This is talking to America. I’m your host Aaron Zelman.
Our special guest today is David T. Hardy, attorney, author, and
scholar. Today we’re going to be talking about a very important
court decision. It’s called the Parker Case. As the decision
stands now, a particular court has said that you have an individual
right to own a firearm versus the story that the gun control folks
have put out about it’s a collective right. So, David, let
me start by asking you how did the Parker lawsuit come to be?
David Hardy: Well, it was brought by a couple of attorneys, Bob [phonetic]
Leevy and, Alan [phonetic] Gurham who thought they could challenge
the District of Columbia law which prohibits handguns and requires
long arms to be disassembled or trigger locked. And they essentially
decided to bring the lawsuit in the District of Columbia federal
court and to challenge it in that venue.
Aaron Zelman: Why would you suggest that they picked the District of Columbia?
David Hardy: I think that was a very, very intelligent choice. There were
several reasons. One is that when they went to appeal from there
to the circuit court of appeals, the next rung up, the DC Circuit
was one of relatively few federal circuits that had no prior decisions
on the Second Amendment. Most circuits if you went up, what would
happen would be, no matter how convincing your argument is, they’d
go back to well, we previously ruled that the Second Amendment is
not an individual right and we’re going to stand by that precedent
and you have a convincing argument, but we’re bound by our
prior decision so go away. DC Circuit that wasn’t true. They
didn’t have a decision on the Second Amendment being an individual
right one way or another.
The other thing is that in most - most gun laws, if you want to
challenge them, are at the state level. With the state it’s
a bit difficult to explain, but it’s the incorporation issue.
The Second Amendment, like most of the Federal Bill of Rights, actually
was adopted as part of the Federal Constitution and the Supreme
Court over 100 years ago ruled that the Federal Bill of Rights only
affects congress, only affects the federal government. If you want
to have an individual right against your state, you ought to put
it in your state constitution.
That changed under the Fourteenth Amendment 1868 and it’s
a very complex process, but basically the Supreme Court started
saying that some of the individual - some of the rights under the
Federal Bill of Rights actually do apply against the states, but
it’s never got around to saying the Second Amendment does.
So if you’re challenging a state law, you have that problem,
that the court can also brush you off by saying well, the Supreme
Court has never said the Second Amendment applies to state so go
away. If you challenge the District of Columbia law, you don’t
have that problem because DC is entirely a federal creation; it’s
not a state.
The third reason why it was such a good pick was that DC has such
an absolute law. I mean, you can debate, whether this law or that
law is a reasonable regulation of a right. It’s pretty hard
in the case of DC to argue that because it totally bans ownership
of handguns and requires that long arms be kept, um, either disassembled
or trigger locked so they’re useless for self defense. It’s
very, very difficult to argue that the DC law is anything like a
reasonable regulation. It’s an outright ban. So for all those
three reasons I think DC was an excellent target for a lawsuit of
Aaron Zelman: Well, okay, why don’t we talk about then what the DC
Circuit Court of Appeals ruled.
David Hardy: Well, the DC Circuit essentially took the case and ruled that
in terms stronger than the Emerson Decision, which came from the
Fifth Circuit some years ago, ruled that the Second Amendment is
an individual right, that it does pertain to individual citizens,
that it applies to DC, and that the DC law is unconstitutional.
They made some reference to the fact that maybe a reasonable regulation
is allowed, but then said, you know, there’s no way you can
class this as reasonable regulation. It was I think a stunning opinion.
It went farther than Emerson. It actually struck down the law, which
The, Emerson Case essentially - out of the Fifth Circuit, which
has Texas and Louisiana, had said that this is an individual right,
but then it said that the gun law, the issue, the federal ban on
domestic violence, can - now I forget whether it was restraining
orders or a conviction, I think restraining orders - said well,
this is about as far as you can go and still call it a reasonable
regulation of a right, but we’re going to allow it. So the
Emerson Case of the Fifth Circuit upheld the gun law in question,
even though it said it wasn’t that the Second Amendment was
an individual right. Well, the DC Circuit went farther. Yeah, it’s
an individual right and we’re striking down this law. For
that reason I think Parker is a stunning decision and is a stunning
ruling in favor of gun owners.
