20 November 2007

THE BIG ONE: Supremes To Review DC Gun Ban; Court May Clarify Meaning of 2A

Update (10:13 pm): ANALYSIS -- For years my colleagues and I have debated this issue and asked ourselves the following question: Did we really want the Supreme Court to consider the meaning of the Second Amendment. The answer was yes, but no. We had a qualifier. "No, not at this time." It was a response to, first, knowing that a court case can go either way -- there is no such thing as a slam dunk; and second, worrying about the composition of the Court. There has never been a day that I felt, given the facts, that a thinking court would disagree with the words the Framers put on parchment. I want to believe the high court will confirm what many Americans know the Framers intended, that their words meant something. That an individual right means just that . . . an individual right. "The Right Of The People . . . "

But the makeup of the Court was always questionable. Justices like Scalia and Thomas, and to a lesser degree, Chief Justice Roberts, all of whom I believe would vote that the 2A always should have been interpreted as an individual right, and not subject to the "the militia is today's National Guard" argument from the anti-self-defense crowd. To the contrary, we have Justice Ginsberg, who has stated more than once we need to look to other countries laws when we interpret our Constitution. That is insanity. And Justice Souter is worrisome. Many thought him to be a strict constructionist when he was appointed to the high court, but he continues to disappoint -- particularly with the Kelo decision affirming the right of government to exploit their eminent domain powers and take land for use by private developers, because the tax revenues from developer projects somehow enhanced government (coffers).

The timing on this case is crucial. I would have never wanted it to go to the Supreme Court three to four years ago. Not conservative enough. And I wouldn't want it to go to the same body in another three to four years, particularly if an anti-gun democrat is elected to the White House and Congress remains under the control of a rabidly anti-gun leadership. Even today, this is a risk.

But it is also truly a watershed moment. The Miller case in 1939 did not really address the individual right issue, though anti-gun groups try to make that claim and much of the media, which does not understand the complexities of the issue, wrongly parrot that statement. In fact, the Supreme Court has NEVER been asked to define the meaning of the words in the Second Amendment. Which makes this perhaps one of the most important cases EVER to come before the high court.

How important? Consider the following. On more than one occasion, when testifying before lawmakers on firearms rights laws, or having a discussion/debate with others, I have been asked the following: "Are you saying that all of these courts that have upheld gun control in some fashion were wrong?" My reply is generally the same. "Courts have gotten it wrong on many occasions. Ultimately it is corrected. Like the Dred Scott decision, for example. There is a case that the Supreme Court absolutely got wrong. And over time, it was made right."

Remember Dred Scott? He was a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri. He appealed to the Supreme Court in hopes of being granted his freedom. He was denied. The Court said the Constitution's words "all men are created equal" was never meant to apply to the enslaved African race. As I said, the Court got it wrong. And then it was made right.

Folks, that's where we are today. The Supreme Court has the opportunity to make things right regarding the meaning of the Second Amendment.

My good friend and occasional bird-hunting partner, attorney David Buda, put it quite succinctly when we talked on the subject recently. I am paraphrasing here, but he views the looming decision as no longer a theoretical discussion of whether Americans are citizens or subjects, but the definitive statement on the matter. I can remember a federal case some years ago where a Clinton administration attorney argued there is no individual right to keep and bear arms. And one of the judges jokingly stated that he and another judge probably had enough firearms between them to arm a small South American nation, then asked the attorney to repeat his assertion that these judges, elected to the bench, had no right to possess firearms. Many legal scholars have suggested, very simply, that the Second Amendment is a guarantee of the "right to revolution." So many people have written before me the following, but I repeat it nonetheless. The words of the Second Amendment in the Bill of Rights, are the one right that guarantee we have any rights at all.

Here is one thing I CAN guarantee. Advocates on both side of this heated issue are trying to guess how the Court will rule. I know how I believe the Court should rule, but then the arguments, nor supporting documents have yet been presented. I also know that in Central Ohio, the annual PRO Gun Show at Thanksgiving weekend (to benefit advocacy efforts by Peoples Rights Organization on behalf of firearms owners in Ohio) will be packed with people who know this looming opinion, to come next year, will affect the lives of themselves, their children, and their childrens' children. In fact, every gun show across the U.S. taking place this weekend will find Americans exercising their First Amendment right to assemble, to discuss and debate their Second Amendment right to keep and bear a firearm for whatever purpose they wish. Pretty cool, huh?

