High profile shootings in the USA……
Saugus High School, Santa Clarita, California, November 14, 2019: 2 students killed, 3 wounded by 16 year old student who shot himself immediately afterward and later died…
Long Beach, California, October 29, 2019: 3 people killed, 9 wounded…
Elkmont, Alabama, September 2, 2019: Father, step-mother, 6 year-old step-brother, 5 year old step-sister, and 6 month old step-brother shot and killed by 14 year-old boy…
Midland and Odessa Texas, August 31, 2019: 7 people killed, 24 wounded…
Dayton, Ohio, August 4, 2019: 9 people killed, 27 injured…
El Paso Texas, August 3, 2019: 22 people killed, at least 24 other injured…
Gilroy, California, July 28, 2019: 3 people killed, 13 injured…
Municipal Center, Virginia Beach, Virginia, May 31, 2019: 12 people killed, 4 wounded…
STEM Charter School, Highlands Ranch, Colorado, May 7, 2019: 1 student killed, 8 students wounded…
University of North Carolina, Charlotte, April 30, 2019: 2 students killed, 4 students wounded…
Baltimore, Maryland neighborhood cookout, April 29, 2019: 1 person killed, at least 7 people wounded…
April 27, 2019, Chabad Synagogue, Poway, California: 1 woman killed, 3 people, including 8 year old girl, wounded…
February 15, 2019, Henry Pratt Manufacturing Plant, Aurora, Illinois: 5 employees killed, 5 police officers wounded…
January 26, 2019, near Baton Rouge, Louisiana: 5 people killed, including gunman’s girlfriend, girlfriend’s father and brother, and gunman’s parents…
January 23, 2019, SunTrust Bank, Sebring, Florida: 5 women killed…
January 10, 2019, Davis, California: 22 year old female police officer ambushed and killed during her first month on the job while investigating minor traffic accident…
Chicago Mercy Hospital, November 20, 2018: Emergency physician, pharmacy resident, and police officer killed by physician’s ex-boyfriend…
Thousand Oaks, California, November 7, 2018: 12 people killed, 22 injured…
Pittsburgh, Pennsylvania, October 27, 2018: 11 people killed, 6 wounded at Jewish synagogue by anti-Semitic gunman…
Bakersfield, California, September 13, 2018: 5 people killed, including shooter’s ex-wife…
Cincinnati, Ohio, Fountain Square Office Building, September 6, 2018: 3 people killed, 2 wounded…
Jacksonville, Florida Video Football Gaming Tournament, August 26, 2018: 2 people killed, 9 wounded…
Capital Gazette newspaper, Annapolis, Maryland, June 28, 2018: 5 people killed, including editor, 3 journalists, and another staff member…
Santa Fe High School, Santa Fe, Texas, May 18, 2018: 8 students and 2 teachers killed, 13 wounded…
Nashville, Tennessee, April 22, 2018: 4 people killed, 2 wounded…
Pathway Home for Veterans with PTSD, Yountville, California, March 9, 2018: 3 female staff killed by former client…
Marjory Stoneman Douglas High School in Parkland, Florida, February 14, 2018: 14 students and 3 staff killed, 17 wounded by former student…
Marshall County High School, Benton, Kentucky, January 23, 2018: 2 students killed, 12 wounded…
Since 1968, more U.S. civilians have been killed by guns than all the U.S. soldiers killed by any means in all the wars in which the United States has ever been involved…
On an average day in 2017, 109 people were killed by guns in the United States, and at least 2-3 times this many people suffered non-fatal gunshot wounds…
In 2017, a total of 39,773 people were killed by guns in the United States, and at least 2-3 times this many people suffered non-fatal gunshot wounds…
Highlands Ranch, Colorado, December 31, 2017: 1 police officer killed, 4 other officers and 2 civilians wounded…
Tehama County, California, November 14, 2017: 5 people killed, 12 wounded, including 6 children…
Sutherland Springs, Texas, November 5, 2017: 26 people killed, 20 wounded…
Las Vegas, Nevada, October 1, 2017: 58 people killed, 422 wounded…
Freeman High School, Rockford, Washington, September 13, 2017: 1 student killed, 3 students wounded…
New York City Bronx-Lebanon Hospital, June 30, 2017: 1 person killed, 5 wounded…
Little Rock, Arkansas, June 30, 2017: 25 people wounded…
Alexandria, Virginia baseball field, June 14, 2017: 4 people wounded…
San Francisco UPS warehouse, June 14, 2017: 3 people killed, 2 wounded…
