Heller Case - Deeper Analysis

by Dave Kopel, Stephen P. Halbrook, Alan Korwin

The D.C. v. Heller Case --
Deeper Analysis , June 30, 2008

HELLER DECISION -- DEEPER ANALYSIS

"Strictest Scrutiny" Found in the Fine Print
"Strictest Scrutiny" Found in the Fine Print

"Do NOT gratuitously yield ground on any points that may be debatable -- take the highest ground concerning what the Heller decision means, and make the antis fight uphill against you. You may be right despite your own doubts."

June 26, 2008: "An 'outraged' Chicago Mayor Daley this morning denounced a U.S. Supreme Court ruling overturning Washington D.C.'s handgun ban as a 'frightening decision' and a "return to the days of the Wild West.'"

Adding salt to the wound, Chicago was immediately sued over its own tyrannical handgun ban and licensing tax scheme, by a coalition of pro-human-rights groups including the Second Amendment Foundation, the NRA and the Illinois State Rifle Association. Quoting from the SAF announcement (saf.org):

"Chicago's registration scheme cries out for common-sense reform," ISRA Executive Director Richard Pearson said. Under Chicago's gun law, firearms must be re-registered annually. Alan Gura, lead attorney in the Heller case, is in charge of this lawsuit.

"Each time," Gura said, "a tax is imposed, forms must be filled out, photographs submitted. A person who owns more than one gun will be constantly in the process of registering each gun as it comes due for expiration. If registration is to be required, once is enough."

He further noted that Chicago's bizarre requirement that guns be registered before they are acquired often makes registration impossible. Failure to comply with the scheme means that a gun not re-registered on time can never be registered again. Some anti-rights advocates are reportedly happy because gun registration is being accepted as if it's a restoration of rights, which it is not.

Daley's "Wild West" comment refers to a bogus notion used by every anti-rights zealot in the country. It's usually used to resist carry-permit legislation, which has been proven to reduce crime, not revert society to the days of Dodge City. "Why let facts get in the way of a good red-faced rant," said The Uninvited Ombudsman, to no one in particular. He added, "Registering honest gun owners lacks a crime-fighting component, and directs scarce funding in the wrong direction -- tracking the innocent." Criminals cannot be registered, due to 5th Amendment self-incrimination rules. More here:
https://www.gunlaws.com/gunreggie.htm

I was going to do a lengthy review of news coverage of the decision, but it has been so biased, distorted, misleading and prejudicial I just don't have the stomach for it. Our local paper (Gannett's #2 rag, The Arizona Republic) put it below the fold, giving a daily change in the stock market more prominence. They ran the famously anti-rights Washington Post "news" which began, ran and ended with editorial comments and balderdash.

The McClatchy chain closed their completely conjectural Q&A approach by calling SAF, the second largest gun-rights group in the nation "small." Reuters, overlooking that the RKBA has been enshrined, exercised and respected for more than two centuries, called it new. It was dastardly.

Against the hue and cry of gun-crazed journalists, clamoring post-Heller for an end to what they call "gun deaths," it's time to finally call a spade a spade. Gun deaths are largely war deaths -- in the government-sponsored war on some drugs. Gang-banger murders are war deaths in that war, and are not subject to phony "gun-control" measures. D.C.'s failed laws prove this. The American murder rate has major components that are demographic, geographic, and related to social and economic conditions, not a new design by Winchester, Colt or Glock. The anti-rights claims about gun deaths are as false as the now discredited myths from their Heller-case arguments.

The ugly underbelly of criminal shootings must be exposed. It must be disassociated from 100 million legitimate law-abiding gun owners. We can no longer stand by and allow journalists and their leaders, or misguided politicians, to place blame for failed social policies on cherished human rights that have kept this nation a shining beacon of freedom for more than two centuries.

