Supreme Court Gun Cases

by Dave Kopel, Stephen P. Halbrook, Alan Korwin

"The D.C. v. Heller Case -- Eyewitness Wrapup Report, March 25, 2008 "

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D.C. v. Heller Eyewitness Wrapup

 


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Good Things
Loose Notes (including Dellinger and Gura recaps)
News Distortions
Getting Seats
The Case That Almost Wasn’t
This Is The 96th Gun Case, Not The First
Links I’ve Found

 

by Alan Korwin, Co-author
Supreme Court Gun Cases

Like everyone, I’m on pins and needles to see the decision, all the speculation is fun but meaningless, but fun. Yes, the Court seemed favorable to an individual right and overturning the D.C. total gun ban, even the lamestream media picked that up. But then you have to think about the Kelo decision (eminent domain) and McCain-Feingold (free-speech ban before an election), and it’s got to worry you. There’s no crystal ball.

The biggest problem I see is difficulty the Court faces in recognizing Second Amendment rights to invalidate the D.C. law, and somehow limiting that decision so laws don’t fall nationwide -- the Solicitor General’s concern. OK, so D.C.’s total ban goes too far. How far can D.C. go when it rewrites its law and not offend the Second Amendment? How do you describe that?

Whatever direction the Court provides, D.C. will end up as a model for the rest of the nation, and the Pandora’s Box is open. If D.C.’s law falls, they’ll pass something new, knowing full well it won’t make it to the Supreme Court for another long long time.

It’s lunacy to think there are no legitimate gun laws, as some loonies suggest, and that they all must fall. Disarmed prisoners, sentence enhancements, threats, reckless endangerment, smuggling -- the hard-core criminal laws are not at risk, because those bans are not infringement. Those are reasonable, common-sense gun laws everyone wants (except the hard-core criminals).

But concealed carry, public possession, prohibited-places lists, travel, bureaucratic discretion, licenses, registration schemes -- these are indeed put in jeopardy by a robust finding for 2A. Maybe the Court will limit itself narrowly to a person at home in D.C. and go no further, which would be a good first step but awfully hollow. And it would of course address the questions posed, and follow SOP for the Court.

Remember, the Bradys wanted this answered:
“Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns  while allowing possession of rifles and shotguns.”

And Heller’s team proposed this as the question:
Whether the Second Amendment guarantees law-abiding, adult individuals a right to keep ordinary, functional firearms, including handguns, in their homes.”

But the Supremes, in a rare move, posed the issue themselves:
“Whether the following provisions -- D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 -- violate the Second Amendment rights of individuals who are not  affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes.”

 

 

Good Things
Good Things

 

1. The case unequivocally informs the record. All the solid research the pro-rights people are familiar with can no longer be conveniently denied or lied about by the antis, the Bradys, the lamestream media, the politicians, the U.N. and the rest -- it is certifiable public record. This is a good thing. The tremendous value of this cannot even be known yet, but it will be substantial in years to come. It has gotten the best scholarship in the open. I’m guessing the “news” media hates that.

2. We have some good new words and phrases injected into the debate, like “remote settlers” whose need for arms was personal, fundamental, oriented to family, food and self defense, and not militia related (thank you Justice Kennedy); “lineage” of both rights and limitations; “reading glasses delays” which Chief Justice Roberts used to humiliate D.C.’s lawyer (thank you Mr. Dellinger for your 3-second-trigger-lock hooey), and perhaps most important, “operative clause” which describes the part of 2A that says, “the right of the people to keep and bear Arms, shall not be infringed.”).

3. With luck, the case denies the antis what they want most -- a ban. They talk junk guns, assault guns, high capacity guns, registered guns, but what they really want is a total ban. If you have a right to have a real gun in your home, their hopes for a ban are dashed.

4. That would have international implications as well, because it would undermine the globalists, anti-Americans, rogue states, human-rights offenders, NGOs, tyrants and collectivists aligned with the U.N. who want a universal declaration of rights that doesn’t include your right to protect yourself or the means to do so.

5. The bogus collectivist inventions are exposed as the fraud they are. In recent decades, the hoplophobic antis have fished around for arguments to deny this right Americans have always enjoyed. They went from collectivist, to statist, to limited individual, to militia-ist, to hybrid -- all concoctions and now well dismembered.

