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Opening Shots - The striking down of the D.C. gun ban may be the beginning of a larger battle.
National Review Online ^ | March 29, 2007 | Jennifer Rubin

Posted on 03/29/2007 12:48:37 PM PDT by neverdem

Opening Shots
The striking down of the D.C. gun ban may be the beginning of a larger battle.

By Jennifer Rubin

It’s not every day a federal circuit court rocks the political, legal, and academic worlds. But on March 9, the U.S. Court of Appeals for the District of Columbia Circuit did just that, ruling in the biggest gun-control case in nearly 70 years and perhaps placing a Supreme Court case smack in the middle of the 2008 presidential race. Senior Judge Laurence Silberman wrote for a 2-1 majority in Parker v. District of Columbia, “The Second Amendment protects an individual right to keep and bear arms.” The court rejected the District of Columbia’s argument that the Second Amendment does not protect individual gun ownership rights but merely protects states’ rights to form armed militias, and the court invalidated the District’s ban on handgun ownership and registration (except for guns registered prior to 1977), its prohibition on carrying pistols in the home without a license, and its requirement that all guns, including rifles and shotguns, be unloaded and either disassembled or bound by a trigger lock.

At issue is the meaning of the oddly constructed text: “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.” As Stuart Taylor explained in National Journal, since the Supreme Court last ruled on the Second Amendment in 1939, most courts and legal scholars have held: “The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.” The D.C. Circuit Court essentially replied: “Wrong.” Having found an individual right of gun ownership for the plaintiffs, the court then struck down the ban as an obliteration of that right.

The case will almost certainly be appealed to the en banc panel of the D.C. Circuit and then to the Supreme Court. Attorneys for the parties, as well as other legal experts, rank the likelihood that the Supreme Court will hear this case as high, given that the case would entail invalidation of a statute, a conflict between federal circuit courts, and a constitutional issue of wide ranging importance — all weighty considerations when it comes to granting certiorari. The Supreme Court could well be deciding the issue in the thick of the 2008 presidential season. Georgetown Law Professor Paul Rothstein suggests that that may be just the beginning, explaining: “I do not think any of them [the Supreme Court justices] would take the view that there is an absolute right to bear arms.” In the end he predicts: “The likelihood is that it will be held that there is an individual right that gives way to a strong, specific state interest expressed in a relatively narrowly tailored legislative provision, under some type of ‘intermediate scrutiny’ test.”

Con and Pro
Among partisans, the reaction was fast, furious, and predictable. Mayor Fenty declared: “I am strongly opposed to the Court’s decision. District residents deserve every protection afforded to them under District law.” The Brady Campaign to Prevent Handgun Violence issued a statement that the decision was “judicial activism at its worst” and, echoing the conservative theme of judicial restraint, decried that “two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports.” The Washington Post and New York Times editorial pages blasted the decision.

On the other side, gun supporters celebrated. The Cato Institute trumpeted the work of its senior fellow Robert Levy, co-counsel for the plaintiffs, in obtaining a ruling that Second Amendment rights “are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued intermittent enrollment in the militia.” The American Civil Rights Union (ACRU) and the NRA, which both filed amicus briefs, applauded the decision. The Second Amendment Foundation declared: “This is a huge victory for firearm civil rights. It shreds the so-called ‘collective right theory’ of gun control proponents, and squarely puts the Second Amendment where it has always belonged, as a protection of the individual citizen’s right to have a firearm for personal defense.”

In addition to dueling press releases, arguments soon broke out about the case’s prospects. David Gossett, representing the Violence Policy Center seeking to uphold the D.C. gun ban in the case, stated, “I think en banc review is quite likely; given the makeup of this panel, and the fact that Judge Henderson—a well-known conservative judge—dissented, I expect the full D.C. Circuit will be interested in the case. I also think the en banc court is reasonably likely to reverse the panel. Judge Silberman’s opinion is fundamentally inconsistent with Miller, the Supreme Court’s precedent in this area.” On the other hand, Robert Levy predicted that the plaintiff’s “very compelling argument” would be sustained by the Supreme Court, but cautioned that even if the personal right to gun ownership were upheld, most gun restrictions would need to meet the very tough “strict scrutiny” standard to pass muster. Depending on the individual circumstances of specific cases, he believes there would be “close calls” on waiting-time statutes and restrictions on multiple sales of weapons. Peter Ferrara, general counsel of ACRU, while confident of the gun owners’ prospects should the case reach the Supreme Court, agrees that the Supreme Court is highly unlikely to find an “absolute right” of gun ownership and that it is unrealistic to think there will be “no regulation of guns.” Certainly this decision could open years of ongoing litigation.

