The Second Amendment and Gun Control : The Court Has Ruled (Plus)

The Second Amendment provides that: “A well-regulated militia as "being necessary to the security of a free State" and prohibits infringement of "the right of the people to keep and bear arms." The real division on this issue is, and always has been, less legal than cultural: it involves not the founding era or the constitutional text, but the sharp and emphatically contemporary divide over the role and the meaning of firearms, and the self-held silent belief in this society that we have the right to protect ourselves against our fellow man, and yes, against our own government. The unyielding force and sentiment against unreasonable and/or increasing gun regulation is part of this nation’s nation fabric and psyche. To deny that fact, to fail to understand that fact only adds to the emotional content and political collisions with every new legislative enactment.

No Government lasts forever. No Constitution is eternal. There comes a moment in many lives where one must protect him or herself, to kill or be killed. There comes a time, as history has provided more than ample example when the citizens of a nation must take up arms as “citizen soldiers” in Revolution. Without the right “”To Keep and Bear Arms” we become victims and slaves. This I shall never accept.

I have kept this file as if it were a stream of consciousness presentation awaiting the final disposition of this matter by the Court. Let us proceed.

Nearly seven decades ago, the Supreme Court analyzed the meaning of these words: “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.” Those are the words of the Second Amendment, written into the Constitution on Dec.15, 1791. The Court has not examined the meaning of those words since the ruling in U.S. v. Miller, on May 15, 1939. The debate over what the Court meant — and over what those words mean — has continued with growing intensity. Until now, the Court had refused repeatedly to resolve the constitutional debate. The case of District of Columbia v. Heller (07-290) is a pure, and outwardly simple, test of the Second Amendment — although there are complications that might (will) limit the scope of any final decision.

“Guns” - a single word, but one that is powerfully packed with controversy, and with social and political meaning. In America’s culture wars, that word is as capable of stirring up emotions as is the word “abortion” or the simple phrase “gay rights.” Americans have been arguing about access to guns since before they had a national government and a federal Constitution. And their English forebears were at odds over that issue even before the reign of Charles II in the middle 1600s. It is part of the American heritage, and of the American national psyche, to be agitated over guns.

Harvard law professor Mark Tushnet has written that “the fights over the Second Amendment are really about something else…about * how we understand ourselves * as Americans.” The Supreme Court will not even attempt in District of Columbia v. Heller to supply such an understanding. At most, it will provide only a legal - a constitutional - definition. It has the option of ruling on a grand scale, or on a quite modest one. Whatever it may be able to do — and however divided a final decision might be — that review could shape in a significant way what it means to talk of, or legislate about, “gun rights.”

The 1939 case of U.S. v. Miller was about a double-barrel, 12-gauge shotgun. carried from Claremore, Okla., to Siloam Springs, Ark., by Jack Miller and Frank Layton, apparently in violation of a federal gun registration law. Miller and Layton defended themselves by claiming a Second Amendment right to have the gun. They lost their case in a unanimous Supreme Court decision.

The exact meaning of that ruling is still very much in dispute. The new case of District of Columbia v. Heller is about a handgun, a pistol that Dick Anthony Heller would like to keep in his home in Washington, D.C.

He tried to register it with the city, but was turned down — the city has banned the registration, and thus the possession, of all privately owned handguns.

Heller, like Jack Miller and Frank Layton, argues that he has a Second Amendment right to have the gun in his home for self-defense; he says he lives in a high-crime neighborhood. Heller, so far, is winning.

The D.C. Circuit Court, dividing 2-1, ruled last March 9 that Dick Heller has a Second Amendment right — an individual, personal right — to have that gun, and to keep it at home, loaded and unlocked. “Once it is determined that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them,” the Circuit Court ruled — the first time that any federal appeals court has relied upon the Second Amendment and an “individual right” theory to strike down any law that seeks to control guns. “We conclude,” The Circuit Court majority said, “that the Second Amendment protects an individual right to keep and bear arms.”

The Court ruled that only Heller, among the six local residents who challenged the handgun ban, had a sufficiently strong interest in the case that he had “standing” to sue.

Washington’s Mayor Adrian M. Fenty and the city government have told the Supreme Court that the city has been regulating handguns “and other dangerous weapons” since 1858. Eighteen months after the nation’s capital city was freed in 1975 to make its own laws (rather than have Congress legislate for it), the City Council passed the gun law that is now before the Supreme Court.

That 1976 law, forbidding registration of any gun “originally designed to be fired by use of a single hand,” was the result of what city officials now call “a targeted effort to prevent needless death and injury from that class of weapons.”

Handguns, city officials believed then and now, “pose a particularly serious threat to public safety” — both because of the potential for accidents, especially involving children, and the potential for rampant use by criminals. Just as an aside; the crimes statistics of Washington would quickly undermine the effectiveness of the law and the entire premise of the argument.

The Matter In Full:

http://www.scotuswiki.com/index.php?title=DC_v._Heller

At Controversy in the Case of DC v. Heller was:

Appellants, six residents of the District, challenge D.C.Code § 7-2502.02(a)(4), which generally bars the registration of handguns (with an exception for retired D.C. police officers); D.C. Code § 22-4504, which prohibits carrying a pistol without a license, insofar as that provision would prevent a registrant from moving a gun from one room to another within his or her home; and D.C. Code § 7-2507.02, requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. Shelly Parker, Tracey Ambeau, Tom G. Palmer, and George Lyon want to possess handguns in their respective homes for self-defense. Gillian St. Lawrence owns a registered shotgun, but wishes to keep it assembled and unhindered by a trigger lock or similar device. Finally, Dick Heller, who is a District of Columbia special police officer permitted to carry a handgun on duty as a guard at the Federal Judicial Center, wishes to possess one at his home. Heller applied for and was denied a registration certificate to own a handgun. The District, in refusing his request, explicitly relied on D.C. Code § 7-2502.02(a)(4).

Essentially, the appellants claim a right to possess what they describe as “functional firearms,” by which they mean ones that could be “readily accessible to be used effectively when necessary” for self-defense in the home. They are not asserting a right to carry such weapons outside their homes. Nor are they challenging the District’s authority per se to require the registration of firearms.

Plaintiffs Include Crime Victim, Security Guard

The six people who initially challenged the D.C. handgun ban in court are not that single-minded. The group was put together by two local lawyers who carefully screened potential plaintiffs, with an eye toward ensuring that the challengers would include African-Americans and women.

One of them is Shelly Parker, a former emergency room nurse who now is a computer software designer.

"What I want is simply to be able to own a handgun in my home, in the confines of the walls of my home — nothing else," Parker says.

Parker's gun awakening, as it were, came after she had successfully organized homeowners in her neighborhood to report drug activity to police. Then one night, a 7-foot-2-inch-tall drug dealer who lived with his mother on the block tried to break into her house and threatened to kill her. She chased him away by setting off the alarm, and when the police came, one of the officers told her to "get a gun."

Handguns, however, are illegal in the District of Columbia, so Parker signed up to challenge the law in court. For technical reasons, Parker and four other plaintiffs were stripped from the suit, leaving security guard Dick Heller as the one challenger. He could carry a revolver on his job but had to store it in a vault because the D.C. law bans handguns at home.

D.C. Handgun Ban Allows Other Firearms

The District defends its law, arguing that handguns are responsible for 81 percent of the city's murders and most of the city's armed assaults, not to mention the danger handguns pose to children and to police called into domestic violence situations.

(Ed.) This has been the typical approach in such cases for decades; arguments based upon social ills as opposed to this nation doing anything meaningful to address those ills that end in violence, be it by gunfire, knife wound, nylon stocking strangulation, baseball bat or whatever means some enraged, allegedly wronged individual chooses to dispatch his/her antagonist, or in matters of domestic passion, drunken or drugged rage or just plain criminality and theft, or mental illness. I have never known my Smith Wesson to wake up in the morning on the wrong side of the bed and march itself out the door to perpetrate a massacre in the streets…people kill people.

The District contends that its residents are free to have other firearms at home for self-protection, as long as they are kept trigger-locked or unassembled.

A federal appeals court rejected that reading of the law and became the first federal court in modern times to invalidate a gun regulation as an unconstitutional restriction on the right to keep and bear arms. The District appealed to the Supreme Court, and on Tuesday, the Justices hear arguments in the case.

At the heart of the debate is what the Founding Fathers meant in enacting the Second Amendment. The District, pointing to the opening words of the amendment — "A well regulated Militia being necessary to the security of a free State"— argues that the whole purpose of the amendment was to ensure that the new states would be able to maintain their militias without interference from the federal government.

Interpreting the Founding Fathers

Representing the District, former Solicitor General Walter Dellinger on Tuesday will tell the Justices that in 1791, there was no reason to worry about Congress regulating the private possession of guns. At the time, the dictionary defined "arms" as military equipment, and Congressional regulation of guns simply wasn't an issue.

What had people worried, Dellinger says, was Article I of the Constitution, which, as he observes, "gave the new distant national government" the authority to provide for the arming, maintaining and disarming of state militias.

"That's what was shocking and caused the movement for the Second Amendment," he says, adding, "The discussion by the Founding Fathers about the Second Amendment, all of those discussions are about the militia."

Lawyer Alan Gura, representing gun-rights advocates, counters with a different historical view, pointing out that before the American Revolution; the English king had tried to disarm the colonists.

The Founding Fathers were quite upset about that, he says, contending that "it was well understood that there was a right in English law to keep private arms for self-defense, for the defense of one's home and one's family. And this right was violated, and Americans wanted to protect it."

Parsing the Second Amendment, Gura says "arms" means any weapon of self defense, and "keep" means keep as an individual. That the right of the people to keep and bear arms shall not be infringed, he says, "simply means the right of the people, you and I, just like the right of the people in the First Amendment."

Dellinger replies that this interpretation simply "reads out half the words in the amendment." A well regulated militia being necessary to the security of a free state, he says, "is the context in which the people get to keep and bear arms."

Dellinger adds that the Second Amendment left regulation of private gun ownership up to the states so that they could decide for themselves whether they wanted it for the militia or whether it was better to store militia weapons in strategically placed depots.

Dellinger maintains that the District has struck a reasonable balance on guns, since the statute "permits people to have a whole houseful of rifles and shotguns, prohibits the use of concealable handguns that can be taken into subways and into schools, and is adopted by the District of Columbia, which has national security responsibilities."

That version of the law is simply nonsense, Gura says. Not only are trigger-locked and unloaded guns unusable in an emergency, but also, the District's argument is akin to arguing that the First Amendment allows certain books to be banned because other books are available.

"If something is protected by the Constitution," he says, "it is not up to a legislative majority to ban it."

