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Supreme Court Hears “The Threshold Question” (Gun Control)
The Outdoor Wire ^ | 3/19/08 | Jim Shepherd

Posted on 03/18/2008 11:26:28 PM PDT by girlangler

Supreme Court Hears “The Threshold Question”

EDITOR's NOTE: Outdoor & Shooting Wire editor Jim Shepherd is in Washington for the Supreme Court's hearings on the Constitutionality of the District of Columbia's long-standing firearms ban.

Due to the significance of this story, Jim's feature appears in both the Outdoor and Shooting Wires.

Additionally, you can hear the actual Supreme Court arguments on the case, a variety of constitutional experts and Jim discussing the case with Michael Bane on Down Range TV (http://www.downrange.tv/rkba/dc-v-heller.htm). There is extremely heavy traffic on the site, but you can hear one of the most important Supreme Court cases in decades for yourself.

Yesterday, the highest court in the nation heard the final arguments regarding what will undoubtedly be one of the most significant cases heard in our lifetimes - or theirs.

The nine justices have the opportunity to rule on the meaning of the Second Amendment of the Constitution of the United States of America. It is a fundamental principal of our nation, yet it lacks prior legal precedents that test its core meaning.

It is not hyperbole to say the outcome of this case will become the precedent upon which all other future decisions on the Second Amendment will be based. Neither is it overstating the matter to say this case may become the case upon which this Supreme Court is judged, and remembered for the remainder of the history of our nation.

The twenty-seven oddly arranged words using an outdated punctuation style that make up the Second Amendment have caused no amount of discussion, debate and legal wrangling over the past forty-plus years, but nothing compares to the magnitude of what occurred yesterday in the Supreme Court

Case Number 07-290, The District of Columbia, Et Al, V. Dick Anthony Heller is a case carefully structured with the specific intent of compelling the nine Justices to consider a “threshold question”: does the Second Amendment pertain to an individual right to gun ownership or does it simply pertain to military service?

There is much at stake in this case. Individual ownership of firearms is a bedrock foundation of this nation, despite any contortions designed to make it appear otherwise. As Justice Kennedy observed yesterday, it held to be a “preexisting right” – one that predates others. Several states, including Montana, based their contracts of statehood on the assurance that the federal government would never impinge on the right to keep and bear arms wasn’t lost on the jurists.

The longstanding nature to this “right” is the major thorn in the side of firearms opponents. And despite the sentiments of the activist judges across the country, the Supreme Court will probably not disagree with that interpretation.

Should that be the case, proponents of the individual rights interpretation of the Second Amendment owe a huge debt to a man who doesn’t even own a firearm –and says he has neither a need nor desire to own one.

Robert Levy, a slight, soft-spoken lawyer with unshakable libertarian views, has spent five years time and a not-inconsiderable amount of his own money to see this case reach the Supreme Court.

“The case has been structured so they have to confront the threshold question,” Levy says, “I think they have to come to grips with that.”

Others agree. "The U.S. Supreme Court has the perfect case to affirm an individual’s Second Amendment right to self-defense,” says Senior United States Senator Kaye Bailey Hutchinson of Texas, “ Though gun-control advocates have questioned this through the years, Congress never has."

And on Monday, self-described black advocate organization Project 21, distributed a statement with this statement from Project 21 fellow Deneen Borelli: “as a black American, I would be horrified to hear a state or local government enacted legislation or regulation that gutted the 13th Amendment’s prohibit on slavery or the 15th Amendment’s guarantee that all races could vote. Why aren’t more people outraged when the 2nd Amendment’s guarantee that individuals can protect themselves is infringed?”

“In Washington, criminals know that an unarmed citizen is easy prey. Right now, the criminals are winning because the city’s gun ban is effectively protecting the plunderer and punishing the property owner,” Borelli added. “The lower court verdict to restore power to the people to legally possess a suitable firearm will make criminals think twice about their actions, and it is something the Supreme Court should affirm.”

In short, a normally dissimilar group of Americans from a variety of races, sexual orientations and geographic locations, speaks with a loud and unified voice on the matter of personal firearms ownership. In making their case to the Supreme Court in their “friend of the court” briefs, they cite a variety of reasons, from self-protection from hate crimes to the foundation of contracts of statehood. But they have all reached on conclusion: not to overturn the District of Columbia’s firearms ban would fly in the face of a founding principal of this nation.

As Alan Gura, attorney for Dick Heller argued, the District of Columbia “simply doesn’t trust the people to defend themselves in their homes.”

In stark contrast, the proponents of the District’s gun ban have largely relied emotional appeals. They have asserted positions that advance the idea that violent crime is the fault of the gun, not the criminal. Likewise, they would have the general public believe that simply making firearms illegal would stop violent crime.

