Unsatisfied with the course of oral argument held the previous week and with the contents
of its earlier pleadings, Defendants (“the District”) submitted a new, unauthorized brief on the
merits of this case on January 29. Styled as a response to Plaintiffs’ pre-argument citation of
relevant, newly-decided authority, the unauthorized brief is actually a continuation of the oral
arguments held January 22, as well as a wholesale substitute motions brief.
The District already had what should have been the last word in briefing the motions, and
was afforded ample opportunity to present its views during oral argument. Neither the Court’s
rules nor scheduling order allow the District to continue filing briefs, at random intervals, as new
thoughts occur to it. These new arguments, like the ones previously asserted, lack merit and
constrain Plaintiffs to submit a response.
However, in addition to resolving the substantive legal questions presented by this case,
this Court should also clarify that its rules and scheduling orders apply to the District of
Columbia. There has long been “a feeling both within the Corporation Counsel and among the
plaintiffs’ bar that the District and its attorneys will not be held to the same standard of conduct
demanded of other parties and attorneys in this jurisdiction.” Webb v. District of Columbia, 189
F.R.D. 180, 191 (D.D.C. 1999). One method by which the District excuses itself from the normal
operation of this Court’s rules and orders is by filing unauthorized sur-replies and other
substantive briefs containing new arguments, out of time and without prior authorization. This is
not an isolated occurrence.
This practice is disruptive to the Court and to opposing parties, who cannot effectively
schedule a case as nothing with the District is ever truly over. And because one never knows
when (or if) briefing is ever concluded with the District, choices as to what to include within
normally-understood “oppositions” and “replies” are altered as well. Because in counsel’s
experience, this is becoming a regular practice for the District, the Court should admonish the
District to refrain from filing new, unauthorized substantive briefs at random intervals. Cf. 28
U.S.C. § 1927. Litigants and counsel are entitled to rely on this Court’s rules and orders.
ARGUMENT
I. DEFENDANTS MISREPRESENT THE FACTS OF HELLER.
The District is well aware of the facts of District of Columbia v. Heller, 128 S. Ct. 2783
(2008), litigated by undersigned counsel.
The Supreme Court ordered the District to issue Heller a license to carry a gun in his
home because Heller requested such a license specifically. District law at the time made it a felony
to carry a gun in public without a license, as it still does today. Heller never applied for a permit
to carry his gun in public. However, the law also made it a separate misdemeanor offense to carry
a registered handgun inside one’s home without a separate, unavailable permit, and this
requirement was challenged as being effectively a handgun possession ban.
The District never issued Heller a home-carrying license. It repealed the law.
The argument that because Heller asked for a home-carry license, the Supreme Court’s
definition of “bear arms” is limited to the home, lacks merit.
II. DEFENDANTS MISREPRESENT THE FACTS OF McDONALD.
Plaintiffs’ counsel, who argued Heller before the Supreme Court, will also argue
McDonald v. City of Chicago, No. 08-1521, before the Supreme Court on March 2.
McDonald will not decide any question related to those raised in the instant case. The
Question Presented in McDonald is: “Whether the Second Amendment right to keep and bear
arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or
Immunities or Due Process Clauses.”
The District of Columbia is not a state. The Second Amendment applies here regardless of
how the Supreme Court interprets the Fourteenth Amendment. And no ordinance at issue in
McDonald relates to the public carrying of arms. Challenged in McDonald are Chicago’s handgun
ban, and several unusual features of Chicago’s scheme for firearm registration (but not the
concept of registration or the registration system itself).
III. THE ANCIENT LAWS OF ENGLAND OR OF OTHER STATES ARE IRRELEVANT.
Continuing the argument with Plaintiffs’ motion for summary judgment, Defendants
invoke new arguments about the ancient laws of England or various states. Defendants even cite
to Supreme Court amicus briefs to support their new claims.
Aside from the fact that this is inappropriate at this stage of the litigation, it is also
irrelevant. Heller exhaustively litigated the question of what the right to arms meant throughout
early English and American history, and how the Second Amendment relates to the evolution and
understanding of this right in history. Briefing on this topic was extraordinarily voluminous. It is
not for this Court, on an unauthorized supplemental brief, to reconsider the Supreme Court’s
work in Heller.
Nor do state law violations of constitutional rights diminish the existence of those rights.
