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Withdrawn Brady Amicus

I thought I’d take a second to go over some choice sections from the amicus the Brady folks withdrew from D’Cruz. In this brief, they cherry pick from Heller in an attempt to argue that there exists no right to have a firearm outside your home:

The Court’s holding is also specifically limited to the right to keep firearms in the home: “[i]n sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

But since the District Court can read, and has presumably been to law school, the court will presumably understand that the Heller holding is limited to the home because that was the scope of the question before the Court. The District Court will also remember this passage from Heller:

Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment.

Possess and carry, Brady folks. Not just possess. But surely the word “bear” in the Second Amendment was meant to be limited to only a military context:

If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self- defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.

Of course, the Bradys are quick to footnote in their brief:

For example, the Heller Court discussed “bear” as meaning “carry” simply to support its position that the Second Amendment’s use of “bear arms” “in no way connotes participation in a structured military organization,” and, therefore, the Court opined, the phrase did not indicate that the Second Amendment was limited to militia matters. 128 S. Ct. at 2793. The Heller Court did not state that the Second Amendment protects a right to carry arms in public.

Except you can find plenty of places in Heller where it’s strongly implied:

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…

There are several places in Heller where the court speaks of the Second Amendment in the context of carrying arms in public. The Brady assertion that this is merely “tea leave reading” is ludicrous. If the Court wanted to close the door on carrying firearms it could have easily done so.

In addition, the Brady’s have manufactured a new standard of review of in their brief. No longer do we just have strict scrutiny, intermediate scrutiny, and rational basis review. Now we have a new an exciting standard called “reasonable regulation” test. This test is found nowhere in Heller or McDonald, but we have it here:

The reasonable regulation test is a more heightened form of scrutiny than the rational basis test that the majority opinion in Heller rejected (and is more demanding than the “interest balancing” test suggested by Justice Breyer in dissent) because it does not permit states to prohibit all firearm ownership, even if there is a rational basis to do so.

They cite Eugene Volokh’s paper for this, even though I can find this test nowhere in it, and even though Eugene was skeptical of the constitutionality of the ban on 18-20 year olds from exercising their rights. The Bradys say the big advantage of this only-slightly-stronger-than-rational-basis review is that is gives legislatures the deference they so richly deserve. But no matter, every gun law survives strict scrutiny anyway, according to the Brady folk:

Sections 46.02, 411.172(a)(2), (a)(9), and (g) also would survive intermediate (or even strict) scrutiny were the Court to apply that standard of review because it is substantially related to an important government interest. Indeed, a number of courts have found that the protection of the public from gun violence is an important government interest.

They keep trying to pretend Heller and McDonald are without consequence, but this brief is insulting to even my paltry legal intelligence. I can’t imagine the District Court would have thought too highly of it either. Perhaps it’s best that they had to withdraw it.

3 Responses to “Withdrawn Brady Amicus”

  1. The judge in the case, Judge Sam Cummings, wrote one of the first modern-day opinions that found the 2A was an individual right. That was the Emerson case which eventually made it to the 5th Cir. Ct of Appeals.

    In the Kachalsky case where they are seeking to file another amicus brief, Alan Gura and the State AG are ok with them filing a brief but Westchester is not. Unless Judge Seibel rules otherwise, Westchester County’s withholding approval should mean they can’t file the amicus brief in that case.

  2. Sections 46.02, 411.172(a)(2), (a)(9), and (g) also would survive intermediate (or even strict) scrutiny were the Court to apply that standard of review because it is substantially related to an important government interest.

    Do they know what strict scrutiny is?

  3. Mark Alger says:

    I would submit that there is no such thing as a reasonable regulation if it does not comport with the actual text of the Constitution. And “shall not be infringed” is pretty universal and absolute. So: no reasonable regulation.

    Even so, how reasonable is it for the state to rule on the reasonableness of the limits on its power as stated and set in a charter of limits on state power?

    M

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