Skip to comments.Law Firm Uses Online Constitutional Source Library to Prep for Gun Law Cert Petition [DC gun case]
Posted on 08/09/2007 6:06:52 PM PDT by kiriath_jearim
WASHINGTON, DC--(Marketwire - August 8, 2007) - Akin Gump Strauss Hauer & Feld, a leading law firm, is using the collection of founding documents compiled on ConSource, the first comprehensive online collection of Constitution-related source materials, to research and present the District of Columbia's position that the District's handgun ban withstands Constitutional scrutiny. These documents will play an important role in the petition for certiorari presented to the U.S. Supreme Court seeking to overturn the March 9 ruling by the U.S. Court of Appeals for the D.C. Circuit holding that the District's law violates the Second Amendment.
"This case has great implications for gun laws across the country," said Tom Goldstein, the head of Akin Gump's Supreme Court practice. "It is extremely important that we get the constitutional history right. With the help of ConSource, we will be able to access the full documentary record of the Second Amendment in presenting the case to the Supreme Court."
Through ConSource, Akin Gump has access to digitized collections relating to the Second Amendment: the Anti-Federalist Papers, the state ratification debates for seven states, and the legislative history of the Bill of Rights. Online access to these documents will drastically cut the research time necessary to research the case.
"Akin Gump is using this resource in one of many ways we envisioned this project could be used," said Lorianne Updike, President & Executive Director of The Constitutional Sources Project, which is creating ConSource. "Attorneys and practice groups are able to easily find prominent and obscure historical documents relating to different provisions in the Constitution via ConSource, and will soon be able to create their own collections, post briefs, and publish or block access to their practice groups' work product."
ConSource houses more than a thousand of the most important founding documents from over 30 archives across the eastern seaboard, the Midwest, and California, and will soon be adding documents from an archive in France.
To view a full case study regarding Akin Gump and the firm's use of ConSource, visit www.ConSource.org/akingump.
About The Constitutional Sources Project
Founded in May of 2005, The Constitutional Sources Project created the first, comprehensive, online library of Constitution-related source materials and provides free access to "We the People" at www.ConSource.org. Full access to the site and collections will be available on Constitution Day, September 17, 2007. This new medium will give the Founders, Reconstructionists, and original Feminists voices in the classroom and courtroom, providing everyone from the sixth grader to the Supreme Court justice with the best history of the Constitution. Collections include James Madison's Notes of the Constitutional Convention, The Federalist Papers, the Anti- and Pro-Federalist Papers, State Ratification Debates for seven states, the Bill of Rights' Legislative History and 188 personal letters detailing the workings behind-the-scenes during ratification and the passage of the Bill of Rights called the Founders' Papers.
About Akin Gump Strauss Hauer & Feld LLP
Founded in 1945, Akin Gump Strauss Hauer & Feld LLP, a leading international law firm, numbers more than 900 lawyers with offices in Austin, Beijing, Dallas, Dubai, Houston, London, Los Angeles, Moscow, New York, Philadelphia, San Antonio, San Francisco, Silicon Valley, Taipei and Washington.
Then why does the Militia Act of 1792 say you have six months to arm yourself after being notified? Seems to me that if the plain point of the Militia Act of 1792 was to ensure the general population is armed, there'd be no need to allow six months -- the population would already be armed.
I have personally seen too many judges in the sanctuary of their courtroom, where appeals have no possiblity to happen due to finance, simply rule how they want it to come out.
Black Robe fever is very real.
This was already done, on a smaller scale, during the aftermath of Katrina in Louisiana. As far as I know, nobody resisted when the police came for their guns.
“The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.” - Report of the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, 97th Congress, Second Session, Feb 1982
“The right of citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurption and arbitraty power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” - Supreme Court Justice Joseph Story, Commentaries On The Constitution, 1883
“Congress shall have no power to disarm the milita. Their swords, and every other terrible implement of the soldier, are the birth-right of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” - Tench Coxe, writing as “the Pennsylvanian” in the Philadelphia Federal Gazette, 1788
“As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms.” - Tench Coxe in “Remarks on the First Part of the Amendments to the Federal Constitution.” Under the pseudonym “A Pennsylvanian” in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.
