Posted on 11/21/2002 9:20:10 AM PST by Sweet_Sunflower29
Cato Institute legal scholars are crafting a legal strategy for challenging District of Columbia laws on Second Amendment grounds. The city's gun ban is among the most restrictive in the nation.
A 1976 law passed by the D.C. city council forbids most District residents from owning a handgun. Only law enforcement officers and residents who owned their (registered) guns prior to 1976 are exempt. Residents who already own a registered firearm are not allowed to keep it loaded unless they get a one-year license from the D.C. police chief, which is entirely at his discretion.
"D.C.'s blanket provisions are patently unreasonable," said Robert A. Levy of the Cato Institute, speaking Wednesday at a George Mason University law school forum hosted by Law Students for the Second Amendment and the Federalist Society.
Americans have a right to defend themselves against harm, Levy said; "no government ... should be permitted to take that away."
Cato legal scholar Gene Healy said that the goals of challenging District law are to allow residents to own handguns and protect themselves in their own homes; to set legal precedent that increases the scope of Second Amendment protections; to avoid the risk of creating bad precedents; and to get the Bush Department of Justice involved in the case.
"We want to be careful" and "pursue an incremental strategy," Healy stressed.
While no timeframe has been set for filing a complaint, Healy and Levy said that the court challenge will be brought by a handful of D.C. residents who wish to own guns and do not have felony convictions or misdemeanor gun convictions.
Likely plaintiffs include a federal government security guard, a homosexual man who has been the victim of assault, a CIA lawyer and veteran, a black man who is a veteran and retired from federal employment and now lives in a high crime area of the District.
Institute for Justice attorney Clark Neily is slated as lead attorney on the case.
The Cato scholars believe that the time may be ripe for furthering the scope of Second Amendment jurisprudence because of a 2001 Fifth Circuit Appeals Court decision in United States v. Emerson affirming that individuals (not just members of a militia or the military) have a constitutional right to own guns.
The Bush Justice Department has also positioned itself as a champion of the individual rights reading of the Second Amendment, expressing that view through footnotes in two DOJ briefs filed with the Supreme Court and a letter to the National Rifle Association.
But Levy speculates that Attorney General John Ashcroft will be loathe to get involved in a Second Amendment case. He "feels like he has the best of both worlds," said Levy.
The memo and briefs placate gun groups without antagonizing the anti-gun crowd or diverting the department's attention and resources away from other priorities, like fighting terrorism, he explained.
Another potential glitch for the Cato/IJ team is a 1987 D.C. Court of Appeals decision in Sandidge v. United States upholding the D.C. gun ban, reasoning that "the right to keep and bear arms is not a right conferred upon the people by the federal Constitution." Rather, that the Constitution confers "a collective right" of the states to bear arms.
While these are legal views arguably in the minority of recent Second Amendment scholarship, Ashcroft has allowed the District of Columbia U.S. attorney's office, which falls under the DOJ, to use the Sandidge decision to defend the district's gun ban.
As for the gun control crowd, Levy expects that well-funded groups like the Brady Campaign that have ample legal resources "will be vigorous" in devising legal and public relations counter-arguments. But, he said, the outcome of a legal challenge will hinge on the merits of the case.
BS!! Nearly all the BATF does is a diversion of resources away from fighting terrorism. Much more of it is perpetrating terrorism on otherwise law-abiding gun owners.
kinda like saying you can eat all the creamed corn you want - just don't open the can...
Ashcroft has done a great service by moving the government position so far in favor of individual rights. When the Supreme Court grapples with defining the limits, they will be faced with the same type of problems that caused Roe v. Wade. If the government must draw a line in a situation of almost infinite gradations, then the line should be drawn at the limit which preserves freedom, however unpopular and disgusting some may view the exercise of that freedom.
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