Good Article from the LA Times

[cool hand luke 22:36]

I though that this aricle was pretty well balanced, astonishingly so considering it is from the LA TImes. The only argument I have with it is the assertion that the "individual right" interpertation of the Second Amendment is "new" simply because folks like Lawrence Tribe have adopted it.

Supreme Court to hear challenge to D.C. gun law

By David G. Savage, Los Angeles Times Staff Writer
March 17, 2008

WASHINGTON -- For more than 30 years, the District of Columbia has had the nation's strictest gun-control law -- a ban on having handguns at home for self-defense.

On Tuesday, the Supreme Court will hear a challenge to that law from those who say it violates the 2nd Amendment's right to keep and bear arms.

Few would cite D.C.'s gun ban as proof that gun control leads to crime control, as Washington continues to have one of the nation's highest rates of violent crime. Even some gun-control advocates don't support it.

The case has drawn wide attention not because of the district's law itself, but because the court may decide for the first time whether gun rights are truly protected by the Constitution, like the right to free speech and the right to freely practice one's religion.

If so, it could mark the beginning of new era in which judges around the country are called upon to decide whether the many restrictions and regulations of weapons infringe the rights protected by the 2nd Amendment.

"Whenever there is an individual right [protected by the Constitution], the burden is on the government to justify a limit on that right," said Robert A. Levy, a libertarian lawyer at the Cato Institute.

It isn't personal

An investment advisor who made a fortune and entered law school when he was 51, Levy has led the challenge to the D.C. gun ordinance, even though he lives in Florida and does not own a gun.

"I don't have a personal interest in guns or hunting. What fascinates me is the meaning of the Constitution," Levy said. He believes the 2nd Amendment should stand on the same footing as the 1st Amendment.

If the Supreme Court were to agree, the soft-spoken libertarian will have helped trigger a revolution in modern constitutional law.

The 1st Amendment's protection for free speech can be both powerful and controversial. Dissidents who burn the American flag in public are shielded from prosecution, the high court has ruled, despite state and federal laws that made flag-burning a crime.

By contrast, the justices have said remarkably little about the 2nd Amendment and have never used it to strike down a gun law. Often the court has turned away gun rights claims and upheld lower court decisions that treated the 2nd Amendment as protecting only a state's right to maintain a "well-regulated militia."

The amendment says: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Dennis Henigan, a lawyer for the Brady Center to Prevent Gun Violence, says his group does not support a D.C.-style law. "We do not favor a ban on handguns or long guns," Henigan said.

But he worries about the effect of the court saying the 2nd Amendment should be viewed like the 1st Amendment. "This could be an invitation for the lower courts to actively scrutinize all the regulations and laws involving guns. That's our real concern," Henigan said.

There are registration rules and waiting periods for some gun purchases. The sale of new machine guns and some "assault rifles" are prohibited by federal or state laws. In some crimes, being caught with a gun -- for example, tucked under a car seat -- can add years to a prison term. Henigan foresees defense lawyers challenging these extra punishments as unconstitutional.

Opinion polls show that most Americans believe law-abiding people have a right to own a gun. Most state constitutions also protect gun rights.

And in recent decades, liberal scholars such as Harvard's Laurence H. Tribe and the University of Texas' Sanford Levinson have joined conservatives such as UCLA's Eugene Volokh in asserting that the 2nd Amendment was intended to protect an individual's right to have a gun.

A new interpretation

This new scholarly interpretation laid the basis for the high court to finally consider whether an individual's right to have a gun could trump a city, state or federal law that stood in the way.

It is also possible that the effect of such a ruling could be left uncertain because of the unique status of the District of Columbia. It is not a state, and a ruling upholding individual gun rights under the 2nd Amendment would not automatically put state laws at risk. If the court says the 2nd Amendment protects gun rights, the justices would probably take a follow-up case to decide whether 2nd Amendment rights apply to state laws and city ordinances.

In challenging the D.C. law, Levy recruited plaintiffs including Dick Heller, a private security guard who wants to keep his gun at home. The district's ordinance allows homeowners to have a rifle or shotgun so long as it is disassembled or has a special trigger lock. But Heller said he wanted the use of a "functional firearm" for self-defense.

