November 30, 2007
• Big Win for 2nd Amendment
by Timothy Lynch
This article appeared in Human Events on March 12, 2007
There was a legal tremor in the nation’s capital last week. On Friday, a federal appeals court invoked the 2nd Amendment to the Constitution to rule that citizens who reside in the District of Columbia can keep a handgun in their home for self-protection. The reaction from the political establishment was apoplectic. The local politicos do not just disagree with the legal ruling, they think it is “outrageous.” D.C. Mayor Adrian Fenty has promised “to do everything in his power to get the decision overturned.” The battle over the meaning of the 2nd Amendment has just entered a new and crucial phase. A long-awaited showdown at the Supreme Court now seems imminent.
The Lawsuit
Why is this long-simmering dispute is coming to a head now? After all, the 2nd Amendment has been with us from the beginning of the Republic and gun control laws have been proliferating for generations. The main reason has been pretty straightforward: No one is quite sure how this Supreme Court would rule in a 2nd Amendment case. To be sure, as more conservative justices have joined the court, the prospects for a favorable ruling have improved since conservative jurists tend to emphasize the text of the Constitution and the original understanding of that text. Still, no one is really sure about the outcome of a pivotal case.
The situation changed when in May 2001 then-Attorney General John Ashcroft announced a change in policy at the Department of Justice with respect to the 2nd Amendment. Ashcroft said the Department was adopting the view that the Amendment protects an individual right to keep and bear arms. It was an important symbolic victory because it showed that the conventional view—that the Amendment was only about militias and the National Guard–was losing not only academic but institutional support. Then a thorny problem arose. Criminal defense lawyers started to invoke the 2nd Amendment against federal prosecutors whenever they represented a client who was facing federal firearms charges. The sudden eruption of 2nd Amendment legal challenges meant that appeals courts would soon be addressing the issue and precedents would soon be coming left and right.
D.C. lawyers Alan Gura and Robert Levy decided to go on the offensive and file a constitutional challenge to the District of Columbia’s gun control laws, which are so draconian that residents cannot even keep a gun in their own home. (Levy is also a legal scholar at the Cato Institute, where I work). Gura and Levy represent a handful of ordinary, responsible adults who would like to have a gun in their home for self-defense. One of the plaintiffs, a man named Dick Heller, works as a guard in a federal building. Under the bizarre laws of Washington, D.C., it is okay for Keller to have a gun during the day, but unlawful for him to have it with him in the evening in his home for self-defense.
The Appeals Court Ruling
Gura and Levy were prepared to lose in the lower courts just so that they could ultimately bring a strong appeal to the Supreme Court. It was a pleasant surprise to them that a federal appeals court agreed with their arguments last week.
The legal merits of the controversy concern the meaning of the 2nd Amendment, which provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The court noted that there are “two camps” in the debate over the meaning of the 2nd Amendment. “Collective rights theorists” maintain that the Amendment secures the power of state governments to preserve and arm militias. The other camp, “individual rights theorists,” maintains that the Amendment protects a right of individuals to possess arms for private use, such as self defense. The court readily admitted that the phrase “bear arms” could be read to have a military connotation, but only if it is viewed in isolation. Since “the people” and “keep” have individual and private meanings, the court concluded that “the 2nd Amendment protects an individual right to keep and bear arms.”
The court allowed that the government could still regulate the ownership and use of firearms since it noted such regulations in the common law even prior to the ratification of the American Constitution. So the court proceeded to consider whether the D.C. laws actually infringed upon the plaintiffs’ right to keep and bear arms. But the city attorneys essentially admitted that D.C.’s firearm registration system amounted to a prohibition on handgun ownership, the court had little difficulty in concluding that the laws were unconstitutional.
What Happens Now?
Within a few hours of the ruling, Fenty vowed to “vigorously enforce our handgun laws” as the city seeks to overturn this favorable 2nd Amendment precedent. Thus, as a practical matter, there is no immediate change in the law. Anyone found with a handgun in D.C. still risks arrest and imprisonment.
The Supreme Court will soon be asked to review this case. If the court declines review, the favorable precedent will stand and D.C. will have to make some changes so as to allow residents to keep handguns in their homes. But court watchers seem to agree that it is more than likely that the Supreme Court will hear this case. The federal appeals courts around the country have issued conflicting rulings with respect to the 2nd Amendment and that is usually when the high court takes a case — so as to bring uniformity to federal law.
Even if the court takes the case and issues a favorable 2nd Amendment ruling, expect small steps. This case only concerns handguns in the homes of D.C. residents. Nothing else. Many questions about the scope of the 2nd Amendment will be left for future litigation. Just as free speech and property rights controversies never cease, neither will controversies over the meaning of the 2nd Amendment. The key thing is to take a step back and observe the overall trend line. After a long period at the very bottom of the “constitutional chart,” the 2nd Amendment is finally moving in the right direction.
