The Potowmack Institute
NRA v. Reno (July, 2001)
A more thorough listing of Second Amendment cases with links can be found at
Nordyke et al. v. King was reheard after Heller opinion was
released and a new revised opinion was released.
Briefs filed in Nordyke:
Appellee's (Alameda Co.) Suplemental Brief, Sept. 12, 2008
Appellee's (Alameda Co.) Brief in Reply to Supplemental Brief of Appellants, Oct. 3, 2008
Other relevant cases:
US Court of Appeals, Seventh Circuit
US Court of Appeals, Mandamas Order, Dissent from Mandamas Order
Briefs in the Chicago cases that the Supreme Court will hear are at
The Ninth Circuit's rehearing of Nordyke.
DC government repeatedly petitioned the court to dismiss Parker under
the ruling of Seegars. The reason Parker proceeded is that
politically motivated right wing judges wanted to give a gun rights sop to
the gun lobby. The Parker panel released its opinion on March 9, 2007.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf
This is all very political, but what is celebrated as a great gun rights victory
in the Parker opinion is actually a devastating repudiation of the gun
lobby and its anarchic ideology. The larger issues are very far removed from
public knowledge and consciousness. Parker briefs and court documents
and more comment are available at:
On September 4, 2007, the DC Gov petitioned the Supreme Court for
certiorari — that is, that the Supreme Court will hear the case.
The name has been changed to DC Gov. v. Heller, Sup. Ct. case no. 07-290.
For comment see
http://www.scotusblog.com/movabletype/archives/2007/09/_second_amendme.html
The Supreme Court released an order in November, 2007, that it would take up Parker/Heller
Oral arguments were held March 18, 2008. The text is at
http://www.potowmack.org/helTRANS.pdf. Audio and video are on
C-Span.org. The Potowmack Institute was
not able to file to the Supreme Court but will file if the Supreme Court remands the
case to the Appeals Court for further considerations. That is very likely.
Other files:
From the Cato Institute website:
http://www.cnsnews.com/ViewNation.asp?Page=%5CNation%5Carchive%5C200305%5CNAT20030506b.html
Other cases:
HOME
http://www.potowmack.org/in_court.html
revised 03/19/2008
US v. Emerson PAGE
Printz and Mack PAGE
US v. Lopez PAGE
Second Amendment cases, A-T, 142K.
and
Second Amendment cases, U-Z, 260K.
Parker and
Seegars have been Completed through the DC Appeals Court.
Briefs in DC Gov. v. Heller, Appealed to
the US Supreme Court, decided June, 2008
http://www.potowmack.org/nordyke2.pdf
Supplemental Brief of Appellants (Nordykes) RE: Second Amendment Issues, Sept. 10, 2008
http://www.potowmack.org/nrdsp0910.pdf
http://www.potowmack.org/nrdsp0912.pdf
http://www.potowmack.org/nrdsp1003.pdf
United States Supreme Court, US v. Hayes, Feb. 24, 2009
http://www.potowmack.org/07-608.pdf
John Justice and Mike Woodward v. Town of Cicero, Aug. 14, 2009.
http://www.potowmack.org/07-3990.pdf
http://www.potowmack.org/09-4145.pdf
http://www.chicagoguncase.com/case-filings
http://www.ca9.uscourts.gov/datastore/opinions/2009/04/20/0715763.pdf
Also at:
http://www.potowmack.org/nordyke2.pdf
was released April 20, 2009.
Parker et al. v. DC Government
was filed by the Cato Institute February 14, 2003, to challenge the
District of Columbia's very restrictive, counter-productive, unenforceable
gun law on purist Second Amendment self-defense grounds. The NRA likes to
call itself a strictly gun rights organization, but its agenda is much more
broadly politically. The NRA filed a parallel suit in
Seegars et al. v. Ashcroft (changed to Gonzales),
DC Government and tried to have the suits combined and establish
its control. The attempt failed and the NRA went to Congress to try to have
the law repealed so it could not be tested in court. The NRA is not a true
believer. It does not want gun rights tested in court because it does not
have demagogic control over federal judges who do not have to stand for election. See
"Battle of
the Gun Ban", Robert A. Levy and Gene Healy, Cato attorneys for
Parker et al. Seegars and Parker district court oral
arguments were held in October and November, 2003. Parker was
suspended until there was a ruling in Seegars. The suspension was lifted
in November, 2005. Seegars has been completed and the NRA's arguments
were rejected, cert. denied. There was a conflict in the DC Court of
Appeals between Seegars and Parker which had to be resolved
either by the DC Court of Appeals en banc or the Supreme Court.
http://www.potowmack.org/parker.html.
