BELLEVUE, Wash., March 18 /PRNewswire-USNewswire/ -- Today's oral
arguments before the U.S. Supreme Court in the case of District of Columbia
v Heller produced a clear victory for the individual citizen's right to
keep and bear arms, the Second Amendment Foundation said.
"We are confident," said SAF founder Alan Gottlieb, "that the high
court will hand down an opinion that affirms the Second Amendment means
what it says. Based on the questions that the justices asked, it is clear
that they read the amicus briefs submitted by our side in support of
District resident Dick Anthony Heller. We were impressed with the depth of
questions asked by all of the justices, and we have no doubt that the court
has a clear understanding of Second Amendment history, and that 'the
people' are all citizens."
"We believe the District presented a very weak defense of its handgun
ban that is not supported by court precedent or historical fact," he
continued. "Attorney Alan Gura, and Solicitor General Paul Clement,
however, both provided a clear and proper perspective on the meaning of the
Second Amendment. Mr. Gura's remarks left the justices with a clear
understanding why the District's handgun ban is unconstitutional."
Gottlieb believes that Gura, one of three attorneys representing
District resident Dick Anthony Heller, who is challenging the 32-year-old
handgun ban, "won the oral argument."
"While we do not expect the Supreme Court to strike down every gun law
and regulation on the books," Gottlieb said, "we anticipate that the court
will rule once and for all that the right to keep and bear arms is a
fundamental individual civil right, and that gun bans, even on specific
types of commonly-owned firearms, do not stand up under even modest
scrutiny."
"An affirmative ruling, which we anticipate sometime in late June," he
concluded, "will provide a foundation upon which other Draconian firearms
laws can be challenged, and more importantly, it will destroy a fantasy
that has become a cornerstone argument for restrictive gun control laws.
This should put an end to the lie that the Second Amendment only protects
some mythical right of the states to organize a militia. That was not true
when the amendment was written, it is not true today, and it will not be
true tomorrow, regardless how hard extremist gun banners try to make it
so."
The Second Amendment Foundation (http://www.saf.org) is the nation's oldest
and largest tax-exempt education, research, publishing and legal action
group focusing on the Constitutional right and heritage to privately own
and possess firearms. Founded in 1974, The Foundation has grown to more
than 600,000 members and supporters and conducts many programs designed to
better inform the public about the consequences of gun control.
SOURCE Second Amendment Foundation
Friday, March 21, 2008
Counting to Five in D.C. v. Heller
In one of the threads about the D.C. gun ban case, at least one commenter was skeptical that there are (at least) five votes on the Supreme Court in favor of an individual-right interpretation of the Second Amendment. If you read the transcript of yesterday's oral arguments, you'll see that John Roberts, Antonin Scalia, Samuel Alito, and Anthony Kennedy are pretty clearly on board:
Roberts [addressing Walter Dellinger, D.C.'s attorney]: If [the right to keep and bear arms] is limited to State militias, why would they say "the right of the people"?...
That concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable....
So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers? [referring to the distinction between handguns and long guns]
Scalia: I don't see how there's any contradiction between reading the second clause [of the amendment] as a personal guarantee and reading the first one as assuring the existence of a militia....The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed....
[Blackstone] thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
Alito: If the amendment is intended at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns...they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?
Kennedy: The amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms....
In my view [the Second Amendment] supplemented [the Militia Clause] by saying there's a general right to bear arms quite without reference to the militia.
Clarence Thomas, as is his wont, did not say anything during the oral arguments. But if any justice could be counted on to support a Second Amendment that imposes significant restraints on gun control, it would be him. Thomas is an avowed "original intent" jurist, and the contemporaneous evidence on the meaning of the Second Amendment, as demonstrated in the respondent and amicus briefs (not to mention the appeals court decision overturning D.C.'s gun ban), strongly favors the view that it is about more than state militias.
Roberts [addressing Walter Dellinger, D.C.'s attorney]: If [the right to keep and bear arms] is limited to State militias, why would they say "the right of the people"?...
That concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable....
So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers? [referring to the distinction between handguns and long guns]
Scalia: I don't see how there's any contradiction between reading the second clause [of the amendment] as a personal guarantee and reading the first one as assuring the existence of a militia....The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed....
[Blackstone] thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
Alito: If the amendment is intended at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns...they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?
Kennedy: The amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms....
In my view [the Second Amendment] supplemented [the Militia Clause] by saying there's a general right to bear arms quite without reference to the militia.
