Saturday, March 22, 2008

Some Thoughts On D.C. v Heller

In the two hundred plus years that the Bill of Rights has been in existence, never once has the Supreme Court of the United States heard arguments on the intent of the second amendment.

Is it just me, or does that fact raise questions for you as well? Permit me to share the thoughts that ran through my head as I contemplated that fact. First off, why did it take so long for a case questioning the intent of the second amendment to be brought before the Supreme Court? Could it be that at one time the people of this country actually understood the intent and didn't need an explanation? Or could it be that those whose primary goal is the eventual disarmament of the American public have waited until they have a Supreme Court that is more likely to deliver a ruling based not on the actual intent, but their own personal beliefs? These are questions that all should be asking themselves as the Supreme Court deliberates on the case of D.C. v Heller.

In the case of D.C. v Heller the Supreme Court will finally have to rule on the intent of the second amendment. The case of D.C. v Heller involves a Mr. Dick Heller who wanted to keep a handgun in his home. He attempted to register it but was turned down because all handguns are banned in the District of Columbia. Heller took the case to court on the grounds that it was a second amendment right that he be allowed to own a handgun. The D.C. Circuit Court ruled in his favor and the case was appealed.

It is not the position of Mr. Heller that he be allowed to carry a handgun outside his home at will, merely that he has the right to have one inside his home which is readily accessible for home defense. His claim is that the second amendment protects that right.

On the other hand, the lawyers for the District of Columbia are claiming that the second amendment does not guarantee that right, that the right to keep and bear arms is tied inexorably to the formation and maintenance of a militia. It is now the Supreme Courts turn to settle this issue once and for all.

In the initial brief submitted to the Supreme Court, a synopsis of the petition states,

"This petition seeks review of an extraordinary decision by a divided panel of the D.C. Circuit that the District of Columbia’s longstanding law banning handguns but authorizing private possession of rifles and shotguns violates the Second
Amendment. This is the first time in the Nation’s history that a federal appellate court has invoked the Second Amendment to strike down any gun-control law. Absent review by this Court, the District of Columbia—a densely populated urban locality where the violence caused by handguns is well documented—will be unable to enforce a law that its elected officials have sensibly concluded saves lives."

The entire brief can be found here if you are interested in reading it.

The basic argument being heard by the Supreme Court is this, does the second amendment tie the right to gun ownership to the formation of a militia, or is it an individual right that cannot be infringed upon.

On March 18, the Supreme Court heard the arguments from Mr. Walter Dellinger, of O'Melveny & Meyers representing the District of Columbia, Mr. Alan Gura representing Mr. Heller, and with Mr. Paul D. Clement, Solicitor General, acting on behalf of the United States as a non partial amicus curiae.

The entire session can be found at the link below if you wish to read it. I have to warn you, it is 110 pages long, but it contains some very enlightening exchanges between all the parties concerned and the Supreme Court Justices.

Before I continue let me make one thing perfectly clear, I have no legal degree, I do not have a huge staff of legal experts who can research case law with which I can form my arguments.

However in a case of this nature, which is questioning the intent of an amendment contained in the Bill of Rights, which is a part of our Constitution due to being a legally voted on and ratified amendment, it is my opinion, and my opinion alone, that court decisions which occurred after the ratification of the second amendment should have no bearing whatsoever in the formation of a ruling by the Supreme Court.

Allow me to explain. When lawyers argue criminal cases they often use case law as an example to back up their position, saying that a precedent has been set based upon a ruling delivered in a previous case. When a case is being tried in a local court, and a lawyer provides a precedent, it can, and should be, overruled by a precedent set by a higher court, such as a district court, or the Supreme Court.

This case, D.C. v Heller is questioning the intent of the Constitution itself in regards to a legally ratified amendment to that case. Article 6 of the U.S. Constitution states that, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land...” Since the Constitution is the highest law in the land, there is no precedent that can be used to formulate a ruling. The Justices can come to a decision based upon their own opinions or beliefs, but this is what is known as judicial activism. Or they can go to the writings of those who drafted our Constitution and the Bill of Rights for guidance as to their intent. Those are the only two ways that the Justices can come to a decision, and for the sake of all gun owners, let’s hope they use the second method.

