Friday, November 23, 2007

Alan Korwin on the Supreme Court taking its 96th gun case

64th gun case since Miller in 1939

Recognition of individual right to arms could be reversed

by Alan Korwin, Co-Author
Supreme Court Gun Cases

Nov. 20, 2007, Washington, D.C. -- The Supreme Court today decided to hear the District of Columbia v. Heller civil-rights case, characterized by many as its first gun case since the Miller case in 1939, a common error.

The High Court has been ruling on guns and gun rights since 1820, with 31 cases addressing the subject before Miller and 63 cases afterwards until this one. The widely quoted Miller case concerned two bootleggers and a sawed-off shotgun. Miller was murdered before his case could be retried as directed by the Supreme Court, leaving that short, controversial decision to be interpreted in many ways.

In the Court's 92nd gun case, U.S. v. Bean (2002), it decided that a man deprived of his right to keep and bear arms, due to a questionable felony arrest in Mexico, could not sue in federal court to regain those rights, since the federal bureau in charge of reviewing such gun-rights cases had failed to act.

The 93rd gun case, Brosseau v. Haugen (2004), asked whether a police officer shooting an escaping felon in the back was an excessive use of force. The Court avoided this question, resolving only a side issue of the officer's immunity from a lawsuit after the shooting. The case involved a rather wild fracas and an awkward shot at a driver through the rear driver's side window.

In its 94th such case, Small v. U.S. (2005), the Justices decided that a felony conviction in a Japanese court, which used procedures far below American standards, was not sufficient to deprive the defendant of his right to buy and possess a firearm.

The 95th case, Castle Rock v. Gonzalez (2005), confirmed a long-standing rule that, even though an armed violent spousal abuser under a restraining order had repeatedly threatened his estranged wife, the woman had no grounds to expect police protection. Some claim this is not a gun case per se, even though the husband shot her three children to death, before he was shot to death by police. Others have suggested that, since police have no duty to protect you, the right to self preservation, and the tools to make it effective, must be inherent under due process.

Ms. Gonzalez had assistance from civil rights groups and a firm with 1,000 lawyers but still lost the case. Although counterintuitive, police only have an obligation to society in general, not to specific people. Justice Scalia, in the 7-2 decision said there is no federal constitutional right to police protection, which leads some observers to infer a right to self protection. The Court said states were free to craft laws to fill the gap, but states have not. It is not the most clear-cut of the Court's many related cases, but it does firmly establish police "no duty to protect."

The new case now granted review, District of Columbia v. Heller, is somewhat different, since the parties are arguing specifically over the Second Amendment itself, and not the firearms they choose to bear or how they put them to use. The District of Columbia has, since 1976, denied its citizens any right to keep and bear an operable firearm even in their homes. Some credit this law, and the related city bans on obtaining or carrying a firearm, with forcing its law-abiding, defenseless citizens to live in one of the murder capitals of the nation, where only the criminal element (and authorities) are armed.

Discussions of the first 92 cases are compiled in Supreme Court Gun Cases, published by Bloomfield Press, which for the first time dispelled the notion that the High Court had been quiet about the subject of guns. The Court's decisions use some form of the word "gun" (rifle, shotgun, handgun, firearm, etc.) more than 2,900 times. Fourteen of the cases deal specifically with using guns in personal self defense.

News outlets, universally calling the Heller case the first gun case in decades, are merely repeating each other, rather than doing research that would easily show it's not true. (Going against the tide at this point might be hard for most news organizations.)

The case could be pivotal however, since the Justices could use it to effectively overturn gun laws at the state and federal level that civil-rights advocates have for years claimed infringe on the right to keep and bear arms. The D.C. law is an extreme example, they say, though New York City, Chicago and even some entire states have highly restrictive laws against private possession of arms, which tend to increase crime rates.

There is also a chance this decision, expected next year with a hearing as early as March, could set a precedent by finding against an individual right to keep and bear arms, which is what the mayor of D.C. and his supporters seek.

That would reverse two centuries of consistent rulings that have recognized an individual right to keep and bear arms for self defense and all other lawful purposes.

In private, pro-gun-rights groups and anti-gun-rights groups express dread at the chance the decision will go against them. A strong, broad decision in either direction could tear at the fabric of the nation, leading some observers to expect a carefully crafted and narrow decision that avoids the most delicate or volatile issues.

Not even the Justices know what they will ultimately decide, but the case is sure to be closely watched by pro-rights and anti-rights advocates, and wild speculation is running rampant. People are "counting votes" based on past decisions and known or supposed preferences. The ruling is unlikely to close the debate on gun rights, with parties remaining heavily committed to their own points of view, and the freedom of the country literally hanging in the balance.

Supreme Court Gun Cases, published in 2003 after six years of research, is available for news-media review by calling 1-800-707-4020. The authors are available for interview.

To see the book or purchase one:

News media fact sheet:

Summaries of the first 92 cases are online:

Specifically, the Court agreed to resolve this issue:

"Whether the following provisions -- D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 -- violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

The cited provisions are: 1 - The ban on handguns not registered before 1976; 2 - the ban on carrying an unlicensed handgun; and 3 - the ban on keeping an operable firearm at home. The Court didn't address the Parker case, involving five of the original litigants who seek to join this case. The Court could add that later, decide it seperately later, or ignore it. News on that should come out after Thanksgiving. Enjoy your holiday. We're having brisket.

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