Hollywood/Fort Lauderdale Airport, Florida, January 6, 2017: 5 people killed, 6 wounded…
Since 1968, more U.S. civilians have been killed by guns than all the U.S. soldiers killed by any means in all the wars in which the United States has ever been involved….
On an average day in 2016, 106 people were killed by guns in the United States of America, and approximately, 232 suffered non-fatal gunshot wounds….
In 2016, a total of 38, 658 people were killed by guns in the United States of America….
Since 1968, more U.S. civilians have been killed by guns than all the U.S. soldiers killed in all the wars in which the United States has ever been involved…
Townville, South Carolina, September 28, 2016: 2 people killed, including shooter’s father and 6 year boy, 2 others wounded by 14 year old boy…
Burlington, Washington, September 28, 2016: 5 people killed at department store makeup counter…
Fort Myers, Florida, July 25, 2016, 2 people killed: 17 wounded…
Sniper Attacks, Dallas, Texas, July 7, 2016: 5 people killed, 7 wounded…
Pulse Nightclub, Orlando, Florida, June 12, 2016: 49 people killed, 58 wounded…
Excel Industries, Hesston, Kansas, February 25, 2016, 3 people killed, 14 wounded…
Kalamazoo, Michigan, February 20, 2016, 6 killed, 2 people wounded…
On an average day in the United States in 2015, 99 people killed by guns, 232 wounded….
Since 1968, more U.S. civilians have been killed by guns than all the U.S. soldiers killed in all the wars in which the United States has ever been involved…
Inland Regional Center, San Bernardino, California, December 2, 2015, 14 people killed, 21 wounded…
Planned Parenthood, Colorado Springs, November 27, 2015, 3 people killed, 9 wounded…
Umpqua Community College, Roseburg, Oregon, October 1, 2015, 9 people killed, 9 wounded…
Marine Corps Recruitment Center, Chattanooga, Tennessee, July 16, 2015, 5 people killed, 2 wounded…
Emanuel AME Church, Charleston, South Carolina, June 17, 2015, 9 people killed, 1 wounded…
On an average day in the United States in 2014, 92 people killed by guns, 222 wounded…
Since 1968, more U.S. civilians have been killed by guns than all the U.S. soldiers killed in all the wars in which the United States has ever been involved…
Marysville-Pilchuck High School, Marysville, Washington, October 24, 2014, 5 people killed, 1 wounded…
University of California, Santa Barbara student mass murder, Isla Vista, California, May 23, 2014, 6 people killed, 13 wounded…
Fort Hood, Texas, April 3, 2014, 3 people killed, 12 wounded…
Rancheria Tribal Office and Community Center, Alturas, California, February 20, 2014, 4 people killed, 2 wounded…
On an average day in the United States in 2013, 92 people killed by guns, 231 wounded…
Since 1968, more U.S. civilians have been killed by guns than all the U.S. soldiers killed in all the wars in which the United States has ever been involved…
Washington Navy Yard, Washington D.C., September 16, 2013, 12 killed, 8 wounded…
Hialeah Apartment Building, Hialea, Florida, July 26, 2013, 7 killed…
Santa Monica College, Santa Monica, California, June 7, 2013, 6 killed, 3 wounded…
Pinewood Village Apartment, Federal Way, Washington, April 21, 2013, 5 killed…
On an average day in the United States, 92 killed, over 180 wounded…
In an average year in the United States, over 30,000 killed, over 60,000 wounded…
Sandy Hook Elementary School, Newtown, Connecticut, December 14, 2012, 20 children and 7 adults killed, 2 wounded…
Accent Signage Systems, Minneapolis, Minnesota, September 27, 2012, 7 killed, 1 wounded…
Sikh Temple, Oak Creek, Wisconsin, August 5, 2012, 7 killed, 3 wounded…
Century Movie Theater, Aurora, Colorado, July 20, 2012, 12 killed, 58 wounded…
Café Racer, Seattle, Washington, May 20, 2012, 6 killed, 1 wounded…
Oikos University, Oakland, California, April 2, 2012, 7 killed, 3 wounded…
"Pious condolences will no longer suffice…"
"Quarter measures and half measures will no longer suffice…"
"The time has now come that we must enact stringent gun control legislation…"
"…gun control legislation comparable to the legislation in force in virtually every civilized country in the world."

