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Looking at the Brady Brief

The Brady Center to Prevent Gun Violence brief was put online today, and can be read here. Joe Huffman already notes a serious contradiction within its fundamental argument. There are a few things that stood out to me as well.  Note that my criticisms here are a layman’s criticism, and can’t be taken as a serious view of the brief’s legal merit. But I will have a go. From the Brady Center brief:

Such firearms regulations are paradigmatic examples of the exercise of state “police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (internal quotation marks omitted). Because of the gravity of the states’ responsibility to protect public safety and welfare, they are generally afforded “great latitude” in exercising those police powers. Id. Firearm regulations are clearly an appropriate exercise of those powers, for the “promotion of safety of persons and property is unquestionably at the core of the State’s police power.” Kelley v. Johnson, 425 U.S. 238, 247 (1976).

Gonzalez v. Oregon was a case that involved the applicability of the Controlled Substances Act to Oregon’s “Death with Dignity” law. The context of the case had nothing to do with fundamental rights, and everything to do with the powers delegated to the Attorney General under the CSA vs. the state police power. Additionally, Kelley v. Johnson is a case from 1976 that had to do with whether a police officer had a fourteenth amendment right not to cut his hair per the regulations of his department. Forgive me if these cases don’t seem to shed any light over what kind of deference the state police power ought to be given when it comes to Second Amendment rights under the 14th Amendment.

The forceful governmental interests in protecting public safety and welfare that justify the states’ exer- cise of their police powers can also justify limitations on the exercise of constitutional rights. This is particu- larly true when the exercise of the right at issue in- volves conduct that affects the welfare of the commu- nity. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303-304, 308 (1940) (Although the First Amendment’s Free Exercise Clause protects both the “freedom to believe and freedom to act,” “[t]he first is absolute but … the second cannot be.”)

Cantwell was the case that incorporated the First Amendment’s free exercise of religion under the Fourteenth Amendment. But what’s really amusing is that the statute at question was whether the State of Connecticut could require a license for those soliciting for religious or charitable purposes. Get that? Whether they could license a fundamental right, and the answer was no. The Brady’s are even cherry picking the quote. The full quote from the ruling is:

The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the  second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.

Emphasis mine. Give a bit of a clearer picture as to what the court was saying? So clearly, applicable to the Second Amendment, one doesn’t have the right to rob, brandish, or threaten with a firearm, just because one has a right to keep and bear. But the power to regulate this “freedom to act” must not “unduly infringe on the protected freedom.” The Cantwell Court goes further to say:

Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The state is likewise free to regulate the time  and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.

That contrasts sharply with the Brady claim that regulations “such as licensing for gun dealers and owners” are among the types that should be upheld by the Courts in their quest to establish how we are to protect this important fundamental and enumerated right. This is just one brief aspect of the brief, but there is no doubt much more that could be picked apart. I will leave that for others who are more skilled an qualified on legal matters than I am.

21 Responses to “Looking at the Brady Brief”

  1. I wonder if we’ll see any briefs filed in support, that don’t revolve around firearms. After all, there’s more to the 2A than just firearms.

  2. Sebastian says:

    Cemetery:

    We might when that question is at hand, but for now it isn’t. If the Court had taken Maloney, I’d suspect you’d see more of that, but they didn’t.

  3. Arnie says:

    Bravo, Sebastian! An excellent exposition on how those two rulings should apply.
    If those rulings are the type of legal precedent the Brady’s are going to use in this case, we won’t need to present a case – they will have already done so for us!

  4. mikeb302000 says:

    “the Brady claim that regulations “such as licensing for gun dealers and owners” are among the types that should be upheld by the Courts in their quest to establish how we are to protect this important fundamental and enumerated right.”

    Is that to say that the Bradys suggest the reason for the regulations they propose is so the Courts can “establish how we are to protect this important fundamental and enumerated right?.”

    I thought the reason they propose certain, as they call it, “common sense gun laws,” which they say are allowed in Scalia’s opinion in Heller, is to diminish gun violence without trampling gun rights.

    In other words, here’s how your statement could read:

    “the Brady claim that regulations “such as licensing for gun dealers and owners” are among the types that should be upheld by the Courts in their quest to address the problem of gun violence.”

  5. Pete says:

    Hahaha. Did they really cite Cantwell v. Connecticut? Replace religion with firearms in Justice Robert’s opinion and the Brady’s are SOL.