Bush Administration Breaks from Long-Held Stance

The Bush administration has enraged gun-rights activists by trying to divide the baby, as it were. Breaking with the position taken for decades by the Justice Department, the Bush Justice Department has said there is an individual right to keep and bear arms, but the Justice Department also argues that reasonable restrictions of that right are permitted to protect public safety, restrictions far more severe than those advocated by gun-rights supporters.

Indeed, in a brief OK'd by the White House, the Justice Department contends that if the standard advocated by Gura and the lower court in this case were to prevail, it would cast a cloud of doubt over existing federal laws banning machine guns and assault weapons.

Tuesday's case has aroused so much interest and controversy that a near record 67 friend-of-the-court briefs have been filed. Perhaps the most high-profile of these is a brief siding with gun -rights advocates and signed by a majority of the members of the House and Senate. Also signing that brief is Vice President Dick Cheney, who is taking a position on reasonable regulation of gun ownership that is at odds with the president's.

Cheney says he is acting not in his role as part of the Executive Branch, but as president of the Senate. Administration sources say Cheney did not advise the White House Counsel's office or the Justice Department before signing the brief. The White House press office refused to say whether Cheney advised the president in advance.

In any event, the last word will belong to the Justices.

Early Analysis

The federal appeals courts are split on what the Second Amendment means. Moreover, in an unusual twist, the District of Columbia’s own highest court, the local Court of Appeals, disagrees with the D.C. Circuit on the question, so the conflict is vivid in Washington.

One other federal appeals court, the Fifth Circuit Court, has read the Second Amendment to embrace a private, individual right, but it did not go ahead and use that theory to strike down a federal gun control law at issue there. All other federal appeals courts have taken a turn at analyzing the Amendment, and all but one (which did not take a conclusive position) have said that the Amendment only protects the right to have a gun when serving in a state militia or a modern equivalent — such as the National Guard.

It is a somewhat curious fact of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

Thus, the jurisprudence of the Second Amendment is almost wholly confined to laws enacted by the federal government. The District of Columbia is something of a governmental curiosity, and that could complicate the Supreme Court’s review of its handgun ban. While the District is considered by Congress to be a state for some purposes, that is not universally the situation. In the Heller case, the D.C. Circuit ruled that the Second Amendment does apply to the District because the city “is a Federal District, ultimately controlled by Congress…The Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District.”

That part of the ruling raises these potential issues: First, is the District, as the seat of the national government, not a “free State” of the kind mentioned in the Second Amendment so the Amendment’s guarantee of access to arms for a state “militia” does not even apply; second, is it a state like all of the regular states and thus, because of the 1886 decision in the Presser case, the Amendment does not apply; and, third, is it a unique federal enclave that — like the rest of the federal government — does have to obey the Second Amendment?

Despite this curious view of the applicability of Second Amendment that divides the lower courts, Counsel will argue that, whatever that meaning turns out to be, it should not outlaw the city’s handgun ban. The challengers to the local law certainly do not want the questions raised; they need to rely on the Amendment to win. Still, the questions are presumably within the Court’s reach if it wants to examine them, because they were addressed in the lower court. Thus, should the Justices find that the Amendment does not even apply, then it would never get to a ruling on what the Second Amendment covers, or on the constitutionality of the city’s handgun ban.

The city also does not contest Dick Heller’s right to have sued over the pistol ban. But that is open to the Court to question, if it wishes.

There is another facet of the case that could produce a decision without a final declaration on what the Second Amendment means. The Court could say that, whatever the outer limits of authority are allowed by the Amendment, it does not forbid “reasonable regulation” of gun possession. That could lead it to focus solely on whether the flat ban on handguns was “reasonable.” That might settle nothing on the issue of whether there is an individual right guaranteed by the Amendment.

And there is still a further complication that could confront the Court: the two sides do not agree on what question should be before the Court on the Second Amendment. The city phrased it as a test of its power under the Amendment to ban private possession of handguns “while allowing possession of rifles and shotguns.” That is, comparatively, a narrow question, since it suggests that the city had no intention of totally disarming its citizens.

Because the challengers interpret the D.C. gun law as broader than a ban only on pistols, they have suggested that the Court address a broader question — whether the Second Amendment guarantees a right to have “functional firearms, including handguns.” The city law, they note, requires that any gun being kept at home — including a rifle or shotgun — must be kept disassembled or have a lock on the trigger. The law, they argue, is “a complete prohibition of the possession of all functional firearms” at home. This would take the Court more deeply into the intricacies of the local law; that, of course, may not be a deterrent to the Court’s review. It depends upon how basic the Court wants its inquiry to be.

The cross-appeal by the local residents raising the “standing” issue grew out of a controversy that has continued for more than a decade in the D.C. Circuit. It involves Circuit precedent that limits the right to bring a lawsuit to challenge a law, requiring proof that the challenger faces a specific, personal threat of being prosecuted. This, the residents’ appeal argues, allows government officials to avoid review of a potentially invalid law simply by not issuing threats of prosecution. The key precedents, perhaps by coincidence, have come in earlier attempts to challenge federal or D.C. gun control laws — including, as it happens, an earlier, failed attempt to challenge the same handgun ban at issue now.

As a result of the “standing” doctrine against pre-enforcement challenges, the residents’ appeal asserted, officials can talk broadly about how rigorously they will enforce a law, and yet avert a challenge simply by not arresting or actually prosecuting those who seek to sue. That puts a “large class of cases” beyond judicial review, the appeal argued. “In demanding individualized threats of prosecution, a pre-enforcement challenge is virtually always too early,” it said.

The city opposed Supreme Court review of this issue. As recently as January 2006, the Supreme Court refused to review one of the D.C. Circuit’s precedents on the “standing” issue in a case involving the same law at issue now.

Other filings (And this prediction held up)

The Heller case almost certainly will draw a wide array of amicus filings. At this stage, the list is short. Four states, however, have sought to make the stakes seem higher even though the Second Amendment does not now apply to limit state and local gun control laws. The D.C. Circuit decision, those states argued, “has the potential to influence judicial interpretation of both the Second Amendment and state constitutional provisions.” They urged the Court to reject the appeals court’s rationale, and to reaffirm the “states’ traditional authority to protect public safety through the exercise of the police power to restrict access to certain types of firearms.”

A group of children’s rights organizations supported the city’s appeal, arguing that handguns pose a particular threat to “children’s physical and mental health.” Gun-related injuries, those groups contended, have a major impact on the nation’s public health system.

A conservative advocacy group, the American Civil Rights Union, urged the Justices to uphold the ruling against the city’s handgun ban. That group also questioned the city’s claim that the handgun ban has helped control crime.

Earlier today, attorneys for D.C. resident Dick Heller filed this brief in the Supreme Court in District of Columiba v. Heller (07-290), challenging the constitutionality of the District’s firearms restrictions.

Amendment II (the Second Amendment) of the United States Constitution's Bill of Rights declares a well-regulated militia as "being necessary to the security of a free State" and prohibits infringement of "the right of the people to keep and bear arms." The meaning of the Second Amendment is one of the most misunderstood and disputed among the entire Bill of Rights.^[1][2]

One key controversy revolves around who is prohibited from infringement and whether the Second Amendment prohibits individual States from infringing upon this right.^[3] The most recent Supreme Court precedent, from 1875, is that the Second Amendment is only a limit on the power of the federal government, (see United States v. Cruikshank) but some people contend that it extends to state jurisdictions.^[4]

Another major point of contention is whether it protects an individual right to personal firearms^[5] or a collective State militia right.^[6] At present, two of the thirteen federal circuits have adopted an individual rights view. A Second Amendment case is currently under review by the Supreme Court (District of Columbia v. Heller), having been granted certiorari, to resolve this jurisdictional split.^[7] There is also a "modified collective" view that holds the right is protected for individuals to bear arms based on their needs while serving in a militia.^[8]

Other points of disagreement include the meaning of the militia clause^[9] and the meaning of infringement, in other words, at what point does reasonable regulation of firearms constitute infringement?^[10][11] All federal courts have found that reasonable firearm regulation is allowable, while an outright firearm ban is currently the subject of Supreme Court review in District of Columbia v. Heller.

District of Columbia v. Heller, No. 07-290, is a case pending before the Supreme Court of the United States. It is an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), a decision in which the United States Court of Appeals for the District of Columbia Circuit became the first federal appeals court in the United States to rule that a firearm ban was an unconstitutional infringement of the Second Amendment to the United States Constitution, and the second to expressly interpret the Second Amendment as protecting an individual right to possess firearms for private use.^[1]

The U.S. Supreme Court heard oral argument in the case on March 18, 2008 and a decision is expected by the end of June^[2].

First Reaction:

Second Amendment Supporters Optimistic After Oral Arguments
By Susan Jones
CNSNews.com Senior Editor
March 19, 2008

(CNSNews.com) - If gun ownership is limited to "state militias," why does the Constitution say "the right of the people," Chief Justice John Roberts asked on Tuesday.

Second Amendment supporters were heartened by Tuesday's oral arguments in District of Columbia v Heller. The case involves a D.C. resident, Dick Anthony Heller, who is challenging the city's 32-year-old ban on individuals possessing handguns.

Most court observers say it looks like the Supreme Court is leaning toward a ruling that will affirm gun ownership as an individual right -- an interpretation that would topple the District of Columbia's ban on individuals possessing handguns.

Justice Anthony Kennedy, often described as the court's "swing vote," said on Tuesday that in his view, "There's a general right to bear arms quite without reference to the militia either way."

Gun control advocates at the Brady Center to Prevent Gun Violence argue that the Second Amendment guarantees the right to possess firearms only in connection with service in a state-regulated militia.

Paul Helmke, the president of the Brady Center, is putting Tuesday's oral arguments in the best possible light: "I am hopeful that their ruling will uphold the right of people in communities like the District to enact common sense gun measures they feel are needed to protect themselves and their families," he said.

Helmke said the oral arguments "demonstrated broad support from all sides for responsible regulations concerning guns."

Second Amendment supporters called the city's defense of its handgun ban "very weak," while attorneys challenging the ban "provide a clear and proper perspective on the meaning of the Second Amendment."

"We were impressed with the depth of questions asked by all of the justices, and we have no doubt that the court has a clear understanding of Second Amendment history, and that 'the people' are all citizens," said Second Amendment Foundation founder Alan Gottlieb.

"While we do not expect the Supreme Court to strike down every gun law and regulation on the books, we anticipate that the court will rule once and for all that the right to keep and bear arms is a fundamental individual civil right, and that gun bans, even on specific types of commonly-owned firearms, do not stand up under even modest scrutiny," Gottlieb added.

The Supreme Court is expected to issue its ruling in June.

CBS/AP) The Supreme Court appeared ready Tuesday to endorse the view that the Second Amendment gives individuals the right to own guns, but was less clear about whether to retain the District of Columbia's ban on handguns.