The big hurdle, with Heller now in place, will be control of the court of popular opinion. National "news" media, led by the clever and decidedly anti-rights Washington Post, will be bending over backwards to present any D.C. item that can be twisted to imply:

a) D.C. experienced a crime and it must be due to the bad Heller decision and its subsequent flood of permit applications,

c) politicians should reverse the trend by finding new ways to enact the old failed policies, and

d) you should elect Obama because he will fix everything with some spare change from his campaign.

ADDITIONAL ASPECTS OF THE HELLER DECISION
ADDITIONAL ASPECTS OF THE HELLER DECISION

(In my haste to post an initial review of the Heller decision, many juicy points were overlooked. This was expected. With time to read and digest the opinion, some wonderful elements have emerged. Starting with some lighter fare):

June 26 was a great day for human rights and freedom and a terrible day for The New York Times. (The Times has promoted an anti-rights agenda for decades.)

Bogus anti-rights arguments we have endured for about four decades have had a stake driven through them. Collectivism, militia requirements, uselessness of sidearms, improper readings of 2A, revisionist history, rights-denial as a crime remedy, "the gun lobby lies about 2A," even "an individual right means you can own an atom bomb," all dead. Did I mention hoplophobia is irrational?

The human right to self defense has received unequivocal support. This is especially important since the U.N. does not recognize this right.

Criminals and crazies remain under strict legal controls, despite lunatic claims to the contrary.

Future efforts to deny these crucial civil rights will be severely chilled (though their advocates may be energized, as we would if we had lost).

The list of weapons useful for a militia -- armed citizens capable of being called up in an emergency to serve with their own weapons -- remains ambiguous. To wit:

Legal-eagle friends are confused, in disagreement and debating what the actual holdings are exactly, such as whether the Second Amendment is incorporated against the states, and similar fine points. I take an expansive view and encourage rights advocates to do the same. Do NOT yield ground on any points in your preliminary positions -- take the highest ground concerning what the decision means, and make the antis fight uphill against you. Push the envelope in the direction of greater freedom. The finding of a specific enumerated right of course means other jurisdictions are affected even if the 14th Amendment isn't specifically invoked -- it doesn't need to be.

June 26 has been proposed as National Right to Keep and Bear Arms Day by Tom Liddy, author, talk show host, politician and son of G. Gordon Liddy.

The decision will provide cover for politicians, who can now reject anti-rights bills by saying their hands are tied by the individual-rights declarations in Heller. Obviously not all will, but many will be able to duck a thorny issue without alienating their constituencies, bolstering pro-rights efforts toward new bills and helping to stop bad bills.

I just finished studying the decision, the dense legal text is not easy reading. Much of the commentary I've seen seems based on guesswork and emotion. It's better than we think, but still, the struggle goes on as it always will. Freedom is not a place you get to, it's a path you travel.

The core issue of "judicial scrutiny" is now established -- better than we had dreamed -- in what will be known as Famous Footnote #27 (p56). Laws impinging on the Second Amendment can receive no lower level of review than any other "specific enumerated right" such as free speech, the guarantee against double jeopardy or the right to counsel (the Court's list of examples).

This is a tremendous win, and overlooked in all initial reviews I've seen. Attorney Mike Anthony was the first to spot it, way to go Mike. "Strict scrutiny," which many folks sought, is a term without formal definition that could prove problematic. I was hoping for a test of some sort and got more than I hoped for. By recognizing 2A as a "specific enumerated right" the majority ties 2A to the rigid standards and precedents of our most cherished rights. That's as strong as there is. Very clever indeed.

Coupled with the Court's destruction of a scrutiny scheme invented by Breyer in his dissent, 2A protection is now extra robust (but antis will continue their attacks). Seeking to justify the total-gun-bans-are-perfectly-OK school of thought (the one B. H. Obama supported until this decision came out and he immediately reversed himself), Justice Breyer proposed a brand new level of scrutiny, not just the familiar strict, intermediate or rational-basis levels (from highest to lowest). He invented a new low he calls "interest-balancing inquiry." The Court calls it a "judge empowering... freestanding" approach wholly without merit or precedent and dismisses it completely as a worthless subterfuge. p62

