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D.C. SECOND AMENDMENT FEDERAL COURT HEARING

Annotated Transcript of NRA Case Proceedings

October 13, 2003

What follows is an annotated transcript of the oral arguments held October 8, 2003, in D.C. federal court in the NRA-Halbrook firearms case. This is both an exercise in argument analysis and an attempt to explain the case, its strengths, and shortcomings. The ALL CAPS text is the transcript as received from the court reporter minus only a couple of typos. The bold, colored, normal sentence text is annotation. These are the opinions of the author and are intended to be useful and educational for future Second Amendment litigation.

SEEGARS v. ASHCROFT TRANSCRIPT
OF HEARING ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
C. A. NO. 03-8345

SANDRA SEEGARS, ET AL.
-versus-
JOHN ASHCROFT, ET AL.
WASHINGTON, D. C., OCTOBER 8, 2003

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE REGGIE B. WALTON

FOR THE PLAINTIFF: STEPHEN HALBROOK, ESQ.
FOR THE DEFENDANTS: DANIEL MERON, ESQ., DANIEL REZNECK, ESQ.

COURT REPORTER: PHYLLIS MERANA, 6816 U. S. COURTHOUSE, 3RD & CONSTITUTION AVE., N.W., WASHINGTON, D. C. 20001

MR. MERON: YOUR HONOR, DANIEL MERON FROM THE CIVIL DIVISION OF THE DEPARTMENT OF JUSTICE ON BEHALF OF THE ATTORNEY GENERAL ASHCROFT.

MR. HALBROOK: STEPHEN HALBROOK ON BEHALF OF THE PLAINTIFFS, YOUR HONOR.

MR. REZNECK: DANIEL REZNECK FROM THE OFFICE OF CORPORATION COUNSEL FOR THE DEFENDANT WILLIAMS, YOUR HONOR.

THE COURT: GOOD MORNING. SINCE THE MATTER IS HERE ON THE TWO DEFENDANTS' MOTIONS, EITHER ONE OF THE DEFENDANTS MAY PROCEED.

As far as I could tell, the hearing was solely about the motions to dismiss filed by the Attorney General and by the City. It was not about any motion to uphold the Second Amendment or grant summary judgment to the plaintiffs. D.C. sent its best lawyer, Dan Rezneck, who was a senior editor of the Harvard Law Review, clerked for Justice Brennan on the Supreme Court, had a long successful career, and now is D.C.s top counsel. Long ago in 1970 he and I and Norman Dorsen spent an evening preparing Dorsen to argue U.S. v. Vuitch in the Supreme Court, on the D.C. abortion law.

MR. MERON: YOUR HONOR, I THINK BY AGREEMENT WITH CORPORATION COUNSEL, THE DEPARTMENT OF JUSTICE WILL GO FIRST.

THE COURT: VERY WELL.

*"YOUR HONOR, WE ARE HERE WANTING TO REGISTER HANDGUNS."* National Rifle Association Attorney Stephen Halbrook, fighting a "Second Amendment" case

MR. MERON: YOUR HONOR, DANIEL MERON FROM THE DEPARTMENT OF JUSTICE ON BEHALF OF THE ATTORNEY GENERAL.

I WOULD LIKE, IF I MAY, TO RESERVE THREE MINUTES FOR REBUTTAL.

THE COURT: THAT'S FINE.

MR. MERON: PLAINTIFFS IN THIS CASE BRING TWO SETS OF CLAIMS. FIRST, THEY CHALLENGE THE LAWFULNESS OF THE DISTRICT'S LICENSING AND REGISTRATION SCHEME AS IT PERTAINS TO PISTOLS, AND THEY ASK THIS COURT TO ISSUE AN ORDER REQUIRING THAT THE DISTRICT ISSUE LICENSES AND REGISTRATIONS TO THE PLAINTIFFS.

NEITHER THE ATTORNEY GENERAL, NOR THE FEDERAL GOVERNMENT, GENERALLY PLAYS ANY ROLE WHATSOEVER IN THE ADMINISTRATION OF THE LICENSING OR REGISTRATION SYSTEM IN THE DISTRICT.

AND THE PLAINTIFFS IN FOOTNOTE FIVE OF THEIR OPPOSITION NOW CONCEDE THAT THE ATTORNEY GENERAL IS NOT A PROPER PARTY WITH RESPECT TO THAT PORTION OF THE CASE. SO I THINK THERE IS NO DISPUTE AT LEAST THAT TO THAT EXTENT OUR MOTION TO DISMISS SHOULD BE GRANTED.

	*"WE ARE NOT HERE WANTING UNRESTRICTED ACCESS."* National Rifle Association Attorney Stephen Halbrook, fighting a "Second Amendment" case

THE SECOND SET OF CLAIMS THAT THE PLAINTIFFS BRING CONSISTS OF A PRE-ENFORCEMENT CHALLENGE ON THEIR FACE TO A NUMBER OF THE DISTRICT'S CRIMINAL STATUTES PERTAINING TO HANDGUNS.

IN SUPPORT OF THOSE CLAIMS, THE PLAINTIFFS ALLEGE NOTHING MORE THAN AN INTENT IN THE FUTURE TO ENGAGE IN CONDUCT THAT THEY ALLEGE IS PROSCRIBED BY THE STATUTES, AND THEY ALLEGE THAT THEY INTEND TO DO THAT IF THIS COURT WERE TO INVALIDATE THE STATUTE, BUT NOT OTHERWISE.

The U.S. here is challenging the standing of the NRA-Halbrook plaintiffs, who did not build a paper trail of applying for D.C. gun permits and being denied. Their challenge is general, lacking in detail.

THEY DO NOT ALLEGE THAT IN THE PAST THEY HAVE ENGAGED IN THE CONDUCT OR THAT THEY CURRENTLY POSSESS HANDGUNS THAT ARE PROSCRIBED. NOR CAN THEY CLAIM THAT THE STATUTE SPECIFICALLY --

THE COURT: DO THEY HAVE TO THOUGH? I MEAN SHOULD THEY HAVE TO SUBJECT THEMSELVES TO THE REALITY OF PROSECUTION, BECAUSE I THINK WITH THE HISTORY OF HOW THESE LAWS HAVE BEEN ENFORCED, THAT IT WOULD BE A GIVEN THAT IF THEY WERE CAUGHT WITH THAT WEAPON, THAT THEY PROBABLY WOULD -- I THINK IT IS MORE CERTAIN THAN PROBABLY THAT THEY WOULD BE PROSECUTED.

The judge here seems to understand that plaintiffs should not have to undergo prosecution in order to challenge the law. The Silveira plaintiffs present similar kinds of standing and ripeness issues. The CRPA group, to the contrary, filed a brief asking the Ninth Circuit to dismiss the Silveira case for lack of standing as well. Here the NRA is urging the very opposite.

*"WE'RE NOT HERE ASKING TO CARRY THEM, OTHER THAN IN THE HOME."* National Rifle Association Attorney Stephen Halbrook, fighting a "Second Amendment" case

MR. MERON: YOUR HONOR, WHAT THE D. C. CIRCUIT SAID IN NAVEGAR WAS THAT IN ORDER TO SHOW THAT YOU WERE BRINGING MORE THAN A GENERALIZED GRIEVANCE -- IN ORDER TO SHOW THAT YOU HAD A CONCRETE CASE OR CONTROVERSY THAT SET YOU APART FROM THE GENERALIZED CLASS OF CITIZENRY, YOU HAD TO SHOW THAT YOU YOURSELF SPECIFICALLY WERE SOMEHOW TARGETED FOR PROSECUTION.

IN THE NAVEGAR CASE, THE PLAINTIFFS ALLEGED THAT THEY THEMSELVES HAD MANUFACTURED THE VERY WEAPONS THAT WERE NOW PROHIBITED BY THE STATUTE. THAT THEY WERE VISITED ON THREE CONSECUTIVE DAYS BY A.T.F. AGENTS, INSPECTING TO MAKE SURE THAT THEY WERE CONFORMING THEIR CONDUCT TO THE STATUTE. AND THE COURT STATED IN NAVEGAR THAT WAS NOT ENOUGH TO CREATE A JUSTICIABLE CASE OR CONTROVERSY.

The U.S. is relying on the case of Navegar Inc. v. U.S., 192 F.3d 1050 (D.C. Cir. 1999). Navegar upheld the federal ban on semi-automatic assault weapons as (1) not violating the commerce clause, nor (2) a bill of attainder. Robert Gardiner, a colleague of Stephen Halbrook, was Navegar counsel. He did not raise any Second Amendment question in the case. Earlier proceedings in Navegar involved standing and ripeness. 103 F.3d 994.

THE COURT: BUT THERE HAD NEVER BEEN ANY PROSECUTIONS, RIGHT?

MR. MERON: BUT WHAT THE COURT SAID IN ITS ANALYSIS, HOWEVER, WAS THAT EVEN A GENERAL STATEMENT OF INTENT BY THE GOVERNMENT TO PROSECUTE VIGOROUSLY WOULDN'T BE ENOUGH TO SHOW AN IMMINENT THREAT OF PROSECUTION AS TO THOSE PARTICULAR PLAINTIFFS.

	"YES, YOUR HONOR. YES, YOUR HONOR." National Rifle Association Attorney Stephen Halbrook, when asked "if the government can impose reasonable restrictions", while fighting a "Second Amendment" lawsuit

THE COURT: BUT THERE IS MORE THAN JUST THE GENERAL STATEMENT OF INTENT. I MEAN HAVING SERVED AS A JUDGE 18 YEARS ON THE SUPERIOR COURT, I NEVER SAW A SITUATION WHERE A GUN WAS FOUND IN POSSESSION OF A PERSON, WHO HADN'T REGISTERED, WHERE THEY WEREN'T PROSECUTED.

MR. MERON: WELL, YOUR HONOR, THERE ARE A NUMBER OF THINGS. FIRST OF ALL, PROSECUTORIAL DISCRETION PLAYS A PART IN EVERY PROSECUTION. AND THE PLAINTIFFS HERE DO ALLEGE THAT THERE HAS BEEN SOMETHING NEW. THERE HAS BEEN AN EMERSON DECISION FROM THE FIFTH CIRCUIT AND THAT THE UNITED STATES HAS NOW TAKEN A DIFFERENT POSITION ON THE SECOND AMENDMENT GENERALLY.

AND WITHOUT GETTING INTO THE MERITS OF THE CLAIM, IT IS CERTAINLY NOT AN ASSURED THING THAT EVERY CASE WHICH THEY ALLEGE FALLS INTO THEIR FACT. WE JUST DON'T KNOW BECAUSE PROSECUTORIAL DISCRETION COMES INTO PLAY BEFORE EVERY PROSECUTION.

BUT THERE IS A WHOLE CHAIN OF SPECULATION THAT YOU HAVE TO ENGAGE IN. FIRST, YOU HAVE TO SPECULATE THAT THESE INDIVIDUALS, IN FACT, WILL ENGAGE IN THE CONDUCT.

SECOND, YOU HAVE TO SPECULATE THAT THEY WILL BE DETECTED THAT THEY WILL BE CAUGHT.

AND THEN THIRD, AND ONLY THEN, YOUR HONOR, DO YOU THEN GET INTO THE QUESTION OF WOULD THE PROSECUTOR, UNDER THAT ASSUMPTION, PROSECUTE.

AND IN NAVEGAR, WHAT THE D. C. CIRCUIT SAID IS BECAUSE OF THAT KIND OF CHAIN, THAT IS NOT GOOD ENOUGH. AND I THINK IT IS IMPORTANT, YOUR HONOR, TO STRESS THAT THIS IS NOT A SITUATION WHERE THE PLAINTIFFS LACK OTHER AVENUES TO BRING A CHALLENGE.

THEY CERTAINLY CAN APPLY TO THE DISTRICT FOR BOTH REGISTRATION AND LICENSES. THOSE DECISIONS WOULD BE REVIEWABLE, IF THEY ARE DENIED, BY THE D.C. COURT OF APPEALS UNDER THE DISTRICT'S A.P.A., WHICH EXPRESSLY AUTHORIZES THE COURT OF APPEALS TO CONSIDER CONSTITUTIONAL CHALLENGES IN THE CONTEXT OF ITS REVIEW.

