press release above for NRA comments.
Amicus Curiae in support of the District of Columbia, filed Jan. 11, 2008
American Academy of Pediatrics
National Network to End Domestic Violence et al.
National Association for the Advancement of Colored People Legal Defense and Education Fund
American Public Health Association et al.
Vice President Cheney, 55 Senators, 250 Members of Congress
Claremont Institute/Criminologists
Cato Institute/Joyce Lee Malcolm [The Right Inherited From England]
American Legislative Exchange Counsel
American Association of Physicians and Surgeons
Jews for the Preservation of Firearms Ownership
Women State Legislators and Academics
Georgia Carry [Racist Roots of Gun Regulations]
Disabled Veterans for Self-Defense, et al.
Libertarian National Committee
Foundation for Free Expression
American Hunters and Shooters Association and a bunch of generals
Academics for the Second Amendment
American Center for Law and Justice
American Legislative Exchange Council
Citizens Committee for the Right to Keep and Bear Arms
Former Justice Department officials
International Law Enforcement Educators and Trainers Association
Jews for the Preservation of Firearms Ownership
Joseph B. Scarnati, III, President Pro Tempore of the Pennsylvania Senate
Major General John D. Altenburg, et al.
Mountain States Legal Foundation
National Shooting Sports Foundation
[PotowmackForum], interactive posting
[RESOURCES].
Newspaper, magazine, journal articles, books, links