High Noon For The 2nd Amendment?

Andrew Cohen: Expect A Showdown During U.S. Supreme Court's Landmark Gun Case

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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The Parade of Horribles, otherwise known as the battle over the Second Amendment, begins anew Tuesday when the Justices of the United States Supreme Court hear oral argument in District of Columbia v. Heller, the first major gun case to come along since the month Hitler seized Czechoslovakia before World War II.

We find ourselves at this poignant moment - a gun rights showdown during an election year - thanks to a fellow named Richard Heller, who so far has successfully challenged the District of Columbia’s broad gun control regulations. Heller, a security guard, wants the right to take his firearm home with him after a long day at the office. DC currently bans the possession of firearms-as well as other restrictions upon gun possession - as part of an effort to curtail the District’s high gun violence rate.

The D.C. Circuit Court of Appeals ruled last year that DC’s ban is an unconstitutional infringement upon an individual (not collective, militia-y) right to bear arms under the Second Amendment. So, for gun rights advocates, the Parade of Horribles unfolds this way: the Justices find a way uphold and thus strengthen DC’s ban, which prompts gun control advocates to push for similar ordinances and legislation across the nation. Pretty soon, the fear goes, every jurisdiction prohibits the possession of firearms in the home.

Gun control advocates offer their own dire forecast. In their worst fears, the Supreme Court strikes down the DC ban using a legal standard that opens the door to subsequent challenges to gun control regulations all over the country. Pretty soon, there are no federal gun restrictions and those on the state level are legally dubious. Pretty soon, this fear goes, everyone is packing everywhere. This is the drama the Supreme Court gets-and deserves-for not addressing the merits of the Second Amendment since 1939.

The chance that either of these parades will unfold is remarkably low, however, even given the hype that surrounds this case. Given the Court’s strong conservative makeup, it is likely that both a right to own, possess and use a firearm and the government’s right to restrict that ownership, possession will survive the Heller case. The only thing that remains reasonably unpredictable and mysterious is the language the Court’s majority - hello there, Mr. Swing Vote Justice Vote Anthony Kennedy, get your pen ready - will use in conjuring up the legal standard that will govern review of gun control legislation.

It is true that if the Supreme Court - for the first time - ever affirms an individual gun right in the Second Amendment it will be a huge deal and lawyers and professors and gun activists (on both sides of the fight) will write trillions of words about it. But, depending upon the standard used, the nation’s gun laws may not materially and universally change as a result of the ruling. The sky won’t fall, you might say, on either camp even if the Justices deliver a decisive and clear interpretation of the Second Amendment.

There are several reasons for this. First, as even Team Heller concedes in its opening brief: “However else Petitioners might regulate the possession and use of arms, their complete ban on the home possession of all functional firearms, and their prohibition against home possession and movement of handguns, are unconstitutional” (emphasis added). There are plenty of “individual” rights guaranteed by the Bill of Rights that are subject to regulation. For example, we all have the right to speak but none of us have the right to threaten someone with murder.

If there is an individual right under the Second Amendment is the right to possess a firearm in your home - or anywhere else - a right so “fundamental” under the Constitution and Bill of Rights that it requires the government to offer the highest legal level of justification for restrictions placed it? Or is a lower level of review suitable, in which case more gun control ordinances and laws would withstand legal challenge? And, if the Justices go with the former and not the latter, what sorts of restrictions would survive judicial review? If the Court answers those questions, at least we’ll all know more than we do now about where we are supposed to go next in this old battle.

There is another important reason why a victory for gun rights activists won’t automatically shatter gun control legislation across the nation. All sides also seem to agree that the Second Amendment applies only to federal gun restrictions and that its protections may not necessarily (or immediately) be transferred in a way that voids state gun control laws. So even if - or when - Heller wins his challenge against the District other litigants will have to challenge state regulations on their own merits using the standard the Court announces.

