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Patriot Games
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http://article.nationalreview.com/?q=NjQzZTY2NzQ5MmFhOWIxZGQ2NjUwMGY5YzVlZTUwYzM
March 29, 2007 7:00 AM
Opening Shots
The striking down of the D.C. gun ban may be the beginning of a larger
battle.
By Jennifer Rubin
It's not every day a federal circuit court rocks the political, legal, and
academic worlds. But on March 9, the U.S. Court of Appeals for the District
of Columbia Circuit did just that, ruling in the biggest gun-control case in
nearly 70 years and perhaps placing a Supreme Court case smack in the middle
of the 2008 presidential race. Senior Judge Laurence Silberman wrote for a
2-1 majority in Parker v. District of Columbia, "The Second Amendment
protects an individual right to keep and bear arms." The court rejected the
District of Columbia's argument that the Second Amendment does not protect
individual gun ownership rights but merely protects states' rights to form
armed militias, and the court invalidated the District's ban on handgun
ownership and registration (except for guns registered prior to 1977), its
prohibition on carrying pistols in the home without a license, and its
requirement that all guns, including rifles and shotguns, be unloaded and
either disassembled or bound by a trigger lock.
At issue is the meaning of the oddly constructed text: "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." As Stuart Taylor
explained in National Journal, since the Supreme Court last ruled on the
Second Amendment in 1939, most courts and legal scholars have held: "The
amendment's first clause means that its sole purpose was to guarantee each
state a collective right to have self-armed private citizens available as a
military force-in-waiting (militia) to fight off federal encroachments;
therefore, the second clause protects no individual right; state militias
long ago became defunct; so the Second Amendment is an inoperative
historical anachronism." The D.C. Circuit Court essentially replied:
"Wrong." Having found an individual right of gun ownership for the
plaintiffs, the court then struck down the ban as an obliteration of that
right.
The case will almost certainly be appealed to the en banc panel of the D.C.
Circuit and then to the Supreme Court. Attorneys for the parties, as well as
other legal experts, rank the likelihood that the Supreme Court will hear
this case as high, given that the case would entail invalidation of a
statute, a conflict between federal circuit courts, and a constitutional
issue of wide ranging importance - all weighty considerations when it comes
to granting certiorari. The Supreme Court could well be deciding the issue
in the thick of the 2008 presidential season. Georgetown Law Professor Paul
Rothstein suggests that that may be just the beginning, explaining: "I do
not think any of them [the Supreme Court justices] would take the view that
there is an absolute right to bear arms." In the end he predicts: "The
likelihood is that it will be held that there is an individual right that
gives way to a strong, specific state interest expressed in a relatively
narrowly tailored legislative provision, under some type of 'intermediate
scrutiny' test."
Con and Pro
Among partisans, the reaction was fast, furious, and predictable. Mayor
Fenty declared: "I am strongly opposed to the Court's decision. District
residents deserve every protection afforded to them under District law." The
Brady Campaign to Prevent Handgun Violence issued a statement that the
decision was "judicial activism at its worst" and, echoing the conservative
theme of judicial restraint, decried that "two Federal judges have negated
the democratically-expressed will of the people of the District of Columbia
and deprived this community of a gun law it enacted thirty years ago and
still strongly supports." The Washington Post and New York Times editorial
pages blasted the decision.
On the other side, gun supporters celebrated. The Cato Institute trumpeted
the work of its senior fellow Robert Levy, co-counsel for the plaintiffs, in
obtaining a ruling that Second Amendment rights "are not limited to militia
service, nor is an individual's enjoyment of the right contingent upon his
or her continued intermittent enrollment in the militia." The American Civil
Rights Union (ACRU) and the NRA, which both filed amicus briefs, applauded
the decision. The Second Amendment Foundation declared: "This is a huge
victory for firearm civil rights. It shreds the so-called 'collective right
theory' of gun control proponents, and squarely puts the Second Amendment
where it has always belonged, as a protection of the individual citizen's
right to have a firearm for personal defense."
