New Second Amendment

"A Silver Lining to this Cloud "

June 27, 2008— Five conservative Supreme Court Justices, Scalia, Roberts, Alito, Thomas and Kennedy, have overturned 70 years of precedent and ruled that under the Second Amendment an individual has a right to keep and bear arms. In a country that suffers 30,000 gun deaths annually, this decision will be difficult for many Americans and other nations to comprehend. Dissenting were Justices Stevens, Breyer, Ginsberg and Souter.

Writing for the majority, Justice Scalia’s opinion applied explicitly just to "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," and it had a number of significant qualifications. Scalia explicitly cited gun control laws not affected by this ruling: felons and the mentally ill, banning guns from schools and other "sensitive places" and, importantly regulating the sale of guns. Scalia’s definition of weapons protected by amendment were those in common use "for lawful purposes like self-defense. The opinion also said prohibitions on carrying concealed weapons would be upheld and suggested somewhat less explicitly that the right to personal possession did not apply to "dangerous and unusual weapons" that are not typically used for self-defense or recreation.

The Opinion

According to Justice Scalia, the "militia" reference in the first part of the amendment simply "announces the purpose for which the right was codified: to prevent elimination of the militia." The Constitution’s framers were afraid that the new federal government would disarm the populace, as the British had tried to do.

But he added that this "prefatory statement of purpose" should not be interpreted to limit the meaning of what is called the operative clause — "the right of the people to keep and bear arms, shall not be infringed." Instead, Justice Scalia said, the operative clause "codified a pre-existing right" of individual gun ownership for private use.

Contesting that analysis, Justice Stevens said the Second Amendment’s structure was notable for its "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense," in contrast to the contemporaneous "Declarations of Rights" in Pennsylvania and Vermont that did explicitly protect those uses. In writing the Second Amendment, James Madison carefully studied the history and laws of all 13 states in order that the Bill of Rights be ratified and adopted. He felt the Majority opinion appeared to be unfamiliar with the drafting history of the Second Amendment. They referred to earlier English law instead. In 1792, the year after the Amendment was ratified, Congress passed a statute that purported to establish "an Uniform Militia throughout the United States, which commanded every able-bodied white male citizen between the ages of 18 and 45 to be enrolled therein and to "provide himself with a good musket or firelock." This law confirmed the way those in the founding generation viewed firearm ownership: as a duty linked to military service. The ignored statute was repealed in 1901.

Stevens further stated, [The Court] "gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17th- century English Bill of Rights, Blackstone’s Commentaries on the Laws of England; post enactment commentary on the Second Amendment; and post-Civil War legislative history. All of these sources shed only indirect light on the question before us, and in any even offer little support for the Court’s conclusion."

Justice Stevens said the Majority’s understanding of the Miller (U.S. v. Miller, 1939) decision was not only "simply wrong," but also reflected a lack of "respect for the well-settled views of all of our predecessors on the court, and for the rule of law itself." He further stated, "The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights ‘enshrined’ in the Constitution. Ante, at 64. But the right the Court announced was not ‘enshrined’ in the Second Amendment by the Framers; it is the product of today’s law-changing decision."

Scalia said the 70-year interpretation of the Second Amendment in the Miller case was the understanding of a "virtually unreasoned case" and was mistaken. He said the Miller decision meant "only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Finally Justice Stevens stated, "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice."

In his dissent Justice Breyer summarized that the argument about method is less important, "Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United Sates. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Response From Gun Control Supporters

Most gun control organizations
disagree with the Court’s decision giving individuals a right to possess guns for private purpose and that the decision needlessly complicates the lives of legislators seeking to bring gun violence under control. However, critically important is that all nine Justices agreed that a wide variety of gun laws are constitutional.

As stated by the Brady Campaign, "For years, the gun lobby has used fear of confiscation by the government to block efforts to pass sensible gun laws, arguing that even modest ownership.   Since the Court has overturned  the District’s ban on handguns, this ‘slippery slope’ argument is gone."

The Court also rejected the "absolutist" view of the Second Amendment that some gun advocates use to argue "any gun, any time for any one."

Now, politicians will no longer have these arguments to justify opposition to universal background checks and other common sense measures to prevent dangerous people from getting lethal weapons. As a result, gun control should no longer be a "wedge" issue in politics. The Brady Campaign is hoping that losing the "legal battle" will eventually lead to gun control advocates winning the "political war."

"We can move forward with finding sensible solutions to gun violence." Brady president Paul Helmke told ABC News. "Seventy-five percent of the public thinks it’s an individual right and 59% want reasonable gun control laws. Why are we arguing a theory anymore? We are concerned about what we can do practically." We can move forward with finding sensible solutions to gun violence and get down to the serious
business of focusing on the "well- regulated" aspects that have always been our concern.