SO THEY HAVE OTHER AVENUES FOR REVIEW SHORT OF RUNNING INTO COURT ON A PRE-ENFORCEMENT CHALLENGE, WHICH IS CERTAINLY OUTSIDE THE FIRST AMENDMENT, SOMETHING THAT THE SUPREME COURT HAS SAID IS ONLY VERY RARELY GRANTED AND ONLY WHEN THERE IS [are] REALLY SPECIFIC TARGETED THREATS OF PROSECUTION DIRECTED SPECIFICALLY TO THESE VERY PLAINTIFFS.

AND SO WE BELIEVE NAVEGAR CONTROLS THAT ISSUE.

THE ONLY RESPONSE IN THE BRIEFS THAT THE PLAINTIFFS MAKE TO NAVEGAR IS TO CLAIM THAT NAVEGAR ONLY INVOLVED VAGUENESS CHALLENGES. AND I THINK YOUR HONOR KNOWS THAT IS NOT CORRECT. NAVEGAR INVOLVED, AS WELL, A COMMERCE CLAUSE CHALLENGE.

The Navegar decision, in front of me, certainly discussed the commerce clause and bill of attainder positions. The vagueness issue was disposed of earlier in the case.

AND SO LARGELY WHAT THEY DO IN THEIR BRIEF IS THEY RELY ON GENERALIZED LANGUAGE FROM THREE SUPREME COURT CASES: STEFFEL, ABBOTT LABORATORIES AND BABBITT. BUT THE MOST IMPORTANT THING ABOUT ALL THREE OF THOSE CASES IS THEY WERE ALL THREE CITED AND DISCUSSED IN NAVEGAR.

SO THIS IS NOT A SITUATION WHERE THE PLAINTIFFS ARE RELYING ON INTERVENING SUPREME COURT PRECEDENT OR ON PRECEDENT THAT THEY CLAIM THE D.C. CIRCUIT OVERLOOKED. WHAT THEY ARE REALLY SAYING IS THAT NAVEGAR GOT IT WRONG, AND THAT'S ULTIMATELY WHAT THEIR CLAIM COMES DOWN TO.

IT'S, I THINK, IMPORTANT TO STRESS, YOUR HONOR, THAT IN EVERY ONE OF THE CASES ON WHICH THEY RELY

THE COURT: AS I UNDERSTAND, ONE OF THE PLAINTIFFS DID, IN FACT, SOME TIME AGO MAKE APPLICATION FOR -- I DON'T KNOW IF IT WAS A LICENSE, BUT I THINK IT WAS FOR REGISTRATION, AND THAT WAS DENIED. NOW, I DON'T KNOW IF THERE WERE CONSTITUTIONAL CHALLENGES MADE WHEN THAT CASE WAS TAKEN TO THE COURT OF APPEALS, WHICH I UNDERSTAND DID OCCUR.

You again get the impression here that the Judge thinks there is standing to sue, which would also be my personal view. The Navegar case is important because it is from the Court directly above this judge. A clever U.S. attorney could have cited the NRA-CRPA brief denying standing in a similar setting.

MR. MERON: THE COURT OF APPEALS' DECISION DOES NOT DISCUSS THE CONSTITUTIONAL CLAIM THERE. AND THE SHOWING THAT WAS MADE BY THE PLAINTIFFS THERE WAS THAT THEY WANTED IT FOR ESSENTIALLY RECREATIONAL PURPOSES.

SO IT WAS A VERY DIFFERENT RECORD, AND IT WAS QUITE A WHILE AGO. BUT THEY CERTAINLY HAVEN'T REAPPLIED IN LIGHT OF THE FACTS THAT THEY NOW ALLEGE IN THEIR COMPLAINT.

THE COURT: OKAY.

MR. MERON: AND IT'S IMPORTANT TO NOTE, YOUR HONOR, THAT IN ALL THE CASES ON WHICH THEY RELY IN WHICH A PARTY WAS ALLOWED TO BRING A PRE-ENFORCEMENT CHALLENGE TO A STATUTE, THE PARTY, AT A MINIMUM, WAS ABLE TO ALLEGE THAT THEY WERE EITHER CURRENTLY ENGAGED IN CONDUCT THAT WAS PROSCRIBED, OR HAD ENGAGED IN IT UP TO THE POINT WHERE THE STATUTE HAD BEEN PASSED. AND IT WAS ON THAT GROUND THAT BOTH THE 11TH CIRCUIT IN THE LEVERETT CASE THAT THEY RELY ON, AND THE 9TH CIRCUIT IN THE PEOPLE'S RIGHTS ORGANIZATION CASE DISTINGUISHED BABBITT AND SAID THAT AT A MINIMUM WAS WHAT HAS TO HAPPEN BEFORE YOU CAN BRING YOUR PREENFORCEMENT CHALLENGE. THAT A GENERAL INTENT TO ENGAGE IN THE FUTURE BECOMES TOO SPECULATIVE AND NOT IMMINENT ENOUGH TO CREATE A JUSTICIABLE CASE OR CONTROVERSY.

THE COURT: ARE YOU SAYING THAT THERE HAS BEEN A DECISION MADE WITHIN THE JUSTICE DEPARTMENT THAT ITS POSITION ON PROSECUTING THESE TYPES OF CASES, WHICH HAD BEEN BASICALLY UNIFORM IN DECIDING TO PROSECUTE, HAS NOW BEEN ALTERED AND THAT THE ATTORNEY GENERAL, THROUGH THE U.S. ATTORNEYS' OFFICE, WOULD NOT UNDER THESE CIRCUMSTANCES -- WELL, IF THE POLICE GO TO A HOUSE AND THEY FIND A GUN THAT IS UNREGISTERED, THAT THE JUSTICE DEPARTMENT WOULD NOT NOW PROSECUTE?

MR. MERON: YOUR HONOR, I DON'T KNOW WHAT POSITION THE U.S. ATTORNEY WOULD TAKE IN ANY PARTICULAR PROSECUTION SITUATION -- IN THE MYRIAD OF FACTS THAT WOULD BE PRESENTED IN SUCH A CASE, WHAT THEY WOULD OR WOULD NOT DO. I CAN'T TELL YOU THAT THERE HAS BEEN A CONCRETE POSITION TAKEN, BUT THAT IS ACTUALLY, IN A WAY, PRECISELY OUR POINT. THAT THIS CASE REALLY SHOULD NOT BE EVALUATED IN KIND OF THAT VERY HYPOTHETICAL AND GENERALIZED MANNER, BUT THAT THE PROPER APPROACH WOULD BE TO BRING SPECIFIC "AS APPLIED" CHALLENGES.

AND THAT'S BECAUSE I THINK THERE IS REALLY NO QUESTION THAT THE STATUTE HERE IS CONSTITUTIONAL ON ITS FACE. IT IS CLEARLY CAPABLE OF A WIDE RANGE OF CONSTITUTIONAL APPLICATIONS, EVEN IN THE PLAINTIFF'S VIEW.

SO UNDER SUPREME COURT PRECEDENT, THE STATUTE IS CONSTITUTIONAL ON ITS FACE, AND THE PROPER THING TO DO IS TO BRING "AS APPLIED" CHALLENGES. AND THEN, YOUR HONOR, WE WOULD BE IN A MUCH BETTER SITUATION TO EVALUATE PARTICULAR CASES AND TO ALLOW THE DEPARTMENT OF JUSTICE TO MAKE A CONCRETE DECISION WITH RESPECT TO PARTICULAR PROSECUTIONS.

THE COURT: YOU MIGHT BE CORRECT IN THAT REGARD, BUT, OBVIOUSLY, A POTENTIAL PLAINTIFF IS PUTTING HIM OR HERSELF AT SUBSTANTIAL RISK, CONSIDERING THE HISTORY OF HOW THIS STATUTE OR THESE STATUTES HAVE BEEN PROSECUTED, TO PUT THEMSELVES ON THE LINE OF POSSIBLY GOING TO JAIL BY GOING OUT AND GETTING A GUN, BECAUSE I KNOW FROM MY EXPERIENCE AND MY ATTITUDE WHEN I WAS OVER IN THE SUPERIOR COURT AND THE ATTITUDE OF A LOT OF OTHER JUDGES WHO I HAD CONTACT WITH, THAT THEY TOOK THESE GUN CASES VERY SERIOUSLY, AND EVEN FOR FIRST-TIME OFFENDERS, THERE WAS A HARD-LINE POSITION BEING TAKEN BY JUDGES ABOUT GIVING TIME TO PEOPLE WHO VIOLATED THE LAW.

Again this judge seems to favor standing for the plaintiffs, but that says nothing about his unknown views on the merits, or other issues such as lack of ripeness for failure to exhaust simple administrative remedies.

SO I MEAN YOUR OTHER ARGUMENT IS MAYBE CONVINCING, BUT THIS THEORY THAT CONSIDERING THE HISTORY OF THE STATUTE AND HOW IT HAS BEEN ENFORCED, THAT A PARTY SHOULD HAVE TO GO OUT AND PUT THEMSELVES IN HARM'S WAY OF NOT ONLY GETTING A CRIMINAL RECORD, BUT PROBABLY HAVING TO GO TO THE D. C. JAIL, WHICH IS NOT A FUN PLACE TO BE, IT SEEMS TO ME IS SOMEWHAT HARSH.

MR. MERON: BUT, AGAIN, YOUR HONOR, THAT IS NOT REALLY THE ONLY AVENUE THEY HAVE HERE BECAUSE, AS I SAID, THEY HAVE THE OTHER AVENUE. THEY HAVE AN ADMINISTRATIVE SYSTEM HERE, WHICH PRECISELY PERMITS THEM TO BRING THESE KINDS OF PRE-ENFORCEMENT CHALLENGES, TO SEEK LICENSES AND TO RAISE THEIR CONSTITUTIONAL CLAIM. IT IS VERY WELL SETTLED THAT YOU CAN RAISE CONSTITUTIONAL CLAIMS IN THE CONTEXT OF YOUR ADMINISTRATIVE REVIEW PROCEEDING, AND THEN THEY CAN GO TO THE D.C. COURT OF APPEALS. THEY CAN CITE EMERSON AND ASK THE D. C. COURT OF APPEALS TO GO EN BANC, IF THAT'S NECESSARY, AND THEY ALWAYS HAVE SUPREME COURT RELIEF.

SO IT'S NOT AS IF THEY HAVE NO OTHER AVENUE FOR RELIEF. AND THAT'S IMPORTANT BECAUSE WHAT NAVEGAR SAID IS THAT THE STANDING, INJURY AND FACT QUESTIONS OVERLAP VERY CLOSELY WITH THE HARDSHIP OF DELAYING REVIEW AND RIPENESS CONSIDERATIONS -- THAT THEY REALLY MERGE, AND THAT THE ABILITY OF ANOTHER AVENUE TO SEEK RELIEF -- OF AT LEAST ONE OTHER AVENUE, MILITATES IN FAVOR -- I'M SORRY MILITATES AGAINST JUMPING IN AT THE PRE-ENFORCEMENT STAGE TO PRECIPITOUSLY ADDRESS THE QUESTION IN THIS HYPOTHETICAL MANNER RATHER THAN IN ITS CONCRETE APPLICATION.

SO I THINK THAT IN FACT THE DILEMMA THAT THEY POSE IS A FALSE ONE. THEY HAVE ANOTHER AVENUE. WHAT THEY ARE REALLY TRYING TO DO IS FORUM SHOP. THEY WANT TO BE HERE RATHER THAN THE D. C. COURT OF APPEALS, I ASSUME, BUT THERE ARE OTHER AVENUES HERE. SO THEY DON'T HAVE TO RISK PROSECUTION AND CONVICTION.

Of course the NRA plaintiffs want to avoid the D.C. Court of Appeals. That court decided the Second Amendment issue negatively, in Sandidge v. U.S., 520 A.2d 1057 (D.C. Ct. App. 1987). Sandidge was a terse D.C. Court of Appeals decision upholding DC gun control laws and uncritically following the Miller decision of the Supreme Court as one of collective militia rights, with minimal analysis. It was the kind of bad random case that happens when there is no master plan, but that is 20 years too late now.

I THINK YOUR HONOR ALSO IS AWARE THAT THE FACTS THAT THEY ALLEGE IN THEIR COMPLAINT, IF TRUE, AMOUNT TO MISDEMEANOR VIOLATIONS. WHILE, OBVIOUSLY, NO ONE WANTS A CRIMINAL CONVICTION ON THEIR RECORD, I AM NOT SURE WHETHER TODAY THAT WOULD REALISTICALLY RESULT IN JAIL TIME. BUT THAT IS NOT REALLY THE MOST IMPORTANT POINT. THE MOST IMPORTANT POINT IS THEY HAVE OTHER AVENUES FOR RELIEF.