In addition to dueling press releases, arguments soon broke out about the
case's prospects. David Gossett, representing the Violence Policy Center
seeking to uphold the D.C. gun ban in the case, stated, "I think en banc
review is quite likely; given the makeup of this panel, and the fact that
Judge Henderson-a well-known conservative judge-dissented, I expect the full
D.C. Circuit will be interested in the case. I also think the en banc court
is reasonably likely to reverse the panel. Judge Silberman's opinion is
fundamentally inconsistent with Miller, the Supreme Court's precedent in
this area." On the other hand, Robert Levy predicted that the plaintiff's
"very compelling argument" would be sustained by the Supreme Court, but
cautioned that even if the personal right to gun ownership were upheld, most
gun restrictions would need to meet the very tough "strict scrutiny"
standard to pass muster. Depending on the individual circumstances of
specific cases, he believes there would be "close calls" on waiting-time
statutes and restrictions on multiple sales of weapons. Peter Ferrara,
general counsel of ACRU, while confident of the gun owners' prospects should
the case reach the Supreme Court, agrees that the Supreme Court is highly
unlikely to find an "absolute right" of gun ownership and that it is
unrealistic to think there will be "no regulation of guns." Certainly this
decision could open years of ongoing litigation.
Contenders Under the Gun
Aside from potentially opening a new chapter in constitutional
jurisprudence, the case may reignite gun rights as a presidential political
issue. Deemed to be a political loser for Democrats, John Kerry, aside from
donning newly purchased hunting garb, tried his best to steer clear of the
issue in 2004. Because of the Parker case, 2008 may be different. University
of Virginia politics professor Larry Sabato observes: "The gun issue waxes
and wanes like all the others, but it's a tinderbox, ready to explode at any
time." He further notes: "The public may support gun control in theory, but
the largest number of votes by far has been and continues to be on the
antigun control side. Therefore, Democrats ought to be afraid of this one in
terms of the general election"
Paul Helmke, former mayor of Fort Wayne and now president of the Brady
Center Against Handgun Violence, suggests that "both sides have had it easy"
in the gun debate, finding it politically safe to express general support
for hunters and gun ownership but professing support for "reasonable
restrictions" on gun ownership. Now candidates of both political parties may
be forced, as they have been in the abortion arena, to take stands on
specific issues.
Each of the candidates faces questions about his past and present views.
Romney's campaign, in response to an inquiry for this story, said that "the
court correctly decided the D.C. gun case by upholding the right of
individuals to keep and bear arms." He now proudly sports an NRA membership.
However, in 1994 he did support the NRA-opposed waiting period on gun sales
and a ban on some types of assault weapons. Press accounts have since
pointed out his statements in 1994 that this position was "not going to make
me the hero of the NRA" and his comment in the gubernatorial debate in 2002:
"We do have tough gun laws in Massachusetts; I support them. I won't chip
away at them; I believe they protect us and provide for our safety."
Spokesman Eric Fehrnstrom insisted in a written response that "the Governor's
views have not changed" on gun rights and explained "Governor Romney
supported an extension of the state assault weapons ban in Massachusetts as
part of comprehensive legislation that also loosened some of the state's
more onerous licensing restrictions."
John McCain argues that he has been a staunch defender of Second Amendment
rights. He voted against the Brady Bill in 1993 and the assault-weapons ban
in 1994. He previously championed repeal of the now-invalidated D.C. gun
ban. In the face of strong NRA opposition, however, McCain did sponsor
legislation in 2001 and again in 2003 seeking to close the so-called "gun
show loophole" requiring background checks at all gun shows where at least
75 guns were sold. (The issue of ad limitations in McCain-Feingold was
further grounds for souring his relationship with the NRA.)
Rudy Giuliani faces the toughest challenge in reaching out to gun-rights
advocates. As mayor of New York, he supported measures requiring trigger
locks and banning guns within 1,000 feet of schools, and he sued two dozen
major gun manufacturers and distributors in 2000. In the wake of the 1993
Long Island Rail Road shooting, he became one of the few prominent
Republicans lobbying for a ban on many assault weapons. However, the Parker
case may provide him with an opportunity to burnish his Second Amendment
credentials. In a written response to an inquiry for this story he
explained: "I believe the decision by United States Court of Appeals is
correct. I understand the challenges that big cities face from gun violence.
But banning people from having handguns in their own homes for self defense
is excessive and unconstitutional. It is not a reasonable restriction. It
clearly undercuts the Second Amendment, which protects the rights of law
abiding individuals to keep and bear arms." On March 22 on the Sean Hannity
radio show, he again reiterated his agreement with Parker. He stated that it
"very well described" his view that the Second Amendment protected an
individual right to own a gun, that "unreasonable restrictions" should be
invalidated, and that gun regulations should be decided on "a state by
state" basis.
