This is it!

Tomorrow’s the big day ladies and gentlemen!

If you’re religious, pray for a good outcome. I shudder to think what might happen if they botch it up…

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SCOTUS Takes the Case!

I’m not feeling much better today, but I thought this was too important to let slip by. -Yuri

UPDATE: Moments after I posted this, the Brady’s sent me an email wanting more money. They’re clearly worried about this case and the effect it will have on gun bans and gun control laws nationwide. Follow me in giving a donation to your favorite gun rights organization!

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High Court to Hear D.C. Gun Ban Case

Washington Post Staff Writer
Tuesday, November 20, 2007; 1:08 PM

The Supreme Court announced today that it will decide whether the District of Columbia’s ban on handguns violates the Constitution, a choice that will put the justices at the center of the controversy over the meaning of the Second Amendment for the first time in nearly 70 years.

The court’s decision could have broad implications for gun-control measures locally and across the country, and will raise a hotly contested political issue just in time for the 2008 elections.

The court will hear the case after the first of the year. A decision likely would come before it adjourns at the end of June.

For years, legal scholars, historians and grammarians have debated the meaning of the amendment because of its enigmatic wording and odd punctuation:

“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.”

Gun rights proponents say the words guarantee the right of an individual to possess firearms. Gun-control supporters say it conveys only a civic or “collective” right to own guns as part of service in an organized military organization.

The court’s last examination of the amendment was in 1939, when it ruled in United States v. Miller that a sawed-off shotgun transported across state lines by a bootlegger was not what the amendment’s authors had in mind when they were protecting arms needed for military service.

Since then, almost all of the nation’s courts of appeal have read the ruling to mean the amendment conveys only a collective right to gun ownership. But the U.S. Court of Appeals for the D.C. Circuit broke ranks last spring, becoming the first to strike down a gun-control law on Second Amendment grounds.

A panel of three Republican-appointed judges voted 2-1 that the amendment “protects an individual right to keep and bear arms” and that “once it is determined — as we have done — that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them.”

The District law, enacted in 1976, soon after the city won home rule, is one of the toughest in the nation. It prohibits residents from registering and possessing handguns in almost all circumstances. The District also requires that rifles and other long guns kept in the home be unloaded and disassembled or outfitted with trigger locks. The court struck down that law as well, saying it rendered the right to possess such a weapon for self-defense virtually useless.

It is unusual that both the losing party and the winners of that decision asked the court to consider the case. But Robert A. Levy, a wealthy entrepreneur and lawyer who is also a scholar at the libertarian Cato Institute, has worked for years to bring the matter to the Supreme Court.

He and others, including co-counsel Clark M. Neily III and Alan Gura, assembled six D.C. residents to challenge the District ban. Their idea was to present the courts with law-abiding plaintiffs who wanted the weapons for self-defense rather than people appealing criminal convictions for possessing weapons.

A federal district judge ruled against the residents, but the appeals court overturned that decision in a strongly worded opinion written by conservative Senior Judge Laurence H. Silberman.

The District argued in its petition to the Supreme Court that the decision “drastically departs from the mainstream of American jurisprudence.”

The petition filed by District Attorney General Linda Singer said the appeals court was wrong for three reasons: because it recognized an individual rather than collective right; because the Second Amendment serves as a restriction only on federal interference with state-regulated militias and state-recognized gun rights; and because the District is within its rights to protect its citizens by banning a certain type of gun.

“It is eminently reasonable to permit private ownership of other types of weapons, including shotguns and rifles, but ban the easily concealed and uniquely dangerous modern handgun,” said the petition. “Whatever right the Second Amendment guarantees, it does not require the District to stand by while its citizens die.” (There’s irony for ya! -Yuri)

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Quote of the Day

It’s long, but I feel this quote is as appropriate today as it was then. Here we have Abraham Lincoln in 1858, in his debate with Douglas, quoting Thomas Jefferson from 1820. It’s something to keep in mind as we hurtle toward a second amendment showdown with the supremes. Whether or not they uphold the second amendment, and I hope they do, it does not lessen it’s standing at all. For example, just because some group of people declares the Earth flat or round, doesn’t change the facts. Even if we didn’t have a second amendment, our right to defend ourselves and country is still no less valid.