IN NAVEGAR, THERE WAS A RISK OF JAIL, AND THE COURT THOUGHT THAT WASN'T ENOUGH. AND HERE IT'S A STRONGER CASE IN TWO RESPECTS. NUMBER ONE IS THEY HAVE NOT YET ENGAGED IN THE CONDUCT, AND, NUMBER, THEY HAVEN'T BEEN SPECIFICALLY TARGETED.

IN NAVEGAR, THE A.T.F. HAD VISITED THE PLAINTIFFS' PREMISES ON THREE CONSECUTIVE DAYS, WHICH I THINK SHOWS A FAR GREATER TARGETING OF THOSE INDIVIDUALS THAN WHAT HAS BEEN ALLEGED HERE, AND THAT WAS STILL DEEMED NOT ENOUGH, DESPITE A GENERAL STATEMENT BY THE GOVERNMENT OF AN INTENT TO PROSECUTE.

The U.S. attorney argues hard that there is no standing or ripeness, and that the plaintiffs also must exhaust administrative remedies before they go to court. The easy way out for a judge is to adopt that reasoning by the government and bail on the case.

THE COURT: THANK YOU.

MR. MERON: THANK YOU.

THE COURT: THE DISTRICT.

MR. REZNECK: MAY IT PLEASE THE COURT. I WOULD LIKE TO ADDRESS THE MERITS. THE PLAINTIFFS HERE, I THINK, ARE RELYING PRIMARILY ON HISTORY AND ON THEIR VIEW OF ORIGINAL INTENT TO SUPPORT THEIR INTERPRETATION OF THE SECOND AMENDMENT. I HAD AN OLD CONSTITUTIONAL LAW PROFESSOR, PAUL FREUND ONCE, AND HE HAD TWO MAXIMS THAT HE USED TO RESPOND TO SUCH ARGUMENTS. WITH RESPECT TO THE USE OF HISTORY, HE SAID THAT RELYING ON HISTORY IS LIKE LOOKING OUT OVER A CROWD AND PICKING OUT YOUR FRIENDS. IT'S A VERY SELECTIVE, SUBJECTIVE, RESULT-ORIENTED APPROACH. AND I THINK THAT MAXIM IS WELL ILLUSTRATED BY WHAT THE PLAINTIFFS HAVE DONE HERE.

THERE IS A FRAGMENT FROM A DEBATE IN A RATIFYING CONVENTION HERE. THERE IS A PROPOSAL SOMEWHERE ELSE, EVEN IF IT WASN'T ADOPTED. THERE IS A QUOTE FROM A PAMPHLET OR A TREATISE FROM THE 18TH OR 19TH CENTURIES ON ORIGINAL INTENT, WHEN PROFESSOR FREUND WAS ASKED WHAT JAMES MADISON OR SOME OTHER FRAMER WOULD THINK ABOUT A PROBLEM IF HE WERE ALIVE TODAY, HE'D SAY THAT ALL HE COULD SAY WITH CERTAINTY WAS THAT IF MADISON WERE ALIVE TODAY, HE WOULD BE TOO OLD TO THINK CLEARLY ABOUT ANYTHING.

I AM SATISFIED THAT OUR SIDE HAS THE BETTER OF THE ARGUMENT ON BOTH HISTORY AND ORIGINAL INTENT. AND I WOULD REFER THE COURT RESPECTFULLY TO THE TWO AMICUS BRIEFS ON THAT. AND BOTH OF THE AMICI ARE HERE. I THINK THEY WOULD BE PLEASED TO RESPOND TO ANY DETAILED QUESTIONS THAT THE COURT MIGHT HAVE ON THAT AND PROBABLY CAN DO A BETTER JOB OF IT THAN I CAN.

Rezneck, lawyer for the D.C. defendants, is dismissive of the history of the Second Amendment and attempts to minimize it. The judge asks no questions on this. Mr. Halbrook, as we shall see, barely responds. A solid response should have been prepared and ready. If the judge had strong views on an individual right to arms, this subject area would have been ripe for extensive discussion, questions and answers. The inference here is that the judge may be inclined not to reach the Second Amendment merits.

I WOULD LIKE TO SUBMIT TO THE COURT THAT YOU CAN AND SHOULD DECIDE THIS CASE ON MUCH MORE CONVENTIONAL, DIRECT AND SIMPLER GROUNDS THAN THAT.

THE FIRST GROUND IS THE OVERWHELMING WEIGHT OF AUTHORITY FROM THE SUPREME COURT ON DOWN, REJECTING THE CLAIM THAT THE SECOND AMENDMENT EITHER CREATES OR RECOGNIZES A FUNDAMENTAL, INDIVIDUAL, CONSTITUTIONAL RIGHT TO POSSESS FIREARMS.

I SUBMIT THAT FROM THE MILLER CASE TO THE PRESENT, THE SUPREME COURT AND VIRTUALLY EVERY OTHER COURT HAVE REJECTED THAT ARGUMENT. AND I JUST WANT TO QUOTE ONE SENTENCE FROM THE SUPREME COURT OPINION IN THE LEWIS CASE WE HAVE CITED IN OUR PAPERS. THEY SAID: "THESE LEGISLATIVE RESTRICTIONS ON THE USE OF FIREARMS ARE NEITHER BASED UPON CONSTITUTIONALLY SUSPECT CRITERIA, NOR DO THEY TRENCH UPON ANY CONSTITUTIONALLY PROTECTED LIBERTIES," CITING THE MILLER CASE AND SOME OTHER CASES.

This argument shows how damaging the Miller decision has been. U.S. Courts of Appeal, Prosecutors and States use it all the time, since 1939. That is one reason why Miller needs to be overruled.
The Lewis case, in fact, was not a Second Amendment case. The parties did not brief or argue the Second Amendment in Lewis. It was about using a criminal conviction later where there had been no counsel. Will Mr. Halbrook be aware of this when his turn comes?

UNTIL RECENTLY, VIRTUALLY EVERY COURT OF APPEALS HAS LIKEWISE REJECTED THIS CONTENTION. NOW, YOU HAVE THE PANEL DECISION BY THE FIFTH CIRCUIT IN EMERSON, WHICH SAID THAT THERE IS SUCH A RIGHT, AT LEAST IN THE ABSTRACT, BUT THEY REJECTED ITS APPLICATION IN THE CASE BEFORE IT. THEY UPHELD THE CONVICTION OF THE DEFENDANT.

The D.C. lawyer omits the six dissents in Silveira, beginning at 328 F.3d 567, twice as many as the judges in Emerson.

Will Mr. Halbrook correct him later?

THE COURT: THE ATTORNEY GENERAL SEEMS TO FEEL THAT THERE IS AN INDIVIDUAL RIGHT.

MR. REZNECK: YES. I SPEAK ONLY FOR THE DISTRICT OF COLUMBIA AND FOR THE MAYOR.

THE COURT: YOU TAKE EXCEPTION WITH THAT POSITION, I ASSUME.

MR. REZNECK: WELL, I DON'T KNOW THAT I NEED TO, YOUR HONOR, BUT IT IS CLEARLY NOT OUR POSITION IN THIS CASE. WE HAVEN'T GOTTEN INTO THAT KIND OF INTERNECINE DEBATE ON THE THING.

I WOULD POINT OUT ALSO THAT THE U.S. DISTRICT COURTS, INCLUDING THIS ONE, HAVE ALSO BEEN UNIFORM IN REJECTING THIS ARGUMENT. JUDGE ROBERTS HAD A CASE THIS SUMMER, AND HE SAID:

"SINCE MILLER, THE LOWER FEDERAL COURTS HAVE UNIFORMLY INTERPRETED THE DECISION AS HOLDING THAT THE AMENDMENT AFFORDS A COLLECTIVE RATHER THAN AN INDIVIDUAL RIGHT ASSOCIATED WITH THE MAINTENANCE OF A REGULATED MILITIA," AND HE WENT ON TO SAY, "WITH THE EXCEPTION OF THE FIFTH CIRCUIT, THE COURTS OF APPEALS HAVE CONSISTENTLY HELD THAT INDIVIDUALS HAVE NO FUNDAMENTAL RIGHT TO POSSESS A FIREARM."

Again we see the evil of the Miller case and its progeny. Yet, NRA people argue to retain Miller and try to get the most of it. Again, the thorough, lengthy dissenting opinions in Silveira that reinforce Emerson are ignored. The judge never mentioned them. This suggests his disinterest in ruling favorably on an individual Second Amendment right. The NRA people seem to be ignoring the six Silveira dissents for unknown reasons, although these are more than all of the NRA victories ever since their founding in 1871.

THE D. C. COURT OF APPEALS HAS REPEATEDLY REJECTED THIS ARGUMENT. IT HAS BEEN RAISED A COUPLE OF TIMES IN THE D.C. CIRCUIT. THE D. C. CIRCUIT HAS DECLINED TO ACCEPT IT. I THINK THAT IS PROBABLY THE MOST ACCURATE WAY TO PUT IT. IT'S NOT UP TO THIS COURT, I WOULD RESPECTFULLY SUBMIT, TO ENGAGE IN PROPHECY AND ANTICIPATE THAT THE SUPREME COURT WILL CHANGE ITS MIND, IF AND WHEN IT EVER TAKES A SECOND AMENDMENT CASE.

However, it was Justice Holmes who in THE COMMON LAW reminded us that the law consists of prophecies of what the judges will do in fact. Every law school freshman has that book and knows that quote.

Will Mr. Halbrook recall that in his response? He has a golden opportunity here.

AND IF YOU WILL BEAR WITH ME ON JUST ONE FURTHER QUOTATION. THIS IS THE LAST ONE. THIS IS FROM LEARNED HAND, WHO WAS A GREAT TRIAL JUDGE, AS YOUR HONOR KNOWS, AS WELL AS AN APPELLATE JUDGE. AND HE SAID, "NOR IS IT DESIRABLE FOR A LOWER COURT TO EMBRACE THE EXHILARATING OPPORTUNITY OF ANTICIPATING A DOCTRINE WHICH MAY BE IN THE WOMB OF TIME, BUT WHOSE BIRTH IS DISTANT. ON THE CONTRARY, I CAN SEE THAT THE MEASURE OF ITS DUTY IS TO DIVINE AS BEST IT CAN WHAT WOULD BE THE EVENT OF AN APPEAL IN THE CASE BEFORE IT." THAT'S AT 139 F.2D AT PAGE 823, YOUR HONOR.

Another vague piece of semi-wisdom in the name of a dead white guy. Judge Hand never wrote a word on the right to arms.

THE COURT: DO YOU AGREE WITH THE UNITED STATES GOVERNMENT ON THE STANDING?

MR. REZNECK: WE HAVE INCORPORATED IT AND ADOPTED IT, YOUR HONOR. THERE ARE SOME DIFFERENCES BECAUSE IT IS TRUE THAT THE LICENSING AND REGISTRATION PROCEDURES ARE FOR THE DISTRICT, BUT IN FOCUSING ON THE ENFORCEMENT STRICTLY ON THE ENFORCEMENT POINT, THAT THERE HASN'T BEEN ANY ENFORCEMENT YET, AND THAT THESE PLAINTIFFS HAVEN'T APPLIED FOR A LICENSE OR REGISTRATION AS FAR AS WE KNOW, WE WOULD ADOPT THAT AND WOULD ALSO RELY ON THAT, SO THAT IF YOUR HONOR SHOULD GO ON THAT GROUND, WE WOULD OBVIOUSLY LIKE TO HAVE THE BENEFIT OF THAT DECISION, BUT WE ARE WILLING TO GO ON THE MERITS.

THE COURT: I DON'T KNOW IF YOU KNOW -- AND MAYBE THIS IS SOMETHING THAT NEEDS TO BE FACTUALLY DEVELOPED -- BUT SINCE THE ATTORNEY GENERAL MADE HIS PRONOUNCEMENT IN REFERENCE TO HIS VIEW ON THE SECOND AMENDMENT, DO YOU KNOW IF THE UNITED STATES GOVERNMENT, THROUGH THE UNITED STATES ATTORNEY'S OFFICE, HAS TAKEN A DIFFERENT POSITION REGARDING THE PROSECUTION OF VIOLATIONS OF THIS LAW?

