Tucson Shooting Survivors Want Stricter Gun Laws

By Adrianna McGinley

Survivors and family members of shooting victims, including those of the January Tucson shooting that nearly killed Rep. Gabrielle Giffords (D-Ariz.), joined legislators Tuesday to support bipartisan legislation aimed at tightening national gun laws.

The Fix Gun Checks Act, introduced by Sen. Chuck Schumer (D-N.Y.), would require background checks for all gun purchases and would penalize states that fail to enter records into the National Instant Criminal Background Check System (NICS).

Sen. Chuck Grassley (R-Iowa), who has committed to investigating the ATF’s failed “Operation Fast and Furious” program, agreed that legislation to keep guns out of the hands of dangerous criminals is necessary. He added, however, that Second Amendment rights must be protected for law-abiding citizens, specifically veterans that he says were denied their right to bear arms under the NICS Improvement Act.

“While the horrific events in Tucson are still fresh in our memories, as we discuss new gun control laws, we also need to move forward on bipartisan legislation such as the Veterans Second Amendment Protection Act,” Grassley said.

Col. Bill Badger, who survived a bullet wound from the Tucson shooting, and Patricia Maisch, who prevented the shooter, Jared Lee Loughner, from reloading, voiced support for the measure.

“Tucson is yet another extremely tragic example of what is at stake each and every time a gun falls or is placed in the wrong hands,” Maisch said. “Changing the past is impossible…but it would be a pitiful shame if no action were taken to change the future. You can take action to improve our broken gun background check system, and I truly believe with all my soul that your actions can save lives.”

Legislators and witnesses emphasized that the proposal is not meant to infringe on people’s rights or take away their guns, but rather to ensure that guns stay out of the hands of dangerous individuals, like Loughner, a diagnosed schizophrenic.

“I believe there’s a right to bear arms, but I also believe it’s not absolute,” Schumer said. “Just as we have limits on the First Amendment…there are reasonable limits on the Second Amendment. I don’t believe it should be seen through a pinhole…but I also believe that limits are very reasonable and we’re talking among the most reasonable limits here.”

Supreme Court Backs Second Amendment

By Rob Sanna - Talk Radio News Service

The Supreme Court upheld the Second Amendment with a 5-4 vote in the McDonald vs. The City of Chicago case. The court ruled that the right to keep and bear arms be extended to state and local governments declared it unconstitutional for cities and states to ban guns.

Executive Vice President of the National Rifle Association Wayne LaPierre called the decision a "landmark case that makes the second amendment a real part of constitutional law." He said this case is a real victory because it defends the constitutional rights Americans have.

Paul Helmke, President of the Brady Campaign to Prevent Gun Violence, said the decision did not come as a surprise because arguments against gun laws were very similar to arguments made in the District of Columbia vs. Heller case in 2008, where the court also struck down gun bans. He also noted that the decision will have little direct impact, given Chicago and D.C. are the only cities with gun bans, and it is likely the cities will rewrite these laws and continue to limit gun ownership.

Helmke said that the definition of the Second Amendment is still very narrow and the right to bear arms is not unlimited. Laws that limit gun possession such as registration are still constitutional and are likely to remain law even if challenged in future lawsuits, he added.

The lead attorney who argued against gun bans in the Heller case and the McDonald case, Alan Gura said that he will continue litigation with the Chicago until public policy complies with the Bill of Rights. The city will not challenge registration laws, but Gura said they intend to focus on removing "unbelievable bureaucracy" which makes it very difficult for citizens to own guns.

Supreme Court Likely To Strike Down Some Gun Laws, But How Many?

Even liberal Justices seemed to agree in today's Supreme Court oral arguments that the Second Amendment must prevent cities and states from passing certain gun regulations. The Supreme Court in 2008 ruled that the Second Amendment protects an individual's right to bear firearms, but that ruling applied to only the federal government, and today's case, McDonald v. Chicago, raised the question of whether states as well are prevented from restricting access to guns.

The 2008 case of DC v. Heller held, in a controversial 5-4 decision, that the Second Amendment to the Constitution protects not only the right of the citizens in a militia to own guns, but also the fundamental right of individual citizens to own guns. If such a right is fundamental, liberal Justices asked today, is there any way the Court can consistently say that states are allowed to infringe upon that right?

Alan Gura, the lawyer for Otis McDonald, began today's session by arguing that the Supreme Court should toss out an interpretation of the Fourteenth Amendment dating back to 1873, and should instead adopt a new justification for recognizing civil rights. But Justice Antonin Scalia admitted that even though he disagrees with the current interpretation, "even I have acquiesced in it." Scalia went further, dismissing Gura's theory as the "darling of the professoriate," since a number of high-profile law professors filed briefs urging support for Gura's side. Still, Scalia did seem to strongly favor the application of the Second Amendment to the states, arguing that the Court has found that the Constitution prevents states from outlawing "homosexual conduct and … abortion on demand," so the same logic must apply to gun rights.

Justice Ruth Bader Ginsburg asked pointed questions of Gura, saying that at the time of the ratification of the Fourteenth Amendment, there were still many Americans who were denied fundamental rights, and not just in the southern states. Gura, confused, responded, "I'm sorry?" Ginsburg then explained that she was referring to married women, who at the time did not have the right to enter into contracts. If the Fourteenth Amendment was meant to ensure no American was denied these fundamental rights, she asked, why were women excluded?