 

 

Loose Notes (including Dellinger and Gura recaps)
Loose Notes (including Dellinger and Gura recaps)

 

Eight security people with curly cords in their ears stood stone-faced facing the audience as we entered and after we were seated. They moved aside before the Justices entered. The D.C. police chief (on the side arguing to disarm the public) was disarmed before being allowed to enter. Armed Supreme Court Police were everywhere (the federal government now has more than 70 armed police forces, including egg inspector police, print shop police (not the place where money is printed, those are different police) and environmental protection agency police).

I keep trying to dissect the transcript but I find I can’t add anything to all the commentary that’s been done, and all the public record that’s been accumulated. What was said that day is precisely known. What it means is speculative, and everyone’s got an opinion, why muddy the waters with my own. My initial impressions, good and bad, have been softened, adjusted, modified, better digested, added to and subtracted from, and have matured with time, the counsel of learned friends, reading, and time for reflection. All that matters now is waiting for the next set of official words, the decision.

It seemed to me like Gura did get the job done, which was to get the Justices to recognize that the D.C. law can’t stand in the face of an individual right embodied in the Second Amendment. That’s all that was on trial in the thinly sliced baloney of the Supreme Court’s method. Machine guns, a thinly veiled tangent and effort to subvert the main question, was neatly sidestepped by Gura, and likely prepared for in advance, although this raised some hackles and definitely has a downside -- even though it was not material to the solitary goal of overturning D.C.’s ban on other guns at home.

The things that stuck with me on the “ugh” list in Gura’s arguments, which got far less mouth in public commentary but left me cold when the words first passed my ears in that Courtroom:

1- Safe storage provisions would be reasonable even under strict scrutiny (but... “A gun that’s safe isn’t worth anything”  says Col. Jeff Cooper; and this would satisfy one of the anti’s goals -- guns are OK as long as they don’t work.)

2- There’s no problem with a required license depending on the terms (...but there’s no way a writer’s license would ever pass muster is there; and a license implies an immediate (and then expanding) tax, test, regulatory framework, registration, privacy denial, criminalization for failure to have papers, bureaucracy and (double ugh) expiration dates -- all totally unacceptable in the proper operation of a right. Open carry where I live requires absolutely none of that and it’s fine, because it harmonizes perfectly with laws outlawing criminals. I might lose that freedom?

3- Reasonable infringement (what a horrific term) is OK, as long as reasonable is defined well. Don’t even get me started. Laws addressing criminal activity and rights infringement are not the same thing -- the former is fine, the latter is unacceptable.

4- Crime statistics can be used to determine what’s reasonable and set policy, but stats are unreliable -- what was he hoping to accomplish with that? It stands -- but only if you believe rights are subject to cost-benefit analysis. I tend to reject that.

 

And on Dellinger’s side, I did like how he got caught in various varieties of BS:

1- He said the city would carve out an exception for self defense (except their law doesn’t, and Gura noted when they’ve had court opportunities they rejected that (boy that felt good, watching them get caught);

2- He can take his gun lock off his gun in three seconds (even with the gun and key in his hand that’s a stretch; Page Nine newsmedia watchblog #43 calls it "guns can be unlocked and re-loaded by an old lawyer in the dark in just three seconds");

3- And he denied he’d have to load the thing after he unlocked it (and also showed he didn’t understand how guns and locks work, in fact, I got the impression sitting there, watching his hands move, he had never actually handled a real gun and lock during all his mock trials and prep, what an oversight). And then he got nicely publicly humiliated for it by the Chief Justice, with the comment about finding your reading glasses first. Come to think of it, he couldn’t legally have had a gun and unlocked it in D.C., he would have needed a gun-owning friend (he has these?) outside the city to set that up for him.

4- He said a rifle is better for home self defense than a sidearm -- first time I ever heard that -- would any trainer reading this please write to me if you agree with that -- which member of his team gave him that delicious bit of advice;

5- Handguns may be more dangerous than machine guns (well, if you really really know what you’re doing and you’re facing an idiot, maybe, but we sure don’t train soldiers that way).

 

The young city lawyer sitting a seat away from me (another seat?) seemed to be keeping a ball score, (I glanced over and kept track) putting what looked like Justices’ initials under the headings “CR” and “IR” which I took to mean Collective Right and Individual Right. Under CR he only had two, JS and DS, the rest were under IR. He didn’t have a happy look.