The justices were aware of the historic nature of their undertaking, engaging in an extended 98-minute session of questions and answers that could yield the first definition of the meaning of the Second Amendment in its 216 years.

A key justice, Anthony Kennedy, left little doubt about his view when he said early in the proceedings that the Second Amendment gives "a general right to bear arms."

Several justices were skeptical that the Constitution, if it gives individuals' gun rights, could allow a complete ban on handguns when, as Chief Justice John Roberts pointed out, those weapons are most suited for protection at home.

"What is reasonable about a ban on possession" of handguns?" Roberts asked at one point.

But Justice Stephen Breyer suggested that the District's public safety concerns could be relevant in evaluating its 32-year-old ban on handguns, perhaps the strictest gun control law in the nation.

"Does that make it unreasonable for a city with a very high crime rate...to say no handguns here?" Breyer said.

Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, supported the individual right, but urged the justices not to decide the other question. Instead, Clement said the court should allow for reasonable restrictions that allow banning certain types of weapons, including existing federal laws.

He did not take a position on the District law. Washington residents are not allowed to own handguns, period, CBS News correspondent Wyatt Andrews reports. And shotguns, which are allowed, are required to be kept unloaded and trigger-locked.

The court has not conclusively interpreted the Second Amendment since its ratification in 1791. The basic issue for the justices is whether the amendment protects an individual's right to own guns or whether that right is somehow tied to service in a state militia.

The amendment reads: "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."

While the arguments raged inside, advocates of gun rights and opponents of gun violence demonstrated outside court Tuesday.

Dozens of protesters mingled with tourists and waved signs saying "Ban the Washington elitists, not our guns" or "The NRA helps criminals and terrorist buy guns."

Members of the Brady Campaign to Prevent Gun Violence chanted "guns kill" as followers of the Second Amendment Sisters and Maryland Shall Issue.Org shouted "more guns, less crime."

A line to get into the court for the historic arguments began forming two days earlier and extended more than a block by early Tuesday.

The high court's first extensive examination of the Second Amendment since 1939 grew out of challenge to the District's ban.

Anise Jenkins, president of a coalition called Stand Up for Democracy in D.C., defended the district's prohibition on handguns.

"We feel our local council knows what we need for a good standard of life and to keep us safe," Jenkins said.

But, Andrews reports that Washington Mayor Adrian Fenty said: "This is a public saftey case. Handguns represent a disproportionate number of crimes in the District of Columbia."

Genie Jennings, a resident of South Perwick, Maine, and national spokeswoman for Second Amendment Sisters, said the law banning handguns in Washington "is denying individuals the right to defend themselves."

Even if the court determines there is an individual right, the justices still will have to decide whether the District's ban can stand and how to evaluate other gun control laws. This issue has caused division within the Bush administration, with Vice President Dick Cheney taking a harder line than the administration's official position at the court.

The local Washington government argues that its law should be allowed to remain in force whether or not the amendment applies to individuals, although it reads the amendment as intended to allow states to have armed forces.

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

Dick Anthony Heller, 65, an armed security guard, sued the District after it rejected his application to keep a handgun at his home for protection. His lawyers say the amendment plainly protects an individual's right.

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.

Given the Court’s strong conservative makeup, it is likely that both a right to own, possess and use a firearm and the government’s right to restrict that ownership, possession will survive the Heller case, says CBS News legal analyst Andrew Cohen. The only thing that remains reasonably unpredictable and mysterious is the language the Court’s majority will use in conjuring up the legal standard that will govern review of gun control legislation.

Chief Justice John Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."

Gun Control vs. Gun Rights

THE ISSUE

The debate over gun ownership is centered on the Second Amendment to the Constitution, which protects "the right of the people to keep and bear arms."

Gun control advocates believe that right does not extend to ownership of military-style firearms that are otherwise known as assault weapons. They point to incidents such as the Columbine high school massacre in April 1999, which resulted in the deaths of 14 students (including the two gunmen) and a teacher, in support of banning assault weapons. They also support measures intended to curb gun-related violence, such as mandatory child safety locks, background checks on those wishing to purchase a gun, limits on the number of guns a person can buy and raising the age limit for gun ownership.

Gun rights groups, led by the National Rifle Association, argue that these and other proposals infringe on the constitutional rights of law-abiding citizens. They maintain that bans on the sale of certain types of weapons have not proved effective in reducing violent crime, and that proposals for stricter background checks at gun shows are designed to eliminate gun shows themselves. Some gun manufacturers have volunteered support for safety locks, but the NRA has criticized safety locks for placing an undue burden on gun manufacturers without a proven benefit to the public.

How It May Affect You

At the forefront of the debate over guns is the assault weapons ban that went into effect in 1994. The ban, which was part of a larger anti-crime bill passed by Congress and signed by President Clinton that year, applies to 19 specific models of semi-automatic firearms and to other guns with assault-weapon features. The ban expired Sept. 13, 2004, and gun rights groups were pressing Congress to allow the ban to lapse. Gun control advocates responded with a massive public relations campaign encouraging voters to tell their elected representatives that Congress should renew the ban.

The issue has become a hot potato in a presidential election year, with President Bush and Sen. John Kerry taking positions designed not to infuriate voters on either side of the debate. Bush said he supports an extension, but gun control advocates accused him of failing to pressure Congress into action. Kerry announced his support for extending the ban, even as his campaign sought to boost the Democratic presidential nominee's credentials as a gun owner and hunter. (Ed.) The Democrats, my party have suffered with their pro-gun control position, and slowly they are inching away to a more “publicly accepted majority” position. The Democratic Party’s platform in 2004 included a plank endorsing the individual-rights view of the Second Amendment. They have felt the sting and the voters rage, because for many this a single issue “value vote”…nothing else matters.

Republican congressional leaders say the ban was allowed to lapse because gun control advocates in the House and Senate did not have enough votes to extend it. They may be right. Most Republicans in Congress oppose an extension, and Democrats were far from united in support of preserving the ban. Democrats representing rural areas kept mum on the issue, perhaps mindful of their constituents' sensitivity to gun control measures. In addition, some Democrats believe their support of the assault weapons ban cost them control of the House and Senate in 1994, and that the gun control issue hurt Al Gore's standing in key states during the 2000 presidential election.

The Money

Gun Control vs. Gun Rights : Follow The Money

http://www.opensecrets.org/industries/indus.php?ind=Q12

http://www.opensecrets.org/industries/indus.php?ind=Q13

If lawmakers are guilty of tiptoeing around gun control issues, it is because the NRA and other gun rights groups wield an enormous amount of influence in Washington. The source of that influence is money. Gun rights groups have given more than $17 million in individual, PAC and soft money contributions to federal candidates and party committees since 1989. Nearly $15 million, or 85 percent of the total, has gone to Republicans. The National Rifle Association is by far the gun rights lobby's biggest donor, having contributed more than $14 million over the past 15 years. Gun control advocates, meanwhile, contribute far less money than their rivals -- a total of nearly $1.7 million since 1989, of which 94 percent went to Democrats. The leading contributor among gun control advocates is the Brady Campaign to Prevent Gun Violence, formerly known as Handgun Control, which has given $1.5 million over the past 15 years.

If gun rights groups have a substantial advantage in campaign contributions, they dominate gun control advocates in the area of lobbying. The NRA alone spent nearly $11 million lobbying elected and government officials from 1997 to 2003. But it wasn't the gun rights lobby's biggest spender. That was Gun Owners of America, which spent more than $18 million on lobbing over the same period. By contrast, the Brady Campaign to Prevent Gun Violence spent under $2 million on lobbying from 1997 to 2003, and the Coalition to Stop Gun Violence spent $580,000.

The National Rifle Association has an additional advantage over all other groups in the debate. As a membership organization, the NRA can spend unlimited funds on communications to its 4 million members that identify pro-gun candidates. Those members also contribute millions of dollars in limited donations to the NRA's political action committee, which runs ads aimed at the general public that expressly advocate the election or defeat of a federal candidate. Since 1989, the NRA has spent more than $22 million on communications costs and independent expenditures, with more than $18 million spent in support of Republican candidates.

Analysis Of Prior Congressional Vote

The Center did the following analysis of votes on gun control proposals that Congress considered after the Columbine massacre in 1999. The results shed light on the relationship between campaign contributions and the way lawmakers voted on the issue.

Senate: Just weeks after the Colorado school shooting, Senate Majority Leader Trent Lott (R-Miss.), approved immediate floor consideration of S. 254, the Senate Juvenile Justice Bill. The bill, ultimately amended to include tough provisions on background checks and safety locks, was approved by a vote of 73-25.

However, senators voted three times on proposed background checks at gun shows, first voting against a three-day waiting period, then approving a 24-hour waiting period, then giving final approval to the mandatory three-day background check. [see Senate vote chart]

House: The House rejected legislation loaded with gun control provisions similar to those approved by the Senate. However, House Republican leaders split the gun debate into two separate pieces of legislation –- one focusing on youth culture and violent crime and another specifically dealing with gun shows. Among the more contentious points of debate, gun-rights backers passed an amendment limiting gun show background checks to 24 hours, rather than the Senate-approved mandate of three days.

The provision meant that if a background check on a potential gun buyer was not completed within 24 hours, the sale would be approved automatically. Discontent with that amendment –- among gun-control advocates who viewed it as too weak and gun-rights advocates who thought it went too far –- led to the bill's demise.

The House voted 218-211 in favor of the amendment that would limit background checks at gun shows to 24 hours. In a 193-235 vote, lawmakers voted down the amendment that would have mandated a three-day waiting period. The House vote to kill was 280-147. [See House vote chart].

Interpreting the Second Amendment

Most experts point to what they consider to be the ambiguous wording of the Second Amendment, which has resulted in two opposing interpretations of what it protects: individual liberties or states' rights.

The debate over whether it protects individual or collective rights to possess firearms intensified in the second half of the 20th century. But in more than 200 years, the Supreme Court has rarely addressed the issue. The high court last looked at the Second Amendment in 1939.

But last year, the Supreme Court accepted a case that deals with the constitutionality of prohibiting private citizens from keeping guns in their homes. At issue is Washington, DC's 32-year-old law that bans the possession of firearms unless they are unloaded, locked or disassembled.

Eugene Volokh, who teaches constitutional law at the University of California at Los Angeles, says a federal appeals court ruled last year that the ban was unconstitutional.

"The DC Circuit [Court of Appeals], which is the federal court in charge of DC, held that in fact it is an individual right and that the gun ban violates that right. So now that there is this disagreement among courts, the U.S. Supreme Court has stepped in to decide the issue," says Volokh.