    “to condition the (ownership of firearms) for the (purpose of self-defense held up under Heller) upon a license, the grant of which rests in the exercise of a determination by state authority as to what is (allowable for self-defense), is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.

    Gura isn’t even against licensing (for now) from what I have read. The Bradys seem to have beaten him to the argument.

  6. Pete says:

    Hey mikeb.

    Just wait until a case after incorporation (yes, McDonald will succeed, its just a question of due process or P&I) challenging US v Miller. That would be the proper time for you to panic. Not much will change in regards to crime after McDonald, which I presume is why you oppose gun rights.

  7. Although the First Amendment’s Free Exercise Clause protects both the “freedom to believe and freedom to act,” “[t]he first is absolute but … the second cannot be.”

    This is perfectly reasonable, but the Bradies err in assuming that ownership and carrying of firearms are analogous to “acting” in the First Amendment example.

    The purpose of attempting to regulate belief is to put prior restraint on undesireable behavior. Affirming an absolute right to freedom of belief is to affirm that we can’t punish or restrict a person for being _capable_ of taking unacceptable actions; law can only touch those actions themselves.

    In the Second Amendment context, the regulation of merchants, purchasers, and the carrying of arms is far more analogous to the restraint of belief than the restraint of action. It attempts to head off the action by constraining the capability, in a way the Court seems to say is unacceptable.

    If this is the example the Bradies really want to use, they’re actually making the case for absolutely no restrictions on firearms purchase and posession, with regulation acceptable only over acts committed with those firearms–a much _more_ pro-gun position than Heller took.

  8. Carl from Chicago says:

    I find interesting the arguments on pages 25-26 … these involve highlighting the restrictions on the 1st amendment such as noise ordinances. Although the Brady’s analogy between such 1A restrictions and hypothetical (and dare I say hoped for) 2A restrictions are vague, I still see some false argument in there.

    The “you can’t yell FIRE in a crowded theatre” argument comes to mind. It seems to me that restrictions on firing guns in crowded theatre (when your life is not threatened) is an entirely reasonable and analogous restriction on the 2A … as would be a restriction on the firing of guns in a park campground, after say 10pm or so.

  9. B Woodman says:

    Carl,
    That bromide a bout shouting “fire” in a theatre is so often mis-quoted. Closer would be “you can’t shout fire FALSELY in a crowded theatre.” It’s all about the intent of the action. I’d hate to see people hurt and killed in a blazing public gathering because someone was afraid to give warning for fear of being arrested.

  10. ctdonath says:

    Seems they confuse possession with use. The analogy of the 1stA for the 2ndA must match potential with potential, and use with use. Owning (aka “keep”) is akin to simple ownership of a printer or radio transmitter; carrying (aka “bear”) is akin to pencil/paper in one’s pocket, or driving a news van around; use (a la “necessary to security”) is actually applying the tool for good or ill.

    The “shouting ‘fire'” analogy is misplaced (as usual). You’re not allowed to shout “fire” in a theater, or fire a gun, unless doing so is vital to saving lives (or is a harmless part of the show as Penn & Teller are fond of demonstrating). Pro-2ndA advocates do not seek legality to shoot in a theater, they simply want the ability to (shall we say) shout “fire” if there really is one.

    1stA restrictions per noise ordinances are akin to “no discharge within city limits” laws, both reasonable because the risks are deemed too high. Note that these are restrictions on USE, not _possession_.

    Such analogies, good or bad, derail the issue when raised. The issue at hand is POSSESSION – the mere right to have an inanimate tool at hand should need for legitimate use arise. We seek not to yell or shoot in a theater, we want to just have a suitable tool at hand for legitimate use (should there be a fire, or a mugging en route to the parking lot).

  11. Carl from Chicago says:

    Seems that among the Brady’s most powerful arguments against strict scrutiny is their claim that state right to arms provisions are largely not held to that higher standard.

    I am taking their word for that … and what is unclear to me if that is commonplace among other so-called “fundamental” rights, or not.

  12. Carl from Chicago says:

    I’ve now (finally) read the entire Brady brief.

    1) It’s clear that they presume the 2A will be incorporated against the states.

    2) It’s pretty clear that they presume it will thus be ruled to protect a fundamental right.

