The D.C. Gun Ban
On the heels of the handful of anti-gun briefs filed in the D.C. gun ban case, which we reported on last issue, pro-freedom advocates filed 47 amicus briefs supporting an individual Right to Keep and Bear Arms ... critical thinking that hammers the case for the D.C. gun ban on ...
Not long after he took the reins as the
founding executive director of the NRA Institute for Legislative
Action (ILA) in 1975, Harlon B. Carter
told his fledgling staff and colleagues: “I want you to find young
men and women—lawyers, constitutional scholars, writers, historians,
professors—who some day will be old and grey and wise, widely published
and highly respected. It will be those individuals—in the future—who
will provide the means to save the Second Amendment.”
Among his criteria was the notion that
these young people would be independent, original thinkers. He wanted
active, aggressive, widely diverse scholarly debate in support of
the individual Right to Keep and Bear Arms. It was what he called
the “forge of intellect.”
Carter was in every way a strategic thinker. He was looking decades
ahead. With the United States Supreme Court weighing the meaning
of the Second Amendment in District of Columbia
v. Heller, the day
he prepared for so long ago has come.
In the 33 years since Carter expressed his bold
vision, his ideal of a self-replicating, talented, diverse, independent—and
sometimes contentious—Second Amendment brain trust has paid off.
The growth of that brain trust was enhanced by the creation of the
NRA Civil Rights Defense Fund, husbanded by prominent Virginia attorney
and NRA Board member George Knight. And it has been aided by The
NRA Foundation.
Unfortunately, neither the tenacious Knight nor
the redoubtable Carter lived long enough to see their efforts fully
bear fruit.
But both men would be proud that their legacy has
been carried on by NRA Executive Vice President Wayne LaPierre, whose
considerable influence has been brought to bear—when, for example—then-Attorney
General John Ashcroft issued a May 2001 position letter to NRA sharply
affirming the Second Amendment as an individual right. This was a
total reversal of Department of Justice policy under the Clinton
administration, which said no such right existed.
Carter’s initial efforts gathered a small community
of intellectual activists who, in turn, attracted like-minded individuals
who then became magnets for yet more support for research and legal
preparation on the Second Amendment. This now large community has
created a remarkable record unrivaled by any effort of the anti-Second
Amendment movement.
The power of that record—generated over years—was
first seen in United States v. Emerson, which at the trial level
produced a stunning April 1999 decision by U.S. District Court Judge
Sam Cummings (Northern District of Texas) clarifying the Second Amendment
as an individual right. Judge Cummings’ decision was, in itself,
a learned treatise on the Right to Keep and Bear Arms.
In October 2001, the U.S. Fifth Circuit Court in
New Orleans upheld Judge Cummings’ ruling and elaborated that, “All
of the evidence indicates that the Second Amendment, like other parts
of the Bill of Rights, applies to and protects individual Americans.”
Then in August 2004, with Chris W. Cox at the helm
of ILA, the U.S. Justice Department issued a lengthy white paper
on the Second Amendment demonstrating the individual nature of the
right.
If all of this enraged the gun-ban crowd, the D.C.
Appeals Court decision in the Heller case last year was devastating
to their side. Originally known as Parker v. The District of Columbia,
the challenge to the District’s 1976 gun ban was filed on behalf
of six D.C. residents in February 2003, but was dismissed by U.S.
District Court Judge Emmet G. Sullivan in March 2004.
On appeal, after nearly four years in the courts,
that decision was reversed in a dramatic decision declaring the D.C.
gun law unconstitutional as violating the Second Amendment. The name
change for the case came when the appeals court recognized the standing
of a single plaintiff from the original six—Dick Heller, a security
guard who had attempted to register a handgun and was refused. (D.C.’s
1976 handgun ban had been accomplished by outlawing compliance with
the federal city’s existing registration law.)
Victory at the Court of Appeals came about through
the work of two individuals—Alan Gura, the Washington attorney
who argued and structured the case; and Cato Institute fellow and attorney
Robert Levy, who funded and co-authored the legal efforts.
In its March 2007, 58-page, 2-to-1 decision striking
down the major elements of the D.C. gun control laws as unconstitutional,
Appeals Court Judge Laurence Silberman wrote that, “The phrase
‘the right of the people’ ... leads us to conclude that
the right in question is individual.” Further his court determined: “The
Bill of Rights was almost entirely a declaration of individual rights,
and the Second Amendment’s inclusion there strongly indicates
that it, too, was intended to protect personal liberty.” This
was the first time a federal court had specifically declared a gun
control law unconstitutional as violating the individual Second Amendment
right.
The District of Columbia appealed the finding that its gun ban was
unconstitutional to the Supreme Court. Gura and Levy also asked it
to be heard. The high court agreed in November 2007, and a decision
is expected sometime in June.
Attorney Gura’s respondent’s brief before the Supreme
Court presents a lengthy overview of the history of the Second Amendment. Further,
it effectively rips apart arguments by the District of Columbia in support of
the city ban. Gura and Levy are joined before the U.S. Supreme Court by 47 amicus (friend-of-the-court)
briefs filed asking the high court to uphold the landmark U.S. Court of Appeals
decision—both recognizing the Second Amendment as a fundamental individual
right and throwing out the District’s draconian gun ban.
Totaling over 1,000 pages, the pro-Second Amendment briefs
collectively present the best thoughts, best reading, ever assembled on the Right
to Keep and Bear Arms.
The briefs can be found online at www.nraila.org/heller.
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