“In public speaking it is tedious from documents; but I must beg to indulge the practice to a limited extent. I shall read from a letter written by Mr. Jefferson in 1820, and now to be found in the seventh volume of his correspondence, at page 177. It seems he had been presented by a gentleman of the name of Jarvis with a book, or essay, or periodical, called The Republican, and he was writing in acknowledgement of the present, and noting some of its contents. After expressing the hope that the work will produce a favorable effect upon the minds of the young, he proceeds to say:—

‘That it will have this tendency may be expected, and for that reason I feel an urgency to note what I deem an error in it, the more requiring notice as your opinion is strengthened by that of many others. You seem, in page 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions,—a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is, ‘boni judicis est ampliare jurisdictionem;’ (It is the duty of a judge, when requisite, to amplify the limits of his jurisdiction.) and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and cosovereign with themselves.’

Thus we see the power claimed for the Supreme Court by Judge Douglas, Mr. Jefferson holds, would reduce us to the despotism of an oligarchy.”

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A Liberal Laments

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Both Sides Fear Firing Blanks if D.C. Gun Case Reaches High Court

Tony Mauro
Legal Times
July 30, 2007

The case of District of Columbia v. Heller is barely at the Supreme Court’s starting gate, yet nearly everyone involved has a growing sense that this will be the Big One.

It is shaping up as the case that finally forces the Court to decide one of the most keenly debated issues in constitutional law: the full meaning of the right to keep and bear arms declared by the Second Amendment.

Washington, D.C., Mayor Adrian Fenty is appealing a March 9 ruling by the U.S. Court of Appeals for the D.C. Circuit that struck down the city’s handgun ban on Second Amendment grounds. The Court has given the city until Sept. 5 to file, and the other side — residents who want the ban overturned — say they too want high court review. If the Court accepts, the case could be argued early next year.

But even as the case heats up, factions on both sides seem to be getting cold feet. The concern is that even after nearly 70 years of high court silence, the time might not be right for it to speak to the Second Amendment question.

On the pro-gun-rights side those worries, along with long-simmering rivalries, have relegated the National Rifle Association to the sidelines in a case that could fulfill its most fervent dream: a declaration by the Court that the convoluted wording of the Second Amendment ensures an individual’s right to bear arms, rather than a collective right of state militias. If the right-leaning Roberts Court embraces that view, regulating firearm possession and use would become harder, though not impossible.

Alan Gura, the Alexandria, Va., lawyer who masterminded the challenge to the D.C. handgun ban, says the NRA has joined him “ever so grudgingly” only in recent weeks, after years of trying to wreck the litigation and avoid a Second Amendment showdown. At earlier stages, the NRA sought to consolidate its own case, which challenged the D.C. law on a “kitchen sink” array of rationales, with Gura’s. In a 2003 filing, Gura called the NRA case “sham litigation” aimed at muddying his Second Amendment claim.

Even after the D.C. Circuit ruled in March, says Gura, the NRA lobbied for legislation to repeal the D.C. handgun ban as a way to keep the case out of the Supreme Court. “The NRA was adamant about not wanting the Supreme Court to hear the case, but we went ahead anyway,” says Gura, a name partner in the firm of Gura & Possessky. “It’s not their case, and they are somewhat territorial.”

FRIENDLY FIRE

Gura insists that if the high court grants review, he will argue the case himself and won’t defer to NRA lawyers, such as Stephen Halbrook, who have Supreme Court experience. “My decisions in the case have been the correct decisions. That’s why I am arguing and he’s not.”