Last year, the U.S. appeals court here agreed with Heller and ruled that the 2nd Amendment protects an individual's right to have a handgun.

In their appeal, D.C.'s lawyers argue that history is on their side. In 1801, Georgetown, which later became part of Washington, adopted an ordinance forbidding the firing of guns. In 1857, the district made it illegal to carry a pistol in public, and Congress adopted a similar measure for the city in 1892. No one thought these laws violated the 2nd Amendment, the lawyers said, because the right to bear arms was believed to be intended for state militias.

Defining the right

But legal experts on both sides predict the court is likely to say the 2nd Amendment, like the rest of the Bill of Rights, protects individual rights. The real fight, they say, is over what this right entails.

Is the right to own and carry a gun a fundamental right that cannot be infringed by the government, except in special situations? Few would argue that gun owners have a right to carry firearms onto airplanes, or into the Supreme Court building.

Or is a gun a type of legal but dangerous product that can be strictly regulated by the government?

Henigan, the Brady Center lawyer, compares guns to automobiles. Americans have a legal right to own a car and drive on the highway, but they must also obtain a state driver's license and abide by speed limits, and the vehicle must pass a safety inspection.

"Guns, like automobiles, can be dangerous products. I don't see why our elected representatives don't have as much authority to protect the public from the misuse of guns as automobiles," he said.

A prominent gun-rights advocate says guns should be viewed like "books and churches."

Americans would be troubled by the idea of the government licensing people to be allowed write or publish books or to preach in churches, said David B. Kopel, a lawyer from Colorado. Because of the 1st Amendment and its protection for free speech and religious freedom, that sort of government regulation would be struck down as unconstitutional, he said.

Kopel filed a brief on behalf of police and prosecutors, including 29 California district attorneys, that contends that "guns save lives." For example, burglars are wary of invading homes if the owner may have a weapon, he said.

On the other side, Los Angeles Police Chief William J. Bratton and San Francisco Dist. Atty. Kamala Harris joined with other police and prosecutors in urging the court to uphold strict gun laws. They noted that police are often the victims of handgun crime.

Even the Bush administration has split on this issue. In January, U.S. Solicitor General Paul D. Clement, who represents the government in the court, urged a middle course on the 2nd Amendment. He said that individuals have a right to own a gun, but that this right is subject to "reasonable regulations." All of the current federal restrictions should stand, he said, including a ban on new machine gun sales, a ban on felons owning guns and a required background check for new buyers of handguns.

But Vice President Dick Cheney, a hunting partner of Justice Antonin Scalia, joined a group of House and Senate members in urging the court to take a stronger stand in favor of gun rights.

Despite the deep divisions, the court is likely to end up somewhere in the middle, some legal experts say.

"I can't see the court striking down the ban on machine guns or felons owning guns," said UCLA Law professor Adam Winkler. "This is mostly about symbolism. Gun control is not that popular, and most gun control laws are not that burdensome," he said. He filed one of several briefs that urged the court to preserve reasonable regulation of firearms.

The court is expected to hand down a decision in District of Columbia vs. Heller by late June.

david.savage@latimes.com

 

[Wildalaska]

Dennis Henigan, a lawyer for the Brady Center to Prevent Gun Violence, says his group does not support a D.C.-style law. "We do not favor a ban on handguns or long guns," Henigan said.

Liar.

WildhowsthatAlaska TM

 

[zoomie]

Baltimore is getting in on the pro-gun stories, too!

Another good one from the Baltimore Sun. Like LA, I was surprised to read it from that city.

http://www.baltimoresun.com/news/nation/bal-te.gunban18mar18,0,6159318.story

Court to hear challenge to D.C. gun ban
Second Amendment ruling could have broad impact on gun regulations

By Jennifer McMenamin | Sun reporter
March 18, 2008
WASHINGTON

For years, Dick Heller lived across the street from a crime-ridden public housing project where the top drug dealer marked the close of business every morning at 2 o'clock by emptying his 9 mm pistol into the air.