Thomas didn’t have anything to say in open court, as is his style, but he had plenty to say. He leaned over to Breyer as Mr. Clement began his presentation, and they conversed for perhaps three minutes, and then again at least once. Both of them missed key elements of Clement while talking and listening to each other. Thomas did most of the talking. He was also inclined to hold his face in both hands  and rub it, as if refreshing himself, staying alert. Breyer held his slumped head in his hands as if he were in an awful class. Since there are no photos, and the artists work hard to make everyone look good, these images do not emerge from the High Court.

 

 

News Distortions
News Distortions

 

THEM: “People have been waiting in line all night for front row seats,” usually with pictures of people lined up on the white marble steps of the Court.

REALITY: People who had to line up overnight (“the rabble” as a lawyer friend called them) sat in the back, lucky to get in at all. Front row seats were packed with honchos. No one waited on the steps, this was forbidden. Before being led in, the wait-ers were assembled on the steps and then directed inside.

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US: Why is the Associated Press so consistently anti-rights in their gun reporting, and why do they flatly refuse to correct any of the egregious even self-evident errors they make on the subject constantly?

AP (Mark Sherman): I have no idea what you’re talking about and we make error corrections rapidly all the time. And no, I forgot to bring any business cards.

US: Well have you ever done any stories on the good that guns do?

AP: Uh, what do you mean exactly?

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THEM: The District of Columbia has a ban on handguns in the home.

REALITY: The District of Columbia has a ban on any operable gun, sidearm or long gun, at home. They also ban transporting any gun through the city, meaning you can’t get a gun to your home, which will remain even if the laws under examination here are overturned.

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THEM: The Washington Post saw fit to mention that the “commands” of the Second Amendment were “written more than 200 years ago.”

REALITY: A similar derogatory slap at free speech, speedy trials or any other guarantees of the Bill of Rights seems unthinkable, but for guns belongs on page one.

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THEM: The New York Times used every shibboleth about gun rights in the book -- it’s a subject the Court has not addressed since 1939 (this is the 64th gun case since then, many with direct 2A implications); how far the “newly recognized right” might go (you just want to smack these bigots); this is the first time in history an individual right will be “embraced” in 2A; and I haven’t gone past their introduction (on Page One, 3/19/08).

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THEM: USA Today says the Court may find (for the first time in history of course) that 2A “gives people an individual right to own guns.”

REALITY: The Second Amendment doesn’t give rights, as the informed portion of the public widely knows, it guarantees existing rights against government interference. USA Today also saw fit to bring up the argument, which it at least identified as from “recent decades” that 2A is somehow related not to “the people” named in the Amendment, but to the National Guard (which, uhh, began in the early 1900s).

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THEM -- A full half page called: "News To Use: Current Events for Classroom Learning and Homework (provided by Newspapers In Education, a divison of The Arizona Republic, owned by Gannett)

Set the stage with a demeaning opening line about your civil rights in the Second Amendment --

"The sentence is an English teacher's nightmare."

Continue with a lie:

"What that comma-filled, awkwardly worded sentence means has been debated almost since it was first approved by the nation's founders."

There was virtually no confusion or "debate" until a few decades ago, when anti-rights zealots began fabricating arguments to destroy this well understood right -- "Americans have the right and advantage of being armed," as James Madison put it. In America, we the people have always had the right to keep and bear arms, we have routinely bought arms as free citizens, and we treat them as a fundamental right in every walk of life, until these rights-attacks recently began and were propagated by a compliant press.

Continue by contradicting yourself:

"Everyone agrees that the Second Amendment ensures the right 'to keep and bear arms'"

(and leave out the part about "the right of the people")

Then question yourself by bringing up the popular anti-rights argument:

"Or does that right only apply to people who are connected with militias."

Switch gears to the 1939 Miller case:

"the last time the Supreme Court looked at the amendment nearly 70 years ago..."
All right, they don't know better, way too many people believe in that that myth

Then mis-state that case completely:

"In that case the High Court ruled only that the constitutional right to bear arms did not include the right to carry a sawed-off shotgun across state lines as part of an illegal liquor operation."

In Miller, the Court pointed out that there was no evidence in the record (nothing "within judicial notice" as they put it) as to whether a sawed-off shotgun is "ordinary military equipment," so they couldn't decide if it was legal to possess. And since the Supreme Court doesn't take evidence, they remanded to the lower court for a finding of facts regarding sawed-off shotguns. Because Miller had been murdered by his cohorts by that time, the point was moot, the findings were never made, and a final conclusion was never reached. But that's too complex to deal with, isn't it?