As I said, the arguments presented to the Court fill over one hundred pages. For brevities sake I will attempt to provide only the ones that I find most enlightening. I would suggest that if you have the time that you read the entire session for yourselves.

From the moment Mr. Dellinger began to speak on behalf of the District of Columbia, he made it clear he was trying to firmly tie the right to keep and bear arms to the formation and maintenance of the militia.

“The Second Amendment was a direct response to concern over Article I, Section 8 of the Constitution, which gave the new national Congress the surprising, perhaps even the shocking, power to organize, arm, and presumably disarm the State militias. What is at issue this morning is the scope and nature of the individual right protected by the resulting amendment and the first text to consider is the phrase protecting a right to keep and bear arms.”

Mr. Dellinger then continues with the following statement.

“In the debates over the Second Amendment, every person who used the phrase "bear arms" used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase "bearing arms" with, quote, "rendering military service." We know this from the inclusion in his draft of a clause exempting those with religious scruples. His clause says "The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

Mr. Dellinger then attempted to use a precedent set by the Supreme Court when it ruled in U.S. v Miller, that the possession of a sawed off shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

Mr. Dellinger also stated, “I think, as this Court unanimously held in Miller, or at least noted in Miller -- I'll leave aside the debate. The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.”

Eventually Justice Kennedy then cut to the chase and asked, “Well, do you think the clause, the second clause, the operative clause, is related to something other than the militia?” To which Mr. Dellinger then replied, “No.”

A short time later the following exchange between Mr. Dellinger and Justice Ginsburg took place.

“JUSTICE GINSBURG: Mr. Dellinger -


JUSTICE GINSBURG: -- short of that, just to get your position clear, short of reactivating State militias, on your reading does the Second Amendment have any effect today as a restraint on legislation?

MR. DELLINGER: It would, Justice Ginsburg, if the State had a militia and had attributes of the militia contrary to a Federal law. And if it didn't -

JUSTICE GINSBURG: But it doesn't, as far as I know.

MR. DELLINGER: As far as I know, today it doesn't. And I'm not -- and the Respondents make that, that argument that the amendment is without a use. But you don't make up a new use for an amendment whose prohibitions aren't being violated.”

When I read this I was shocked to say the least. Is it the opinion of Mr. Dellinger, and the District of Columbia as well that the second amendment no longer has a use is our nation today?

That firmly established the District of Columbia’s stance, that the right for citizens of this country to own firearms is directly tied to their being a part of a militia, and that since there since there was no longer a militia the second amendment no longer serves a useful purpose. That could set a very frightening precedent if in fact the Court rules in their favor.

The next person to speak to the Justices was Paul D. Clement, acting as amicus curiae. As an impartial participant, he, theoretically, should not take sides. Therefore his opening statement was most encouraging.

“Mr. Chief Justice, and may it please the Court:

The Second Amendment to the Constitution, as its text indicates, guarantees an individual right that does not depend on eligibility for or service in the militia.”

However, as the discussion continued the Justices began to question Mr. Clement on the relationship between our Bill of Rights and the English Bill of Rights. The following statement by Mr. Clements caught my attention.

“But what I was about to say is I think what is highly relevant in considering the threshold question of whether there's an individual right here at all is that the parallel provisions in the English Bill of Rights that were borrowed over included the right to petition and the right to keep and bear arms. Both of those appear with specific parallel references to the people. They are both rights that are given to the people.”

When discussing rights, there are natural rights, those which we are born with, and rights that are granted to us by way of laws. Please correct me if I am wrong about this, but are not the rights defined in the Bill of Rights considered natural rights, and therefore are to be protected by the government, and that they are also considered inalienable rights, that cannot be legislated away? If I am correct in my opinion, the right to keep and bear arms is not something that was given to the people by the government.

Next to present their views to the Justices was Mr. Alan Gura, who represented Mr. Heller.

In the course of questioning by Justice Stevens, the following took place.

“JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be unreasonably infringed"?

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us because we don't know what this unreasonable standard looks like.”