Aaron Zelman: I’m wondering what kind of feedback are you getting
from other attorneys and people in the pro-gun movement concerning
the Parker Case?
David Hardy: For the most part, everyone everyone is happy to have Parker.
The only division is between those who think - who rejoice that
it may go to the Supreme Court and those who worry that it may go
to the Supreme Court and those who do both, that sort of thing.
I mean, any time you’re talking about an appeal, you’re
rolling the dice and you’re never quite sure how the dice
are going to turn up. So that’s the division there, do you
worry about it or do you rejoice about it?
Aaron Zelman: Well, do you think the DC Circuit Court is going to appeal
to the Supreme Court, filing a petition for ... ?
David Hardy: Yeah, it wouldn’t be the DC, but the - the DC government
itself, the defendant. Will they? I would have said almost certainly.
Now I don’t know. There’s some articles in the Washington
Post where both The Post and the DC government it sounds like they’re
scared, worried about the outcome, as they should be. And there
is an outside chance that they wouldn’t take the appeal. I
think it’s only an outside chance because they’ve got
so much invested in it emotionally and otherwise to just roll over
and die on it. They would have - first of all, they’d appear
in the eyes of the world as losers who were scared of taking it
to the Supreme Court because they knew they’d lose, which
would be the truth. Uh, secondly, they’d lose their precious
gun law, which while it hasn’t done any good for anyone in
their eyes, you know, they have an emotional investment.
So the other thing from the general anti-gun side is that DC Circuit
isn’t just a circuit court of appeals. You have jurisdiction
to sue the federal government in DC Circuit any time you want, even
though the harm to you occurred in California or Nevada or Alaska.
You can sue where you were hurt or you can sue the federal government
in DC. It’s if the federal government lives in DC. You can
always go to a person and sue them where they live. If you let this
precedent stand, you’ve got precedent in DC that it’s
an individual right and every single federal gun law is wide open
to challenge in that court. So I tend to think they’re going
to take it up, that they’re going to move, in the Supreme
Court for ... I can’t guarantee it. They may chicken out at
the last minute, you might say.
Aaron Zelman: Okay. Well, would they be chickening out because of the points
that you’ve made here?
David Hardy: Yeah. That was-
Aaron Zelman: Those are-
David Hardy: - that - that was just -
Aaron Zelman: ...
David Hardy: -what The Post was saying.
Aaron Zelman: Yeah.
David Hardy: Uh, complaining that oh, it’s a conservative court now
and maybe they don’t want to take it up. No, it’s no
more conservative than it was beforehand. It’s just that you’re
Aaron Zelman: Well, while you’re on that point about a conservative
court, correct me if I’m wrong, but this is the court that
thinks the Patriot Act is okay -
David Hardy: Mm-hmm.
Aaron Zelman: -and this is the court that had the eminent domain ruling,
which was horrendous-
David Hardy: Mm-hmm.
Aaron Zelman: -and this is the court that doesn’t seem to have a
problem with the warrantless tapping of peoples’ phones. So
why would they be enthused about individuals having a right to own
David Hardy: Well, I don’t know if Roberts and [phonetic] Alito were
there for all of those rulings, but, you know, it’s hard to
pretend there’s any great consistency in the constitution
and its interpretation by the court, but I think that clearly some
of the - I think we’ve got four votes there. The question
is do we have a fifth? I mean, there’s no question Clarence
Thomas is very pro Second Amendment. [phonetic] Alito has published
a book in which he mentions the Second Amendment very favorably.
And I think Roberts, from his confirmation testimony, seems favorable
to the Second Amendment and there’s some word that [phonetic]
Alito is. So that I count as four. Do we have a fifth? I don’t
But, you know, the Second Amendment is something that crosses a
great many divides where you can have persons who are very much
on the liberal left or the conservative right and both forms of
the conservative right, the libertarian right and the rules right,
as I call them, all supporting the Second Amendment.
Aaron Zelman: In the small print of the Parker Decision they made it pretty
clear, quite clear that, it’s an individual right, but government
has a right to control and regulate firearms. Am I correct about
David Hardy: Yeah.
Aaron Zelman: Now, we take this to the Supreme Court and suppose they agree
with the Parker Decision. Sure, you have a right, but government
can control it. And I can just see governments throughout America,
especially in California or New York, Chicago, DC, saying well,
sure, you’ve got a right, but here’s some reasonable
controls on it. And then they get done being reasonable, they’ll
have turned a right into a mere privilege.