NRA spokesman Andrew Arulanandam denies his group sought to sabotage Gura’s case: “Our intent to file an amicus brief if the case progresses speaks for itself.” He also noted that the NRA filed a brief supporting Gura with the circuit court.

Yet Charles Cooper of D.C.’s Cooper & Kirk acknowledges that when he reviewed the Heller case at an earlier stage for the NRA, “my concern was then, as it is now, whether our [individual rights] theory of the Second Amendment would command a majority of the Supreme Court.” Even with recent changes in the composition of the Court, says Cooper, “that is still not as clear as I would like it to be, though I am much more calm.” Nonetheless, Cooper says, if the high court declines to take up the D.C. case and lets the D.C. Circuit ruling stand, “that’s not going to disappoint me.”

Cooper’s reluctance is based on legal strategy, but others say the NRA has less lofty reasons for not wanting the Supreme Court to decide what the Second Amendment really means. “The NRA would lose its loudest fund-raising drum if this question is answered,” says Carl Bogus, a leading scholar who favors the militia rights view of the amendment.

The pro-gun-control side has also had misgivings about appealing to the Supreme Court. Other cities and states worry that if the Supreme Court upholds the circuit decision, their own efforts to regulate firearms will be in jeopardy. By not appealing, D.C. could have limited the damage to only its law.

“Obviously a lot of factors went into Mayor Fenty’s decision to appeal. He wanted to do what he could to protect the city’s laws,” says Dennis Henigan of the Brady Center to Prevent Gun Violence, a leading gun control strategist. “On the other hand, there have been some changes on the Supreme Court that could affect the outcome.”

Addressing concerns about the nationwide impact of an adverse ruling, Washington, D.C. Attorney General Linda Singer says, “Our obligation is to the residents of the District of Columbia.” She also says, “We have a substantial chance of success on the merits” at the Supreme Court.

Singer indicated the case would not be argued by an outside Supreme Court advocate, but rather a lawyer on her staff, though she did not say which one.

A natural candidate, says Henigan, would be Alan Morrison, the former head of the Public Citizen Litigation Group, who is leaving a Stanford Law School teaching position to join Singer’s staff as a special counsel beginning Sept. 4. “He’s a huge talent,” says Henigan, who also says the city’s solicitor general, Todd Kim, is “a terrific lawyer.”

Morrison, who has argued 16 cases before the Supreme Court, confirms he has been working unofficially on several projects including the gun case recently.

DODGING THE BULLET

With the Roberts Court’s increasingly sharp right turn last term, it might seem that the outcome of the case is predictable: a victory for the pro-gun forces and the individual rights view.

But things aren’t that clear-cut, says Bogus, the Second Amendment scholar and a professor at Roger Williams University’s law school. “It does not fall out clearly on the liberal-conservative divide,” he says, noting that some conservative legal scholars such as Robert Bork oppose the individual rights view, while some liberals like Laurence Tribe back it.

The justices themselves have said remarkably little about the Second Amendment through the years, though at least two of them — Antonin Scalia and Clarence Thomas — have said enough to convince most analysts that they would support the pro-gun, individual rights view.

In a 1997 decision, Printz v. United States, Thomas said, almost wistfully, “Perhaps, at some future date, this Court will have the opportunity to determine whether Justice [Joseph] Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’”

For his part, Scalia, in a book 10 years ago, described “my interpretation of the Second Amendment as a guarantee that the federal government will not interfere with the individual’s right to bear arms for self-defense.”

During their confirmation hearings, new Justices Samuel Alito Jr. and John Roberts Jr. were asked about their Second Amendment views.

Senators grilled Alito about his 1996 dissent in United States v. Rybar, during his tenure as a judge on the 3rd U.S. Circuit Court of Appeals. In that decision, Alito said Congress had overstepped its powers under the commerce clause when it passed a ban on machine gun ownership.