MR. REZNECK: I DON'T KNOW. I DON'T KNOW, YOUR HONOR, WHAT THEY HAVE DONE HERE. YOUR HONOR CITED YOUR EXPERIENCE IN THE SUPERIOR COURT. I WAS IN THE U.S. ATTORNEY'S OFFICE HERE. I CAN TELL YOU THAT WE SURE PROSECUTED GUN CASES, C.D.W.'S AS IT WAS THEN. THE FRAMEWORK WAS NOT NEARLY AS ELABORATE AS IT IS NOW, BUT WE HAD A LOT OF GUN CASES.

THE SECOND POINT I WOULD LIKE TO MAKE IS THAT EVEN IF YOU HAD A SECOND AMENDMENT RIGHT SOMEHOW IN THE ABSTRACT, IT IS ABSOLUTELY CLEAR THAT THE VALIDITY OF A STATUTE REGULATING THE POSSESSION OF FIREARMS IS TO BE EVALUATED UNDER WHAT IS CALLED THE RATIONAL BASIS TEST, WHICH IS THE LOWEST LEVEL OF CONSTITUTIONAL SCRUTINY. ONCE AGAIN, THE LEWIS CASE IN THE SUPREME COURT SAID THAT EXPLICITLY. AND, AS I UNDERSTAND THEIR PAPERS, EVEN THOSE WHO WOULD ARGUE FOR SUCH A CONSTITUTIONAL RIGHT CONCEDE THAT IT IS NOT ABSOLUTE, BUT IT WOULD BE SUBJECT TO REASONABLE REGULATION. AND I WOULD SUBMIT --

THE COURT: I THINK THEY DO, FROM MY READING OF THE PAPERS, TAKE THE POSITION THAT A HIGHER STANDARD OF SCRUTINY SHOULD APPLY.

The judge is aware of the use of strict scrutiny, but what then?

Will Mr. Halbrook point out that Lewis was not a Second Amendment case?

What will Mr. Halbrook say about reasonable regulations.?

Does he know the jurisprudence of strict scrutiny well, like the civil rights litigators, or not?

MR. REZNECK: YES, AND I DISAGREE WITH THAT, BUT I THINK THEY DO CONCEDE THAT REGULATION IS POSSIBLE. IN OTHER WORDS, IT'S NOT -- THE WAY THE ARGUMENT THAT'S BEEN MADE ON THE FIRST AMENDMENT, SOMETIMES THAT IT SNAPS THE RIGHT AND THERE CAN'T BE ANY LEGISLATION.

THE QUESTIONED STATUTES HERE, I THINK, EASILY PASS RATIONAL BASIS REVIEW. AND I WOULD LIKE TO GIVE YOU AT LEAST THREE REASONS FOR THAT.

FIRST, YOU HAVE THE PRODUCT OF VERY LONG CONSIDERATION BY CONGRESS AND THE COUNCIL OF THE DISTRICT. THE CONGRESSIONAL REGULATION GOES BACK MANY, MANY YEARS HERE PURSUANT TO CONGRESS'S PLENARY POWER OVER THE DISTRICT OF COLUMBIA. WE KNOW THAT CONGRESS HAS MORE LEGISLATIVE POWER OVER THE DISTRICT THAN IT DOES OVER ANY OTHER PLACE IN THE UNITED STATES.

IN 1932, CONGRESS MADE EXPLICIT FINDINGS ON THE DANGERS POSED BY HANDGUNS WHEN IT PASSED WHAT WE KNOW AS THE C.D.W. STATUTE. THE COUNCIL OF THE DISTRICT PASSED THESE REGISTRATION PROVISIONS IN 1976, RIGHT AFTER THE HOME RULE ACT WENT INTO EFFECT. THIS WAS, OBVIOUSLY, A MATTER OF VERY HIGH PRIORITY. AND THE COUNCIL HAS CONTINUED TO LEGISLATE ON GUN CONTROL SINCE, AND ALL THESE COUNCIL ACTS HAVE GONE TO CONGRESS FOR REVIEW, AND CONGRESS HAS DECLINED TO DISTURB OR MODIFY ANY OF THEM.

The D.C. law in question was enacted in 1976. The NRA did not develop a challenge to it until 2003 and then only as a self-serving copycat effort to disrupt the CATO case.

NOW, SENATOR HATCH HAS BEEN QUOTED AS SAYING THAT HE WOULD LIKE TO SEE EITHER A REPEAL OR MODIFICATION OF SOME OF THIS LEGISLATION BY ACT OF CONGRESS, BUT IF THAT IS GOING TO BE DONE, THAT'S THE WAY TO DO IT, BY LEGISLATION, IN OTHER WORDS, RATHER THAN BY TRYING TO FORCE THE COURTS INTO WHAT MAY BE BOTH A PREMATURE AND AN ERRONEOUS JUDICIAL INTERPRETATION.

Senator Hatch has introduced a bill to repeal the D.C. law in question here. Senator Schumer will fight him tooth and nail. Who knows the outcome and when?

SECONDLY, THERE IS A MASS OF EMPIRICAL EVIDENCE SUPPORTING WHAT BOTH THE COUNCIL AND THE CONGRESS HAVE DONE OVER THE YEARS. I HAVE ALREADY CITED THE CONSIDERATION BACK IN 1932 BY CONGRESS. THERE HAVE BEEN EXPLICIT LEGISLATIVE FINDINGS BY BOTH CONGRESS AND THE COUNCIL AS TO THE DANGERS OF UNREGULATED POSSESSION OF GUNS -- PARTICULARLY HANDGUNS.

AND WE HAVE ATTACHED AS AN EXHIBIT TO OUR PAPERS THE STATISTICS FOR THE LAST THREE YEARS ON THE NUMBER OF SERIOUS OFFENSES, SUCH AS ROBBERY AND AGGRAVATED ASSAULT COMMITTED WITH FIREARMS.

Justice Scalia as a circuit judge wrote an opinion exonerating NRA in a wrongful death civil case where the firearm had been stolen from a desk in NRA headquarters, then in D.C. He cited a study about the ineffectiveness of the D.C. gun control law: NICHOLSON & GARNER, ANALYSIS OF THE FIREARMS CONTROL ACT OF 1975 (1980).

Will Mr. Halbrook, long an NRA counsel, be aware of that and mention it?

THE COURT: I DON'T THINK THERE IS ANY QUESTION THAT A LOT OF HAVOC IS WREAKED ON THE COMMUNITY BY PEOPLE WHO USE GUNS, BUT THERE IS SOME EMPIRICAL DATA SOME RECENT DATA, I GUESS, THAT DOES SUGGEST THAT MAYBE COMMUNITIES AND MAYBE PEOPLE ARE SAFER IF THEY HAVE POSSESSION OF WEAPONS.

MR. REZNECK: THERE IS AN ARGUMENT BEING MADE TO THAT EFFECT, YOUR HONOR. I AM NOT AWARE OF ANY DATA THAT WOULD SUPPORT THAT.

THE COURT: I THINK THERE HAVE BEEN SOME STUDIES, FROM WHAT I UNDERSTAND, DONE THAT WOULD SUGGEST THAT IN STATES WHERE THEY HAVE RELAXED THE GUN LAWS, THAT IT HAS HAD A POSITIVE IMPACT ON THE CRIME PROBLEM. WHETHER THAT SHOULD BE GIVEN WEIGHT, I DON'T KNOW.

Here he may be referring to work by John Lott, Gary Kleck, Wright, and more.

This gives Mr. Halbrook a great opportunity to bring in these authorities: Lott, John, More Guns Less Crime (Univ. of Chicago Press 1998); Lott, John, The Bias Against Guns (Regnery 2003); Kleck, Crime Control through the Private Use of Armed Force, 35 Soc. Probs. 1 (1988); Kleck, Targeting Guns: Firearms and their Control (1997); Wright, J.D. & Rossi, P.H., Armed and Considered Dangerous (N.Y.: De Gruyter 1986); and Waters, Robert A., Guns Save Lives (WA: Loompanics.com 2002).

Also he might mention the recent CDC study if he is on top of such research.

MR. REZNECK: WE DID GIVE YOU AS AN EXHIBIT A STUDY WHICH IS SPECIFIC TO THE DISTRICT OF COLUMBIA, WHICH APPEARED IN THE NEW ENGLAND JOURNAL OF MEDICINE, AND IT CONCLUDED THAT THE EFFECT OF THE GUN REGISTRATION LAWS, WHEN PASSED IN 1976, WAS TO LEAD TO A REDUCTION IN BOTH HOMICIDE AND SUICIDE IN THE DISTRICT OF COLUMBIA. THERE ARE DISPUTES ABOUT THAT.

Disputes! Here Mr. Halbrook has the opportunity to explain the studies that are cited above and others.

Will he be able to do so?

THE COURT: EXCEPT THE PLAINTIFFS SUGGEST THAT THE DISTRICT OF COLUMBIA HAS BECOME THE MURDER CAPITAL OF THE NATION AGAIN. WHETHER THAT IS TRUE OR NOT, I DON'T KNOW, BUT THEY SUGGEST THAT THAT'S TRUE.

The judge does keep coming back and challenging both the U.S. lawyer and Mr. Rezneck for D.C.

MR. REZNECK: THAT KIND OF PEJORATIVE IS FLUNG RATHER EASILY. AND I HAVE BEEN IN OTHER CITIES WHERE THE SAME THING IS SAID. SO I THINK THAT HAS TO BE TAKEN WITH A GRAIN OF SALT.

WHAT I WOULD SUGGEST, YOUR HONOR, IS THAT THESE STATISTICS SHOW VERY CLEARLY THAT WHAT WE ARE CONFRONTED WITH HERE IS A CONDITION. THIS IS A REAL-WORLD PROBLEM. THIS ISN'T A THEORY OR AN ACADEMIC EXERCISE THAT WE ARE ENGAGED IN HERE. THIS IS A SERIOUS MATTER FOR THE DISTRICT OF COLUMBIA. IT IS A MATTER OF PUBLIC HEALTH AND SAFETY.

I THINK IT IS INTERESTING THAT MOST OF THE STATUTORY PROVISIONS AT ISSUE HERE ARE CONTAINED IN THE PORTION OF THE D. C. CODE ENTITLED "HUMAN HEALTHCARE AND SAFETY," TITLE VII OF THE D. C. CODE. THAT IS THE VERY CORE OF THE POLICE POWER IN ANY JURISDICTION, TO PROTECT PUBLIC HEALTH AND SAFETY. AND THAT'S WHAT YOU HAVE BEFORE YOU HERE.

THE COURT: THESE LAWS DON'T STOP THE BAD GUYS FROM GETTING THE GUNS.

Right. They disarm the law-abiding citizens whose Second Amendment rights are the basis of this lawsuit.

MR. REZNECK: NO.

THE COURT: THE BAD GUYS ARE GOING TO GET THE GUNS REGARDLESS.

MR. REZNECK: I AGREE WITH THAT, YOUR HONOR.

THE COURT: WHO THEY REALLY STOP ARE HONEST CITIZENS WHO WOULD MAYBE LIKE TO HAVE GUNS BECAUSE THEY MIGHT FEEL THAT THEY WOULD HAVE BETTER PROTECTION IF THEY HAD THEM.

This is very good to hear from the judge.

MR. MERON [I recall that Mr. Rezneck said this, but IMBW]: I THINK THERE HAVE BEEN STUDIES DONE BY THE A.T.F. -- I GUESS IT IS NOW THE A.T.F. & E. THEY CHANGED THE NAME SLIGHTLY -- TO SHOW THAT THE INCIDENCE OF FIREARMS USED IN CRIME IN THE DISTRICT REFLECTS PURCHASE OF THESE GUNS ELSEWHERE -- IN OTHER WORDS, IN OTHER JURISDICTIONS WHICH DON'T HAVE THE STRINGENT REGULATIONS THAT WE DO HERE. IN OTHER WORDS, THESE ARE NOT HOME-GROWN GUNS. I THINK THAT IS TRUE ALMOST TO A HUNDRED PERCENT, ACTUALLY. THAT THEY ARE BROUGHT IN FROM OUR SISTER JURISDICTIONS.

