Friday, February 8, 2008

The Case of a Generation

On March 18, 2008 the Supreme Court will hear the Case of a Generation- District of Columbia v. Heller. But few people know that this case is not only about owning a firearm. This case is apparently about Women's Rights, Epidemics, Gay and Lesbian Rights, the strength of our Military, and a Vice President defying the President's Administration and the Justice Department, and yet, the ACLU is not involved.

This session, the Supreme Court of the United States (SCOTUS) will decide perhaps the most important and culturally divisive case in a generation. Not since Roe, has the Court ruled on a matter that will galvanize one side or both sides of the political aisle. The case in question will define our civil rights. The case in question will determine the ultimate meaning of part of the Bill of Rights. The case will center on what the Founders and Framers really meant in 1789. The case in question is District of Columbia v. Heller (07-270).

District of Columbia v. Heller-For those not familiar with the case, DC v. Heller poses the question of what the Founders meant in 1789 when they wrote the Second Amendment. The question before the Supreme Court is:

"Whether the following provisions – D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 – violate the Second Amendment right of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?"

In other words, "Does the Second Amendment mean that the PEOPLE have the Right to Keep and Bear Arms, or do ONLY those in a Militia have the Right to Keep And Bear Arms."

The Second Amendment says, "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 question has come to the Court because of a suit brought by Mr. Dick Heller of Washington, D.C. Mr. Heller wished to purchase a handgun for personal use to keep in his home. He applied to the District of Columbia to purchase and register the handgun. Mr. Heller has no criminal background and the question of whether Mr. Heller is a law abiding citizen is not before the court. The District of Columbia denied Mr. Heller's request for a permit stating in effect that he was not a law enforcement officer or member of the military and therefore he was not, under D.C. law, allowed to own a handgun.

Mr. Heller, filed suit arguing that his Second Amendment Right to Keep and Bear arms was being violated. The District of Columbia argued that the Second Amendment ONLY applies to members of "a well regulated Militia." The DC Circuit Court ruled in a 2-1 decision that Mr. Heller has the INDIVIDUAL Right to Keep and Bear arms and that the DC Code, is unconstitutional.

The District of Columbia has appealed to the Supreme Court, which decided, late last year (2007) to hear the case.

Surprisingly, or perhaps not, a search of the ACLU website provides no references, notations or responses of any kind related to the case. Thus far the ACLU, who says that their purpose is to defend the Constitution, has been silent on the issue.

Briefs for DC-
January 11, 2008, "Friend of the Court" briefs (Amicus Briefs) were filed with SCOTUS on behalf of the District of Columbia. These "Friends" include American Academy of Pediatrics, American Bar Association, American Public Health Association, et al., Brady Center to Prevent Gun Violence, et al., City of Chicago, Coalition of civil rights groups, D.C. Appleseed Center for Law and Justice, et al., District Attorneys, Former Department of Justice Officials, Historians, Major U.S. cities and the U.S. Conference of Mayors, Members of Congress, NAACP Legal Defense & Educational Fund, National Network to End Domestic Violence, et al., New York and other states, Professors Erwin Chemerinsky and Adam Winkler, Professors of criminal justice, Professors of linguistics, Violence Policy Center and various police chiefs. (Full PDF of Brief linked to each organization or group name).

These briefs, on behalf of the District, all basically say, the Second Amendment does not apply to "the People" but that the Second Amendment, UNLIKE the other first eight amendments, is an outlier. While Amendments One, and Three through Eight refer to individual protections from "the State," and Nine and Ten address state and federal powers, the Second, is an aberration, in that it gives power to the State.

Further, these briefs argue that the Constitution was derived from English and European common law, and now Europe bans guns, so European and English common law must have meant for us to do the same.

The Government of the United States filed a brief (linked here) on January 11, 2008. The US Government (Justice Department and Executive Branch) is asking the court to return the case to the lower court and not to rule on the legality of the DC law but at the same time rule that the Second Amendment protects individual rights. This sounds like governmental double-talk in an election cycle.

Briefs for Heller-
Friday, February 9, 2008, several Amicus Briefs were filed with SCOTUS on behalf of Heller. These groups filed briefs Friday: American Legislative Exchange Council, Association of American Physicians and Surgeons, Buckeye Firearms Foundation, et al., Criminologists, Disabled Veterans for Self-Defense, Foundation for Free Expression,, Grass Roots of South Carolina, Jews for the Preservation of Firearms Ownership, Libertarian National Committee, Major General John D. Altenburg, et al., National Rifle Association, Paragon Foundation, Pink Pistols, Rutherford Institute, Second Amendment Foundation,, Women state legislators and academics, and a majority of the members of the Senate and of the House. (Full PDF of Brief linked to each organization or group name).