"The case involves a special police officer..."

I don't know what to make of this. It's the same difficulty the media had in characterizing Jeanne Assam, a private citizen with a carry permit who shot that would-be mass murderer in the mega-church in Colorado. In all the televised and printed reports they had this need to call her a security guard, as if a normal person couldn't take such action. It was doubly wrong, because Ms. Assam carried a modern semi-auto pistol, and in Colorado, security guards are only allowed to carry revolvers. Maybe it's related to what an AP bureau chief once told a reporter I know, about a man who defended himself with a firearm -- he wouldn't run the story because he didn't want to encourage copy-cat behavior.

Technically the title is accurate, but it's misleading, or belongs in quotes. An insider puts it this way, "Heller is a private security guard for a contractor which provides armed security throughout D.C., and to do that job, he is a "special police officer" of the District of Columbia." If you look at the statute, in order to be a private security guard who carries a firearm, you must comply with red tape, and then the city brands you as a "special police officer." Bob Blackmer, who is a police officer, looked at the requirements and scratched his head, because what a police officer is, and what Dick Heller is, well, they're not the same thing. OK, it's a small point.

Close with a warning that "gun-control efforts" could be put into jeopardy:

"If the High Court rules that individuals have the right 'to keep and bear arms,' cities and states will have to rethink efforts to restrict gun ownership, even if the goal is public safety."

Don't you just hate it when the threat of threats to public safety are the raison detre for justifying denial of rights? Isn't there any congizance that disarming criminals has no bearing on the issue? (No.) That disarming criminals is not an infringement, perfectly OK under any scenario, already on the books, and unrelated to innocent possession of firearms? (No.) Don't the writers, or editors, or teachers being fed this tripe realize that "restricting gun ownership" from decent, law-abiding Americans is unjust, immoral and dangerous? (No.) Don't they realize that "gun control" is a euphemism for rights denial, and civil rights bans? (No.) And that the real issue is gun rights and the right to self defense, and civil rights, and human rights, and a right that pre-exists the Constitution? (No.) Are they going to issue any sort of correction? (No.) Will the next story be any better? (No.) Are readers abandoning this balderdash being passed of as news, in droves? (Yes.)

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Getting Seats
Getting Seats

 

What it took to get into the Court for the D.C. v. Heller case, March 18, 2008:

Heller and his two attorneys were originally allotted six seats total, including for themselves, and had to disappoint people who believed they should be there. I wasn't able to find out how many D.C. secured but I suspect it was more (three at the Petitioner table, the mayor and police chief who sat right in front of me and had aides; Dellinger's wife was to my right, but not sure how her seat was obtained).

A special section reserved for the Supreme Court press corps filled as fast as the case was announced, no surprise there.

An allotment of 50 seats for members of the Supreme Court bar also filled nearly immediately, and may have been expanded for this special case. Personal friends of the Justices get preference, and other court and government officials with “pull” manage to secure an unknown number of seats. It was by far the hottest ticket in town -- history in the making -- the Roe v. Wade of the gun issue except Roe wasn’t as important.

A total of 50 seats are reserved for the public, on a first-come-first-served basis, though a reference book I have falsely says there are 170. Eugene Volokh in his blog responded to numerous requests on when to arrive and opined that a) no one really knows, which is correct, and b) get there early or abandon all hope.

In my case, the picture included:

-- spend six years researching and writing Supreme Court Gun Cases with two of the top Second Amendment attorneys in the country

-- get involved with the Goldwater Institute free-market think tank locally which brought me into contact with Bob Levy of the Cato Institute at a book signing in Phoenix

-- become friends with Bob who spearheaded this case, funnel him what case-related info I can, and meet others at Cato including an attorney who, as a fan of my book, got copies into the Supreme Court’s library

-- listen hard as friend and fellow Cartridge Family Band member Bob Blackmer convinces me we ought to go to D.C. to see this historic case

-- allocate a thousand dollars each for airfare, pocket money and a cheap but pricey Washington hotel

-- breathe a sigh of relief when the airfare locks in 60 days in advance at around $400, and a few weeks later has risen to more than $800

-- call every contact I could think of for weeks, for a strategy to obtain seats; Levy says don’t even try it will be a total zoo

-- find out about the seat allotments and historical cases of camping out overnight

