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July 16, 2007

Harvard's View of the Parker Case


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In March of this year, firearms owners everywhere celebrated the Parker decision, in which the United States Court of Appeals for the District of Columbia Circuit declared the D.C. gun law unconstitutional to the extent that the law prohibits all firearms possession. You can read our original analysis here: http://www.jpfo.org/alerts/alert20070312.htm . In May, the full D.C. Court refused to hear the case "en banc", paving the way for a Supreme Court decision.

The Harvard Law Review recently published an article discussing the ramifications of the Parker decision, and what the Supreme Court might do if they hear the case. You can read the article at http://www.law.harvard.edu/alumni/bulletin/2007/summer/feature_3.php or http://tinyurl.com/3artc9.

Despite optimism from pro-gun circles, it doesn't look good. As the article states, "The ruling – in Parker v. District of Columbia – marked the first time a gun law has been found unconstitutional based on the Second Amendment, and it set up a direct conflict among the circuits. Nine federal appeals courts around the nation have adopted the view that the amendment guarantees only the collective right of organized state militias to bear arms, not an individual's right. (A 5th Circuit panel found that individuals have gun rights but upheld the regulation in question, so both sides claim that ruling as a victory.)"

Former District of Columbia Mayor Anthony Williams is quoted as saying, "Let's take [Justice Antonin] Scalia's approach. I think the framers' intent was to see to it that [through] militias, states as sovereign entities had a right to arm themselves. To me, it's not about individuals -- it's about groups."

Harvard Professor Mark Tushnet says, "My gut feeling is that there are not five votes to say the individual-rights position is correct. [Justice Anthony] Kennedy comes from a segment of the Republican Party that is not rabidly pro-gun rights and indeed probably is sympathetic to hunters but not terribly sympathetic to handgun owners. Then the standard liberals will probably say 'collective rights.'"

Even if the Supreme Court does deem firearms ownership as an individual right, we still aren't safe. Says Tushnet, "Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible."

So what's the bottom line according to one of Harvard's Constitutional experts? In a sidebar ( see http://www.law.harvard.edu/alumni/bulletin/2007/summer/feature_3-side1.php or http://tinyurl.com/2x79sc ), Professor Tushnet states, "Gun-control proponents have a significantly stronger case than their adversaries if we treat the question of interpreting the Second Amendment as an ordinary constitutional question and use all the interpretive tools judges ordinarily use."

We encourage our readers to continue to watch the Parker case closely. You can read or download our interview with author and attorney David T. Hardy at http://www.jpfo.org/tta/tta070531.htm , in which we discuss the case at length.


The JPFO Liberty Crew
Protecting you by creating solutions to destroy "gun control"
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