Of Guns and Judges

I saw this two-part piece on Townhall.com and thought it important, part one co-written by Sandy Froman and Ken Blackwell, part two by Ken Blackwell himself.

As a bit of a Constitution nut (like Robert Byrd, I carry a copy in my pocket — no joke), I cannot stress enough that the impact of the Supreme Court’s decision in Heller will be felt for years and maybe decades to come, and having such a monumental decision pending should only harden the resolve of those who strive to keep a democrat out of the White House come January of 2009.

There is no way that a Court assembled by means of the activist role of the judiciary as seen by Barack Obama and Hillary Clinton would come out on the correct side of Heller. With the advancing age of the Justices and the current makeup of the bench, a John McCain win in November is paramount.

There are going to be many opportunities for me to blather on about the Second Amendment. For now, brush up on your Bill of Rights and on your right to keep and bear arms by reading the following two pieces.

“Judging Gun Rights: Are They Inalienable?”
by Sandy Froman and Ken Blackwell

Rights [are] antecedent to all earthly government …” John Adams

As a historic Supreme Court case on the Second Amendment looms, District of Columbia v. Heller, two unexpected perspectives show what is at stake in this case for all Americans.

Between the two of us as authors, our commitment to the Second Amendment, coupled with our real-life experiences, explodes the stereotypical images of gun owners in America. We are living proof that the Second Amendment is a blessing for all Americans, and that all Americans have a vested interest in the pending court case.What would compel a petite Jewish woman born in San Francisco and educated at Stanford University and Harvard Law School to buy a pistol and end up as the president of the National Rifle Association?

Growing up in the Froman family in the California Bay Area in the 1950s was idyllic. No one in my family owned guns. We didn’t even hunt or shoot. While real guns weren’t part of my life, “reel” guns were. Television Westerns like “Have Gun Will Travel” and of course, the “Rifleman,” were a type of morality plays — good guys and bad guys both used guns except the bad guys used guns to hurt and threaten people while the good guys used guns to protect and defend themselves. That lesson was never forgotten.

Thirty years later, as a young lawyer in Los Angeles, my gun awakening came in the form of terror when someone tried to break into my house in the middle of the night. Unable to defend myself, it suddenly became very clear that the person responsible for protecting my life and safety was me.

I refused to be a helpless victim. It was time to buy a gun and learn how to use it. Later when I joined the NRA and began receiving their flagship publication, the American Rifleman, I knew that Chuck Connors was right. Guns in the hands of good people save lives.

Growing up in the Blackwell household in the central city neighborhoods of Cincinnati informed my public policy work as mayor of the Queen City and as an undersecretary at the U.S. Department of Housing and Urban Development. Families like mine — low income, civically engaged, and responsible — expected access to firearms for safety. Then, as now, criminals were not inclined to break into a house where the owner was armed.

Things were tougher in the South where the Deacons of Defense, most of whom were veterans like my father, chased away KKK riders and thugs. These groups of armed men patrolled their neighborhoods to keep them safe at night. Whether it’s an individual or a family who has to fight against random criminals or organized threats, our lives are evidence that Americans, particularly women and minorities in today’s urban areas, need our Second Amendment rights.


The Supreme Court has never settled the controversy at the heart of the great American gun debate: Whether individual citizens have a constitutional right to possess private firearms. Now the High Court has agreed to answer this question, in what will most likely be a 5-4 decision that could go either way.

This month the U.S. Supreme Court will hear arguments in District of Columbia v. Heller. It is the first ever Supreme Court case that has the promise of finally answering the question of what the Second Amendment means. Assuming that the Court does not dismiss the case on some technicality, Heller could become the definitive standard for gun rights in America.

The Second Amendment says, “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.” The Heller case will decide whether the right to keep and bear arms refers to private, law-abiding citizens, or whether it is a right of the people “collectively” to have guns in the National Guard or other state militia units.

The facts of District of Columbia v. Heller make this a perfect test case. In the District of Columbia, it’s a crime to have any sort of readily-usable firearm. It’s illegal to have any sort of handgun — even a broken handgun — in your home. Having a long gun (rifle or shotgun) in your home is a crime unless the gun is unloaded and either disassembled or disabled by a trigger lock, with ammunition stored in a separate container. If someone breaks into your home, you have no time to have a functional firearm that is ready to defend your life or your family. The D.C. gun ban is considered the most severe gun control law in America.

Several citizens and lawyers brought the suit Parker v. District of Columbia to U.S. District Court to challenge this law. The federal trial court dismissed the case, stating that there is no right to own a gun. The U.S. Court of Appeals for the D.C. Circuit reversed the decision, holding that the Second Amendment guarantees an individual’s right to keep and bear arms, and therefore holding the D.C. gun ban unconstitutional. The Supreme Court has taken the case, renamed District of Columbia v. Heller because Dick Heller was the only plaintiff found to have the standing to sue.


The issue in Heller is simple. The issue — or “question presented” — is whether the D.C. gun ban violates the Second Amendment right of individual citizens not connected with any state-sponsored militia to have guns in their home for private use.

The answer to the question presented is simple as well. But people reach opposite answers to this simple issue. Most people say the answer is “yes.” The Second Amendment is in the Bill of Rights, of which every other part — freedom of speech, religion, right to a jury trial, etc. — applies to individuals acting as private citizens.

