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Thread: From the Author of Supreme Court Gun Cases RE: Heller

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    "Strictest Scrutiny" Found in the Fine Print
    "Strictest Scrutiny" Found in the Fine Print

    Many Other Assets Revealed After Study
    Many Other Assets Revealed After Study

    Gura Takes Another Case
    Gura Takes Another Case

    "Do NOT gratuitously yield ground on any points that may be debatable
    -- take the highest ground concerning what the Heller decision means,
    and make the antis fight uphill against you. You may be right despite
    your own doubts."

    by Alan Korwin, Co-Author
    Supreme Court Gun Cases
    June 30, 2008

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    June 26, 2008: "An 'outraged' Chicago Mayor Daley this morning
    denounced a U.S. Supreme Court ruling overturning Washington D.C.'s
    handgun ban as a 'frightening decision' and a "return to the days of the
    Wild West.'"

    Adding salt to the wound, Chicago was immediately sued over its own
    tyrannical handgun ban and licensing tax scheme, by a coalition of
    pro-human-rights groups including the Second Amendment Foundation, the
    NRA and the Illinois State Rifle Association. Quoting from the SAF
    announcement (

    "Chicago's registration scheme cries out for common-sense reform," ISRA
    Executive Director Richard Pearson said. Under Chicago's gun law,
    firearms must be re-registered annually. Alan Gura, lead attorney in the
    Heller case, is in charge of this lawsuit.

    "Each time," Gura said, "a tax is imposed, forms must be filled out,
    photographs submitted. A person who owns more than one gun will be
    constantly in the process of registering each gun as it comes due for
    expiration. If registration is to be required, once is enough."

    He further noted that Chicago's bizarre requirement that guns be
    registered before they are acquired often makes registration impossible.
    Failure to comply with the scheme means that a gun not re-registered on
    time can never be registered again. Some anti-rights advocates are
    reportedly happy because gun registration is being accepted as if it's a
    restoration of rights, which it is not.

    Daley's "Wild West" comment refers to a bogus notion used by every
    anti-rights zealot in the country. It's usually used to resist
    carry-permit legislation, which has been proven to reduce crime, not
    revert society to the days of Dodge City. "Why let facts get in the way
    of a good red-faced rant," said The Uninvited Ombudsman, to no one in
    particular. He added, "Registering honest gun owners lacks a
    crime-fighting component, and directs scarce funding in the wrong
    direction -- tracking the innocent." Criminals cannot be registered, due
    to 5th Amendment self-incrimination rules. More here:


    I was going to do a lengthy review of news coverage of the decision,
    but it has been so biased, distorted, misleading and prejudicial I just
    don't have the stomach for it. Our local paper (Gannett's #2 rag, The
    Arizona Republic) put it below the fold, giving a daily change in the
    stock market more prominence. They ran the famously anti-rights
    Washington Post "news" which began, ran and ended with editorial
    comments and balderdash.

    The McClatchy chain closed their completely conjectural Q&A approach by
    calling SAF, the second largest gun-rights group in the nation "small."
    Reuters, overlooking that the RKBA has been enshrined, exercised and
    respected for more than two centuries, called it new. It was dastardly.


    Against the hue and cry of gun-crazed journalists, clamoring
    post-Heller for an end to what they call "gun deaths," it's time to
    finally call a spade a spade. Gun deaths are largely war deaths -- in
    the government-sponsored war on some drugs. Gang-banger murders are war
    deaths in that war, and are not subject to phony "gun-control" measures.
    D.C.'s failed laws prove this. The American murder rate has major
    components that are demographic, geographic, and related to social and
    economic conditions, not a new design by Winchester, Colt or Glock. The
    anti-rights claims about gun deaths are as false as the now discredited
    myths from their Heller-case arguments.

    The ugly underbelly of criminal shootings must be exposed. It must be
    disassociated from 100 million legitimate law-abiding gun owners. We can
    no longer stand by and allow journalists and their leaders, or misguided
    politicians, to place blame for failed social policies on cherished
    human rights that have kept this nation a shining beacon of freedom for
    more than two centuries.


    The big hurdle, with Heller now in place, will be control of the court
    of popular opinion. National "news" media, lead by the clever and
    decidedly anti-rights Washington Post, will be bending over backwards to
    present any D.C. item that can be twisted to imply:

    a) D.C. experienced a crime and it must be due to the bad Heller
    decision and its subsequent flood of permit applications,

    b) exercise of your rights is hurting society,

    c) politicians should reverse the trend by finding new ways to enact
    the old failed policies, and

    d) you should elect Obama because he will fix everything with some
    spare change from his campaign.



    (In my haste to post an initial review of the Heller decision, many
    juicy points were overlooked. This was expected. With time to read and
    digest the opinion, some wonderful elements have emerged. Starting with
    some lighter fare):

    June 26 was a great day for human rights and freedom and a terrible day
    for The New York Times. (The Times has promoted an anti-rights agenda
    for decades.)