To that end, they have generally argued their case in the court of public opinion. In that venue, it’s difficult to logically counter their arguments whilst a hysterical mother is wailing at the tragic loss of a child in a drive-by shooting.

In yesterday’s sessions, however, the histrionics were forced to yield to points of law.

Oral arguments before the United States Supreme Court don’t make great theatre nor offer up tightly-formed soundbites for the evening newscasts. Those were carefully crafted on the steps of the Supreme Court building afterwards.

The arguments do, however, shed light on the magnitude of the importance this case has to all Americans; today and in the future.

It may, in fact, become another a one-word synonym (“Heller”) for a landmark decision. Regardless, it will become the base upon which future laws will be built or old laws dismantled.

That fact wasn’t lost on Dick Heller, the named defendant in the case.

Speaking with him on the Supreme Court steps after the arguments -and his long question-and-answer period with the media, I asked him how he felt about “his” lawsuit.

“It’s a simple case to me,” Heller said, “It is wrong for the government to tell me that it is OK for me to have a gun during my work hours, but illegal for me to have a gun when the only thing I want to protect is me.”

At that point, a reporter interjected: “the Mayor (DC Mayor Adrian M. Fenty) says the handgun ban and his initiatives have significantly lowered violent crime in the District. How do you answer that, Mr. Heller?”

The initial answer certainly wasn’t expected – Dick Heller laughed. Ruefully.

Pointing at the Mayor who was making his way across the plaza, surrounded by at least six DC police officers, Heller said, “the Mayor doesn’t know what he’s talking about.”

“He doesn’t walk on the street like an average citizen. Look at him; he travels with an army of police officers as bodyguards – to keep him safe. But he says that I don’t have the right to be a force of one to protect myself. Does he look like he thinks the streets are safe?”

There was no follow-up question.

Robert Levy, the man behind the case in both conviction and cash for the last five years, told me he felt “gratified” that the case had finally come to this point. But mainly, I think, he looked tired.

Even knowing he’d probably answered it a hundred times, I had to ask one question of him: “what led you, a non-gun person, to do this?”

Thoughtfully, Levy replied: “It was a confluence of events. A horrifying violent crime rate in the District of Columbia in conjunction with an equally bad law that took the right of self-defense away from the residents.”

Looking me in the eye, he said simply, “I had no choice.”

Now, we can only hope that the United States Supreme Court sees that it has no choice but to rule that, like the other Amendments to the Constitution, the Second Amendment guarantees the right of an individual to keep AND bear arms.

But no one can call that outcome with any certainty.

Prior to the Arguments, many observers had Justice Kennedy being the key Justice should a swing vote be needed to break a 4-4 tie.

After yesterday’s occasionally questioning of Walter Dellinger, Solicitor General Clement and Alan Gura, however, it may be that Kennedy agrees with the lower court ruling. He quickly went on record as believing the scope of the second amendment was in two parts. The first, reaffirmed “the existence and importance” of the state militias ascontained in the Constitution itself. The second, Kennedy said, means that “in addition” there is a right to bear arms- something he later referred to as a “general right.”

If that’s the case, it could spell trouble for the District of Columbia’s efforts to revive its handgun ban.

Chief Justice John Roberts’ comments regarding the efficacy of trigger locks in a life-threatening situation, Judge Samuel Alito’s skeptical line of questioning regarding the DC ban and Justice Antonin Scalia’s vocal support of gun rights would seem to point toward their inclination to adopt the individual interpretation as well. As is his custom, Justice Clarence Thomas did not speak during the arguments, but has gone on record in favor of the individual right interpretation.

That would leave only Justices Breyer, Ginsberg and Souter’s votes in support of the District’s gun ban.

While all of us await a decision, the nine Justices will deliberate, research and weigh the facts and implications of Heller. When they are satisfied with their decision – and not before – they will let us know the fate of the Second Amendment.

We’ll keep you posted.

--Jim Shepherd


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Government; News/Current Events
KEYWORDS: banglist; blacklash; constitution; dcgunban; deneenborelli; freedomworks; govtcontrol; guns; project21; rights; secondamendment

1 posted on 03/18/2008 11:26:29 PM PDT by girlangler
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To: girlangler

added banglist


2 posted on 03/18/2008 11:30:41 PM PDT by NewJerseyJoe (Rat mantra: "Facts are meaningless! You can use facts to prove anything that's even remotely true!")
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To: girlangler
Great article. I still can not fathom how anyone can read the Bill of Rights and not understand that it is an individual right. Willful ignorance is the only answer.
3 posted on 03/18/2008 11:37:33 PM PDT by Feiny (Fruitloops are Gay Cheerios)
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To: girlangler
May God shepherd the court and see to it we always indeed have the right to keep AND bare arms!
4 posted on 03/18/2008 11:41:04 PM PDT by BellStar (In Arab culture and under Islamic law, if your father is a Muslim, so are you Obama!)
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To: girlangler
Excerpt: "That would leave only Justices Breyer, Ginsberg and Souter’s votes in support of the District’s gun ban."