The decision works hard in many ways to preclude further abuses, to establish the primacy of the fundamental rights in the Second Amendment, to foreclose future mischief against the rights protected, and to take certain policy choices off the table -- like banning handguns for self defense at home -- regardless of how bad criminals are or how they do their dirty work. Government has other tools to fight crime, and has to use those. p64

Critics and anti-rights advocates are almost gleeful at the Court's acceptance of Mr. Heller's request for registration and a license to carry his gun in his own home, as long as the terms aren't arbitrary or capricious. Agreed this is a weak and unsavory intermediate step with potential for abuse, while on the way to greater freedom than D.C. currently has. It has a very dangerous potential for abuse that will be exploited. Antis will try to imply that registration and licensing are more than OK, they are the new standard. This is completely false:

-- Heller's request applies specifically to his case, at home, in D.C., to be acted upon by D.C. for its residents.

-- Because RKBA is now recognized as a "specific enumerated right" (a phrase you should start using), laws related to it will be subjected to stringent standards like those protecting freedom of speech, protection against double jeopardy or the right to counsel (among the most safeguarded rights we have).

-- Registration and a license to practice free speech would obviously never be permissible, so Mr. Heller's request should hold little sway, if any, outside the context of his "prayer" (the Court's word) for relief from the onerous disability he suffered as a D.C. resident. Anti-rights lawyers and legislators will try to argue otherwise, but the ammunition is piled high in the pro-rights arsenal. Our argument is compelling, do not yield. To wit again:

From the Counterintuitive Department: The antis are actually trumpeting our side -- People will want less restrictions! Gun bans will fall! Gun-free-zones will come under legal attack! And we're promoting their side for Pete's sake -- More licensing and registration is coming! Assault weapon bans are around the corner! The Court has put another nail in the gun-rights coffin! Be careful about turning a win into a loss, and giving voice to what the other side wants. Don't be a gloomsayer.

The biggest issue for me perhaps is the fact that, on June 25, the day before this decision, not knowing which way it would go, I had this right to keep and bear arms intact. I had it in my home, in my environs, on my steed. I cherished this right, exercised it every day with the keeping and from time to time with the bearing.

It is a right I consider mine, and my country's, and a sign of my status as a free man. And I relish that it's unique in the world -- that this country and no other had advanced this right for me, from well before my birth to the present day. I do not care to relinquish this long-held right of mine on some unknown tomorrow. And I cannot see a valid reason even if nine people sitting in a room thousands of miles away say I've been mistaken all this time, or never had it in the first place, or have to give it up for some reason they can imagine or concoct.

Certainly, the fact that criminals are doing their nefarious work is not cause or grounds for me to give up my human and civil rights (yet this is the essence of Breyer's dissent).

"It is a cruel hoax to seek to persuade the American people that the Bill of Rights should be watered down in response to rising crime rates." --Nicholas Katzenbach.

And I practically resent, even though I accept the nature of our system, that those nine people actually have the power to deny me the rights my countrymen and I have held since birth, and have held since the birth of this nation. Thank God we dodged this bullet and won. The consequences of a loss are too dire to contemplate.

A trial judge hears a prosecutor's case and remarks, "You're right." But then the defense makes his case, and the judge says, "You're right." To which the bailiff says, "But your honor, they can't both be right." And the judge replies dryly, "You're right too."

As is so often the case when reading Supreme Court holdings, after absorbing and agreeing in large measure with the elegant treatise of the majority, the dissent reads well and holds sway on its own grounds. This is true in Heller, and the dissent is quite compelling in spots, puts forth arguments not well rebutted by the majority, and makes its points as you would expect a team of top experts to do. You're left to wonder, what if the minority of dissenters is actually the right decision? The opposition will do everything in their power to raise that specter of course, just as we would if the single vote went the other way.

The startling realization is that both sides don't really know with absolute certainty which argument is correct. What did the Founders and the public during the period between the Revolution and the drafting of 2A really think about gun ownership, possession and use? Hint: Always choose freedom if such doubts arise.