Clarence Thomas, as is his wont, did not say anything during the oral arguments. But if any justice could be counted on to support a Second Amendment that imposes significant restraints on gun control, it would be him. Thomas is an avowed "original intent" jurist, and the contemporaneous evidence on the meaning of the Second Amendment, as demonstrated in the respondent and amicus briefs (not to mention the appeals court decision overturning D.C.'s gun ban), strongly favors the view that it is about more than state militias.
DC-v-Heller-eyewitness-report-analysis
It is a most dangerous game we’re playing here. The major “news” outlets seemed to agree with my assessment (and I went out on a limb with that, 12 hours before any of them), that the High Court seemed ready and willing to unequivocally affirm an individual right to keep and bear arms. [NOTE: see my pre-game and post-game eyewitness reports here: http://www.PageNine.org]
But it doesn’t end there — it barely starts there. If they affirm, does that mean Gun Laws of America (listing every federal gun law, with plain English descriptions), is erased? How much of it becomes null and void? What about The Arizona Gun Owner’s Guide, or Texas, or any of the others? Are they history?
“Gun laws will be over” is the hysterical cry of the antis — that a pro-rights finding will wipe out every gun law in the country and plunge us into bloody terror. And those are almost the fears of the pros too — any finding less than total uninfringed keep and bear will jeopardize 200+ years of firmly established cherished rights.
That’s why the NRA and the Brady bunch were beyond reluctant to touch this thing. There’s no telling where it could end up. And the prospects, as I see them, are pretty scary stuff. The more I read my ton of inbound email, the more concerned I’m getting.
Not a single Justice or court brief suggested all or even many gun laws must go away, that’s just irrational raving. But whatever standard comes out, the Bradys will be able to make some claims that, “See, this falls within reasonable regulation.” And the pro-rights people will have openings to challenge some of the more odious laws, and see if they can prevail. No one knows where any of that will lead. We’re back to square one, legislatures, local courts, and the ballot box.
New laws that ban rights may be tougher to enact or even introduce, and pro-rights arguments may have more fuel. Rights-supportive laws may have some obstacles removed, though Texas managed to pass ten of those good laws last session without the Heller case. So who wins in that scenario?
—–
I used to think that a mere 30 minutes for each side’s oral argument was hopelessly small — how could you possibly address a subject adequately in so little time? I no longer believe that. It’s more like the adage, “Work expands to fill available time,” and when time is short — like before a vacation, or at the Supreme Court — you get an enormous amount done in a day or an hour, that otherwise takes weeks.
The level of intensity in that courtroom defies description. The brain power those nine people brought to bear, on top of the months of prep from the litigants, was exhausting. Any more time than we spent would have been overwhelming. It’s a good thing it’s kept to an hour (and this case ran 38 minutes long, quite rare). You just fit everything in, then declare an ending.
It’s like twilight magic when the Justices walk in through those crimson curtains. There, in one room at one table are the names you know, the faces you recognize, right in front of you clear as day, the most powerful legal minds (politically speaking) in the country, on the planet. And let me tell you, they knew their stuff. I was able to follow most, but not all, the proceedings. Some wrinkles were absolutely new to me, some connections they drew I couldn’t follow (but have begun to unravel in studying my notes and the transcript), and some parts I may never adequately connect. Those of you studying the transcripts (many wrote to say you are) are ahead of me.
The closing gavel bangs. Everyone rises. The nine nattily attired natives exit without delay. They retire to chambers just behind those crisp curtains — and though their actual procedures are not divulged, the process is roughly understood.
Chief Justice Roberts asks the cadre, so where do we stand, and takes a straw vote to gauge things — exactly what we all want to know — and cannot. In this case, he needs to find out:
1. How many of you are with an individual right existing outside any sort of militia service? Probably gets five, some observers suggest maybe even seven, no one I know sees all nine, Stevens being the hardest holdout if it comes to that. Of course all of this is speculative, on our side of the man behind the curtain.
2. Does the D.C. gun ban fail on Second Amendment individual-rights grounds? Everyone (out here) seems to think it must. No way to guess how many in there will find space to toss the 100%-total-ban-on-operable-guns-at-home-in-the-District as an unreasonable limit.
3. Is this individual right to arms (assuming they find one) a fundamental right, making it subject to so-called “strict scrutiny”? Here’s where it gets fuzzy, and concurrences and dissents will tear this apart. Here’s where the NRA types and the Brady types get to sweat, and probably spin whatever decision emerges to suit their ends.
4. What about the off-point issues that came out in the orals and the briefs? What exactly is an “arm” for the purposes of the Second Amendment? (Doesn’t matter to decide solely the D.C. issue, unless you want to adopt the D.C. position that sidearms can “reasonably” be excluded.) Are handguns, rifles and shotguns equal?