Contenders Under the Gun
Aside from potentially opening a new chapter in constitutional jurisprudence, the case may reignite gun rights as a presidential political issue. Deemed to be a political loser for Democrats, John Kerry, aside from donning newly purchased hunting garb, tried his best to steer clear of the issue in 2004. Because of the Parker case, 2008 may be different. University of Virginia politics professor Larry Sabato observes: “The gun issue waxes and wanes like all the others, but it’s a tinderbox, ready to explode at any time.” He further notes: “The public may support gun control in theory, but the largest number of votes by far has been and continues to be on the antigun control side. Therefore, Democrats ought to be afraid of this one in terms of the general election”

Paul Helmke, former mayor of Fort Wayne and now president of the Brady Center Against Handgun Violence, suggests that “both sides have had it easy” in the gun debate, finding it politically safe to express general support for hunters and gun ownership but professing support for “reasonable restrictions” on gun ownership. Now candidates of both political parties may be forced, as they have been in the abortion arena, to take stands on specific issues.

Each of the candidates faces questions about his past and present views. Romney’s campaign, in response to an inquiry for this story, said that “the court correctly decided the D.C. gun case by upholding the right of individuals to keep and bear arms.” He now proudly sports an NRA membership. However, in 1994 he did support the NRA-opposed waiting period on gun sales and a ban on some types of assault weapons. Press accounts have since pointed out his statements in 1994 that this position was “not going to make me the hero of the NRA” and his comment in the gubernatorial debate in 2002: “We do have tough gun laws in Massachusetts; I support them. I won’t chip away at them; I believe they protect us and provide for our safety.” Spokesman Eric Fehrnstrom insisted in a written response that “the Governor’s views have not changed” on gun rights and explained “Governor Romney supported an extension of the state assault weapons ban in Massachusetts as part of comprehensive legislation that also loosened some of the state’s more onerous licensing restrictions.”

John McCain argues that he has been a staunch defender of Second Amendment rights. He voted against the Brady Bill in 1993 and the assault-weapons ban in 1994. He previously championed repeal of the now-invalidated D.C. gun ban. In the face of strong NRA opposition, however, McCain did sponsor legislation in 2001 and again in 2003 seeking to close the so-called “gun show loophole” requiring background checks at all gun shows where at least 75 guns were sold. (The issue of ad limitations in McCain-Feingold was further grounds for souring his relationship with the NRA.)

Rudy Giuliani faces the toughest challenge in reaching out to gun-rights advocates. As mayor of New York, he supported measures requiring trigger locks and banning guns within 1,000 feet of schools, and he sued two dozen major gun manufacturers and distributors in 2000. In the wake of the 1993 Long Island Rail Road shooting, he became one of the few prominent Republicans lobbying for a ban on many assault weapons. However, the Parker case may provide him with an opportunity to burnish his Second Amendment credentials. In a written response to an inquiry for this story he explained: “I believe the decision by United States Court of Appeals is correct. I understand the challenges that big cities face from gun violence. But banning people from having handguns in their own homes for self defense is excessive and unconstitutional. It is not a reasonable restriction. It clearly undercuts the Second Amendment, which protects the rights of law abiding individuals to keep and bear arms.” On March 22 on the Sean Hannity radio show, he again reiterated his agreement with Parker. He stated that it “very well described” his view that the Second Amendment protected an individual right to own a gun, that “unreasonable restrictions” should be invalidated, and that gun regulations should be decided on “a state by state” basis.