Democratic Surprise
If none of the Republicans are perfect poster boys for the NRA, what about
the Democrats? Charlie Cook notes that they "decided some time ago that if
they wanted to win and hold a majority in Congress and the presidency, they
were going to have to leave the gun issue alone. It was costing them too
much support in the south and border south and among union members
nationwide. All but a few Democrats in Congress agree with this strategy,
which is why you can look at the Democratic issue agenda and find nothing
about guns." Their greatest fear may be escaping the primaries without
inflicting damage on their hopes in November, as Sabato cautions: "If the
liberals force Democratic candidates to the left on gun control next winter,
then the eventual nominee may pay for it in the fall." No less than Bill
Clinton opined on The Charlie Rose Show after Al Gore's loss that: "The NRA
beat him in Arkansas. The NRA and Ralph Nader stand right behind the Supreme
Court in their ability to claim that they put George Bush in the White
House.... I think the NRA had enough votes in New Hampshire, in Arkansas,
maybe in Tennessee and in Missouri to beat us. And they nearly whipped us in
two or three other places."
There is one Democrat who may be happy to talk about guns, should he manage
to wrestle the nomination away from his three better known opponents: Bill
Richardson. Last year in his reelection bid, Richardson obtained the NRA
endorsement over his Republican challenger. Dwight Van Horn of the NRA said
at the time: "He's been a pretty solid guy on the gun issue." In its press
release the NRA was pleased to tout Richardson's support for New Mexico's
law allowing residents to carry concealed handguns with a permit. Richardson
in the past has proudly remarked that he personally has earned a
concealed-carry permit himself. None of this is likely to endear him to the
liberal base in the primaries, but it might prove a test of the NRA's
nonpartisanship should he face off in November against a Republican with a
less stellar Second Amendment record.
Enjoying the Moment
For now, the NRA is clearly relishing this moment. Chris Cox, executive
director of the NRA's Institute for Legislative Action, is trying to focus
public attention on the "human face" of the Parker decision, emphasizing
that these D.C. residents were law-abiding citizens denied the right to
self-defense in their own homes. He remarks that there is "no clearer
indictment" of the theory that gun control will make cities safer than the
fact that under the stringent gun ban, D.C. was the "murder capital" of the
country in seven of the last nine years. To the chagrin of conservative
lawyers, however, Cox indicates continued support of federal legislation to
repeal the D.C. gun ban - legislation that would permanently secure home
gun-ownership for D.C. residents, but render the Parker case effectively
moot.
On a broader level, Second Amendment advocates are hoping to turn the tables
in the court of public opinion. In recent years, gun-control advocates have
changed the name of their organization ("Handgun Control, Inc." was
abandoned in 2001 in favor of "The Brady Campaign to Prevent Handgun
Violence") and focused on more limited items like waiting-period
requirements and limits on multiple-gun sales. Cox argues that NRA should be
seen as the "reasonable" group, supporting the right to self defense of
law-abiding citizens, while the handgun advocates, despite their emphasis on
incrementalist goals, nevertheless wholeheartedly supported the D.C. ban.
To some degree the NRA and its allies have already been winning the war
outside the Beltway. Forty-eight states now have laws protecting individual
rights to carry concealed weapons. Although each side offers its own polling
data, even the January 2007 poll conducted for the Mayors Against Illegal
Guns by the bipartisan team of Greenberg Quinlan Rosner Research and The
Tarrance Group reveals a combined 58 percent of those polled favor either
repealing some existing gun laws or simply enforcing current gun laws
without passing new ones.
Conservative legal scholars see this case as potentially harkening a change
in the way Americans view the courts and the Constitution. John Yoo of Boalt
Law School doubts it will affect those with hardened views on each side but
suggests that "the decision may sway moderates who are undecided about gun
control, and remind them that the Founding Fathers understood the Bill of
Rights to protect the individual right to bear arms."
Peter Ferrara of the ACRU takes a more philosophical and historical view of
the potential long-range implications of the case. He remarks that if Parker
is upheld by the Supreme Court, it will "be a big shot in the arm for
conservatives" and will demonstrate that "we have had an impact on the
courts and on changing the judiciary." He notes that the effort to achieve
recognition of an individual right of gun ownership has been an undertaking
of more than fifty years of research, scholarship, and support for
conservative judges. He explains that what was once considered a "radical"
position - recognition of an individual right to gun ownership - has now
attracted support even from liberal scholars like Laurence Tribe and has
been accepted by a prominent federal appeals court. Ferrara says that
conservatives should remember that these jurisprudential efforts are "not
short term fights." As for the impact on 2008, he reminds conservatives that
"this is no time to be discouraged" with at least two justices who could be
potentially replaced by the next president.