David Hardy: Well-
Aaron Zelman: And I wonder if people are re - really thinking about this.
David Hardy: -I mean-
Aaron Zelman: Maybe I’m - maybe I’m the odd duck here.
David Hardy: No, no. No. Any Supreme Court ruling is just going to be the
start of the fight. I mean, if you get this is an individual right,
okay, now we start the legal battle. If you look at the battle for,
Civil Rights in the courts, I mean, that starts in at the highest
levels in the 1950s, gets off to a very slow start, several decisions,
you finally build up to Brown v School Board in the early ‘60s.
Then you have a whole set of battles in the circuit courts throughout
the late ‘60s, early ‘70s. Uh, same with the Warrant
Court, change-around in, uh, rights of criminal suspects. You know,
that was a process that took about 10 or 15 years to evolve.
It’d be the same here. You start out with a Supreme Court
ruling and then you get down to the actual fighting over what in
the heck does this mean? It’ll be 10 or 20 years easily in
that process. And, yes, there will be arguments this is reasonable,
that is - is reasonable and those will be fought out one at a time
and probably for the first five years of it the Supreme Court won’t
touch it. It’ll let everybody else fight it out so it doesn’t
have to stick its neck out. Then it would take a case or two and
say no, that’s not okay. Yes, this is okay. I mean, what we’re
really looking for would be something like the treatment of First
Amendment rights, freedom of speech, where yes, you can put some
regulations on it; however, they are very few and far between, they
are highly suspect, you better have an extremely good reason why
you needed it, and it better be as narrow as you possibly could
use in order to meet that need.
So, you know, we could come off with something like that or - or
we could come off with the whole - what we’ve seen in a number
of areas like economic activity where reasonable regulation amounts
to whatever the legislature dang well pleases. But, you know, that’s
the battle. If we win the Supreme Courts in Parker, that’ll
be the battle of the next 10, 15, 20 years.
Aaron Zelman: Okay. Well, that’s good that gun owners understand
15 or 20 years before nirvana comes upon us.
David Hardy: Yes.
Aaron Zelman: So, even after that I suppose they could still say that you
could - or the government can still have some form of regulation
over firearms. We’ll have to wait 15 or 20 years to see what
David Hardy: Mm-hmm.
Aaron Zelman: Okay. Well, how long do these folks have to approach the
court and then when do you think the court will likely decide whether
to take the case?
David Hardy: Uh, they have 90 days to file a petition which is the technical
way you take an appeal to the Supreme Court in this setting. So
you have 90 days to file the petition. I forget exactly when Parker
came down, but I guess we’ve got about another 60 days. So
that’d probably put them into June or July. And, need all
that time, by the way, since any filings with the Supreme Court
have to be printed, I mean, at a printing establishment and have
to be absolutely purchase, no typos allowed, that sort of thing.
So it takes all that time. But let’s say they have to file
in June or July. Then by then the Supreme Court will be out session.
They take a summer break up until the first Monday in October. So
they’ll file in June or July. If there’s opposition,
it’ll be filed over the summer. And then, finally, the Supreme
Court will come back in the first Monday in October and we’ll
probably hear about it shortly thereafter.
Aaron Zelman: Okay. Suppose the Supreme Court decides no to take the case.
Where do we go from there?
David Hardy: Start picking out federal gun laws that are particularly oppressive
and file a challenge to them in DC.
Aaron Zelman: What particular federal gun control laws do you think are
David Hardy: We’d have to find the most extreme cases. Maybe the
domestic violence restraining order, take another shot of that,
although Emerson did uphold it. Things like that. You know, you’re
looking for as close as you can come to something that absolutely
bans a gun or gun type and applies preferably to a broad swath of
Aaron Zelman: Well, what about the ban on the new manufacturer of machine
David Hardy: You wouldn’t want that to be the first challenge. I
mean, you’re looking at getting a total and gradually expanding
it. If I was on the court and you challenged a new manufacturer
of machine guns, you’d get my vote, but I’m not like
most judges. There might be a tendency to go up there well, we are
talking about machine guns. Surely that’s a reasonable regulation.
