7/08 The Heller Earthquake Resonates In Bradyville

The Heller Earthquake Resonates In Bradyville

Erich Pratt
Director of Communications
Gun Owners of America

The Supreme Court handed down a historic decision on June 26, 2008, when it decided the DC v. Heller case.

The judges struck down the handgun ban and gun lock-up requirement that had existed in the nation’s capital for more than 30 years, and in doing so, sent shockwaves through the gun-hating legal community.

With one stroke of the pen, the Supreme Court not only vetoed the most draconian ban on guns in the country, it refuted a myriad of myths that have been peddled in the gun control utopia of “Bradyville” for so many years.

Remember hearing that no court has ever used the Second Amendment to strike down a gun control law?

Or how about this one: There is no individual right to keep and bear arms apart from membership in a militia… and guns should only be used by the military and police?

The residents of Bradyville have peddled all of these myths for years and years prior to the Heller decision. But now, groups like the Brady Campaign to Prevent Gun Violence are scrambling for new talking points. The judges effectively dismantled each one these assertions in its 64-page majority opinion.

In fact, the Court spent an entire 54 of those pages analyzing the history behind the Second Amendment… and they got it right! Much of what they said could have been written by one of GOA’s staff attorneys:

  • They clearly stated that the right to keep and bear arms is an “individual right” which is not dependent upon membership in a state militia (pp. 5-7, 11-12).
  • The court recognized that keeping a despotic federal government from disarming the people was a central purpose of the amendment (pp. 24-26).
  • The judges said that the Second Amendment right protects modern firearms — not just eighteenth century weapons — just as the First Amendment protects electronic communications (such as radio and TV) and the Fourth Amendment guards against current methods of seizing illegal information by using computers, listening devices, etc. (p. 8).

Gun Owners of America submitted an amicus brief in the Heller case and, among other things, urged the Court not to use the Heller case as a springboard to resolve the constitutionality of all of the nation’s firearms laws.

Were the court to have done this, it could have been a disaster. After all, the majority stated its opinion should “not be taken to cast doubt” on at least some prohibited persons’ restrictions, gun free school zone bans and dealer licensing requirements. This dicta implies that courts might go further than the Constitution allows in upholding these gun restrictions in the future.

Thankfully, this “dicta” is just that — it’s editorializing by the judges, which is non-binding on future courts.

The GOA brief was the only one making the request not to rule on these other gun issues, thus upholding judicial restraint. We were most pleased to see that the judges heeded our admonition to limit the Court’s holding to the case before it.

The U.S. Supreme Court also followed GOA’s request to shoot down both the DC government and the Bush Administration on one important point — the mistaken idea that the Court should set a “standard” to “balance” our liberties against the government’s interest in enforcing restrictions.

Thankfully, the Court struck down the DC gun ban, simply ruling the ban was prohibited by the text of the Amendment. The majority said that the language elevates, above all other interests, the “right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

Gun control advocates were clearly distraught by much of what the Court said.

Notable gun banner, Sen. Dianne Feinstein (D-CA), was quite upset, saying she was “profoundly disappointed” in the Court decision.

Paul Helmke, President of the Brady Campaign, lamented the Court’s decision, saying that it will most likely “embolden” gun rights activists to file “new legal attacks on existing laws.”

Supreme Court Justice Stephen Breyer — in his dissent — mourned that the majority opinion “threatens to throw into doubt the constitutionality of gun laws throughout the United States.”

Anytime these three gun haters are upset, gun owners should be happy.

To be sure, the Court’s ruling opens the door to future lawsuits that take direct aim at many different kinds of gun control laws around the country:

(1) Gun Bans. By stating that handgun bans are unconstitutional at the federal level, the Court has given pro-gun activists the green light to challenge the types of bans — or de facto bans — that exist in cities like San Francisco, Chicago and New York City.

Arguably, there are different jurisdictions involved — namely, striking a gun ban in a federal enclave (such as Washington, DC) versus a ban in a state or locality.

But it is interesting to note that the Court seemed to give credence to future efforts that would use the Second Amendment to strike down gun control restrictions in the states. The Court favorably reported on the Freedmen’s Bureau Act of 1866, the Fourteenth Amendment, and the Civil Rights Act of 1871 — all of which were intended to strike down, among other things, Jim Crow (state) laws that were denying firearms to blacks after the Civil War (pp. 41-44).

(2) Lock Up Your Safety Laws. Trigger locks, and other similar laws, are another type of restriction that could fall like dominos. The Court struck down DC’s requirement that honest citizens lock up their guns, because it prevents or delays the ability of gun owners to defend themselves (p. 58).

(3) Licensure Laws. The Court’s opinion effectively “punted” on this issue, simply stating that Heller’s attorney had conceded this point during oral arguments. The Court clearly said it would “not address the licensing requirement” (p. 59).

It is quite significant, however, that the Court did not lump licensing laws into the same batch of gun control laws that it thinks might pass constitutional muster in the future. This seems to indicate that the Court might, in fact, strike down a licensing law that is based on a Second Amendment challenge.

The GOA amicus brief was the only one that heavily emphasized the last four words of the Second Amendment — emphasizing that the right to keep and bear arms “shall not be infringed.” Now that the Court has ruled the amendment protects an individual right, gun rights supporters can take the argument to the next step, stressing that this “enumerated constitutional right” (in the words of the Court) cannot be infringed without violating the constitutional text.

Finally, much has been made of the fact that the majority opinion only gained the ascendancy on a mere 5-4 vote, suggesting that we were one just vote away from losing our Second Amendment rights.

Nothing could be further from the truth. The Supreme Court is not the final arbiter of what the Constitution means. Article VI of the U.S. Constitution stipulates three things as the “supreme law” of the land: the Constitution itself, constitutional laws passed by Congress and treaties made under the authority of the United States.

Notice, there is no mention of Supreme Court opinions in that list. So if and when the Supreme Court rules in a manner that is inconsistent with our supreme law, then as stated by former Chief Justice John Marshall (who served from 1801-1835), we can turn to the “appellate jurisdiction” in the Congress for the “reversal of those [Supreme Court] opinions deemed unsound by the legislature.”

After all, each Congressman takes an oath to uphold the Constitution, not to follow the opinions of the Supreme Court.

Truly, it is a sad day for the residents of Bradyville, because they have continuously put all their hopes and dreams in the opinions of the courts. And for now, the Supreme Court has turned its back on them.