Supporters of individual liberties argue that in a free society each citizen must have the right to bear arms, and that this right safeguards all other rights Americans enjoy. But the opposing side contends that the Second Amendment has to do with the obligation citizens owe to the state to participate in a militia.

Legal scholar Eugene Volokh says such critics hold that the Second Amendment has nothing to do with individual rights. "Those who take a states' rights view argue that it is the right of the people as a collective entity acting through their states and state militias. So they focus on the first clause of the amendment, which is 'a well regulated Militia being necessary to the security of a free state'," says Volokh. "The individual rights view is that the purpose of the individual right is to maintain the armed citizenry as a means of protecting freedom against despotism. But the way that purpose is accomplished is by securing to individual people the right to keep and bear arms."

A Supreme Court Ruling

Volokh says the Supreme Court's ruling on the Washington, DC law - which is expected in the next few months - could be a landmark decision that answers the long-standing question of whether the Second Amendment guarantees an individual or a collective right.

But other scholars, including the Brookings Institution's Benjamin Wittes say that the case could be the first chapter in examining the constitutionality of gun control rather than the final word.

"If it is a collective right, then the issue goes away. Then any state can regulate individual firearms ownership as it sees fit," says Wittes. "But if it is an individual right, then you have this second level question, which is: What kind of an individual right is it? Does that mean the state can still regulate, but it can't ban? Does it mean the state has to respect your right to own it absolutely?"

Some experts say that because none of the justices of the current Supreme Court have ever presided over a Second Amendment case, any prediction about how the court will rule is little more than speculation. But others contend it is unlikely that the high court will cancel a right that is embedded in the ideas of self-reliance and self-defense, which is central to America's identity.

Nationwide, there are more than 20,000 gun-control laws that regulate everything from who can own a gun and how it can be purchased to where one can possess or use it.

In the wake of the Littleton, Colo., shootings, gun control has again assumed priority status and President Clinton has proposed and Congress is considering a broad range of gun-control laws.

Here are some considerations being raised by firearms-use researcher John R. Lott Jr., of the University of Chicago:

Experience with the three-day waiting period for gun purchases -- which expired last year -- had no significant impact on murder or robbery rates and was associated with a small increase in rape and aggravated-assault rates.

Requiring gun locks would increase innocent deaths resulting from intruders in the home -- since mechanical locks require that the gun be unloaded, offering far less protection.

A mandated three-year prison term for parents whose gun is used improperly by any minor is draconian -- akin to sending the owner of a stolen automobile to prison if the thief kills someone while driving that car.

Dealers who sell guns at gun shows must already perform the same background checks and obey all the other rules that they are subjected to when they sell guns at their stores -- and private sales are unregulated whether they occur at a gun show or not.

Lott predicts that, if adopted, the Clinton package will lead to more gun deaths, not fewer.

The ever-controversial topic of governmental gun control was taken up at the Law School last Thursday, when UVA Law professor Stephen Smith examined the significance of recent litigation and political trends in “Gunning Down D.C.’s Gun Control Laws,” a lunch-hour presentation hosted by the Federalist Society.

That the nation’s capital has also come to be known as a capital for homicide is no small problem for D.C.’s lawmakers and enforcement officials. In an effort to stem chart-topping violent crime rates, the District enacted one of the most stringent gun control regimes in the country in 1976. Since their debut, the laws have frequently become the subject of litigation under the Second Amendment, which establishes the right of the American people to keep and bear arms.

For Professor Smith and other interested legal observers, last month’s ruling of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia—that D.C.’s restrictions on gun ownership and maintenance are invalid in light of Second Amendment protections—represents the most significant judicial rebuke of firearm restrictions since 2001, when the Fifth Circuit found in United States v. Emerson that the Second Amendment’s provision for gun ownership applies specifically to individuals.

“This has been a really exciting time,” Smith said to a packed seminar room. “[The court] said that there’s not only an individual right to bear arms, but then proceeded to strike down several key provisions of D.C.’s gun control laws—so the decision has bite, and if it survives en banc review, I think it’s a great candidate to go to the Supreme Court,” he said, taking for granted that the District will seek to appeal its loss.

Parker had originally been brought to trial by a number of D.C. residents, including a veteran police officer who claimed that the denial by his own boss of a license to carry a handgun for personal use violated his Second Amendment rights. (The D.C. statute makes it a crime to transport a functional gun—even in one’s own house—without a license from the chief of police, and further requires that firearms be stored completely disassembled. The law also bans the registration of handguns purchased after 1976.)

Outside the Fifth and D.C. Circuits, all others have ruled that the Second Amendment does not guarantee the individual’s right to bear arms, with the exception of the Second Circuit, which has yet to rule on the question—a split further suggesting that the issue is destined for a Supreme Court showdown.

Throughout the United States—where guns are simultaneously a source of recreation and national pride, tools for trade and protection, and the weapons of choice in the most vicious of crimes—it is often difficult to draw lines and define camps in the controversy over gun control. Smith, a known advocate for firearms freedoms and handgun owner, recognized that the 2001 Emerson ruling quickly led to a “flurry of activity … over what the Second Amendment means,” and that the new D.C. decision will serve to rework the curious landscape of the debate, further “[showing] the benefits of role-reversal in constitutional law.”

“After Emerson, some of the biggest proponents of Second Amendment rights were public defenders, because now they had all these clients charged with gun offenses,” Smith said, pointing out a seeming incongruity. “They started saying, ‘Ah hah! Second Amendment! Second Amendment!’—it was great to see these otherwise politically liberal people shoulder-to-shoulder with the National Rifle Association on these kinds of issues.”

Smith went on to highlight some key questions that courts have considered in ruling on the text of the Second Amendment, and described the effects following from the various interpretations.

Aside from the “individual rights” view adopted by the Fifth and D.C. Circuits, Smith described the “collective rights” view, which considers the first clause of the amendment—“A well regulated Militia, being necessary to the security of a free state”—to limit the subsequent assurance that the “right of the people to keep and bear arms shall not be infringed.”

“It’s a federalism provision protecting the states against action by the federal government to disarm their state militias, and that’s all it does,” Smith stated, describing the viewpoint adopted by several circuits.

“More circuits have adopted what is called the ‘sophisticated collective rights’ view,” Smith continued. “[These courts] say that the Second Amendment does create an individual right to bear arms, but only for those who are serving in the militia, and only while they are involved in militia activities.”

Smith explained that either of these views may work with the “bear” provision of the Amendment, but that they do not address the fact that the Second Amendment also guarantees people the right to “keep” arms.

The term “militia” corresponds to today’s U.S. National Guard, over which the states’ executives normally have control, and which are armed and outfitted by the state and federal governments, not, as in the 18th century, by the members themselves—a fact that Smith mentioned as a common argument for abridging the right to bear arms because the “historical predicate for the Second Amendment is gone.”

But the constitutional right to keep and bear arms has thus far persisted, and has now prevailed in crumbling a 30-year-old monolith of D.C. legislation. The future? Smith sees it all hinging on the way that courts define the extent of and limitations to the individual right, reminding the room that “the protection under the Constitution is not absolute.” Yet he expressed confidence that, if the Supreme Court does come to adopt the Parker “individual rights” view, only “reasonable” restrictions on privately owned firearms—such as mandatory registration and limits on ownership by the incapacitated already observed in most states—would be allowed.

It appears, the U.S. Supreme Court on Tuesday will enter the constitutional debate over the Second Amendment right to bear arms.

At issue is the nation's strictest gun control law — Washington, D.C.'s ban on handguns. Only one other city in the nation, Chicago, has a law this strict, but if the District loses, it could imperil other less restrictive laws across the country — laws that ban machine guns, and assault weapons, for example.

Tuesday's case has aroused huge interest among citizens and politicians alike, and has divided even the president and vice president.

The Second Amendment to the Constitution reads: "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."

For most of the past century, the courts have interpreted the amendment to mean that the right to bear arms is a collective right — a right associated with military service, not a personal right.

But for many, the Second Amendment right to keep and bear arms means the individual right to own and use a gun, if necessary, as a weapon against invaders or even the government — a scenario embodied in the movie Men in Black, when a farmer refuses to surrender his gun, growling, "You can have my gun when you pry it from by cold dead fingers."

Bush Administration Breaks from Long-Held Stance

In any event, the last word will belong to the Justices.

Early Analysis

The city also does not contest Dick Heller’s right to have sued over the pistol ban. But that is open to the Court to question, if it wishes.

The first reading of the filing tended to give heart to supporters of the Second Amendment as it was flawless. The Table of Contents alone revealed that the brief was far superior to the Petitioner’s brief.

The brief may have targeted the Justices’ way of thinking better than the others.

It seemed to be thorough on the statutory construction-type issues. The Justices spend a lot of their lives interpreting statutes and have developed a lot of rules of thumb as to how they are read. These statutory construction rules are one of their frames of reference in life. For example, one rule is that you usually don’t read preambles into operative language, unless the operative language is ambiguous. A lot of the same rules are carried over into reading the Constitution. I found that the other briefs were much weaker in this regard.

Much of the response read like a rather trivial history lesson on how gun rights were viewed as individual at the time of the founding. Here, Gura/Heller thoroughly clean house on the main argument (argument #1) of DC’s merits brief.

As trivial and remedial as this history lesson might seem to us it’s none-the-less important because the DC side in this case is clearly trying to obscure, then re-write, this portion of our history as it relates to the importance and history of private firearm ownership in the US. Regarding this argument, a couple of linguistics professors filed a brief on behalf of the District. They argued in a very complicated and convoluted way that the 2A does not, and never did, speak to private or individual rights to arms. Gura responded thusly (brilliantly and not without humor):

“No doubts or ambiguities arise from the words “the right of the people to keep and bear arms shall not be infringed.” The words cannot be rendered meaningless by resort to their preamble. Any preamble-based interpretive rationale demanding an advanced degree in linguistics for its explication is especially suspect in this context.”

In addition, the Petitioner’s brief (as well as many of the amicus briefs) went on and on about violent crime…it’s prevalence, it’s danger, it’s cost, etc. And they weakly attempted to tie DCs handgun ban (and gun control in general, including in Chicago) into this violence in a cause-and-effect manner, and tried to argue that the bans reduce such crime in a meaningful way.

Yet Gura’s response mentioned almost none of this - this is superb responsible and mature on his part in as much as social policy issues and constitutional issues are two different, independent animals.

He predicts that the Justices will see through this smoke-and-mirrors public policy advocacy. In effect, the constitutional issue at hand is “above” all the arm-waving and hand-wringing on behalf of the Brady Campaign, the Violence Policy Center, and their colleagues…however sincere those folks might appear to be.