• Unholster 2nd Amendment
( This article appeared in the Los Angeles Times on November 14, 2007)
by Robert A. Levy
It’s been 68 years since the U.S. Supreme Court examined the right to keep and bear arms secured by the 2nd Amendment. It’s been 31 years since the District of Columbia enacted its feckless ban on all functional firearms in the capital. It’s been eight months since the second most important court in the country, the U.S. Court of Appeals for the District of Columbia Circuit, declared the D.C. ban — among the most restrictive in the nation — unconstitutional. The obvious incongruity of those three events could be resolved soon.
Later this month, the Supreme Court will decide whether to review the circuit court’s blockbuster opinion in Parker vs. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the 2nd Amendment protects the rights of individuals. If the high court takes the case, oral arguments likely will be held this spring, with a decision expected before June 30. (Full disclosure: I am co-counsel for the plaintiffs and am one of the attorneys who initiated the lawsuit.)
Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.
The stakes are immense. Very few legal questions stir the passions like gun control. And this round of the courtroom battle will be fought during the heat of the 2008 election. Further, Washington is home to the federal government, making it an appropriate venue to challenge all federal gun laws, no matter where an alleged 2nd Amendment violation might have occurred. Thus, Parker could have an immediate effect not only on D.C. gun regulations but on federal regulations.
Equally important, if the Supreme Court affirms the D.C. circuit’s holding, state gun control laws across the nation could be vulnerable to constitutional attack. But before that happens, two other issues would have to be litigated.
The first is the knotty question of whether the 2nd Amendment can be invoked against state governments. Until 1868, when the 14th Amendment was ratified, the Bill of Rights applied only to the federal government. But in the aftermath of the Civil War, much of the Bill of Rights was considered “incorporated” by the 14th Amendment to bind the states as well. Regrettably, the incorporation of the 2nd Amendment has not yet been settled. And that issue did not arise in Parker because the District of Columbia is a federal enclave, not a state.
The second question is even more complicated: What restrictions on gun possession and use would be permissible? Almost no one argues that 2nd Amendment rights are absolute. After all, under the 1st Amendment, the right to free speech does not protect disturbing the peace; religious freedom does not shield human sacrifice.
Similarly, gun regulations can be imposed on some weapons (e.g., missiles), some people (e.g., preteens) and some uses (e.g., murder). Indeed, the appeals court acknowledged that Washington might be able to justify such things as concealed-carry restrictions, registration requirements and proficiency testing.
But the Constitution does not permit an across-the-board ban on all handguns, in all homes, for all residents, as in the case of the Washington ban (with the exception of current and retired police officers). Somewhere in the middle, regulations will be deemed constitutional even if the Supreme Court upholds the lower court.
[I]t’s time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.
Meanwhile, the high court also will have to reexamine its 1939 gun case, United States vs. Miller, which generated more heat than light regarding the 2nd Amendment. The core holding of Miller, stripped of confusing clutter, was that protected weapons must be “in common use” and must bear “some reasonable relationship to the preservation or efficiency of a well-regulated militia.”
Parker is entirely compatible with that holding. Pistols, which are banned in D.C., are self-evidently “in common use,” and they have been carried into battle by American troops in every conflict since the Revolutionary War. But a proper reading of the 2nd Amendment should not attempt to link each and every weapon to the militia — except to note that the grand scheme of the amendment was to ensure that people trained in the use of firearms would be ready for militia service.
Significantly, the 2nd Amendment refers explicitly to “the right of the people,” not the rights of states or the militia. And the Bill of Rights is the section of our Constitution that deals exclusively with individual liberties.
That is why there has been an outpouring of legal scholarship — some from prominent liberals — that recognizes the 2nd Amendment as securing the right of each individual to keep and bear arms.
Considering the text, purpose, structure and history of our Constitution, and the clear weight of legal scholarship, it’s time for the Supreme Court to revitalize the 2nd Amendment, which has lain dormant for nearly seven decades.
Opinion and Commentary
Gun Prohibitionists Mostly Misfire
Thanks to the Second Amendment
Should Congress or the Courts Decide D.C. Gun Ban’s Fate?
Individual Ruling: D.C. Gun Ban Goes Down
November 29, 2007
• Paul Helmke, 2nd Amendment
The following anti-gun views are making their way around the blog-o-sphere. The below article was written by Paul Helmke, who served as President of the Brady Campaign/Center to Prevent Gun Violence since mid-July 2006. His entire argument revolves around the relevancy of the “well regulated malitia” portion of the 2nd amendment. His view is this portion of the Bill or Rights was ignored in the Parker v. D.C. ruling.
Strangely, by inference, Mr. Helmke does exactly what he accuses the pro-gun lobby of – parsing the 2nd amendment.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The statement is made up of two independent clauses: The militia clause “and” the keep and bear Arms clause. This is two independent statements that do not require the other in order to be valid. One is not the antecedent to the other. Apparently Mr. Helmke use Al Goreian logic to derive a premise and conclusion – avoiding the “inconvenient truth.”