AND I WOULD LIKE TO POINT OUT THAT WE HAD A VERY GOOD ILLUSTRATION JUST IN THE LAST TWO WEEKS OF WHY WHAT CONGRESS AND THE DISTRICT HAVE DONE PASSES THE RATIONAL-BASIS TEST. OUR NEIGHBORING JURISDICTION, P. G. COUNTY IN MARYLAND, DOES NOT HAVE THE SAME STRINGENT CONTROLS OVER GUNS THAT THE DISTRICT DOES, AND TEN DAYS AGO, AS I THINK YOUR HONOR MAY BE AWARE, A FOUR-YEAR-OLD BOY FOUND A .45 CALIBER SEMI-AUTOMATIC HANDGUN IN HIS HOME. HE HAD THREE SIBLINGS. THEY FLED THE HOUSE. HE SHOT THROUGH THE DOOR AND KILLED HIS FIVE-YEAR-OLD SISTER AND CRITICALLY WOUNDED HIS SEVEN-YEAR-OLD BROTHER. IF YOUR HONOR WOULD LIKE TO SEE IT, I DO HAVE A CLIPPING.

THE COURT: NO, I'M FAMILIAR WITH IT.

MR. REZNECK: I'M SURE YOU'RE FAMILIAR WITH IT. I DON'T EVEN KNOW HOW A FOUR-YEAR-OLD COULD SQUEEZE THE TRIGGER ON A .45. I MEAN THAT IS A VERY HEAVY-CALIBER GUN, AND THAT I HOPE WOULD NOT OCCUR OR COULD NOT OCCUR IN THE DISTRICT OF COLUMBIA. AND IF OUR GUN LAWS PREVENT ONE INCIDENT LIKE THAT, AS THEY SHOULD, I THINK IT'S RATIONAL TO HAVE THEM ON THE BOOKS. AND THAT'S WHAT I MEAN WHEN I SAY THAT WE ARE DEALING WITH FACTS AND WITH REAL-WORLD CONDITIONS HERE, NOT WITH ABSTRACTIONS OR HYPOTHETICALS.

THE COURT: I MEAN, OBVIOUSLY, THAT IS A TRAGIC SITUATION, BUT I DON'T KNOW IF OUR LAWS WOULD STOP THAT FROM OCCURRING, BECAUSE WHEN I WORKED IN THE WHITE HOUSE IN THE DRUG OFFICE, I WENT WITH THE A.T.F. AND THE METROPOLITAN POLICE OUT TO A LOCATION IN SOUTHEAST, AND A RAID WAS CONDUCTED, AND THREE GUNS WERE FOUND IN A HOUSE WHERE THERE WERE THREE CHILDREN WHO WOULD HAVE HAD EASY ACCESS TO THEM. SO DESPITE THE EXISTENCE OF A LAW, THOSE KIDS COULD HAVE GOTTEN THAT GUN, AND THE SAME TRAGEDY COULD HAVE TAKEN PLACE.

MR. REZNECK: I AGREE, YOUR HONOR. I DON'T KNOW EITHER, BUT I THINK THE COUNCIL AND CONGRESS COULD REASONABLY THINK THAT THIS MIGHT HELP TO ALLEVIATE THE PROBLEM. AND I WOULD SUGGEST -- YOU KNOW, OF COURSE, WE CAN'T KNOW WHAT WOULD HAPPEN WITHOUT THESE LAWS, BUT IF THE SITUATION WERE WORSE, AS IT WELL MIGHT BE, I THINK CONGRESS AND THE COUNCIL WOULD BE ENTITLED TO TAKE THAT INTO ACCOUNT IN LEGISLATING.

THE COURT: DID YOU WANT TO LEAVE ANY TIME FOR REBUTTAL?

MR. REZNECK: WELL, I CAN ADDRESS THE OTHER CLAIMS THAT THEY'VE MADE, YOUR HONOR, IF YOU WISH.

THE COURT: WHY DON'T WE HEAR WHAT THEY HAVE TO SAY, AND THEN IF YOU WANT TO RESPOND, YOU CAN.

MR. REZNECK: OKAY. I DON'T THINK THEY ARE SERIOUS CLAIMS REALLY. I THINK THE SECOND AMENDMENT CLAIM IS.

Mr. Rezneck is dismissive toward all of those other claims that the NRA and Mr. Halbrook raised. The judge asked no questions about them either.

THE COURT: OKAY. THANK YOU.

Now we have the oral argument of Mr. Stephen Halbrook.

He describes himself as the leading expert on the right to keep and bear arms.

MR. HALBROOK: IF THE COURT PLEASE, OF COURSE THESE ARE POLICY ISSUES THAT HAVE BEEN RAISED IN THE LAST PART OF MY BROTHER COUNSEL'S ARGUMENT, BUT WE DO THINK THERE IS SOME VALIDITY TO THOSE COMMENTS IN TERMS OF SHOWING THE INJURY IN FACT TO THE PLAINTIFFS.

THE COURT: WHAT ABOUT THE STANDING QUESTION? I MEAN THERE IS AN ADMINISTRATIVE PROCESS THAT WAS ESTABLISHED TO PETITION FOR LICENSES AND REGISTRATION, AND IF THOSE APPLICATIONS WERE DENIED, A PROCESS BY WHICH AN APPEAL COULD BE TAKEN ULTIMATELY, AND A DECISION BOTH ON STATUTORY GROUNDS AND CONSTITUTIONAL GROUNDS COULD BE ADDRESSED BY THE D.C. COURT OF APPEALS. WHY SHOULDN'T YOU BE REQUIRED TO GO THROUGH THAT PROCESS?

Immediately the judge asks about exhaustion of administrative remedies, the first issue on his mind. That is very revealing.

MR. HALBROOK: WELL, FIRST OF ALL, THE LAW CLEARLY STATES AS A STATUTORY MATTER THAT NO HANDGUNS WILL BE REGISTERED. SO THERE COULD NEVER BE AN ARBITRARY AND CAPRICIOUS ABUSE OF DISCRETION IN REFUSING TO REGISTER HANDGUNS.

That is true, but there are better answers. The NRA-Halbrook case is supposed to be a civil rights action under 42 USC §1983. Such cases never require exhaustion of administrative remedies. This is what the Supreme Court said in Patsy v. Bd. of Regents, 457 U.S. 496, 500-01 (1982):

This contention need not detain us long. Beginning with McNeese v. Board of Education, 373 U.S. 668, 671-673 (1963), we have on numerous occasions rejected the argument that a 1983 action should be dismissed where the plaintiff has not exhausted state administrative remedies. See Barry v. Barchi, 443 U.S. 55, 63, n. 10 (1979); Gibson v. Berryhill, 411 U.S. 564, 574 (1973); Carter v. Stanton, 405 U.S. 669, 671 (1972); Wilwording v. Swenson, 404 U.S. 249, 251 (1971); Houghton v. Shafer, 392 U.S. 639, 640 (1968); King v. Smith, 392 U.S. 309, 312, n. 4 (1968); Damico v. California, 389 U.S. 416 (1967). Cf. Steffel v. Thompson, 415 U.S. 452, 472-473 (1974) ("When federal claims are premised on [1983] - as they are here - we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights").

Civil rights litigators usually know this from day one.

THE COURT: BUT YOU COULD STILL MAKE THE CONSTITUTIONAL CHALLENGE, COULDN'T YOU?

MR. HALBROOK: YOU CAN MAKE THAT, BUT, ON THE OTHER HAND, WHAT WE HAVE TO SHOW IN THIS COURT, WE CAN SHOW. THE FACT THAT IT MIGHT BE POSSIBLE TO HAVE THAT OTHER AVENUE DOES NOT PRECLUDE AN ACTION IN THIS COURT ANY MORE THAN ANY NORMAL CIVIL RIGHTS ACTION CAN BE FILED EITHER IN FEDERAL COURT OR STATE COURT. AND, IN THIS CASE, WE HAVE THE ADDED PROBLEM OF THE ATTORNEY GENERAL AND THE THREAT OF PROSECUTION BY THE ATTORNEY GENERAL, WHICH WOULD NOT BE THE CASE IF WE WERE FILING IN THE D. C. COURT OF APPEALS AND SIMPLY DOING LIKE A WRIT OF MANDAMUS, OR SOMETHING TO TRY TO REQUIRE THE D.C. POLICE TO REGISTER HANDGUNS.

Oops. Mr. Halbrook does not come back forcefully with the exhaustion of remedies case law, not a single one.

THE COURT: MAYBE THE ATTORNEY GENERAL, THROUGH THE UNITED STATES ATTORNEY'S OFFICE, HAS A DIFFERENT POSITION ON PROSECUTING THESE CASES IN LIGHT OF THE NEW POSITION THAT THIS ATTORNEY GENERAL HAS TAKEN REGARDING THE SECOND AMENDMENT. I DON'T KNOW IF THAT'S GOING TO HAVE AN IMPACT ON THE DECISION TO PROSECUTE OR NOT, BUT MAYBE THAT'S SOMETHING THAT NEEDS TO BE ESTABLISHED BEFORE THIS COURT JUMPS INTO THE FRAY.

MR. HALBROOK: I WOULD CERTAINLY SUPPORT A DISCOVERY PERIOD TO FIND THAT OUT. IT'S OUR UNDERSTANDING THAT THERE HAS BEEN NO CHANGE. WE ARE NOT AWARE OF ANY CHANGE. ALL OF US WHO PRACTICE CRIMINAL LAW KNOW THAT THOSE CASES CONTINUE TO BE PROSECUTED. THERE HASN'T BEEN ANY CHANGE SINCE THE YEAR 2000 WHEN THE ADMINISTRATION CHANGED. YOUR HONOR, THE FACT THAT YOU HAVE RAISED THE QUESTION -- I AGREE THAT WOULD BE AN INTERESTING QUESTION TO DISCOVER -- IF THE UNITED STATES WANTS TO COME FORWARD AND SAY, "WE ARE NOT PROSECUTING THOSE CASES." THERE STILL IS INJURY, EVEN IF THEY DECLINED TO PROSECUTE BECAUSE THE ARRESTS ARE STILL GOING ON. THERE ARE SEVERAL KINDS OF INJURY HERE THAT HAS NOT REALLY BEEN DISCUSSED SO FAR. AND IT GOES BACK TO

THE COURT: BEFORE WE LEAVE FROM THIS PROCEDURAL ISSUE, CONGRESS WAS INVOLVED, OBVIOUSLY, IN THIS PROCESS THAT RESULTED IN THE ENACTMENT OF THESE STATUTES THAT ARE BEING CHALLENGED BECAUSE OF THE UNIQUE RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND THE DISTRICT OF COLUMBIA. AND CONGRESS AUTHORIZED, THROUGH ITS INACTION AND SAYING TO THE DISTRICT, "YOU CAN ENACT THIS LAW," AND THEY HAVE DONE THAT WHEN THEY FELT THAT THEY DIDN'T WANT A LAW TO GO INTO EFFECT. AND A PART OF THE PROCESS WAS THIS ADMINISTRATIVE PROCEDURE THAT WAS CREATED FOR THESE TYPES OF CHALLENGES TO BE MADE. AND IF CONGRESS HAS, IN EFFECT, SPOKEN ON HOW THESE TYPES OF CHALLENGES COULD BE MADE, WHY SHOULDN'T I REQUIRE THAT YOU GO THROUGH THE PROCESS, GO TO THE DISTRICT OF COLUMBIA COURT OF APPEALS, RAISE YOUR CONSTITUTIONAL CHALLENGE, AND LET THAT COURT ADDRESS WHETHER OR NOT THERE IS, IN FACT, A VIOLATION?

Some observers saw this statement as indicating that the judge might require Mr. Halbrooks clients to apply for permits and go through the administrative process.

Will Mr. Halbrook remember the non-exhaustion law of section 1983?

MR. HALBROOK: WELL, THERE IS NO MANDATE BY CONGRESS THAT THAT PROCESS BE FOLLOWED. CONGRESS HAS SET FORTH THE PROCESS. I THINK, IN THE TYPICAL SITUATION, IF YOU WERE APPEALING FROM A DECISION NOT TO REGISTER, LET'S SAY, A RIFLE, WHICH IS REGISTRABLE IN THE DISTRICT, THAT YOU COULD GO TO THROUGH THAT ADMINISTRATIVE AND THEN JUDICIAL PROCESS AND ARGUE ARBITRARY AND CAPRICIOUS. YOU COULD MAKE CONSTITUTIONAL ARGUMENTS IF YOU WISHED, BUT

THE COURT: ARE YOU SAYING IT IS NOT DESIGNED TO DEAL WITH HANDGUNS -- THAT PROCESS?