Each side nips at the surviving documents, assembles the evidence their own way, sprinkles it with clever scholarly wiggle phrases like, "it seems certain that," or "it's unreasonable to assume otherwise," and draws their summation. If you could poll the public in 1791 on the key questions, maybe you'd end up with a five-to-four split of opinion. The record does not inform the debate with crystalline clarity.

What is clear is that the nation has enjoyed private firearms ownership and use for all of its history, and for most of that time, objections have been few, peripheral, and have not abandoned those rights. In recent times, various government entities have encroached on those rights, in niggling or great ways, and we find ourselves today trying to decide if we should continue to exercise the rights we have always previously enjoyed.

Should we somehow justify the removal of the hundreds of millions of guns Americans presently own? (And do all those people have to get Fifth Amendment compensation for their taken property?) By a single vote in Heller, we decided no, not at this time. And those who have attempted such must reverse their course. They will do so grudgingly at best.

If Stevens' dissent is actually the correct assessment (a point, like the majority's holding, we must admit cannot be determined with absolute certainty), and 2A is all about the militia, then what of it? Are we no longer the militia armed and ready to serve?

The fact that we have not had to take up our arms and repel invaders, suppress an insurrection, execute our laws or resist tyranny from within, are we no longer the impregnable force the founders expected us to be when the clarion moment arrived? In the grand scheme, if Stevens' dissent controls, we would and should still retain our arms. It might be prudent to promote training with a militia purpose in mind, whatever that might look like.

As a practical matter, one facet of being an American is that you agree, implicitly, if the ship is sinking you will pick up a bucket and bail water. This loyalty is owed in principle to any nation with which you align, where you enjoy its fruits, and serve as a thread in its fabric -- but especially so here, where it is codified in statute (10 USC §311 et. seq.). You can abandon ship and run at the slightest wave, but this is without honor. This brings disgrace to you and your house. In this country at least, aside from principle, it's the law. No part of the Heller results touch on this, but its no less true for the omission.

Breyer's dissent cannot be reviewed so favorably, for he admits you "may" have this right, but it can be regulated into oblivion because criminals are bad, guns are dangerous, and government has or should have the power to deny your rights if it thinks a greater purpose is served. It is so off target it's hard to address. His alliance with the principles that make American go are missing in action. He spends inordinate time invoking stats on how bad criminals are, since he holds that this justifies denial of your rights, and firmly believes that a gun ban will stop criminals and save lives (despite the evidence to the contrary, which he refutes ambitiously but poorly).

Detailed, step-by-step review of the decision, the dissents, and the events leading up to the case will form the heart of my next book, "The Heller Case: Supreme Court Gun Cases Volume 2." Leading experts will contribute their view of where the Heller case will lead us, and suggest a course of action for using this landmark decision in defense of liberty. Every gun case the Court has ever heard -- all 96 -- will be discussed, along with summaries of all 66 amicus briefs filed in the Heller case, and the full text of the case. Hundreds of juicy quotes from Heller will be highlighted for easy reading and navigation through the thick legal discussions.

"Tempus Fugit" explores what Washington, Jefferson and Franklin would think of this nation they launched, after they are mysteriously transported here through time. Thorough research into their personalities, dialog filled with their original quotations, a barroom brawl while they're drinking Sam Adams beer, their first encounters with cars, WalMart, TV -- and their shock when they see 27 new amendments -- it's a total page turner, extremely insightful.
Tempus Fugit by Lawrence Lee Rowe, $20 hardcover --
https://www.gunlaws.com/books7novels.htm

Alan Korwin
Bloomfield Press
"We publish the gun laws."
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Contact:
Alan Korwin
BLOOMFIELD PRESS
"We publish the gun laws."
4848 E. Cactus, #505-440
Scottsdale, AZ 85254
602-996-4020 Phone
602-494-0679 FAX
1-800-707-4020 Orders
https://www.gunlaws.com
alan@gunlaws.com
Call, write, fax or click for a free full-color catalog