The US Dept of Justice filed an amicus brief (but not on behalf of either party). That one brief has been the focus of much heated discussion and downright animosity. While they clearly stated that the 2A protects an individual right to arms not wholly constrained by service to a state-regulated militia, they argue for the Supreme Court to outline a lower standard of judicial review for the 2A as compared to other amendments such as the 1A and the 4A.

I think that Gura did a great job with this. But at any rate, the quote below from Gura’s brief speaks to both preceding matters.

“Although this case does not call upon the Court to determine the standard of review applicable to regulations of Second Amendment rights, Respondent observes that the right to arms protects two of the most fundamental rights—the defense of one’s life inside one’s home, and the defense of society against tyrannical usurpation of authority. Petitioners’ casual use of social science sharply underscores the importance of securing Second Amendment rights with a meaningful standard of review.”

By “casual use of social science” he means the public health advocacy studies (largely propped up by Joyce Foundation funding) that first spin and pump violent crime in America as horrifying and epidemic, and second, argue that restrictive gun control laws are the only way…the absolutely necessary way, reduce violent crime. And in this context, he is also speaking directly to the temptation and danger of using “social science” to justify the infringement of individual rights for the sake of perceived public safety. No doubt, Alan Gura is familiar with this quote by Ben Franklin: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

Finally, toward the end of the brief, they offer this (and with this, they strike to the very heart of the entire matter):

“Petitioners plainly disagree with the Framers’ Second Amendment policy choices. Petitioners’ remedy must be found within the Constitution’s Fifth Article, not with linguistic sophistries or an anemic standard of review that would deprive the right of any real force.”

What they are saying is this: “It’s clear that DC just doesn’t like what the 2A really means, and the right it protects. Fine. If you don’t like it, then repeal the amendment. But you cannot simply rewrite history to fit your preferences, nor can you ask the courts to render them meaningless by applying a low standard of review. The Constitution’s Fifth Article, of course, outlines how we go about enacting and repealing constitutional amendments.

At The Same Time

There people here in Washington who almost never, ever agree with the ACLU. This time, they are supporting their drive to protect privacy rights in the district. What makes this even worse is that it puts them in agreement with Marion Barry. Talk about painful.

The Washington DC Metropolitan Police Department is gearing up its program to ask to search homes in the District for illegal guns. It plans to begin the searches in two weeks. The Safe Home program is said to be an attempt to reach parents or guardians who think or know their children have guns and will offer amnesty for certain gun- and drug-possession charges. However, the DC Police Department has acknowledged that guns will be tested for links to other crimes and a positive identification could lead to an investigation or prosecution of the gun owner.

"We shouldn't make the next casualty of street violence cherished civil rights," said Johnny Barnes, director of American Civil Liberties Union of the National Capital Area. "We're very uncomfortable with police randomly banging on doors without probable cause asking for access."

D.C. Council member Marion Barry said the plan violates the Fourth Amendment, which bars illegal search and seizure. He also said it infringes on parental responsibility.

Next month, the Supreme Court of the United States is expected to hear oral arguments on the 32-year-old law that restricts gun ownership in Washington, DC. It will be the first time in nearly 70 years that the high court will hear a case on whether the Second Amendment to the U.S. Constitution guarantees an individual or a collective right to own firearms.

Self-reliance as a feature of America's idea of liberty has deep roots in the nation's constitutional tradition. It begins, many experts say, with the country's frontier history, when muskets were used for hunting and protection by the first settlers in the New World. They add that self-defense and guns were also tied to America's Revolutionary War experience.

A Long History (A Deep Weave In The Fabric of America and The American Psyche)

For many, the Second Amendment right to keep and bear arms means the individual right to own and use a gun, if necessary, as a weapon against invaders or even the government — ( a position held by such folks as myself who consciously identify with almost all of the thinking and writings of Jefferson, and hold The Declaration of Independence as “The First Law and “The Highest Law” of this land), a scenario embodied in the movie Men in Black, when a farmer refuses to surrender his gun, growling, "You can have my gun when you pry it from by cold dead fingers." It is these very sentiments that are ignored by those who see “The Gun” as the enemy, the criminal and leads them to the position of attacking a symptom of American malaise and not the diseases that infect the social fabric of this nation.

"The American love affair with firearms is very old. It has to do with the fact that it was an armed citizenry that enabled the revolution against the British in the late 18th century," says Benjamin Wittes, Director in Pubic Law at the Brookings Institution here in Washington.

"At any given moment in American history, there is sort of a gun that kind of represents it -- whether it's the musket in the hands of the militiamen or the Colt .45 in the Wild West or the Tommy Gun in the urban warfare of the gangster era," says Wittes.

"Then you tie in another dominant theme. From the very beginning in the United States, there was an enormous fear of what were called 'standing armies'," says Ralph Rossum, who teaches political philosophy and the American Constitution at Claremont McKenna College in California.

"The Framing generation [i.e., America's Founding Fathers] was enormously suspicious of governmental power and wanted an armed militia. They worried about standing armies. Standing armies were often sources of corruption. And there was the fear that a standing army could be mobilized against the liberties of the people," says Rossum.

The idea of establishing militias was incorporated in the Second Amendment. The text consists of two clauses. One speaks of the necessity of creating "a well regulated Militia," the other speaks of "the right of the people to keep and bear arms."

One must remember that our attitudes in part are dictated by own history, our up bringing and the fact that, though we may the highest developed civilization/nation/society of this Earth, our level of technological prowess does not equate with our level of “civility”. It does not. Our historical memory is colored by the often over looked fact that we are not far from our frontier experience and the American affection for that time period and its simple codes of justice, be they real, myth or legend, we carry them around as surely as they were a well tuned Colt Peacemaker strapped to our leg equalizing all men on all matters. Oh yes, just be honest with yourself!

But let us just look at those facts; the facts that the “fast guns” those romantic figures of movies and the dime novels, not always the most appetizing of folks, some killers turned law men or carnival heroes. Their class reunions ended in the 1900s.

Bill Tilghman In 1924, the aging Tilghman accepted a position as marshal of Cromwell, Oklahoma. During this time he lived in Chandler, Oklahoma, where he is buried. He was in the job less than a year before he was killed in the line of duty. He died on November 1, 1924. Wiley Lynn, a corrupt prohibition agent, shot him. Lynn and Tilghman had had numerous verbal confrontations because Lynn repeatedly released prisoners who were arrested by Tilghman. The incident began on Halloween night, when Tilghman, Deputy Hugh Sawyer, and businessman W. E. Sirmans were having coffee at a cafe called Ma Murphy's.

Shots were heard outside, and Tilghman drew his handgun and went outside. In the street stood a drunken Wiley Lynn, with a gun in his hand. Brothel madame Rose Lutke was standing beside him. Another prostitute, Eva Caton, was sitting inside Lynn's car with a date, a furloughed army sergeant. Tilghman clasped Lynn's gunhand and called for Deputy Sawyer to come assist. [2]

As Sawyer ran outside, Tilghman, Lynn and Rose Lutke stood body to body in the darkness. Two shots rang out, and Lutke screamed. As Deputy Sawyer rushed forward, Tilghman slumped forward and fell. Deputy Sawyer, inexperienced, did not fire but rather disarmed Lynn and yelled "Wiley Lynn has shot the marshal". Lynn then fled with Rose Lutke to the car and sped away. [3]

Tilghman's body was laid in state at the Oklahoma state Capitol. One month later, the town of Cromwell was torched, allegedly by angry citizens, with every brothel, bar, flop house and pool hall burned to the ground. [4]

Rose Lutke disappeared, and was never heard from again. Wiley Lynn was acquitted after several of the witnesses to the shooting, allegedly intimidated, failed to appear. Nevertheless, he was dismissed from the Prohibition Unit. Years later, in a shootout with another police officer, Agent Crockett Long of the Oklahoma State Crime Bureau, he was killed, but not before fatally wounding Long.

The town of Cromwell never recovered to its former "wild" status, and as of a 2000 census, its population was less than 300 residents. [5]

The 1999 made-for-television movie You Know My Name dramatized Tilghman's life and final days, and was based on Matt Braun's novel One Last Town, which fictionalized Tilghman's activities in Cromwell. Veteran western movie actor Sam Elliott produced the film and starred as Tilghman. His wife, Agnes Stratton Tilghman, wrote about him in the book Marshal of the Last Frontier. Tilghman was portrayed by Rod Steiger in the 1981 film Cattle Annie and Little Britches.

William Bartholomew "Bat" Masterson: (1856-1921)

He was putting his literary talents into practice as a New York City newspaper (New York Morning Telegraph) sports reporter. 1921 Bat Masterson (age 65) had a heart attack at his desk and died. His sidearm was found in his desk drawer…loaded. (1921)

The gunfighter era was an outgrowth of the Civil War. Some outlaws were spawned of the Civil War as were Quantrill's Raiders.

The average year of birth was 1853. The average year of death was 1895. About 1/3 of all gunmen died of "natural causes." Many gunmen did not die violently and lived a normal life span (70 years or so). Of those who did die violently (shot or executed), the average age of death was 35. The gunfighters-turned-lawmen lived longer lives than their persistently criminal counterparts.

Most professional gunfighters died in states or territories where the most shootings occurred: Texas, Kansas, New Mexico, Oklahoma, California, Missouri, and Colorado.

The "occupations" of the various gunmen were often those that used firearms in ordinary pursuits. They often carried firearms as a job requirement. There were 110 gunmen who were law officers, 75 who were cowboys, 54 as ranchers, 46 as farmers, 45 as rustlers, 35 as hired guns, but also men who had been soldiers, miners, scouts, teamsters, actors, butchers, bounty hunters, etc.

Gunfighting peaked in the 1870s: Six fights in TX and KS in 1870, 22 in 1871, 13 in 1872, 27 in 1873, 14 in 1874, 13 in 1875, 22 in 1876, 21 in 1877, 36 in 1878, 14 in 1879. In the 1880s: 25 in 1880, 27 in 1881, 15 in 1882, 9 in 1883, 17 in 1884, 7 each in 1885-6, 20 in 1887, 10 in 1888, and nine in 1889. 1895-96 were bad years, 19 fights in each, but then it began to taper off.

And then there was the matter of Arizona Statehood…settled with a hail of bullets in the landscape made famous by Zane Grey and the Photographs of “Arizona Highways Magazine”, and brilliantly narrated in Dan Dedera’s Book: “Little War of Our Own : The Pleasant Valley Feud Revisited”.

Book Details Summary: The title of this book is Little War of Our Own : The Pleasant Valley Feud Revisited and it was written by Don Dedera. This edition of Little War of Our Own : The Pleasant Valley Feud Revisited is in a Hardcover format.

This books publish date is June 1987 and it has a suggested retail price of $21.95. There are pages in the book and it was published by Don Dedera.

