SANDRA S. FROMAN
If we lose control of the Senate, then we lose control of the judicial nomination process, and the Second Amendment is at the mercy of those who think it is a relic of history.
s we approach midterm elections, I'm amazed that one of the most important issues facing us is not more prominent in the public debate. That is the issue of the federal judiciary, and particularly the United States Supreme Court.
Not long ago, we got a stunning reminder that controversial issues often turn on the narrowest of margins. You'll remember that on Dec. 10, 2003, the Supreme Court declared--by one vote--that the Bipartisan Campaign Reform Act (BCRA) passed constitutional muster even though that law makes pre-election broadcasts of issue advertising by NRA a crime if those ads refer in any way to a politician running for federal office.
Who sits on a lower federal court can matter very much to you and me—in fact, it can be a matter of life and death.
NRA, of course, filed a lawsuit in federal court the minute the court opened its door after the bill was signed into law. As we rightfully stated, BCRA "eviscerates the core protections of the First Amendment by prohibiting, on pain of criminal punishment, political speech."
In the end, only four Supreme Court justices agreed with us. A majority of the court, consisting of the liberal justices plus one moderate, reached this decision. The judicial conservatives on the court disagreed.
In a blistering dissent, Associate Justice Antonin Scalia wrote: "This is a sad day for freedom of speech. Who could have imagined that the same court which, within the past four years, has sternly disapproved restrictions upon such inconsequential forms of expression as virtual child pornography … and sexually explicit cable programming … would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government."
What if the court had been considering whether the Second Amendment protects an individual right of American citizens to keep and bear their private arms? What if a majority consisting of activist justices joined by one moderate made that decision? Are you confident that the majority would decide correctly? One thing is for certain, whatever that ruling, it would become the law of the land.
As gun owners dedicated to protecting our Right to Keep and Bear Arms, we have an obligation to make sure that justices appointed to the Supreme Court are men and women who understand and support our constitutional freedoms. And that means making sure that judges appointed to the lower federal courts, which are the "farm teams" for the Supreme Court, are likewise faithful to the text of the Constitution and Bill of Rights.
Who sits on a lower federal court can matter very much to you and me--in fact, it can be a matter of life and death. You remember following Hurricane Katrina when the authorities in New Orleans went door-to-door forcibly confiscating firearms from law-abiding people who only wanted to defend themselves. NRA filed suit to stop the unlawful gun confiscations. It was a federal district judge appointed by President George W. Bush and confirmed by the Senate--Judge Jay Zainey--who ordered the authorities to stop the gun confiscations and return the firearms.
Over the past several years, the obstruction of good judicial nominees by anti-gun Senators Schumer, Kennedy and Feinstein has been a hot issue for our friends in the Bush administration and Congress. We've won Senate seats on this issue and it was a major reason that President Bush won re-election.
And the nation and gun owners have benefited as a result. We now have what appear to be two strict constructionists on the Supreme Court in Chief Justice John Roberts and Justice Sam Alito, and a number of promising new federal appeals judges such as Janice Rogers Brown, Priscilla Owen and Bill Pryor. America is stronger and our gun rights more secure having such well-qualified, well-grounded jurists on the bench.
It doesn't mean that you or I will always agree with them on every issue. Justices Scalia and Thomas don't always agree and there are plenty of issues on which brilliant jurists can come to different conclusions. The test is whether they reach those conclusions by looking at the plain words of the Constitution, the Bill of Rights and federal statutes.
In order to make sure that pro-freedom jurists are appointed and confirmed, we must keep control of the Senate and especially the Senate Judiciary Committee, which reviews nominees to the federal bench. Since federal judges serve for life, few actions that the Senate takes are as important.
As the character Pike said in Sam Peckinpah's famous Western film, The Wild Bunch, "We've got to start thinking beyond our guns." To make sure we elect a pro-gun Senate and, of course, a pro-gun House, we must start thinking "beyond our guns," and get active in this election. If we don't, and if we lose control of the Senate, then we lose control of the judicial nomination process and the Second Amendment is at the mercy of those who think it is a relic of history.