In last night’s Republican YouTube debate, a questioner submitted this video of himself shooting what looks like an AK-type semi-automatic assault rifle at a target in the desert. In less than two seconds, self-identified NRA Life Member Jay Fox fires off six rounds. (Check the timing of the video yourself.)

Then, after he slings his rifle over his shoulder, he asks a question to the candidates for President: “What is your opinion of gun control?� After this, someone off-camera tosses him what looks like a 12-gauge pump shotgun. Then he quips, “And don’t worry� – as he pumps the slide, cha-chick – “you can answer how ever you like.�

The crowd roared with laughter. The candidates laughed too.

If yesterday was typical, 32 more people were murdered by guns. Their families weren’t laughing last night. And remember, 32 people were murdered by guns at Virginia Tech just seven months ago. The dangerously mentally ill shooter in Blacksburg fired off about 175 rounds in less than 10 minutes with his two semi-automatic handguns.

Gun violence isn’t funny. Ask Peter Read, father of Mary Read, who died at Virginia Tech. Ask Joe Samaha, father of Reema, who died at Virginia Tech. Ask Lily Habtu, a survivor of the Virginia Tech shootings, and who is still undergoing surgeries for her wounds. Ask any of the families who suffer from gun violence if guns are something to joke about.

I’m sure they would like to ask all of the Presidential candidates the following: “How would you help prevent future tragedies like Virginia Tech? Would you support the NICS Improvement Act to strengthen the Brady criminal background check system, that is currently blocked in the Senate? Will you support other common-sense legislation to strengthen our tragically weak gun laws?”

To them and many others, the candidates’ answers would be taken without any humor at all.
(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.) 

Contrary to gun lobby dogma, there are actually 27 words in the Second Amendment.

The Amendment reads, in full:

“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.�

There is the “Militia purpose� clause, with 13 words. Then there is the “keep and bear Arms� clause, with 14 words. Two clauses and 27 words. This is an uncomfortable fact to those accustomed to reading only half of the Amendment, reciting the last 14 words over and over again as if the first 13 didn’t exist.

The Constitution says they do exist, and so we must read the whole Second Amendment. We must give effect to all of its words – not just the ones we like – to understand what the Amendment means.

In the case [pdf] now on appeal to the US Supreme Court, however, two judges on the DC Circuit Court of Appeals virtually “erased� the 13 words of the “Militia purpose� clause altogether, and made them practically meaningless. This is just one more reason why the Appeals Court decision was clearly erroneous and should be reversed.

You can read why in the second installment of the Brady Center Legal Action Project’s thorough critique of the lower-court opinion titled, Decision By Eraser: How the Parker Court Obliterated Half of the Second Amendment.

What follows in an excerpt, with a link to the full text at the end:

In this second installment, we explain how the Parker panel … botched its textual and historical analysis of the Second Amendment. At every turn of its decision, the Parker panel treated the first thirteen words of the Amendment – containing its militia purpose – as irrelevant surplus, with absolutely no binding effect. In its place, the court assumed that the Second Amendment protects ownership and use of firearms for “private purposes,� even though this is found nowhere in its text or legislative history. We have entitled this piece Decision by Eraser because Parker treats the Constitution as if courts are empowered to selectively erase its words and replace them with unexpressed meanings that support the court’s predilections.

Of course, as Chief Justice John Marshall established back in 1803 in the seminal case of Marbury v. Madison, the Parker panel’s approach is contrary to how courts must interpret the language of our Constitution.

It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible.

The Parker ruling defied that 200-year-old instruction….

The Parker court approached [the Second Amendment] text by “slicing and dicing it.� Instead of looking at the Amendment as a whole to ascertain a meaning that accounts for all of its words in context, the court repeatedly divided the language into subparts and divined a meaning for each subpart taken in isolation. … Only through this artificial methodology could the Parker court avoid the obvious meaning that ties each part of the Amendment together into a unified whole: that the people have the right to keep and bear arms as part of a well regulated militia.

Read the whole installment here [pdf].

(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.)