The 10 digit ISBN is 0873584635 and the 13 digit ISBN is 9780873584630. "The history of the American West is punctuated by range wars, and the Pleasant Valley Feud was among the most famous.

Waged largely in northeastern Arizona, it had all of the classic elements: cattle and horse rustling, massacres, and dramatic courtroom confrontations ... Only one major feud broke out in Arizona - the Pleasant Valley War or the Graham-Tewksbury feud - but it was big enough and bloody enough to command national attention. It helped persuade the rest of the country that Arizona Territory was uncivilized and therefore unfit for statehood."

http://freepages.genealogy.rootsweb.ancestry.com/~caomgo/war/index.html

On 14^th February 1912 Arizona was categorized as a state of United States of America. Arizona was the 48^th state admitted to the American territory and it was the last admitted contiguous state as well. The Gunmen of Arizona had killed themselves off or been killed off by guns hired to so…Oh hell go find and read the book. I loved it!

One cannot credibly assert that they have an understanding of our nation psyche and historical memory without digesting Frederick Jackson Turner’s “Frontier Thesis”.

The Frontier Thesis or Turner Thesis is the conclusion of Frederick Jackson Turner that the wellsprings of American exceptionalism and vitality have always been the American frontier, the region between urbanized, civilized society and the untamed wilderness. In the thesis, the frontier created freedom, constantly named as civilization, "breaking the bonds of custom, offering new experiences, [and] calling out new institutions and activities." Turner first announced his thesis in a paper entitled "The Significance of the Frontier in American History," delivered to the American Historical Association in 1893 at the World's Columbian Exposition in Chicago.

Turner set up an evolutionary model (he had studied evolution with a leading geologist), using the time dimension of American history, and the geographical space of the land that became the United States. The first settlers who arrived on the east coast in the 17th century acted and thought like Europeans. They encountered environmental challenges that were different from those they had known in Europe. Most important was the presence of uncultivated arable land (though large tracts were in use as Indian hunting grounds.) They adapted to the new environment in certain ways — the cumulative effect of these adaptations was Americanization. According to Turner, the forging of the unique and rugged American identity had to occur precisely at the juncture between the civilization of settlement and the savagery of wilderness. The dynamic of these oppositional conditions engendered a process by which citizens were made, citizens with the power to tame the wild and upon whom the wild had conferred strength and individuality.

Successive generations moved further inland, shifting the lines of settlement and wilderness, but preserving the essential tension between the two. European characteristics fell by the wayside and the old country's institutions (e.g. established churches, established aristocracies, intrusive government, and class-based land distribution) were increasingly out of place. Every generation moved further west and became more American, more democratic, and as intolerant of hierarchy as they were removed from it. They became more violent, more individualistic, more distrustful of authority, less artistic, less scientific, and more dependent on ad-hoc organizations they formed themselves. In broad terms, the further west, the more American the community.

Turner's thesis quickly became popular among intellectuals. It explained why the American people and American government were so different from Europeans. It sounded an alarming note about the future, since the U.S. Census of 1890 had officially stated that the American frontier had broken up. The idea that the source of America's power and uniqueness was gone was a distressing concept. Many, including historian Theodore Roosevelt, who later became president, believed that the end of the frontier represented the beginning of a new stage in American life and that the United States must expand overseas. For this reason, some see the Turner thesis as the impetus for a new wave in the history of United States imperialism. However, Turner's work, in contrast to Roosevelt's work The Winning of the West, places greater emphasis on the development of American republicanism than on territorial conquest and the subjugation of the Native Americans.

The American frontier was officially closed, according to the U.S. Census Bureau, in 1890. Yet more homesteads were settled in the first few decades of the twentieth century than in the entire nineteenth century.

"Frontier anxiety," then, really was caused not by the closing of the frontier, but by the perception that the frontier was closing, argues David Wrobel. As early as the 1870s and through the 1930s, many Americans believed an important era had ended and worried about how this closure would affect society and democracy.

The perceived expiration of a uniquely American way of life had an impact not only on the literature of the day but on public policy as well. While Frederick Jackson Turner and other intellectuals lamented nostalgically about the end of an era dominated by the rugged individualist and westward expansion, Zane Grey and other novelists brought to life cowboys and pioneers from bygone days who were more myth than reality. Presidents from Teddy Roosevelt to Franklin Roosevelt focused on the vanishing western frontier and its influence on the frontiers of the future.

In The End of American Exceptionalism, Wrobel illustrates more than just how the perceived demise of the frontier brought about a longing for wilderness and the pioneer spirit. He emphasizes how it influenced debate on public land and immigration policy, expansionism, and the merits of individualistic and cooperative political systems. In addition, he relates how it affected and was affected by such diverse social and political issues as racism, industralization, irrigation, tenant farming, class struggle, government intervention, and the naturalist movement.

Wrobel doesn't focus rigidly on Turner or question the originality of Turner's thesis-that the frontier molded the nation's character--as historians have done in the past. Instead he suggests that the writings of Turner and other intellectuals were symptomatic of a frontier anxiety that began to take hold in the 1870s. Concentrating on the notions of these intellectuals over several decades, Wrobel shows how their reactions to the perceived ending of American exceptionalism--created by a unique frontier experience-helped shape the nation's cultural and political future.

"I do not know of anyone who has brought together so much material on the popular foreboding over the frontier's demise. Wrobel uses articles and commentaries from periodicals in the 1870s and 1880s to show both an awareness of the frontier's significance to a distinctive national character and an uneasiness that this molding influence was about to end. Unlike a lot of writing in intellectual history, his style is accessible to the general reader as well as the specialist."--Elliott West, author of Growing Up with the Country: Childhood on the Far-Western Frontier.

"An excellent book on a big subject, executed with much skill. Wrobel makes a fine contribution to the study of myth by analyzing the anxiety, or angst, Americans felt about the frontier in the half-century after 1890."--Western Historical Quarterly

"One of the most important books of recent years in the history of American ideas. All American historians should read this provocative and well-written study."--Journal of Arizona History

"An indispensable analysis of an essential part of the national psyche. Wrobel uncovers the angst-ridden sources of our continuing frontier fascination. Uncanny parallels between the 1890s and the 1990s make the book even more compelling."--American Studies

"'Frontier anxiety' pervaded American writing, speech, and thought. Wrobel shows that racists, nativists, and Malthusians used the closing of the frontier to support their arguments; so did conservationists, preservationists, and anti-regulationists; and so did imperialist expansionists, monopolists, labor leaders, Marxists, Progressives, and New Dealers. He writes with clarity and richness and uses abundant examples."--Great Plains Quarterly.

We have been good at transferring and carrying forward in our fabric several notions collected over the years and refashioning them from time to time to suit the ambitions of the powers that be in this nation and American exceptionalism is just one such notion.

For those who would like to explore further those “Gun Slinging” Folk Heroes of America who have been imprinted in the national mentality, just click on any of the links below.

http://www.google.com/search?hl=en&q=american+gunfighters&btnG=Search

http://www.legendsofamerica.com/LA-OutlawsandLegends.html

http://www.legendsofamerica.com/WE-Gunfighters.html

http://americanhistory.about.com/od/gunslingers/Gunslingers_of_the_Old_West.htm

http://www.voanews.com/specialenglish/archive/2006-11/2006-11-14-voa1.cfm

http://www.thewildwest.org/interface/index.php?action=233

http://www.spartacus.schoolnet.co.uk/WWgunfighters.htm

Yes we have a lot of social ills and far too many people are killed violently everyday…by guns, knives and so many other instruments of destruction. I am mindful of a self defense class I once took that had as a thesis: “Everything Is A Weapon”. It is true, and we can’t ban everything, but we can if we choose banish much of what drives one person to kill another…so don’t “Blame It On The Gun”!

Yesterday The Court Decided!

DISTRICT OF COLUMBIA ET AL. v. HELLER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 07–290. Argued March 18, 2008—Decided June 26, 2008

http://www.2asisters.org/SCOTUS_Heller_Decision07-290.pdf

The Bare Essence:

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device.

Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Syllabus: Held:

The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

Prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56–64. 478 F. 3d 370, affirmed.

Scalia, J., Delivered The Opinion Of The Court, In Which Roberts, C. J., And Kennedy, Thomas, And Alito, Jj., Joined. Stevens, J., Filed A Dissenting Opinion, In Which Souter, Ginsburg, And Breyer, Jj., Joined. Breyer, J., Filed A Dissenting Opinion, In Which Stevens, Souter, And Ginsburg, Jj., Joined.

High court strikes down gun ban

WASHINGTON (CNN) -- The U.S. Supreme Court ruled Thursday that a sweeping ban on handguns in the nation's capital violated the Second Amendment right to bear arms.

The justices voted 5-4 against the ban, with Justice Antonin Scalia writing the opinion for the majority.

At issue in District of Columbia v. Heller was whether Washington's ban violated the right to "keep and bear arms" by preventing individuals -- as opposed to state militias -- from having guns in their homes.

"Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our nation, where well-trained police forces provide personal security and where gun violence is a serious problem," Scalia wrote. "That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct.

In an Opinion Research Corp. poll of 1,035 adult Americans this month, 67 percent of those surveyed said they felt the Second Amendment gave individuals the right to own guns. Thirty percent said it provided citizens the right to form a militia. The poll had a margin of error of plus or minus 3 percentage points.

The National Rifle Association, Disabled Veterans for Self-Defense and the transgender group Pink Pistols -- along with 31 states -- filed briefs supporting the District of Columbia's gun owners.

In February, a majority of U.S. congressmen -- 55 senators and 250 representatives -- filed a brief urging the Supreme Court to strike down Washington's ordinance.

The Aftermath…and Fallout

Gun Owners of America News Release
For Immediate Release
Contact Ellie McDaniel or Eddie Isler
June 26, 2008
703-321-8585

(Springfield, VA) -- Gun Owners of America today celebrated what amounts to a "generally good but not perfect" decision by the U.S. Supreme Court in the DC v. Heller case.

On the positive side, the Court struck down the DC handgun ban and trigger lock requirement. Dick Heller, the plaintiff, may now apply for a handgun license.

"This is a bad day for criminals," said GOA Executive Director Larry Pratt. "Honest citizens can once again defend themselves in our nation's capital."

The Court got the history right, spending 54 of 64 pages in the Scalia majority opinion to analyze the history behind the Second Amendment. Specifically, the court recognized the fear that a despotic federal government could disarm the people was a central purpose of the amendment -- and it specifically overturns the trigger lock requirement out of a recognition that self-defense is a protected right envisioned by the amendment.