-- get details from Court Police, PIO office, Court gift shop and others on what’s allowed on the waiting line (like a chair and blanket, though not even an overcoat may enter the Courtroom and must be checked or abandoned)

-- prepare to arrive two nights in advance to ensure the trip is successful

-- learn from one highly placed attorney friend that the Marshal of the Court has an allotment of seats for guests of the Marshal, and here’s the direct phone line

-- get a ton of insider info from that office, including a suggestion to write a short letter requesting a seat for Bob and myself, which took more than a day to compose to my satisfaction

-- get elated and depressed when the Marshal faxed a reply granting me one seat;

-- continue with preparations to support the overnight vigil effort now only for Bob, who has located and purchased military-grade thermals and a portable heater;

-- remain with him all day on line Monday (for moral support but it was totally fun and exciting and the place to be) until well past when the line was longer than the available seats;

-- make runs for caffeinated sodas and food and relieve him for pit stops;

-- wish him well and leave for the hotel room five Metro stops away as night was falling, to write and post a pre-game report, rejoining him bright and early the next day;

-- socialize briefly in line with everyone who knew me from the day before;

-- revel in the media/activist circus in front of the Court and do some interviews;

-- enter through the Maryland Avenue entrance to present my letter of passage from the Marshal’s office, while Bob was issued pass #7 outside;

-- bump into Bob on the ground floor and make some introductions, snap photos, and watch the honchos before Bob’s quick departure to get back on the line to get in;

-- make my way upstairs as instructed, have my name checked off the official list, quickly check everything I had in two lockers, and put my butt in a chair. Easy.

 

 

The Case That Almost Wasn’t
The Case That Almost Wasn’t

 

People don’t realize that the pro-rights and anti-rights lobbies were against bringing a Second Amendment case to the U.S. Supreme Court. There was just too much to lose to risk a win.

Pressure was brought to bear on D.C. mayor Fenty’s office to not appeal the ruling that voided the District’s draconian gun ban -- on Second Amendment, individual-rights grounds. The case had potential to permanently overturn the ban, and improve the status of other challenges to denials of firearms rights around the country.

But in the final analysis, D.C.’s gun ban was history anyway if they didn’t appeal, because the Circuit Court’s ruling would stand, D.C. would endure a hard slap to the face, and the government would relinquish the iron grip it had placed on people’s rights since 1976 -- a prospect government doesn’t generally take kindly to. And they had their bruised egos to think about too.

For their part, the National Rifle Association did everything it could to prevent the case from going all the way. Their team of lawyers argued with everyone that it was a bad idea. Even though the case looked good on some grounds the Court was not a reliable pro-gun-rights Bench, or even a strong constitutional Bench.

What about the Kelo decision? Wasn’t everyone stunned that private property rights fell to a city’s desire for tax revenue, and the Fourth Amendment was found to provide no protection for a person’s home?

What about McCain-Feingold campaign finance reform? Didn’t the Court leave everyone stunned to learn that the Constitution somehow didn’t allow you to mention the names of candidates in a broadcast within 60 days of an election, unless you were an authorized pseudo-agent of government? Can we tolerate that kind of risk with our Second Amendment rights?

The NRA went so far as to introduce a bill and drum up support in Congress for a legislated repeal of the D.C. gun ban, which would have made the Supreme Court challenge moot and derail it entirely. They came close too, with impassioned speeches on the floor and a groundswell of support.

In the end though, the effort to stop the Court challenge through congressional action ground to a halt, in a drama as complex and stinking as any sausage maker has ever produced.

The case moved forward thanks to the Herculean efforts of one man, confirming the oft-cited wisdom that politics and society in general move forward based on the dedicated efforts of a small number of individuals. That man was author, scholar and attorney Robert Levy.

A senior fellow at the Cato Institute, Levy financed the case out of his own pocket, hired attorney Alan Gura to lead the charge and served as co-counsel. Cato has been sometimes wrongly identified as the sponsor behind the case, but it’s just coincident that that fine organization is among Levy’s long list of attributes. The Institute generally agrees with what Levy is doing, but is not a direct party to the case.

Levy reasoned that the time could not be better for a long-overdue challenge to some gun ban somewhere, on Second Amendment grounds. With four strongly principled conservatives seated, and tolerance among the others for civil rights at some level, a very narrow explicit exploration of what the Second Amendment was originally intended to mean had the best chance it has had in, well, a really long time, maybe in forever. The scholarship on that meaning is about as clear as a thing can get, and the balderdash invented to denounce it grew louder daily.

