Posted on 03/27/2009 5:59:02 AM PDT by marktwain
Has the Supreme Court decision in District of Columbia v. Heller–which affirmed the Second Amendment and declared the D.C. handgun ban unconstitutional–been of almost no significance? So claimed the New York Times in a recent article by Supreme Court reporter Adam Liptak. Unfortunately, Liptak’s article followed in a long New York Times tradition of credulously reporting the claims of one anti-gun professor, without conducting sufficient research to see if the claims hold up.
Let’s start with the most obvious facts which the Times overlooked. On the day that Heller was decided, the citizens of five Chicago suburbs, and of Chicago itself, were prohibited from owning guns. Residents of apartments provided by the San Francisco Housing Authority were prohibited from owning any gun. Within 24 hours of the Heller decision, gun rights organizations—including the National Rifle Association (NRA) and the Second Amendment Foundation (SAF)—filed lawsuits against the gun bans.
Today, the residents of San Francisco public housing can own guns in their homes. In four of the five Chicago suburbs (Morton Grove, Evanston, Wilmette, and Winnetka), the handgun bans have been repealed. Yet according to the Times, “So far, Heller is firing blanks.”
The Times came that erroneous conclusion, it appears, by credulously relying on UCLA law professor Adam Winkler. The Times quotes Winkler: “To date, the federal courts have not invalidated a single gun control law on the basis of the Second Amendment since Heller.” The Times does mention one exception to Winkler’s claim, a recent case holding that the federal ban on gun possession by anyone who has been charged (but not convicted) of possessing child pornography is unconstitutional.
But there are many more exceptions that the Times missed. Gun owners have already won in San Francisco, and they won in the four Chicago suburbs.
The Times quoted Winkler: “the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.” Yet attorney David Hardy reported in January on his Arms and the Law weblog the San Francisco Housing Authority will be paying the attorneys fees for the plaintiff gun owners there (although the settlement terms of the San Francisco surrender are confidential).
But Winkler (and, derivatively, the Times) does not count or even acknowledge the existence of these victories. Winkler’s database of cases includes only opinions written by federal courts. So if a gun rights group brings a suit in federal district court, or threatens to bring such a suit, and the gun-banning defendant realizes that defeat is likely, and then the defendant changes its anti-gun policies, Winkler and the Times ignore the result.
Likewise ignored is a win which does not generate a written opinion published in the Westlaw or Lexis databases. For example, in November, the NRA and SAF filed a lawsuit in federal district court in the Western District of Washington. Washington is the only state in the nation which requires legal resident aliens to obtain a special license in order to possess firearms, and the state licensing division was refusing to issue any alien licenses.
On January 27, the federal court entered a preliminary injunction, ordering the Washington Department of Licensing to resume issuing alien firearms licenses.
Nobody challenged the constitutionality of the state alien licensing law—just the Department’s denial of constitutional rights by failing to carry out the law. So this Second Amendment victory does not count, by Winkler’s hyper-narrow standard.
It likewise doesn’t count for Winkler (and for the Times) when a defendant successfully invokes the Second Amendment to resist a criminal prosecution. That’s what happened in United States v. Kitsch, decided last August in the federal district court for the Eastern District of Pennsylvania.
In that case, Kitsch had once been an undercover informant for law enforcement officials in New Jersey. The court explained his unusual circumstances:
As a means of helping the narcotics officer with whom he was working. . . . Kitsch set a small, smoky fire on the windowsill of the barn and then promptly called the fire department . . . . As a result of the fire, Kitsch was charged with third-degree arson, a felony under both New Jersey and federal law. He pled guilty to the state offense after meeting with law enforcement officials who told him they would set aside the conviction and Kitsch could live as though the event had never happened. Although he served a thirty-day custodial sentence on Sundays, Kitsch avers that he truly and reasonably believed that his conviction had either been set aside or expunged.
