Does it Apply?

Last year, the Supreme Court overturned a handgun ban here in the federal enclave of Washington and ruled that the Second Amendment protects individual gun ownership (the justices did leave room for firearms regulation, saying government could prohibit guns in "sensitive places" and forbid ownership by certain dangerous people, such as felons). But the court did not say whether the Second Amendment also applies to the states.

Last Thursday, an 11-member panel of the 9th U.S. Circuit Court of Appeals grappled with this specific question. The case, Nordyke v. King, involves a dispute over a firearms ban at the Alameda County Fairgrounds in California. Some members of the divided panel argued that the Second Amendment "right to keep and bear arms" is binding on states. Others argued that the Supreme Court has never overturned its earlier rulings that said the Second Amendment applies only to the federal government. One judge suggested the court uphold the ordinance as a valid public safety measure while side-stepping the constitutional argument.

Sayre Weaver, attorney for Alameda County, presented the argument that the earlier Supreme Court decisions that set precedents on the scope of the Second Amendment remain binding and can be overturned only by the high court. The 9th Circuit issued an order after the argument that they are holding the Nordyke case pending disposition by the Supreme Court of another case, National Rifle Association v. Chicago, where the 7th Circuit Court of Appeals found that the Second Amendment is not incorporated at the state level.

The Supreme Court’s decision on whether to accept the Chicago case for consideration will be a key one and have a significant effect on gun-related litigation across the country.

Sound the Battle Cry of Radicalism

At my age I probably should not be—but constantly am—amazed at the things some in the pro-gun lobby will say in order to get a mention in the news. In a desperate attempt to fire-up the faithful, groups like Gun Owners of America (GOA) have accused Supreme Court nominee Sonia Sotomayor of being “an anti-gun radical” for joining a Court of Appeals for the 2^nd Circuit opinion earlier this year that refused to incorporate the U.S. Supreme Court’s D.C. v. Heller decision on the Second Amendment at the state level.

In their shrill statement, the group charged that “Sotomayor, a politically correct lover of centralized government power (as long as she is part of the power elite), immediately went into counter-attack mode against the Heller decision” in the opinion mentioned above in the case of Maloney v. Cuomo.

As if to emphasize how detached from reality that rant was, this past week a panel of conservative judges on the U.S. Court of Appeals for the 7^th Circuit, hearing a challenge to gun laws in Chicago and Oak Park, Illinois, came to the same conclusion as the Sotomayor panel. “We agree with Maloney” read the unanimous decision written by the circuit’s Chief Judge, Frank K. Easterbrook, one of the country’s leading conservative jurists. “The Supreme Court has rebuffed requests to apply the Second Amendment to the states,” Easterbrook wrote. He was joined in the decision by the well-known conservative jurist Richard A. Posner and a third Republican-appointed judge.

Now, I have no idea of how Judge Sotomayor actually feels about the gun rights/responsibility debate. I truly wish that I did. However, I do know that the gun lobby has no more information than I do. That does not prevent them, however, from making outlandish and defaming statements to play to the media and attempt to raise more funds from the faithful. Nor does it bode well for an honest debate on the issues. Once again, the gun lobby adheres to the admonition to not let the salt of truth ruin the flavor of a good press quote.

It's About Citizenship

Many of you are aware that CSGV Executive Director Josh Horwitz has a book coming out this month, Guns, Democracy and the Insurrectionist Idea, that “recasts the gun debate” by “demonstrating how reasonable gun control is essential to the survival of democracy and ordered liberty."

Josh is not the only person thinking about this topic in the wake of last year’s District of Columbia v. Heller decision, however. Frequently, I will receive emails from a nonprofit organization, The Potowmack Institute, whose motto is, “It’s not about guns…it’s about citizenship.”