What matters are precedents addressing such violations, and as recounted in Plaintiffs’
submissions, precedent repeatedly confirms that the right to bear arms cannot be completely
eradicated as done here by the District. This line of cases begins, with respect to the Second
Amendment, with State v. Nunn, 1 Ga. 243 (1846), striking down a handgun carrying ban, and
includes three additional cases for the same proposition endorsed by the Supreme Court in Heller.
Although there is no need to repeat Plaintiffs’ briefing on this point, some of the District’s
new claims on the topic warrant a response. The District, at 4, cites Williams v. Commonwealth,
261 S.W.2d 807, 808 (Ky. 1953) for the proposition that “[a]t common law or by very early
statute in England, people were prohibited from going armed that they might not terrorize the
King’s subjects.”
Somehow, the District omits the next sentence: “That was never the law in this country . .
.” Id.
Williams then explained that only prohibitions on concealed carry could be enacted as a
regulation on the manner of carrying, and indeed, Williams concluded that the prohibition did not
extend to carrying guns in a car’s locked glove compartment – an offense similar to that for which
Plaintiff Raymond was arrested and prosecuted.
Three years later, Kentucky’s Supreme Court held that people have a constitutional right
to openly carry handguns. Holland v. Commonwealth, 294 S.W.2d 83, 85 (Ky. 1956). Indeed,
until it was amended, Kentucky’s constitution barred restrictions on concealed carrying of
handguns as well. Bliss v. Commonwealth, 12 Ky. 90 (1822).
IV. THE DISTRICT MISREPRESENTS POST-HELLER PRECEDENT.
The District misrepresents State v. Knight, 218 P.3d 1177 (Kan. App. 2009) and United
States v. Masciandaro, 648 F. Supp. 2d 779 (E.D.Va. 2009) to support their contention that
there is no right to bear arms outside one’s home.
Knight’s Second Amendment claim did not fail because he was carrying a gun outside his
home, but because he was a convicted felon carrying a concealed handgun without a license, and
“the Heller Court considered concealed firearms prohibitions to be presumptively constitutional
under the Second Amendment.” Knight, 218 P.3d at 1190. Had Knight been carrying his handgun
openly, or if he had a commonly-available Kansas concealed handgun license, or had Knight not
been a convicted felon, under Kansas law he would have committed no crime at all while carrying
his firearm outside his home.
Similarly, Masciandaro’s “concealed-carry permit had expired, [and he] carried the firearm
at issue in this case ‘about his person’ and in a concealed manner” in violation of Virginia law.
Masciandaro, 648 F. Supp. 2d at 785 n.7. Although the Masciandaro court went further, relying
on the Supreme Court’s language regarding Mr. Heller’s home-carry license, it was apparently
unaware of the factual circumstance discussed supra regarding the District’s unusual law at the
time. Again, Heller never requested a license to carry the gun in public, he challenged only a law
requiring an in-home license. The Supreme Court’s license language tracked the law at issue,
nothing more.
V. THE DISTRICT CANNOT OFFER ANOTHER ALTERNATIVE DEFINITION OF
“BEAR ARMS” AS USED IN THE SECOND AMENDMENT.
The definition of “bear arms” as used in the Second Amendment is what it is, and it was
required by the District’s heavily litigated position that “bear arms” meant soldiering. The
Supreme Court could not decide the case without addressing the District’s argument, and it could
not address the District’s argument without defining the meaning of the word “bear.” That
definition is not dicta, it was required to support the Court’s decision because the District forced
the Court to define the term.
The Supreme Court’s language in Heller is unambiguous and controlling:
In Muscarello v. United States, 524 U.S. 125, 118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998),
in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute,
JUSTICE GINSBURG wrote that "[s]urely a most familiar meaning is, as the
Constitution's Second Amendment . . . indicate[s]: ‘wear, bear, or carry . . . upon the
person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for
offensive or defensive action in a case of conflict with another person.’” Id., at 143, 118 S.
Ct. 1911, 141 L. Ed. 2d 111 (dissenting opinion) (quoting Black's Law Dictionary 214
(6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural
meaning of "bear arms."
Heller, 128 S. Ct. at 2793
There is nothing logical about limiting this definition to the carrying of arms in the home,
especially as Mr. Muscarello was not carrying his firearm inside the house, and considering the
various right to bear arms cases relied upon by the Supreme Court which plainly described
carrying guns outside the home. The “sensitive places,” and time, place, and manner language
employed by the Supreme Court likewise indicates that the right extends beyond one’s home.
Should the District wish to return to the Supreme Court to reargue the meaning of “bear arms,” it
would meet with the same result. But that re-argument cannot occur here.
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