MR. HALBROOK: BY AND LARGE IT'S NOT, OTHER THAN WITH THE EXCEPTION OF YOU COULD RAISE CONSTITUTIONAL ISSUES, BUT YOU CERTAINLY COULDN'T RAISE STATUTORY ISSUES BECAUSE THE STATUTE CLEARLY STATES HANDGUNS SHALL NOT BE REGISTRABLE. AND YOU COULD NEVER MAKE AN ARBITRARY AND CAPRICIOUS ARGUMENT THERE THAT HERE I MET ALL THE QUALIFICATIONS, CLEAN RECORD AND WHATNOT. THEY WOULD BE COMMITTING AN ILLEGAL ACT UNDER THEIR ORDINANCES IF THEY DID REGISTER A HANDGUN. AND WE HAVE MORE THAN ONE FEDERAL CONSTITUTIONAL CLAIM AT ISSUE HERE. WE HAVE A FEDERAL STATUTORY CLAIM, THE ENABLING ACT. AND WE THINK THE FEDERAL COURT IS A PROPER FORUM TO BRING THAT CASE IN. IF WE ESTABLISH STANDING AND RIPENESS AND WE ESTABLISH OUR CAUSES OF ACTION, THEN THIS IS AN APPROPRIATE PLACE. THE FACT THAT WE MIGHT HAVE BEEN ABLE TO LITIGATE SOME OF THESE CLAIMS ELSEWHERE DOESN'T MEAN WE CAN'T DO IT HERE. AND, ALSO, WE ARE LOOKING FOR PROTECTION FROM PROSECUTION BY THE U.S. ATTORNEY'S OFFICE, NOT JUST

THE COURT: ASSUMING YOU ARE CORRECT ON THIS PROCEDURAL ISSUE, WHAT'S YOUR INJURY?

MR. HALBROOK: THE INJURY WOULD BE SEVERALFOLD. ONE IS THAT THE PLAINTIFFS WISH TO GET HANDGUNS TO PROTECT THEMSELVES. THEY WANT TO REGISTER THEM. WE ARE NOT CONTESTING THE REGISTRATION SCHEME. THEY ARE VICTIMS OF CRIME. THEY LIVE IN CRIME-RIDDEN NEIGHBORHOODS. THIS IS ALL IN THE COMPLAINT. IT HASN'T BEEN CONTESTED. THEY WOULD BE ABLE TO PROTECT THEMSELVES.

THERE IS ALSO A CONSTITUTIONAL RIGHT AT STAKE, AND ENTERING INTO THE STANDING JURISPRUDENCE IS THE ZONE-OF-INTEREST CONCEPT, WHICH IS MENTIONED IN NAVEGAR BRIEFLY, THE FACT THAT IF YOU HAVE A CONSTITUTIONAL OR STATUTORY RIGHT TO SOMETHING, YOU MIGHT HAVE INJURY STEMMING FROM THAT. SO THEY ARE BETWEEN THE CLASSICAL ROCK AND HARD PLACE IN THE WORDS OF NAVEGAR. EITHER THEY EXPOSE THEMSELVES TO POTENTIAL ARREST AND PROSECUTION AND INCARCERATION -- A CRIMINAL RECORD -- OR THEY FORGO THE ACTIVITY. AND BY FORGOING THE ACTIVITY, THEY ARE DEPRIVED OF THE EXERCISE OF A CONSTITUTIONAL RIGHT, AND THEY ARE THREATENED WITH CRIMINAL VIOLENCE IN THEIR OWN HOMES. SO THAT'S THE INJURY IN FACT. AND THOSE KINDS OF INJURIES AREN'T DISCUSSED IN NAVEGAR. I THINK MAYBE A BETTER EXAMPLE WOULD BE TO COMPARE THE THREAT OF CRIMINAL VIOLENCE WITH THE ABBOTT LABORATORIES RIPENESS DISCUSSION. THE INJURY IN FACT WAS THAT THE PLAINTIFFS WOULD HAVE TO PUT DIFFERENT LABELS ON PRESCRIPTION MEDICINE. OUR INJURY IS THE THREAT OF CRIMINAL VIOLENCE AND THE VIOLATION OF A CONSTITUTIONAL RIGHT.

I DON'T SEE THAT AN ECONOMIC INJURY IS SOMETHING THAT IS MORE IMPORTANT THAN AN INJURY REGARDING THE THREAT TO THE INTEGRITY OF ONE'S PERSON, AND ONE'S HOME, AND ONE'S FAMILY. THE CASE LAW IS PRETTY CLEAR THAT THE RIGHT TO LIFE IS FUNDAMENTAL. THOSE KINDS OF INJURIES DON'T FIGURE INTO THE NAVEGAR ANALYSIS BECAUSE THAT WAS A MERE CORPORATION BRINGING THE LAWSUIT. AND IN REGARD TO THE FACT THAT THERE HADN'T BEEN A SUBSTANTIAL THREAT OF PROSECUTION IN THAT CASE -- DON'T FORGET THAT THE PART THAT THE COURT WOULDN'T CONSIDER -- THE CAUSES OF ACTION THE COURT WOULDN'T CONSIDER WAS BASED ON THE DEFINITIONS THAT WERE ALLEGED TO BE VAGUE. AND THERE WAS ALSO A COMMERCE-CLAUSE CHALLENGE THERE AS WELL. BUT THE POINT IS THAT THIS HAD NOT BEEN ENFORCED, AND IT WAS UNCLEAR HOW THE AGENCY, A.T.F., WAS GOING TO ENFORCE THOSE PROVISIONS. THEY DIDN'T CLEARLY APPLY TO THE PLAINTIFFS.

This question suggests that the judge is still looking for a technical ground to throw out the case.

The standing discussion in Gratz v. Bollinger, 539 U.S. ___ (2003), would have been powerful to use here. One of the students did not apply for admission there, just as Seegars et al did not apply for gun permits. Still the student had standing. Page 12 & 13 of Gratz were fine arguments to make, but Mr. Halbrook did not do so.

THE COURT: WELL, YOU DO AGREE THAT THESE STATUTES ARE NOT UNCONSTITUTIONAL ON THEIR FACE, RIGHT? I MEAN THEY CAN BE APPROPRIATELY APPLIED TO A CERTAIN SEGMENT OF SOCIETY, YOU WOULD AGREE, RIGHT?

MR. HALBROOK: NOT NECESSARILY. HERE'S WHAT I WOULD SAY IN RESPONSE.

THE COURT: A CONVICTED FELON WHO HAS USED GUNS IN THE PAST COULD NOT BE PROSCRIBED FROM HAVING A HANDGUN?

MR. HALBROOK: THAT PERSON HAS NO STANDING TO RAISE THE SECOND AMENDMENT, BUT IF LAW-ABIDING CITIZENS, WHO ARE QUALIFIED TO POSSESS GUNS UNDER DISTRICT AND FEDERAL LAW

THE COURT: WHAT IF A PERSON HAS A MENTAL HEALTH ISSUE?

MR. HALBROOK: RIGHT. FEDERAL LAW PRECLUDES PERSONS WHO HAVE BEEN COMMITTED TO MENTAL INSTITUTIONS

THE COURT: WHAT IF A PERSON HASN'T BEEN COMMITTED, BUT THEY HAVE GOT SOME HISTORY OF PROBLEMS THAT MIGHT POTENTIALLY CAUSE THEM TO BE A DANGER TO SOCIETY IF THEY HAVE ACCESS TO A HANDGUN?

MR. HALBROOK: WELL, IF A LEGISLATIVE BODY WANTS TO LEGISLATE ON THAT, THEY ARE FREE TO DO SO. AND THE FACT IS THAT THE FEDERAL STANDARD, FOR EXAMPLE, IS EITHER ADJUDICATED MENTAL INCOMPETENT OR HAS BEEN COMMITTED TO A MENTAL INSTITUTION.

THE COURT: WHAT ABOUT THE DISTRICT'S POSITION THAT EVEN IF WE GET TO THE CORE ISSUE, YOU CAN'T MAKE A CLAIM THAT THERE IS AN INDIVIDUAL RIGHT TO BEAR ARMS, AND THEIR POSITION IS PREDICATED ON LANGUAGE THAT HAS BEEN ESPOUSED FROM THE SUPREME COURT, STARTING WITH THE MILLER OPINION, WHICH IT SEEMS TO BE INDICATING THAT YOU CAN'T READ OUT THOSE PORTIONS OF THE SECOND AMENDMENT THAT MAKE REFERENCE TO THE MILITIA. AND AS THE SUPREME COURT INDICATED IN MILLER, YOU HAVE TO LOOK AT THAT PERSPECTIVE IN DECIDING WHETHER THERE IS A RIGHT.

If the judge agrees with D.C., then Mr. Halbrook has lost the Second Amendment argument.

Now would be the time for a powerful reply summarizing the strengths of the Second Amendment position and citing the numerous judicial and scholarly authorities, especially the helpful opinions in Emerson and Silveira, representing nine federal circuit judges.

MR. HALBROOK: YES, YOUR HONOR. WHAT THE SECOND AMENDMENT DOES IS TO RECOGNIZE THE SUBSTANTIVE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS. AND THEN IT GIVES AN IMPORTANT FEDERAL OBJECTIVE, A REASON WHY THEY ARE PUTTING THAT IN THE BILL OF RIGHTS. AND IT'S THAT A WELL-REGULATED MILITIA IS NECESSARY FOR THE SECURITY OF A FREE STATE.

The powerful response did not happen.

THE COURT: WE DON'T NEED A MILITIA ANYMORE, DO WE? I MEAN WE HAVE THE NATIONAL GUARD. WE HAVE GOT THE STRONGEST MILITARY IN THE WORLD -- MORE WEAPONRY THAN ANY OTHER SOCIETY COULD PROBABLY EVEN IMAGINE. SO WHY IS THERE A NEED FOR INDIVIDUALS TO HAVE WEAPONS IN ORDER TO PROTECT THIS NATION?

MR. HALBROOK: WHETHER THERE IS A NEED FOR A MILITIA ANYMORE, THE RIGHTS STILL EXIST AS DECLARED IN THE SECOND AMENDMENT. AND IT WOULD BE, I THINK, NOT TRUE TO THE SPIRIT OF THE BILL OF RIGHTS TO SAY THAT A RIGHT DOESN'T EXIST BECAUSE ONE OF THE NEEDS FOR THAT RIGHT IS NO LONGER CONSIDERED POLICY.

This was a good time to reply that millions of individuals every year need defensive weapons to protect their homes and businesses.

THE COURT: YES, BUT IF THE DRAFTERS OF THE BILL OF RIGHTS, WHEN THEY DRAFTED THE SECOND AMENDMENT, WANTED TO CREATE AN INDIVIDUAL RIGHT RESPECTIVE OF THE NEED FOR MILITIA, THEY COULD HAVE JUST SAID THAT.

They did say it, and they also mentioned an additional purpose. James Madison said it, describing the Bill of Rights as personal rights. The adjacent amendments say it.

Congress did not say the Second Amendment was a right of the State, but of the people. You can ask the same question. If Congress intended a state right, they could have said so or omitted the Second Amendment altogether. Look at the early authorities who were close to this. ETC.

MR. HALBROOK: YOUR HONOR, WHAT THEY SAID IN THAT AMENDMENT -- THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHOULD NOT BE INFRINGED, AND WHY WOULD THAT SUPPORT A MILITIA -- WHETHER THERE IS A MILITIA OR NOT, IT WOULD HELP ENCOURAGE A MILITIA BECAUSE GENERALLY PEOPLE AT LARGE WOULD HAVE FIREARMS AND KNOW HOW TO USE THEM. THEY WOULD TARGET-PRACTICE WITH THEM, AND IF THERE WAS A NEED TO CALL OUT MORE THAN THE NATIONAL GUARD -- LIKE IN WORLD WAR II, THERE WERE STATE PROTECTIVE FORCES CALLED OUT IN EVERY STATE, BEARING THEIR OWN ARMS -- PEOPLE WHO WEREN'T DRAFTED.