You’re looking for some corner where you can get another ruling
that nah, there’s no way in heck this can be classed as reasonable.
Aaron Zelman: Okay. This is talking to America. Our guest
today is David T. Hardy, author and scholar. David has produced
many books and films, including his latest, “In Search of
the Second Amendment”. And I’m your host, Aaron Zelman.
David, all that we’ve talked about now, what is your best
guess as to who would win and if they do?
David Hardy: I’d say I think we win, the pro-gun side wins. I can’t
tell you exactly who. It is, by no means, a sure thing, but I think
we’ve got four votes in our favor and all we have to do is
pick up one more to get five votes, so majority. And I think there’s
a fifth vote out there somewhere so I think we win.
Aaron Zelman: Who would you speculate is the fifth vote?
David Hardy: Mm, Kennedy’s the traditional swing. I can’t tell
you, you that he’s pro Second Amendment. I’ve been doing
some looking into the court and I can’t find any specific
indications as to how he thinks. Curiously enough, Ruth [phonetic]
Begger-Ginsburg of the liberal wing has had at least one ruling
where she mentions the Second Amendment favorably in passing. I
forget exactly what it was, but it was just something that brought
it in with other individual rights. That could just be coincidence.
Aaron Zelman: Was there was a decision dealing with the interpretation
of the people?
David Hardy: Yeah, I believe there was.
Aaron Zelman: Could that have been it?
David Hardy: That could have been. Yeah.
Aaron Zelman: Okay.
David Hardy: You know, that could be just coincidental drafting and doesn’t
reflect her real feelings or it might reflect her real choice.
Aaron Zelman: What do you think the other side is thinking about right
now, you know, this Sara Brady crowd? You do think they’re
David Hardy: I think they’re -
Aaron Zelman: Should they be worried?
David Hardy: - they’re scared out of their minds and they should
be. I mean, if we make this breakthrough, it’s by - as I’ve
said, by no means the end of the issue. It just starts into the
battle of reasonable regulation, but from their standpoint it’ll
be a big morale blow. I mean, suddenly it’s recognized that
they’re attacking a constitutional right and they have to
fall back on well, we’re just putting a few reasonable regulations
on it. But still there’s - the morale change in but you’re
attacking a constitutional right, people. They would be fearful
Aaron Zelman: I know several people who are, pro gun control and after
the Parker Decision came out, I thought it’d be curious to
see what they have to say and most interesting and they were just
David Hardy: Yeah.
Aaron Zelman: So I think you’re right. I mean, they just got kicked
in the guts, so to speak.
David Hardy: Mm-hmm. Yeah, they’re scared and, like I say, demoralized.
Aaron Zelman: What, should our size be worried about though?
David Hardy: Well, there’s always the worry of losing. Like I say,
I’m pretty sure four votes, but if all five remaining go against
us, we could lose.
Aaron Zelman: If we lose, then what?
David Hardy: Well, you know, that’s the funny part. If we lose as
a practical matter, it doesn’t hurt us a great deal. If the
other side loses, it hurts them a great deal. If it hurts - if we
lose, well, to tell you the truth, how many politicians out there
apart from Ron Paul probably refuse to vote for gun control because
they think it’s unconstitutional even though they really like
the idea. Okay?
Aaron Zelman: Can you run that by me again?
David Hardy: How many politicians out there think gun control is a good
idea and they’d like to vote for it, but they’re not
going to vote for it because they think it’s unconstitutional?
Aaron Zelman: I don’t know of any who would have that kind of an
approach. Do you think that’s what Ron Paul is thinking about?
David Hardy: Well, yeah, actually, I think he probably isn’t an exception
either. I think he probably thinks gun control is stupid and so
he wouldn’t vote for it even if it was constitutional. But
what I’m saying is the number of politicians who vote against
it based purely upon their view of The Constitution is probably
zero. So from our standpoint, even if we lose in the Supreme Court,
it doesn’t really change the equation much. I mean, politicians
will either vote our way out of a judgement that gun laws or stupid
or they figure what would happen among the voters or they won’t.
And whether it’s constitutional or unconstitutional won’t
change that calculus any. So as a practical matter I don’t
know that it actually changes. Obviously winning it would help us,
but losing it I don’t know if it changes the calculus a great
deal on whether gun laws get passed or not.
