Heading Into Independence Holiday, Heller Dissenters Make One Ponder The Future

Independence Day in the United States.

A time for parades, cookouts, friends, family, spending time watching rain drizzle upon a beautiful lake, camping, bike rides, and more. And let's not forget the fireworks! Boy, will there be fireworks!

But so many forget the blood and sweat and lives sacrificed for a greater good that this date represents. For an ideal of freedom and security. This date is but one of 365 on our calendar. Yet it is symbolic of so much more . . . and so many take it for granted.

So it is as we head into the extended July 4th holiday this year that I ponder the landmark Heller decision by the U.S. Supreme Court, released just one week ago today.

More importantly, I ponder the feelings and irrational fears behind the words of the four justices who disagreed with Heller, and who have real problems with "the people" being rightly able to possess a firearm for whatever lawful purpose they choose. I ponder these justices' fear of "the people" rightly being able to use a firearm to defend themselves.

In Heller, there were two dissents. Justices Stevens and Breyer wrote dissenting opinions for the minority, with all of the dissenting Justices signing onto their respective opinions. I break no new ground here, but it is troublesome that the overall vote was so close. Five to four. But for only one vote, there could be serious trouble brewing across this nation. And depending on the November presidential elections, and future appointments to the U.S. Supreme Court, this case that finally affirmed what the Founders of this nation clearly intended could be reversed.

Like the high court's Dred Scott decision, the statement about slavery which was so very wrong until it was corrected, Heller is that correction to decades of Dred Scott-like federal decisions that have been devastating for the rights of this nation's moms and dads, and which went against the intent of the Founders. In most cities where there are draconian gun regulations, crime continues to skyrocket. All these regs do is penalize the law abiding, and embolden the most violent individuals in our society. And a handful of loud, pushy pols and judges just smile and suggest it is the price we pay in a free society in order to bring about the greater good.

But tell me what is greater, or good, when people are dying in their homes or on the street because they have been taught not to defend themselves?

In his dissent on Heller, which Justices Souter, Ginsburg and Breyer joined, Justice Stevens states (somehow) that while the 2A represents an individual right, it is really a collective right that applies only to militias. Huh? Unless I'm reading it wrong, that is how I interpret his words.

Stevens writes:

"Similarly, the words "the people" in the Second Amendment refer back to the object announced in the Amendment's preamble. They remind us that it is the collective action of the individuals having a duty to serve in the militia that the text directly protects . . . " ". . . As used in the Fourth Amendment, "the people" describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase "the people" when used in the Second Amendment."

Okay, for the last time . . . what is it about the two simple words "the people" that these four justices do not understand? I find the dissenters reference to "the collective actions of the individuals " to be a most curious phrase. And one that in my editor's days we called out-and-out "weasel wording."

But there's more that is patently objectionable, and I wonder how any thinking person can agree with these statements from supposedly learned jurists, considering they are supposedly looking at case law and history. Consider the following:

"Thus, for most of our history, the invalidity of Second Amendment-based objections to firearms regulations has been well settled and uncontroversial."

What? Well settled and uncontroversial? There has been no "invalidity" to the objections to gun control. That's a response you use when you have your head in the sand. There has been much controversy. But not until states and cities during the past 25-30 years started passing irrationally thought-out statutes and ordinances targeting law abiding firearms owners for merely possessing guns -- all in the name of fighting crime. Adding insult to injury, BATF started issuing opinions during the same period that were procedurally difficult to challenge, harrassed law abiding people -- and profiling minorities -- coming and going from gun shows.

So was it pretty much settled? Well, prior to this time no one challenged the private ownership of guns. Firearms for self defense were respected, were expected. It wasn't until the tidal wave of gun regs started happening in the 1960s that the "hey, wait a minute" argument from gun owners started to occur. But by then, elitist politicians (and their willing helpers in the judiciary) started suggesting that the argument is closed, is over, and any deviation or complain is invalid.

Not in the United States, it isn't!

So once again, as we consider the July 4th holiday, what it stands for, and the power that is returned to the people of America by the Heller majority opinion, you wonder what politicians fear. A letter writer to the Augusta (Ga.) Chronicle had the following to say:

"The Founders didn't trust government -- period! They didn't even trust themselves as a group because they knew -- and we know -- that a guy or group of people given a little power will always crave more. (That's another good reason to never vote for an incumbent, no matter how good he may be the first time in office.)"