THE COURT: BUT AT THAT TIME THE MILITARY MIGHT OF THIS NATION HAD NOT BEEN ESTABLISHED, AND, THEREFORE, IN ORDER FOR THE NATION TO PROTECT ITSELF, THERE WAS A NEED FOR INDIVIDUAL CITIZENS TO HAVE WEAPONS SO THAT IN THE EVENT OF AN ATTACK, THE NATION WOULD BE ABLE TO CALL THOSE PEOPLE TOGETHER AND FORM A MILITARY THAT WOULD BE ABLE TO PROTECT THE NATION. BUT THAT'S NOT THE CASE HERE. I MEAN WE CALL UP THE NATIONAL GUARD ALL THE TIME, AND WE HAVE GOT A READY AVAILABLE CACHE OF GUNS AND WEAPONRY AVAILABLE FOR THEM.

This is a common gun control argument that needs to be answered fully every time.

Individuals, homes, and businesses do need arms now. The police and military are not enough. They government takes no responsibility for protecting citizens in individual cases.

MR. HALBROOK: THIS IS A PUBLIC POLICY ARGUMENT, I THINK. AND THE EXTENT TO WHICH THE SECOND AMENDMENT IS CONSIDERED NEEDED ANYMORE, I THINK THAT IF THE CONSTITUTION PROVIDES FOR SOMETHING CALLED THE RIGHT OF THE PEOPLE, AS IT DOES IN THE SECOND AMENDMENT -- ONE CAN MAKE PUBLIC POLICY ARGUMENTS ABOUT THE FIRST AMENDMENT RIGHT OF THE PEOPLE TO ASSEMBLE AND SAY THAT THAT'S NO LONGER NEEDED, OR BECAUSE OF THE DRUG WAR, WE DON'T NEED THE RIGHT OF THE PEOPLE TO BE FREE FROM UNREASONABLE SEARCH AND SEIZURE.

FIRST OF ALL, WE DON'T KNOW WHETHER THAT WILL ALWAYS BE THE CASE THAT AN ARMED POPULACE WILL NEVER BE NEEDED IN THE FUTURE FOR A FUTURE CONFLICT. BUT, SECONDLY, I DON'T THINK THAT AN ARMED INVASION FROM ABROAD, FOR EXAMPLE, IS THE ONLY PURPOSE TO SECURE A FREE STATE. CERTAINLY ON THE FACE OF THE AMENDMENT, IT REFERS IN THE PREAMBLE TO THE MILITIA BEING NECESSARY TO SECURE A FREE STATE. I THINK SECURING A FREE STATE ALSO MEANS THE POPULACE BEING ABLE TO PROTECT ITSELF FROM CRIMINAL VIOLENCE. A FREE STATE MEANS A POLITY OR A POLITICAL BODY WHERE THERE IS FREEDOM -- A COMMONWEALTH, SO TO SPEAK, AND THE WORD "SECURE" IS THERE. NECESSARY TO SECURE. THAT DENOTES THE WORD SECURITY.

THE COURT: ISN'T THE NATIONAL GUARD THE EQUIVALENT OF WHAT WAS THE OLD MILITIA?

MR. HALBROOK: IT ACTUALLY IS NOT, YOUR HONOR. THE PERPICH CASE DECIDED BY THE SUPREME COURT IN 1990 HELD THAT THE NATIONAL GUARD WAS FORMED UNDER THE FEDERAL POWER TO RAISE ARMIES AND NOT THE MILITIA CLAUSE OF ARTICLE I, SECTION 8. AND, THEREFORE, THAT'S WHY THEY CAN BE MOBILIZED AND SENT TO IRAQ AND OTHER PLACES LIKE THAT, BECAUSE THEY ARE NOT THE MILITIA. THEY ARE THE MILITIA WHEN THEY ARE NOT IN U.S. SERVICE, BUT THEN THEY PLAY A DUAL ROLE. WHEN THEY ARE FEDERALIZED, THEY ARE NO LONGER CONSIDERED MILITIA. SO, IN ANY EVENT

THE COURT: BUT IF THEY ARE NOT FEDERALIZED, THEN THEY ARE THE EQUIVALENT.

MR. HALBROOK: THEY ARE THE ORGANIZED MILITIA. THE FEDERAL STATUTE RECOGNIZES THE UNORGANIZED MILITIA AS WELL. BUT, OF COURSE, LIKE OTHER COURTS

THE COURT: WHAT'S THE UNORGANIZED MILITIA?

MR. HALBROOK: THAT WOULD BE ALL ABLE-BODIED MALES FROM AGE, I THINK, 18 TO 44, OR SOMETHING LIKE THAT. IT'S DEFINED BY FEDERAL STATUTE. EVERY STATE HAS AN UNORGANIZED MILITIA ALSO DEFINED BY STATUTE. AND THESE ARE PEOPLE WHO ARE CAPABLE OF BEING CALLED OUT IN THE EVENT OF AN EMERGENCY, IF THE NATIONAL GUARD IS MOBILIZED AND SENT ABROAD, FOR EXAMPLE. BUT SECURITY MEANS SECURITY IN YOUR OWN HOME AS WELL AS SECURITY FROM FOREIGN INVASION, FOR EXAMPLE. AND IT WAS ALWAYS THE ROLE OF THE MILITIA, AS WELL AS ALL ABLE-BODIED PEOPLE, WHEN YOU GO BACK TO THE HUE AND CRY, FOR EXAMPLE, TO PARTICIPATE IN THEIR OWN PROTECTION OR TO ASSIST LAW ENFORCEMENT IN APPREHENDING FLEEING FELONS AND THINGS LIKE THAT. AND THAT MIGHT HAVE FALLEN INTO DISUSE TO SOME EXTENT, BUT CERTAINLY THE ABILITY OF A PERSON TO PROTECT THEMSELVES IN THEIR OWN HOME, I THINK, IS ENCOMPASSED WITHIN THE PURPOSE OF THE SECOND AMENDMENT.

THE COURT: WOULD YOU HAVE TO, ON THE MERITS, ESTABLISH EMPIRICALLY THAT THE ABILITY TO POSSESS A GUN DOES, IN FACT, ENHANCE YOUR ABILITY TO PROTECT YOURSELF?

You certainly could establish that. Here you might cite Warren v. District of Columbia, 444 A.2d 1 (D.C. 1983), where D.C. police neglect allowed three rapes to destroy the lives of three unarmed women. The women sued D.C. for damages and were thrown out of court.

MR. HALBROOK: NO. I DON'T THINK WE DO HAVE TO DO THAT EMPIRICALLY BECAUSE THE CONSTITUTION HAS ALREADY SET THE VALUE THAT YOU HAVE A RIGHT TO KEEP ARMS. THERE IS NO MORE FUNDAMENTAL WAY TO KEEP ARMS THAN IN THE HOME, AND ARMS ARE CONSIDERED -- NORMAL COMMON ARMS ARE RIFLES, PISTOLS AND SHOTGUNS. AND THAT'S A HISTORICAL TEST AND A TEST THAT IS, I THINK, PRETTY UNIVERSAL THROUGHOUT THE VARIOUS STATES BECAUSE MOST STATES ALSO HAVE RIGHT-TO-BEAR-ARMS GUARANTEES. IT'S NOT AN EMPIRICAL ISSUE. IT'S NOT AN ISSUE ABOUT WHETHER D. C. --

THE COURT: THE GOVERNMENT CAN PUT RESTRICTIONS ON THE RIGHT TO BEAR ARMS.

MR. HALBROOK: YOUR HONOR, WE ARE HERE WANTING TO REGISTER HANDGUNS. WE ARE NOT HERE WANTING UNRESTRICTED ACCESS. WE'RE NOT HERE ASKING TO CARRY THEM, OTHER THAN IN THE HOME.

THE COURT: YOU'RE SAYING THAT THE GOVERNMENT CAN IMPOSE REASONABLE RESTRICTIONS?

MR. HALBROOK: YES, YOUR HONOR. YES, YOUR HONOR.

Here Mr. Halbrook appears to support any so-called reasonable regulation. He wants to register handguns. He says nothing about the right to arms. He does not invoke strict scrutiny. He gives away most of the farm.

THE COURT: AND YOU'RE SAYING THE ASSESSMENT, FROM YOUR POSITION, AS TO WHETHER A RESTRICTION CAN BE IMPOSED HAS TO BE EVALUATED UNDER STRICT SCRUTINY?

MR. HALBROOK: YES, YOUR HONOR. WE DO MAINTAIN STRIKE [STRICT] SCRUTINY.

THE COURT: WHY SHOULD IT BE STRICT SCRUTINY?

MR. HALBROOK: IT IS AN EXPLICIT CONSTITUTIONAL RIGHT TO KEEP ARMS.

THE COURT: JUST BECAUSE THERE IS A CONSTITUTIONAL RIGHT DOESN'T MEAN THAT STRICT SCRUTINY APPLIES, DOES IT?

MR. HALBROOK: THOSE RIGHTS THAT ARE EXPLICIT IN THE CONSTITUTION -- I AM NOT AWARE OF CASE LAW NOT HOLDING THE STRICT SCRUTINY STANDARD TO APPLY. WHEN YOU GET INTO OTHER RIGHTS THAT AREN'T EXPLICIT, THERE ARE INTERMEDIATE LEVELS OF SCRUTINY. THERE ARE OTHER LEVELS OF SCRUTINY THAT MIGHT APPLY BECAUSE IT'S AN IMPLIED RIGHT PERHAPS. BUT WHEN THE FIRST AMENDMENT REFERS TO THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, I THINK STRICT SCRUTINY IS THE LEVEL THERE. IT'S THE SAME WHEN WE HAVE RIGHT OF THE PEOPLE -- THAT SAME PHRASEOLOGY USED IN THE SECOND AMENDMENT.

The judge himself had to bring up strict scrutiny. Mr. Halbrook could have come back with a few leading cases and the great quote from Justice Thomas. The concurring opinion of Justice Thomas in Troxel reminds us: strict scrutiny [applies] to infringements of fundamental rights. 530 U.S. at 80. Justice OConnor and Rehnquist were in basic agreement in the Troxel case too. It involved protection of the family. Justice OConnors recent book also has good material in this important area of strict scrutiny.

IN THE VERDUGO-URQUIDEZ CASE, WHICH THIS COURT MOST RECENTLY DISCUSSED IN AL ODAH CASE, THE SUPREME COURT SAID THAT THE TERM "THE PEOPLE" IN THE FIRST, SECOND AND FOURTH AMENDMENT MEANS THE SAME THING, AND GOING BACK TO JOHNSON VERSUS EISENTRAGER, ANOTHER CASE QUOTED IN AL ODAH, REFERRING TO THE RIGHT TO KEEP AND BEAR ARMS AS BEING BASICALLY AN INDIVIDUAL RIGHT -- THESE ARE SUPREME COURT CASES.

But those cases had nothing to do with strict scrutiny.

THE MILLER CASE THAT YOUR HONOR MENTIONED PREVIOUSLY ONLY HELD THAT IT WAS NOT WITHIN JUDICIAL NOTICE THAT A SAWED-OFF SHOTGUN WAS ORDINARY MILITARY ORDINANCE OR ITS USE COULD BE USED IN THE MILITIA. SO THAT WAS A MATTER FOR AN EVIDENTIARY HEARING. THE TERM "COLLECTIVE RIGHT" THAT YOU HAVE HEARD SO MUCH ABOUT DOES NOT APPEAR IN THE MILLER DECISION OR ANY OTHER SUPREME COURT DECISION. AND WHEN THE LEWIS CASE REFERRED TO THESE RESTRICTIONS THAT AFFECT FIREARM OWNERSHIP, IT WAS REFERRING TO RESTRICTIONS ON FELONS IN POSSESSION OF FIREARMS. AND THERE IS NO FUNDAMENTAL RIGHT THERE, OBVIOUSLY. WE DON'T DISPUTE THOSE KINDS OF LAWS. WE DON'T DISPUTE ANY OF THE LAWS IN THE DISTRICT THAT RELATE TO THE DISARMING OF FELONS OR OTHER VIOLENT CATEGORIES DRUG ADDICTS -- SOME OF THE CONSIDERATIONS THAT YOUR HONOR MENTIONED ALREADY, PERSONS WITH DRUG PROBLEMS OR MAYBE ALCOHOL PROBLEMS. THESE ARE PROVIDED FOR IN THE D. C. CODE, AS WELL AS, TO SOME EXTENT, IN FEDERAL LAW. IT IS ILLEGAL TO POSSESS FIREARMS IN THAT SITUATION.

