U.S. Supreme Court: Gun control on culture war's front burner

Published: Oct. 18, 2009 at 2:15 AM
By MICHAEL KIRKLAND

WASHINGTON, Oct. 18 (UPI) -- As the U.S. Supreme Court makes its stately way into the new term, a case over the horizon promises to hit the 20,000 gun control laws in this country with the impact of a 9mm round.

The prep work came last year in District of Columbia vs. Heller. A narrow 5-4 majority struck down the gun control law in the nation's capital, and for the moment settled an argument over just what the Second Amendment to the Constitution, part of the Bill of Rights, actually means.

The Second Amendment reads, "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 argument has centered on whether that language means a state militia has a right to bear arms, or whether there is an individual constitutional right to have a weapon.

The Supreme Court majority, in an opinion written by conservative Justice Antonin Scalia, said it means there is an individual right to that Glock or Beretta.

The gun control debate can be an emotional one for those on either side of the fence, such as members of the National Rifle Association or the anti-handgun Brady Campaign. Many see it as a red state, blue state issue, part of that "culture war" or "Kulturkampf" characterized by Scalia in dissent in 1996, and by conservative Patrick Buchanan in a series of speeches.

Apparently, no issue provokes more fear in members of Congress with rural constituencies. Analysts in West Virginia have pointed out that the state voted Republican in the 2000 and 2004 presidential races, ensuring George W. Bush's victory, in part from fear of gun control.

Scalia, however, said it all comes down to the meaning of words.

The Washington gun law banned handgun possession "by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns," and providing "separately that no person may carry an unlicensed handgun." It did allow the police chief to issue 1-year licenses, but required those few authorized to own a firearm to keep them unloaded and dissembled, or made safe by a trigger lock.

Scalia's opinion, handed down last June 26, said the handgun ban and the trigger lock requirement violated the Constitution: "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

But what about that clause dealing with the militia?

Scalia calls it the "prefatory clause," and calls the second part of the amendment, the one dealing with "the right of the people," the "operative clause."

The prefatory clause clarifies the amendment -- sets up a justification for it -- but "apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause," Scalia said.

Moreover, the right to bear arms was not initially established in the Second Amendment, Scalia wrote. The amendment "codified a pre-existing right" dating back to the days when the Catholic English King James II tried to keep Protestants from obtaining weapons. Later, William and Mary guaranteed Protestants the right to bear arms in the Declaration of Rights, which became the English Bill of Rights.

But government is not powerless when it comes to regulating arms, the court majority said in the opinion's syllabus:

"Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the amendment or state analogs. The court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

As sweeping as the opinion in Heller is, advocates of gun rights and gun control are waiting for the other shoe to drop this term.

Heller recognized an individual's right to bear arms, but the Supreme Court still has to decide whether Heller should be extended beyond federal jurisdictions such as the District of Columbia to "every city, county, and state in the nation," the Christian Science Monitor reports.

That question is central to McDonald vs. Chicago, a challenge to that city's gun control registration restrictions, which the high court has agreed to hear later this year. Though not yet scheduled, the case should be heard sometime in January or later, with a ruling handed down before the end of the term in late June.

Among the questions in the case: How should the Bill of Rights be applied to the states, as opposed to the federal government -- in the early days of the Republic, it was assumed that the first 10 amendments to the Constitution applied only to the federal government. It was only later that the courts, including the Supreme Court, used the 14th Amendment to apply them to state and local governments.

Legal Times correspondent Tony Mauro points out a group of liberal and conservative academics are pressing for a change, a "new pathway," in the Chicago challenge.

For the most part, in the 20th century the courts have used the 14th Amendment's "due process" clause -- due process in its simplest meaning essentially describes fair treatment in the legal process -- to make the states honor individual rights.

But, "that new pathway runs through the long-dormant 'privileges or immunities' clause of the 14th Amendment," Mauro reports. "In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language -- 'No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States' -- is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale."

Legal niceties aside, McDonald vs. Chicago should have a real impact on the streets, especially if the five-justice majority in Heller decides the judgment in that case should apply nationwide.

The National Rifle Association says there are 20,000 "gun control" laws in states and local communities.

So far, no police department has filed a friend-of-the-court brief either supporting or opposing the Chicago challenge at the Supreme Court.

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House Bill Would End D.C. Registration Rules

By Mary Beth Sheridan
Washington Post Staff Writer
Wednesday, July 30, 2008; B04

D.C. officials are trying to beat back an effort by some lawmakers to send a bill to the House floor that would dramatically weaken the city's gun laws.