But Alito said during his 2006 hearing that his was a “very modest position,” adding that Congress could cure the problem by including in the law some statement or finding that asserted a connection between the ban and interstate commerce.

Roberts, when asked directly about his view of the Second Amendment, demurred on the grounds that the issue could come before him. But he did say in his September 2005 hearing that 1939’s United States v. Miller had “side-stepped the issue” and left the meaning of the Second Amendment “a very open issue.”

Miller marked the last time the Court dealt directly with the meaning of the Second Amendment. It upheld a restriction on sawed-off shotguns, asserting that the laws appeared to have little to do with “a well-regulated militia.”

To Henigan of the Brady Center, Roberts’ stated view of Miller was telling. “When he said that, it was a signal, to my ears” that Roberts would take the individual rights view. Most gun rights advocates also say Miller sidestepped the Second Amendment question, says Henigan, while “nine circuit courts have found that Miller did in fact decide the meaning of the Second Amendment” as a militia right.

Little is known about the other justices’ Second Amendment views. As is often the case, Justice Anthony Kennedy might cast the deciding vote.

No matter what the outcome of the case, even the pro-gun-rights Gura believes it will be far from the last word the Supreme Court has on the subject of the Second Amendment.

“There’s this incredible temptation, which I don’t understand, to think that one Second Amendment case will resolve everything,” says Gura. “It doesn’t work that way.” Even if the Court declares it protects an individual right, the scope of the right will have to be fleshed out, he says. “It will take an eternity to resolve.”

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It’s happening - Washington D.C. to appeal!

BREAKING NEWS — Washington D.C. Will Appeal To Keep The City’s Gun Ban!

As many know, the 30-year gun ban in the District of Columbia was overturned two months ago by a U.S. Court of Appeals. Just yesterday (July 15) on “Tom Gresham’s Gun Talk,” I interviewed Alan Gottlieb, founder of the Second Amendment Foundation, about this decision, and we speculated on whether D.C. mayor Adrian M. Fenty would appeal the case to the U.S. Supreme Court.

Today, Fenty said, “We have made the determination that this law can and should be defended.”

WHAT’S AT STAKE

This case hinges on whether the Second Amendment to the U.S. Constitution applies to people or to governments. In a twisted interpretation, several lower courts have ruled that the Second 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”) is the ONLY amendment which does not spell out rights guaranteed to people. For some reason, these courts have decided that the founding fathers, having just fought a terrible war of independence from a strong central government, wanted to guarantee that only the government had a right to have guns. Go figure.

When the Fifth Circuit in New Orleans stated (in the Emerson case) several years ago that the Second Amendment was an individual right, it stirred up a hornet’s nest. Following that, the U.S. Justice Department under John Ashcroft adopted the position that the Second Amendment was an individual right.

This all came on the heels of 20 years of law journal articles which supported the individual right position, and even famed constitutional scholar Lawrence Tribe changed his book on constitutional law to reflect the current thinking — that the Second Amendment guarantees an individual right to firearms.

Now, the D.C. Court of Appeals has ruled in favor of the individual right position, putting it in conflict with other circuit courts — a perfect setup for this case to be heard by SCOTUS.

This is high stakes poker, friends. The Supremes could rule that individuals have absolutely no right to firearms. It could go the other way. Or, as some think most likely, it will rule to uphold the lower court decision (or refuse to take the case, letting that decision stand), and leave us with a better-but-uncertain outcome. Why? Because the D.C. court ruled that while the District’s gun ban was unconstitutional because it was a total ban, that some gun control laws are legal, as long as they are “reasonable.”

And there lies the challenge.

All sides of the gun rights issue will spare no expense to work on this case. This may be the big one that activists have wanted, and yet have feared.

You can bet we’ll be talking about it on “Tom Gresham’s Gun Talk” in the coming weeks, and we’ll keep you up to date.

Keep your powder dry!

Tom Gresham

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