    Bogus anti-rights arguments we have endured for about four decades have
    had a stake driven through them. Collectivism, militia requirements,
    uselessness of sidearms, improper readings of 2A, revisionist history,
    rights-denial as a crime remedy, "the gun lobby lies about 2A," even "an
    individual right means you can own an atom bomb," all dead. Did I
    mention hoplophobia is irrational?

    The human right to self defense has received unequivocal support. This
    is especially important since the U.N. does not recognize this right.

    Criminals and crazies remain under strict legal controls, despite
    lunatic claims to the contrary.

    Handguns are fully recognized as "the quintessential self-defense

    Future efforts to deny these crucial civil rights will be severely
    chilled (though their advocates may be energized, as we would if we had

    The list of weapons useful for a militia -- armed citizens capable of
    being called up in an emergency to serve with their own weapons --
    remains ambiguous. To wit:

    Legal-eagle friends are confused, in disagreement and debating what the
    actual holdings are exactly, such as whether the Second Amendment is
    incorporated against the states, and similar fine points. I take an
    expansive view and encourage rights advocates to do the same. Do NOT
    yield ground on any points in your preliminary positions -- take the
    highest ground concerning what the decision means, and make the antis
    fight uphill against you. Push the envelope in the direction of greater
    freedom. The finding of a specific enumerated right of course means
    other jurisdictions are affected even if the 14th Amendment isn't
    specifically invoked -- it doesn't need to be.

    June 26 has been proposed as National Right to Keep and Bear Arms Day
    by Tom Liddy, author, talk show host, politician and son of G. Gordon

    The decision will provide cover for politicians, who can now reject
    anti-rights bills by saying their hands are tied by the
    individual-rights declarations in Heller. Obviously not all will, but
    many will be able to duck a thorny issue without alienating their
    constituencies, bolstering pro-rights efforts toward new bills and
    helping to stop bad bills.


    I just finished studying the decision, the dense legal text is not easy
    reading. Much of the commentary I've seen seems based on guesswork and
    emotion. It's better than we think, but still, the struggle goes on as
    it always will. Freedom is not a place you get to, it's a path you


    The core issue of "judicial scrutiny" is now established -- better than
    we had dreamed -- in what will be known as Famous Footnote #27 (p56).
    Laws impinging on the Second Amendment can receive no lower level of
    review than any other "specific enumerated right" such as free speech,
    the guarantee against double jeopardy or the right to counsel (the
    Court's list of examples).

    This is a tremendous win, and overlooked in all initial reviews I've
    seen. Attorney Mike Anthony was the first to spot it, way to go Mike.
    "Strict scrutiny," which many folks sought, is a term without formal
    definition that could prove problematic. I was hoping for a test of some
    sort and got more than I hoped for. By recognizing 2A as a "specific
    enumerated right" the majority ties 2A to the rigid standards and
    precedents of our most cherished rights. That's as strong as there is.
    Very clever indeed.

    Coupled with the Court's destruction of a scrutiny scheme invented by
    Breyer in his dissent, 2A protection is now extra robust (but antis will
    continue their attacks). Seeking to justify the
    total-gun-bans-are-perfectly-OK school of thought (the one B. H. Obama
    supported until this decision came out and he immediately reversed
    himself), Justice Breyer proposed a brand new level of scrutiny, not
    just the familiar strict, intermediate or rational-basis levels (from
    highest to lowest). He invented a new low he calls "interest-balancing
    inquiry." The Court calls it a "judge empowering... freestanding"
    approach wholly without merit or precedent and dismisses it completely
    as a worthless subterfuge. p62

    The decision works hard in many ways to preclude further abuses, to
    establish the primacy of the fundamental rights in the Second Amendment,
    to foreclose future mischief against the rights protected, and to take
    certain policy choices off the table -- like banning handguns for self
    defense at home -- regardless of how bad criminals are or how they do
    their dirty work. Government has other tools to fight crime, and has to
    use those. p64

    Critics and anti-rights advocates are almost gleeful at the Court's
    acceptance of Mr. Heller's request for registration and a license to
    carry his gun in his own home, as long as the terms aren't arbitrary or
    capricious. Agreed this is a weak and unsavory intermediate step with
    potential for abuse, while on the way to greater freedom than D.C.
    currently has. It has a very dangerous potential for abuse that will be
    exploited. Antis will try to imply that registration and licensing are
    more than OK, they are the new standard. This is completely false:

    -- It is not a national requirement, it's a response to a specific

    -- Heller's request applies specifically to his case, at home, in D.C.,
    to be acted upon by D.C. for its residents.