The Second Amendment refers to “the right of the people.” The Founding Fathers were concerned about self-defense, the ability to defend your own property, and ensuring that the people had the means to throw off a tyrannical government, such as the one they had just escaped in Great Britain.

But others answer this simple question with a “no.” The framers did not want a standing army in peacetime. Some claim that the clause referring to a “militia” means that the framers were solely concerned about states being able to raise a military, and that this is the only “right” conferred by the Second Amendment. Thus, they conclude, the right can only be exercised in conjunction with service in this state-sponsored militia.

The reason people come to opposite conclusions for this simple question stems from different approaches to interpreting the Constitution, the issues that are implicated in this case, and different philosophies about government — self-reliance versus reliance upon government.

There are two different ways of reading the Constitution — sometimes described as “strict constructionism” versus the “Living Constitution.” Strict constructionism (the actual legal terms are “originalism” or “textualism”) requires judges to adhere to the words of the Constitution. A “Living Constitution” means that judges are free to interpret the meaning of the Constitution to make it conform to modern social trends.

Under the conservative approach there is no doubt the Second Amendment is an individual right, while under the “Living Constitution” a judge can simply say that modern society has evolved beyond the need for individual gun ownership.

Judge Alex Kozinski of the Ninth Circuit stated in Silviera v. Lockyer that “tyranny thrives best where government need not fear the wrath of an armed people.” Calling the Second Amendment a “doomsday provision,” Judge Kozinski warned that assuming you can never lose your freedom “is a mistake a free people get to make only once.” Those were the framers’ concerns when they wrote and ratified the Bill of Rights.

“The Roe v. Wade of Gun Rights”
by Ken Blackwell

The two red-hot issues fused by the District of Columbia v. Heller case — guns and judges — are two of the most divisive in American politics.

D.C. v. Heller could become one of the most important cases in American history, with profound political and policy implications.

The case will directly affect 90 million American gun owners. Whether they have a constitutional right to own guns immediately makes their ownership either a protected right or merely a privilege that the government can restrict at will. Either way everyone else in our society is indirectly affected.

Gun bans fall particularly heavily on women, minorities, the elderly, and the disabled who own guns for self defense purposes. Though stereotypical gun owners are white adult males in the prime of life, the reality is that these are the people who need guns the least. Most people are more likely to be a victim of violent crime, and thus have a greater need for a tool that neutralizes any would-be criminal’s greater size, strength, or speed.

The short-term political impact of Heller might turn the 2008 presidential election. Either Senators Clinton or Obama would the most anti-gun Democrat nominee in American history. The Second Amendment is a pivotal issue in a half-dozen swing states, and other swing states have smaller gun votes, but gun owners could easily tip those states in a close election.

Heller will heat up twice during the presidential campaign, first when the case is argued in March and second when the Court hands down its decision, most likely in June. Gun owners will either be emboldened, pressing forward for policies recognizing their rights, or outraged that an activist Court has denied them their cherished right, holding rallies, and taking to the streets. Either way, gun rights could dominate the news.

In addition to guns, this evaluation of the party nominees’ records is true for federal judicial nominations. Heller will fuse the issues of guns and judges in America. The four conservative justices — Justices Roberts, Scalia, Thomas, and Alito — are expected to support an individual’s right. Most or all of the liberal justices — Justices Stevens, Ginsburg, Souter, and Breyer –will oppose an individual’s right. That leaves Justice Kennedy — the only moderate on the Court — as the swing vote who could decide the meaning of the Second Amendment.

It cannot be overstated how much Heller will make judicial nominations a campaign issue for tens of millions of gun owners, millions of whom usually vote Democrat. With John McCain naming Justices Roberts and Alito as models of who he would nominate to the Supreme Court and Senators Obama and Clinton both naming Justice Ginsburg as their model, it will be impossible to be pro-gun yet fight for a liberal Supreme Court at the same time. This also will be true for Senate seats as well, where pro-gun states will demand that their U.S. senators support nominees who will uphold their gun rights.

Heller’s impact could go well beyond Election Day. It could actually have a lasting impact on our culture itself as one of the cases that reshapes the national dialogue.

Take the example of Everson v. Board of Education. This 1947 case created the doctrine of separation between church and state, launching 60 years of the radical secularization of our culture and an all-out war against people of faith, especially conservative Christians. What’s important about Everson is that the religious people actually won that case, but the rule the Court proclaimed in it has systematically stripped religion of its social influence ever since. Though the idea of separating church and state was almost unheard of in 1947, it has now become a widely accepted concept in our culture. That is the power of a landmark Supreme Court case.

There have been a handful of cases that have shaped America. Roe v. Wade, Dred Scott, Plessy v. Ferguson, Brown v. Board, and Marbury v. Madison are more than just history book entries; they actually changed the nation. For good or ill, District of Columbia v. Heller might join that list. It could become the Roe v. Wade of gun ownership.

And Heller is just the beginning. There will be more Second Amendment cases. If the Court finds that the Second Amendment guarantees an individual’s right to own firearms, 20 years of major cases will follow, fleshing out the contours of this right.

District of Columbia v. Heller is in the hands and minds of nine judges who sit on the highest court in the land and whose majority opinion could change the course of American history, one way or the other. As with abortion, affirmative action, and gay rights, the biggest battles over gun rights will hereafter be fought not in Congress or state legislatures but in the courts.


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