A recent missive from the Institute contained some very provocative ideas:

We are in the midst a crisis in gun violence and gun trafficking that is no longer simply national. It has become international … These crises can no longer be ignored … The [Senate] Judiciary Committee will have confirmation hearings on a Supreme Court nominee. It is not usual to ask nominees questions on cases, but the Parker [v. District of Columbia]/Heller gun rights cases do offer possibilities on the most fundamental concepts…

The vital arguments [have been] ignored … The substantive discussion begins with something very simple: What James Madison was really describing in Federalist Paper No. 46 was not a civil right of private individuals. It ends with something equally simple. The Parker/Heller cases were a devastating defeat for gun rights ideologies [in part because those decisions affirmed that a wide range of gun control regulation is both constitutional and permissible and because they refused to adopt a strict scrutiny standard for future regulations]. If the gun lobby does not accept the opinions of the courts, the constitutional challenge to them is to launch a campaign for a constitutional amendment. The cynical business of defeating legislation does not secure a constitutional right.

The hearings have to be directed toward the formulation of national policy. The only really important goal of national policy is to control the illegal traffic of guns between and among jurisdictions and now, between and among nations. That is empowerment policy for local jurisdictions. The Federal Government need do little more. That goal can only be accomplished by registration of ownership and reporting of private sales...

[The solution] is very simple: Resurrect the original militia concept and practices as manifest in the “Militia Act of 1792.” Registration for militia call-up—regardless that a call-up ever takes place—is a matter of military preparedness. It can have the added benefit of controlling the illegal traffic [in firearms]. We can call it the “Homeland Security Militia Reserve Act.”

The constitutional authority for such a national firearms policy is not the much overused Commerce Clause, but the militia clauses and the Second Amendment. Militia duty was conscript duty. Privately owned weapons were a public resource [used for] public duty. They were placed on inventories and reported to the president of the United States ... Can the Judiciary Committee conduct a badly needed national civics lesson? There are no libertarian individual rights in a conscript military organization. After the Parker/Heller opinions there can be no constitutional objections.

The gun rights ideologues would, I think, be very eager to get a hearing for their rights. The business of serious political leadership is to keep them honest and hold them accountable.

A policy that actually entails some real responsibilities for those who consistently clamor about their “rights”? Sounds like a great idea to me...

The Duty of Every Individual

The U.S. Senate has always embraced tradition and precedent, and one of the chamber’s great traditions is to read George Washington’s Farewell Address every year on the birthday of our extraordinary first president. This year, the honor of reciting this wonderful speech went to newly-elected Senator Mike Johanns of Nebraska.

Washington’s Address is a remarkable commentary on the virtues of our Constitutional Government which seems as relevant today as it was 212 years ago. In the speech, Washington makes clear our duties and responsibilities as American citizens:

“This Government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true Liberty. The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish Government presupposes the duty of every individual to obey the established Government.”

Indeed, Washington advised American citizens that “your Union ought to be considered as a main prop of your liberty, and that the love of the one ought to endear to you the preservation of the other.”

Listening to the Address again, I couldn’t help but think of the current debate over gun control in America. One of the ideas that has gained great currency among right-wing commentators in our country is that the Second Amendment grants individuals the right to stockpile firearms against our Government and take violent action should it become “tyrannical.” This disturbing argument was advanced by the National Rifle Association (NRA) in its amicus brief in D.C. v. Heller (“The Framers sought to effectuate their purpose of guarding against federal overreaching by guaranteeing the right of the people to keep and bear arms … Arms dispersed among the people would prove far more difficult to confiscate”) and even gained currency with Justice Antonin Scalia, who wrote the majority opinion in the case (“When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny”).

I wonder if Justice Scalia has ever surfed the Internet. If he had, he might have seen comments like this one left on my blog by a pro-gun activist last week:

“The 2nd Amendment was written so that ‘the People’ will NOT be ‘outgunned’ by ANY military/police force, foreign or domestic … Military and police have access to weapons civilians are ‘forbidden’ to own i.e. machine guns etc. How is a civilian with a bolt action rifle or revolver or semi-auto handgun with a magazine restriction supposed to combat against someone else with better weapons and a larger magazine capacity?????”

What would Washington have thought of this insurrectionist chest-beating? Well, his reaction to the Whiskey Rebellion of 1794 provides us with clear answers to that question. The rebellion involved a series of violent attacks on excise agents that were launched by farmers in the western counties of Pennsylvania. The rebels were angered by a new federal tax that had been imposed on whiskey in 1791.