That answer, coming from an attorney that is supposed to be representing the peoples right to keep and bear arms is worrisome. For him to say that there is, as yet, an undefined line that could be considered reasonable infringement is troubling. Does not the second amendment state, “shall not be infringed” It makes no reference to a reasonable infringement, none whatsoever!

Those are just a few of the exchanges that took place that I found extremely enlightening, and troubling at the same time. There are a few other things I would like to cover however before I conclude.

When the D.C. Circuit Court ruled in favor of Mr. Heller, one of the judges, a Judge Henderson said the following in his dissenting view,

“To sum up, there is no dispute that the Constitution, case law and applicable statutes all establish that the District is not a State within the meaning of the Second Amendment. Under United States v Miller, 307 U.S. at 178, the Second Amendment's declaration and guarantee that "the right of the people to keep and bear Arms, shall not be infringed" relates to the Militia of the States only. That the Second Amendment does not apply to the District, then, is, to me, an unavoidable conclusion.”

Is Judge Henderson saying that the District of Columbia is a separate entity from the United States, that the Constitution does not apply to the citizens within the District? I can see how one might come to that conclusion as it appears that the majority of our elected representatives do not understand, nor legislate, according to their Constitutional mandate, but for a judge to come out and openly state it like that is shocking. It could be said then, that the reverse is true as well, that any laws passed within the District of Columbia, including those passed by our Congress DO NOT APPLY to the citizens residing within the remaining fifty states. Just a thought...

At the root of all this is the initial ban of handguns by the District of Columbia. They claim it is in the best interest of the citizens that handguns are banned, as handguns account for a large percentage of the firearm related deaths. It all boils down to the fact that a good percentage of the people are looking to the government, or some other agency for their protection. This is due to the lack of desire of the people to accept responsibility for their own welfare. By their very nature, criminals will not give up their guns. Even if you could ban the production and sale of all guns in the U.S. there would still be a black market which could conceivably provide weapons to those inclined to use them in a criminal act. There just aren't enough law enforcement officers available to station one on every street providing protection for every citizen of this country. The ultimate responsibility for their protection lies with the individual. I would much rather have a shotgun or a pistol by my bedside than a phone pre-programmed to speed dial 911.

Finally I would like to provide a random selection of quotations regarding firearms and/or the militia. These can be read and pondered at your own discretion. It may, however, help you in forming an opinion as to what decision the Supreme Court should come to in the case of D.C. v Heller.

“The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American ... the unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.”
Tench Coxe

“The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”
Cockrum v State

“The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.”
Patrick Henry

“The Constitution shall never be prevent the people of the United States who are peaceable citizens from keeping their own arms.”
Samuel Adams

“We established however some, although not all its [self-government] important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed...”
Thomas Jefferson to John Cartwright

“[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it.”
Richard Henry Lee

"[A]rms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. . . Horrid mischief would ensue were the law-abiding deprived of the use of them." -- Thoughts On Defensive War, 1775
Thomas Paine

And finally, “Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. To secure peace, securely and happiness, the rifle and the pistol are equally indispensable.”
George Washington

Notice that in that last quote, Washington makes reference to both rifles and pistols as being equally indispensable.

We can now only await the ruling of the Supreme Court. Much rests on the outcome of this case, quite possibly the last vestiges of freedom that we have. If the Court rules that there are times, in which local government can declare all firearms they deem as an unnecessary danger to the general population, and therefore can be banned, there is no way to stop them from completely disarming the people of this country. With that thought, I would like to leave you with one last quote by Vladimir Lenin, “One of the basic conditions for the victory of socialism is the arming of workers (Communist) and the disarming of the bourgeoisie (the middle class).

1 comment:

Cashu said...

Beautifully put, Neal. You think right! This final ruling will uphold this right, or set a definitive decision off in the future again, depending on how it is decided. A favorable ruling can either be based on the "well armed militia" argument or on the "individual right to own and bear" argument.

As Dr. Edwin Vieira so eloquently puts it in his article of March 15, "Is the D.C. Gun Case Off Target?" found at

we must hope the Supremes base their ruling on the "well armed militia" argument, to set it to rest once and for all - with a favorable ruling, of course.

Another wonderful, easy to read commentary, Neal. Thanks. I sent your commentary on to a couple dozen people who think right as well...