The briefs for Heller are very interesting to read and are in some ways, quite remarkable.

The brief from Women State Legislators and Academics argues that owning a firearm is a "Woman's Rights Issue." Women are smaller then men, and not able to defend themselves as well, they say. Therefore, if the DC Law is upheld, and no one can have a gun, there is an unfair advantage to men, and that would violate women's rights. (I am paraphrasing the argument of course).

Major General Altenburg, et al. argues that if the PEOPLE do not have the right to bear arms, it will be more difficult for the military to function. They are that kids being able to shot and learn to shot makes basic training easier. The strength of our military relies on people learning to shoot as kids.

The Association of American Physicians and Surgeons argues point by point with the counter brief from the American Academy of Pediatricians. The Pediatricians say gun violence is a medical epidemic, the AAPS says the DC Gun Ban has NOT stopped gun violence in DC but has made it worse.

Two of the briefs stand out from the rest- one just because it is, in my mind, rather unusual and the other because it may be groundbreaking.

Pink Pistols-
First is the brief from "Pink Pistols." On seeing the name on the list of Amicus Briefs, I immediately assumed that Pink Pistols was a women's shooting organization. I was wrong.

"Pink Pistols" is a Shooting Organization for People who are Gay, Lesbian or Bisexual. To them, DC v. Heller is a case about "Gay Rights." The argument, which actually has some merit, is that if the Court rules that only the Militia can have guns, then Gays would be banned from having guns because Gays are not welcome in the Military. This is an interesting point because they extend the exclusion to cover all groups who are not eligible to serve in the military, including those with asthma, those with flat feet, the disabled, those over military age, etc. In other words, a person that is over 65 would not be able to have a gun, because they are not eligible to be in "the militia" as would a person that is "Class 4F'" (medically unable to serve).

The Majority of Congress-
The other brief that was remarkable came from 55 US Senators, 250 US Representatives and "The President of the Senate." One of the remarkable things in this brief was that it was signed by "The President of the Senate," Vice President Cheney and this brief goes against the view of the Executive Branch of the government. SCOTUSBLOG.Com states "[i]t is rare, if not unprecedented, for the Vice President to take a position directly contrary to the stance taken by the Justice Department."

This brief was bipartisan. Members of both parties signed on, even though the majority of signers are Republican. However, to reach a majority of a Congress controlled by the Democrats, you must have Democrat support.

The brief details a history of legislation from the Congress, and that the Congress has maintained through various statements and legislation that the Right to Keep and Bear arms is a Right of the People and not a Power of the State. The Congress states, this is what we, the Congress meant when the amendment was written; the right is a personal right not the right of a militia.

The brief urges the Court to reject DC's arguments and uphold the lower courts ruling that the Law banning handgun ownership is unconstitutional categorically.

Remember in November-
The decision of the Supreme Court in this case will be a landmark in the political landscape. This case will be the "Roe v Wade" of the twenty-first century. If the Court rules for DC, the "Right" will be "up at arms," so to speak. There will be cries for new Justices and a new litmus test for candidates as well as for the Supreme Court.

Should the Supreme Court side with Heller, the "Left" will be equally frustrated, and cries will go out for new Justices and a new Litmus test.

Most importantly though is the stance of the Congress. Although 250 members of the House and 55 members of the Senate are in favor of INDIVIDUAL RIGHTS, 45 Senators and 185 Representatives DO NOT BELIEVE that the Second Amendment gives the PEOPLE the right to Keep and Bear Arms.

45 Senators and 185 Representatives refused to sign the brief in favor of the PEOPLES rights. One of those "Representatives" is from my district- Dennis Moore (D-KS3). I have decided that my time, my effort and my money will go to fight for his defeat. I will remember in November.

It is incumbent upon every person, who believes that Government exists by the "consent of the Governed," who believes that our rights- including that right of Self Defense- are given by God, who believes that the Founders meant, the Right of the People to Keep and Bear Arms, to call for the defeat and removal from office, those who seek to repeal our rights.

It is incumbent upon those who believe in our Constitution to work to defeat of those who would deny us our Constitutional Rights.

Download a copy of the Majority Brief. Make sure your Senator or Congressman is on the list of signers.

If they are not on the list, if they did not sign to protect your Rights-

Remember in November.

Update: Lt. Col. North provides his comentary on Heller.

Click Here for More from The Carden Chronicles on DC v. Heller.


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