The case drew an extraordinary 67 amicus briefs from groups of virtually every possible persuasion, from the Brady Center to Prevent Gun Violence to the “Pink Pistols and Gays and Lesbians for Individual Liberty” (they support Heller). The clear majority of “friends” briefs support Heller’s quest. They want him to be for the Second Amendment what Clarence Earl Gideon was to the right to counsel, what Ernesto Miranda was to the right to remain silent, and what the New York Times was to the right to free speech.

But even the Bush administration can’t completely decide which side it is on. The Justice Department argues there an individual right to “bear arms” but also that “reasonable regulations” may limit their use. The feds want the Justices to send the case back down for further review. But the Vice President of the United States? In his role as President of the Senate, Dick Cheney signed onto a brief sent by dozens of senators and hundreds of representatives seeking an end to the case and a victory for Heller.

Look Tuesday morning for a dramatic, tense and serious showdown inside and out of court. Outside there will be plenty of shouting. Inside the Justices will hear the details of each Parade before they choose, as they ultimately will, some sort of different route.

[gunownerdan]

Well over 60 million defenseless civilians were murdered by their own governments during the 20th century alone.

Germany and Occupied Europe - 15-20 million

"Licences to obtain or carry firearms shall be issued only to persons whose reliability is not in doubt, and only after proving a need for them."
German Law, 1928

"Jews are prohibited from acquiring, possessing, and carrying firearms and ammunition, as well as truncheons or stabbing weapons.
Those now possessing weapons and ammunition are at once to turn them over to the local police authority.
Firearms and ammunition found in a Jew''s possession will be forfeited to the government without compensation.
Whoever willfully or negligently violates the provisions...will be punished with imprisonment and a fine.
Berlin, 11 November 1938
Minister of the Interior
Frick"
German Law, 1938
http://www.jpfo.org/NaziLawGerman.htm

Soviet Union - 20 million

"All permits for the carrying or keeping of arms...are invalid and must be exchanged for new certificates..."
Soviet Resolution, 1918

"Any violation of laws concerning...firearms are punishable by forced labor."
Soviet Law, 1926

China - 30-45 million

"Whoever, without authority or good cause...is found in possession of guns...shall be punished with imprisonment."
Chinese Law, 1935

"Buying or possessing firearms or ammunition for use in athletic activities or for hunting...[shall be punished with detention]"
Chinese Law, 1957

[gunownerdan]

Mass Murderers Agree: Gun Control Works!

"One man with a gun can control 100 without one. Make mass searches and hold executions for found arms."
- Lenin

"Ideas are more dangerous than guns. We wouldn%u2019t let our enemies have guns, why should we let them have ideas?"
- Joseph Stalin

"Every Communist must grasp the truth, Political power grows out of the barrel of a gun. Our Principle is that the Party commands the gun, and the gun must never be allowed to command the Party."
- Mao Zedong

"On the morrow of each conflict I gave the categorical order to confiscate the largest possible number of weapons of every sort and kind. This confiscation, which continues with the utmost energy, has given satisfactory results."
- Benito Mussolini

"The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing."
- Adolf Hitler

"Germans who wish to use firearms should join the SS or the SA - ordinary citizens don''t need
guns, as their having guns doesn''t serve the State."
- Heinrich Himmler, Hitler''s SS leader

[gunownerdan]

Mass Murderers Agree: Gun Control Works!

