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Patriot Games
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http://www.brooklyneagle.com/categories/category.php?category_id=4&id=16308
October 26, 2007
'Who Has the Right to Own Guns?' Two Top Advocates Battle it Out
10-25-2007
Gun Control Case Could Come Before U.S. High Court for First Time Since '39
WASHINGTON SQUARE - High Noon came on the first Monday in October for two
well-known New York attorneys who faced off in a mock Supreme Court argument
about the Second Amendment.
Armed only with their wit, experience and existing case law, Brooklyn
attorney Barry Kamins and Jeh C. Johnson argued the merits of a case that
could soon come before the real U.S. Supreme Court, at an event for the
Office of the Appellate Defenders.
In the past 100 years, the U.S. Supreme Court has only issued one decision
on the Second Amendment right to bear arms. In U.S. v. Miller (1939), the
Supreme Court found that weapons possession must bear "some relationship to
the preservation of a well-regulated militia."
This year, the Court may grant certiorari to review the issue for a second
time. The case is District of Columbia v. Parker, and both sides have asked
the Court to review the matter. It involves a city law that bans people from
keeping handguns in their homes. The issue is whether the Constitution
protects an individual's right to bear arms for private purposes, or just
the states' right to arm individuals for the purpose of maintaining
militias.
Kamins, a recognized expert in criminal law and procedure, author, scholar,
adjunct professor and president of the citywide Association of the Bar of
the City of New York, chose the more difficult position.
He stepped up to the podium in an auditorium filled with unsympathetic New
York attorneys and law students, in a city where the mayor campaigns for gun
control, and argued that individuals have the right to keep guns in their
homes. The case law was slim, as rare as a friend in an uneven fight.
He could not count on support from the bench, either: this judicial panel
was as different from the real Supreme Court as Justice Thurgood Marshall
(the former NAACP lawyer) was from the current, conservative Chief Justice
John Roberts.
Undaunted by the odds against him, the Brooklyn defense lawyer pulled out
his rapier wit and distinguished the Supreme Court's decision in Miller.
That case upheld a law against carrying weapons from one state to another, a
public activity, whereas the current statute reaches inside someone's home
to take their personal property, Kamins said. The Miller statute
specifically targeted sawed-off shotguns, whereas the Parker statute is
broader, he argued.
With only two cases in his quiver of precedents, Kamins took careful aim
with each one, attempting to cripple the opposing arguments. He leaned on
the 5th Circuit's decision in U.S. v. Emerson (2001), which upheld an
individual's right to bear arms for private purposes. The D.C. Circuit Court
in Parker also found that "the Second Amendment protects a right to keep and
bear arms."
The historical and contextual meanings of each word in the amendment become
significant in determining whether the Constitution provides an individual
right or "collective right" to bear arms.
During the mock arguments, one justice exasperated by the textual analysis
exclaimed, "So, 'people' doesn't mean people, 'arms' doesn't mean all arms
and 'militia' has no meaning whatsoever?!" (Because no state has a militia.)
Except for Emerson and Parker, no court has invalidated a government
regulation of firearms for infringing on an individual right protected by
the Second Amendment.
With the Miller case on his side, Johnson seemed to have his opponent
outgunned, so to speak. His credentials alone might intimidate a lesser
adversary. Johnson, former counsel to the U.S. Air Force and special counsel
to John Kerry's 2004 presidential campaign, is a partner at Paul, Weiss,
Rifkind, Wharton & Garrison, a white-shoe firm with offices in five
countries. In arguing that the Court must follow its decision in Miller, he
was jocular.
One jurist challenged Johnson, "I can't defend myself in my own home in
Washington, D.C.?"
"We are in the Green Zone here on Capitol Hill. Unfortunately, we are in the
Green Zone," the litigator replied drily, alluding to a heavily defended
area in central Baghdad. The rest of his response was nearly drowned out by
the audience's laughter.
The evening was punctuated with humor as advocates risked arguments that
would be unthinkable in the real Supreme Court. The mock justices made no
attempt to camouflage their thinking and fired their own questions and
comments at the defense lawyer from Brooklyn.
"Can you cite any case at all that supports your position?" the presiding
justice, Hon. George Bundy Smith, asked Kamins.
There was a slight pause. "Other than Emerson, and the supporting ." Kamins
hesitated a moment before drawing his argument once more. "Gun control is
the elephant in the room," he said. "The Second Amendment gives the right to
self defense. This prohibition is unconstitutional because it bans all
weapons of any type" inside the home, Kamins said.
Then the Supreme Court on Washington Square did something unusual. After a
brief, collegial discussion, it issued a unanimous decision upholding its
Miller precedent with virtually no commentary. (Although one judge, Joseph
Wayland, initially suggested that there is an individual right to bear arms
and that the "ban" must satisfy strict scrutiny.)
"It was an exhilarating evening," Kamins told the Eagle, smiling as he
emerged into the bright, crowded lobby. He looked very slightly
shellshocked, as he moved on to mingle with scores of colleagues and
friends.
Kamins and Johnson both received Gould Awards for Outstanding Oral Advocacy
at the end of the Appellate Defenders' "First Monday" program, held in
Vanderbilt Hall at New York University School of Law.
The advocates "would not get thrown off course, no matter what was thrown at
them," said Thomas V. Heyman, chair of the Appellate Defender's board of
directors, who presented the award. A proud Brooklyn native, Heyman
introduced Kamins as "the first attorney from Brooklyn to be president of
the City Bar, and it's about time."