Later, federal prosecutors in Pennsylvania brought charges against Kitsch, because it is illegal for someone with a felony conviction to possess a gun. The prosecutors argued that Kitsch’s sincere belief that he was not a convicted felon was irrelevant. The judge disagreed, and ruled that “in order to convict Kitsch, the Government must prove beyond a reasonable doubt that he knew or was willfully blind to the fact that he had a prior felony conviction that had not been set aside or expunged.” The court explained that, post-Heller, the government’s strict liability interpretation of the statute might turn the statute into a violation of the Second Amendment.
Not a Second Amendment victory, according to Winkler and the Times. But hardly consistent with Winkler’s claim that “the only real change from Heller is that gun owners have to pay higher legal fees to find out that they lose.”
Winkler’s extremely narrow field of vision also ignores state courts. So there’s no mention of cases like Colvaiacolo v. Dormer, the October decision from a trial court in Suffolk County, New York, holding that New York State cannot require handgun licensees to keep their handguns locked in safe when not in use, because Heller ruled a similar requirement in D.C. unconstitutional.
It’s true that, as Winkler points out, federal courts have rejected lots of Second Amendment claims brought by convicted felons, and by persons convicted of domestic violence, or by persons wishing to possess machine guns. This is no surprise, nor is it contrary to what was sought by the lawyers on the winning side of Heller. I was one of three lawyers who joined Alan Gura at the Supreme Court counsel table, as assistants in his presentation of the oral argument. I also wrote an amicus brief for a broad coalition of law enforcement organizations, and for half the District Attorneys in California; that brief argued that gun bans for people such as domestic abusers were consistent with the Second Amendment. Another group of District Attorneys, led by Maricopa County, Arizona, submitted an amicus brief explaining why gun bans for law-abiding citizens were unconstitutional, while gun bans for criminals were not. Likewise, thirty-one state Attorneys General filed an amicus brief on behalf of Mr. Heller, and they too foresaw no possibility that gun bans for convicted criminals or machine gun bans would be endangered by a Second Amendment victory.
Of course criminal defense lawyers often have to grasp at straws to defend their clients, so it’s not surprising that there have been plenty of post-Heller cases in which defense lawyers have raised near-hopeless Second Amendment claims. It’s hardly news that these cases have been losers.
Although the Times does not discuss Professor Winkler’s role in Heller, he is not a disinterested academic. He filed an amicus brief on D.C.’s side, in which he argued that gun controls should be upheld if they are “reasonable,” and that anything short of banning all guns is reasonable.
Justice Breyer and the three other Heller dissenters argued in favor of the reasonableness standard, while Justice Scalia’s majority opinion explicitly rejected it.
Now, Winkler appears to be spinning the news by making it appear that post-Heller courts are, in effect, following his (rejected) standard. That’s Winkler’s prerogative, but the New York Times is not supposed to be so gullible.
Times writer Adam Liptak did talk with Sanford Levinson, an eminent professor of constitutional law at the University of Texas, who wrote a very influential article in the Yale Law Journal in 1989, recognizing the Second Amendment as an individual right. But while Levinson is a superstar of constitutional theory, he does not track the Second Amendment on a case by case basis.
As a journalist, Liptak should have tested Winkler’s claims by speaking with a “pro-gun” attorney or a scholar with extensive knowledge of post-Heller litigation. David Hardy would have been a good choice, as would Alan Gura or Stephen Halbrook—both of whom have won some of the Second Amendment victories detailed above.
Then, Liptak might still have written an article explaining that Heller has not led to a raft of federal gun control laws being declared unconstitutional. But Liptak would not have inaccurately written that “So far, Heller is firing blanks.” The attorneys for the State of Washington, the San Francisco Housing Authority, Wilmette, Evanston, Morton Grove, Winnetka, and Suffolk County are among those who know better.
David Kopel is a policy analyst with the Cato Institute, in Washington, D.C., and research director of the Independence Institute, in Golden, Colo.
There are any number of natural and/or God-given rights. None of them has the least legal status unless some legislature and/or court affirms it. Hobbes tells me that, having been sentenced to death for, say, blowing up an orphanage, I have a perfectly natural right to kill my jailers (or anyone else) in order to escape execution. Shall we conservatives stand on the sidelines and cheer as killers exercise their natural rights in such circumstances? I hope not. That’s part of what it means to live under a government of laws, not of men.