"Universal background checks don’t affect the right of self-defense in the home. Banning a super dangerous class of weapons, like assault weapons, also would not adversely affect the right of self-defense in the home," said Dennis Henigan, Legal Director for the Brady Campaign, "Curbing large volume sales doesn’t affect self-defense in the home."
Julie Leftwich, Attorney at the Legal Community Against Violence, in an Op-Ed piece (7-7-08) stated, "So the good news…is that Heller leaves the door open to a variety of gun laws.   The bad news, however, is that the opinion provides no guidance whatsoever to lower courts regarding the standards they should use to review those laws."

Looking beyond the Supreme Court’s D.C. gun ban case to the race for the White House, the Brady Campaign views Sen. Barack Obama, D-Ill., as a better friend to gun control advocates than Sen. John McCain, R-Ariz. But given that McCain stood by his support for closing "the gun-show loophole" during a recent speech to the N.R.A., the Brady Campaign president hopes that new gun restrictions can make headway regardless of who wins in November.

Sen. Dianne Feinstein (D-Calif.), who became mayor of San Francisco in 1978 after the previous mayor, George Moscone, was shot and killed in City Hall, said the decision will "open the doors to litigation against every gun safety law that states have passed – assault weapons bans, trigger locks and all the rest of it."

Mayor Richard M. Daley (D-Chicago), whose strict gun-control law now faces a challenge, said the ruling was "a very frightening decision" and asked, "Does this lead to everyone having a gun in our society?"

Mayor Michael R. Bloomberg (I-New York), who has put together Mayors Against Illegal Guns, a 320-member coalition, reacted more cautiously. He noted that efforts to fight illegal guns have "nothing to do" with Second Amendment rights. "Today’s decision by the Supreme Court upholding those rights will benefit our coalition by finally putting to rest the ideological debates that have for too long obscured an obvious fact: Criminals, who have no right to purchase or possess guns, nevertheless have easy access to them," he said. Bloomberg writing in the Wall Street Journal (6-30-08) stated, "Two years ago, a group of 15 mayors came together to begin reclaiming this middle ground and working to toughen enforcement of federal laws. Today, our coalition of Mayors Against Illegal Guns has more than 300 members from every region of the country and from both major political parties. Mayors – often the ones in charge of police departments – recognize that the constitutionally sound middle ground is large enough for all those who have a good-faith interest in keeping guns out of the hands of criminals and protecting public safety."

D.C. Residents & Elected Officials Respond

Residents from the safest parts of Northwest to the most dangerous sections of Southeast expressed glee that the decision could enable some residents to defend themselves or dismay that it could lead to more chaos. Some railed against laws that seem to ignore those who import illegal guns into the city but heavily punish those who buy them. Some who have never been robbed said they planned to get a gun. Shooting victims, meanwhile, said they would not.

Mayor Adrian M. Fenty (D) and D.C. Council members expressed understandable outrage at the court’s decision. "More handguns in the District of Columbia will only lead to more handgun violence," Mayor Fenty said after the ruling. He and the council will waste no time in refashioning existing laws or crafting new gun control measures. With so much legally up in the air and with many rounds of litigation ahead, the District would be on solid moral and legal ground if it pushed for gun control laws that respected the Supreme Court’s puzzling mandate and were as tough as possible. In a move that could rile supporters of yesterday’s ruling, interim D.C. Attorney General Peter Nickles said the District will continue to enforce a separate decades-old D.C. ban on the possession of most clip-loaded semiautomatic handguns, which are popular with gun enthusiasts. That regulation, which outlaws machine guns and was not part of the Supreme Court case, defines a machine gun in broad terms, encompassing semiautomatic weapons that can shoot, or be converted to shoot, more than 12 rounds without reloading, officials said. Nickles said that law remains on the books and will be enforced. "You cannot go out today, if you have a handgun, and carry it around," Nickles said. "This is not open season with handguns. We are going to strictly regulate the registration of handguns. And there will be no authorization of automatics or semiautomatics."

Nickles stated the new rules for registering handguns will probably be similar to those in effect for rifles and shotguns, with additional restrictions. Residents generally will not be allowed to carry handguns outdoors, he said. "There are going to have to be some special provisions about how you transport handguns to the police station for registration," he said. "To own a gun, you’ve got to be an adult. You’ve got to be fingerprinted. You’ve got to demonstrate some knowledge of guns and of D.C. gun laws."