How much further than keep-and-bear-only-at-home-for-only-the-District-of-Colombia does this case reach? (Not at all if the Justices stay on point, but they could stray if they wish.) These will not have simple tabulations adding up to nine. These will become dicta — non “holdings” of the case, that will fire discussions for a long time to come. My guess is that every Justice will weigh in on these and similarly fudgy points until the next case arises. And a next case will arise.
5. Who’s going to write this one? The Chief Justice decides, receptive to the wishes and predispositions of his cohorts. Scalia maybe, perhaps Thomas whose interest is already in the prior written record. Smart money says Roberts will write it, it’s just too seminal, too golden an opportunity for posterity. Whoever pens it, they’re all going to get in their say.
Maybe the bigger question is — who’s going to dissent, and what’ll that say. The losers (out here in the public) will latch on to every word. How will the concurrences add or detract to the main holdings? How much red meat will the red- and blue-leaners on the Court throw their fans? Know this — the Bradys will come out screaming, as will the rights advocates, that we got this, that, the other, and the rest is judicial activism that must be overturned.
6. The most eager (and knowledgeable) Court watchers will, when the decision is released, turn immediately to the last page and look for the word “remand” (meaning nothing is settled), or “affirmed” (and the fun really begins in earnest).
——–
Strict scrutiny is a non-constitutional invention that evolved in the early 20th century around free speech rights. At its core, it says because free speech is a such a fundamental human and constitutional right, any law that seeks to limit it must pass the harshest examination, and mere government interest, even compelling interest in limiting speech must be narrow, explicit, specific to the speech to be limited, easily understood and clearly applicable to any other case that must be tested under the limit.
(In a case called Central Hudson, the Court devised a four-part test for speech bans: 1 - whether the speech concerns lawful activity and is not misleading; 2 - whether the asserted governmental interest is substantial; if so, 3 - whether the regulation directly advances the asserted interest; and 4 - whether it is not more extensive than is necessary to serve the interest. If “reasonable regulation” is a linchpin here — a frightening thought — can we expect to see some similar test?)
The reason U.S. Solicitor General Clement (the man who argues the government’s position at the Court) was granted time, was to fight to preserve existing “reasonable” federal gun laws. How many? Who knows. Which ones? No one can say (but machine guns and undetectables were mentioned repeatedly). Will he succeed? Undoubtedly. Undoubtedly.
A felon in prison will not be able to argue even under the wildest fantasy that the right to arms extends into prison even though, say, the right to due process or a fair trial does. The ban on arming a vessel of a foreign power (18 USC 961) will remain standing, no worries mate. Many gun laws serve a legitimate purpose and will not be compromised, despite some rather lunatic ravings to the contrary.
But what about owning some type of firearm currently banned to the public? How about a normal capacity magazine the exact same as police might be issued? How about bans on where you can carry — the known-to-be-dangerous so-called “gun-free” zones? Can bans on tasteful, discreet carry in public by innocent women (or men) withstand strict scrutiny? Is a government license/tax/test/expiration-date/required-papers/fingerprint a “reasonable” limit on the exercise of a fundamental right? There’s almost no end to such speculation. For these we must wait until June and then, it doesn’t end, it begins.
My guess — it’s unlikely the Court will go to such points. This time. They don’t have to, and to reach the greatest consensus they can, they won’t. Locally however, these points will be inescapable in years to come. Elect good representatives this November.
Don’t worry, as some people are, about machine guns and how quickly Mr. Gura “wrote them off.” 1 - They’re not at issue in this case, so it’s immaterial in context. 2 - You don’t want or need to push a court too far, so just stay on point, concede a pointless point, it’s moot. Get Mr. Heller the rights he seeks restored. 3 - Mr. Gura’s remarks are not the deal maker, the Justices’ are. Some of them were just fishing for something to grouse about. It’s fine to tell them, “Sure,” and get back to the business at hand.
The machine gun issue is also particularly sticky because, as the Court pointed out, it is standard issue for soldiers and so very neatly meets a definition of arms the public should have as related to potential militia service and readiness. Way too big and convoluted to go into in Heller, and simply not needed, yet.
It seems to me that the machine-gun issue will be easy for the Court to sidestep because they’re not technically banned, they’re taxed. The main controls are under Title 26, the tax code, not under Title 18, the criminal code, and again, neither matter in examining the D.C. ordinance.
When Congress first enacted those limits in 1934 the record shows they realized they had no authority to ban guns because of the Bill of Rights — but they reasoned they might be able to get away with implementing an insurmountable tax (the $200-per-gun tax was a fortune at the time). Through that mechanism they attached controls, paperwork, financial burdens and tax-evasion penalties that were almost as good as a ban for their purposes then. The courts acquiesced (and that’s a whole ‘nother story). The 1986 ban on no new full autos might be more difficult to justify, but it is just not at issue here at all. Some experts told me Gura was right on the mark handling that as he did. I also bridled though when the words first passed my ears.
