Heller case hearing a milestone in flow of civil rights history
April 15, 2008

by Joseph P. Tartaro
Executive Editor

History is a river that keeps flowing. While there may be milestones, they are just measuring points, they don’t stop the movement of the water.

The historic Mar. 18 Supreme Court oral arguments in the landmark case of District of Columbia v. Heller were one such milestone but whether they will change the flow of history remains to be seen. The Court is expected to render a decision by the end of June. But, important as this case is to firearms civil rights, the ruling will only be one more important milestone.

The decision of the Court to review this particular Second Amendment case is in itself a milestone. In 1983, a different Supreme Court declined to hear a similar challenge to a handgun ban in Quilici vs. Morton Grove. In 1981, the village of Morton Grove, IL, had banned the private possession of handguns, a ban which continues to this day. Warren Berger was the Chief Justice then and the court was quite different in makeup. If that court had accepted the Morton Grove case, the attitudes of the justices might have been quite different from those of the Roberts Court.

The questions and comments of the justices during oral arguments in the Heller case indicated that a majority of the court is very likely to affirm the Second Amendment guarantees an individual right to arms as three out of four Americans believe.

However, the Court did not indicate during oral arguments that it will rule handguns are protected as arms an individual has a right to keep. Nor did the Court telegraph any clues on whether or not the District of Columbia handgun ban violates the Constitution.

If the Court rules only that the Second Amendment guarantees an individual right, that will be an important victory in the flow of civil rights history. If it goes further, it will be a greater milestone.

The Heller case was not and is not a bear arms case. The main issue was keeping operable arms for defense of home, family and property.

Of course, the Court can add or subtract from the basic questions at issue. But the Heller case is not and never was about bearings arms—openly or concealed. It wasn’t about machineguns, either.

Anyone who expected this one case to resolve all the questions about gun laws is like the man wearing white shoes who expects to walk across a cow pasture at night without soiling his shoes or socks. Those people should remember that the Warren Court refused to hear the Morton Grove case—and luckily so. It was not the time. And why it didn’t and why the Roberts Court did are key parts of the flow of civil rights history.

The District of Columbia gun ban was enacted in 1976 while the Warren Court was in session. Such a Court was not ready for either the DC case or the Morton Grove case, in large part because the seminal historical and legal research and studies on the intent of the Founding Fathers had not quite begun.

Maybe the milestone enactment of the DC gun ban had something to do with the realization among leaders and scholars devoted to the Second Amendment. Maybe not! Certainly by the time Morton Grove enacted its ban, and Kennesaw, GA, its commandment that every home have a gun, most thoughtful people realized that the issue was much more complex than sending the next felony case to the Supreme Court to get a favorable individual rights Second Amendment decision.

In 1976, good Second Amendment scholarship was in its infancy. The late David I. Caplan had just completed his “Restoring the Balance of the Second Amendment Revisited,” which was published in the Fall 1976 Fordham Urban Law Journal—another milestone. Caplan’s article inspired a lot of other lawyers and academics to revisit the Second Amendment issue.

That same year, the Second Amendment Foundation (SAF) hosted its first of its writers and scholars conferences at which some of the best and brightest brains in criminology, history, law and other disciplines were brought together to promote even more scholarship on the Second Amendment question. The next year, SAF hosted another such conferences, and more later. The purpose was to get those who attended to write original new papers regarding various aspects of Second Amendment studies. Some of those papers were cited in Court Mar. 18.

At about the same time, Don B. Kates Jr., who attended and chaired the first SAF writers and scholars seminars, had published a collection of articles that flew in the face of accepted media, academic, legal and political thinking about guns and the right to keep and bear them. The book was Gun Control: The Liberal Skeptics Speak Out.

Following these milestone seminars and the publications, other scholars began to publish their own original research and conclusions in increasingly prominent law journals. I suppose each of these between the late ’70s and the present was a milestone in its own right.

What became apparent was that the tide of legal and academic thinking was turning and as it did so, changes were taking place at the Supreme Court. Rehnquist followed Warren and Roberts followed Rehnquist. Meanwhile, the Reagan and Bush Administrations had been appointing new justices to the court.

As these changes were taking place, lawyers unconnected to the National Rifle Association (NRA)—Robert Levy and his co-counsels, Clark Neily and Alan Gura—began to assemble a true Second Amendment case of limited scope with a clear objective and the right kind of plaintiffs—decent people who were righteously concerned about self-defense. That case was filed several years ago as Parker v. District of Columbia.

At first, NRA lawyers and many other pro-gun attorneys were not anxious to see the Parker case go to trial in the lower courts, let alone in the Supreme Court. NRA filed a separate suit in the hope that both would be combined.

But the NRA’s suit was thrown out and so to, at first, was Parker. But Levy, Neily and Gura got it past the shoals of the lower courts to success in the Federal District Court of Appeals in March 2007. That court, in a marvelous opinion written by Senior Judge Laurence Silberman ruled that the Second Amendment guaranteed an individual right and—for the first time—overturned a local gun ban law.

Now the anti-gunners faced a dilemma: should they take their lumps on DC’s law, or should they appeal to the Supreme Court and place some gun laws in other jurisdictions in jeopardy. They went for the appeal and caused the basic issue of keeping arms for defense in homes and business to be recaptioned District of Columbia v. Heller. (Dick Anthony Heller was the only one of the original plaintiffs which the lower court ruled had standing.)

I’ve rowed us past many of the milestones in this historic flow of civil rights involving the right to keep and bear arms because there are many heroes in this saga. Many not mentioned here Not the least among them, attorneys Levy, Neily and especially Gura, who had to argue the case for the Second Amendment against not only the anti-gun attorneys, but the Bush Justice Department.

It was Gura’s first time against two more experienced attorneys who previously had each argued dozens of cases before the Supreme Court. I applaud his performance, even to casting aside the question of machineguns and some gun laws as irrelevant to the case he had to win.

I applaud also all the lawyers and scholars who had a hand in the briefs of amici, and in the moot courts that were earlier milestones.

We’ve all done our best. Now we wait for the Roberts Court to speak.
Return to Archive Index