In that respect, the Parker case may remind the wider conservative base
exactly what is at stake in 2008.
March 29, 2007 7:00 AM
Opening Shots
The striking down of the D.C. gun ban may be the beginning of a larger
battle.
By Jennifer Rubin
It's not every day a federal circuit court rocks the political, legal, and
academic worlds. But on March 9, the U.S. Court of Appeals for the District
of Columbia Circuit did just that, ruling in the biggest gun-control case in
nearly 70 years and perhaps placing a Supreme Court case smack in the middle
of the 2008 presidential race. Senior Judge Laurence Silberman wrote for a
2-1 majority in Parker v. District of Columbia, "The Second Amendment
protects an individual right to keep and bear arms." The court rejected the
District of Columbia's argument that the Second Amendment does not protect
individual gun ownership rights but merely protects states' rights to form
armed militias, and the court invalidated the District's ban on handgun
ownership and registration (except for guns registered prior to 1977), its
prohibition on carrying pistols in the home without a license, and its
requirement that all guns, including rifles and shotguns, be unloaded and
either disassembled or bound by a trigger lock.
At issue is the meaning of the oddly constructed text: "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." As Stuart Taylor
explained in National Journal, since the Supreme Court last ruled on the
Second Amendment in 1939, most courts and legal scholars have held: "The
amendment's first clause means that its sole purpose was to guarantee each
state a collective right to have self-armed private citizens available as a
military force-in-waiting (militia) to fight off federal encroachments;
therefore, the second clause protects no individual right; state militias
long ago became defunct; so the Second Amendment is an inoperative
historical anachronism." The D.C. Circuit Court essentially replied:
"Wrong." Having found an individual right of gun ownership for the
plaintiffs, the court then struck down the ban as an obliteration of that
right.
The case will almost certainly be appealed to the en banc panel of the D.C.
Circuit and then to the Supreme Court. Attorneys for the parties, as well as
other legal experts, rank the likelihood that the Supreme Court will hear
this case as high, given that the case would entail invalidation of a
statute, a conflict between federal circuit courts, and a constitutional
issue of wide ranging importance - all weighty considerations when it comes
to granting certiorari. The Supreme Court could well be deciding the issue
in the thick of the 2008 presidential season. Georgetown Law Professor Paul
Rothstein suggests that that may be just the beginning, explaining: "I do
not think any of them [the Supreme Court justices] would take the view that
there is an absolute right to bear arms." In the end he predicts: "The
likelihood is that it will be held that there is an individual right that
gives way to a strong, specific state interest expressed in a relatively
narrowly tailored legislative provision, under some type of 'intermediate
scrutiny' test."
Con and Pro
Among partisans, the reaction was fast, furious, and predictable. Mayor
Fenty declared: "I am strongly opposed to the Court's decision. District
residents deserve every protection afforded to them under District law." The
Brady Campaign to Prevent Handgun Violence issued a statement that the
decision was "judicial activism at its worst" and, echoing the conservative
theme of judicial restraint, decried that "two Federal judges have negated
the democratically-expressed will of the people of the District of Columbia
and deprived this community of a gun law it enacted thirty years ago and
still strongly supports." The Washington Post and New York Times editorial
pages blasted the decision.
On the other side, gun supporters celebrated. The Cato Institute trumpeted
the work of its senior fellow Robert Levy, co-counsel for the plaintiffs, in
obtaining a ruling that Second Amendment rights "are not limited to militia
service, nor is an individual's enjoyment of the right contingent upon his
or her continued intermittent enrollment in the militia." The American Civil
Rights Union (ACRU) and the NRA, which both filed amicus briefs, applauded
the decision. The Second Amendment Foundation declared: "This is a huge
victory for firearm civil rights. It shreds the so-called 'collective right
theory' of gun control proponents, and squarely puts the Second Amendment
where it has always belonged, as a protection of the individual citizen's
right to have a firearm for personal defense."