Justice Roberts did ask if we even have to go anywhere near these things to settle the issue at hand, and he’s right of course, and will be prudent (read, very narrow) in the scope of this decision. I think they’ll duck all the fodder we out here like to chew, leave those to digest later. They’ve got enough on their plate without it.
Will the presidential election affect those future outcomes? You bet it will, and that may be the biggest question mark of all. Note that the news media has not raised the point. I wonder why.
That will have to hold you for now. Need to get to the 580 emails I found on my return (don’t worry, a lot are “anatomy enhancement” ads and similar crud), and the stack of interviews I’ve agreed to give. I plan to review the “news” media’s coverage of this (some great subtle deceptions and bias I could only pick up by having been there, along with the usual blatant lying and distortions); Bob Blackmer’s revealing perspectives from his overnight vigil in front of the Court and his mug in full color on page one (B section) of The Washington Times with the protest sign I crafted; the skinny on how we actually got in and what that was like; and more. Now, an hour of streaming audio at http://www.accentradionetwork.com (you’ll need to get their archive of it if available by the time this gets to you), and my wife wants sushi. Sounds good to me.
But it doesn’t end there — it barely starts there. If they affirm, does that mean Gun Laws of America (listing every federal gun law, with plain English descriptions), is erased? How much of it becomes null and void? What about The Arizona Gun Owner’s Guide, or Texas, or any of the others? Are they history?
“Gun laws will be over” is the hysterical cry of the antis — that a pro-rights finding will wipe out every gun law in the country and plunge us into bloody terror. And those are almost the fears of the pros too — any finding less than total uninfringed keep and bear will jeopardize 200+ years of firmly established cherished rights.
That’s why the NRA and the Brady bunch were beyond reluctant to touch this thing. There’s no telling where it could end up. And the prospects, as I see them, are pretty scary stuff. The more I read my ton of inbound email, the more concerned I’m getting.
Not a single Justice or court brief suggested all or even many gun laws must go away, that’s just irrational raving. But whatever standard comes out, the Bradys will be able to make some claims that, “See, this falls within reasonable regulation.” And the pro-rights people will have openings to challenge some of the more odious laws, and see if they can prevail. No one knows where any of that will lead. We’re back to square one, legislatures, local courts, and the ballot box.
New laws that ban rights may be tougher to enact or even introduce, and pro-rights arguments may have more fuel. Rights-supportive laws may have some obstacles removed, though Texas managed to pass ten of those good laws last session without the Heller case. So who wins in that scenario?
—–
I used to think that a mere 30 minutes for each side’s oral argument was hopelessly small — how could you possibly address a subject adequately in so little time? I no longer believe that. It’s more like the adage, “Work expands to fill available time,” and when time is short — like before a vacation, or at the Supreme Court — you get an enormous amount done in a day or an hour, that otherwise takes weeks.
The level of intensity in that courtroom defies description. The brain power those nine people brought to bear, on top of the months of prep from the litigants, was exhausting. Any more time than we spent would have been overwhelming. It’s a good thing it’s kept to an hour (and this case ran 38 minutes long, quite rare). You just fit everything in, then declare an ending.
It’s like twilight magic when the Justices walk in through those crimson curtains. There, in one room at one table are the names you know, the faces you recognize, right in front of you clear as day, the most powerful legal minds (politically speaking) in the country, on the planet. And let me tell you, they knew their stuff. I was able to follow most, but not all, the proceedings. Some wrinkles were absolutely new to me, some connections they drew I couldn’t follow (but have begun to unravel in studying my notes and the transcript), and some parts I may never adequately connect. Those of you studying the transcripts (many wrote to say you are) are ahead of me.
The closing gavel bangs. Everyone rises. The nine nattily attired natives exit without delay. They retire to chambers just behind those crisp curtains — and though their actual procedures are not divulged, the process is roughly understood.
Chief Justice Roberts asks the cadre, so where do we stand, and takes a straw vote to gauge things — exactly what we all want to know — and cannot. In this case, he needs to find out:
1. How many of you are with an individual right existing outside any sort of militia service? Probably gets five, some observers suggest maybe even seven, no one I know sees all nine, Stevens being the hardest holdout if it comes to that. Of course all of this is speculative, on our side of the man behind the curtain.