Democratic Surprise
If none of the Republicans are perfect poster boys for the NRA, what about the Democrats? Charlie Cook notes that they “decided some time ago that if they wanted to win and hold a majority in Congress and the presidency, they were going to have to leave the gun issue alone. It was costing them too much support in the south and border south and among union members nationwide. All but a few Democrats in Congress agree with this strategy, which is why you can look at the Democratic issue agenda and find nothing about guns.” Their greatest fear may be escaping the primaries without inflicting damage on their hopes in November, as Sabato cautions: “If the liberals force Democratic candidates to the left on gun control next winter, then the eventual nominee may pay for it in the fall.” No less than Bill Clinton opined on The Charlie Rose Show after Al Gore’s loss that: “The NRA beat him in Arkansas. The NRA and Ralph Nader stand right behind the Supreme Court in their ability to claim that they put George Bush in the White House.... I think the NRA had enough votes in New Hampshire, in Arkansas, maybe in Tennessee and in Missouri to beat us. And they nearly whipped us in two or three other places.”

There is one Democrat who may be happy to talk about guns, should he manage to wrestle the nomination away from his three better known opponents: Bill Richardson. Last year in his reelection bid, Richardson obtained the NRA endorsement over his Republican challenger. Dwight Van Horn of the NRA said at the time: “He’s been a pretty solid guy on the gun issue.” In its press release the NRA was pleased to tout Richardson’s support for New Mexico’s law allowing residents to carry concealed handguns with a permit. Richardson in the past has proudly remarked that he personally has earned a concealed-carry permit himself. None of this is likely to endear him to the liberal base in the primaries, but it might prove a test of the NRA’s nonpartisanship should he face off in November against a Republican with a less stellar Second Amendment record.

Enjoying the Moment
For now, the NRA is clearly relishing this moment. Chris Cox, executive director of the NRA’s Institute for Legislative Action, is trying to focus public attention on the “human face” of the Parker decision, emphasizing that these D.C. residents were law-abiding citizens denied the right to self-defense in their own homes. He remarks that there is “no clearer indictment” of the theory that gun control will make cities safer than the fact that under the stringent gun ban, D.C. was the “murder capital” of the country in seven of the last nine years. To the chagrin of conservative lawyers, however, Cox indicates continued support of federal legislation to repeal the D.C. gun ban — legislation that would permanently secure home gun-ownership for D.C. residents, but render the Parker case effectively moot.

On a broader level, Second Amendment advocates are hoping to turn the tables in the court of public opinion. In recent years, gun-control advocates have changed the name of their organization (“Handgun Control, Inc.” was abandoned in 2001 in favor of “The Brady Campaign to Prevent Handgun Violence”) and focused on more limited items like waiting-period requirements and limits on multiple-gun sales. Cox argues that NRA should be seen as the “reasonable” group, supporting the right to self defense of law-abiding citizens, while the handgun advocates, despite their emphasis on incrementalist goals, nevertheless wholeheartedly supported the D.C. ban.

To some degree the NRA and its allies have already been winning the war outside the Beltway. Forty-eight states now have laws protecting individual rights to carry concealed weapons. Although each side offers its own polling data, even the January 2007 poll conducted for the Mayors Against Illegal Guns by the bipartisan team of Greenberg Quinlan Rosner Research and The Tarrance Group reveals a combined 58 percent of those polled favor either repealing some existing gun laws or simply enforcing current gun laws without passing new ones.

Conservative legal scholars see this case as potentially harkening a change in the way Americans view the courts and the Constitution. John Yoo of Boalt Law School doubts it will affect those with hardened views on each side but suggests that “the decision may sway moderates who are undecided about gun control, and remind them that the Founding Fathers understood the Bill of Rights to protect the individual right to bear arms.”

Peter Ferrara of the ACRU takes a more philosophical and historical view of the potential long-range implications of the case. He remarks that if Parker is upheld by the Supreme Court, it will “be a big shot in the arm for conservatives” and will demonstrate that “we have had an impact on the courts and on changing the judiciary.” He notes that the effort to achieve recognition of an individual right of gun ownership has been an undertaking of more than fifty years of research, scholarship, and support for conservative judges. He explains that what was once considered a “radical” position — recognition of an individual right to gun ownership — has now attracted support even from liberal scholars like Laurence Tribe and has been accepted by a prominent federal appeals court. Ferrara says that conservatives should remember that these jurisprudential efforts are “not short term fights.” As for the impact on 2008, he reminds conservatives that “this is no time to be discouraged” with at least two justices who could be potentially replaced by the next president.

In that respect, the Parker case may remind the wider conservative base exactly what is at stake in 2008.

TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
KEYWORDS: 2ndamendment; bang; banglist; rkba
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To: Petruchio

It means that even if the 2A is confirmed as an individual right, the individual states have the right to impose infringement as they see fit.