We pro-gun advocates are not “uncomfortable” with the militia clause. But, I am not aware of a militia that exists in Washington D.C. Are we to trash the entire amendment because we no longer have militia’s? His conclusion is preposterous.
Mr. Helmke completely (and maliciously) ignores the entire genesis of the Bill or Rights and why they were included in the Constitution, by James Madison, in the first place.
I find it nothing short of amazing that these Huffingtonites are so quick to trample the second amendment, and yet jealously guard the “individuals” rights that were clearly intended for amendments one through ten.
Mark my word, if the second amendment is sliced up, that same knife will be used on the rest of our “individual” rights. Finally, I don’t need a constitution to give me the right of self preservation. This right is self evident.
Fastmetal
by Paul Helmke
The Second Amendment: 13 + 14 = 27
Posted November 28, 2007 | 05:20 PM (EST)
Contrary to gun lobby dogma, there are actually 27 words in the Second Amendment.
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The Amendment reads, in full:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
There is the “Militia purpose” clause, with 13 words. Then there is the “keep and bear Arms” clause, with 14 words. Two clauses and 27 words. This is an uncomfortable fact to those accustomed to reading only half of the Amendment, reciting the last 14 words over and over again as if the first 13 didn’t exist.
The Constitution says they do exist, and so we must read the whole Second Amendment. We must give effect to all of its words – not just the ones we like – to understand what the Amendment means.
In the case [pdf] now on appeal to the US Supreme Court, however, two judges on the DC Circuit Court of Appeals virtually “erased” the 13 words of the “Militia purpose” clause altogether, and made them practically meaningless. This is just one more reason why the Appeals Court decision was clearly erroneous and should be reversed.
You can read why in the second installment of the Brady Center Legal Action Project’s thorough critique of the lower-court opinion titled, Decision By Eraser: How the Parker Court Obliterated Half of the Second Amendment.
November 28, 2007
• What can you do?
The following is a letter that I have written to my local newspaper and congressmen regarding the up coming Supreme Court decision on the Second Amendment. If you, as an American, do nothing, then you will truly deserve what you get. “All that is necessary for the triumph of evil is that good men do nothing.” (Edmund Burke)
The U.S. Supreme Court is slated to rule on a Second Amendment case early next year. The District of Columbia, in Parker v. D.C., is seeking to force a show down on its 1976 absolute ban on handguns. Now it looks as though the Supreme Court will be brought into the anti-gun fracas as the District of Columbia seeks a supreme ruling, extending the gun ban in perpetuity.
What D.C.’s ban was theoretically intended to do was decrease the shameful number of murders involving handguns, each year. Well, that was the theory. Now, some 30 years after the ban, we know empirically that murder rates did not decrease, but actually increased ever year but one since 1976. In fact, murder rates trended down in the 5 years preceded the ban.
Did the genius social experiment of removing guns from the hands of law-bidding citizens work? Clearly not. What the law did do was to strip good citizens of the constitutional and natural right of self-preservation and defense.
Lawmakers in D.C. would clearly rather have you cower in a corner of your home, as criminals pillage your family and house. They want you to be made 100% dependent on the police to run to your aide if you are attacked. The harsh reality is that your 911 call to dial-a-prayer may be too little too late.
The Bill of Rights (1-10) was specifically drafted by James Madison to be individual rights and not collective rights. We know that Madison drew generously on similar documents such as the English Bill of Rights. It is utter nonsense for the Second Amendment to stand out as the lone exception to the founders “individual” Bill of Rights.
What should worry Americans is that an activist and philosophically divided Supreme Court is set to possibly re-interpret one of our most sacred rights – the “individual” right of the people to keep and bear arms. Make no mistake; this court has a dubious history of being anything but supreme in it’s elitist interpretation of the Constitution. Let’s not forget this same court in 1940 so perverted the free exercise clause of the 1st amendment that entire generations of Americans now take as gospel the myth that separation of church and state was actually written into our constitution. The phrase “separation of church and state” was never used in the constitution.
As in D.C., here in Washington, many shop owners have taken to hanging, “No Guns Allowed,” signs on their businesses. How incredibly naive for these owners to think their signs will ward off a criminal act with a gun. I find it personally insulting that a law-bidding citizen that has been through the concealed carry permitting course, has no criminal record and that has his or her finger prints and photograph on file with federal, state, and local law enforcement agencies, be shown the door.
• Ted Nugent interview
The following is a 3:08 interview with Ted Nugent, held by The Texas Monthly and conducted by Evan Smith.
On the Second Amendment, in the wake of the murders on the Virgina Tech campus, quote, “spineless gun control advocates” who are, quote, “squawking like chickens with their tiny-brained heads chopped off.” “It is their own forced gun-free zone policy,” he wrote in the Waco newspaper, “that enabled the unchallenged methodical murder of 32 people.”
Concealed 