“The supposed quietude of a good man allures the ruffian; while on the other hand, arms, like laws, discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside...horrid mischief would ensue were one half the world deprived of the use of them...” - Pennsulvania Patriot Thomas Paine, Thoughts On Defensive War, 1775
“I am thus far a Quaker, that I would gladly argue with all the world to lay aside the use of arms and settle matters by negotiation, but unless the whole will, the matter ends, and I take up my musket and thank Heaven He has put it in my power.” - Writings of Thomas Paine 56 (M. Conway ed. 1894)
“While I cannot comment on any pending legislation, let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.” - U.S. Attorney General John Ashcroft, in a letter to James Jay Baker, Executive Director, National Rifle Association
“In recent years it has been suggested that the Second Amendment protects the “collective” right of states to maintain militias, while it does not protect the right of “the people” to keep and bear arms... The phrase “the people” meant the same thing in the Second Amendment as it did in the First, Fourth, Ninth and Tenth Amendments Ñ that is, each and every free person. A select militia defined as only the privileged class entitled to keep and bear arms was considered an anathema to a free society, in the same way that Americans denounced select spokesmen approved by the government as the only class entitled to the freedom of the press. If anyone entertained this notion in the period during which the Constitution and Bill of Rights were debated and ratified, it remains one of the most closely guarded secrets of the 18th century, for no known writing surviving from the period between 1787 and 1791 states such a thesis.” - Attorney/Author Stephen P. Holbrook, That Every Man Be Armed: The Evolution of a Constitutional Right
“There is no doubt in my mind that millions of lives could have been saved if the people were not “brainwashed” about gun ownership and had been well armed. ... Gun haters always want to forget the Warsaw Ghetto uprising, which is a perfect example of how a ragtag, half-starved group of Jews took 10 handguns and made asses out of the Nazis.” - Theodore Haas, Dachau Survivor
“Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. [But] the supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States”. Prominent New England federalist and founding father Noah Webster, 1787
“A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.” - George Washington
“No free man shall ever be debarred the use of arms. The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government” - Thomas Jefferson, Thomas Jefferson Papers, 334.
“A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms.” - Senator Richard Henry Lee, 1788, on “militia” in the 2nd Amendment.
“Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress? If our defense be the ‘real’ object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” - Patrick Henry, speech of June 9 1788.
“Such are a well regulated militia, composed of the freeholders, citizen and husbandman, who take up arms to preserve their property, as individuals, and their rights as freemen.” - “M.T. Cicero”, in a newspaper letter of 1788 touching the “militia” referred to in the Second Amendment to the Constitution.
This could actually help the people fighting the DC ban, they can review the same documents and prepare to counter anything the DC lawyers provide.
The enrollment was automatic, based on simply being found of age & gender and within jurisdiction.
The notification was fair warning that the coming-of-age (or moving-in) youth was subject to such requirement.
It wasn’t that you were called up, it was notification that you, as a citizen, have an obligatory duty regardless of callup. All were generally expected to be armed; this notification made it clear a subset were _required_ to be armed to minimum standards.
And again (a point you keep resisting): there was NO punishment for one outside the defined militia membership being armed, nor for anyone having arms exceeding a minimum. The idea that those within a legal line could be punished for being inadequately armed, and those outside the line punished for being armed at all, is absurd.
I never said there was. All I said was that their RKBA was not protected by the second amendment.
You seem to think that implies it's somehow illegal to be armed. I don't know where you get that.
Todays socialists insist on trying to justify gun control on just that 'articulable' reason. -- Even here on FR they prattle on most every day with their specious 'reasons'.
-- it was notification that you, as a citizen, have an obligatory duty regardless of callup. All were generally expected to be armed; this notification made it clear a subset were _required_ to be armed to minimum standards.
Yep; -- yet todays socialists claim that only white men were protected by the second amendment, and that all other persons were subject to State 'law' on this issue.
Beware of the man [and amazingly there are quite a few on FR] who claim conservative credentials, while they argue that our US Constitution was not intended to protect our individual rights from fed, state, or local government infringements.
These men claim that 'We, -as a majority rules society', decide which rights we will protect.
--- For instance, if there's nothing in a state constitution about the right to keep and bear arms [and States can change their constitutions by super-majority decisions], - then --- States can ban all guns if they so chose.
