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Interview with David T. Hardy

Interview in MP3 format

Aaron Zelman: 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 this type.

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 Emerson didn’t.

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 scared.

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 firearms?

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 know.

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 that?

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 happens there.

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 quite oppressive?

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 people.

Aaron Zelman: Well, what about the ban on the new manufacturer of machine guns?

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 worried?

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 of that.

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 silent.

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 or its members. Talking to America is a production of

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