Tucked in bed below the windowsill of his brick rowhouse in Southeast Washington, Heller tried to assure himself that the brick walls would protect him as he slept. Still, the bullet mark to the right of his front door and the bullet hole in the first-floor window were reminders that eroded his peace of mind.

"If those people decide you've been whispering to the police and at 2 a.m. decide to come kick in your door, you don't have any chance," Heller said. "We were helpless."

Heller wanted to keep a gun at home for protection, but the district's long-standing handgun ban - the toughest in the nation - prevented it. His challenge to that law will be heard today when the Supreme Court considers arguments in its first Second Amendment case in nearly 70 years. Advocates on both sides of the gun-control debate have characterized it as the most important Second Amendment case in history.

"If the court upholds the D.C. ban, under any theory, it would make virtually every form of gun regulation constitutional," said Mark V. Tushnet, a Harvard Law School professor and the author of a book about the gun-control debate. "If the court strikes it down on broad grounds ... then it would spark a lot of litigation about what kind of gun regulations are permissible or not."

The case revolves around the much-debated meaning of the curiously phrased and oddly punctuated 27 words of the Second Amendment: "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."

Gun-rights advocates have long argued that the constitutional amendment guarantees an individual's right to own firearms. But gun-control proponents - as well as nearly every court that has weighed a Second Amendment challenge - interpret the wording to grant only a collective right to bear arms as part of a state-organized military force.

The last time the high court weighed in on the meaning of the Second Amendment was in 1939, when the justices upheld the convictions of two men who transported a sawed-off shotgun across state lines. The court reasoned that the men had no constitutional right to possess such a weapon because it would never have been used by a militia.

A patchwork of Maryland gun laws regulates the sale, possession and use of firearms within the state, from restricting the ease with which individuals can purchase firearms to requiring every handgun to be sold with a child-safety lock. In addition, state law pre-empts local governments' ability to regulate the possession, sale, manufacture, transportation and carrying of firearms within Maryland cities and counties.

In the 1970s, Washington's handgun ban was triggered by concern over increasing incidents of gun violence in the capital, including the 1973 shooting of a U.S. senator from Mississippi during a holdup.

A local police official ominously warned that District of Columbia residents should be aware that "if they get into an altercation with a stranger, there's a distinct possibility he may be carrying a gun," according to a 1974 Washington Post editorial.

"For a few years, we were called the crime capital of the nation. We bore that unholy title," said Sterling Tucker, now 84, who was president of the district's first elected city council in the 1970s. "There were just too many guns on the street. The mayor and the Police Department wanted us to do something about that."

He said he had "no hesitation" about voting in favor of the handgun ban when then-Councilman John A. Wilson proposed one in May 1976 - just 18 months after Congress granted the district the right of home rule.

The bill passed, 12-1.

Council members, however, had no delusions that the measure would be the silver bullet that would eradicate crime.

"What we're doing today will not take one gun out of the hands of one criminal," said then-Councilman Marion S. Barry Jr., according to news accounts at the time.

The law precluded anyone but retired and working law enforcement officers from keeping handguns in their homes and required that all shotguns and rifles be kept unloaded and disassembled or disabled with a trigger lock. The legislation granted exceptions for residents who already owned pistols, as long as they registered the weapons with city police by the deadline.

Heller, a San Diego native who moved to the Washington area in 1962 after a stint in the Army as a paratrooper, purchased his nine-shot Buntline revolver shortly before the handgun ban was enacted. With a 9 1/2 -inch barrel, the weapon resembled those carried by John Wayne in the old Westerns that made the actor famous, Heller said.

Though he almost certainly would have been allowed to keep the gun by registering it with the city, Heller declined to do so.

"I objected to the government knowing everyone's business," he said. "We lived in an era when John Wayne was still king. It was a culture that celebrated that."

So, Heller left the revolver with friends in Virginia, where pistols remained legal.

His neighborhood, meanwhile, went from bad to worse. Living just across the street from the infamous Kentucky Courts public housing at Kentucky Avenue and C streets on Capitol Hill, Heller routinely witnessed gunfire, drug-dealing and other violence.

When a friend who was renting a room from him suggested that they try to challenge the handgun ban, Heller agreed. They soon learned that Robert A. Levy, a multimillionaire and senior fellow in constitutional studies at the conservative Cato Institute, also was contemplating a lawsuit.