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"BULLETS OR CRAYONS"
13th ANNUAL CELEBRATION SUCCESS

CAGV’s 13th Annual Celebration, "Bullets or Crayons," this past April was an enjoyable and successful event and the centerpieces reflected the theme. Speakers were Assemblymember Kevin De Léon from Los Angeles and author Michael Mehas from Ventura. Assemblymember De Léon is the author of AB 2062, a bill that would regulate the sale of ammunition. He discussed the unfettered accessibility to purchase ammunition by criminals and minors. Michael Mehas, author of "Stolen Boy" and co-producer of the film "Alpha Dogs" discussed the Jesse James Hollywood case and the problems of easy access to guns by youth. The end of the event was marked by CAGV’s annual ringing of The Bell during which members of the audience commemorate someone dear who was the victim of gun violence. The victims of the Goleta postal shooting were honored and remembered.

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"We're here, we're armed, get used to it."

PROVO, Utah – Kevin Jensen is part of a fledgling movement to make firearms as common an accessory as an iPod. Termed "open carry" the movement claims supporters from grandparents to students. They maintain they are normal people who carry guns and want people to know that it’s not just cops who can carry guns. Jensen had a holster strapped around his hip as he entered a variety of places like Costco, his bank, restaurants and dropping his daughter at school. So far he has received no complaints and believes people should be aware that "crazy people are not the only ones with guns. Normal people carry them."

Some "open carriers” have been stopped by police, who are not in favor of this. Hassles with law enforcement are a badge of honor for some. Police Chief John Greiner said that in 2007 in Ogden, Utah, a man was openly carrying a shotgun on the street. When officers pulled up to ask him about the gun, he started firing. The police killed the man.

See their website, it has very complete information: OpenCarry.org.

11 states – Persons may open carry without a license

14 states – Persons may open carry, must have a license

17 states – Anomalous, open carry permitted with some restrictions

6 states – Classed non-permissive, highly restricted or banned

2 states – Open carry only allowed in non-incorporated areas (Illinois and California)

California Laws Regarding "OPEN CARRY":

California is not a traditional "open carry” state. "Open carry” is generally prohibited except in unincorporated areas where the county has not made open carry illegal, or, pursu­ant to aCalifornia "open carry” permit issued and valid only in a county with a population of less than 200,000 persons. Currently, SB 1171 (Scott-D) a bill would expand provisions to prevent loaded firearms in vehicles, public places, streets, roads or highways, is in the Public Safety Committee. Note: The California Constitution contains NO provision for the right to keep and bear arms.

Utah Laws Regarding "OPEN CARRY”:

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Guns in Colleges and Schools? The gun lobby is threatening school safety. Visit the Brady Campaign.

"D.C. Gun Case: The Second Amendment on Trial" and a 2008 Report on Regulating Guns in America: Visit the Legal Community Against Violence (LCAV) website... click the logo below:

National Lie-Ins Mark Virginia Tech Remembrance

April 16, 2008 marked the first anniversary of the gun massacre at Virginia Tech. The remembrance was marked by more than 70 "Lie-Ins" across the nation.

As each of these shooting events takes place, the public response has for the most part become predictable. Most Americans are horrified and frustrated in equal parts. Certain politicians decry the violence, yet proclaim that guns have nothing to do with the problem. We all know that is not true. Guns have everything to do with it. There is no other consumer product used so frequently to deliberately kill our fellow citizens.

The pro-gun lobby is predictably using the recent school shootings as an opportunity to ask, "What if the teachers and students had been armed?" That is the wrong question.

The right question is, "What if the perpetrator had NOT been able to obtain those firearms?" How many lives would have been saved? Instead of asking what the U.S. would be like with more guns, shouldn’t we be asking what our country would be like with fewer guns? Guns do not solve problems, they create problems. A handgun is designed for the sole purpose of taking human life. It is tragic that we have come to this; that we are obliged to be fearful of gun violence in our schools, our places of work and worship, our streets and highways. Our efforts must be dedicated to ending this shameful chapter in the life of the nation.

On April 16, 2008, however, the "Lie-In" movement would reach a new level. On the one-year anniversary of the Virginia Tech shootings, more than 70 Lie-Ins were conducted in 29 states and the District of Columbia, where several hundred demonstrators gathered in front of the Supreme Court and U.S. Capitol. Gun violence survivors, their friends, and families were heartened beyond their hopes and dreams by the "Lie-Ins" as they witnessed the growing collective of Americans determined to prevent future suffering.

In California, the Chapters of the Brady Campaign to Prevent Gun Violence and Associated Student groups, staged "Lie-In" demonstrations at colleges around the state as well as other activities to remember and honor gun violence victims.

Community events were also held in San Diego and Sonoma County:

In 15 states across the nation laws allowing guns on campus have been rejected by state legislatures. Two pending bills will probably fail. Only Utah allows guns on campus.

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