In a proclamation, President Washington described the rebels as “insurgents” and condemned their “overt acts of levying war against the United States.” Nearly 13,000 state militiamen were called up by the president, and they marched into Pennsylvania and quickly quelled the rebellion. The incident, however, was still on President Washington’s mind two years later in his Farewell Address:

“The basis of our political systems is the right of the people to make and to alter their Constitutions of Government ... All obstructions to the execution of the Laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels, and modified by mutual interests. However combinations or associations of the above description may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines, which have lifted them to unjust dominion.”

Washington’s warning still rings in our ears today as the gun lobby continues to encourage Americans to arm themselves against our Government. Let us hope that our Members of Congress, who pay tribute to our great Founding Father annually, take his words to heart and explore the publicly-stated rationale for opposition to sensible gun laws in this country.

Something Wicked This Way Comes

Something strange seems to come over far-right Republican Members of Congress during election season. A case in point is seven-term Congressman Mark Souder from the state of Indiana. He is by all accounts an opponent of “Big Government” and federal interference in local matters. But in an election year when he is facing a stiff challenge from Democrat Mike Montagano, Souder has decided to spend his time pushing a bill that seeks to usurp the powers of the mayor, city council and residents of the District of Columbia.

H.R. 1399 would pre-empt the Supreme Court’s recent decision in District of Columbia v. Heller and prevent the city from complying with the ruling by instituting a new registration system for handguns. Souder’s bill would allow individuals to possess unregistered firearms, repeal the District’s ban on assault weapons, and prohibit the city from taking any future action “to enact laws or regulations that discourage or eliminate the private ownership or use of firearms.” Federal lawmakers are essentially being asked to impose on the city of Washington something they would never tolerate for their own home districts.

Given the state of the economy and the ongoing conflicts in Iraq and Afghanistan, one would think our Congress has far more important things to do than serve as the city council for the District of Columbia. However, the National Rifle Association (NRA) remains a lobbying power on Capitol Hill and it is eager to throw raw meat to its contributors as the November elections approach. According to The Hill newspaper, the NRA will be grading Members of Congress on whether they support a discharge petition to bring H.R. 1399 to the floor of the House. Conservatives looking for NRA money and support have been put on notice.

The District is vulnerable to such an attack, of course, because it continues to lack voting representation in Congress. Rep. Souder and many of the co-sponsors of H.R. 1399 are the same politicians that time and again have opposed the “District of Columbia House Voting Rights Act,” which would give the city a voting representative in their chamber for the first time ever. D.C.’s non-voting Delegate to Congress, Eleanor Holmes Norton, has been perfectly clear regarding her opinion of Rep. Souder’s legislation, stating, “I've seen some outrageous attempts to violate home-rule, but this nakedly political and unnecessary NRA-driven attempt is a new low because, by acting now, they deny the District the decency and respect due any American jurisdiction going through the prescribed process for complying with [a decision by the Supreme Court].”

In a time when our country is facing real and pressing issues domestically and abroad, it’s not only D.C. that should be feeling outrage. Voters who want their elected officials to deal with the problems that actually affect them and their families might also want to keep their eye on what Rep. Souder and the NRA are trying to pull off in Congress.

Freedom vs. Responsibility

Now that we have properly celebrated the Declaration of Independence and the birth of our freedom as a nation, perhaps it is time to begin a reflection on the obverse side of the same coin. As German theologian and Nazi resister Dietrich Bonhoeffer wrote, "Responsibility and freedom are corresponding concepts. Factually, though not chronologically, responsibility presupposes freedom and freedom can consist only in responsibility. Responsibility is the freedom of men which is given only in the obligation to God and to our neighbour."

I have long believed that as an extension of the Statue of Liberty in New York harbor, the U.S. needs to build a Statue of Responsibility in San Francisco harbor. Our nation must maintain a very delicate balance between these two poles. Too much freedom and you have anarchy; too much regulation and you lose freedom. We do not live in isolation—we live in a greater community and we have the responsibility to consider the impact of our actions on our neighbors and the country as a whole.

This dichotomy has always fascinated me in regards to the gun safety debate. On the one hand we have zealots who proclaim that there are no acceptable restraints on their freedom to possess firearms. On the other hand we have zealots who believe that no one should be able to own firearms in any circumstance.