Aaron Zelman: If we were to lose, would it simply encourage the Brady group?
David Hardy: Yeah, it would encourage them.
Aaron Zelman: And judges who are sympathetic to them?
David Hardy: Yeah, they’d feel somewhat freer to move for gun control
and that sort of thing, but I don’t think it would change
the picture in the legislature any. So, yeah, it would be a morale
blow to us and a help to them.
Aaron Zelman: Speaking of them, the Brady group, can we just spend a moment
helping people understand the strange position they take that got
ownership as a collective right so people better understand-
David Hardy: Mm-hmm.
Aaron Zelman: - the mentality and thinking of the Brady crowd?
David Hardy: Oh, yeah. It’s hard to explain reasonably, but the traditional
argument again - you might say against the Second Amendment goes
like this. The first part of the Second Amendment talks about well-regulated
militia. Therefore, that must be all that it’s concerned with.
Therefore, this right of the people to keep and bear arms should
only be understood as allowing a state to have a well-regulated
militia, which in the modern day means the National Guard. So this
is all about allowing the states to have National Guard type units
and that’s all that it is and it doesn’t have anything
to do with whether you can own a handgun in the District of Columbia
as an individual. That would be just about the core of the collective
right thing. Uh, lately, uh, Professor [phonetic] Sal Cornellis
tried to involve a - what you would call a sophisticated collective
rights view, which is more like the Second Amendment guarantees
an individual right to own guns; however, it only applies to you
if you are in some way connected to a well regulated militia, which
achieves the same effect.
Aaron Zelman: Well, they need to look at an old dictionary from many, many
years ago where the term regulated talks about well drilled and
prepared and has nothing to do with government control.
David Hardy: Oh, yeah. I found reference to it in the 1600s, well regulated
troops meaning, you know - uh, you know, troops were properly disciplined
and knew how to do what they had to do.
Aaron Zelman: Well, you and I had a chance to work on a project together.
It’s a documentary film called “The Gang”. You
were the scriptwriter and I was the guy who simply paid the bills.
No. I was known as the producer.
David Hardy: Mm-hmm.
Aaron Zelman: But the purpose of “The Gang” is to put the 68
Gun Control Act and the BATFE on trial, expose their nasty past,
and try to encourage American to come to the conclusion that this
is an agency that has outlived its usefulness, if it ever was useful.
And I’m just wondering how is “The Gang” going
to work with what’s happening with Parker, whatever way the
Parker Decision goes, whatever the Supreme Court rules or doesn’t
rule, and how can people use “The Gang” to help many
other people, including gun owners, understand why gun control in
America must be abolished?
David Hardy: I think - “The Gang” is more useful in the PR
realm than in the courtroom. Well - obviously, we can’t get
the Supreme Court to sit down and watch it. But in terms of achieving
public relations, it can be important. I mean, the - the Civil Rights
Movement in the south owed a great deal of things to like Bill O’Connor
- now I forget which - attacking Civil Rights protesters with attack
dogs and water hoses because it brought the issue to everybody’s
attention and showed who were the real oppressors. And that started
changing the public opinion, which in turn changed the angle the
courts were taking on it from, the original process, which was you’ve
got to desegregate, but, take your time about it, you know, all
- whatever - whatever the phrases. All due speed and all due - not
forgotten, but it was something to let some leeway. That sort of
response played a role in eventually turning the court around to
decide that all due deliberation meant no, you’re going to
end it now. And I think that’s where “The Gang”
could come in terms of changing the public opinion, which in turn
changes the environment in which the court will be issuing rulings
in the future.
Aaron Zelman: So we can say that “The Gang” would be useful
in winning hearts and minds?
David Hardy: Exactly.
Aaron Zelman: And that’s the way it should be used. I mean, that
was the purpose of producing the film and that was the structure
of it. Well, we just have to remind people if they want to change
heart and minds and get rid of gun control, they’ll have to
watch “The Gang”. David, we’re at the end of our
program and I want to thank you very much for coming on today. This
has been Talking to America. Our guest has been David Hardy. I’m
your host, Aaron Zelman. And please remember if you won’t
defend your rights, don’t complain when you lose them.
MAN: Opinions expressed on this program do
not necessarily reflect those of JPFO.org or its members. Talking
to America is a production of JPFO.org.