While your correction IS technically and essentially accurate, Jefferson’s writings contain numerous references to the PRINCIPLE summarized in the cited utterances, to wit:
(From the University of Virginia)
The Right to Bear Arms
In a nation governed by the people themselves, the possession of arms to defend their nation against usurpers within and without was deemed absolutely necessary. This right is protected by the 2nd Amendment to the Constitution. A gun was an everyday implement in early American society, and Jefferson recommended its use. “A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun, therefore, be the constant companion of your walks.” —Thomas Jefferson to Peter Carr, 1785. ME 5:85, Papers 8:407
“The constitutions of most of our States assert that all power is inherent in the people; that... it is their right and duty to be at all times armed.” —Thomas Jefferson to John Cartwright, 1824. ME 16:45
“One loves to possess arms, though they hope never to have occasion for them.” —Thomas Jefferson to George Washington, 1796. ME 9:341
“I learn with great concern that [one] portion of our frontier so interesting, so important, and so exposed, should be so entirely unprovided with common fire-arms. I did not suppose any part of the United States so destitute of what is considered as among the first necessaries of a farm-house.” —Thomas Jefferson to Jacob J. Brown, 1808. ME 11:432
“No freeman shall be debarred the use of arms (within his own lands or tenements).” —Thomas Jefferson: Draft Virginia Constitution (with his note added), 1776. Papers 1:353
“None but an armed nation can dispense with a standing army. To keep ours armed and disciplined is therefore at all times important.” —Thomas Jefferson to -——, 1803. ME 10:365
Couple THOSE expressions with this
“What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.” —Thomas Jefferson to William Stephens Smith, 1787. ME 6:373, Papers 12:356
and Mr. Jefferson’s meaning becomes clear enough to warrant its condensation into the expressions which you were kind enough to point out as likely apocryphal.
I rather doubt he thought, given the actions during the Revolution, “...the blood of...tyrants...” and USURPERS (a term that makes ME go “hmmmmm?) is best spilled with hay forks, hoes (the steel and wood kind) or shovels.
Lying and dissembling by the NYT?
I’m shocked!
If we accept that all our God-given rights are subject to the affirmation of some court, then we have lost. I want to win.
I want to win, too. But I care very much how I win and what kind of a country I have in the end. In our civil society, the only way to check on which of those God-given rights are in force is to check with the Constitution and with the courts. Otherwise I have you over here telling me about your God-given right to bear arms and some lady over there telling me about her God-given right to do whatever she wishes with her body, including abortion or marrying her girlfriend. I suppose that if I shoot the lady, I win. After a fashion.
That last is a ridiculous statement, and seems like the sort of thing a newbie disruptor might post.
Newbie disruptor, huh? I’ll take the newbie, but I navigated over here via Instapundit, one of my regular sites, because of a longstanding interest in 2nd Amendment issues. I got my first NRA membership in 1961. You?
So now that we’re all on the same webpage, how about a little more than crying “ridiculous,” without giving saying why? To make it perfectly plain: please tell me how you know this or that right is God-given and some other one is not.
That wasn’t your last statement, and was not what I was commenting about.
I’m guessing you mean the last 2 sentences of my last statement? In which case I plead to comic extravagance based on a genuine point: reliance on a divine charter of rights can justify all sorts of unfortunate actions. In the most extreme instance, both Ted Kaczinsky (sp?) and Timothy McVeigh thought they were defending their God-given rights. I myself prefer to limit my own defending to those rights given legally enforcible enactment.
Yes, in that regrettable case, you would win. Next.
Sure. Next for those of us in the great state of NY is to figure out how Heller could conceivably be used to challenge local ordinances. If you have any idea what it takes to register a rifle in NYC you know the meaning of righteous frustration.
I can’t give you relief from your frustration except to say that registration and licensing of firearms and owners are contrary to the Constitution. It is quite clear. If your local politicians disagree, then you should either act accordingly or move. It’s warmer down here in the South.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.