Judiciary

Conservative Activists Key to DC Handgun Decision

The human rights victory in today’s Supreme Court decision in District of Columbia v. Heller could never happened without HUMAN EVENTS and the other pillars of the conservative and libertarian movements.

The 5-4 margin shows that Supreme Court appointments and Senate confirmations really do matter. Had a President Mondale, Dukakis, Gore, or Kerry been appointing Justices, the result today would have been different, and the Second Amendment would have been nullified. Had just a few 2002 and 2004 U.S. Senate races turned out differently — had Second Amendment citizen activists worked just a little less hard — the nomination of Samuel Alito would have been filibustered to death.

Citizen activism is no less important this year. A President Obama would appoint Justices who would ensure that Heller was the last case in which the Second Amendment was enforced. Whether the Second Amendment even applies to state and local governments, via “incorporation” in the Fourteenth Amendment, is unresolved.

Soon there will be challenges to the handgun bans in Chicago and four Chicago suburbs, which will present the incorporation issue squarely. Obama Justices and the Obama U.S. Department of Justice would fight energetically against recognizing the Second Amendment as a limit on state or local gun bans.

A second influence of the conservative and libertarian movements could be seen in the dissent authored by Justice Stevens. The Scalia majority and the Stevens dissent are both argued mostly in terms of original meaning and textualism. Both Scalia and Stevens delve very deeply into 18th and 19th century sources on the meaning of words, and the original public understanding of the Second Amendment. At least in terms of the Second Amendment, we are all originalists now.

It was not too distant past, constitutional originalism was beyond the pale in polite circles of the left-leaning legal elite. No longer.

There was a much conflict in the early stages of D.C. gun law case between Alan Gura (the lead lawyer for Heller) and the National Rifle Association. The NRA was worried about bringing a case to a Supreme Court on which Justice O’Connor would have had the decisive vote. Especially in light of the Ginsburg-O’Connor 1994 concurring opinion in Staples v. United States noting “the ‘widespread lawful gun ownership’ Congress and the States have allowed to persist in this country.” (emphasis added).

But by the time the Heller case reached the Supreme Court, the NRA engaged everything it had to help the case. Among the fruits of the massive NRA effort was an amicus brief written by the country’s most experienced Second Amendment litigator, Stephen Halbrook, which was joined by 55 Senators, 250 U.S. Representatives, and by Richard Cheney in his role as President of the Senate.

More broadly, Heller could not have been won today if handgun prohibition were not abnormal in the United States. When the 1976 D.C. handgun ban was being enacted, some city council members open acknowledged that the ban would accomplish little, but they hoped that it would be the start of a trend toward a national handgun ban.

But the handgun ban virus spread only to Chicago (1982) and four Chicago suburbs. The NRA and other pro-rights activists crushed statewide handgun ban initiatives in Massachusetts (1976) and California (1982). The NRA successfully pushed for pre-emption laws in almost every state in the country, to prevent local governments from banning handguns.

No matter how powerful the arguments of Gura and other pro-rights lawyers about the original meaning of the Second Amendment, it is very doubtful that the Supreme Court would have had the nerve to declare handgun prohibition unconstitutional if handgun bans were on the books in dozen states and in scores of cities.

Alan Gura’s great legal skills — and the skills of amici lawyers such as Stephen Halbrook — were of course essential to the victory in Heller. But the best pro-Second Amendment lawyers in America had the chance to win because the conservative and libertarian movements — including publications like HUMAN EVENTS and groups like the NRA –worked for decades to make sure that handgun prohibition was freakishly rare in American life, that originalism was a respectable mode of constitutional interpretation, and that the Supreme Court included five Justices who considered the right to own a handgun in one’s home for family defense to be a legimate part of American freedom.

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