    -- Because RKBA is now recognized as a "specific enumerated right" (a
    phrase you should start using), laws related to it will be subjected to
    stringent standards like those protecting freedom of speech, protection
    against double jeopardy or the right to counsel (among the most
    safeguarded rights we have).

    -- Registration and a license to practice free speech would obviously
    never be permissible, so Mr. Heller's request should hold little sway,
    if any, outside the context of his "prayer" (the Court's word) for
    relief from the onerous disability he suffered as a D.C. resident.
    Anti-rights lawyers and legislators will try to argue otherwise, but the
    ammunition is piled high in the pro-rights arsenal. Our argument is
    compelling, do not yield. To wit again:

    From the Counterintuitive Department: The antis are actually trumpeting
    our side -- People will want less restrictions! Gun bans will fall!
    Gun-free-zones will come under legal attack! And we're promoting their
    side for Pete's sake -- More licensing and registration is coming!
    Assault weapon bans are around the corner! The Court has put another
    nail in the gun-rights coffin! Be careful about turning a win into a
    loss, and giving voice to what the other side wants. Don't be a

    The biggest issue for me perhaps is the fact that, on June 25, the day
    before this decision, not knowing which way it would go, I had this
    right to keep and bear arms intact. I had it in my home, in my environs,
    on my steed. I cherished this right, exercised it every day with the
    keeping and from time to time with the bearing.

    It is a right I consider mine, and my country's, and a sign of my
    status as a free man. And I relish that it's unique in the world -- that
    this country and no other had advanced this right for me, from well
    before my birth to the present day. I do not care to relinquish this
    long-held right of mine on some unknown tomorrow. And I cannot see a
    valid reason even if nine people sitting in a room thousands of miles
    away say I've been mistaken all this time, or never had it in the first
    place, or have to give it up for some reason they can imagine or

    Certainly, the fact that criminals are doing their nefarious work is
    not cause or grounds for me to give up my human and civil rights (yet
    this is the essence of Breyer's dissent).

    "It is a cruel hoax to seek to persuade the American people that the
    Bill of Rights should be watered down in response to rising crime
    rates." --Nicholas Katzenbach.

    And I practically resent, even though I accept the nature of our
    system, that those nine people actually have the power to deny me the
    rights my countrymen and I have held since birth, and have held since
    the birth of this nation. Thank God we dodged this bullet and won. The
    consequences of a loss are too dire to contemplate.


    A trial judge hears a prosecutor's case and remarks, "You're right."
    But then the defense makes his case, and the judge says, "You're right."
    To which the bailiff says, "But your honor, they can't both be right."
    And the judge replies dryly, "You're right too."

    As is so often the case when reading Supreme Court holdings, after
    absorbing and agreeing in large measure with the elegant treatise of the
    majority, the dissent reads well and holds sway on its own grounds. This
    is true in Heller, and the dissent is quite compelling in spots, puts
    forth arguments not well rebutted by the majority, and makes its points
    as you would expect a team of top experts to do. You're left to wonder,
    what if the minority of dissenters is actually the right decision? The
    opposition will do everything in their power to raise that specter of
    course, just as we would if the single vote went the other way.

    The startling realization is that both sides don't really know with
    absolute certainty which argument is correct. What did the Founders and
    the public during the period between the Revolution and the drafting of
    2A really think about gun ownership, possession and use? Hint: Always
    choose freedom if such doubts arise.

    Each side nips at the surviving documents, assembles the evidence their
    own way, sprinkles it with clever scholarly wiggle phrases like, "it
    seems certain that," or "it's unreasonable to assume otherwise," and
    draws their summation. If you could poll the public in 1791 on the key
    questions, maybe you'd end up with a five-to-four split of opinion. The
    record does not inform the debate with crystalline clarity.

    What is clear is that the nation has enjoyed private firearms ownership
    and use for all of its history, and for most of that time, objections
    have been few, peripheral, and have not abandoned those rights. In
    recent times, various government entities have encroached on those
    rights, in niggling or great ways, and we find ourselves today trying to
    decide if we should continue to exercise the rights we have always
    previously enjoyed.

    Should we somehow justify the removal of the hundreds of millions of
    guns Americans presently own? (And do all those people have to get Fifth
    Amendment compensation for their taken property?) By a single vote in
    Heller, we decided no, not at this time. And those who have attempted
    such must reverse their course. They will do so grudgingly at best.

    If Stevens' dissent is actually the correct assessment (a point, like
    the majority's holding, we must admit cannot be determined with absolute
    certainty), and 2A is all about the militia, then what of it? Are we no
    longer the militia armed and ready to serve?

    The fact that we have not had to take up our arms and repel invaders,
    suppress an insurrection, execute our laws or resist tyranny from
    within, are we no longer the impregnable force the founders expected us
    to be when the clarion moment arrived? In the grand scheme, if Stevens'
    dissent controls, we would and should still retain our arms. It might be
    prudent to promote training with a militia purpose in mind, whatever
    that might look like.