"One man with a gun can control 100 without one. Make mass searches and hold executions for found arms."
- Lenin

"Ideas are more dangerous than guns. We wouldn%u2019t let our enemies have guns, why should we let them have ideas?"
- Joseph Stalin

"If the opposition disarms, well and good. If it refuses to disarm, we shall disarm it ourselves."
- Joseph Stalin

"Every Communist must grasp the truth, Political power grows out of the barrel of a gun. Our Principle is that the Party commands the gun, and the gun must never be allowed to command the Party."
- Mao Zedong

"The measures adopted to restore public order are: First of all, the elimination of the so-called subversive elements. ... They were elements of disorder and subversion. On the morrow of each conflict I gave the categorical order to confiscate the largest possible number of weapons of every sort and kind. This confiscation, which continues with the utmost energy, has given satisfactory results."
- Benito Mussolini

"The most foolish mistake we could possibly make would be to allow the subject races to possess arms. History shows that all conquerors who have allowed their subject races to carry arms have prepared their own downfall by so doing."
- Adolf Hitler

"Germans who wish to use firearms should join the SS or the SA - ordinary citizens don''t need
guns, as their having guns doesn''t serve the State."
- Heinrich Himmler, Hitler''s SS leader

[bhappy2-2]

And you still avoided answering my question, behappy2_2! WHY IS IT OUR CRIME AND MURDER RATE IS GREATER THAN THEIRS?

Posted by quatrops

I did not avoid answering your question, you avoided reading my response. Since their CRIME RATE went up it is obvious to all except the IDIOTS and GUN BANNING FREAKAZOID LUNATICS (like you) that gun bans DO NOT WORK. If you are so impressed with the crime rates in their country why don''t you move there?

[rojasbbi]

Yes, finally we are getting our rights back. My god read slow (Right to bear arms will not be infringed).Any 6 year old can figure that out. I live in illinois and go to work in Indiana. I have CCW there and I pak every time I go. Boy do I feel safe. The crime is low in indiana but If someone tries to rob me we are even. Illinois will have no choice but to wake-up and smell the coffee. Ah the heck with it I''m going to strap my gun on right away in the morning in illinois even thought they say it''s illegal. IT IS MY RIGHT. Have a good day.

[rojasbbi]

Yes, finally we are getting our rights back. My god read slow (Right to bear arms will not be infringed).Any 6 year old can figure that out. I live in illinois and go to work in Indiana. I have CCW there and I pak every time I go. Boy do I feel safe. The crime is low in indiana but If someone tries to rob me we are even. Illinois will have no choice but to wake-up and smell the coffee. Ah the heck with it I''m going to strap my gun on right away in the morning in illinois even thought they say it''s illegal. IT IS MY RIGHT. Have a good day.

[billorights]

WHY IS IT OUR CRIME AND MURDER RATE IS GREATER THAN THEIRS? Posted by quatrops

Because our prisons have a revolving door. Because our Justice System does not effectively punish criminals. Because the welfare state supports the mentality that personal responsibility is somebody else''s problem. Because a small but very visible minority of career-criminals with a sense of entitlement are able to maintain their lifestyle with near-impunity. Because people are afraid to teach their children that there is a difference between right and wrong, and hold them accountable to behave like human beings.

[quatrops]

And you still avoided answering my question, behappy2_2! WHY IS IT OUR CRIME AND MURDER RATE IS GREATER THAN THEIRS?

[billorights]

You should also note that NOBODY (not even the NRA) is arguing for the right to own bazookas, machineguns or nuclear weapons. There are restrictions on civilian ownership of weapons of this type which have been standing unopposed for decades.

The current debate is about common firearms which would be suitable for civilian use. This includes handguns, so-called assault weapons, aka semi-automatic detachable-magazine-fed rifles that are suitable for defensive purposes other than hunting or target shooting.

[billorights]

Militias were necessary because the government did not yet have a large enough standing army - Posted by Sebastian27

Incorrect. Militias were necessary to be able to stand up to a standing army controlled by a tyrannical government. There was a great deal written regarding the Founding Fathers%u2019 mistrust of a standing army.

[gunownerdan]

"Tyrants from Hitler to Mao to Stalin have sought to disarm their own citizens, for the simple reason that unarmed people are easier to control. Our Founders, having just expelled the British army, knew that the right to bear arms serves as the guardian of every other right. This is the principle so often ignored by both sides in the gun control debate. Only armed citizens can resist tyrannical government."
-- Congressman Ron Paul, June 27, 2006

www.a-human-right.com/effective.html

[bbailey642]

So, handguns hadn''t been invented yet or weren''t used for self protection? Which one?