Last Tuesday, the United States Supreme Court accepted the District of Columbia’s appeal in DC v. Heller, in what could be the most significant Second Amendment case in history. Since then, scores of articles and editorials have discussed the scope and ultimate effect that this case may soon have on America’s gun laws and the people who voted for them.

Much less analysis, however, has met the lower-court decision that sparked this debate in the first place. Two judges on the District of Columbia circuit wrote the decision in Parker v. DC [pdf], the first case in American history to strike down any gun law on Second Amendment grounds.

That decision was clearly erroneous for several reasons. Their opinion was an example of judicial activism at its worst – a point I’ve made many times before – since the Constitution in no way prevents communities from having the gun laws they believe are needed to protect public safety. More specifically, the two-judge majority in Parker ignored longstanding Supreme Court precedent, discounted the express language of the Second Amendment, and substituted its policy preferences for those of the District’s elected representatives.

The case was wrongly decided, and the Brady Center has the analysis to prove it.

For your review this week, I will post the Brady Center Legal Action Project’s point-by point examination of the Parker decision titled, Second Amendment Fantasy: the D.C. Circuit’s Opinion in the Parker Case. To my knowledge, it is the only analysis that provides a detailed refutation of the Parker court’s key claims, and a thorough defense of the current state of Second Amendment law.

Over the course of five installments, “Second Amendment Fantasy� reveals the Parker decision as

[A] tangled web of inconsistency, flawed reasoning, distortion of binding precedent, and misunderstood historical materials, all in service to the court’s single-minded determination to rewrite the Second Amendment….

Put simply, after this searing critique, the Parker opinion falls of its own weight. You can read for yourself, beginning with today’s first installment titled, Mangling Miller: How the Parker Opinion Distorted and Defied Supreme Court Precedent.

An excerpt is presented here, with a link to the full document below.

The 2-1 panel decision by the United States Court of Appeals for the D.C. Circuit in Parker v. District of Columbia made errors of history, errors of law, and errors of logic. But perhaps no error was more fundamental, and troubling, than the court’s misinterpretation – and disregard – of the Supreme Court’s decision in United States v. Miller, 307 U.S. 174 (1939).

The Second Amendment reads: “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.�

Especially on matters of constitutional interpretation, the first order of business for a federal appeals court is to see if the Supreme Court has spoken on the issue. If it has, the next task is to determine what the Supreme Court said, and what it meant.

The Supreme Court’s only extensive discussion of the Amendment is found in its unanimous Miller decision. As Judge Henderson stated in her dissent in Parker, the Miller opinion “unambiguously� set out the Supreme Court’s “understanding of the Second Amendment� – that the “militia clause� of the Second Amendment limits the “right to keep and bear arms.� Miller’s key holding was the Court’s unequivocal statement that:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces [i.e., the “well regulated Militia,�] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Accordingly, the Miller Court read the Second Amendment as an indivisible whole, with only one purpose.

Read the whole installment here [pdf].

(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.)

Last March, the District of Columbia saw judicial activism replace the will of the people.

Today, with news that the US Supreme Court has taken the appeal of DC v. Heller, the Justices can set things right.

Over 30 years ago, the elected representatives on the DC City Council decided to enact a system of strict gun laws to help protect public safety. The people in DC strongly support these laws. The District’s police strongly favor them as well.

The District’s decision has been attacked over and over again by outside interests more concerned with pleasing the gun lobby than respecting the will of the people. Some in Congress have tried multiple times to overrule the District’s preference for strict gun regulations, but have failed each time.

In 2003, however, a wealthy benefactor decided to fund a challenge in Federal court to the District’s strong gun laws. A fellow of the libertarian Cato Institute, his argument lost soundly at trial.

On appeal to the Federal circuit court, however, two judges handed him a “victory.” They decided to ignore almost 70 years of Supreme Court precedent [pdf], over 200 years of American history [pdf], and even the text of the Constitution itself [pdf]. In so doing, they imposed their own policy preferences on the people of DC.

It was a textbook example of judicial activism at its worst.