2. Does the D.C. gun ban fail on Second Amendment individual-rights grounds? Everyone (out here) seems to think it must. No way to guess how many in there will find space to toss the 100%-total-ban-on-operable-guns-at-home-in-the-District as an unreasonable limit.
3. Is this individual right to arms (assuming they find one) a fundamental right, making it subject to so-called “strict scrutiny”? Here’s where it gets fuzzy, and concurrences and dissents will tear this apart. Here’s where the NRA types and the Brady types get to sweat, and probably spin whatever decision emerges to suit their ends.
4. What about the off-point issues that came out in the orals and the briefs? What exactly is an “arm” for the purposes of the Second Amendment? (Doesn’t matter to decide solely the D.C. issue, unless you want to adopt the D.C. position that sidearms can “reasonably” be excluded.) Are handguns, rifles and shotguns equal?
How much further than keep-and-bear-only-at-home-for-only-the-District-of-Colombia does this case reach? (Not at all if the Justices stay on point, but they could stray if they wish.) These will not have simple tabulations adding up to nine. These will become dicta — non “holdings” of the case, that will fire discussions for a long time to come. My guess is that every Justice will weigh in on these and similarly fudgy points until the next case arises. And a next case will arise.
5. Who’s going to write this one? The Chief Justice decides, receptive to the wishes and predispositions of his cohorts. Scalia maybe, perhaps Thomas whose interest is already in the prior written record. Smart money says Roberts will write it, it’s just too seminal, too golden an opportunity for posterity. Whoever pens it, they’re all going to get in their say.
Maybe the bigger question is — who’s going to dissent, and what’ll that say. The losers (out here in the public) will latch on to every word. How will the concurrences add or detract to the main holdings? How much red meat will the red- and blue-leaners on the Court throw their fans? Know this — the Bradys will come out screaming, as will the rights advocates, that we got this, that, the other, and the rest is judicial activism that must be overturned.
6. The most eager (and knowledgeable) Court watchers will, when the decision is released, turn immediately to the last page and look for the word “remand” (meaning nothing is settled), or “affirmed” (and the fun really begins in earnest).
——–
Strict scrutiny is a non-constitutional invention that evolved in the early 20th century around free speech rights. At its core, it says because free speech is a such a fundamental human and constitutional right, any law that seeks to limit it must pass the harshest examination, and mere government interest, even compelling interest in limiting speech must be narrow, explicit, specific to the speech to be limited, easily understood and clearly applicable to any other case that must be tested under the limit.
(In a case called Central Hudson, the Court devised a four-part test for speech bans: 1 - whether the speech concerns lawful activity and is not misleading; 2 - whether the asserted governmental interest is substantial; if so, 3 - whether the regulation directly advances the asserted interest; and 4 - whether it is not more extensive than is necessary to serve the interest. If “reasonable regulation” is a linchpin here — a frightening thought — can we expect to see some similar test?)
The reason U.S. Solicitor General Clement (the man who argues the government’s position at the Court) was granted time, was to fight to preserve existing “reasonable” federal gun laws. How many? Who knows. Which ones? No one can say (but machine guns and undetectables were mentioned repeatedly). Will he succeed? Undoubtedly. Undoubtedly.
A felon in prison will not be able to argue even under the wildest fantasy that the right to arms extends into prison even though, say, the right to due process or a fair trial does. The ban on arming a vessel of a foreign power (18 USC 961) will remain standing, no worries mate. Many gun laws serve a legitimate purpose and will not be compromised, despite some rather lunatic ravings to the contrary.
But what about owning some type of firearm currently banned to the public? How about a normal capacity magazine the exact same as police might be issued? How about bans on where you can carry — the known-to-be-dangerous so-called “gun-free” zones? Can bans on tasteful, discreet carry in public by innocent women (or men) withstand strict scrutiny? Is a government license/tax/test/expiration-date/required-papers/fingerprint a “reasonable” limit on the exercise of a fundamental right? There’s almost no end to such speculation. For these we must wait until June and then, it doesn’t end, it begins.
My guess — it’s unlikely the Court will go to such points. This time. They don’t have to, and to reach the greatest consensus they can, they won’t. Locally however, these points will be inescapable in years to come. Elect good representatives this November.
Don’t worry, as some people are, about machine guns and how quickly Mr. Gura “wrote them off.” 1 - They’re not at issue in this case, so it’s immaterial in context. 2 - You don’t want or need to push a court too far, so just stay on point, concede a pointless point, it’s moot. Get Mr. Heller the rights he seeks restored. 3 - Mr. Gura’s remarks are not the deal maker, the Justices’ are. Some of them were just fishing for something to grouse about. It’s fine to tell them, “Sure,” and get back to the business at hand.
