D.C. SECOND AMENDMENT FEDERAL COURT HEARING
Annotated
Transcript of NRA Case Proceedings
by Roy Lucas
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 |
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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.
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"WE ARE NOT HERE WANTING UNRESTRICTED ACCESS."
—National Rifle
Association Attorney Stephen Halbrook, fighting a "Second
Amendment" case |
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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 |
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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.
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"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 |
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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. Halbrook’s 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 O’Connor and Rehnquist were in basic agreement in the Troxel
case too. It involved protection of the family. Justice O’Connor’s 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
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