October 26, 2007
'Who Has the Right to Own Guns?' Two Top Advocates Battle it Out
10-25-2007
Gun Control Case Could Come Before U.S. High Court for First Time Since '39
WASHINGTON SQUARE - High Noon came on the first Monday in October for two
well-known New York attorneys who faced off in a mock Supreme Court argument
about the Second Amendment.
Armed only with their wit, experience and existing case law, Brooklyn
attorney Barry Kamins and Jeh C. Johnson argued the merits of a case that
could soon come before the real U.S. Supreme Court, at an event for the
Office of the Appellate Defenders.
In the past 100 years, the U.S. Supreme Court has only issued one decision
on the Second Amendment right to bear arms. In U.S. v. Miller (1939), the
Supreme Court found that weapons possession must bear "some relationship to
the preservation of a well-regulated militia."
This year, the Court may grant certiorari to review the issue for a second
time. The case is District of Columbia v. Parker, and both sides have asked
the Court to review the matter. It involves a city law that bans people from
keeping handguns in their homes. The issue is whether the Constitution
protects an individual's right to bear arms for private purposes, or just
the states' right to arm individuals for the purpose of maintaining
militias.
Kamins, a recognized expert in criminal law and procedure, author, scholar,
adjunct professor and president of the citywide Association of the Bar of
the City of New York, chose the more difficult position.
He stepped up to the podium in an auditorium filled with unsympathetic New
York attorneys and law students, in a city where the mayor campaigns for gun
control, and argued that individuals have the right to keep guns in their
homes. The case law was slim, as rare as a friend in an uneven fight.
He could not count on support from the bench, either: this judicial panel
was as different from the real Supreme Court as Justice Thurgood Marshall
(the former NAACP lawyer) was from the current, conservative Chief Justice
John Roberts.
Undaunted by the odds against him, the Brooklyn defense lawyer pulled out
his rapier wit and distinguished the Supreme Court's decision in Miller.
That case upheld a law against carrying weapons from one state to another, a
public activity, whereas the current statute reaches inside someone's home
to take their personal property, Kamins said. The Miller statute
specifically targeted sawed-off shotguns, whereas the Parker statute is
broader, he argued.
With only two cases in his quiver of precedents, Kamins took careful aim
with each one, attempting to cripple the opposing arguments. He leaned on
the 5th Circuit's decision in U.S. v. Emerson (2001), which upheld an
individual's right to bear arms for private purposes. The D.C. Circuit Court
in Parker also found that "the Second Amendment protects a right to keep and
bear arms."
The historical and contextual meanings of each word in the amendment become
significant in determining whether the Constitution provides an individual
right or "collective right" to bear arms.
During the mock arguments, one justice exasperated by the textual analysis
exclaimed, "So, 'people' doesn't mean people, 'arms' doesn't mean all arms
and 'militia' has no meaning whatsoever?!" (Because no state has a militia.)
Except for Emerson and Parker, no court has invalidated a government
regulation of firearms for infringing on an individual right protected by
the Second Amendment.
With the Miller case on his side, Johnson seemed to have his opponent
outgunned, so to speak. His credentials alone might intimidate a lesser
adversary. Johnson, former counsel to the U.S. Air Force and special counsel
to John Kerry's 2004 presidential campaign, is a partner at Paul, Weiss,
Rifkind, Wharton & Garrison, a white-shoe firm with offices in five
countries. In arguing that the Court must follow its decision in Miller, he
was jocular.
One jurist challenged Johnson, "I can't defend myself in my own home in
Washington, D.C.?"
"We are in the Green Zone here on Capitol Hill. Unfortunately, we are in the
Green Zone," the litigator replied drily, alluding to a heavily defended
area in central Baghdad. The rest of his response was nearly drowned out by
the audience's laughter.
The evening was punctuated with humor as advocates risked arguments that
would be unthinkable in the real Supreme Court. The mock justices made no
attempt to camouflage their thinking and fired their own questions and
comments at the defense lawyer from Brooklyn.
"Can you cite any case at all that supports your position?" the presiding
justice, Hon. George Bundy Smith, asked Kamins.
There was a slight pause. "Other than Emerson, and the supporting ." Kamins
hesitated a moment before drawing his argument once more. "Gun control is
the elephant in the room," he said. "The Second Amendment gives the right to
self defense. This prohibition is unconstitutional because it bans all
weapons of any type" inside the home, Kamins said.
Then the Supreme Court on Washington Square did something unusual. After a
brief, collegial discussion, it issued a unanimous decision upholding its
Miller precedent with virtually no commentary. (Although one judge, Joseph
Wayland, initially suggested that there is an individual right to bear arms
and that the "ban" must satisfy strict scrutiny.)
"It was an exhilarating evening," Kamins told the Eagle, smiling as he
emerged into the bright, crowded lobby. He looked very slightly
shellshocked, as he moved on to mingle with scores of colleagues and
friends.
Kamins and Johnson both received Gould Awards for Outstanding Oral Advocacy
at the end of the Appellate Defenders' "First Monday" program, held in
Vanderbilt Hall at New York University School of Law.
The advocates "would not get thrown off course, no matter what was thrown at
them," said Thomas V. Heyman, chair of the Appellate Defender's board of
directors, who presented the award. A proud Brooklyn native, Heyman
introduced Kamins as "the first attorney from Brooklyn to be president of
the City Bar, and it's about time."
