It's not about guns...

It's about citizenship

The Potowmack Institute

No. 07-290

Supreme Court of the United States

District of Columbia and Adrian M. Fenty,
Mayor of the District of Columbis,


Dick Anthony Heller,

On Writ of Certirorari to the
United States Court of Appeals
for the District of Columbia Circuit

NRA press release on filings in Heller in support of DC Government:

Briefs and other filings also available on the Gura&Possessky website:

Parker et al. v. DC Gov.
was appealed to the Supreme Court as DC Gov. v Heller. Certiorari was granted Nov. 20, 2007. Oral arguments were held March 18, 2008.

The Supreme Court released its opinion on June 26, 2008.
More discussion is on the HOMEPAGE

We should not have to wait until an issue gets to the Supreme Court to have enlightened, civicly responsible public discourse. The gun lobby first argued its anarchic doctrine in US v. Francis J. Warin in the US Court of Appeals, Sixth Circuit, in the 1970s. The armed populace fantasy lost. The gun lobby and its libertarian allies retreated into the law journals for twenty years to fabricate with an enormous volume of pseudoscholarship its preposterous doctrine. Now with a growing number of anarchic, politically appointed, highly ideologically motivated federal judges the doctrine has made its way through the federal appeals courts to the Supreme Court.

The first case was US v. Timothy Joe Emerson in the US Court of Appeals, Fifth Circuit, in 1999. Briefs filed in Emerson are at
Emerson was the opportunity to begin public discourse on the most vital and fundamental issues of political life, the relationship between citizen and state, the difference between the Constitution as a frame of government and the Constitution as a treaty among sovereign individuals, the difference between civil society and the State of Nature which is the state of anarchy. It did not happen.

Other cases have been:
Silveira v. Lockyer
Nordyke v. King
Both in the Ninth Circuit.

The current round began with Parker in the US Court of Appeals, DC Circuit, in 2003, filed by Cato Institute lawyers on behalf of residents of the District of Columbia to challenge DC's absurd, counter productive, unenforceable gun control law. The case was immediately followed by the National Rifle Association's case Seegars et al. v. DC Gov., Ashcroft. html.
The NRA sought to combine the cases so it could control them. The NRA does not want gun rights cases in court. It cannot control federal judges with demagoguery. Seegars and Parker proceeded separately and were decided in conflict with each other.

Nineteen briefs in support of the DC Government were filed Heller. The Potowmack Institute was not able to file to the Supreme Court in Heller because the obstacles of great expense and finding an experienced Supreme Court lawyer. The Bush DOJ petitioned the court to remand the case to the appeals court for further consideration. Remanding would have given the Potowmack Institute opportunity to file a brief with the benefit of having read all the other briefs filed. It probably would not have made any difference. The justices were hell bent on making a political ruling.

What is most striking about the briefs is that the enormous volume of argument, history, constitutional doctrine presented in the briefs in support of the DC Government is nowhere a part of the larger public consciousness. The gun rights crowd follows these cases with intense interest. There is nothing at all comparable on the gun control side. There are more than 250 individual and group co-signers to the DC support amici. The Potowmack Institute has tried to enlighten the rank and file of some of these co-signers to what James Madison was really describing in Federalist Paper No. 46 for as much as ten and fifteen years and found nothing but blank stares and overt hostility that there something more to this than promoting trigger locks. Now they have signed on, many years and many dead bodies later, to briefs that make the case. Despite the great volume of information and argument there are still very important arguments that have not been made.

The most important argument is this:

The reason why there is a claim to be privately armed for individual self-defense is because the gun lobby, led by the NRA, works very hard and very successfully to defeat any laws that would apply against the lawless because the same laws would apply against the "armed populace at large", a collection of sovereign individuals who made a treaty not a government, which the NRA argued without success to the Supreme Court in Perpich.,
against the NRA's "armed citizen guerrillas",, p. 40
and others with insurrectionist fantasies. Any judicial protection for a fundamental or procedural right to private gun ownership outside of a military or militia context validates an anarchic, insurrectionist doctrine.

