DAILY JOURNAL - Forum Column
May, 2007

GUARDIANS OF THE SECOND AMENDMENT
By Donald E.J. Kilmer Jr.*

On April 27, the Daily Journal ran two articles. One written by Karen Mathis, president of the American Bar Association, and the other by Harry Rosenfeld, editor at large for the Albany Times Union. The articles had different approaches, but both addressed issues raised by the shootings at Virginia Tech.

What the articles had in common was the rhetorical question left hanging by their themes: How do we approach the issue of common-sense gun control?

I am an attorney. A substantial part of my practice is representing gun dealers, gun collectors, shooting enthusiasts, pro-gun activists, firearm manufacturers and gun owners. Providing legal services to members of the gun culture is a big part of the reason I became a lawyer.

As a civil-rights lawyer, I prosecute cases seeking to protect all of the civil rights guaranteed by our Constitution, including - but not limited to - the Second Amendment.

The opinions expressed here are mine alone.

Mathis implores the nation to "pause now" and examine questions of gun control, mental-health law and medical privacy. She advocates for common-sense ways to stop the "unforgivable killing of our children."

Rosenfeld quotes the governor of Virginia's comment about "loathing" people who seek to exploit the massacre as a political hobbyhorse. The governor made it clear that the "loathing" was reserved for pro-gun advocates who had the bad taste to point out that the campus of Virginia Tech was a gun-free zone, and that perhaps an armed and well-trained student or faculty member could have limited the carnage.

Rosenfeld goes on to compare the gun-control issue to Social Security, as a lethal third rail of American politics. The implication is that it is suicide for any politician to suggest laws regulating firearm ownership.

So the first article compels a conclusion that we do something. After all, most of the "elements" of the Bill of Rights have undergone some reshaping as our nation has evolved. Presumably Mathis is suggesting that the Second Amendment be targeted for some of that reshaping.

The second article implies that any reshaping ought not be carried out by people making pro-gun arguments.

These approaches are the reason why those advocating "common-sense" gun control will be tenaciously opposed by the gun culture. I represent these people and I know how they think.

They understand that the First Amendment's right to free speech and free press does not protect a person who would give troop and ship movements to our enemies in a time of war.

They understand that the First Amendment does not shield a person from the consequences of yelling "fire" in a crowded theater.

They get it when a lawyer explains that exigent circumstances and crimes committed in the presence of the police are exceptions to the warrant requirements of the Fourth Amendment.

Common-sense gun control is not the problem. The gun culture does not fear regulation that is designed to keep guns out of the hands of violent felons and the mentally ill.

What they fear are laws that lead to the slippery slope where bureaucracy and regulation swallow the substantive right.

Witness the wailing and gnashing of teeth that occur every time our courts take up abortion or publicly subsidized religious symbols. No matter which side of the debate you are on, the government's actions are rightly viewed with skepticism and a little healthy paranoia.

In each of the cases where our courts have carved out an exception to the protections set forth in the Bill of Rights, those courts have taken great pains to affirm the primary right that was only slightly narrowed by the new exception. As of now, the Second Amendment enjoys no such clear-cut judicial reaffirmation by our United States Supreme Court.

Mathis questions why societies of ordinary "consumers" need rapid-fire weapons that were designed for war. The point she misses is that the Second Amendment (and the entire Bill of Rights, for that matter) was not written for "consumers." It was written by citizens of a constitutional republic who wanted an insurance policy against homegrown tyranny and invasion.

The recent Second Amendment case, Parker v. District of Columbia, 478 F.3d 370 (2007), referred to in the Rosenfeld article is a case in which the government of the District of Columbia, a political subdivision administered by Congress, has taken the position that only the Second Amendment - standing alone out of all 10 of the rest of the Bill of Rights - guarantees no fundamental rights to any individuals.

The rhetorical question from the gun culture to the rest of the nation is: Why do those of you in favor of gun control want the Second Amendment riding in the back of the civil-rights bus?

In Silveira v. Lockyer, 328 F.3d 567 (2003), Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals reminded us that the Second Amendment is not about duck hunting:

"All too many of the other great tragedies of history - Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few - were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. ... If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

"My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

"Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten."

In another case addressing Second Amendment issues in the 9th Circuit, Nordyke v. King, 319 F.3d 1185, 1197 (2003), Judge Ronald Gould wrote:

"[R]ecognizing an individual right to keep and bear arms, government can within due bounds regulate ownership or use of weapons for the public good.

"We would make progress if the Supreme Court were to establish a doctrine of an individual Second Amendment right subject to reasonable government regulation.

"The decisional chips would thereafter fall where they may on the basis of particular cases and the delicate balance of their precise facts, aided by the complementary efforts of lawyers, scholars and judges. The law would best put aside extreme positions and adopt an assessment of reasonableness of gun regulation, for this would place us on the right track."

The Nordyke and Silveira cases addressed the issue of whether individuals have standing to assert Second Amendment rights in a federal court. Under current 9th Circuit case law, the federal government need not recognize any individual rights under the Second Amendment, because the right to keep and bear arms is a collective right enjoyed only by the states.

That means that more than 20 percent of the population of this country, comprising nine western states, cannot seek a redress of grievances in our federal courts for a violation of one of the 10 original Bill of Rights. Like the Supreme Court's decision in Dred Scott v. Sanford, 60 U.S. 393 (1856), the 9th Circuit has gotten around the pesky question of substantive rights by denying individual litigants' standing even to bring a cause of action in federal court.

Maybe the Parker case will be reviewed by the U.S. Supreme Court in the near future. The government of the District of Columbia is taking steps toward seeking that review after losing its "states' rights" argument in the D.C. Circuit Court of Appeals.

To answer the implied questions raised by Mathis and Rosenfeld: As long as those advocating "common sense" gun control are perceived as the same people pounding the drum for ignoring or repealing the Second Amendment, the citizens of this country will remain entrenched in a polarized stand-off when it comes to gun policy.