Strength Through Pro-Gun Unity
18th Annual Gun Rights Policy Conference
by Dave Workman
September 26, 2003
September 27, 2003
|September 28, 2003
"A bad Second Amendment decision (by the US Supreme Court)
will take down a lot of state constitutions with it."
That warning came from David Kopel, research director at the Independence Institute and associate policy analyst at the Cato Institute-two leading conservative think tanks-and considered to be one of the nation's leading Second Amendment scholars. He was addressing an afternoon audience at the 18th annual Gun Rights Policy Conference (GRPC) in Houston, TX, the afternoon of Sept. 27.
Kopel's remarks were reinforced when fellow panelist Prof. Robert A. Levy, a Cato Institute attorney cautioned, "The Supreme Court can get it wrong."
Kopel and Levy were two of four panelists discussing whether or not it was time for a showdown on the Second Amendment before the Supreme Court. Other members of the panel were California attorney Chuck Michel with the California Rifle & Pistol Association, and Alan Korwin, author of a series of gun law books, and co-author with Kopel and Stephen Halbrook of the new book Supreme Court Gun Cases.
Levy opened the discussion with an overview and update on the challenge to Washington, DC's, gun ban, which actually involves two challenges, one by Cato and the other by the National Rifle Association (NRA). The Cato case is Barker v. District of Columbia and it involves six plaintiffs who are suing to overturn the ban, simply so they can have firearms in their homes. The District requires guns to be registered, but stopped accepting registrations 30 years ago, and this lawsuit, and the subsequent NRA challenge, ask that the District once again allow registrations so people can have guns.
"We're not talking about the right of plaintiffs to carry a gun outside the home," Levy explained. "The DC government has done almost nothing to disarm violent criminals but it's done a really good job of disarming decent and peaceable residents."
Levy continued, "No handgun can be registered in DC. Even pistols that were grandfathered prior to the 1976 ban cannot be carried even from room to room unless you have a license, which the government never grants. . . . In effect no one in the district can possess a functional firearm in his or her own residence."
He said this case seeks to have a judge prevent the DC government from barring the registration of handguns and the possession of functional firearms within the home.
One of the plaintiffs is a woman who has been threatened and harassed by drug dealers for wanting to clean up her neighborhood. Another is a special police officer who provides security at the Thurgood Marshall federal building.
Because the District of Columbia is not a state, and there can be no question about the incorporation of the Second Amendment by the 14th Amendment, Levy believes that this case might offer the best chance of success in establishing the Second Amendment as protective of an individual right.
"Unlike most of the 10 amendments, the applicability of the Second Amendment to the states just has not yet been resolved," he noted.
But bringing that lawsuit has been a challenge, as Levy recounted how the court has delayed and allowed the District, and anti-gunners, additional time to file briefs in the case, in preparation for mid-October oral arguments.
"The right to keep and bear arms includes the right to defend your property, your family and your life, and no government should be able to take that away," Levy stated.
Korwin went on the offensive, criticizing concealed pistol licensing laws as "a scam."
We start thinking that getting a permit from the government is freedom," he observed. "A permit available from the government in right to carry is not freedom to carry which the Second Amendment recognized. . . . It's a scam. . . . We're supposed to get rights from this! It's a way to deny our rights."
Korwin said that the high court has decided 92 cases about gun rights, and they have recognized the individual right.
"The Supreme Court has recognized the individual right to bear arms in defense of yourself and for every other legitimate purpose for two centuries," he stated. "You have rights. That's the bottom line." "People have told you for a long time," Korwin continued, "that you don't have gun rights, it's a state's right. If you don't have gun rights, then how come there are gun stores?"
He said "the argument that you don't have rights now dies under the weight of the evidence."
Korwin said Supreme Court Gun Cases clearly details the true position of the Supreme Court on the Second Amendment over the past 200 years, noting that the justices have studied state constitutions, which are usually more specific on the individual rights issue.
"I'm waiting to see how the Left attacks this book," he commented. "They haven't come up with anything yet. They've got to manufacture new lies. We've driven a stake through the heart of the anti-rights lobby, and it's going to stay there."
Korwin also promoted adoption of a Gun Free Zone Liability Act, under which property owners and businesses or even governments would be liable for any harm that befalls a citizen who is not allowed to carry a firearm on their premises. Such legislation has been introduced twice in Arizona and once in Georgia, and Korwin said four other states are interested in it.
"I want the other side to have to fight with the fact that banning guns is dangerous," he said. "It's reckless, it's negligent and it's fraudulent to suggest that if we put up a no gun sign, you're safer. How dare they ban my firearm in this room because that'll make me safe?"
Kopel did not mince words as he discussed the case of Silveira v. Lockyer, a California "assault-weapons" ban challenge that some gun rights activists believe will provide the decisive Supreme Court ruling on the Second Amendment.