...and Stevens.

5 posted on 03/18/2008 11:51:22 PM PDT by unspun (Mike Huckabee: Government's job is "protect us, not have to provide for us." Duncan Hunter knows.)
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To: feinswinesuksass

Keep an eye on Breyer if you want to see willful ignorance at work. He practically announced in court today he was for upholding the ban, even before the arguments were finished. I suspect even the other leftie justices will be a little more circumspect, and at least pretend to be open minded. (before they vote for the ban)


6 posted on 03/18/2008 11:56:24 PM PDT by ozzymandus
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To: girlangler

Thank you!


7 posted on 03/19/2008 12:01:52 AM PDT by Slip18
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To: girlangler
Looking me in the eye, he said simply, “I had no choice.”

If only every American understood what this man understands.

God bless him.

8 posted on 03/19/2008 12:16:48 AM PDT by EternalVigilance ("We're surrounded by screeching McPod people." - Don Joe)
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To: feinswinesuksass

“I still can not fathom how anyone can read the Bill of Rights and not understand that it is an individual right. Willful ignorance is the only answer.”

No, it’s deliberate. The socialists, leftist and “liberals” want us disarmed so we cannot stop their imposing government by fiat on us so that we are subjugated to a ruling autocracy so that they “can take things away from us for our own good”.

Guns are for self protection and to keep the government afraid and in place.


9 posted on 03/19/2008 12:24:10 AM PDT by garyhope (It's World War IV, right here, right now, courtesy of Islam.)
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To: girlangler
I have always interpreted the wording to mean “individual” right. Based solely on the wording. It can be taken for granted that state militias will be armed, so those few words, set off by commas, MUST refer to the general public. With me it's purely semantics-—and my S&W M&P.
10 posted on 03/19/2008 1:21:38 AM PDT by singfreedom
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To: singfreedom
Dunno, I've always interpreted what the Constitution said according to its words.

I was reading the Constitution the other day.

It said, amongst a slew of different things, that:

A Well regulated Militia, being necessary to the Security of a Fere State, the right...shall not be infringed.
Gee, what's next? Banning of books? If not, why not?
11 posted on 03/19/2008 1:56:16 AM PDT by raygun (24.14% of the Voting Age Population elected Slick (The Cigar) Willey to a second term.)
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To: garyhope
We need to remind everyone that the first battle of the American Revolution was fought over Gun Control.
“By the rude bridge that arched the flood,
Their flag to natures breeze unfurled,
There the embattled farmers stood,
And fired the shot heard round the world."
Some one should ask the Dem candidates how they feel about this. Algore lost the POTUS because of his stand on Gun Control.
barbra ann
12 posted on 03/19/2008 5:03:56 AM PDT by barb-tex (Why replace the IRS with anything?)
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To: barb-tex
"We need to remind everyone that the first battle of the American Revolution was fought over Gun Control."

And this is what the framers had in mind when they wrote the Second Amendment...

click the pic for hi-res image

click the pic for hi-res

I made this graphic, host it on my server and keep it on my homepage, feel free to post anytime, anywhere.

13 posted on 03/19/2008 5:08:15 AM PDT by DocRock (All they that TAKE the sword shall perish with the sword. Matthew 26:52 Gun grabbers beware.)
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To: feinswinesuksass

I agree.


14 posted on 03/19/2008 5:10:53 AM PDT by Dante3
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To: Joe Brower

Beautifully put!

“It’s a simple case to me,” Heller said, “It is wrong for the government to tell me that it is OK for me to have a gun during my work hours, but illegal for me to have a gun when the only thing I want to protect is me.”

At that point, a reporter interjected: “the Mayor (DC Mayor Adrian M. Fenty) says the handgun ban and his initiatives have significantly lowered violent crime in the District. How do you answer that, Mr. Heller?”

The initial answer certainly wasn’t expected – Dick Heller laughed. Ruefully.

Pointing at the Mayor who was making his way across the plaza, surrounded by at least six DC police officers, Heller said, “the Mayor doesn’t know what he’s talking about.”

“He doesn’t walk on the street like an average citizen. Look at him; he travels with an army of police officers as bodyguards – to keep him safe. But he says that I don’t have the right to be a force of one to protect myself. Does he look like he thinks the streets are safe?”


15 posted on 03/19/2008 5:17:13 AM PDT by Travis McGee (---www.EnemiesForeignAndDomestic.com---)
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To: DocRock

That really is a good one. Are their others?
Thanks!
TLI


16 posted on 03/19/2008 5:24:27 AM PDT by TLI ( ITINERIS IMPENDEO VALHALLA)
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To: Travis McGee
"Does he look like he thinks the streets are safe?”

