The Brady Center and Heller

Damon W. Root | July 16, 2008

The Brady Center to Prevent Gun Violence's Dennis Henigan has written a very interesting response to Robert Levy's Cato Unbound essay on the future of gun rights after D.C. v. Heller. Essentially, Henigan argues that the Court's conservatives have mangled the Constitution in order to reach a preferred outcome that will have little real world impact:

Although we will no doubt see an avalanche of Second Amendment claims (most by criminal defense lawyers on behalf of their clients seeking to avoid indictments and convictions for violations of gun laws), generally the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban. Regardless of whether the Heller majority's newly discovered right eventually is incorporated as a restraint on the states, its significance may well prove more symbol than substance.

While it certainly makes rhetorical sense for Henigan to downplay the victory (and link it to criminals and their shady attorneys), it's not at all clear that the lower courts will see (or will continue to see) things his way. As David Kopel noted in reason after Heller came down, "Rome was not built in a day, and neither is constitutional doctrine."

For most of our nation's history, the U.S. Supreme Court did nothing to protect the First Amendment; it was not until the 1930s when a majority of the Court took the first steps towards protecting freedom of the press. It would have been preposterous to be disappointed that a Court in, say, 1936, would not declare a ban on flag-burning to be unconstitutional. It took decades for the Supreme Court to build a robust First Amendment doctrine strong enough to protect even the free speech rights of people as loathsome as flag-burners or American Nazis.

Moreover, the importance of the Court finally recognizing that the Second Amendment secures an individual right—not a collective one—shouldn't be minimized. And I must say, I find it pretty hard to believe that Henigan and his associates at Brady are really so lackadaisical about the incorporation of the amendment against the states. Chicago officials, on the other hand, are gearing up to protect the city's handgun ban in court. As deputy corporation counsel Benna Solomon told the Chicago Tribune, "We are prepared to aggressively litigate this issue and defend this ordinance."

Cato Unbound debate here. reason.tv's interview with Heller attorney Alan Gura here.

Comments

|7.16.08 @ 4:45PM|#

Best quote: "... newly discovered right...."

God (or his/her secular equivalent), I can't effing stand the Brady Bunch.

|7.16.08 @ 5:07PM|#

On the other hand, WLC, I have to relish the turnabout. It wasn't too long ago that arch-liberals who crossed swords with me on this issue were advising me to quit denying the reality that the accepted interpretation of the 2nd Amendment did not allow for an individual right to keep and bear arms and that I was living in a fantasy world to maintain otherwise.

In those many informal discussions, I basically argued the case that was argued in Heller, and I find the new situation to be very sweet: It is now the anti-gunners' turn to take a long glide down that Egyptian River on their sinking barge of tortured parsings, wishful thinking, and illogical nonsense. We had to live in their fantasy world for quite a while, but with luck, no more. If they choose to remain stuck in their fantasy, as the Brady people appear to be doing, they will self-marginalize, and not a moment too soon, imho.

|7.16.08 @ 5:27PM|#

The other day there was a huge gun-rights rally at the State of Illinoiis builing in the Loop. (I was just there for lunch)

Daley's going to have his hands full. I've seen a lot of rallies downtown and this was the biggest policital one ever. (Sports draw a much larger crowd...)

|7.16.08 @ 5:45PM|#

James Anderson Merritt-

Here, here.

However, the likes of you and me are still the minority. There are legions out there who, in the abstract, are all for the right to defend oneself and that one should be able to have a gun for self-protection and for hunting; but, when it comes to the rubber meeting the road, they are all too quick to cave to "well, i guess there should be some reasonable restrictions" and "yeah, I don't want some felon having a gun" and the like.

Don't get me wrong, I'm happy that the court ruled that the 2nd amendment protects an individual right. Too bad they couldn't leave at that.

Paul|7.16.08 @ 7:47PM|#

We had to live in their fantasy world for quite a while, but with luck, no more.

Wasn't for me. The 2nd amendment to me, and every argument I ever had about it, it was an individual right. Always was, and always will be.

hotsauce|7.16.08 @ 8:49PM|#

We still live in a fantasy world fashioned in large part by the morons on the SCOTUS (and not just those currently on the bench). What part of "Congress shall make no law..." or other perfectly clear mandate do they fail to grasp? Or is there no argument too credulous to make when it supports your preferred outcome?

|7.17.08 @ 1:29AM|#

Individual right? Of course it is an individual right. The amendment reads (in part) "the right of people to..." Please focus on the word "right". States do not have rights. States have powers, only powers. With that in mind, this amendment clearly means the states shall have the ability to raise a militia because the individual citizens of the state have the right to be armed for any lawful purpose. Go suck Pb Pelosi!