http://www.scotusblog.com/movabletype/archives/DC_Final_Petition.pdf
http://www.scotusblog.com/movabletype/archives/DCGunsAppendixWithFoldOut.pdf
Discussion on the case can be found at:
http://www.fed-soc.org/debates/
NRA's parallel suit:
Seegars et al. v. Ashcroft and Williams (changed to Gonzales and Fenty)
http://www.nraila.org/media/pdfs/dc_case.pdf
Parker et al. v. DC Gov.
http://www.cato.org/pubs/legalbriefs/gunsuit.pdf
OCTOBER 16, 2001. US v. Emerson ruling, US Court of Appeals, Fifth Circuit
http://www.guncite.com/court/fed/99-10331.htm
http://www.potowmack.org/emeramic.html
District Court opinion:
United States v. Timothy Joe Emerson, Memorandum Opinion,
3/30/99, Federal District Court, Northern District of Texas.
The Potowmack Institute's amicus curiae brief in Emerson, which raised fundamental the issues, was filed with the US Court of Appeals in US v. Emerson in August, 1999. All other briefs in Emerson are available. The only other place where the Emerson briefs were available was the Second Amendment Foundation. Second Amendment Foundation links.
The District Court's opinion in Emerson ruled in favor of a personal right to be armed outside of any state or militia purpose which leads to a right to be armed outside of any legally authorized or permitted purpose. The prosecution's brief and the amici curiae in support of the prosecution argued against this new meaning for the Second Amendment and the right of militia. The Fifth Circuit had all briefs as of January, 2000. Oral arguments were held June 13, 2000. The Fifth Circuit's appellate opinion was released October 16, 2001.
The appellate ruling included Judge Garwood's lengthy obiter dictum which fabricated the gun lobby's individual right. In the end the right meant nothing for Emerson. He was remanded back to the district court for trial and was eventually convicted.
Emerson was followed with intense interest by the gun rights militants, but the gun lobby did not win the right it wants in Emerson. Public authority is still viable. There is no right of the people to be armed outside of accountability to public authority so that sovereign individuals can maintain a balance of power between a privately armed populace and any and all government. The most recent— and most sophisticated attempt— was Emerson. It was not new. The most complete previous attempt was US v. Francis J. Warin. It is not within the powers of the judiciary to dissolve law and government and return to the State of Nature which is the state of anarchy, but the gun lobby and its libertarian allies persist.
A civil right secured by government only becomes real when a defendent is brought before a judge for violating a law enacted by a legislature. When the judge says, "How do you plea, Guilty or Not Guilty?", the accused has the opportunity to say, "Your Honor, I plea Not Guilty on the grounds that the law is unconstitutional." If the judge and higher courts agree, the defendant is out of there.
The courts up until now have been consistent that there is no constitutional protection for the gun lobby's childish political fantasy and childish concept of the political self. Even a careful reading of the expressions of Antonin Scalia and Clarence Thomas, whom the gun lobby look to for salvation, does not find support for the kind of personal right the gun lobby/libertarians want against any and all government including state government. Scalia and Thomas, consistent with rightwing/libertarian ideology, are concerned with the expansion of central/federal authority under the Commerce Clause. They don't seem to recognize any protection against regulation by the states.
Promoting gun rights is about demagoguery. Judge Garwood's gratuitous dicta was a very reprehensible politicization of the federal judiciary to further a partisan political agenda.
Like
Judge Parker in Emerson,
Judge Magill in Silveira
objects to the unnecessary arguments. If the 5th Circuit
has politicized the judiciary then the 9th Circuit has
offered a counter politicization. The substantive debate
and discussion have not been taken up in the political
arena, in the news media, or among the falsely polarized
advocates so the burden of responsibility might just
as well fall on the courts. The courts, however, have not
yet gotten at the fundamental relationship between citizen
and state, between the individual and political community.
We put the issue before the Fifth Circuit in our
amicus curiae brief in US v. Emerson.
We will put in before the court again in our amicus in
Parker.
En banc opinion, May 6, 2003, denying further hearing of Silveira with lengthy dissents:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/019661EF3BAAF4C488256D1D00793D3A/$file/0115098o.pdf?openelement
In the Silveira opinion Judge Reinhardt stated that: "In any event, as we will explain infra at 32, 45-47, 53-55, it is clear that the drafters believed the militia that provides the best security for a free state to be the permanent state militia, not some amorphous body of the people as a whole, or whatever random and informal collection of armed individuals may from time to time appear on the scene for one purpose or another."
The dissenting judges in the denial of a rehearing stated that that was exactly what the right to keep and bear arms is about. When federal judges start preaching the Gun Lobby's version of the Marxist-Leninist theory of anarchy, it is about time the people start paying attention.
Judge Gould adds more confused obiter dicta.
A more thorough listing of Second Amendment cases with links can be found at
Second Amendment cases, A-T, 142K.
and
Second Amendment cases, U-Z, 260K.