Back to Stevens. His closing commentary is the most disturbing. I preface his statements with an observation on how the words are so reminiscent to me of something Al Gore once said. When he was running for president, Gore told reporters "there is no controlling legal authority that says this was in violation of law" regarding his using White House phones to call campaign donors. Seven times in a White House news conference on March 3, 1997, he invoked that phrase. He could not say he had broken no law. Because he had and everyone knew it. His weasel-word statement (as the Washington Post described it) said that apparently, that there are no cases testing the law. So therefore, by implication, it was okay.

So here is the Stevens conclusion that raises an eyebrow:

"The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court's opinion, I could not possibly conclude that the Framers made such a choice."

Um. Yes they did. It is the Al Gore statement all over again. And yes, the Framers DID make a choice to limit the tools whereby government could regulate the use of firearms by the populace. Because they feared government, and wanted the people to have the means to keep government in check. If you read the writings of the Founders of this nation, they were quite clear on the matter.

On to Justice Breyer, who suggests in his dissent that the Washington DC gun ban represents that "greater good" I referenced earlier.

He writes:

". . . A legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury and reducing crime. The law is tailored to the urban crime problem in that it is local in scope, and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specifically linked to urban gun deaths and injuries, and which are the overwhelming favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted."

Where to begin . . .

First, the ban forwarded no goal of importance, only a utopian ideal that was quickly disproven. Violent crime rose during the 30+ years the DC gun ban was in place. It did not save lives. How could it have? Law abiding people weren't able to keep a handgun for their self defense, either out on the street or in their own home!

And the last time I checked, I thought that competition rifles (so-called "assault weapons") were the choice of criminals! At least that's the message trotted out EVERY time the issue comes up before a local or state legislature.

Moreover, he suggests in his dissent that the government has a compelling public safety interest to consider. What about the public safety interests of the public that elects and pays the salary of the government? Isn't the government, "the people?" He notes that handguns are the most popular weapon used by violent criminals. I would remind the good Justices that handguns are the most popular tool used by moms to protect their kids from violent thugs, to protect young women from a violent or conniving rapist, to protect grandma from a thief who thinks her frailness will be his ticket for the night . . . Of course, in the end, the dissenting Justices finally acknowledge this point. That what makes it good for self defense is what makes it good for criminals. Yet law abiding people are in the majority and for more three decades were disarmed -- they were punished for the actions of a few.

The worst kind of peer pressure if you ask me. DC residents were not, are not, kids in elementary school. They have rights, and Heller restored those rights that were taken away.

And finally, Justice Breyer writes (and this one is more than disturbing, it is cavalier):

"Far more important are the unfortunate consequences that today's decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Interesting. In this, a classless society, Justice Breyer is relegating people who live in urban areas as second-class citizens. There is no other way to describe what he has done, and no way to defend it. If wants to blame anyone for the tsunami of cases coming toward the courts, it is not the majority of the Court, nor the NRA, Second Amendment Foundation, Gun Owners of America, nor any other plaintiff in cases like these.

No, he should be blaming the "screw the Constitution, just get rid of the guns" crowd who perpetuated these ordinances and statutes over the past three decades. What is coming to a court near you is an effort to undo decades of arrogance. Decades of coddling criminals while the law-abiding were effectively disarmed.

The District of Columbia v. Heller was . . . is . . . a case that will be talked about for decades. Like Brown v. Education. Like Dred Scott. It is more like the case that fixed Dred Scott.

And the affirmation that came last week, of the one amendment to the Constitution that protects all of the others, has been a wake-up call to people around the nation that they can get their rights back. If they are willing to fight.

You know what it took to get this done? The right timing. And rational argument instead of shrill, emotional rhetoric that got these bans, regulations and registration schemes passed in the first place. And as we head into Independence Day 2008, it is good to remember a case like Heller affirms what the Framers intended. But it can be undone with a single vote. A troubling thought, to be sure.

In conclusion, regarding the opinions by Justice Stevens and Justice Breyer, with respect, I dissent.