The machine gun issue is also particularly sticky because, as the Court pointed out, it is standard issue for soldiers and so very neatly meets a definition of arms the public should have as related to potential militia service and readiness. Way too big and convoluted to go into in Heller, and simply not needed, yet.
It seems to me that the machine-gun issue will be easy for the Court to sidestep because they’re not technically banned, they’re taxed. The main controls are under Title 26, the tax code, not under Title 18, the criminal code, and again, neither matter in examining the D.C. ordinance.
When Congress first enacted those limits in 1934 the record shows they realized they had no authority to ban guns because of the Bill of Rights — but they reasoned they might be able to get away with implementing an insurmountable tax (the $200-per-gun tax was a fortune at the time). Through that mechanism they attached controls, paperwork, financial burdens and tax-evasion penalties that were almost as good as a ban for their purposes then. The courts acquiesced (and that’s a whole ‘nother story). The 1986 ban on no new full autos might be more difficult to justify, but it is just not at issue here at all. Some experts told me Gura was right on the mark handling that as he did. I also bridled though when the words first passed my ears.
Justice Roberts did ask if we even have to go anywhere near these things to settle the issue at hand, and he’s right of course, and will be prudent (read, very narrow) in the scope of this decision. I think they’ll duck all the fodder we out here like to chew, leave those to digest later. They’ve got enough on their plate without it.
Will the presidential election affect those future outcomes? You bet it will, and that may be the biggest question mark of all. Note that the news media has not raised the point. I wonder why.
That will have to hold you for now. Need to get to the 580 emails I found on my return (don’t worry, a lot are “anatomy enhancement” ads and similar crud), and the stack of interviews I’ve agreed to give. I plan to review the “news” media’s coverage of this (some great subtle deceptions and bias I could only pick up by having been there, along with the usual blatant lying and distortions); Bob Blackmer’s revealing perspectives from his overnight vigil in front of the Court and his mug in full color on page one (B section) of The Washington Times with the protest sign I crafted; the skinny on how we actually got in and what that was like; and more. Now, an hour of streaming audio at http://www.accentradionetwork.com (you’ll need to get their archive of it if available by the time this gets to you), and my wife wants sushi. Sounds good to me.
As the Supreme Court reviews a historic gun-rights case, lost is the Second Amendment's controversial history
Racial politics dominated the talk in Washington this week as Barack Obama called on Americans to stop ignoring the country's racist past and move forward. The message, apparently, didn't reach the U.S. Supreme Court, where the justices were busy ignoring race during a hearing on the biggest case of the year. On Tuesday, at the same time Obama gave his big speech, the court heard oral arguments in D.C. v. Heller, a case challenging the District of Columbia's 30-year-old law banning handgun ownership. The case marks the first time the Supreme Court has reviewed the Second Amendment in 70 years, and its interpretation could have far-reaching implications for state gun laws. Heller is mostly about gun ownership, but it is also about race—not that you would know that based on the oral arguments.
First, by way of background: The key issue in Heller is whether the Constitution guarantees an individual, as opposed to a collective, right to bear arms within the context of a well-organized militia. The plaintiff, Dick Anthony Heller, is an armed security guard who, with the help of some rich libertarians, brought the lawsuit against the District, arguing that the city's handgun ban illegally prevented him from keeping his work weapon at home. Last year, in a 2-to-1 decision, the U.S. Court of Appeals for the D.C. Circuit agreed and ruled that the city's gun-control law was an unconstitutional infringement on an individual's right to bear arms. Fearing a flood of new firearms into the city as a result, the District appealed to the Supreme Court.
Dozens of interest groups, from the Pink Pistols to Jews for the Preservation of Firearms Ownership, have filed amicus briefs, offering their take on the Second Amendment. But during oral arguments, Justice Anthony Kennedy and his conservative brethren seemed to fully embrace the gun lobby's favorite romantic myth that the founders, inspired by the image of the musket in the hands of a minuteman, wrote the Second Amendment to give Americans the right to take up arms to fight government tyranny. But what the founders really had in mind, according to some constitutional-law scholars, was the musket in the hands of a slave owner. That is, these scholars believe the founders enshrined the right to bear arms in the Constitution in part to enforce tyranny, not fight it.
Last week at an American Constitution Society briefing on the Heller case, NAACP Legal Defense Fund president John Payton explained the ugly history behind the gun lobby's favorite amendment. "That the Second Amendment was the last bulwark against the tyranny of the federal government is false," he said. Instead, the "well-regulated militias" cited in the Constitution almost certainly referred to state militias that were used to suppress slave insurrections. Payton explained that the founders added the Second Amendment in part to reassure southern states, such as Virginia, that the federal government wouldn’t use its new power to disarm state militias as a backdoor way of abolishing slavery.