For over 200 years, communities across America have used their right to vote for gun laws they believe are needed to protect their safety. Yet the Federal appeals court decided to limit that authority with a misguided view of the Constitution. That was wrong.

The people of this country know that sensible gun laws save lives. For example, Hawaiians banned assault weapons and required a permit to purchase handguns. Californians banned assault weapons and required universal background checks for every gun purchase. Coloradans closed the gun show loophole. Illinoisans closed the gun show loophole and required child safety locks sold with each handgun. Michiganders require lost or stolen guns to be reported to the police. New Yorkers banned assault weapons and closed the gun show loophole. Virginians limited handgun purchases to one per month.

All across America, the power of the people to pass laws like these was put at risk by the reasoning in the lower-court decision.

I am hopeful, however, that the Supreme Court will do the right thing.

If the Justices read all 27 words of the Second Amendment and give them meaning; if they respect the right of the people to enact their own strong gun laws, as we have throughout American history; and, if the Justices reject judicial activism and refrain from substituting their own policy preferences for the people’s elected representatives, then the District of Columbia will prevail. And so will the American people.

As a lawyer and a lifelong Republican, I have deep respect for judicial precedent, for American history, and for a close reading of all the words in the Constitution. As one who served as Mayor of Fort Wayne, Indiana for 12 years, I also believe in the importance of local communities being able to pass the laws they believe will help keep them safe.

These are common values we all share, and I am optimistic that the US Supreme Court shares them, as well.

(Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.)

Another prominent member of the nation’s law enforcement community has spoken out for common-sense gun laws.

Col. Gerald Massengill, now retired as a Virginia State Police Superintendent, chaired the Virginia Tech Review Panel that studied the worst mass shooting in modern American history. According to his short bio on the Panel’s Web site, Col. Massengill served the people of Virginia with distinction:

He led the state’s law-enforcement response to the September 11, 2001 attack on the Pentagon in Northern Virginia and the 2002 sniper attacks. Massengill retired in 2003 after 37 years in the Virginia State Police, and came out of retirement in 2005 to serve as interim director of the Department of Game and Inland Fisheries for 18 months.

On Monday, Col. Massengill made news by saying something that really shouldn’t be controversial at all: “The thought … of people losing their firearms is just something that Americans can’t tolerate and quite honestly shouldn’t. But on the other hand, we cannot allow the proliferation of guns to continue like they’re continuing.â€�

As Chair of the Virginia Tech Review Panel, Col. Massengill saw first-hand the effects of the damage done by a deranged shooter seven months ago. “I guess I’m one of those people who sees the devastation that firearms bring,â€� he said in one report. “There’s got to be reasonable checks and balances out there.â€�

Col. Massengill describes himself as “a strong supporter of Second Amendment rights,� someone who isn’t in favor of gun bans or “of people losing their firearms.� So what are the reasonable checks and balances on responsible gun ownership that he and the Review Panel proposed [pdf document] to help prevent another tragic shooting?

• All states should report information necessary to conduct federal background checks on gun purchases.

• Virginia should require background checks for all firearms sales, including those at gun shows.

• The Virginia General Assembly should adopt legislation in the 2008 session clearly establishing the right of every institution of higher education in the Commonwealth to regulate the possession of firearms on campus if it so desires.

The Brady Campaign is proud to stand with America’s law enforcement representatives like Col. Massengill who call for such basic requirements. None of these recommendations should be controversial. But even now – seven months after the Virginia Tech shooter murdered 32 people with guns he should never have been allowed to buy – the NICS Improvement Act of 2007 still languishes in the U.S. Senate. Why?

This bill will give states incentives to supply records of the dangerously mentally ill to the National Instant Background Check System. Senate leaders from both parties strongly support passage of the bill, including Virginia Sen. John Warner, and New York Sen. Charles Schumer. There is no reason this bill should be stalled another day.

We should urge Congress to make America’s gun laws stronger. The Senate should pass the NICS Improvement Act as soon as possible, and send it to President Bush for his signature.