Senator Thomas Dodd, June 11, 1968

"Pious condolences will no longer suffice…"
"Quarter measures and half measures will no longer suffice…"
"The time has now come that we must enact stringent gun control legislation…"
"…gun control legislation comparable to the legislation in force in virtually every civilized country in the world."

Senator Thomas Dodd, June 11, 1968

A Message from the President of Americans Against Gun Violence

 

During an interview on the PBS News Hour in 1991, the late Supreme Court Chief Justice called the gun lobby’s claim that the Second Amendment was intended to confer an individual right to own guns “one of the greatest pieces of fraud – I repeat the word, ‘fraud’ – on the American people by special interest groups that I have ever seen in my lifetime.”[1]

On December 2, the Supreme Court heard oral arguments in a Second Amendment case for the first time since the 2008 Heller decision,[2] in which a narrow 5-4 majority of the Court endorsed the gun lobby’s fraudulent misrepresentation of the Second Amendment in overturning Washington DC’s partial handgun ban; and the 2010 McDonald decision,[3] in which the same five member majority ruled that Heller applied to the states as well as to the District of Columbia. During oral arguments in the case of the New York State Rifle and Pistol Association v. New York City on December 2, the fraud was compounded, and not just by the attorneys for the gun lobby. Americans Against Gun Violence was the only gun violence prevention organization in the entire country to file an amicus brief in this case calling on the Court to end the fraud.

In their case against New York City, the New York State Rifle and Pistol Association (NYRPA) claimed that the City’s ban on transporting handguns anywhere other than to and from one of seven city-approved target ranges violated the Second Amendment. In making a Second Amendment argument, the NYRPA depended entirely on the Court’s interpretation of the Amendment in the Heller decision. There was no constitutional right, Second Amendment or otherwise, for anyone to own or carry a handgun outside of service in a well regulated militia prior to the rogue 2008 Heller decision. On the contrary, the Supreme Court had stated in four previous cases[4] that the Second Amendment did not confer an individual right to own a gun, and lower courts had affirmed this interpretation in scores of other cases.

A district court judge summarily dismissed the NYRPA case, and the U.S. Court of Appeals for the 2nd Circuit unanimously upheld the dismissal. The NYRPA then appealed the case to the Supreme Court. Ordinarily, the Supreme Court would not hear a case under such circumstances, but with Trump nominees Gorsuch and Kavanaugh now on the bench, the Court agreed in late January to review the case. Court observers familiar with the case feared that Gorsuch, Kavanaugh, and the other three members of the Heller majority who were still on the Court – Justices Roberts, Alito, and Thomas – intended to use this case to expand the constitutional right to keep a handgun in the home that the Court had created in the Heller decision.

Soon after I learned that the Supreme Court had agreed to hear the NYRPA v. NYC case, I proposed to our Americans Against Gun Violence Board of Directors that we file an amicus (friend of the court) brief in this case in which we would both support NYC’s handgun laws and also argue that rather than expanding the right created in Heller, the Court should take the opportunity of this case to overturn the Heller decision. The Board agreed, and I began looking for an attorney to help us write and file the brief. Specifically, we needed to find an attorney who was a member of the Supreme Court Bar, who agreed with our point of view, and ideally, who would help us on a pro bono basis. The deadline to file an amicus brief wasn’t until August 12, and I began our search for an attorney in early February, so I figured we had plenty of time.

