What Are The Anti`s Thinking?

By *** Required ***

Dave Kopel drills down
into the filings for D.C.�s
Supreme Court gun-ban
case to answer the question:

What Are The

Anti`s Thinking?

In January, 20 "friend of the court" (amicus curiae) briefs were filed in support of District of Columbia Mayor Adrian Fenty`s efforts to preserve the D.C. bans. Organizations or persons who are not parties in the case, but who have an additional perspective to share with the court, file amicus briefs. In high-profile cases such as Heller, it is not uncommon for dozens of briefs to be filed.

Of course the NRA and the NRA Civil Rights Defense Fund, along with other pro-rights organizations, have filed amicus briefs too, in support of Mr. Heller`s challenge to the D.C. bans. Those briefs, some 46 in number, were filed just prior to press time and will be covered in a future issue. For a short rundown, however, see the sidebar on page 30.

All of the briefs, along with other court filings in the case, are available online at www.nraila.org/heller.

Several of the pro-ban briefs come from full-time professional gun-ban organizations. The Violence Policy Center`s (VPC) brief claims that handguns today are even more dangerous than when the D.C. City Council enacted the ban in 1976. These days, sales of self-loading pistols outpace those of revolvers. Technological advances have made pistols more compact, or higher in ammunition capacity, or more effective for self-defense than in 1976. These improvements are obviously the result of manufacturers trying to cater to consumer preferences, although the VPC blames everything on the wickedness of gun manufacturers.

VPC claims high-powered revolvers such as the .50-caliber S&W model 500 (very useful for carrying in areas where a bear attack is possible, I might add) are actually "vest-busters," made for killing police officers.

An appendix to the brief provides pictures of the scariest-looking handguns that the VPC can find, culled from the pages of Shotgun News. Examples include the Olympic Arms OA-98. The VPC does not inform the court that such handguns would still be illegal in D.C. even if the handgun law were overturned; you see, D.C. has a separate "machine gun" law that bans all semi-autos for which anyone`s ever made a magazine holding 12 rounds or more.

The final section of the brief warns that handguns are inappropriate for self-defense because panicked handgun users` (the brief makes sure not to call them "crime victims") hands will be trembling so much it can "easily result in the killing of an innocent bystander." The VPC does not provide any data about how often this actually happens (in truth, hardly ever), but instead offers a citation to one of its own monographs.

Like the VPC, the Coalition to Stop Gun Violence (CSGV) explicitly favors a handgun ban. The CSGV`s website lists 45 member organizations, but interestingly, many of these are not part of the CSGV brief, or any other pro-ban brief. Non-participants include the YWCA of USA, the Jesuit Conference Office of Social and International Ministries and Women`s National Democratic Club.

The brief is filed by the CSGV`s legal arm, the Educational Fund to Stop Gun Violence, and does include many of the CSGV member organizations, as well as many state and local gun-ban groups.

The brief argues that the Constitution provides the death penalty for treason and authorizes Congress to use the militia to "suppress insurrection." Accordingly, the brief concludes that the Second Amendment could not have been intended to allow the people to use firearms to resist or overthrow a tyrannical government.

Of course, that claim is contradicted by the writing of James Madison himself, and by many others, including Hubert H. Humphrey, who explained: "Certainly one of the chief guarantees of freedom under any government, no matter how popular and respected, is the right of citizens to keep and bear arms. This is not to say that firearms should not be very carefully used and that definite safety rules of precaution should not be taught and enforced. But the right of citizens to bear arms is just one more guarantee against arbitrary government, one more safeguard against a tyranny which now appears remote in America, but which historically has proved to be always possible." (Know Your Lawmakers, Guns, Feb. 1960, p. 4.)

The brief for the Brady Center-the legal arm of the Brady Campaign-is joined by the International Association of Chiefs of Police, Major Cities Chiefs and some smaller police groups, mostly formed of command officers.

The main problem for the Brady lawyers` reasoning is that, although they assemble collections of quotes and arguments that would seem persuasive if you only read their brief, most of what they write is readily contradicted once you look at the entire record. For example, they insist that the only purpose of the Second Amendment was federalism-to limit federal interference with state militias.

But one only has to look at the D.C. government`s official Constitution for the proposed state of "New Columbia" (what D.C. would be called if it were granted statehood). The "New Columbia" Constitution copies the federal Bill of Rights, including a word-for-word copy of the Second Amendment. Nothing in a state constitution could limit federal power. Thus, the D.C. government`s own actions contradict the Heller argument of the Brady Center (and of the D.C. government itself) that the Second Amendment is only about federalism.

Not to be outdone, Janet Reno returns, along with a collection of other officials from the Reno/Clinton Department of Justice, in a brief arguing that the official position of the Department of Justice since the 1930s has been that there is no individual right to arms, and that the Second Amendment is only a "collective right" of state governments.

One of the brief`s biggest problems with this argument is dealing with the testimony of President Roosevelt`s attorney general, Homer Cummings, before Congress during the passage of the National Firearms Act (NFA) of 1934. The NFA imposed a tax and registration requirement on "machine guns," short shotguns and short rifles. Cummings was asked about whether Congress could instead enact an outright ban, and Cummings replied that there might be constitutional problems.

Reno and her ex-staffers claim that Cummings was not talking about the Second Amendment; he was explaining that the congressional tax power (which is the basis for the NFA) might not extend to banning things, rather than taxing them (and registering them in order to enforce the tax).

However, what Reno omits is the context of what Attorney General Cummings said. In the hearing before the House Ways & Means Committee, Representative David J. Lewis of Maryland said, "I have never quite understood how the laws of the various States [restricting concealed firearms] have been reconciled with the provision in our Constitution de