TallDave|7.17.08 @ 2:12AM|#

As deputy corporation counsel Benna Solomon told the Chicago Tribune, "We are prepared to aggressively litigate this issue and defend this ordinance."

At taxpayer expense, of course. How wonderful taxes are, to do such things.

|7.17.08 @ 8:03AM|#

generally the lower courts are likely to interpret Heller as giving a constitutional green light to virtually every gun control law short of a handgun ban.

That's my take, after wading through all the gratuitous dicta about how, gosh, even an individual right can have lots of restrictions, so long as they seem reasonable to co-opted east coast urbanites.

|7.17.08 @ 9:42AM|#

No matter your race , color , creed , nation of orgin or sexual preference as defined by the U.S.Goverment Justice comes out of the barrel of a .44 Magnum . Be on the giving end .

Flip |7.17.08 @ 10:52AM|#

Actually Scalia made a stronger case of a collective right than he did for an individual one. Like a magician, he just made it seem as though "bear arms" implied an individual right.

In any event, Paul Madison completely destroyed Heller in every fine detail and illustrated how dishonestly the majority presented its case:

http://federalistblog.us/2008/07/dc_v_heller_was_scalia_honest_with_the_facts.html

Charles Vincenz|7.17.08 @ 11:16AM|#

All the left wingers, anti constitionilst, etc seem to be all of the same opinion that guns cause crime. GEE!! it seems that ALL OF MINE are all defective. Not a single one of them has commited a murder, a holdup,or anything else that is against the law, tsh,tsh. That is quit strange since I have been an ardent gun owner for well over 65 years of my 82 years on this planet. But I still do such nasty things with them such as punch holes in paper targets, take wild game (in season) and DEFEND MY FAMILY, HOME AND PROPERTY. Shame on me.

|7.17.08 @ 11:30AM|#

Just as in 1954 in Brown vs. Board of Education
this will be the beginning of the end of end of progressofachissium in America. In the decade following the landmark ruling the Deep South was at times forceably to give up it's segragationist and Jim Crow laws. So I would like to hope that you elitest liberals and commies just wake up and smell the coffee. and leave our rights alone.

kitchawan kid|7.17.08 @ 11:36AM|#

What does BEAR arms mean,carry or what?

T|7.17.08 @ 12:23PM|#

In any event, Paul Madison completely destroyed Heller in every fine detail and illustrated how dishonestly the majority presented its case:

Not so much, but thanks for playing.

|7.17.08 @ 1:33PM|#

As a Jewess in the US, I say it is high time that our Congress pass legislation recognizing any NRA membership card as a NATIONAL Concealed Carry permit! Let's take BACK the streets!

|7.17.08 @ 1:41PM|#

Howdy,

Yes, it was a victory when SCOTUS agreed on the 2nd Amendment. We had a rally in Chicago, within ear shot of Mayor Daly's office and Blagos office in the Thompson Center. This is the begining of the downfall of Chicago's ban.
It was very peaceful with all races and nationalities. We all need to provide protection for ourselves & families. SCOTUS also, mandated the Police, who do a fine job, is not there for personal protection. That comes from the individual citizen to provide.
So give us concealled carry to preform our God given right of self protection.

|7.17.08 @ 1:46PM|#

Paul Madison's "complete destruction" of Heller is notable chiefly for its length, its incoherence, its historical illiteracy, and its goldmine of grammatical errors.

As a refutation of Heller, it merits a first-class berth on the failboat.

|7.17.08 @ 2:52PM|#

I'm not too surprised that Mayor Boss Daley will defend Chicago's unconstitutional gun ban and continue to violate the rights of its citizens just as segregationists fought Brown v Board of Ed. Daley is in good company in that respect.

It makes no difference where people live, as citizens their rights must be upheld. Can Washington D.C. be exempt from desegregation, poll taxes, and Roe v Wade? Try violating people's rights regarding that and watch how fast it applies everywhere in this nation.

The 14th amendment, thanks to the antebellum South, put to rest that states and other localities can not abridge the rights, privileges, and ammunities guaranteed to the people.

Armas De Fuego|7.17.08 @ 5:13PM|#

The Left used emanations and penumbras to put the rights of privacy and abortion into the constitution.

What the Right did in Heller was waaaaay less of a stretch.

Finall fighting fire w fire?

|7.17.08 @ 7:39PM|#

The Supreme Court did not have to protect the 1st Amendment, which is restricted to Congress, until the 1930s because we did not have a problem with Socialist and radicals trying to stifle free speech. The problem today is the failure to distinguish between speech and behavior.