I contacted the lead attorney on the case in the New York City attorney’s office and discussed with him our planned amicus brief. He said he would let me know if any attorneys contacted his office with an offer to help in filing briefs. He agreed with me that the Heller decision needed to be overturned at some point, but he said that given the current composition of the Supreme Court, New York City didn’t plan to argue in this case that Heller was wrongly decided. When I didn’t hear from the New York City Attorney’s office after a few weeks, I called back and found out that New York planned to change its handgun laws in an effort to make the case moot. I expressed my opinion to the lead attorney that this strategy amounted to making a deal with the devil that they would probably later regret it.

I talked with several leaders of other major gun violence prevention organizations, but no other organization was interested in collaborating with us on an amicus brief. I contacted several major law schools that had Supreme Court clinics, but they were all either not interested or already working with other organizations on the case. I was referred to some major law firms in San Francisco, but they were also already working with the Giffords Law Center, formerly the Law Center to Prevent Gun Violence, that had been founded after a mass shooting at a San Francisco law firm in 1993. I talked with several law professors who had published articles on the Second Amendment or who had submitted amicus briefs in the original Heller case. They were sympathetic to our cause, but too busy with other projects to help.

At this point, with the August 12 deadline drawing nearer, I began reaching out to our membership for new leads in finding an attorney to help us. At the same time, I began going through the majority opinion in the Heller decision, written by the late Justice Antonin Scalia, line by line, making notes as I proceeded. I’d read Scalia’s majority opinion before, and I knew it was bad, but I hadn’t realized how bad. As I proceeded with my line by line analysis, I recalled that two prominent attorneys who had formerly worked at the Law Center to Prevent Gun Violence had independently described the Heller decision to me as “an abomination.” The more I dissected Scalia’s majority opinion, the more I felt that their description of the Heller decision had been too kind.

I also learned that other experts in constitutional law had been highly critical of the Heller decision. A former appeals court judge, Richard Posner, who teaches at the University of Chicago Law School, described Scalia’s majority opinion as an example of “snow jobs” produced by well-staffed justices.[5] Historian Saul Cornell, who has written extensively about the Second Amendment, described the Heller decision as “gun rights propaganda passing as scholarship.”[6] And in his book, The Making of a Justice, the late Supreme Court Justice John Paul Stevens wrote, “Heller is unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench.”[7]

A full discussion of all the serious flaws in the 2008 Heller decision would fill several hundred pages, but I’ll briefly describe some of the more egregious ones in this message.

  • The conclusion in Heller that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia” is not supported by any of the evidence presented in Scalia’s majority opinion, nor is it consistent with the plain wording of the Second Amendment. The Amendment states:

 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.

As the Supreme Court ruled in 1939 in U.S. v. Miller:

 With obvious purpose to assure the continuation and render possible the effectiveness of [a well regulated militia] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.[8]

The Supreme Court reiterated in 1980 in Lewis v. United States:

The Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.”[9]

And the Heller decision isn’t just inconsistent with the “well regulated militia” part of the Second Amendment. The claim that the Amendment confers and individual right to gun ownership for personal use is inconsistent with the facts that the term, “the people,” is used in a collective sense throughout the Constitution, and the term, “bear arms,” was used almost exclusively during the Founding Era to refer to carrying weapons in the setting of warfare or military service.[10]

  • Scalia tries to put an anti-slavery spin on the Second Amendment, claiming,Antislavery advocates routinely invoked the right to bear arms for self-defense.” This statement is patently false. On the contrary, there is credible evidence that one of the main reasons – if not the main reason – for including the Second Amendment in the Bill of Rights was to assure the southern states with large slave populations that the northern states would not indirectly abolish slavery by disarming their militias, which were one and the same as their slave patrols.[11] James Madison, who wrote the original version of the Second Amendment, was himself a slave owner. Scalia fails to note that many of the other “experts” that he cites throughout his majority opinion as supporting the individual right interpretation of the Second Amendment were also proponents of slavery.