You seem to think that it's OK for any/all level of government to make it illegal to be armed so long as some government-authorized subset of the population is government-authorized to possess government-authorized arms under government-authorized restrictions. I don't know where you get that.
From your prior reasoning (esp. the bit analogizing library cards), the states could ban guns outright, and the feds could ban guns so long as there is an exception for Irish-descended midgets wielding muskets while on patrol for the UN in Nigeria.
"and the feds could ban guns
Under the power of ... what?
"the states could ban guns outright"
Some guns (if it's not against the state constitution), yes. Not all guns. If they banned all guns they couldn't have a well regulated Militia.
They may not be now, but by your interpretation - coupled with your incredible passion for insisting thereon - they could be.
Under the power of ... what?
Same power that lets the feds enact and enforce 922(o). You don't seem to have a problem there. Just remove the "machine" prefix from "machinegun" in that law, and they're pretty much gone (save some expensive bickering over "it's legal, you just have to pay an insane price for pre-'86 ones").
Not all guns.
Why not? As you noted: "the California State Constitution does not protect the RKBA". Same goes for a bunch of other states. For those that do protect RKBA in their state constitutions, you've made it very clear that's a choice up to the majority (supermajority, whatever applies) of voting citizens in those states.
I've been following your posts for a long time. From what you have written (by the volumes), you advocate (with extreme prolific passion) an interpretation of RKBA and the 2nd Amendment whereby individual ownership of arms can, in all practicality, be outlawed (save for some legalistic saving trivial technicality, such as, say: militia members only consist of Irish-descended midgets, and they're only allowed muskets while on patrol for the UN in Nigeria).
The federal government reasonably regulates the interstate transportation of some guns that threaten public safety. These laws were examined by the courts under a "rational basis" review and found constitutional. I don't know who would think that a federal law banning all guns would be rational.
But this does bring up an interesting point. As recent as 1980 in Lewis v US, the U.S. Supreme court has used the "rational basis" review in gun cases saying:
"The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some `rational basis' for the statutory distinctions made ..."
What makes that interesting is that if the U.S. Supreme Court thought an individual right was being infringed they'd use the "strict scrutiny" standard rather than "rational basis".
"For those that do protect RKBA in their state constitutions, you've made it very clear that's a choice up to the majority (supermajority, whatever applies) of voting citizens in those states."
No. For those states that do NOT protect the RKBA in their state constitutions, I've made it very clear that's a choice up to the majority (supermajority, whatever applies) of voting citizens in those states.
Are you saying that the people of a state cannot do that? They can't make a decision how they want to run their lives? Well excuse me, but who are you to tell citizens of another state how to live? Seriously.
Now, if a state law violates the federal constitution, that's a different story. If a state totally disarmed its citizens, they would not be able to assemble an effective, well regulated Militia. Congress, therefore, would be unable to perform its constitutional duty to use the state Militia to "execute the Laws of the Union, suppress Insurrections, and repel Invasions."
"From what you have written (by the volumes), you advocate (with extreme prolific passion) an interpretation of RKBA and the 2nd Amendment whereby individual ownership of arms can, in all practicality, be outlawed"
You read it correctly, but misinterpreted what I said. I'm not advocating anything. If I say the sky is blue it doesn't mean I think it should be that color. It just is.
I have repeatedly pointed out the dangers of taking this issue to the U.S. Supreme Court at this time. I have demonstrated why I believe this through numerous cites of federal courts cases that the U.S. Supreme Court will be looking at.
Because I do this, you and others have concluded I have some personal agenda. That's irrelevant. You have no logical and coherent arguments to make, so you start making assumptions about my personal motivations.
It’s fair to wonder why a prolific contributor to FR spends his thousands of posts advocating a view that most readers construe as anti-RKBA, and who insults those who attempt to understand his motivation.
Am I misguided in concluding that, in your interpretation of the 2nd Amendment:
- every state that does not explicitly protect RKBA in their constitution could, tomorrow, pass a law banning guns entirely?
- every state that does explicitly protect RKBA in their constitution could, tomorrow, pass a state-constitutional amendment repealing that protection, and the next day pass a law banning guns entirely?
- the feds could, tomorrow, pass a law limiting militia membership to Irish-descended midgets?
