>From Gun Week: Pro-Gunners Face Dilemma In Parker v. District of Columbia
by Joseph P. Tartaro, Executive Editor April 10, 2007 I have been editing Gun Week for over 25 years and had contributed to this newspaper, and several other gun magazines and even law journals, for many years before that. I think my active involvement in firearms civil rights activism goes back to the 1960s. I profess to be a writer, maybe even a journalist, but not a lawyer. During all those years, there have been many individuals, convinced that the Second Amendment guarantees every law-abiding citizen an individual right to keep and bear arms, who have downplayed the role of political activism and public education by pro-gun individuals and organizations by suggesting the most simplistic of solutions. “Why not solve the whole problem once and for all by taking a case to the Supreme Court? Let the court tell the politicians that their gun laws are unconstitutional,” they advise. Of course that is even more simplistic than in sounds. Many of the people who believe in the individual right to keep and bear arms grew up and were educated in an earlier era when that view was almost universal, even taught in schools. But times and the ways people look at ideas have changed, and changed dramatically. How the media, the public, lawmakers and the courts view fundamental questions of human rights is amazingly different. And elected officials, scholars and the courts were largely trained in a different worldview. Without debating the intricacies of the abortion issue, let’s examine some of its history, as an example of change. Years ago, people might only speak of terminating a pregnancy in hushed whispers behind closed doors; today the subject of abortion is one of the most divisive political issues of our times. The 1973 Roe v. Wade decision provided a thunderclap of change which is still being argued. However, all of the nuances of that decision are still being sorted out and are likely to remain unsettled for years to come. The courts must resolve peripheral questions, such as parental notification, late term abortions, and so on. Roe v. Wade may have legalized abortion, but it was not a total reversal of past rulings and traditions, and there are shadings to that issue which will be decided in years and courts to come. I mention all of this because we may have finally arrived at a similar watershed point in the battle for the individual right to keep and bear arms. And let me remind readers that there are two parts to that question of rights; the “keep” and the “bear” are separate issues. Even plenty of people who believe in their right to arms split when it comes to those questions which is why it has been so difficult in recent years to get right-to-carry laws passed even in states that have a long tradition of keeping and using arms for recreation and defense. Over the past 30 or 40 years some people cringed whenever the idea of bringing a gun rights case before the Supreme Court was mentioned. In fact, many strategists argued against such a course, believing that the judges were more disposed to a collective right theory, or even one that has not been advanced before. Some argued that more liberal courts of recent times that were disposed to abandon the original intent of the Founding Fathers would be dangerous arbiters of the Second Amendment’s meaning. Others counseled that we should wait for a generation of change on the Supreme Court as presidents more to their liking appointed more judges mindful of original intent and hostile to change. The fallacy to that argument is that both conservative and liberal presidents have been surprised when their judicial nominees turned out to hold views that were different than supposed. With all of that said as preamble, I’d like to add a few comments of my own regarding the Parker v. DC decision and the likelihood that it will become a major Supreme Court gun case, as reported in Dave Workman’s report. As is suggested by Workman’s article and the people he interviewed before writing it, the Parker case may be a turning point in the struggle for the right to keep and bear arms. It must be remembered, however, that the Parker case focuses on the question of “keeping arms” in one’s home or business, not “bearing” arms on the streets of Washington, DC, or anywhere else. If it goes to the Supreme Court, and the court upholds the Mar. 9 ruling by the three-judge panel in the DC appellate court, it will not spell the end of all gun control laws. That decision, like the earlier 5th Circuit Emerson decision left room for some limitations on firearms possession and use while upholding an individual right to possess them. The anti-gunners has been tearing their hair out and screaming that the world of gun control will come to an end if the Supreme Court upholds the Parker decision. As usual, they are predicting nothing short of the end of civilization as we know it if the decision is upheld. Some pro-gunners are almost as extreme in their fear of what would happen if the court overturns Parker, something I find hard to believe given the careful preparation of the case, the upstanding nature of the plaintiffs, and the scholarship woven into the Parker decision. Sooner or later, it is inevitable that one or more Second Amendment cases will be accepted by the Supreme Court, no matter what the pro-gun and anti-gun leaders and their strategists say. I believe that Parker should be that case. As I mentioned, it is a case about the right to keep arms in one’s home. Later, there may be cases that address the question of bearing arms outside the home. Better now the Parker case than the one involving drug dealers, terrorists, bank robbers, and rapists—all of whom frequently raise the Second Amendment in their defenses. As Parker case attorney Alan Gura told Workman during his interview, “If not this case, which case?” And as NRA President Sandy Froman, who is an attorney in Arizona, noted to Workman if any gun law was going to be challenged on Second Amendment grounds, the District’s gun ban is “just about the best law that could be challenged.” “It is not only an unwise law, but an unconstitutional law,” she said. “How can you say that someone can’t own a gun in their own home for self-defense? We’ve seen that the gun ban is a total failure...This is a good way to challenge the law, with great plaintiffs. The attorneys have done a good job on this case.” There are some big flies in the ointment leading to a Supreme Couirt ruling on Parker. The flies are pro-gun flies, or as the Washington media likes to say these days “neo-pro-gun.” The flies came with good intent, but they now pose a threat to the Parker ruling. They are the Senate and House bills that have been filed by friendly pro-gun lawmakers at the urging of pro-gun groups like the National Rifle Association. Unfortunately, if those bills designed to wipe out the District of Columbia’s anti-gun ordinances pass before the Supreme Court has chosen a course regarding the Parker case, they could destroy the fine, even landmark decision, written by Judge Laurence H. Silberman. While these bills offer some promise for some gunowners, they are totally unnecessary. If Parker is upheld, the legislation would be pointless. In the unlikely event that the Supreme Court hears and overturns the Parker decision, there will be plenty of time to respond legislatively. Further, if the Supremes review and uphold the Parker decision, it will have a lasting national impact for years to come. It will provide a well protected fortress from which we can campaign for more changes and more favorable decisions on gun laws. If the Supreme Court decides not to review Parker because Congress passed the Hutchinson or Souder bills giving DC residents a carry law rendering the Parker decision moot, we will be faced with a continuation of the same old battle, with the prospect that an anti-gun Congress, where an anti-gun president, and an anti-gun Washington, DC, council could change the laws back again, or even make them worse. This article is provided free by GunWeek.com. For more great gun news, subscribe to our print edition. ***************************************** Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [EMAIL PROTECTED]
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