2A Issue Before Supreme Cout Surpasses Interest in Abortion, Affirmative Action

A McClatchy News Service reporter indicates that the number of friend of the court briefs filed thus far regarding the District of Columbia v. Heller case has far exceeded "the attention paid to such hot-button issues as affirmative action and abortion."

To date, 65 groups have filed amicus briefs in the case, which will determine the meaning of the Second Amendment to the Constitution, and whether DC residents are permitted to finally -- legally -- possess a handgun.

Here is the story, which appeared in the Miami Herald.

Pro, Anti-Gun Advocates Agree On One Thing: DOJ Brief Got it Wrong

"The assertion that government has the constitutional authority to place a "reasonable restraint" on a right enumerated in the Bill of Rights when the Amendments were specifically written and adopted to restrain the powers of the federal government is beyond an absurdity. Where does the federal government, Mr. Clement, get the constitutional authority to change the meaning of an Amendment that restrains federal power? If the federal government has this power, then the Constitution and Bill of Rights are meaningless because government can simply modify or remove any restraints on its power."

The above words come from an essay written on the Price of Liberty website, and are a response to U.S. Solicitor General Paul Clement, who wrote the much disputed Department of Justice amicus curiae brief in the District of Columbia v. Heller case now before the Supreme Court.

Interestingly, Dennis Henigan, vice president at the Brady Campaign To Prevent Gun Violence (formerly Handgun Control Inc.), notes in an article he has written for Legal Times that the DOJ brief is the result of a collision course set in place during the tenure of former Attorney General John Ashcroft. Ashcroft, a capable and well respected attorney, turned his back on the bandwagon mentality inside the DC beltway, and courageously wrote a detailed opinion that the Second Amendment is, indeed, an individual right.

Later, DOJ filed a brief in the case of U.S. v. Emerson, and said the 2A does protect an individual right. Further, another opinion by the Department of Justice in 2004 quoted the meaning of the Framers and left anti-gun attorneys speechless in its depth, breadth and thorough endorsement that the 2A is an individual right, and demolished the "collective rights" myth. At the time, accomplished attorney Stephen Halbrook, an expert on the Second Amendment and firearms law (and a friend to an Ohio organization with which I am connected, Peoples Rights Organization), wrote about both Ashcroft's letter, and the Emerson brief on several occasions. Further, attorney David Kopel, writing of Emerson, noted that significant numbers of cases from federal district courts and federal courts of appeal which said that the Second Amendment does not guarantee an individual right were "superficial and conclusory." Bottom line: they provided almost no legal reasoning which would persuade a neutral reader.

Back to present day. Writes Henigan of the DOJ's amicus brief in Heller: ". . .Most troubling, the department’s brief asserts that the amendment guarantees “an armed citizenry as a deterrent to abusive behavior by the federal government itself.” The appearance of these words in a legal brief by the Department of Justice should be alarming to the Supreme Court and, indeed, to every American. If an “armed citizenry” is a constitutionally protected “deterrent” to abuse by federal officials, this would imply that the greatest protection should be given citizens who are arming themselves against the threat of such abuse."

Yes, a threat against the people by an out-of-control government, directed by politicians who exploit their power for their own ends, in continual violation of the Constitution. If you read any of the Framers personal writings from the late 1700s, that is EXACTLY what they had in mind.

Henigan further asks: "Does this mean that federal authorities are constitutionally barred from taking action against the stockpiling of illegal weapons by extremist groups, the organization and training of armed private militias, and other preparations for violent dissent by those who believe that the federal government is engaged in “abusive behavior”? Can it be that the Bush Justice Department regards preparation for armed insurrection as constitutionally protected?"

Illegal weapons? Once again, what is an "illegal weapon?" Stockpiling? I know judges (and not just in my home state of Ohio) who have a couple safes full of firearms. The grabbers would call that an arsenal. Sorry, arsenals are where the military keeps firearms and ammunition. And what is an extremist group? The anti self defense cabal would have you believe it is the NRA.

In this nation, one is presumed innocent until proven guilty. The government has nothing to fear from law abiding Americans, yet the gun control laws that Henigan, Helmke, Sarah Brady, Josh Sugarmann at Violence Policy Center and Ohio's own Toby Hoover (at the Ohio Coalition Against Gun Violence) support are aimed at regular folks, NOT criminals, nor terrorists. The fear of terrorists and criminals is used to prevent honest taxpayers from exercising their Second Amendment birthright.