While it’s true the Court has never definitively said the Second Amendment protects and individual right, it’s also true they have never said the First Amendment protects an individual right to own a pen. Because they never had to. It was just too basic, to presumed to merit voice. Of course you had a right to have a pen, or a gun, at least in this country. The question has always been, did you exercise that right in the right way.

Supreme Court Gun Cases, after six years of research with two of the top 2A attorneys in the country, conclusively showed that the Supreme Court has recognized an individual right to arms consistently for two hundred years. Can you use the shotgun you travel with for safety to defend your cow from thieves when you get back home (1895)? Of course. Can a kangaroo trial in Japan remove your right to arms (2005)? Of course not. Can the government disarm a felon? Yes.

The 95 prior gun cases all reach that type of conclusion -- without ever specifically saying you have the right in the first place. It’s that flat-out statement -- and the accumulating hoplophobic detritus to the contrary -- that the Heller case finally addresses at last. If the antis had not created such well publicized baloney since the 1960s, the so-called “question” might still not have been addressed. And gun ownership would continue as it has since before the country’s founding.

In that sense, this case cannot establish the right to keep and bear. That right is firmly established, with two centuries of backup. Think about it -- you don’t have to enlist in the National Guard to walk into a gun store, right? All the Court could do, really, is reverse all that extremely well-established precedent.

It wouldn’t even be necessary if the anti-rights activists and their sympathizers in the media hadn’t been so successful in fabricating, in recent decades, this idea that one right in the Bill of Rights doesn’t protect people, it protects government, or people as a collective something or other. I know, that sounds absurd, and it is.

But after banging away long enough and finding cool ways to demean and denigrate the cherished American right to keep and bear arms, it began to hold sway. It began to erode what was previously a deeply held, fundamental right represented by, for example, twelve pages of guns in the Sears Roebuck mail order catalog, and every hardware store in America.

The Parker case in the D.C. Circuit provided that opportunity, and through intricate machinations evolved into the Heller case that made it through the quagmire and onto the High Court’s schedule. Mayor Fenty’s government, in requesting a stay of the Circuit’s destruction of their cherished gun ban while they developed their appeal, was sternly warned that asking for such a stay, if they did not actually file an appeal, would be taken as a really bad faith abuse. Such a warning was almost unheard of, but any agency that could so blithely and totally deny a civil right for so long might just need such a wake-up call.

Despite school-taught principles that the Supreme Court is a court of laws not men, men who know know better. The Court is and has always been a function of who sits on the Bench. Despite any idealistic desire to believe anything else -- the people on a court determine its direction, and should be the most simple and basic assumption. Where this case will head is now a game of wait and see.

 

 

This Is The 96th Gun Case, Not The First
This Is The 96th Gun Case, Not The First

 

Please understand I do not accept the universally promoted characterization that the Heller case is the first 2A case in 70 years, or that it is the only case to directly address the central issue of individual rights. I am a minority of one perhaps, but those widely circulated sentiments don’t meet my tests for validity.

The Supreme Court has consistently recognized an individual right in the Second Amendment for 200 years. I did the research and published the book, with plenty of help and two co-authors.

In dicta and holdings, there is no body of cases that are inconsistent with the idea that 2A is a long extant right of people -- the same people found in 1A, 4A, 9A and 10A. Of the 92 in Supreme Court Guns Cases, 89 flatly support the American right to arms. The remaining three can be timorously clung to by those hoping to eradicate a human right.

The right has been regulated and tweaked, especially for felons, and perhaps unfairly at times, but it is always an adjustment to a recognized right whose boundaries are and may always be in judicial flux.

Two of the most recent cases illustrate -- and what a wonderful pair they are. In one (Bean, 2002), a man loses his RKBA, which he depended on for his livelihood as a gun-show vendor. He had crossed the Texas border into Mexico for dinner with friends after a gun show, and a forgotten box of shells in his vehicle got him a Mexican felony arrest. Through a loophole, the High Court upheld the ban on his rights as a convicted felon, and he needed to change careers, never to handle firearms again.

In a similar case with a different outcome (Small, 2005), a man loses his right to keep and bear arms due to what we would call a kangaroo-court decision in Japan, and the High Court decides this is insufficient to remove his private and individual right to keep and bear arms, with no mention or concern whatsoever for a nexus to militia or military service or any of the other anti-rights excreta.