61 posted on 03/29/2007 6:10:42 PM PDT by Sender (All warfare is based on deception.)
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To: neverdem
"At issue is the meaning of the oddly constructed text: “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 correct grammar leavess only a single comma.

See, e.g., Commas and the Second Amendment

62 posted on 03/29/2007 6:17:45 PM PDT by boris (The deadliest weapon of mass destruction in history is a leftist with a word processor.)
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To: boris

Sorry, "leavess"==leaves.

63 posted on 03/29/2007 6:19:44 PM PDT by boris (The deadliest weapon of mass destruction in history is a leftist with a word processor.)
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To: Sender
"It means that even if the 2A is confirmed as an individual right, the individual states have the right to impose infringement as they see fit."

Tell it to the marijuana farmers in CA. Tell it to the secessionists in Hawaii. Tell it to the segregationists in dixieland...

64 posted on 03/29/2007 6:24:44 PM PDT by boris (The deadliest weapon of mass destruction in history is a leftist with a word processor.)
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To: libstripper
Try hunting public land in NJ. On opening day it's 1,000 acres, 500 heavily armed men, and not a single injury. (and if anything... probably a momentary drop in crime)

Personally, the place I feel safest outside my own home is down at the gun club.

65 posted on 03/29/2007 6:25:52 PM PDT by tcostell (MOLON LABE)
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To: boris

There used to be a post here in the archives with an interview with a grammar expert which parsed the entire Amendment and addressed the "comma" issue. I believe it was by J. Niel Schielman(?). Anybody know where it is? My search comes up dry.

66 posted on 03/29/2007 7:02:41 PM PDT by boris (The deadliest weapon of mass destruction in history is a leftist with a word processor.)
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To: boris


67 posted on 03/29/2007 7:04:33 PM PDT by boris (The deadliest weapon of mass destruction in history is a leftist with a word processor.)
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To: Publius Valerius; robertpaulsen

Lower courts are bound to precedent - they have little choice in interpretation of the law, most notably when bad precedents have been set and, thru repetition and bad timing, become unavoidable. Even the DC Circuit in _Parker_ observed that they WANTED to issue such a ruling in other cases, but assorted factors prevented from deviating from precedents until plaintiff Heller finally pushed thru.

Scholarly analysis allows the legal freedom to explore and more readily arrive at correct conclusions not previously widely justified. Only the Supreme Court really has the freedom (federally) to abandon bad legal trends wholesale and comprehensively reinterpret law back to what was originally intended.

68 posted on 03/29/2007 7:29:58 PM PDT by ctdonath2 (The color blue tastes like the square root of 0?)
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To: Ultra Sonic 007

You know, he may actually be learning. It does happen to people when the course of their lives takes a direction which broadens their horizons. I don't want to sound like a naive Pollyanna, but if we stubbornly refuse to believe anyone can change their minds about gun rights and refuse to believe people when they tell us they have changed their minds, then we're giving up the fight, because if people -- from ordinary voters to major political figures -- don't change their minds in significant numbers, and don't find themselves welcomed into the RKBA community, there's little chance of ever achieving significant progress towards making the Second Amendment the operative law of the land again. Excessive cynicism could cost us that crucial victory.

Rudy has been a creature of New York City all his life, and never had a compelling reason to consider things from a non-NYC point of view. Now he has that compelling reason, and is probably considering a lot of things from new perspectives. Let's encourage him, not discourage him.

69 posted on 03/29/2007 7:34:35 PM PDT by GovernmentShrinker
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To: Teacher317

I would love to see more Green States crops up... It's the Constitutional thing to do. ;-)

70 posted on 03/29/2007 7:37:43 PM PDT by Dead Corpse (What would a free man do?)
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To: GovernmentShrinker

I don't know. It's too conveniently close to an election for him to start contradicting his positions.

71 posted on 03/29/2007 7:42:51 PM PDT by Ultra Sonic 007 (Vote for Duncan Hunter in 2008. Audio, Video, and Quotes in my profile.)
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To: neverdem
Thanks for the link.

Absolutely. Crosspost early and often everywhere.