Moreover, GOA's amicus brief urged the Court not to use the Heller case as a springboard to resolve the constitutionality of all of the nation's firearms laws. In fact, the GOA brief was the only one making the request not to rule on automatic weapons and other issues, upholding judicial restraint. We are pleased that the Court heeded our admonition, limiting its holding to the case before it. In so doing, the Court's decision -- in dissenting Justice Breyer's words -- "threatens to throw into doubt the Constitutionality of gun laws throughout the United States."

On the negative side, the Court stated its opinion should "not be taken to cast doubt" on at least some prohibited persons' restrictions, gun free school zones bans and dealer licensing requirements. This dicta implies that, in the future, courts might go further than the Constitution permits in upholding some gun restrictions.

"It is unclear whether the Court has created provisos the size of a keyhole or the Grand Canyon," Pratt said. "Nevertheless, we are pleased that the Court has so clearly stated that individuals, apart from any membership in a militia, have the right to own and use guns for self-defense."

The Court's opinion directly conflicts with what anti-rights advocates -- like those in the Brady Campaign -- have been saying for years.

"The Supremes followed GOA's urging and refused to do any balancing of governmental powers and individual liberties -- it just ruled the ban was prohibited by the text of the Second Amendment, saying that its language elevates, above all other interests, the 'right of law-abiding, responsible citizens to use arms in defense of hearth and home.'"

GOA welcomes the opportunity that the Court has afforded us to continue our fight for the people's right to keep and bear arms.

"GOA is preparing to wage constitutional challenges to a range of laws -- federal, state and local -- that violate the Second Amendment principles endorsed by the Court in today's majority opinion," Pratt said.

"The bottom line is that this is the first battle of the war, not the end."

Please note: TV media can pull a video statement from Larry Pratt
at www.gunowners.tv after 3 pm EST.

Court: A constitutional right to a gun

http://www.scotusblog.com/wp/court-a-constitutional-right-to-a-gun/

The opinion can be downloaded here. Relevant quotes from the majority opinion can be found here, and a replay of our LiveBlog can be found here. Tom’s commentary is here.

Answering a 217-year old constitutional question, the Supreme Court ruled on Thursday that the Second Amendment protects an individual right to have a gun, at least in one’s home. The Court, splitting 5-4, struck down a District of Columbia ban on handgun possession. Although times have changed since 1791, Justice Antonin Scalia said for the majority, “it is not the role of this Court to pronounce the Second Amendment extinct.”

Examining the words of the Amendment, the Court concluded “we find they guarantee the individual right to possess and carry weaons in case of confrontation” — in other words, for self-defense. “The inherent right of self-defense has been central to the Second Amendment right,” it added.

The individual right interpretation, the Court said, “is strongly confirmed by the historical background of the Second Amendment,” going back to 17th Century England, as well as by gun rights laws in the states before and immediately after the Amendment was put into the U.S. Constitution.

What Congress did in drafting the Amendment, the Court said, was “to codify a pre-existing right, rather than to fashion a new one.”

Justice Scalia’s opinion stressed that the Court was not casting doubt on long-standing bans on carrying a concealed gun or on gun possession by felons or the mentally retarded, on laws barring guns from schools or government buildings, and laws putting conditions on gun sales.

The Court took no position on whether the Second Amendment right restricts only federal government powers, or also curbs the power of states to regulate guns. In a footnote, Scalia said that the issue of “incorporating” the Second into the Fourteenth Amendment, thus applying it to the states, was “a question not presented by this case.” But the footnote said decisions in 1886 and 1894 had reaffirmed that the Amendment “applies only to the Federal Government.” Whether the Court will reopen that issue thus will depend upon future cases.

The Court in essence demolished the most recent precedent on the Second Amendment — the ruling in U.S. v. Miller in 1939, relied upon heavily by advocates of gun control (and by the dissenting Justices on Thursday). The opinion tartly remarked: “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed. It said that issuing a license to a handgun owner, so the weapon can be used at home, would be a sufficient remedy for the Second Amendment violation of denying any access to a handgun.

While the declaration of the individual right was clear-cut, as was the decision’s nullification of key parts of the Washington, D.C., law, the Court did not lay down a standard for judging the constitutionality of any other federal laws — an omission that the dissenters attacked strongly. Even so, the opinion made it clear that, whatever ultimate test emerge, it probably would be a tough one to meet, at least when self-defense is at issue. As Justice Scalia put it, whatever remains for “future evaluation” about the strength of the right, “it surely elevates above all other interests the right of law-abiding responsible citizens to use arms in defense of hearth and home.”

Justice Scalia’s recitation from the bench of the majority’s reasoning continued for 16 minutes. Justice John Paul Stevens followed, for seven minutes, summarizing the reasons for two dissenting opinions — his and one written by Justice Stephen G. Breyer.

The decision was the final one of the Term and, after issuing it, the Court recessed for the summer, to return on Monday, Oct. 6. Chief Justice John G. Roberts, Jr., said that concluding orders on pending cases will be released by the Court Clerk at 10 a.m. Friday.

WSJ: Court Strikes Down D.C. Gun Ban, Affirms Second Amendment Rights

http://online.wsj.com/article/SB121448371745506881.html

In a 5-4 opinion by Justice Antonin Scalia, the court struck down perhaps the nation's toughest gun law, a 1976 District of Columbia ordinance that effectively bans handguns and required that rifles be disassembled or disabled by trigger locks in the home.

The decision stopped short of invalidating other local, state and federal gun regulations. The court also declined to hand legislators a blueprint for permissible gun regulations, acknowledging that the contours of the Second Amendment right, like other constitutional rights, will have to be mapped in litigation over the years to come.

Gun-rights advocates said their efforts will now swing toward challenging handgun bans in other cities, licensing laws and other statutes, such as zoning laws that ban gun stores. Among the issues that the court left to future litigation: whether the government can restrict other kinds of firearms besides handguns, specifically assault weapons, which have been the focus of numerous legislative battles at the state and federal level.

Justices Rule for Individual Gun Rights

WaPo: Fenty Expresses Dismay at Ruling on Guns

Gun-Control Supporters Show Outrage

Gun Crazy http://www.nytimes.com/2008/03/01/opinion/01sat1.html

Published: March 1, 2008

The Valentine’s Day massacre at Northern Illinois University, like the killings at places such as Columbine High School and Virginia Tech, has evoked expressions of horror and sympathy and familiar questions about the killer’s motives and mental health. Atrocities like these make Americans feel angry and perhaps helpless.

Our political leaders are not helpless. They could match public shock with prompt, concerted and effective action to make mass shootings a less frequent fact of American life. But neither party’s leaders have shown any sign of stepping up their responsibilities. The latest campus carnage barely caused a ripple in presidential politics, where conventional wisdom dictates against actively advocating more stringent gun control laws.

No single measure or combination of measures can ensure that deranged individuals are prevented in every instance from shooting up a crowded classroom or shopping mall. But neither the absence of a perfect solution nor opposition from the powerful gun lobby is an excuse to do nothing — not when some 30 people are killed with guns every day in America. The rampage at the Northern Illinois campus was at least the sixth multiple murder in this country in just the first two weeks of February.

In a rare outbreak of reason on the subject of guns at the end of last year, Congress approved a measure worked out with the National Rifle Association to provide financial incentives for states and localities to share pertinent mental health records with the national database used to screen prospective gun buyers. But there are other practical steps the nation can take that would make it more difficult for dangerous people to obtain deadly firepower.

A short, smart public safety agenda would include: ( (Ed.) I don’t agree with all of this one, but as a matter of fair and balanced it is included for your consideration)

Requiring background checks for every gun purchase. That means closing the egregious loophole that permits unlicensed dealers to sell firearms at gun shows without conducting any background check.

Limiting purchases to one gun a month in order to defeat traffickers who use straw purchasers to buy weapons in bulk and then resell them on the street.

Once again banning the sale of military-style assault weapons and high-capacity ammunition magazines like those used by the Virginia Tech and Northern Illinois University killers. These magazines would have been outlawed under the Federal Assault Weapons Ban, but President Bush and the Republican Congress recklessly let it expire in 2004 to please the gun lobby.

Along with health care, trade agreements and the war in Iraq, proposals to reduce the scourge of guns warrant open discussion and debate during the remaining months of the presidential campaign. Both Hillary Clinton and Barack Obama favor stronger gun control, though it may be hard to tell from their campaign Web sites or speeches, which generally avoid the issue.

To his credit, John McCain, the likely Republican nominee, starred in television ads supporting state ballot initiatives in Oregon and Colorado to close the gun show loophole. Lately, though, he signed onto a Congressional brief urging the Supreme Court to use a case it is hearing this month to set a legal standard that could foreclose other needed gun restrictions that pose no real threat to the right to bear arms.

The Democrats should not be afraid to challenge Mr. McCain — or gun zealots’ wacky idea that the solution to campus mayhem is to arm teachers and students. (oops, sorry; they are serious too buddy)

Students Make a Case for Carrying Guns to School

http://www.npr.org/templates/story/story.php?storyId=88552637

http://concealedcampus.org/

After deadly shootings at schools in Illinois and Virginia, 12 states are considering legislation to allow guns on college campuses. Stephen Feltoon, a director for Students for Concealed Carry on Campus (SCCC), is part of a movement that says college students should have the same gun ownership rights as others.

Feltoon says he purchased his first gun for recreation. "Now I own it for defense," he says. "I can take a firearm anywhere that's not a college campus, a liquor establishment, or any business that posts a 'no gun' sign. When am I carrying it? That's the beauty of conceal and carry. You'll never know until I need it."

For The Moment and First Reactions

Impact of Gun Ruling Limited, Experts Say

WASHINGTON — The individual right to bear arms identified by the Supreme Court on Thursday will have little practical impact in most of the country, legal experts said, though Washington’s comprehensive ban on handguns used for self-defense in the home will have to be revised, and similar laws in several cities are also vulnerable.

Most state and city gun restrictions appear to be allowed under the ruling, including licensing laws, limits on the commercial sale of guns, restrictions on guns in places like schools and government buildings and prohibitions on the possession of firearms by felons and the mentally ill. “Dangerous and unusual” weapons can also be banned, although that phrase was not fully defined.

Justice Antonin Scalia, writing for the majority in the 5-to-4 decision, also suggested that bans on concealed weapons would probably pass — new locution alert — Second Amendment muster. Justice Scalia added that the court’s list of permissible restrictions was not exhaustive.

The legal battlegrounds will be cities with ordinances similar to Washington’s essentially complete ban, most notably Chicago.

“It’s really the municipalities that are the offenders,” said Robert A. Levy, a lawyer on the winning side of the case and an architect of the victorious strategy.

“There is likely to be quite a flood of litigation to try to flesh out precisely what regulations are to be permitted and which ones are not,” Mr. Levy said. “The challenges are likely to be in Chicago, New York, Philadelphia and Detroit.”

