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Tuesday , March 18, 2008
By Lee Ross
http://www.foxnews.com/story/0,2933,338282,00.html
WASHINGTON — The nine justices of the highest court in the land will meet Tuesday to hear arguments on who the Founding Fathers intended when they called for the Second Amendment right to keep and bear arms: a well regulated militia or all individuals.
Tuesday's arguments in front of the Supreme Court — the focal point for gun rights advocates and foes alike — will be the first significant Second Amendment case in front of the high court since 1939. Supporters and opponents are equally excited and concerned by the prospect of what the court’s ruling — expected by June — could mean for individuals seeking clearer laws on the right to bear arms.
Washington, D.C., the nation's capital and one party to the case, argues its handgun ban “is a governmental duty of the highest order.” The contrary argument claims the city's law is “draconian” in its infringement of Second Amendment rights, which states, "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."
In its pre-argument briefs to the Supreme Court the parties to this case seem to have been writing to convince today’s nine foremost grammarians or historians. Much of the presentations to the Supreme Court focus on the grammatical meaning of the 27-word amendment.
The agitator at the center of this case is Dick Heller, a police officer for the federal government who in his job patrolling federal buildings carries a handgun. But D.C. law prohibits him and nearly every other resident from registering a handgun for personal use.
Heller contends the handgun is necessary to defend himself at his home. The city’s law, on the books for more than three decades and one of the most stringent in the country, was passed to prevent violent and accidental gun violence. It’s a law the city and its supporters say is necessary and successful.
Heller’s lawsuit against the city was initially dismissed but the D.C. Circuit Court of Appeals, in a landmark 2-1 decision, overturned that ruling. It declared that the Second Amendment guarantees all individuals the right to keep and bear arms.
That ruling contravened decades of jurisprudence that held the Second Amendment right was exclusive to militias. The D.C. government appealed that ruling and in November the Supreme Court announced it would take the case.
The D.C. government presents three overarching arguments to the Court. First, the city contends the D.C. Circuit erred in its basic interpretation of the law.
“The text and history of the Second Amendment conclusively refute the notion that it entitles individuals to have guns for their own private purposes,” reads the appeal by the city to the high court. Specifically, it points to the language of the Second Amendment and argues both clauses taken individually or in concert can only be read to suggest its application to militias and not individuals.
As for its historical argument, the city concludes, “There is no suggestion that the need to protect private uses of weapons against federal intrusion ever animated the adoption of the Second Amendment.”
The city's attorneys detail the debate that preceded the enactment of the law as part of the Bill of Rights. In so doing, the city draws upon the works of William Blackstone, Alexander Hamilton, James Madison and similarly worded legislation passed in the late 18th century. It argues the Founders’ “efforts surely were purposeful, and should not be ignored two centuries later.”
The city’s second argument is that the Second Amendment does not apply to District-specific legislation. It is a curious argument, at least politically, for a government keen on seeking equal representation in Congress.
“The Framers created a federal enclave to ensure federal protection of federal interests. They could not have intended the Second Amendment to prevent Congress from establishing such gun-control measures as it deemed necessary to protect itself, the president and this court.”
Its final argument rests on an analysis of the D.C. statute which the city says should be done on a “proper reasonableness” standard. The city argues its law “represent(s) the District’s reasoned judgment about how best to meet its duty to protect the public. Because that predictive judgment about how best to reduce gun violence was reasonable and is entitled to substantial deference, it should be upheld.”
In response, attorneys for Heller roundly disagree with the District’s positions with its most fundamental argument being that the lower court was correct in its judgment that the Second Amendment does in fact guarantee an individual the right to keep and bear arms.
They contend the D.C. gun ban is a “draconian infringement” of the Second Amendment. And they too present their grammatical and historical interpretation of the law writing there cannot be “doubts or ambiguities” about the meaning of the second clause or its relationship with the first.
“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,” the attorneys argue.
Heller’s lawyers also present its Founders-era evidence by quoting from George Mason, Blackstone and Madison. They also quote lawyer John Adams during his successful defense of British soldiers in the aftermath of the Boston Massacre.
In that trial Adams conceded that “here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time for their defense, not for offense."
They also dismiss as spurious the city’s argument that the Second Amendment does not have the effect of law in the District of Columbia. They acknowledge that Congress (and now the D.C. government under Home Rule) has the ability to make gun laws but must do so in accordance with the Constitution. Heller's lawyers draw a parallel with Congress’s power to run the city’s schools which they note cannot then be segregated or otherwise be operated contrary to Constitutional holdings.
Finally, they dismiss the city’s argument that the handgun ban is legal under a “proper reasonableness” standard. Instead they offer a “strict scrutiny” guideline for imposing restrictions on gun ownership.
“As our nation continues to face the scourges of crime and terrorism, no provision of the Bill of Rights would be immune from demands that perceived governmental necessity overwhelm the very standard by which enumerated rights are secured. Exorbitant claims of authority to deny basic constitutional rights are not unknown. Demoting the Second Amendment to some lower tier of enumerate rights is unwarranted. The Second Amendment has the distinction of securing the most fundamental rights of all — enabling the preservation of one’s life and guaranteeing our liberty. These are not second-class concerns.”
It is common for the Supreme Court to ask for the official position of the United States government. In this case, Solicitor General Paul Clement has been given 15 minutes to argue before the court. Lawyers for the District of Columbia and Heller will each have 30 minutes.
His brief, however, surprised many when it argued against a definitive ruling on the merits of the case. Instead the brief counsels the justices that the “better course” would be to remand the case back to the lower courts for further review. In so doing, Clement urges the court to acknowledge the “plain text” of the Second Amendment and recognize that the law does guarantee an individual right to keep and bear arms. He says such an interpretation “reinforces the most natural reading of the amendment’s text.”
Clement asks the court to remand the case out of fear that an outright affirmation of the lower court’s ruling could “cast doubt” on all existing federal firearms legislation.
“The Second Amendment, properly construed, allows for reasonable regulation of firearms.” Within that framework Clement offers to the court what he describes as an intermediate or heightened level of judicial review. He says the court’s handling of legally similar cases by remanding them for further proceedings represent a due diligence that should be followed in this case.
Of the more than 65 friend-of-the-court briefs filed on this case, one drew immediate attention for its dismissal of the solicitor general’s remand argument and because the lead name attached to it is that of Vice President Dick Cheney. Cheney, in his position as president of the Senate, joined a brief with 55 senators and 250 House members to support Heller asking the court to fully affirm the lower court ruling. It created the most unusual circumstance of the vice president — not to mention majorities of both chambers of Congress — in opposition to the official position of the U.S. government.
“This court should give due deference to the repeated findings over different historical epochs by Congress, a co-equal branch of government, that the amendment guarantees the personal right to possess firearms. ... No purpose would be served by remanding this case for further fact finding or other proceedings.”
The members of Congress who joined the brief are mostly Republicans, including presumptive Republican presidential nominee and Arizona Sen. John McCain. A healthy number of gun-rights Democrats also joined in the brief.
Sens. Hillary Clinton and Barack Obama, both vying for the Democratic presidential nomination, did not make their positions known to the court.
Another brief by 17 other House members—all Democrats—and the non-voting delegate to the House from Washington, D.C. asked the court to uphold the city’s handgun ban.
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