 

  • Scalia repeatedly quotes excerpts from court decisions and other treatises out of context, when a more complete reading of these documents directly refutes the point Scalia is trying to make. For example, Scalia cites a decision by Supreme Court Justice Henry Baldwin in the 1833 Pennsylvania circuit court case of Johnson v. Tompkins[12] as supporting the individual right interpretation of the Second Amendment. Scalia states:

Baldwin, sitting as a Circuit Judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either."

Scalia fails to note, however, that in this excerpt from Johnson v. Tompkins, the property to which Judge Baldwin refers is “Jack,” a black man who claimed to have been freed from slavery by his former owner; that Johnson and his armed accomplices gained access through false pretenses to the house of Jack’s employer where Jack was living and forcibly abducted him, claiming that Jack was still Johnson’s slave; that Johnson and his accomplices were “assailed” by the outraged citizens of the town in which Jack was living and working, and that these citizens turned out in “such force” and “numbers” as to prevent Johnson from abducting Jack without first proving to a local judge that Johnson actually “owned” Jack. The judge instructed Tompkins, who was the justice of the peace, to arrest and imprison Johnson pending the outcome of a trial. Scalia also fails to note that Henry Baldwin, like other “experts” he cites in support of the individual right interpretation of the Second Amendment, was a racist and an apologist for slavery. Baldwin had gone out of his way to write in a dissenting opinion in a Supreme Court case:

That I may stand alone among the members of this Court, does not deter me from declaring that I feel bound to consider slaves as property, by the law of the states before the adoption of the Constitution, and from the first settlement of the colonies; that this right of property exists independently of the Constitution, which does not create, but recognizes and protects it from violation, by any law or regulation of any state, in the cases to which the Constitution applies.[13]

  • Scalia prided himself on being an “originalist,” but he studiously avoids any reference to the records of the Constitutional Convention in Philadelphia in 1787,[14] debates in key state ratification conventions following the writing of the Constitution,[15] debates concerning the Second Amendment in the first session of Congress,[16] and the letters and notes of James Madison, who wrote the initial draft of what would become the Second Amendment.[17] None of these records supports Scalia’s argument that the Founders who wrote, debated, and eventually voted to include the Second Amendment in the Bill of Rights ever intended for it to confer an individual right to own or carry firearms outside of service in a well regulated militia.

 

  • Scalia endorses the myth of “guns for protection” throughout his majority opinion, stating, for example that a handgun is "the most preferred firearm in the nation to keep and use for protection of one's home and family….” In fact, there is overwhelming evidence that a gun in the home is far more likely to be used to kill,[18] injure,[19] or intimidate[20] household members than to protect them.

 

  • Scalia repeatedly resorts to nonsensical arguments and ridicule throughout his majority opinion. For example, in responding to an amicus brief filed by professors of English and linguistics in which it was pointed out that the term, “bear arms,” is an idiomatic expression that was used during the Founding Era, as today, to denote carrying weapons in a military context,[21] Scalia writes:

Giving "bear Arms" its idiomatic meaning would cause the protected right [in the Second Amendment] to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed.

In fact, this “absurdity” is precisely the interpretation of the Second Amendment that the Supreme Court endorsed in both the 1939 Miller decision[22] and the 1980 Lewis decision.[23] The military interpretation of the term, “bear arms,” had also been endorsed in over 20 appeals court decisions concerning the Second Amendment up to the time of the Heller decision.

Scalia continues:

Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

It is Scalia’s reasoning, and not the amicus brief of the professors of English and linguistics, that is incoherent and grotesque.

 

By mid-July, with the deadline to file an amicus brief less than a month away, I still hadn’t found an attorney who would help us file a brief in the NYRPA v. NYC case. Most of the attorneys I talked with were either too busy with other cases or felt that it would not be worth the time and energy to file an amicus brief in a case in which they would almost certainly end up on the losing side. The attorney who seemed most eager to help us was a partner in a large law firm. He said he just needed to get the OK from his partners before taking on the case. He subsequently informed me, though, that he wouldn’t be able to help us – presumably because one or more of his partners sympathized with and/or represented the gun lobby.

