The Case That Almost Wasn’t
People don’t realize that the pro-rights and anti-rights lobbies were against bringing a Second Amendment case to the U.S. Supreme Court. There was just too much to lose to risk a win.
Pressure was brought to bear on D.C. mayor Fenty’s office to not appeal the ruling that voided the District’s draconian gun ban -- on Second Amendment, individual-rights grounds. The case had potential to permanently overturn the ban, and improve the status of other challenges to denials of firearms rights around the country.
But in the final analysis, D.C.’s gun ban was history anyway if they didn’t appeal, because the Circuit Court’s ruling would stand, D.C. would endure a hard slap to the face, and the government would relinquish the iron grip it had placed on people’s rights since 1976 -- a prospect government doesn’t generally take kindly to. And they had their bruised egos to think about too.
For their part, the National Rifle Association did everything it could to prevent the case from going all the way. Their team of lawyers argued with everyone that it was a bad idea. Even though the case looked good on some grounds the Court was not a reliable pro-gun-rights Bench, or even a strong constitutional Bench.
What about the Kelo decision? Wasn’t everyone stunned that private property rights fell to a city’s desire for tax revenue, and the Fourth Amendment was found to provide no protection for a person’s home?
What about McCain-Feingold campaign finance reform? Didn’t the Court leave everyone stunned to learn that the Constitution somehow didn’t allow you to mention the names of candidates in a broadcast within 60 days of an election, unless you were an authorized pseudo-agent of government? Can we tolerate that kind of risk with our Second Amendment rights?
The NRA went so far as to introduce a bill and drum up support in Congress for a legislated repeal of the D.C. gun ban, which would have made the Supreme Court challenge moot and derail it entirely. They came close too, with impassioned speeches on the floor and a groundswell of support.
In the end though, the effort to stop the Court challenge through congressional action ground to a halt, in a drama as complex and stinking as any sausage maker has ever produced.
The case moved forward thanks to the Herculean efforts of one man, confirming the oft-cited wisdom that politics and society in general move forward based on the dedicated efforts of a small number of individuals. That man was author, scholar and attorney Robert Levy.
A senior fellow at the Cato Institute, Levy financed the case out of his own pocket, hired attorney Alan Gura to lead the charge and served as co-counsel. Cato has been sometimes wrongly identified as the sponsor behind the case, but it’s just coincident that that fine organization is among Levy’s long list of attributes. The Institute generally agrees with what Levy is doing, but is not a direct party to the case.
Levy reasoned that the time could not be better for a long-overdue challenge to some gun ban somewhere, on Second Amendment grounds. With four strongly principled conservatives seated, and tolerance among the others for civil rights at some level, a very narrow explicit exploration of what the Second Amendment was originally intended to mean had the best chance it has had in, well, a really long time, maybe in forever. The scholarship on that meaning is about as clear as a thing can get, and the balderdash invented to denounce it grew louder daily.
While it’s true the Court has never definitively said the Second Amendment protects and individual right, it’s also true they have never said the First Amendment protects an individual right to own a pen. Because they never had to. It was just too basic, to presumed to merit voice. Of course you had a right to have a pen, or a gun, at least in this country. The question has always been, did you exercise that right in the right way.
Supreme Court Gun Cases, after six years of research with two of the top 2A attorneys in the country, conclusively showed that the Supreme Court has recognized an individual right to arms consistently for two hundred years. Can you use the shotgun you travel with for safety to defend your cow from thieves when you get back home (1895)? Of course. Can a kangaroo trial in Japan remove your right to arms (2005)? Of course not. Can the government disarm a felon? Yes.
The 95 prior gun cases all reach that type of conclusion -- without ever specifically saying you have the right in the first place. It’s that flat-out statement -- and the accumulating hoplophobic detritus to the contrary -- that the Heller case finally addresses at last. If the antis had not created such well publicized baloney since the 1960s, the so-called “question” might still not have been addressed. And gun ownership would continue as it has since before the country’s founding.
In that sense, this case cannot establish the right to keep and bear. That right is firmly established, with two centuries of backup. Think about it -- you don’t have to enlist in the National Guard to walk into a gun store, right? All the Court could do, really, is reverse all that extremely well-established precedent.
It wouldn’t even be necessary if the anti-rights activists and their sympathizers in the media hadn’t been so successful in fabricating, in recent decades, this idea that one right in the Bill of Rights doesn’t protect people, it protects government, or people as a collective something or other. I know, that sounds absurd, and it is.
But after banging away long enough and finding cool ways to demean and denigrate the cherished American right to keep and bear arms, it began to hold sway. It began to erode what was previously a deeply held, fundamental right represented by, for example, twelve pages of guns in the Sears Roebuck mail order catalog, and every hardware store in America.
The Parker case in the D.C. Circuit provided that opportunity, and through intricate machinations evolved into the Heller case that made it through the quagmire and onto the High Court’s schedule. Mayor Fenty’s government, in requesting a stay of the Circuit’s destruction of their cherished gun ban while they developed their appeal, was sternly warned that asking for such a stay, if they did not actually file an appeal, would be taken as a really bad faith abuse. Such a warning was almost unheard of, but any agency that could so blithely and totally deny a civil right for so long might just need such a wake-up call.
Despite school-taught principles that the Supreme Court is a court of laws not men, men who know know better. The Court is and has always been a function of who sits on the Bench. Despite any idealistic desire to believe anything else -- the people on a court determine its direction, and should be the most simple and basic assumption. Where this case will head is now a game of wait and see.
Read more: This Is The 96th Gun Case, Not The First
Tags: D.C. v. Heller, Supreme Court
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