The Brady center is not interested in preventing violence otherwise they would not be trying to disarm the country. The simple facts are an armed society is safer.

The following is a write-up I did and updated after the 2nd Amendment ruling. I have the ruling printed out and have read most of it.

---

While I applaud the ruling it still fails to obey the US Constitution correctly. The majority opinion talks about a "prefatory" clause. This description of the 2nd Amendment in the opinion shows the Justices failed to read the actual English of the 2nd Amendment. The 2nd Amendment is a compounds sentence with 2 subjects and a single predicate. So while the ruling is a step forward it still fails to "restore" a right that has been unconstitutionally interfered with.

To understand what the 2nd Amendment actually states one must examine the actual English. The following text shows a standard English Structure Analysis, which I learned to do in the 4th and 5th grade.


The 2nd Amendment states


A well regulated militia, being necessary
to the security of a free state, the right
of the people to keep and bear arms shall
not be infringed.

Remove the prepositional phrases and you have


A well regulated militia, being necessary,
the right shall not be infringed.

Then remove the adverb phrases and you have


A militia, the right shall not be infringed.

By the rules of English when a series of nouns are separated in a sentence by commas the commas can be replaced by the word "and" and thus we have


A militia and the right shall not be infringed.

Also by the rules of English when a series of nouns are separated by "and" and share the verb phrase the sentence can be re-written as multiple sentences such as


A militia shall not be infringed.
The right shall not be infringed.

Then if you add the prepositional phrases and adverb phrase back in you have


A well regulated militia, being necessary
to the security of a free state shall not be
infringed.

The right of the people to keep and
bear arms shall not be infringed.

I do the examination as above since many people seem to have problems reading and understanding the English of the 2nd Amendment. In particular I listened to a discussion on WBAL (I believe - Channel 11) in Baltimore Maryland in the 1980s involving Sarah Brady and others and she and some of the others appear to have had a serious problem understanding the simple English of the 2nd Amendment.

This is partial section I never fleshed out.

In addition, the 10th Amendment make it clear that the 2nd is an absolute prohibition that applies to the States and local Governments as well as the Federal Government. Unlike the 1st Amendment that restricts itself to Congress the 2nd Amendment makes a blanket statement. Some one is going to say "What about the Criminal?". The 13th Amendment, which restricts slavery and involuntary servitude, clarifies this issue. A person subject to the criminal justice system no longer has rights. They only have privileges, until the period of punishment is up, that the jailer gives them. In short a convict is property of the State. It is also important to remember that the 9th Amendment also applies to the States and local government. It does not restrict itself like the 1st Amendment either. Nor is it a right to be "free from cruel and unusual punishments". That is a prohibition on the jailer.

On problem we have today is that the words of the US Constitution are regularly twisted. I learned to decompose sentences in the 5th grade (1970) and to read and write English in Elementary school. Any elementary school student if taught proper English can understand the US Constitution by age 10. That is how well the Founding Father write the US Constitution.

While reading the Supreme Court opinion (I have it printed out - 157 pages) it becomes clear the majority failed to understand the actual English. They did a lot of research on the existing case law but as the anti-gun advocates did they failed to read the 2nd Amendment as written. Instead of recognizing the true sentence structure the majority created a prefatory and operative clause and said the sentence could have a "Because" added at the beginning. This is the same concept that the anti-gun people attempt by trying to insert a "so" or "therefor" in the middle of the sentence. If the Justices had actually read the sentence as written the ruling would have prohibited registration, carry permits and other unconstitutional restrictions.

The Founding Fathers who crafted the US Constitution wrote it so everyone could understand it. And this includes the Amendments. So while the first step has been made there are many more steps to be made to under the various rulings that have interfered with the 2nd Amendment. Some of which this ruling references to justify the misreading of the 2nd Amendment.

---

Another issue that people have failed to understand is that the US Federal Government is composed to TWO (2) co-equal branches of Government, not three (3). The Courts are not co-equal. This becomes obvious when one read Article III, Section 1, Paragraph 1 and Article III, Section 2, Paragraph 2, Sentence 2. Anyone who has study US Colonial History will understand why. The 13 Colonies had serious problems with activist Royal Judges who ignore the Colonial legislatures. A large number of Judges would be impeached for "Malfeasance in Office" for "Legislating from the Bench" if the Colonial leaders were alive today.

|7.17.08 @ 7:51PM|#

If the governments of these municipalities such as DC cam make up arcane rules about what mechanical design your gun you wish to register must have, then why not contrive conditions of free speech? Such as, no one may use vowels in writing free speech. When commonly used handguns such as the most popular 1911 handgun which may be one of the finist of all handguns made, is rejected, then something is wrong. This pistol can't be construed as a machine gun. It seems that a revolver is all they will be allowing the civillian population to register. This is absurd and evidently will require more law suits.