BUT WE HAVE COME INTO THE COURT ALLEGING IN OUR COMPLAINT THAT THESE ARE LAW-ABIDING CITIZENS WHO QUALIFY TO POSSESS FIREARMS IN ALL RESPECTS UNDER THE LAW. AND WE THINK A FACIAL CHALLENGE IS PROPER TO BE MADE WHEN WE MAKE THOSE KINDS OF ALLEGATIONS. IF A FELON IS IN POSSESSION OF A FIREARM AND THE COURTS HAVE BEEN HOLDING AND THE JUSTICE DEPARTMENT HAS BEEN ARGUING AS WELL -- WE AGREE THAT FELON HAS NO STANDING TO RAISE THE SECOND AMENDMENT RIGHTS OF THE CLASS OF LAW-ABIDING PEOPLE WHO DO POSSESS THOSE RIGHTS. THERE IS NO SECOND AMENDMENT RIGHT OF A VIOLENT CRIMINAL TO KEEP AND BEAR ARMS. THERE IS NO STANDING TO RAISE THAT. AND THAT'S WHY WE THINK THE ATTORNEY GENERAL'S ARGUMENTS HERE ARE MISFOCUSED BECAUSE THEY ARE ARGUING FELONS DON'T HAVE STANDING TO RAISE SECOND AMENDMENT RIGHTS, AND IT IS CLEAR-CUT HERE THAT THESE INDIVIDUALS ARE TRUSTWORTHY AND DO MEET THE LEGAL STANDARDS.

THE COURT: OKAY. I UNDERSTAND YOUR POSITION. THANK YOU.

What does it mean when a judge says he understands your position. It means you have lost!

MR. HALBROOK: THANK YOU, YOUR HONOR.

THE COURT: ANYTHING ELSE? ANY BRIEF REPLY?

MR. MERON: JUST VERY BRIEFLY, YOUR HONOR. THANK YOU. THE PLAINTIFFS CONCEDED, YOUR HONOR, THAT THEY COULD RAISE A CONSTITUTIONAL CHALLENGE THROUGH THE JUDICIAL REVIEW PROCEDURE THAT THE DISTRICT MAKES AVAILABLE. THERE ARE TWO THINGS. NUMBER ONE, IT ESTABLISHES, I THINK, THAT CERTAINLY THE HARDSHIP OF DELAYING REVIEW HERE ISN'T PRESENT, AND, SECONDLY, WHAT IT ALSO RAISES IS THE FOLLOWING, WHICH IS THAT THE SUPREME COURT HAS SAID IN POULOS VERSUS NEW HAMPSHIRE, WHICH IS A 1953 CASE THAT WE CITED, 345 U. S. 395 -- WHAT IT SAID WAS THAT IF YOU HAVE A LICENSING SCHEME OR A LICENSING REQUIREMENT THAT A STATE SETS UP, AND A PERSON DOES NOT APPLY FOR A LICENSE AND SIMPLY FLOUTS THE SCHEME AND THEN ENGAGES IN CONDUCT WITHOUT THE LICENSE, THAT IN A PROSECUTION THAT IS THEN BROUGHT FOR VIOLATING -- FOR ACTING WITHOUT THE LICENSE -- THAT THE ALLEGED UNCONSTITUTIONALITY OF THE STATUTE MAY NOT BE RAISED. THAT THE PROPER THING TO DO WAS TO HAVE SOUGHT THE LICENSE, AND YOU SIMPLY FLOUT THE EXISTENCE OF THE LICENSE, AS LONG AS THE STATUTE IS CONSTITUTIONAL ON ITS FACE AND REALLY THEY'VE CONCEDED THAT IT IS HERE. AND SO WHAT THAT COUNSELS, YOUR HONOR, IS THE FOLLOWING: IF YOU CAN'T RAISE -- IF YOU CAN'T CHOOSE TO FLOUT THE LICENSING SCHEME AND RAISE UNCONSTITUTIONALITY AS A DEFENSE TO A CRIMINAL PROSECUTION IN A PARTICULAR CIRCUMSTANCE, IT SEEMS TO ME A FORTIORI YOU CAN'T RUN INTO COURT PRE-CRIMINAL PROSECUTION WITH A FACIAL CHALLENGE AND TRY TO BYPASS THE ENTIRE SCHEME ALTOGETHER.

The citation of this pre-Warren Court decision at the last minute, Poulos v. New Hampshire, 345 U.S. 395 (1953), was clever. However, Poulos is not still good law in light of Watchtower v. Village of Stratton, 536 U.S. 150 (2002)(prior restraint invalid); State v. Rosenthal, 55 Atl. 610 (Vt. 1903)(prior restraint on gun permit invalid). The Court in Watchtower held:

The ordinance's provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills.

Poulos also has no application here because the NRA-Halbrook plaintiffs did not defy the registration requirement. Does Mr. Halbrook respond?

THE COURT: IS THAT TRUE EVEN IF UNDER THE STATUTORY SCHEME, OR "AS APPLIED," NO ONE HAS EVER BEEN ABLE TO REGISTER OR GET A LICENSE FOR A WEAPON?

MR. HALBROOK: ACTUALLY, IN POULOS, THE ARGUMENT WAS MADE THAT THE STATE NEVER ISSUED LICENSES FOR RELIGIOUS CEREMONIES AT THOSE PARKS. AND THE COURT SAID IT DOESN'T WANT TO HEAR ABOUT FUTILITY. GO SEEK AN APPEAL. THAT'S THE WAY TO DO IT. AND THERE IS A SCHEME HERE. THERE IS A SYSTEM THAT PERMITS THEM TO RAISE A CONSTITUTIONAL CHALLENGE. AND THAT'S THE WAY THEY SHOULD DO IT. AND THEY SAY, "WELL, THERE ARE THESE HARDSHIPS OF SELF-DEFENSE."
I THINK YOUR HONOR IS AWARE THAT EVEN UNDER CURRENT DISTRICT LAW, THEY CAN KEEP LONG GUNS AT HOME. EVEN IF THAT WERE A PARTICULAR FACTOR, I THINK THEY OVERDRAMATIZE THAT.

IN TERMS OF THE IMMINENCE OF THE HARM, THEY CONCEDE -- AND THIS IS A JUST MATTER OF PUBLIC RECORD -- THAT THIS ATTORNEY GENERAL HAS TAKEN AN "INDIVIDUAL RIGHTS" APPROACH TO THE SECOND AMENDMENT THAT DIFFERS FROM THAT OF THE PRIOR JUSTICE DEPARTMENT.
WHEN YOUR HONOR ASKED WHETHER THAT LED TO A CHANGE IN PROSECUTORIAL DISCRETION, HE SAID HE DOESN'T KNOW. WELL, I THINK THAT ANSWERS THE QUESTION FOR THIS CASE.

THE COURT: HE WANTS TO DO DISCOVERY TO FIND OUT.

MR. HALBROOK [I recall that Mr. Meron made this statement]: RIGHT, BUT AS YOUR HONOR KNOWS, YOU DON'T GET DISCOVERY OF PROSECUTORIAL DISCRETION -- DECISION-MAKING. THAT IS A VERY, VERY HIGHLY UNUSUAL THING. YOU DON'T GET TO DO IT, EXCEPT IN THE MOST EXCEPTIONAL CIRCUMSTANCES. THIS IS NOT ONE SUCH CASE. UNCERTAINTY IS NOT ENOUGH. YOU CAN'T RUN INTO COURT, AND ESPECIALLY WHEN YOU HAVE AN ALTERNATIVE LICENSING SCHEME.

JUST BRIEFLY, ABBOTT LABORATORIES. FIRST OF ALL, ABBOTT LABORATORIES IS AN A.P.A. CHALLENGE TO ADMINISTRATIVE ACTION. I THINK YOUR HONOR IS AWARE OF IT. THAT IS VERY DIFFERENT FROM THE TYPE OF REVIEW YOU GET IN THE CRIMINAL CONTEXT. BUT, IN ADDITION, WHAT THE COURT VERY MUCH STRESSED IN THAT CASE WAS THAT THE PHARMACEUTICAL COMPANIES -- IF THEY HAD CHOSEN TO DISREGARD THE LABELING RESTRICTIONS AND TO SIMPLY RAISE THE UNLAWFULNESS OF THE REGULATIONS IN AN ENFORCEMENT CONTEXT, THAT EVEN IF THEY WERE TO PREVAIL IN THEIR ENFORCEMENT CHALLENGE, THEY WOULD SUFFER IN THE INTERIM IRREPARABLE HARM TO THEIR REPUTATION BECAUSE IT WAS SUCH A SENSITIVE INDUSTRY. AND BASED ON THAT VERY NARROW CIRCUMSTANCE -- AND AGAIN, IT WAS AN A.P.A. AND NOT A CRIMINAL CASE -- THE COURT PERMITTED REVIEW, BUT, OBVIOUSLY, THOSE CASES ARE VERY DISTINGUISHABLE FROM THIS ONE. THANK YOU, YOUR HONOR.

THE COURT: THANK YOU. ANYTHING ELSE FROM THE DISTRICT?

MR. REZNECK: NOTHING FURTHER, YOUR HONOR.

THE COURT: OKAY. MY LAW CLERK HAS ASKED ME TO ASK THE DISTRICT WHETHER THE DISTRICT HAS A MILITIA.

MR. REZNECK: I WOULD HAVE THOUGHT THE NATIONAL GUARD, BUT I HAVE NEVER LOOKED AT THAT. AND I YIELD TO GREATER WISDOM ON THAT SUBJECT. I NEVER HEARD OF THERE BEING BOTH A FORMAL AND AN INFORMAL MILITIA, FOR EXAMPLE.

THE COURT: OKAY. THANK YOU.

MR. HALBROOK: IF THE COURT PLEASE.

THE COURT: YES.

MR. HALBROOK: SOME YEARS AGO I PUBLISHED A LAW REVIEW ARTICLE ON THE SECOND AMENDMENT AND SECOND-CLASS CITIZENSHIP IN THE DISTRICT OF COLUMBIA. AND I REMEMBER RESEARCHING THAT ISSUE. AND AS I RECALL, THERE WAS BOTH AN ORGANIZED AND UNORGANIZED MILITIA IN THE DISTRICT. BUT I THINK MAYBE PERHAPS MYSELF AND MR. REZNECK WILL CHECK OUR CODE AND PERHAPS WE COULD WRITE A LETTER TO YOUR HONOR ANSWERING THE QUESTION SPECIFICALLY AND GIVING THE SECTION NUMBER.

THE COURT: VERY WELL. IF THERE IS SUCH AN ANIMAL -- AND I DON'T KNOW IF THERE IS -- ARE ANY OF YOUR CLIENTS MEMBERS OF IT?

MR. HALBROOK: WE DON'T ALLEGE THAT IN THE COMPLAINT. I WOULD HAVE TO MAKE THAT DISCOVERY.

THE COURT: OKAY. WELL, IF YOU WANT TO SUBMIT SOMETHING, YOU WILL NEED TO SUPPLEMENT YOUR PAPERS ON THIS POINT BY MONDAY BECAUSE I WOULD EXPECT WITHIN TWO WEEKS OR SO TO BE ABLE TO ISSUE AN OPINION ON THIS AND MOVE THIS MATTER ON ONE WAY OR THE OTHER.

This timetable is telling. The recent opinions ruling for the Second Amendment all took many months to write. A decision requiring exhaustion of administrative remedies can easily be drafted in two weeks, although it would be erroneous law. Mr. Halbrook however did not argue non-exhaustion strongly.

MR. HALBROOK: THANK YOU, YOUR HONOR.

THE COURT: WE WILL TRY AND GET YOU SOMETHING IN TWO TO THREE WEEKS, PROBABLY. OKAY. THANK YOU.

MR. MERON: THANK YOU, YOUR HONOR.

THE COURT: MONDAY IS A HOLIDAY. SO BY TUESDAY I WOULD NEED TO HAVE YOU SUBMIT SOMETHING. THANK YOU.

MR. REZNECK: THANK YOU, YOUR HONOR.

MR. MERON: THANK YOU, YOUR HONOR.

MR. HALBROOK: THANK YOU, YOUR HONOR.
(WHEREUPON, THE ABOVE-ENTITLED MATTER WAS ADJOURNED.)

CERTIFICATE OF REPORTER - THIS RECORD IS CERTIFIED BY THE UNDERSIGNED REPORTER TO BE THE OFFICIAL TRANSCRIPT OF THE PROCEEDINGS INDICATED.

PHYLLIS MERANA