The gun bill, co-sponsored by Reps. Mike Ross (D-Ark.) and Mark Souder (R-Ind.), was introduced previously and stalled. The measure now stands a good chance of gaining approval by the House of Representatives because of an unusual legislative maneuver, congressional staff members and observers said.

Souder said he acted because the D.C. government has made only limited changes to its 32-year-old handgun ban since the U.S. Supreme Court ruled last month that it was unconstitutional. In particular, he said, the city's new, temporary legislation still requires handgun owners to keep their weapons disassembled or secured with a trigger lock unless someone in the home was in danger. The District also continues to prohibit residents from owning semiautomatic handguns.

"The net impact is to defy the Supreme Court," Souder said.

The bill would repeal the District's ban on semiautomatic pistols and eliminate all registration requirements.

Souder is seeking to bring the bill to the floor through a "discharge petition," which requires the signatures of 218 House members. The move allows the measure to bypass House committees, and forces the Democratic majority to allow the full chamber to vote on it.

Since filing the petition last week, Souder has collected 109 signatures. He is confident of picking up sufficient support since 247 legislators had previously co-sponsored the gun bill, including 56 Democrats...

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Excuse Me While I Get My Gun

Washington, D.C., defies the Supreme Court's Second Amendment ruling.

Jacob Sullum | July 23, 2008

Last month the U.S. Supreme Court ruled that the District of Columbia had violated the Second Amendment by making armed self-defense in the home impractical and banning the most popular weapons used for that purpose. Last week the D.C. Council responded by unanimously approving a law that makes armed self-defense in the home impractical and bans the most popular weapons used for that purpose.

D.C.'s political leaders know they are inviting another Second Amendment lawsuit, but they are determined to defy the Supreme Court and the Constitution for as long as possible.

The new law "clarifies that no carry license is required inside the home" to move a gun from one room to another. It also "clarifies" the District's firearm storage requirements, saying a gun may be unlocked and loaded "while it is being used to protect against a reasonably perceived threat of immediate harm to a person" in the home.

Much hinges on what counts as a "reasonably perceived threat." If you're awakened in the middle of the night by a crash, may you carry a loaded gun with you as you investigate? Evidently not. The Washington Post reports that D.C.'s acting attorney general, Peter Nickles, "said residents could neither keep their guns loaded in anticipation of a problem nor search for an intruder on their property." According to Nickles, if you see an armed criminal charging your home, or in the event of "an actual threat by somebody you believe is out to hurt you," you're allowed to get your gun, unlock it, and load it.

How long will that take? The new law lets people use a gun safe instead of a trigger lock, which, depending on the type of safe, could allow faster retrieval. But even a gun in a safe has to be kept unloaded, which will tend to slow down the owner's response to a "reasonably perceived threat," assuming he can figure out what that means.

The delay will be even longer because of the District's ridiculously broad ban on "machine guns." The Metropolitan Police Department says the ban covers all handguns except revolvers, which are more cumbersome to load than semiautomatics with detachable magazines.

Under D.C. law, "machine guns" include not only guns that fire continuously but also guns that fire once per trigger pull if they can fire more than 12 rounds without reloading or "can be readily converted" to do so. According to the District's interpretation, even a pistol that fires 12 or fewer rounds counts as a "machine gun" if it could accept a bigger magazine.

That's why Dick Heller, the man who successfully challenged D.C.'s handgun ban, was not allowed to register his seven-shot .45-caliber pistol, which in the District's view might as well be an Uzi. Instead he applied to register a .22-caliber revolver.

Speaking of registration, the District has established a burdensome 12-step process that involves multiple trips to gun dealers and government offices, fingerprinting, a written exam, and ballistic testing. How long does all this take? "Up to 14 days," according to one police department publication. "Approximately eight weeks," according to another. "There are circumstances where it could take months," says Police Chief Cathy Lanier.

Registration easily could turn out to be so onerous or capricious that it effectively denies D.C. residents the right to keep and bear arms. The District's revised firearm storage requirements are even more clearly unconstitutional, since they unreasonably interfere with the very function, self-defense in the home, that the Supreme Court said is protected by the Second Amendment. Likewise the arbitrary ban on semiautomatic handguns, the most commonly used self-defense weapons.

"I am pretty confident that the people of the District of Columbia want me to err in the direction of trying to restrict guns," D.C. Mayor Adrian Fenty told Washington Post columnist Marc Fisher. How about erring, just this once, in the direction of respecting civil liberties?

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