Henigan's analysis of the 1932 Miller decision is off, as well. But, Legal Times picked up his article, and that helps give him and his organization credibility.

Simply put, the argument in Washington DC is about handguns. Yes, it is about a larger issue; personal freedom, the basic human right of self defense, personal responsibility, and government's inability to protect the populace while denying the tools to people to protect themselves. But it is about handguns. Nothing more.

To hear Henigan and company, you would think the Heller story is about machine guns. But then, redirecting the argument is something he, Helmke, Brady, Sugarmann, Hoover, et al do so very well. Oh, and BATFE might suggest, too, that the case is about machine guns.

But then, what they are really worried about is the agency's very existence, and preserving jobs. It's as if they are staring at the end of Prohibition all over again, and let their surrogates warn people about the evils of demon rum. Only this time, it is guns they continually demonize at the expense of taxpayer rights.

DC v. Heller Update

Two recent pieces have been written. One is an excerpt, published on the History News Network, of an amicus brief filed by a number of anti-gun scholars, including the occasionally factually challenged Saul Cornell of the Second Amendment Research Center, John Glenn Institute at The Ohio State University. To read the amicus brief in its entirety, click here.

The second is a view from a columnist in Maryland who suggests the Supreme Court should not just judge the meaning of the meaning of the 2A, but also determine whether Americans have a right to a zone of privacy in their home when it comes to firearms ownership.

Both make interesting reading.

History News Network-- "Can Washington DC legally stop residents from owning a handgun?"
Frederick News-Post -- "The Second Amendment, gun control and the right of privacy"

Supreme Court Decision Today Decided On Grammar; Could Be A Look Ahead At Heller

A hint at what is coming with District of Columbia v. Heller?

The Legal Times is reporting this afternoon that a case involving the Federal Bureau of Prisons came down to grammar in the interpretation of the statute at issue.

"For an amazing 14 pages in the majority by Justice Clarence Thomas and 21 pages of dissents by Justices Anthony Kennedy and Stephen Breyer, justices debated whether, grammatically or by other rules of statutory construction, the final phrase "or any other law enforcement officer" can include prison officers, or relates only to those involved in customs or excise disputes."

Read the full analysis here, and what it might mean for the looming landmark Second Amendment case.

In their dissent of the prisons case, Kennedy argues that the comma in the middle of the text at issue does not divorce the clause that follows from what went before (and therefore, the exemption only applies to customs officers.) As Legal Times notes, that's an issue in the Second Amendment case as well, where the debate is whether the right to "keep and bear arms" is pertains only to a preceding phrase that refers to a "well-regulated militia."

From the story: "So does that mean that based on his reasoning today, Kennedy (and Justices John Paul Stevens, David Souter and Breyer, who joined him) will support the view that the Second Amendment only protects a militia right rather than an individual right? Almost as if he anticipates that question, Kennedy cautions that the majority view is "not without grammatical support."

Breyer's separate dissent focuses on the word "any" in the statute, and he offers an amusing illustration for his point that "any" is not a universal word, but has context. Breyer writes, "When I call out to my wife, 'There isn’t any butter,' I do not mean, 'There isn’t any butter in town.' The context maks clear to her that I am talking about the contents of our refrigerator."

Adds the Legal Times in its own humorous observation: "In the real world, of course, many spouses would give a third meaning to Breyer's proclamation: "The butter is staring me in the face, but because I am a man, I can't find it."

Ouch!

Is The 2A A Second Class Right?

"The Solicitor General's brief also takes a bizarre turn. While the Solicitor General calls for "strict scrutiny" for gun laws in general, he calls on the Supreme Court to apply only "intermediate scrutiny" as it determines Heller vs. DC. The Solicitor General also argues that the Second Amendment is not a "fundamental" right. So what the Solicitor General seems to be saying is that, well, sure, the Second Amendment calls for individual rights, and those rights should be afforded "strict scrutiny" most of the time, but the administration does not believe that gun rights are "fundamental" rights, and so, therefore, Your Honor, you don't need to be too strict in your decision-making process in this case.

"In fact, we don't think you should really decide this case, but you should send it back down to the Circuit Court for more study, and while they are at it, tell them they only need to use "intermediate scrutiny."

Read the entire analysis from Enter Stage Right, here.