This is pretty well-documented history, thanks to the work of Roger Williams School of Law professor Carl T. Bogus. In a 1998 law-review article based on a close analysis of James Madison’s original writings, Bogus explained the South’s obsession with militias during the ratification fights over the Constitution. “The militia remained the principal means of protecting the social order and preserving white control over an enormous black population,” Bogus writes. “Anything that might weaken this system presented the gravest of threats.” He goes on to document how anti-Federalists Patrick Henry and George Mason used the fear of slave rebellions as a way of drumming up opposition to the Constitution and how Madison eventually deployed the promise of the Second Amendment to placate Virginians and win their support for ratification.
None of this figured into Tuesday's arguments at the Supreme Court. Instead, a majority of the justices, especially Kennedy, seemed to buy the story that the founders were inordinately concerned with the ability of early settlers to use guns to fend off wild animals and Indians, not rebellious slaves. (Slate’s Dahlia Lithwick counts pivotal swing-voter Kennedy making no fewer than four mentions of a mythical "remote settler," who Kennedy suggested would have needed a gun to "defend himself and his family against hostile Indian tribes and outlaws, wolves and bears, and grizzlies.")
Just as the court largely ignored the racist past of the Second Amendment, its focus on whether the Constitution self-defense also glossed over the more obvious racial implications of the decision it was reviewing. The plaintiff, Heller, is a white man who lives in a 60 percent black city whose democratically elected leaders long ago decided that handguns were doing more harm than good to its citizenry. Indeed, while two of the original five plaintiffs in the Heller case are black women, not a whole lot of African Americans in the District appear to be out there clamoring to own more handguns for self-defense.
In an interview, Bogus says that polls consistently show that African Americans support gun control in much higher numbers than white people do, and probably for good reason: They're usually the ones looking at the wrong end of the barrel. As the NAACP points out in its brief on Heller, in D.C. in 2004, there were 137 gun-homicide victims. All but two of them were black. If the Supreme Court invalidates the city’s handgun ban, any ensuing uptick in gun violence is likely to have a disproportionate impact on African Americans, particularly young men.
Of course, it won’t only be young black men who suffer should the court decide that D.C. residents need more handguns. In fact, someone ought to remind Justice Kennedy about what happens when the wrong people get guns—namely the average, law-abiding D.C. residents who would supposedly benefit from the new gun ownership rights. With all his concern with grizzly bears, Kennedy has clearly forgotten about Carl Rowan Sr.
Back in 1988, the African American syndicated columnist shot an unarmed, 18-year-old white kid from Chevy Chase who'd gone for an unauthorized dip in Rowan's swimming pool. Rowan, who shot the kid in the wrist as he tried to flee, claimed he'd feared for his life and was only defending himself. Nonetheless, the columnist was prosecuted for illegally possessing a handgun. The trial ended with a hung jury and Rowan escaped punishment (though the teenagers were sentenced to community service), but the incident fueled a tremendous amount of racial tension in the city that might have been avoided if Rowan had just, say, called the cops.
Gun-wielding journalists who can’t shoot straight may not be the bulwark against tyranny libertarians had in mind. Yet they’re just one of the many scary scenarios the District faces should the court rely on language inspired by slavery and the libertarians’ whitewashed version of American history to restrict the ability of a majority black city to protect its citizens from gun violence.
Washington Dispatch
First, by way of background: The key issue in Heller is whether the Constitution guarantees an individual, as opposed to a collective, right to bear arms within the context of a well-organized militia. The plaintiff, Dick Anthony Heller, is an armed security guard who, with the help of some rich libertarians, brought the lawsuit against the District, arguing that the city's handgun ban illegally prevented him from keeping his work weapon at home. Last year, in a 2-to-1 decision, the U.S. Court of Appeals for the D.C. Circuit agreed and ruled that the city's gun-control law was an unconstitutional infringement on an individual's right to bear arms. Fearing a flood of new firearms into the city as a result, the District appealed to the Supreme Court.
Dozens of interest groups, from the Pink Pistols to Jews for the Preservation of Firearms Ownership, have filed amicus briefs, offering their take on the Second Amendment. But during oral arguments, Justice Anthony Kennedy and his conservative brethren seemed to fully embrace the gun lobby's favorite romantic myth that the founders, inspired by the image of the musket in the hands of a minuteman, wrote the Second Amendment to give Americans the right to take up arms to fight government tyranny. But what the founders really had in mind, according to some constitutional-law scholars, was the musket in the hands of a slave owner. That is, these scholars believe the founders enshrined the right to bear arms in the Constitution in part to enforce tyranny, not fight it.