- the feds could, tomorrow, pass a law banning all firearms except muskets?
- the feds could, tomorrow, pass a law limiting possession and use of legal firearms (at this point, only muskets) to militia members (at this point, only Irish-descended midgets) when actually called out by the President?
From what most can tell, your passionately-promoted interpretation allows for the above. As the conclusion is so obviously anti-RKBA, pardon us if we construe your prolific writings on the subject as advocating a legal position whereby individual ownership of modern firearms can easily be abolished - to wit, anti-gun.
Do you believe a criminal has the right to remain silent? That he has a right to a public attorney at no charge? That he has a right to a trial by jury? That if evidence that would convict him was obtained without a warrant, that evidence cannot be used even it means he goes free?
If you believe that, let me ask you. Why are you pro-crime? Why do you advocate we coddle criminals -- are you some sort of namby-pamby, bleeding heart liberal? Or are you a felon? When did you get out of prison?
Why are you even on this forum with that attitude? We're tough on crime here at FR. You don't belong.
"- every state that does not explicitly protect RKBA in their constitution could, tomorrow, pass a law banning guns entirely? - every state that does explicitly protect RKBA in their constitution could, tomorrow, pass a state-constitutional amendment repealing that protection, and the next day pass a law banning guns entirely?"
I just answered that. Short term memory loss?
"- the feds could, tomorrow, pass a law limiting militia membership to Irish-descended midgets?"
That would be unconstitutional, violating their due process.
"- the feds could, tomorrow, pass a law banning all firearms except muskets?"
I have no idea where they would get the power to do so. Can you tell me where you think they would? Otherwise this hypothetical is a complete waste of my time.
"- the feds could, tomorrow, pass a law limiting possession and use of legal firearms (at this point, only muskets) to militia members (at this point, only Irish-descended midgets) when actually called out by the President?"
Nope. For the reasons I just gave.
OK. I answered your questions. Answer mine. When it was ratified in 1791, do you think the second amendment protected the right of all individuals in the United States to keep and bear arms? It says "the people".
Please explain why there were exceptions back then, but why there should be no exceptions today? Being a namby-pamby, bleeding heart liberal that coddles criminals, I guess you think we have a "living constitution" that we can change whenever we want?
Why? You keep asserting that only militia members enjoy 2nd Amendment protections, and that the feds get to define the militia. You won't accept that "the right of THE PEOPLE to keep and bear arms shall not be infringed" actually applies to all people, save only those specifically and individually adjudicated otherwise. (Which leads to answering your sarcastic previous questions: those rights are a matter of the adjudication process, starting from first principle "innocent until proven guilty" and protecting the innocent while discerning the guilty.)
Short term memory loss?
No, just giving you an opportunity to confirm or deny that you do, indeed, think a majority can vote away the rights of a minority - which admittedly you have made clear you believe and defend. Even a state constitution is subject to a mere vote of alteration; in your assertions there is no "natural right of RKBA".
I have no idea where they would get the power to do so.
In 922(o), the feds have banned a category of arms entirely suitable, even central, to militia use and national defense. If you can't explain what's wrong with that prohibition, then it is a very short step to banning pretty much all other arms, and optionally stopping at the "the Founding Fathers had muskets, so that's all you can have" line.
For the reasons I just gave.
You gave evasions, not reasons.
You hold that:
- the feds get to define who is in the militia
- the only "people" who may enjoy the 2nd Amendment are the militia members as defined
- states which do not explicitly protect RKBA in their constitutions can, by popular vote, outlaw individual ownership of arms
- states which do explicitly protect RKBA in their constitutions can, per state constitutional process, repeal that protection and then promptly execute the prior point
- the feds can prohibit categories of weapons, without limit short of total prohibition of all firearms (say, ban everything but muskets)
These are the interpretations people get of your assertions. Now, without insulting me, please articulate the misunderstandings in the above points.
It does behoove us to call out “those who bend words to their purposes” and thus are “very likely in pursuit of anti-social” aims, at least to aid the understanding of the persuadable.
And the Dems can't get rid of it, because this clause is the only thing that would permit the Draft
There is nothing in the Constitution about the Draft. There is only the authority to bring the militia into Federal Service. No militia = no "Selective Service"