Friday, March 14, 2008

John Payton, the NAACP Legal Defense Fund’s president and director-counsel, says “it will be really hot” Tuesday at the U.S. Supreme Court.

So hot, in fact, that he is not certain he will get a seat when crowds line up to hear oral arguments in the gun-control case, District of Columbia v. Dick Heller.

So hot, that court administrators already have agreed to release audiotapes of the seminal Second Amendment case, practically the moment the justices adjourn after what promises to be a lively debate about what the Founding Fathers were thinking more than 200 years ago with respect to the rights of individual Americans to possess firearms.

This will be the first time the high court has reviewed this amendment in 68 years.

“The government did not take up the first [gun control] case since 1939 to issue a ruling that only applies to D.C., but for much more broader effect,” Mr. Payton said.

That the Heller hearing, which will determine the legality of the District’s 1976 handgun ban, will be hot is about the only thing Mr. Payton and two other panelists agreed upon during yesterday’s American Constitutional Society for Law and Policy forum at the National Press Club.

In what could only be described as a “Hardball” preview to Tuesday’s showdown before the Supreme Court, Mr. Peyton, Roger Williams University law professor Carl T. Bogus and David B. Kopel, research director of the Independence Institute, voiced their respective legal opinions.

It was as if the dais were a judicial bench in a moot court before a jury filled mainly with hastily scribbling reporters and supporters on both sides of the gun debate.

The panelists couldn’t even agree on what the word “tyranny” means, or whether it should apply to government regulations on the Second Amendment at any level.

At one point, moderator Dahlia Lithwick, senior editor and legal correspondent for Slate who writes “Supreme Court Dispatches,” jokingly warned Mr. Bogus that she would allow him to answer a question as long as he didn’t use the word tyranny.

“That seems to get everybody excited,” she said.

Ms. Lithwick’s caution and the dispute over the word tyranny might appear petty to those uninitiated in constitutional law.

But the nitpicking illustrates just how contentious the battle about gun rights is and how both sides are invested in the outcome of this rare test case.

One questioner asked the panelists to “take off your polemic hats for a second and put on your analytical hats” to address whether the Second Amendment guarantees individual or collective, militia-related rights to bear arms.

“The individual rights argument is a creative artifact of the 20th century,” said Mr. Kopel, whose Independence Institute is a nonpartisan, nonprofit public research group based in Colorado.

Mr. Bogus posited if individuals have the right to bear arms, that could mean they can own machine guns and weapons of mass destruction. He also presented statistics showing that there were fewer homicides and suicides in the District during the nine years after the ban was enacted, compared to the nine years before its enactment.

If the District’s handgun ban is repealed, how would that affect similar gun control measures in Chicago and other jurisdictions? How will the federal ruling affect the states?

“These are arguments that should be made before legislatures,” Mr. Payton said.

Truth be told, few D.C. residents care about the interpretive differences between conservative legal scholars, who are strict “originalists,” versus liberal legal scholars, who believe the Constitution is an evolving “living document.”

D.C. residents just want safer streets, which is what their elected leaders will contend they provided by enacting a handgun ban to stem the flow of firearms.

Whether the ban produced the desired effect depends on where one stands or sits, if this forum is an indicator. No one went so far as to predict an outcome, but a split among the justices that will likely draw out the litigation was the odds-on favorite.

City lawyers better be prepared to present some style as well as substance on Tuesday.

If passion alone tips the scales, then Mr. Kopel — listed as counsel of record on the green cover of the brief he handed out in favor of repealing the gun ban — would win hands down.

“D.C. law is the freakish edge that goes from gun control to gun prohibition,” he said.

That’s not to say that he’s right. Mr. Payton’s rebuttals did interject a dose of reason, especially when he set the record straight about black code laws that did not allow freedmen the right to own guns in their own homes to protect themselves from murderous Klan posses.

Mr. Payton said the Founding Fathers never envisioned today’s urban areas or gun violence that disproportionately victimize blacks.

Still, when you are arguing for your life — as Mr. Kopel’s clients contend they are because the District “does not allow them to the right to protect themselves in their own homes” — then I’d want the guy whose voice rises and face reddens and visibly gets hot under the collar making his most impassioned pleas on my side.

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