The recent Supreme Court decision in the case of District of Columbia v. Heller has set the principle that there are legitimate restraints on the constitutional rights of individual citizens to own firearms. This is consistent with the view of our Founders that government regulation was an integral part of not only the Second Amendment, but ordered liberty in general. A tremendous opportunity is now open to us. We can enter into a genuine debate—unmarred by propaganda— over what legitimate restraints can and should be placed on firearm sales and ownership in order to keep America’s communities safe. It will be a delicate balance to attempt to achieve, but many of our country’s greatest accomplishments have involved this type of careful and thoughtful compromise.

Standing the Constitution on its Head

I had thought that our system of government was broad and stable enough to stand up to the pressures of any one wing of political factions. Now I must admit that I am amazed at the damage that has been done to the American political system by a small group of dedicated Neo-Cons over the past seven years. Any positive image of the U.S. throughout most of the rest of the world has been thoroughly trashed. The ability of the government to react effectively to crises has been called into question. Our military has been over-burdened and stretched too thin by an expensive and unnecessary foreign military occupation. The executive power has been enhanced to the detriment of our other branches of government.

And now the Supreme Court has overturned over 100 years of judicial precedent and stood the Second Amendment to the Constitution on its head. The 5-4 decision in District of Columbia v. Heller, written by Reagan appointee Justice Antonin Scalia, holds that the Second Amendment protects an individual right to possess firearms for self-defense purposes unconnected with service in a well regulated militia.

As Josh Horwitz, Executive Director of the Coalition to Stop Gun Violence, recently wrote: “By deliberately omitting what test the Court is using to decide that [the District’s handgun ban and trigger lock requirement] unreasonably burden this newly proclaimed individual right to possess firearms, the Court leaves legislators and lower courts adrift at a time when public health data clearly shows the harm associated with handguns far outweighs any benefit from their use for lawful self defense.”

The decision is a terrible one and complete misreads the Framer’s intent in drafting in the Second Amendment. It is relatively narrow in scope, however, and leaves many critical questions unanswered. More importantly, it does not prevent gun violence prevention organizations from actively pursuing a wide range of legislative initiatives to reduce gun violence. Here at the Coalition to Stop Gun Violence, we will still be able to pursue all of our goals: pushing to close the Gun Show Loophole, passing microstamping laws to assist law enforcement with crime-solving, and holding gun manufacturers and dealers accountable for their distribution practices.

We will see if the Heller decision ultimately stands the test of time. But it certainly will not stop the work of millions of Americans across our country who are deeply concerned about the 30,000+ lives lost annually to gun violence. We are resolved to fight for sensible controls on the design, manufacture, sale, and distribution of firearms in America and will not stop until the senseless bloodshed in our country ceases.

What a Difference 2/9 Can Make

This week marks an important step in the quest to determine the role the Second Amendment will play in the national campaign to reduce gun violence. On Tuesday, March 18, the nine members of the Roberts' Supreme Court will hear oral arguments in the case of the District of Columbia v. Heller. The District’s strict gun laws, which have been in effect since 1976, were declared unconstitutional in a lower court decision the Supreme Court will be reviewing.

The ultimate decision of the Justices in the Heller case could determine the scope of gun control legislation across the nation. Or the Court might decide to limit its ruling in a very narrow manner. Either way, the issue will be decided by a minimum of five members of the Court. Two of those members, Chief Justice John Roberts, and Justice Samuel Alito, Jr., are relatively new appointees of President George W. Bush. Those two Justices have already had a significant impact on the activist role this Court has played in several major cases. What a difference two votes can make on a wide range of important issues!

The Supreme Court debate this week will be an interesting political side-show, but the final decision is not expected until near the end of the Court's term in late June. Whatever the decision of the Court in the Heller case, the real campaign to reduce gun violence can and will continue. No matter their interpretation of the Second Amendment, a wide array of legislative and social action strategies are, and will continue to be, open to the gun safety movement. We at the Coalition to Stop Gun Violence renew our thirty-year pledge to you to utilize every possible action to bring an end to the epidemic of gun violence in this nation.