In addition to dueling press releases, arguments soon broke out about the
case's prospects. David Gossett, representing the Violence Policy Center
seeking to uphold the D.C. gun ban in the case, stated, "I think en banc
review is quite likely; given the makeup of this panel, and the fact that
Judge Henderson-a well-known conservative judge-dissented, I expect the full
D.C. Circuit will be interested in the case. I also think the en banc court
is reasonably likely to reverse the panel. Judge Silberman's opinion is
fundamentally inconsistent with Miller, the Supreme Court's precedent in
this area." On the other hand, Robert Levy predicted that the plaintiff's
"very compelling argument" would be sustained by the Supreme Court, but
cautioned that even if the personal right to gun ownership were upheld, most
gun restrictions would need to meet the very tough "strict scrutiny"
standard to pass muster. Depending on the individual circumstances of
specific cases, he believes there would be "close calls" on waiting-time
statutes and restrictions on multiple sales of weapons. Peter Ferrara,
general counsel of ACRU, while confident of the gun owners' prospects should
the case reach the Supreme Court, agrees that the Supreme Court is highly
unlikely to find an "absolute right" of gun ownership and that it is
unrealistic to think there will be "no regulation of guns." Certainly this
decision could open years of ongoing litigation.
Contenders Under the Gun
Aside from potentially opening a new chapter in constitutional
jurisprudence, the case may reignite gun rights as a presidential political
issue. Deemed to be a political loser for Democrats, John Kerry, aside from
donning newly purchased hunting garb, tried his best to steer clear of the
issue in 2004. Because of the Parker case, 2008 may be different. University
of Virginia politics professor Larry Sabato observes: "The gun issue waxes
and wanes like all the others, but it's a tinderbox, ready to explode at any
time." He further notes: "The public may support gun control in theory, but
the largest number of votes by far has been and continues to be on the
antigun control side. Therefore, Democrats ought to be afraid of this one in
terms of the general election"
Paul Helmke, former mayor of Fort Wayne and now president of the Brady
Center Against Handgun Violence, suggests that "both sides have had it easy"
in the gun debate, finding it politically safe to express general support
for hunters and gun ownership but professing support for "reasonable
restrictions" on gun ownership. Now candidates of both political parties may
be forced, as they have been in the abortion arena, to take stands on
specific issues.
Each of the candidates faces questions about his past and present views.
Romney's campaign, in response to an inquiry for this story, said that "the
court correctly decided the D.C. gun case by upholding the right of
individuals to keep and bear arms." He now proudly sports an NRA membership.
However, in 1994 he did support the NRA-opposed waiting period on gun sales
and a ban on some types of assault weapons. Press accounts have since
pointed out his statements in 1994 that this position was "not going to make
me the hero of the NRA" and his comment in the gubernatorial debate in 2002:
"We do have tough gun laws in Massachusetts; I support them. I won't chip
away at them; I believe they protect us and provide for our safety."
Spokesman Eric Fehrnstrom insisted in a written response that "the Governor's
views have not changed" on gun rights and explained "Governor Romney
supported an extension of the state assault weapons ban in Massachusetts as
part of comprehensive legislation that also loosened some of the state's
more onerous licensing restrictions."
John McCain argues that he has been a staunch defender of Second Amendment
rights. He voted against the Brady Bill in 1993 and the assault-weapons ban
in 1994. He previously championed repeal of the now-invalidated D.C. gun
ban. In the face of strong NRA opposition, however, McCain did sponsor
legislation in 2001 and again in 2003 seeking to close the so-called "gun
show loophole" requiring background checks at all gun shows where at least
75 guns were sold. (The issue of ad limitations in McCain-Feingold was
further grounds for souring his relationship with the NRA.)
Rudy Giuliani faces the toughest challenge in reaching out to gun-rights
advocates. As mayor of New York, he supported measures requiring trigger
locks and banning guns within 1,000 feet of schools, and he sued two dozen
major gun manufacturers and distributors in 2000. In the wake of the 1993
Long Island Rail Road shooting, he became one of the few prominent
Republicans lobbying for a ban on many assault weapons. However, the Parker
case may provide him with an opportunity to burnish his Second Amendment
credentials. In a written response to an inquiry for this story he
explained: "I believe the decision by United States Court of Appeals is
correct. I understand the challenges that big cities face from gun violence.
But banning people from having handguns in their own homes for self defense
is excessive and unconstitutional. It is not a reasonable restriction. It
clearly undercuts the Second Amendment, which protects the rights of law
abiding individuals to keep and bear arms." On March 22 on the Sean Hannity
radio show, he again reiterated his agreement with Parker. He stated that it
"very well described" his view that the Second Amendment protected an
individual right to own a gun, that "unreasonable restrictions" should be
invalidated, and that gun regulations should be decided on "a state by
state" basis.