The first case was not a 2A case technically -- according to those who believe they understand such things -- it was a question of jurisdiction. The federal agency for renewing an individual’s rights didn’t rule against him, they just refused to review his case. So the poor schlub with his rights denied had no standing to sue to regain his rights, and he was plumb out of luck.

The second case was a language question of whether “any court” was sufficient to remove your right to keep and bear, and the Supreme Court decided that, no, it was not sufficient when it came to a Japanese court. You should see the injustice this man was subjected to -- including 23 days of interrogation without a lawyer present.

Here were men who had this right “the Supreme Court has never ruled on,” then lost this right “the Supreme Court has never ruled on,” and sued to regain this right “the Supreme Court has never ruled on,” and one got it back and one did not.

It’s easy to see that these cases do not rule on the meaning of the Second Amendment, so the naysayers are correct, if you want to twist words and meanings. But these cases simply take the Second Amendment in stride, and presume it’s there and real.  Of course you have this right, but do you get to keep it under the given circumstances? Virtually all the cases match this model in effect.

The statement that Heller is the 1st case bearing on 2A in 70 years is false.

The idea that the High Court has been inconsistent on this issue is false.

And most of all, the idea that the High Court has been silent on the issue is false, and hopelessly ignorant.

The High Court uses the word “firearm,” in some form, 2,900 times in its decisions, and all the decisions are consistent with an individual right to arms. As much as the anti-rights forces would like gun rights to go away, guns are why America is still free, and will remain free while its citizens retain power.

Heller is the 96th gun case to reach the Supreme Court, not the 7th. Like the examples above, only some are directly 2A cases, the rest deal with guns from another vantage point -- taxes, regulations, statutory interpretation, states’ rights... co-author Dave Kopel found 35 cases that mention or quote the 2A. I count differently, and find 96 gun-related cases at the High Court (including his 35), and hence Supreme Court Gun Cases. Heller is the 64th since Miller.

 

 

Links I’ve Found
Links I’ve Found

 

FOX-TV 5 in Wash. D.C. did a lengthy piece that included me
http://www.myfoxdc.com/myfox/pages/News/Detail?contentId=6059104&version=1&locale=EN-US&layoutCode=VSTY&pageId=3.2.1

 

ABC-TV 15 in Phoenix sent out a camera crew for me... for an SD shooting
http://www.abc15.com/news/local/story.aspx?content_id=97af2ccb-25ed-49ac-bf15-de02c980e4ca

 

Dave Hardy’s blog has a photo and commentary
http://armsandthelaw.com/archives/2008/03/heller_photo_of.php

 

Jason McCrory, first in line, has posted batches of photos and commentary
http://www.ar15.com/forums/topic.html?b=1&f=5&t=688643&page=1

 

Bob and I performed (sort of) some Cartridge Family Band tunes (without music and missing one vocal part) and someone videoed it and put it on YouTube (remove the line breaks to use this link)
http://www.youtube.com/watch?v=B6qLd8prYCo&session=o0t7PhBYhGSsDqCGjGK_G6tr5MSi_s9kZKeHGnE4fPRhCay2cdSEp6vFNj91-
_LmC9LV67esJ-y9hUMT33Jw8IpVVYAs5-1B_BneM9XFTX13HV55cgIifhgPGBTelzvXsIOxk2NDd__epB6IaxsL7si5L_tTCWJGbsdq3fbWcq3
CecWF6gqHFdrteA84TTPyS7M0whuKwGd _5Ae4WAgLFksTMuM0RjD3yg_yGcYmBmcZlNkpF5cmI9hMtK8CztP3

 

Above The Law blog also posted our impromptu performance, with viewer comments
http://www.abovethelaw.com/2008/03/atl_field_trip_at_the_supreme.php

 

Hopelessly biased video propaganda -- guns are bad, D.C. trying to save the world.
http://www.twelvehorses.com/ct/K1HTKV/FY4LFNO3/*http_mm_url_mm_www.usnews.com/articles/news/national/2008/03/06/a-key-case-on-gun-control.html
Dick Heller, who legally carries a gun as a security guard, is prevented by Washington, D.C., law from taking that gun to his home in the district. "They give me a gun to protect them," he says of the government, "but I'm a second-class citizen when I finish work."

 

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