    3) Aside from the introductory “guns are really bad” information, the crux of their position and hope is as follows (from the concluding paragraph of the argument):

    “The state and federal governments’ interests in
    stability and in the preservation of their reasonable
    firearms regulations are sufficiently weighty to make it
    appropriate for the Court to articulate a deferential
    standard of review in this case. Clarification of the
    standard of review is particularly crucial if this Court’s
    analysis of the question on which it granted certiorari
    leads it to describe the Second Amendment right as
    “fundamental.” Otherwise, the states and the federal
    government will surely be subjected to a generation of
    litigation over their firearms laws, with many measures
    perhaps being invalidated before this Court articulates
    the proper standard of review. Accordingly, amici
    submit that the Court should adopt a “reasonable regulation”
    standard of review in this case.”

    That’s it. They argue that existing firearms restrictions are reasonable, and they don’t want any of them overturned. Not only is that position part of their “mission” … the court challenges to various laws post-Heller then will or may obligate them to assist in defense. In other words … playing defense is costly.

    As an aside … and I’m not a lawyer … what exactly is a “reasonable regulation” standard of review? It has long been my understanding that in US constitutional law, the three standards of review are 1) rational basis, 2) intermediate, and 3) strict.

    If the “reasonable regulation” standard is comparable to any, which is it?

  13. mikeb302000 says:

    As Pete said, the proper time for me to panic is not yet, but it’s coming. (It’s not panic really, but I know what he means).

    After the Supreme Court rules and there’s a domino effect throughout the country overturning many other laws, the entire land mass of North America will turn into a bloody mess. There’ll be blood in the streets, neighbor will shoot neighbor over the slightest provocation, murders and suicides will double and double again.

    Then I’ll be able to say I told you so.

    This is all a silly attempt at humor, in case any of you have a sense of humor any more.

    The serious part is that the question of whether more guns really results in less gun violence will become clearer. So far I don’t find it convincing, but if it’s as sure as you guys say and the gun-rights crowd keeps winning in the courts, even I will eventually be convinced.

  14. Carl from Chicago says:

    mikeb302000 Said (November 26th, 2009 at 2:17 am):
    “After the Supreme Court rules and there’s a domino effect throughout the country overturning many other laws, the entire land mass of North America will turn into a bloody mess. There’ll be blood in the streets, neighbor will shoot neighbor over the slightest provocation, murders and suicides will double and double again. … This is all a silly attempt at humor, in case any of you have a sense of humor any more.

    The serious part is that the question of whether more guns really results in less gun violence will become clearer. So far I don’t find it convincing, but if it’s as sure as you guys say and the gun-rights crowd keeps winning in the courts, even I will eventually be convinced.”

    Well, for better or worse, there are those who believe the “panic” to be justified. But I suppose there always be those types. They emerged as each state debated defensive carry provisions. After the Heller ruling itself, there were those making that claim.

    In my opinion, the primary thing that would decrease gun violence (or violence of most kinds) would be that we, as a society, quit coddling and tolerating the violently criminal among us. We make lots of excuses. Like Hassan … I have heard or read multiple lines of suggestion at the things that “caused” his spree of violence. Usually, those things include all but his decisions, and solutions include all but making him personally responsible … and right away. This might sound harsh, but violent criminals are harsh … at some level, we just need to elimintate violent offenders from our society. It astounds me that we can and do tolerate mass shooters, gang drive-bys that kill innocents, and even armed robberies, forcible rapists, etc. In our society the consequences of those actions (post arrest) are just too lax. To echo the words of one person … I don’t like repeat offenders. I like dead offenders.

    Happy Thanksgiving, everyone!

  15. Weer'd Beard says:

    “The serious part is that the question of whether more guns really results in less gun violence will become clearer. So far I don’t find it convincing, ”

    Not that you’ll answer, but will you have to see for you to be convinced, Mike?

    If you’re reasonable you should have an answer. if you’re not, you won’t, and likely will just ignore this question.

  16. See, Mike, this is why we have a problem. Not only do you lead with the “offensive statement – I was just kidding – you have no sense of humor” silliness, you’re still arguing from one of your original false premises:

    The serious part is that the question of whether more guns really results in less gun violence will become clearer.

    The question isn’t whether respecting a fundamental Constitutional right improves crime rates. The question is whether the restriction of that right is so overwhelmingly beneficial that it justifies eroding our freedom and telling your neighbors how to live.

    It isn’t necessary for crime rates to drop like a stone after gun law liberalization: if crime rates don’t _increase_, that shows that the laws weren’t justified.