After detailing how each Supreme Court justice might come down on a Second Amendment case, Kopel noted, "Handgun Control would say they have a better chance now of winning than they might later." He reminded the audience that "Five justices upheld state-based racial discrimination" in a recent case allowing colleges and universities to use race as a factor in admissions.
"Don't come close to even thinking we are guaranteed to win the case," Kopel warned. "The decision might say yes, there is an individual right and it is subject to a reasonableness test which will uphold all state gun laws, almost all laws that are short of prohibitions. . . . That's the high side. And there is a real low side that the court may nullify the Second Amendment."
During a subsequent question and answer session, Kopel noted, "The (Internet) chat rooms, where people are saying Silveira is a wonderful case and if we lose it will bring on a Second Amendment revolution, they are living in a fantasy world, an extremely dangerous fantasy world."
Michel concurred, noting that "Liberal judges hate the Second Amendment. Conservative judges may uphold the Second Amendment but they hate overturning laws." Essentially, he said the court may rule that the Second Amendment protects an individual right, but that it can be regulated by statutes, and those statutes would be held to a low standard of review.
He suggested that the Silveira case poses a horribly-planned challenge because the law it attempts to overturn is "complicated, misunderstood and distorted." This leaves open the strong possibility of a ruling that runs against the individual right, particularly to own a military-style semi-automatic rifle.
"So what we're liable to get at best," Michel said, "is a Second Amendment decision that says the Second Amendment is a fundamental right that may or may not be incorporated into the states and even if it is, the standard of review is liable to be set very low because they will not want to invalidate an 'assault weapon' law. . . . I've seen judges do mental back flips in order to rule the way they want to rule."
Michel concluded by asserting, "There is widespread agreement that Silveira is a poor choice to put our freedoms . . . our children's freedoms, in front of the court right now. It is the equivalent of standing with your hand in front of your face and saying 'see if you can hit my hand before I move it.' "
During the later Q&A session, he cautioned, "If we get an anti-Second Amendment decision out of the United States Supreme Court, that will be the final word on that constitutional issue for a hundred years as far as the court is concerned."
Silveira attorney Gary Gorski of California was scheduled to attend the conference and sit on the panel with Kopel, Michel and the others, where he would have had an opportunity to present his side of this controversial issue. At the last minute, according to Joseph Tartaro, president of the Second Amendment Foundation (SAF) and chairman of the GRPC agenda, Gorski notified him that he could not attend due to "moving" that weekend.
The next panel consisting of: Alan Gottlieb, chairman of the Citizens Committee for the Right to Keep and Bear Arms and founder of SAF; Chuck Cunningham, federal affairs director for the NRA's Institute for Legislative Action; Lt. Gen. James Chambers, vice president of the National Shooting Sports Foundation, and Tom Gresham, host of the syndicated radio show Gun Talk, dealtwith the presidential and congressional campaigns looming on the political horizon.
Gresham led the discussion, advising his activist audience to forget about asking why "they" don't do something in the elections, because "There is no 'they,' there's just you and me. We are 'they,' we are the power, you are the power."
"A lot of activists get very confused," Gresham said, "because they think the job here is to make the other side admit that we are right. Not only is that not going to happen, it doesn't matter. We don't need to make them think we are right. We can absolutely ignore them. All we have to do is get that huge 90% in the middle, not to move off clear to the other side of the room. We need to get them to take a baby half-step and we win; to give public opinion a nudge."
He added that, "There's an awful lot of foolishness on the Internet right now. The Internet is the democratization of publishing, and that's another way of saying that any damn fool can get a website. Be a little bit careful about what you believe and what you buy into and just because it says it loudly and forcefully doesn't make it reasonable or right."
Gresham also reminded the audience, "We all have a BS filter built in. Activate it when you get on the Internet. When somebody says on the Internet that gunowner groups are anti-gun, it doesn't pass the smell test. . . . When we turn on each other it's like fragging your buddy on the front line."
Cunningham suggested that the gun issue may carry some weight in the 2004 elections, primarily because the Clinton gun ban expires seven weeks before the election.
"I don't know how it's going to play out and whether the other side is going to try to draw blood early," he said.
Cunningham warned his listeners that a major problem facing gunowners is complacency, because "there is no longer any threat on the horizon, there's no dragon to slay." This has taken members away from gun rights groups, and lowered their contributions.
"You always see a lot more activity trying to defeat something bad than trying to pass something good," he observed.
"We don't know who the Democrat candidate (for president) will be," Cunningham added, "but we do know he is going to be anti-gun."
While acknowledging that the Bush Administration "is not perfect," he suggested that keeping President Bush in the White House will be good for gun rights because of judicial appointments he can make, such as those to the Supreme Court.