J. Norman Heath,
"Exposing the Second Amendment: Federal Premption of State Militia Legislation,"
University of Detroit Mercy Law Review (2001)
Discusses
Houston v. Moore(1820)
Martin v. Mott(1827)
Perpich v. Dept. of Defense (1990)
Luther v. Borden(1849)
and other cases.
In the Supreme Court of the United States:
Martin v. Mott (1827), also with
opinion by Justice Joseph Story.
Aymette and Nunn give two opposing 19th century interpretations
of the right to keep and bear arms. In Aymette, the Tennessee Supreme
Court ruled that it was in the powers of the legislature to prescribe the manner
win which arms may be borne.
Aymette v. State (1840).
Nunn v. State (1846).
In Nunn the Georgia Supreme Court ruled in favor of more limited powers
of the legislature. Amyette and Nunn illustrate the point made
in the Potowmack Institute's
amicus in Emerson that there
was much confusion over the right to keep and bear arms in the 19th century.
This confusion became worse after the conscript militia died as an institution
before the Civil War. Nunn established no precedent. The Supreme Court
in Miller cited Amyette not Nunn. The need is for a public
debate today on what we want to live in today.
This ruling was made under the Georgia Constitution of 1798 with amendments. The
Bill of Rights in the 1798 reads:
This clause was amended in 1843 to read:
The 1798 George Bill of Rights also has the article:
"Any person who shall maliciously dismember or deprive a slave of life
shall suffer such punishmnet as would be inflicted in case the like
offence had been committed on a free white person, and on the like
proof, except in case of insurrection by such slave, and unless such
death should happen by accident in giving such slave moderate correction."
"The general officers of the militia shall be elected by the general assembly,
and shall be commissioned by the governor. All other officers of the militia
shall be elected in such manner as the legislature may direct, and shall be
commissioned by the governor; and all militia officers now in commission, and
those which may be hereafter commissioned, shall hold their commissions during
their usual residence within the division, brigade, regiment, battalion, or
company to which they belong, unless removed by sentence of a court-martial,
or by the governor, on the address of two-thirds of each branch of the general assembly."
"It shall and may be lawful for all major-gnerals and brigadier-generals to
be elected by the people of the respective divisions and brigades; and all
person subject to military duty shall be entitled to vote for the same only,
and shall be commissioned by the governor. All other officers. . . [continues as above]"
See Libertarian Fantasy on the Supreme Court in the Potowmack Institute archive.
United States v. Donald Wright, US Court of Appeals, 11th Circuit, 1997.
Christopher Pencak v. Concealed Weapon Licensing Board for the County of St. Clair, No. 94-73073, cite as 872 F. Supp. 410 (E.D. Mich. 1994), United States District Court, E. D. Michigan, Southern Division, Dec. 16, 1994.
United States v. Wilbur Hale, No. 91-3830, cite as 978 F.2d 1016, US Court of Appeals, 8th Cir., 1992.
Quilici v. Morton Grove, No. 82-1045, 82-1076, and 82-1132, cite as 695 F.2d 261, US Court of Appeals, 7th Circuit, 1982.
Second Amendment Foundation v. City of Renton, Court of Appeals of Washington, Division 1, Aug. 22, 1983.
Jos. M. Rabbitt v. Edw. P. Leonard et al., No. 172158, Cite as 413 A.2d 489, Superior Court of Connecticut, Judicial District of Fairfield of Bridgeport, 1979.
United States v. Ted E. Oakes, No. 76-1438, 564 F.2d 384, US Court of Appeals, 10th Cir., 1977
US v. Francis J. Warin,
No. 75-1734, 530 F.2d 103, US Court of Appeals, 6th Cir., 1976
Second Amendment Foundation's amicus curiae in Warin.
This is where the gun lobby argued its doctrine of political liberty most explicitly in federal court. The doctrine was explicitly and unequivocally rejected. The gun lobby has to secure "a basic right of freemen to take up arms to defeat an oppressive government" by defeating legislation. To defeat legislation it employs demagoguery and fraud. The fraud, updated with twenty years of pseudoscholarship, is now in federal court in US v. Emerson.
Charles F. Eckert v. The State of Pennsylvania, No. 70-3415, 331 F.Supp.1361 (1971), US District Court, E. D. Pennsylvania, 1971.
Commonwealth v Murphy, Supreme Judicial Court of Massachusetts. Suffolk. May 22, 1896. Not exactly contemporary but in the same category of civil regulation as the cases above.
The NRA's Firearms Civil Rights Legal Defense Fund filed an amicus brief in Perpich v. Dept. of Defense (1990), a National Guard case.
The Washington Legal Foundation also filed an amicus brief in Perpich.
The federal prosecutor's brief in US v. Emerson gives some discussion to these federal appeals circuit cases in response to the district court's "personal right" opinion:
re Brown, 189 B.R. 653 (Bkrtcy M.D. La. 1995).