In footnote 5, Gura et al. make the point that US. v. Cruikshank - which is usually used to prove that the Second Amendment isn't incorporated via the Fourteenth against the states - shows that the Supreme Court has already ruled that the individual right to arms predated the Bill of Rights.
The general point is historically well made that its all too obvious that the Founder's militia certainly wasn't sponsored by the Crown's legitimate government of the State.
Footnote 11 points out that the "states rights" interpretation was proposed and rejected by the Continental Congress and the authoritative paper on that won an essay award from the American Bar Association in 1964. Of course the ABA claimed in their brief that the ABA has taken the "states rights" position for the last 40 years.
The Solicitor General overstates the implications of the case as to machine guns and Gura quotes a Michigan case in the federal court from January 2008 denying a Heller based defense on machine gun charges that points out that the Heller case is only about Handguns. Also, Gura mentions that this case doesn't address DC's own machine gun ban.
DC has previously argued in a case that there is a reason that one should be able to use a firearm at work in a way that they are banned in the home. Therefor the specious argument by DC that people can use firearms in their home for protection even though the statute bars that on its face is shown as false on DC's own previous arguments on the record.
After those amusing moments, the entire brief is just a tour de-force of a well written historical argument about why the Second Amendment was adopted and what it meant to the adopters and Americans from adoption to the 20th century.
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Posted by hoffmang | February 04, 2008 06:55 PM
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