They teamed up in 2003 with Levy, who had recruited five other plaintiffs and had agreed to bankroll the case.

"This is about self defense - the right of people who live in a dangerous community and want to protect themselves and their families in their own homes," Levy said. "We're not talking about carrying machine guns down the street. We're not talking about threatening all federal gun laws. We're asking for minimal relief."

District officials and those supporting them in the case say that while the law did not eliminate gun violence in the city, it helped. What's more, they say, local governments should be free to regulate the activities of their citizens.

"I don't think the idea is to ban all weapons nationally," said Maryland Attorney General Douglas F. Gansler, whose office signed on to a brief filed with the high court in support of the district. "But if one jurisdiction decides it wants to have a conceal and carry law, say, in Virginia, and next door in D.C. they want to ban handguns, they all should be able to do that. That's self-governance and states' rights."

On July 17, 2002, Heller, a private security guard who carries a revolver on the job at a federal courts building in Washington, went to district police headquarters to register his personal .22-caliber pistol. As expected, officers turned him down.

But the excursion ended up salvaging the Second Amendment challenge last year, when a federal appeals court stripped the case of every plaintiff but Heller. Ruling 2-1 in his favor, judges on the U.S. Court of Appeals for the D.C. Circuit found that only he had legal standing to challenge the handgun ban, because his attempt to register his revolver had been refused.

Since Heller became involved with the case, the public housing near his home has been torn down, replaced by stylish townhouses and flats that city officials boasted sold for up to $600,000. He married. And he moved across town, renting his home to the friend who had suggested that they sue the city over the handgun ban.

That friend, Dane von Breichenruchardt, 62, a constitutional activist who has known Heller since 1993, noted that the remaining plaintiff in the Supreme Court case has, on occasion, guarded the very justices who will decide his case.

"He's the guy who defends the life of these judges and then at the end of the day, the poor guy - like Barney Fife - has to hand over his bullets when he goes home like a good boy," he said, referring to the laughable deputy sheriff from The Andy Griffith Show. "He's the kind of person you want to have owning a gun if you live next door."

jennifer.mcmenamin@baltsun.com

 

[swman]

If the SCOTUS doesn't declare the 2A an individual right, then the 2A is meaningless, it guts the whole purpose of the 2A. The only thing "new" is the collective rights interpertation. Anyone who belives in the collective rights theory has a serious logic problem.

 

[Baba Louie]

Batting Average

If one were to base his or her opinion on cases such as Kelo, or McCain-Feingold, or if one were a bit of a cynic and state that the Patriot Act does nothing to the remaining BOR's, one might tend to think that the 2nd Amendment also needs a good 21st century reaming by SCOTUS to match the others... Heller certainly provides an adequate vehicle of sorts (as did Emerson)... if one were somewhat cynical in nature that is.

I prefer to sit here in ignorant bliss awaiting my new National (Real)ID and micro-chipped Passport, watching the US dollar and economy melt down whilst I keep repeating

war is peace, freedom is slavery, and ignorance is strength

 

[publius42]

The case revolves around the much-debated meaning of the curiously phrased and oddly punctuated 27 words of the Second Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

...

The last time the high court weighed in on the meaning of the Second Amendment was in 1939, when the justices upheld the convictions of two men who transported a sawed-off shotgun across state lines. The court reasoned that the men had no constitutional right to possess such a weapon because it would never have been used by a militia.

The second amendment is not all that difficult to understand, and only contained one comma as passed. The extras are transcription errors or flourishes.

The Miller Court did not uphold the convictions by saying that a sawed off shotgun would never be used by a militia. They sent the case back to the lower court to answer the question of whether such a gun had any relationship to a militia. That question was never answered because Miller fled and died.

According to the "collective rights" interpretation, the Miller court should instead have simply refused to hear the case, because Miller was not part of any state militia. They did not do that. They obviously thought he might have some individual right to own a weapon, regardless of his lack of affiliation with any militia. They just weren't so sure about that particular weapon.

 

[MicroBalrog]

and most gun control laws are not that burdensome,

This man actually lives in California?