In fact, a lawsuit against Chicago’s very restrictive ordinance was filed almost immediately after the court’s decision. Four Chicago residents and two gun rights groups asked the federal district court there to strike down the ordinance.

Adrian M. Fenty, the mayor of Washington, said the city was taking steps to comply with the court’s ruling. Officials here are considering an amnesty period in which handgun owners can register them without penalty, Mr. Fenty said at a news conference.

Mr. Fenty emphasized that it remains illegal to carry handguns outside the home and that only registered guns may be kept at home. Automatic and semiautomatic weapons will generally remain illegal, he said.

In addition to Chicago, as Justice Stephen G. Breyer wrote in a dissenting opinion, several of its suburbs in Illinois, including Evanston, Morton Grove, Oak Park, Winnetka and Wilmette, ban the possession of handguns in many settings. Toledo, Ohio, bans some kinds of handguns, Justice Breyer wrote, and San Francisco would have a similar ban had it not been pre-empted by state law.

As the list of affected localities demonstrates, gun control laws of the sort most likely to be affected by Thursday’s decision are almost exclusively urban. Indeed, some 40 states pre-empt local gun regulations, indicating significant tensions between state lawmakers and municipal officials.

The status of laws that ban certain types of weapons is not clear, and that question is also very likely to generate litigation. Six states, Puerto Rico and at least 14 municipalities ban assault weapons and semiautomatic weapons, Justice Breyer wrote.

But Justice Scalia wrote that the Second Amendment’s protections apply only to weapons in common use, like rifles and pistols.

In a statement welcoming the decision, Brian Roehrkasse, a Justice Department spokesman, said the court had “appropriately recognized that the ‘carrying of dangerous and unusual weapons,’ such as machine guns, is not protected.” Mr. Roehrkasse added that the Justice Department would vigorously defend all existing federal firearms laws.

Because the case before the court arose from the District of Columbia and thus involved only federal law, the court did not resolve the important question of whether the Second Amendment’s protections apply to state and local laws.

Benna Ruth Solomon, a lawyer for the City of Chicago, said there was, at least for the time being, no doubt about the proper answer to that question.

“As we sit here today,” Ms. Solomon said, “this decision does not apply to the city of Chicago. It does not apply to the states or municipalities. The court has held that on three prior occasions. Those precedents remain good law until the Supreme Court says they do not.”

Those three decisions, from 1875, 1886 and 1894, were listed in the majority opinion. Justice Scalia seemed to cast doubt on their continuing validity in a footnote, saying that one of them “also said that the First Amendment did not apply against the states,” a view later rejected by the court.

Raymond W. Kelly, New York City’s police commissioner, said Thursday’s decision should not undermine restrictions on possessing guns in the city.

“The specifics of this case, as I understand them, were aimed at an absolute prohibition of having a weapon in your home,” Mr. Kelly said. “We have a provision in our law, in our regulations, that allow for a weapon in the home if you have a permit, a premises permit. But there’s no question about it that this decision will generate litigation throughout the country.”

Wayne LaPierre, the National Rifle Association’s chief executive officer, agreed only with the last statement. He said the city gave out gun permits capriciously, and he predicted that the practice would attract a legal battle.

“We all know how New York City handles that permit list,” Mr. LaPierre said. “If you are rich and famous, or a Wall Street executive or a celebrity or politically connected, you have no problem getting a permit. But if you are an average citizen, you are flat out of luck.”

To that point, Mr. Kelly said the permit system consisted of “common sense regulations” and was well run and fair.

Mr. LaPierre said New York would not be the immediate focus of the association’s legal strategy, which would instead center on cities with handgun bans.

Mr. Levy, the lawyer who represented the plaintiffs who challenged the gun law in Washington, said New York’s ordinance was in practice “not much different” from the one the Supreme Court struck down.

“You can have a gun in New York,” Mr. Levy said, “but you have to jump through a heck of a lot of hoops.”

Al Baker contributed reporting from New York, and Austin Bogues and Ian Urbina from Washington.

Justice Antonin Scalia’s majority opinion, his most important in his 22 years on the court, said the justices were “aware of the problem of handgun violence in this country” and “take seriously” the arguments in favor of prohibiting handgun ownership. “But the enshrinement of constitutional rights necessarily takes certain policy choices off the table,” he said, adding: “It is not the role of this court to pronounce the Second Amendment extinct.”

A Final Note:

Attorney Alan Garu walked into the pages of history yesterday. I listened on CSPAN to his oral arguments and I have read every word of his filings and other writings. This young member of our Alexandria Virginia community is a man to watch!

http://legaltimes.typepad.com/photos/uncategorized/2008/02/04/gura_alan1.jpg

Even for a lawyer with decades of experience and a résumé of eminent achievements, an opportunity to help shape constitutional history might never come along.

hen there's Alan Gura, 37, Class of '95 at Georgetown University Law Center. For him, the chance has just arrived.

When the U.S. Supreme Court hears arguments today in District of Columbia v. Heller, a case that could lead to a landmark ruling on the Second Amendment, Gura will address the justices for the first time in his career.

He'll ask them to uphold a lower appellate ruling that struck down the District's handgun ban, one of the nation's toughest gun control laws, which was passed in 1976. He'll urge them to interpret the Constitution as guaranteeing people the right to own firearms.

To merely call this the biggest case of Gura's relatively short professional life -- well, that wouldn't do it justice. Constitutional scholars everywhere are watching. To oppose him, the city has hired a 66-year-old legal titan who was winning arguments in the Supreme Court when Gura was still studying for the bar exam.

Must be nerve-racking.

"Not really," Gura said. "It's certainly very exciting to be able to argue not just in front of the Supreme Court, but to argue this case in particular. But at the end of the day, it's an appellate argument, and I've done a lot of those.

"It's the practice of law," he said simply. "And I've been practicing law for a while now."

Gura, a civil litigation specialist in the two-lawyer firm of Gura & Possessky, was hired to handle the legal fight in 2003 by a social acquaintance, Robert A. Levy, the wealthy retired entrepreneur turned libertarian scholar who is bankrolling the case.

Levy, a nonpracticing lawyer, and Clark M. Neily III, a libertarian public-interest lawyer who deals mainly with property rights, had laid the groundwork for the litigation by recruiting a diverse group of plaintiffs: six D.C. residents, all strangers to each other, who want to own pistols.

But Levy and Neily needed a lawyer to represent the residents in a lawsuit against the city.

"Bob just called me on the phone one day," said Gura, a Los Angeles native who studied government at Cornell University before enrolling at Georgetown. "Bob is not a litigator, and Clark has a job doing something else, so they needed someone to take the reins.

"And I just said: 'Sure! Sounds like a great idea!' "

Five years later, with the case having gained potentially historic significance, Levy said he has resisted pressure from gun-rights advocates and others who wanted him to replace Gura with a more seasoned lawyer.

"There were a lot of people who said, 'There are a lot of superstars who could do this case -- and Alan Gura's not -- and wouldn't you be better served by hiring someone else?' " Levy said. "But Alan Gura knows this case better than anybody in the world."

Like Levy, Gura is a libertarian who contends that the government interferes too much with constitutional freedoms. Unlike Levy, who said he has never owned a firearm and doesn't want one, Gura said he keeps a handgun in his Virginia home to protect himself, his wife and their baby son.

Although he said he believes passionately in his side's interpretation of the Second Amendment, Gura argues calmly, explaining his case with soft-spoken precision, when supporters of the handgun law pointedly challenge him. In his view, although it is permissible for the government to regulate firearms ownership, the Constitution forbids an outright ban.

The lawsuit, which Levy said Gura is handling for "something less than minimum wage," failed in U.S. District Court. But the U.S Court of Appeals for the D.C. Circuit overturned the decision last year and declared the ban unconstitutional. The D.C. government has asked the Supreme Court to reverse that ruling.

Only Dick A. Heller, 66, a security guard who lives on Capitol Hill, remains a plaintiff. The circuit court ruled that the others did not have legal standing to sue the District over the ban.

Gura said he is ready to square off today against the heavyweight hired by the city, Walter E. Dellinger, a former acting U.S. solicitor general who has argued 20 cases before the Supreme Court, winning 13, with two yet to be decided.

"There's been a lot of preparation," said Gura, who, like Dellinger, has rehearsed his argument before a mock panel of justices. "I've mooted this case aggressively. I've had five moot courts with excellent practitioners, top people, asking me tough questions. There's no substitute for that. You learn a lot about your case."

After graduating from Georgetown and working as a law clerk for a U.S. District Court judge in North Carolina, Gura was a deputy state attorney general in California for three years, handling civil litigation. He said he was often assigned to defend police officers who had been sued for allegedly violating suspects' civil rights.

Returning to Washington in the late 1990s, he spent about a year with a big firm, Sidley Austin, and a year as counsel to the Senate subcommittee on criminal justice oversight before starting his firm. He and his partner, Laura Possessky, have offices on K Street downtown and in Alexandria. http://www.gurapossessky.com/contact/

(Not Far From This Room) One everyday bus ride to King and Washington St. cross the street and a 3 minute walk. I am going for a visit very soon!

"I sure appreciate the confidence Bob has shown in me," said Gura, who is aware that some people have urged Levy hire a more accomplished appellate lawyer with a bigger name. Among the suggested replacements, Levy said, were former special prosecutor Kenneth Starr and former U.S. solicitor general Theodore B. Olson.

"I've had this case for five years," Gura said. "I won the case in the circuit court. I've written the pleadings. I've made the arguments before. I've devised the strategy. To take nothing away from those other lawyers -- because they're very fine lawyers -- but so what?

"It's not their case."

http://www.cato.org/pubs/policy_report/v29n3/cpr29n3-4.pdf

http://jurist.law.pitt.edu/hotline/2007/04/restoring-second-amendment-in-parker-v.php

http://www.gurapossessky.com/

End Post….

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Thursday, June 26, 2008

The Second Amendment Ruling (Plus)

Early Analysis

Other filings (And this prediction held up)

Early Analysis

Court: A constitutional right to a gun

http://www.scotusblog.com/wp/court-a-constitutional-right-to-a-gun/

Justices Rule for Individual Gun Rights

Gun-Control Supporters Show Outrage

For The Moment and First Reactions

Impact of Gun Ruling Limited, Experts Say

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Thursday, June 26, 2008

The Second Amendment Ruling (Plus)

Early Analysis

Other filings (And this prediction held up)

Early Analysis

Court: A constitutional right to a gun

http://www.scotusblog.com/wp/court-a-constitutional-right-to-a-gun/

*Justices Rule for Individual Gun Rights*

Gun-Control Supporters Show Outrage

For The Moment and First Reactions

Impact of Gun Ruling Limited, Experts Say

No comments:

Blog Archive

Justices Rule for Individual Gun Rights