[sebastian27-2009]

It would not be practical for the government to try to take all of the guns owned by the American people. It couldn''t be done. HOWEVER, the constitution was deliberately in a flexible manner and for the times in which it was written. Militias were necessary because the government did not yet have a large enough standing army, and we were an agrarian society and RIFLES were necessary for putting meat on the table and individual protection. I think that it is clear that some restriction on gun ownership is not against the intent of the founding fathers when the second amendment was written.

[f-102a]

bbailey642 writes %u201CHowever, don''''t mind too much when I erect a sign on my property pointing to yours stating "We have guns in our house and this one%u201D

bbailey, I don%u2019t mind any citizen of sound mind without a felony background owning a weapon, rifle or pistol.

However, the ownership of Military style automatic rifles or pistols that hold more than 7-8 rounds in the magazine should not be allowed. These weapons belong with our Military and our law enforcement agencies and should not be available to the public.

My choice of firearms is a Winchester lever action model 94. And never keep a loaded weapon in the house!!!!!

[joecoolswat]

the right of the People to keep and bear arms shall not be infringed.

Shall NOT be infringed. Not by DC, not by anyone.

[bbailey642]

Every gun control advocate focuses on one main point; that guns are for militia members. Where were the militia members supposed to get their guns? They had to bring them! They themselves supplied their own guns, powder and ammo. We, in that era were a hunting, home self-defending and self-preservation society. That is what the framers intended. That the right to own a gun, was a need. In our modern era while no longer a hunting oriented society, we are still faced with home self-defense and self-preservation. While I personally own guns, they are locked according to law and I have not fired a gun since 1989. But, I have access if the need arises ala a home invasion or life-threatening situation. If you''re my neighbor and don''t like guns, that''s fine with me. If you want to rant and write venomous diatribes against me as a gun owner, that''s your right. However, don''t mind too much when I erect a sign on my property pointing to yours stating "We have guns in our house and this one (yours) does not".

[coppertales]

How come everyone forgets what a "comma" is for. Look it up in the dictionary. Or, is the dictionary wrong?

A person has the right to defend themselves and their family. The SCOTUS has already ruled, Castle Rock vs Gonzales, that the police have no duty to protect the individual citizen. So, who is going to protect you? It has to be you or you die.....chris3

[bhappy2-2]

Why is it that every european country that has severe restrictions or prohibitions against handgun ownership also has lower crime and murder rates than the United States? It seems to me you must have concluded there are OTHER dysfunctional aspects to our American culture that make our crime and murder rates higher than our european neighbors.

If handgun ownership ISN''''T a contributing factor, what is?

Posted by quatrops

Are you kidding? Their violent crimes INCREASED after their firearms were taken! Do you know why? Because the CRIMINALS know their victims are unarmed, while the CRIMINALS continue to be armed because the laws only stopped those who OBEY THE LAWS. CRIMINALS are excluded from obeying the laws because they are CRIMINALS. (That means they do not obey laws, in case you have never had it explained to you)

[quatrops]

I have a question for those of you who argue that handgun ownership is a GOOD thing, and that, additionally, the country would be "better off" if all citizens owned a handgun to protect themselves against criminals or an over-reaching government.

Why is it that every european country that has severe restrictions or prohibitions against handgun ownership also has lower crime and murder rates than the United States? It seems to me you must have concluded there are OTHER dysfunctional aspects to our American culture that make our crime and murder rates higher than our european neighbors.

If handgun ownership ISN''T a contributing factor, what is?

[speed01rcr]

Didn''t the anti-gun politicians that took the oath of office that are against gun ownership swear to bear TRUE FAITH AND ALLEGANCE to the constitution, and support it?

Sounds like we need some impeachment proceedings!!!