Democratic Surprise
If none of the Republicans are perfect poster boys for the NRA, what about
the Democrats? Charlie Cook notes that they "decided some time ago that if
they wanted to win and hold a majority in Congress and the presidency, they
were going to have to leave the gun issue alone. It was costing them too
much support in the south and border south and among union members
nationwide. All but a few Democrats in Congress agree with this strategy,
which is why you can look at the Democratic issue agenda and find nothing
about guns." Their greatest fear may be escaping the primaries without
inflicting damage on their hopes in November, as Sabato cautions: "If the
liberals force Democratic candidates to the left on gun control next winter,
then the eventual nominee may pay for it in the fall." No less than Bill
Clinton opined on The Charlie Rose Show after Al Gore's loss that: "The NRA
beat him in Arkansas. The NRA and Ralph Nader stand right behind the Supreme
Court in their ability to claim that they put George Bush in the White
House.... I think the NRA had enough votes in New Hampshire, in Arkansas,
maybe in Tennessee and in Missouri to beat us. And they nearly whipped us in
two or three other places."
There is one Democrat who may be happy to talk about guns, should he manage
to wrestle the nomination away from his three better known opponents: Bill
Richardson. Last year in his reelection bid, Richardson obtained the NRA
endorsement over his Republican challenger. Dwight Van Horn of the NRA said
at the time: "He's been a pretty solid guy on the gun issue." In its press
release the NRA was pleased to tout Richardson's support for New Mexico's
law allowing residents to carry concealed handguns with a permit. Richardson
in the past has proudly remarked that he personally has earned a
concealed-carry permit himself. None of this is likely to endear him to the
liberal base in the primaries, but it might prove a test of the NRA's
nonpartisanship should he face off in November against a Republican with a
less stellar Second Amendment record.
Enjoying the Moment
For now, the NRA is clearly relishing this moment. Chris Cox, executive
director of the NRA's Institute for Legislative Action, is trying to focus
public attention on the "human face" of the Parker decision, emphasizing
that these D.C. residents were law-abiding citizens denied the right to
self-defense in their own homes. He remarks that there is "no clearer
indictment" of the theory that gun control will make cities safer than the
fact that under the stringent gun ban, D.C. was the "murder capital" of the
country in seven of the last nine years. To the chagrin of conservative
lawyers, however, Cox indicates continued support of federal legislation to
repeal the D.C. gun ban - legislation that would permanently secure home
gun-ownership for D.C. residents, but render the Parker case effectively
moot.
On a broader level, Second Amendment advocates are hoping to turn the tables
in the court of public opinion. In recent years, gun-control advocates have
changed the name of their organization ("Handgun Control, Inc." was
abandoned in 2001 in favor of "The Brady Campaign to Prevent Handgun
Violence") and focused on more limited items like waiting-period
requirements and limits on multiple-gun sales. Cox argues that NRA should be
seen as the "reasonable" group, supporting the right to self defense of
law-abiding citizens, while the handgun advocates, despite their emphasis on
incrementalist goals, nevertheless wholeheartedly supported the D.C. ban.
To some degree the NRA and its allies have already been winning the war
outside the Beltway. Forty-eight states now have laws protecting individual
rights to carry concealed weapons. Although each side offers its own polling
data, even the January 2007 poll conducted for the Mayors Against Illegal
Guns by the bipartisan team of Greenberg Quinlan Rosner Research and The
Tarrance Group reveals a combined 58 percent of those polled favor either
repealing some existing gun laws or simply enforcing current gun laws
without passing new ones.
Conservative legal scholars see this case as potentially harkening a change
in the way Americans view the courts and the Constitution. John Yoo of Boalt
Law School doubts it will affect those with hardened views on each side but
suggests that "the decision may sway moderates who are undecided about gun
control, and remind them that the Founding Fathers understood the Bill of
Rights to protect the individual right to bear arms."
Peter Ferrara of the ACRU takes a more philosophical and historical view of
the potential long-range implications of the case. He remarks that if Parker
is upheld by the Supreme Court, it will "be a big shot in the arm for
conservatives" and will demonstrate that "we have had an impact on the
courts and on changing the judiciary." He notes that the effort to achieve
recognition of an individual right of gun ownership has been an undertaking
of more than fifty years of research, scholarship, and support for
conservative judges. He explains that what was once considered a "radical"
position - recognition of an individual right to gun ownership - has now
attracted support even from liberal scholars like Laurence Tribe and has
been accepted by a prominent federal appeals court. Ferrara says that
conservatives should remember that these jurisprudential efforts are "not
short term fights." As for the impact on 2008, he reminds conservatives that
"this is no time to be discouraged" with at least two justices who could be
potentially replaced by the next president.
In that respect, the Parker case may remind the wider conservative base
exactly what is at stake in 2008.