Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him.”     Leo Tolstoy

April 3, 2007

The NRA vs. The Second Amendment

by Doug Mataconis

In today’s Washington Examiner Robert Levy, one of the lead attorneys in the Parker v. District of Columbia case which recently resulted in a clear victory for an individual rights interpretation of the Second Amendment, wonders why the National Rifle Association is pursuing a strategy that would prevent the Supreme Court from ruling on the case.

The problem, Levy contends, is the D.C. Personal Protection Act which would make Parker a moot case and result in the end of the appeals process:

Parker is the first federal appellate decision to invalidate a gun control statute on Second Amendment grounds. Federal circuit courts covering 47 states have held that there’s no recourse under the Second Amendment when state and local gun regulations are challenged. That means Parker could be headed to the Supreme Court.

Enter Congress and the NRA. First, Reps. Mike Ross, D-Ark., and Mark Souder, R-Ind., introduced the D.C. Personal Protection Act. Then, on March 28, Sen. Kay Bailey Hutchison, R-Texas, followed suit in the Senate. Both bills, pushed hard by the NRA, would repeal the D.C. gun ban.

Ordinarily, that might be a good thing. But passage of the bills would kill the Parker litigation. It isn’t possible to challenge a law that has been repealed. Yet, Sen. Hutchison claims in her press release that she favors “both a legislative and judicial remedy. I hope the Parker case goes before the Supreme Court and that the court asserts that the right to bear arms is an individual, and not a collective, right. …”

While taking the case to the Supreme Court is risky — after all, the Court court reverse the landmark March 9th ruling — Levy contends that it’s worth the risk:

First, legislative repeal of the D.C. gun ban will not stop criminal defense attorneys and Public Defenders from citing the Second Amendment when they challenge “felon in possession” charges. Thus, if Parker is derailed, the next Second Amendment case to reach the Supreme Court could feature a murderer or drug dealer instead of six law-abiding citizens.

Second, a bill aimed at D.C. does only part of the job. It could be repealed by a more liberal Congress. And it will have no effect on state law outside of D.C. In effect, those who support the D.C. Personal Protection Act will be opposing an unambiguous Supreme Court proclamation on the Second Amendment, applicable across the nation.

Third, the Supreme Court is more conservative today than it’s been for some time, and probably more conservative than it’s going to be. In the unlikely event that five current justices decide to read the Second Amendment out of the Constitution by upholding a total ban on handguns, that would be the time for Congress to act. Until then, the D.C. Personal Protection Act is premature and counter-productive.

For some strange reason, the NRA was never behind the Plaintiffs in the Parker case and instead choose to pursue it’s own agenda. Now, by doing so, it is threatening to derail a case that could advance liberty nationwide.

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  1. My Second Amendment civil case for National Open Carry is anoher case the NRA refuses to help.

    Hamrick, pro se -v- United Nations and United States, et al, U.S. District Court, Eastern District of Arkansas, Little Rock, Northern Division, No. 1:06cv0044.

    Comment by Don Hamrick — April 3, 2007 @ 12:15 pm
  2. Join GOA (Gun Owners of America) instead.

    Comment by tempodex — April 3, 2007 @ 2:41 pm
  3. Join JFPO, GOA, SAF, and the NRA!

    Comment by Capt Crunch — April 4, 2007 @ 12:11 pm
  4. Politics… The law is an ass, as they say.
    Passage by the Congress of the DC Personal Protection Act is not a sure thing, will Senator Scumer block passage because he is very anti-gun or will he support it in order to stop the Supreme Court from considering the appeal?

    The city has appealled and this may take only a few weeks or months. Then the Supreme Court may get their shot. But Congress may take years, the NRA has been seeking to repeal the DC law for over 30 years, they can’t just stop, but I’m pretty sure that the law won’t come to a vote in Congress befor the appeals process has run its course.
    BTW, I’ve read the entire 75 page opinion and it will be hard to fault it’s logic.

    Comment by James Macklin — April 10, 2007 @ 4:38 am

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