Last week at an American Constitution Society briefing on the Heller case, NAACP Legal Defense Fund president John Payton explained the ugly history behind the gun lobby's favorite amendment. "That the Second Amendment was the last bulwark against the tyranny of the federal government is false," he said. Instead, the "well-regulated militias" cited in the Constitution almost certainly referred to state militias that were used to suppress slave insurrections. Payton explained that the founders added the Second Amendment in part to reassure southern states, such as Virginia, that the federal government wouldn’t use its new power to disarm state militias as a backdoor way of abolishing slavery.
This is pretty well-documented history, thanks to the work of Roger Williams School of Law professor Carl T. Bogus. In a 1998 law-review article based on a close analysis of James Madison’s original writings, Bogus explained the South’s obsession with militias during the ratification fights over the Constitution. “The militia remained the principal means of protecting the social order and preserving white control over an enormous black population,” Bogus writes. “Anything that might weaken this system presented the gravest of threats.” He goes on to document how anti-Federalists Patrick Henry and George Mason used the fear of slave rebellions as a way of drumming up opposition to the Constitution and how Madison eventually deployed the promise of the Second Amendment to placate Virginians and win their support for ratification.
None of this figured into Tuesday's arguments at the Supreme Court. Instead, a majority of the justices, especially Kennedy, seemed to buy the story that the founders were inordinately concerned with the ability of early settlers to use guns to fend off wild animals and Indians, not rebellious slaves. (Slate’s Dahlia Lithwick counts pivotal swing-voter Kennedy making no fewer than four mentions of a mythical "remote settler," who Kennedy suggested would have needed a gun to "defend himself and his family against hostile Indian tribes and outlaws, wolves and bears, and grizzlies.")
Just as the court largely ignored the racist past of the Second Amendment, its focus on whether the Constitution self-defense also glossed over the more obvious racial implications of the decision it was reviewing. The plaintiff, Heller, is a white man who lives in a 60 percent black city whose democratically elected leaders long ago decided that handguns were doing more harm than good to its citizenry. Indeed, while two of the original five plaintiffs in the Heller case are black women, not a whole lot of African Americans in the District appear to be out there clamoring to own more handguns for self-defense.
In an interview, Bogus says that polls consistently show that African Americans support gun control in much higher numbers than white people do, and probably for good reason: They're usually the ones looking at the wrong end of the barrel. As the NAACP points out in its brief on Heller, in D.C. in 2004, there were 137 gun-homicide victims. All but two of them were black. If the Supreme Court invalidates the city’s handgun ban, any ensuing uptick in gun violence is likely to have a disproportionate impact on African Americans, particularly young men.
Of course, it won’t only be young black men who suffer should the court decide that D.C. residents need more handguns. In fact, someone ought to remind Justice Kennedy about what happens when the wrong people get guns—namely the average, law-abiding D.C. residents who would supposedly benefit from the new gun ownership rights. With all his concern with grizzly bears, Kennedy has clearly forgotten about Carl Rowan Sr.
Back in 1988, the African American syndicated columnist shot an unarmed, 18-year-old white kid from Chevy Chase who'd gone for an unauthorized dip in Rowan's swimming pool. Rowan, who shot the kid in the wrist as he tried to flee, claimed he'd feared for his life and was only defending himself. Nonetheless, the columnist was prosecuted for illegally possessing a handgun. The trial ended with a hung jury and Rowan escaped punishment (though the teenagers were sentenced to community service), but the incident fueled a tremendous amount of racial tension in the city that might have been avoided if Rowan had just, say, called the cops.
Gun-wielding journalists who can’t shoot straight may not be the bulwark against tyranny libertarians had in mind. Yet they’re just one of the many scary scenarios the District faces should the court rely on language inspired by slavery and the libertarians’ whitewashed version of American history to restrict the ability of a majority black city to protect its citizens from gun violence.
Washington Dispatch
Tuesday, March 4, 2008
Bruce Colodny a Lawyer will be on the show
Firearms Lawyer Bruce Colodny earned his B.A. from the University of California at Irvine in 1977 and his J.D. from Southwestern University School of Law in 1982. From his offices in Orange and San Bernardino, he has successfully defended gun owners throughout California against both State and Federal criminal charges involving machine guns, silencers, destructive devices, “assault weapons”, use of firearms for self-defense, etc. He has represented numerous firearms dealers, importers and manufacturers in licensing matters with the California Department of Justice Firearms Bureau and the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives. He also has a long record of courtroom victories in a wide variety of knives, martial arts weapons, fireworks and explosives prosecutions.
Subscribe to:
Posts (Atom)