    Your desire to put the burden of proof on our shoulders doesn’t make _sense_: basically, if NY, NJ, Illinois, and the other handful of anti-gun enclaves are forced to join the 21st century and respect their citizens’ right to bear arms just like the rest of the country, and it doesn’t lead to more violent crime and death, then what earthly reason can you have for trying to intrude on your neighbors’ choices in this matter?

  17. Carl from Chicago says:

    elmo_iscariot Said (November 26th, 2009 at 10:30 am):

    See, Mike, … The question isn’t whether respecting a fundamental Constitutional right improves crime rates. The question is whether the restriction of that right is so overwhelmingly beneficial that it justifies eroding our freedom and telling your neighbors how to live.

    Gun control is almost always premised or claimed to be premised upon policy arguments (whether they are demonstrable or not) that to advance the important public policy of crime control, guns must be banned, licensed, rationed, neutered, etc. ad infinitum. Now that the “collective rights interpretation” as a means to speed regulation has been quashed, we shall still see these policy arguments up at the forefront.

    Yet I have long felt that the true question of the second amendment boundaries is not and cannot be premised upon policy or majority rule via legislatures. It’s a right, and it’s law. IF we decide that it truly makes good public policy to ban guns, then we ALSO must decide to repeal the second amendment.

    The folks at Buckeye Firearms Foundation put it pretty well in their brief on behalf of McDonald:

    “Chicago advances a policy argument against incorporation that is demonstrably false; namely, Chicago’s gun ban must survive in order to combat violent crime. As examined above, the gun ban is not accomplishing this purported goal. However, even if
    the ban was having a demonstrable impact, citizens cannot be forced to sacrifice their enumerated constitutional liberties upon the altar of ‘crime control.’ This court should redirect governments like Chicago towards “criminal control” and away from gun owner
    discrimination.”

    Take, on the other hand, the perspective of the gun controllers (Brady Center brief):

    “This Court has recognized that the exercise of constitutional rights must be balanced against legitimate public interests, chief
    among which is public safety. In light of that precedent, and the unparalleled societal risks associated with firearms, the Second Amendment right to keep and bear arms should not prevent citizens, through their elected representatives, from enacting the reasonable laws they desire and need to protect their families and
    communities from gun violence.”

    Or in other words, the perspective of those in power in Illinois and other states (from their petition for cert brief in Heller) … they want to keep their power:

    “Consequently, the amici States have a strong interest in the
    review of the court of appeals’ decision, the rejection of its
    reasoning, and the reaffirmance by this Court of the States’
    traditional authority to protect public safety through the exercise
    of the police power to restrict access to certain types of firearms.”

  18. RAH says:

    mikeb is not convinced and his feeling are shared among many. Car in Chicago though I think put it best in post 17 11/26/09 at 11:20 am.

    I hope that the future will prove mikeb is wrong and past history seems to indicate that.

    Incorpoartion is a given but under what standard of scrutiny is major issue. Heller gave indication that it would be the same standard as 1st amendment and that is not a reasonable standard.

    Common law and statutory law often uses the reasonable standard. But constitutional law goes further.

    Brady is correct in their fear that many state and local laws will fall under strict scrutiny or that reasonableness is insufficient to restrict a fundamental right.

    I for one am looking forward to that day that many local and state laws fall and greater gun rights will be available in the states and towns.

  19. mikeb302000 says:

    Thanks for all the feedback. The next few years should be interesting, hey?

  20. Weer'd Beard says:

    “If you’re reasonable you should have an answer. if you’re not, you won’t, and likely will just ignore this question.”

    As I expected!

    Another follower of the religion of gun control, and another bigoted troll!

    Thanks for playing, asshole!

  21. W. W Woodward says:

    The term “reasonable regulation” scares the hell out of me. No legislative body whether it be federal, state, or municipal has ever in the history of mankind passed an “unreasonable regulation”. Six million people went to their deaths, during the late 30’s and early 40’s, and it was all legal. “Reasonable Regulations”.

    The Bradys, the International Chiefs of Police, and the Fraternal Order of Police want to maintain the status quo and their control over “we the people”. Whatever the SCOTUS decides, these people will be forever looking for loopholes so that they may maintain control. The Bradys, The ICoP, and the FOoP do not speak for “We the People”. They do not speak for American police chiefs nor for the rank and file police officers. They speak for the money, and for control.

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