Cunningham ticked off the different states where congressional seats will be in play, and predicted that Republicans will retain control of Congress next year. Responding to a question from the audience about NRA support for third party candidates, he was blunt: "Historically, with third party candidates, the 'I' stands for 'Irrelevant.' We like to spend our resources in races where we can make a difference."
Chambers then took the podium and added, "One of the main reasons we lost the election to Clinton was Ross Perot. Perhaps one of the reasons Gore lost the last election was a third party candidate. We hope (Ralph) Nader will be back. We hope we never see Perot again."
He said one of the greatest dangers to retaining a gun-friendly Congress and White House will be gunowner complacency.
"When you don't foresee an immediate threat," he said, "you tend to think everything's okay. We can't afford to be complacent. You must understand that the threat is still there. Low key though it may be, once they get back in power, the anti-rights people, you will suffer a full frontal attack."
Chambers said gunowners must be active in states where they c the 2000 election, where they should have, he stated, "There are a hell of a lot of hunters, gunowners and shooters that should have showed up at the polls and should have voted." Pennsylvania was won by Gore.
Chambers predicted a "tough fight in 2004." He said there will be "many uncertainties."
"But," he added, "we can be certain of one thing. The anti-rights and anti-gun elements are alive and well, and they have not altered their goal of total gun banishment in this great country."
Gottlieb advised the audience that current polling data indicates that the electorate is pretty moody, and that voters feel "very alienated, very disenfranchised and very unhappy." This appears to spread across the political spectrum, touching liberals, moderates and conservatives.
In that kind of political environment, he said any event might trigger a voter shift.
The electorate is schizoid right now," he said. "The electorate as a whole is willing to make giant shifts right now. Sometimes that is good, sometimes that's bad."
Sharing data from various national polls, he painted a picture that was not very definitive, leaving open the potential for everything from retention of the status quo in 2004, to a reverse sea change of 1994. The economy is a big factor, and so is voter turnout.
"Constituency turnouts make a difference between who wins and who loses," Gottlieb acknowledged. "Our job is really cut out for us."
It is up to gun rights activists, he explained, to get out the vote.
"People are angry and upset," he said. "They don't trust anybody."
Rounding out the day's panels, historians David Hardy and David Young joined Tartaro at the podium to discuss the "Amazing multi-purpose Second Amendment."
Hardy is the author of Origins and Development of the Second Amendment and This is Not an Assault. Young is the author of a similar work, Origins of the Second Amendment.
Hardy said the traditional debate over the meaning of the Second Amendment has not always been so heated. He said it seemed very clear during the early days of the Republic what the founders were thinking when they penned the Second Amendment. He went through the historic development of the two-clause amendment, explaining Thomas Jefferson's philosophy about how "no free man shall be debarred the use of arms," and how Congress had to appease two distinct groups, those who wanted to assure that the militia had arms, and those who wanted to assure that all citizens could keep and bear arms.
In the post-Civil War era, the courts focused on the Second Amendment clearly as an individual rights interpretation of the second clause, Hardy explained. He mentioned how courts ruled on the Black Codes that sought to disarm free blacks.
"In the post Civil War South," he said, "you find constant complaints abut infringement of the Second Amendment by the states."
He said that as history advanced, court cases and public opinion seemed to focus squarely on the individual right to bear arms, which became far more important than concerns about the militia.
"The Second Amendment hasn't got anything to do with defending the country, it has to do with the people defending themselves and their government and army possibly or other forces that go awry," Young stated.
The scholar, whose work was cited repeatedly by the 5th Circuit Court in its Emerson ruling, told the audience that, "I had a gun control advocate tell me that all things that relate to the Second Amendment are a bunch of crap."
"Gun control advocates," Young observed, "always get it backwards."
He said there is no evidence to support the conclusions gun control advocates have reached regarding the meaning of the Second Amendment. Young maintained that the emphasis by anti-gunners on the so-called collective right view is an effort to describe a right that excludes an individual right.
"Maybe there's a definition somewhere of what a collective right really is but I can't find it anywhere," he said.
Young noted that all of the original colonies had militia laws, and that even Ben Franklin wrote about how the people were armed. He joked that Franklin's recorded observations "sort of contradict" the writings of discredited historian Michael Bellesiles, author of the now debunked Arming America: The Origins of a National Gun Culture.
"In (Franklin's) day, the people were very well armed, they knew how to use them," Young said. "Gun control advocates argue the Second Amendment applies to the militia. That's like saying the First Amendment is a religion amendment."
Concluding the panel, Tartaro told the audience that most of the recent scholarship on the Second Amendment is clearly pointing toward the individual right interpretation.
Coming next: Discussions on CCW reciprocity, the gun rights battle in the public arena, armed pilots, and the future of gun shows.