I had nearly given up on the idea of filing an amicus brief in the NYRPA v. NYC case when in late July, just two weeks before the August 12 deadline, a contact of a contact put me in touch with an attorney named Fred Hiestand. Fred met all of the qualifications for the kind of attorney we needed, except that he said he couldn’t take on the case on an entirely pro bono basis. He did agree, though, to a flat fee, which was within our budget, no matter how many hours he spent working on the amicus brief. There was one other thing Fred wanted me to know before we entered into an agreement. He had represented Huey Newton, co-founder of the Black Panthers, during the 1970’s. Clearly, Fred was an attorney who wasn’t afraid of taking on challenging and controversial cases. Fred and I reached an agreement over the phone, and we met in person shortly afterward to seal the deal with a handshake.

Amicus briefs in Supreme Court cases are limited to 9,000 words. Two weeks before the deadline for our brief, I presented Fred with a condensed summary of my notes on the Heller decision. The condensed version was still about 60 pages and 40,000 words long, though. Fred scanned my notes and commented that some of my comments were “somewhat intemperate,” as, for example, when I wrote that if a law student were to write a paper that was as seriously flawed and downright deceitful as Scalia’s majority opinion in the Heller decision, it should be considered grounds for expulsion from law school. We agreed that the final version of the amicus brief that we submitted to the Supreme Court would have to be Fred’s version, not mine. Otherwise, Fred might himself be disbarred from arguing future cases before the Supreme Court. Fred commenced to do quite a bit of research on the Heller case himself, including research concerning precedents in which the Supreme Court had reversed its own prior decisions within a short period of time.

Fred and I sent notes and drafts back and forth frequently over the next two weeks. Fred called me late on the evening of Sunday, August 11, to ask me to take one last look at the final version of the brief he would be sending electronically to a publisher in Washington DC, to be printed the next morning in compliance with the Supreme Court’s very detailed standards and delivered to the Court before it closed on Monday afternoon. Fred’s final version didn’t include anything about grounds for expulsion from law school, but it clearly made the point that the Heller decision was wrongly decided and should be overturned. I told Fred the final version looked good to go from my point of view, and I held my breath in the hope that nothing would go wrong in the transmission, printing, and delivery of the brief before the deadline the next day.

Sure enough, our amicus brief appeared on the Supreme Court docket as the next to last amicus brief filed on August 12. Forty-five amicus briefs were filed in all, from the time when the Supreme Court first began considering whether to accept the case through the August 12 deadline. Twenty-five briefs were filed in support of the NYRPA, 15 in support of NYC, and five in support of neither party. Americans Against Gun Violence was one of just three gun violence prevention organizations to file a brief in support of NYC, the other two being Everytown for Gun Safety and March for Our Lives. The Brady Campaign and the Giffords Law Center filed briefs in support of neither party. Americans Against Gun Violence was the only organization to file an amicus brief calling on the Supreme Court to take the opportunity of the NYRPA v. NYC case to overturn the Heller decision, though an attorney based in Washington DC, Neal Goldfarb, filed a brief on his own accord in which he joined us in arguing that Heller was wrongly decided. (I’ve since talked with Mr. Goldfarb about the possibility of collaborating on future briefs.)

New York changed its handgun laws to make it legal for handgun owners to carry their firearms locked and unloaded to firing ranges and second homes outside New York City. These changes addressed the main complaints in the NYRPA’s original lawsuit. Clearly, though, the NYRPA was seeking a much larger victory, and apparently, so were several of the Supreme Court justices. The NYRPA opposed NYC’s motion that the case be declared moot as a result of the changes in New York’s laws, and the Supreme Court rejected NYC’s motion to declare the case moot, although the votes of individual justices were not published.