And that is the crux of this debate, as some would call it. But it is more than a debate. It is a problem. Many states have passed right to carry laws (another discussion entirely, for citizens now are required to jump through hoops and be licensed to exercise their right). Yet politicians in many places continue their fanatical drives to outlaw even the possession a firearm for any purpose. They say it is for the good of the community. Which is what the case in the District of Columbia is all about. Politicians may not want you and I to possess a firearm, but they have unchecked power to, with the sweep of a pen, turn otherwise law-abiding people into felons. These are people who merely want to be left alone, people who want the right to choose a particular tool to defend their very lives, if need be.

So why do anti-self defense politicians do this? Because they still stick to the out-of-touch notion that gun control laws somehow make our communities safer. Study after study after study have shown this not to be the case. Independent studies, mind you, by government entities and independent researchers. The Supreme Court's acceptance of this case will not be about studies. It had better not be. It will be about the meaning of language. Of words. Of limits on government to intrude on Constitutional liberties. The meaning of militia, and most importantly, the meaning of "the people."

The anti-gun cabal will try to make it about people living in fear in their neighborhoods. But many families in neighborhoods across this nation live in fear because they have no effective means to defend themselves. Because laws that violate their constitutional rights prevent families from possessing a firearm. They know the police may be a long time away and cannot protect them. This case is about their right NOT to live in fear. This case is about their right to choose to be able to defend themselves. And what tool to use.

Like the horrible attacks of 9-11, our generation is soon to witness history like none other. Only it will take place in the courtroom. This case has been a long time coming. Already, scholars are calling it a landmark case, even though the first words have not even been uttered before the justices.

Most of all, this case is about the basic human right of self defense. Its outcome will most likely impact our culture for years, if not generations.

UPDATE (3:19 pm): National broadcast news organizations, in their early coverage of the Supreme Court's decision to review the Heller case, are using (not unexpectedly), the language used by the anti-self-defense crowd, asking whether the right to keep and bear arms belongs to individuals or militias. Never mind that at the time the document was written, the militia referred to all able-bodied people (well, able-bodied men and boys, that is). Watch video from NBC/MSNBC regarding the court's review of Heller from Supreme Court reporter Pete Williams. ABC News had this story, and there are already several hundred comments posted to the network's website on this story. CBS News has this coverage with video.

URGENT URGENT URGENT: The U.S. Supreme Court today announced it will review the District of Columbia v. Heller decision (formerly Parker v. District of Columbia). At issue, can the District ban handgun ownership, and is it a violation of the Second Amendment to the U.S. Constitution -- the second most important amendment in the Bill of Rights. Here is the announcement as Reuters covered it today. The Associated Press says the announcement sets the stage for a "showdown" between pro-gun and anti-gun advocates.

In addition, a blog that covers the Supreme Court has an overview. Plus, you can read the high court's order for yourself. Court watchers expect that the case will be heard next spring, setting the stage for the most direct ruling on the meaning of the Second Amendment since the 1939 Miller case. For review, here is the report from National Public Radio back on March 9 of this year on the appeals court ruling overturning the D.C. handgun ban. And Andrew Cohen, columnist for the Washington Post, has this to say about today's decision by the Supremes.

Folks, this review is probably going to have impact for generations no matter which way it goes, and is sure be a high profile debating point leading into next year's presidential election.

Here is the petition filed by the District of Columbia, asking the Supreme Court to overturn the appeals court ruling (which said DC's gun ban is unconstitutional).

Finally, click here to read the text of a news release from the Second Amendment Foundation about the Supreme Court announcement


CDW said...

Here we go! I notice that some of the comments on the national boards claim the deck is stacked against them because Bush staked the Supreme Court deck. I don't think for an instant this is going to be a cakewalk. Thanks for the updates!

Anonymous said...


Randall Walker said...

I linked you to keepandbeararms.com last night Brent - this was a really nice wrap up of what is and what is coming. - RW

Randall Walker said...

I linked you to keepandbeararms.com last night Brent - this was a really nice wrap up of what is and what is coming. - RW

AngelDecoys said...

No doubt the court decision will be interesting. I forsee a number of possibilities.

1. They will rule that the 2nd is an individual right. Not much doubt there. A federal statute following the 44 state constitutions and thier '2nd' is consistent.

2. Either the Supremes will say that ruling only applies to non-states, or that it applies to every state. Toss up on either way they will go. However, if they say it only applies to non-states, then further suits will commence.

3. They could wrap it up into the 14th amendment (due process). Common during the 19th century. If that's the case, a bunch of laws get challenged. That's what I'm hoping for.

Ironically the current members of the supreme court that would favor an individual right, are also the same group that is less likely to push its incorporation into the 14th Amendment.

Truly will be interesting.

John L said...

Very well written and very timely. Thank you.