    As a practical matter, one facet of being an American is that you
    agree, implicitly, if the ship is sinking you will pick up a bucket and
    bail water. This loyalty is owed in principle to any nation with which
    you align, where you enjoy its fruits, and serve as a thread in its
    fabric -- but especially so here, where it is codified in statute (10
    USC §311 et. seq.). You can abandon ship and run at the slightest wave,
    but this is without honor. This brings disgrace to you and your house.
    In this country at least, aside from principle, it's the law. No part of
    the Heller results touch on this, but its no less true for the

    Breyer's dissent cannot be reviewed so favorably, for he admits you
    "may" have this right, but it can be regulated into oblivion because
    criminals are bad, guns are dangerous, and government has or should have
    the power to deny your rights if it thinks a greater purpose is served.
    It is so off target it's hard to address. His alliance with the
    principles that make American go are missing in action. He spends
    inordinate time invoking stats on how bad criminals are, since he holds
    that this justifies denial of your rights, and firmly believes that a
    gun ban will stop criminals and save lives (despite the evidence to the
    contrary, which he refutes ambitiously but poorly).


    Detailed, step-by-step review of the decision, the dissents, and the
    events leading up to the case will form the heart of my next book, "The
    Heller Case: Supreme Court Gun Cases Volume 2." Leading experts will
    contribute their view of where the Heller case will lead us, and suggest
    a course of action for using this landmark decision in defense of
    liberty. Every gun case the Court has ever heard -- all 96 -- will be
    discussed, along with summaries of all 66 amicus briefs filed in the
    Heller case, and the full text of the case. Hundreds of juicy quotes
    from Heller will be highlighted for easy reading and navigation through
    the thick legal discussions.

    You want to read something truly fine in the meanwhile?

    "Tempus Fugit" explores what Washington, Jefferson and Franklin would
    think of this nation they launched, after they are mysteriously
    transported here through time. Thorough research into their
    personalities, dialog filled with their original quotations, a barroom
    brawl while they're drinking Sam Adams beer, their first encounters with
    cars, WalMart, TV -- and their shock when they see 27 new amendments --
    it's a total page turner, extremely insightful.
    Tempus Fugit by Lawrence Lee Rowe, $20 hardcover --

    Alan Korwin
    Bloomfield Press
    "We publish the gun laws."
    4848 E. Cactus, #505-440
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    "No one could make a greater mistake than he who did nothing
    because he could do only a little."
    --Edmund Burk

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    Founder's Club Member - Moderator longwatch's Avatar
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    Good stuff.

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    Take the high ground as advised:

    Majority Opinion DC v Heller, page 8:
    Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.

    Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
    The 2nd Amendment protects an individual, natural right, separate from any military service, to any bearable arm; it offers the same type of protection as the 1st and 4th Amendments.

    It's your right; insist on it being respected and protected.

    Rights don't terminate when you leave your private property and enter the public square.

    Take the high road and the high ground. Pass it on.

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    What a mess. Personally I'm investing inproperty outside of the US, gold and lead (bullets).

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    I think what is so important is to do exactly as Alan suggests: press the positive aspects of this ruling to the maximum posible.

    There is certainly more to come and some of the opinion is ambiguous DC will try to push the envelope of restriction we MUST press the other way. Eventually we will win but I think it will be many years before we see some of the hardcore holdouts fold.

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    We want to seek injunctive relief per Heller toward Washington DC's complete ban on semi-auto firearms. Per the majority opinion, (Scalia) --

    3. The handgun ban and the trigger-lock requirement (as applied to
    self-defense) violate the Second Amendment. The District’s total ban
    on handgun possession in the home amounts to a prohibition on an
    entire class of “arms” that Americans overwhelmingly choose for the
    lawful purpose of self-defense. Under any of the standards of scrutiny
    the Court has applied to enumerated constitutional rights, this
    prohibition—in the place where the importance of the lawful defense
    of self, family, and property is most acute—would fail constitutional
    Similarly, the requirement that any lawful firearm in the
    home be disassembled or bound by a trigger lock makes it impossible
    for citizens to use arms for the core lawful purpose of self-defense and
    is hence unconstitutional. Because Heller conceded at oral argument
    that the D. C. licensing law is permissible if it is not enforced arbitrarily
    and capriciously, the Court assumes that a license will satisfy
    his prayer for relief and does not address the licensing requirement.

    Assuming he is not disqualified from exercising Second Amendment
    rights, the District must permit Heller to register his handgun and
    must issue him a license to carry it in the home. Pp. 56–64.
    478 F. 3d 370, affirmed.

    -- Nonetheless, Washinton DC's ban on "semi-automatic" arms ban an entire class of firearms commonly used for self defense as outlined in the majority opinion. The ban is arbitrary, capricious, and unconstitutional.

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