By James O.E. Norell, Contributing Editor
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.
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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