There was some agreement among the Justices, though. Justices John Roberts, John Paul Stevens, Anthony Kennedy, and Stephen Breyer all seemed to be looking for a way for the Court to rule narrowly and say that the Second Amendment applies to states, but not get into the details of what that meant. Though Justice Scalia seemed to argue in favor of strong gun rights, his opinion in DC v. Heller followed this model, finding that the Second Amendment protected an individual right but declining to say how extensive that right is. That kind of minimalist decision, one favored by Chief Justice Roberts in other cases, may carry the day when the case is decided this summer.

A year of controversy for the Supreme Court

The Brookings Institution held a briefing on U.S. Supreme Court rulings where high-profile cases, such as gun control, Guantanamo Bay detentions, and the death penalty, were discussed. Brookings Fellow Benjamin Wittes moderated the Judicial Issues Forum. Wittes explained that the Supreme Court has experienced a varied last couple of terms making it hard to discern an aggregate pattern from their rulings.

Stuart Taylor, a Nonresident Senior Fellow at The Brookings Institution, talked about the recent gun control case. When dealing with this case, Taylor explained that it was the first time in history that the Supreme Court definitively interpreted the Second Amendment. Taylor said that the Court produced a ruling which struck down the Washington, D.C. gun control law, holding the individual right to bear arms. However, Taylor also explained that this ruling has only limited impact because there aren’t many really tough gun control laws.

Taylor also talked about the Guantanamo Bay case. He explained that this case produced the first decision in which the Supreme Court ever overturned a previous decision made by the President during a time of war. Congress re-established habeas corpus at Guantanamo, but the Court also made it clear that the U.S. government is not holding a single person illegally at the base. Taylor said that even though the decision has been very controversial, the most important part of it is the fact that it didn’t require anyone at the base to walk free. Taylor explained that Congress needs to design a system open enough for the public to know how scary some detainess really are.

Randolph Moss, a partner at WilmerHale, talked about the lethal injection case regarding a prison in Kentucky and the Eighth Amendment. Moss explained that in most states lethal injection is administered with a process of three different drugs. The argument in this case said that this process was not the most humane way. However, Moss said that there was not enough evidence or facts produced to show that the inmate experienced any unnecessary pain.

Supreme Court: You have a right to protect yourself with guns

DC v. Heller

"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."

Heller is a security guard at the Federal Judicial Center. He's licensed to carry a handgun at work. He applied for a permit to take it home, and it was rejected.

DC law has several provisions. You're not allowed to carry an unregistered handgun, and the law prohibits registration of handguns. You're also not allowed to carry any guns without a license, and the chief of police can issue licenses. You can own longguns (like shotguns and rifles) and keep them in your home, but you must keep them unloaded and dissembled, or bound by a trigger lock. There's no exception in the statute allowing you to take the lock off or load it if you want to use it to protect yourself, but the DC government says they wouldn't prosecute you.

Justice Scalia wrote the majority opinion for 5 Justices: himself, Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito.

The opinion is 64 pages long and spends 56 pages interpreting the amendment before addressing the DC law. The first half of the Second Amendment is read as a preface: it states a purpose but doesn't limit the amendment's meaning. This part of the opinion has little support other than saying that this type of construction is common in founding-era documents, and Justice Scalia cites a law review article rather than specific examples. Turning to the "Operative Clause," Justice Scalia rights that "the people" refers to the normal people: the same ones protected in the 1st, 4th, 9th, 10th, and other amendments.

Justice Scalia reads the 2nd Amendment as protecting two rights: the right to keep arms, and the right to bear arms. He argues that the phrase "to keep and bear arms" was not in common usage, so there is no reason to interpret it as a unitary right. He then turns to historical analysis, finding little support for the proposition that "keep arms" and "bear arms" were only used in military contexts. Therefore, it must be read to mean that average people can possess ("keep") and carry ("bear") weapons ("arms"). Further, there was a right in England for Englishmen to be armed (enacted after the Stuart Kings disarmed the populace and packed the militias with their supporters), so the right was preexisting, not new.

The prefatory clause states the purpose of the Amendment. Since the purpose was to make sure people would be able to serve as a militia and the kinds of weapons they would bring would be the ones they owned for home protection, those are the kinds of weapons protected by the Amendment. M-16s and other high-power weapons wouldn't be useful for home defense and thus would not be expected in a militia. Therefore they would not be protected by the Amendment.

Justice Scalia leaves significant questions unanswered: Does the right only apply against the federal government, or against states, too? Justice Scalia says that the opinion does not allow felons and the mentally ill to possess guns, or allow guns to be taken into sensitive areas like schools, but he does not offer support for those exceptions.

Turning to the DC laws, Justice Scalia says that they prohibit any possession of weapons that would be useful for self defense. Handguns are the weapons most people choose for defense of the home, and DC bans them as a class. Similarly, the restrictions on longguns render them useless for home defense. Thus, the restrictions are unconstitutional.

The challenge did not address the requirement that guns be registered, so that law stands.

Justice Stevens dissents, criticizing the majority's interpretation of the Second Amendment. He reads it as saying people can have guns only in a military context, since phrases like "bear arms" have often been used when referring to organized state militia.

Justice Breyer takes issue with the invalidation of the DC laws. Under a balancing approach, considering DC's crime rates and the crime control options available to lawmakers, he says that the DC laws should be allowed to stand. This is similar to the position the Bush Administration took in the case, which was that there is an individual right to possess guns, but that the courts should be more deferential when reviewing the laws.