The one point of policy which the armed populace at large fantasy cannot accommodate is accountability to a governing authority. Accountability means specifically registration of ownership. Registration is what the gun lobby, led by the NRA, works hardest to prevent. It has not, shall we say, registered on the gun rights militants yet that they did not get what they want in the Judge Silberman's Parker opinion. After many pages of fallacious pap about an individual right to be privately armed outside of any military or militia context Judge Silberman falls back on original design and intent as manifest in the militia concept:

Registration of ownership, militia call up, proficiency testing, public safety regulation, screening for militia suitability. Hey, these are the makings of a firearms policy. A coerced civic obligation (conscription) trumps all other rights, interests and considerations. The Supreme Court has not invalidated Silberman's conclusions. If the issue is addressing gun violence, the DC Government did not need to take this case to the Supreme Court. It needed only take Judge Silberman at his word, abandon its unenforceable gun law, come up with a new law that it might be able to make work, and then to make it work for real take the same policy conclusions to Congress for a national firearms policy.

The gun lobby would fight viciously an attempt to implement Judge Silberman's policy conclusions. Can't we make this election season interesting? Can't we ask presidential candidates particularly Republican candidates who pander to the gun vote: Do you accept and support Judge Silberman's conclusions and will your administration work towards a national firearms policy based on these conclusions?

The opinions of the courts, the briefs below and the present election season are an opportunity to change the political culture. Will it happen? The gun vote is not about guns. It is about controlling political outcomes in a much larger political struggle over the modern state and the political economy of capitalism. The gun vote will remain a pernicious and obstructionist factor in American politics until it is addressed on its proper terms and neutralized. Judge Silberman has given the opportunity. Will it happen?

Petitition of Petitioner District of Columbia, filed Jan. 4, 2008

Petitition of Respondent Dick Anthony Heller, filed Feb. 4, 2008

Brief of the Bush Adm. Department of Justice
See NRA press release above for NRA comments.

Amicus Curiae in support of the District of Columbia, filed Jan. 11, 2008

American Academy of Pediatrics

National Network to End Domestic Violence et al.

Former DOJ officials

District Attorneys

Civil Rights Coalition

Members of Congress

Chemerinsky and Winkler

Brady Center et al.

DC Appleseed Center et al.

National Association for the Advancement of Colored People Legal Defense and Education Fund

Criminal Justice Professors

American Public Health Association et al.

Violence Policy Center et al.

City of Chicago et al.

New York, Hawaii et al.

Members of Congress

American Bar Association

History Professors

Mayors of Major Cities


Amicus Curiae in support of Dick Anthony Heller, filed Feb. 8, 2008

National Rifle Association

Vice President Cheney, 55 Senators, 250 Members of Congress

Claremont Institute/Criminologists

Cato Institute/Joyce Lee Malcolm [The Right Inherited From England]

Second Amendment Foundation

Buckeye Firearms Foundation

American Legislative Exchange Counsel

American Association of Physicians and Surgeons

Pink Pistols

Jews for the Preservation of Firearms Ownership

Women State Legislators and Academics

Georgia Carry [Racist Roots of Gun Regulations]

Congress of Racial Equality

Disabled Veterans for Self-Defense, et al.

Alaska Outdoor Council

Libertarian National Committee

Paragon Foundation

Grass Roots South Carolina

Liberty Legal Institute

Rutherford Institute

Foundation for Free Expression

Virginia 1774

American Hunters and Shooters Association and a bunch of generals

Academics for the Second Amendment

American Center for Law and Justice

American Legislative Exchange Council

Center for Individual Freedom

Citizens Committee for the Right to Keep and Bear Arms


Former Justice Department officials

Foundation for Moral Law

Goldwater Institute

Gunownes of America

Heartland Institute

Institute for Justice

International Law Enforcement Educators and Trainers Association

International Scholars

Jeanette Moll

Jews for the Preservation of Firearms Ownership

Joseph B. Scarnati, III, President Pro Tempore of the Pennsylvania Senate

Liberty Legal Institute

Major General John D. Altenburg, et al.

Mountain States Legal Foundation

National Shooting Sports Foundation

Retired military officers

Southeastern Legal Foundation

State Firearms Associations

Texas and other states

Virginia 1774

[PotowmackForum], interactive posting
[NRA v. Reno (July, 2000)]
[US v. Emerson PAGE]
[Printz and Mack PAGE]
[US v. Lopez PAGE]
[Parker et al. v. DC Gov. PAGE]
[Seegars et al v. DC Gov., Att. Gen Ashcroft PAGE]
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