Best regards,

72 posted on 03/29/2007 7:45:32 PM PDT by Copernicus (A Constitutional Republic revolves around Sovereign Citizens, not citizens around government.)
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To: Kevmo

Ask and ye shall receive:

73 posted on 03/29/2007 8:03:14 PM PDT by GovernmentShrinker
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To: Political Junkie Too

What if the government, from the smallest police department to the FBI was restricted by the same laws? Hmmmm....something to dream about!

74 posted on 03/29/2007 8:23:30 PM PDT by MtnClimber
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To: Ultra Sonic 007
Don't trust Rudy. He is a politician with actions opposite of what his current, politically motivated, survival-oriented, mouth movements sound like now. When in power, Rudy will wield power which means less freedom for you and me.
75 posted on 03/29/2007 8:45:18 PM PDT by MtnClimber
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To: stephenjohnbanker

This is why elections matter.

If they go to the full DC Circuit it has been stacked by Reagan, Bush 41 and Bush 43. Of the 12 one is from Carter and three from Clinton.

If the full court affirms the decision of the 2/1 then SCOTUS may not take the case and the decision will stand.

76 posted on 03/29/2007 10:36:35 PM PDT by mombrown1 (The Second Amendment is the reset button for the First.)
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To: neverdem
'I understand the challenges that big cities face from gun violence. But banning people from having handguns in their own homes for self defense is excessive and unconstitutional'...Rudy

The Second Ammendment is so NOT about home defense (though it works well) or hunting. It is about 'the people' having, at the ready, a way to overthrow tyrannical government.

Lower crime rates are an ancillary benefit to an armed society. The government's enactment of laws limiting the full effect of the second ammendment causes it to be an accessory to every rape, strong-arm robbery, assualt, carjacking, home-invasion, and murder committed over the last hundred years, and then some. Good luck suing the b*stards or putting them behind bars.

As taxpayers, we should recoil at the cost of housing perps whose careers would have ended long before they became wards of the state-- were they stopped 'dead' in their tracks earlier on, as would have happened in an armed (polite) society.

In short, we've relinquished our right to assert ourselves as a force government must contend with, due to our reluctance to assert our right to "keep and bear arms" in capitulation to the 'majoritarian' view that to do such is politically incorrect (unpopular). I want my country back.

Crime is an issue locally and we have no one else to thank than 'gun-grabbers'. Crime at the state and national level continues to go unchecked. I reject seat-belt, child carrier seat, cell-phone crimes as mere distractions from what are real crimes: failing to implement the constitution and bill of rights as written.

Imagine the 'people' taking to task those who have been entrusted with executing our 'laws' in the same manner as we've been subjected over the years. Power to the Nanny People. Give 'em guns, 'cause the Nanny State sucks and has no intention of backing off any time soon. Let's Roll, Bring It On.

77 posted on 03/29/2007 10:38:24 PM PDT by budwiesest (We need a 'divider' this time around. No more 'uniting'.)
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To: robertpaulsen
"The C. says "the right of the people to keep and bear arms, shall not be infringed"

>>> When that was written, who were "the people"?

Written long ago. The "people" are Americans. They may change in make-up over time, but their rights remain the same.

78 posted on 03/29/2007 10:55:17 PM PDT by budwiesest (We need a 'divider' this time around. No more 'uniting'.)
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To: fireforeffect
Honestly, I think that it would not be as helpful as we would assume. State-wide crime rates are just too wide-ranging. A county-by-county map, or even a city map, would be more informative, and contrast it with a map of those cities that have stricter gun laws.

But really, everyone knows what the map will look like. Most cities have far more violent crime, and higher violent crime rates, than suburban and rural areas. There will be a few variations, of course, but the pattern will dominate the map.

Sometimes I wonder if we just might need different sets of rules for urban vs suburban areas. (Recall that America's largest city in 1776 was Philadelphia... at 50,000 people.)

79 posted on 03/30/2007 5:27:42 AM PDT by Teacher317 (Are you familiar with the writings of Shan Yu?)
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To: budwiesest
"It is about 'the people' having, at the ready, a way to overthrow tyrannical government."

Hmmmmm. When the second amendment was written, who were "the people" mentioned in it? Is there any difference between "A" and "B" below?

A) “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."

B) “A well-regulated militia, being necessary to the security of a free State, the right of individuals to keep and bear arms, shall not be infringed.”

80 posted on 03/30/2007 6:25:14 AM PDT by robertpaulsen
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