|7.17.08 @ 8:26PM|#

AS I see it we have over 200 years of lower courts upholding the right of self defense and gun ownership by the fact that; thousands of people have never been charged with shooting an attacker, burgler, theif etc. This is and overwhelming endorsement of what the Supreme Court decreed. All the anti- gunners can sit on a tac. We have been the winners since 1776.

|7.17.08 @ 9:15PM|#

remember this: all anti-gunners are pro-criminal

|7.17.08 @ 9:21PM|#

all left wing liberals who are anti-gun, are pro-crimnal

fr8dog|7.18.08 @ 12:29AM|#

My answer to the DC City Council and The Thurds as the Brady Campaign simple:
FU*K YOU and FU*K YOUR RESTRICTIVE GUN LAWS. Im a former DC resident. As such I kept loaded semi automatic hand guns; specifically, with High capacity 13 - 18 round mags, in my home and carried them on the streets of DC. I continue to do so when ever I visit DC. I urge all DC residents and anyone visiting DC to do the same. Dont like it DC city council? Go FU*K yourself!!!
I love defying your UNCONSTITUTIONAL laws and will continue to do so.

|7.18.08 @ 1:58AM|#

"CAN WE TALK"?

Millions of ordinary law abiding, mostly white folks, tax paying, productive, good citizens who never snorted coke like "GUN BAN Obama", all over the US enjoy safe ownership and recreational use of firearms of all types,while experiencing a much lower rate of accidental death and injury than occurs in some motor,contact, and water sports. A major portion of violent acts committed with guns in the US are perpetrated by and among illegitimate urban, drug-crazed Black, and /or Hispanic gangbangers. Anti gun/gunowner professional demonstrators like Rev."Blackjack- son" and his "gimme gimme" welfare associates use shakedown and intimidation tactics to bully spineless polititions and their media apendages into attacking law abiding citizens guilty only of exercising and enjoying a constitional right for enjoyment and personal defense. A large body of experience shows that violent criminal acts multiply in the face of gun bans.

|7.18.08 @ 2:08AM|#

I recently returned from a five week tour of Israel. I stayed in five major cities and visited numerous villages and sites of historical and Biblical importance.
Armed uniformed and non uniformed Israelis were ubiquitious. I saw teachers, men and women in both Orthodox and secular garb, and group leaders on school field trips with an M16 or .30 carbine slung over their sholders, and/or with holstered semi autos. I saw people openly carying in restraunts and other public places with zero reaction from the public. I can only assume that many other Israelis were carying conceiled. It became very obvious to me that ordinary citizens' "keeping and bearing" in Israel is common, and not feared or controversial. What I didn't experience in Israeli cities was fear of walking the streets, day or night. And on the evening newscasts I saw no reports of violent street crime in anyplace that I stayed. Are Jews just genetically less susceptible to crime- causing guns than other people, or ... do guns not cause crime? Do DC murder statistics and African genicidal episodes suggest a racial propensity for violent behavior, or does an unarmed (disarmed) populace invite trouble? Anyone want to disarm America and find out? YOUBETCHA! !

|7.19.08 @ 3:13AM|#

Heller has been denied to register his semi-auto handgun in D.C.

DC is also requiring ballistic tests for every handgun registered. Is also requiring guns be locked until a threat is perceived (that is easy to ignore).

Is only registering one gun per ninety day period. Is registering guns.

Eleanor Holmes says Home Rule still applies.

So everyone of you send some money to the NRA political victory fund (or GOA, or local DC gun organization) and put your money where your mouth is and help bankrupt the D.C. nazi govt with infinite lawsuits. IF you do believe in the Bill of Rights.

|7.19.08 @ 4:12PM|#

We had a symposium on the meaning of the Second Amendment when I was in law school. Dennis Henigan came down, by invitation, to present the position that the Second Amendment does not protect an individual right. Measured against Nelson Lund (taking the contra position), he had no idea what he was talking about. He drew a line between the two clauses of the Second Amendment (written on the chalk board) and said that you needed to give meaning to both clauses. Lund had already discussed at length the meaning of the first clause (a reference to Congress's power to regulate the militia under Article I of the Constitution) and he did not even respond to that. Very quickly his "Second Amendment" argument morphed into the argument that because the NRA had contributed money to fund the chair that Lund holds at Virginia Mason University, everyone in the room should simply discount Lund's comments and articles.

Who is this guy to be opining on matters of constitutional law? I think the Supreme Court wants more than a chalk line drawn between the two clauses.