A-yep. And this last statement really kicks the whole anti-gun argument right in the nuts, doesn't it?

Could it actually be that we still have enough rational jurisprudence to save our nation without conflict? Dare we hope for sufficient remaining sanity? We are most certainly going to find out.

Most most fervent prayer, my friend, is that the fictional events in your novels forever remain exactly that -- fiction.

Don't stop writin' 'em, though!

17 posted on 03/19/2008 5:24:32 AM PDT by Joe Brower (Sheep have three speeds: "graze", "stampede" and "cower".)
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To: DocRock

Great Picture!

Thank you.

RamS


18 posted on 03/19/2008 5:26:54 AM PDT by RamingtonStall (More Guns ==> Less Crime! Get your CHL today! http://www.ohioccw.org/)
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To: TLI
"That really is a good one. Are their others?"

Thanks. I made this 'caveman' graphic some time back. It also is hosted on my bandwidth and I keep it on my homepage for anyone to use.


19 posted on 03/19/2008 6:07:09 AM PDT by DocRock (All they that TAKE the sword shall perish with the sword. Matthew 26:52 Gun grabbers beware.)
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To: girlangler
“the Mayor ... travels with an army of police officers as bodyguards – to keep him safe

Armed police officers, I would guess.

20 posted on 03/19/2008 6:51:00 AM PDT by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: unspun

Ginsburg has in the past made statements that revealed a recognition of the individual right. So maybe her vote isn’t lost.


21 posted on 03/19/2008 7:13:36 AM PDT by Still Thinking (Quis custodiet ipsos custodes?)
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To: Joe Brower

Heller’s comment about the mayor’s armed bodyguards goes to the heart of the case. The govt. allows Heller the secutiry guard to carry a gun to protect THEM. But when he goes home, the same govt. won’t allow him to have a gun to protect HIMSELF.


22 posted on 03/19/2008 7:14:32 AM PDT by Travis McGee (---www.EnemiesForeignAndDomestic.com---)
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To: girlangler

I thought the “threshold” question was when it would be good to put the Second Amendment into its intended use.


23 posted on 03/19/2008 7:57:32 AM PDT by wastedyears (More Maiden coming up in a few months!)
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To: ozzymandus
"Keep an eye on Breyer if you want to see willful ignorance at work. He practically announced in court today he was for upholding the ban, even before the arguments were finished."

Hah! At least he heard the arguments. Clarence Thomas anounced his position before arguments were even heard.

So maybe we should keep an eye on Thomas?

24 posted on 03/19/2008 8:56:37 AM PDT by robertpaulsen
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To: robertpaulsen
Clarence Thomas anounced his position before arguments were even heard.

That would be because Clarence Thomas, unlike you, can read the Second Amendment and understand what it means.

25 posted on 03/19/2008 9:17:37 AM PDT by Centurion2000 (su - | echo "All your " | chown -740 us ./base | kill -9 | cd / | rm -r | echo "belong to us")
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To: Still Thinking

Ginsburg put Dellinger in his place a couple of times with really hard questions. I would not be surprised to see her concurring with Roberts, Scalia, Alito, Thomas and Kennedy.


26 posted on 03/19/2008 9:54:32 AM PDT by Abundy
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To: Abundy

I think there will be 6 or 7 on the right side of this.


27 posted on 03/19/2008 10:06:27 AM PDT by Always Right (Was it over when the Germans bombed Pearl Harbor?)
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To: Always Right
Yup...and I can see them not announcing a standard of review, even while allowing fundamental right language to exist in their opinion.

They won't over-reach, and know damn well that this won't be the last time that they are dealing with a dispute about what is a reasonable regualtion.

I can see Judge Cummings of Emerson fame eliminating the machine gun ban as unconstitutional after this case is decided - which will create a firestorm of lititgation, a split between the circuits and eventually another SCOTUS case.

28 posted on 03/19/2008 10:13:48 AM PDT by Abundy
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To: Abundy

The only problem I see is if Roberts tries to reach out too far to get more justices to agree. I think the best ruling would be one that has only 5 votes.


29 posted on 03/19/2008 10:23:33 AM PDT by Always Right (Was it over when the Germans bombed Pearl Harbor?)
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To: Always Right

makes sense...but if they limit their opinion to the specific question they framed they can get more justices on board - and it would give a clear opinion that private possession/ownership of firearms is not related to militia service.


30 posted on 03/19/2008 10:29:26 AM PDT by Abundy
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To: robertpaulsen

Yes, robert, we know you’re a gun-control fascist.


31 posted on 03/19/2008 11:22:43 AM PDT by ozzymandus
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