During oral arguments before the Court on December 2, most of the discussion centered around the seemingly trivial issues of whether gun owners could stop for coffee breaks or to go to the bathroom while transporting handguns in and out of the City, or whether their travel to and from their residences within NYC and homes or firing ranges outside the city had to be “continuous and uninterrupted.” The attorney for the City of New York, Richard Dearing, tried to assure the Court that coffee breaks and bathroom stops would be permissible, but Justice Alito asked him whether there would be any law preventing a New York handgun owner from stopping and visiting his mother in New Jersey for a couple of hours while transporting a handgun to or from his residence in New York City. Dearing was understandably confused by the question. When he sought clarification, Alito pounced on him, stating, “No, no, no, no, we’re back, without the new laws, city or state, would that have been legal conduct?”

Dearing replied, “I’m not aware of any city law that….”

Alito interrupted him, stating, “So then, why is this case moot. Because they didn’t get all that they wanted. They wanted a declaration that the old law was unconstitutional. Period.”

Alito is right. The gun lobby wants the Supreme Court to rule that a restriction on where handgun owners can carry their weapons is unconstitutional, not because they want to be able to legally carry handguns to and from second homes and firing ranges outside of New York City, but because they want to be able to carry them anywhere they please. And Justices Alito, Gorsuch, Kavanaugh, and Thomas  almost certainly want to extend the Heller decision to create such a right. Chief Justice Roberts will probably be the swing vote in this case. As the oral arguments on December 2 revealed, the NYRPA also wants to be able to sue for economic damages retroactively as a result of the alleged infringement of their newly created constitutional right.

Alito pressed Dearing further, asking him, “Are people in New York less safe now as a result of the enactment of the new city and state laws than they were before?”

Dearing must have realized by this point that he was trapped. He replied, “We – we – no, I don’t think so. We made a judgement expressed by our police commissioner – that it was consistent with public safety to repeal the prior rule and to move forward without it.”

In fact, however, former New York City Police Commissioner William Bratton had submitted a detailed amicus brief of his own in which he documented the extreme danger of not only allowing residents of New York City to carry handguns throughout the City, but also of storing handguns in their residences. In its own brief, the City of New York had documented that prior to the adoption of the handgun law challenged by the NYRPA, when the City had a policy of issuing “target licenses” that allowed handgun owners to transport their guns locked and unloaded to firing ranges outside of New York City, there had been widespread abuse, with licensees traveling with loaded firearms throughout the City. The “target license” statute was also largely unenforceable, as it was impossible for police to determine through observation alone whether people transporting handguns were actually traveling to and from a firing range outside the city, whether their guns were loaded, and whether they were target licensees or gun traffickers.

Alito pressed Dearing further. “Well, if [residents of New York are] not less safe, then what possible justification could there have been for the old rule, which you abandoned?”

Dearing couldn’t give a cogent answer.

Alito continued. “So you think the Second Amendment permits the imposition of a restriction that has no public safety benefit?”

Again, Dearing could not give a cogent answer. Once he and his colleagues at the New York City Attorney’s office had conceded, despite what they knew to be the truth about the Second Amendment, that they would not contest the Heller decision; once they conceded to drop the City’s restrictions concerning where residents could carry handguns, despite the fact that dropping the restrictions would endanger public safety; and once Dearing acquiesced to pressure from Alito to endorse the lie that dropping the restrictions did not endanger the safety of the residents of New York City; then he could not provide any justification for the old law, nor could he explain why it didn’t violate the gun lobby’s version of the Second Amendment.

In response to further questioning by Chief Justice Roberts, Dearing was also forced to answer that there would be no consequences to gun owners who had violated the now defunct ban on carrying handguns anywhere other than to and from city-approved firing ranges. Dearing also couldn’t provide a cogent answer to questioning from Justice Gorsuch as to why plaintiffs would not be entitled to economic damages from having been prevented from exercising their constitutional right – a constitutional right that did not yet exist but that Gorsuch seemed inclined to create – to carry handguns to locations outside the City.

The only moment of truth during the oral arguments in the NYRPA v. NYC case on December 2 came when Justice Breyer, who, along with the late Justice Stevens, had written a dissenting opinion in the Heller decision, interrupted Dearing as Dearing was having difficulty trying to explain why the now defunct NYC handgun law had not violated the Second Amendment, as interpreted by the five member majority in the Heller decision:

Mr. Dearing: Heller determined without consulting means and scrutiny, that the – that the law in question sort of went to the core of and destroyed, in essence, the – the – the – the Second Amendment right and, therefore, was – and more severe than any – any historical, any analogous or prior law and its degree of burden on the Second Amendment right.

Justice Breyer: You’re correctly stating the views of some judges.

Mr. Dearing: Right.

Breyer: And some judges had an opposite view.

Mr. Dearing: I’m aware – I’m aware of that, that’s correct.

How much easier and more truthful it would have been, and how much better for the residents of New York City and the residents of the United States as a whole, if the New York City Attorney’s office had taken a principled stand from the beginning by declaring that the Heller decision was wrongly decided and that residents of New York City would be far safer if no one owned handguns, much less carried them freely throughout the City. As it is, whether the Supreme Court declares the NYRPA v. NYC case moot or declares the now defunct NYC handgun law unconstitutional, the people of New York City are less safe, and the conspiracy of silence concerning the fraudulent misrepresentation of the Heller decision continues, broken in the NYRPA v. NYC case only by the brief comment from Justice Breyer, an amicus brief filed by a lone attorney from Washington DC, and the amicus brief we filed on behalf of Americans Against Gun Violence.

Ironically, the PBS News Hour took part in the fraudulent misrepresentation of the Second Amendment during its coverage of the oral arguments in the NYRPA v. NYC case, as it has on numerous other recent occasions following high profile mass shootings. News Hour host John Yang introduced the December 2 segment entitled “Guns in America” by stating, “Second Amendment advocates saw the potential to expand gun rights, but based on today’s arguments, it appears the issue may have to wait.”

Yang interviewed National Law Journal correspondent Marica Coyle who had been present in the courtroom during the oral arguments. Coyle stated, “Gun rights organizations have been very frustrated with how the lower courts have been applying the Second Amendment to local and state government regulations of guns….”

Yang said, “Just to remind people, the Court ruled in 2008 and then again in 2010 that there is an absolute right to own guns.”

Coyle replied that the “right” is not absolute, but neither Yang nor Coyle mentioned the Heller or McDonald decisions by name during the segment. Nor did they mention that these were rogue decisions that reversed over 200 years of legal precedent, including four previous Supreme Court decisions; or that Chief Justice Warren Burger, speaking on the PBS News Hour in 1991, had called the interpretation of the Second Amendment endorsed in the Heller and McDonald decisions “one of the greatest pieces of fraud – I repeat the word, ‘fraud’ – on the American people by special interest groups” that he had ever seen in his lifetime.

It’s unknown when the Supreme Court will issue a decision in the NYRPA v. NYC case. Regardless of the outcome of the case, I think that we should consider it a victory to have succeeded in filing an amicus brief in this case at all. When the Heller decision is finally overturned, I believe that legal historians will look back on our amicus brief in this case as a sentinel document. According to Mr. Hiestand, Supreme Court justices are obliged to consider all the amicus briefs submitted. I would be astounded if our brief convinces a majority of the justices to take the opportunity of the NYRPA v. NYC case to overturn the Heller decision. I would be less surprised if Justice Breyer references our brief in a dissenting opinion. And I certainly hope that our brief will help embolden other gun violence prevention organizations and other governmental agencies facing challenges to firearm laws from the gun lobby to take a more principled stand with regard to the fraudulent misrepresentation of the Second Amendment in the Heller decision.

We would not have been able to file our amicus brief without donations from supporters like you. And in order to be able to file another brief in the next important Second Amendment case – and we know that such cases are pending  – we will need ongoing generous support from our members. Please consider making a tax deductible year end contribution if you’re able.

We also wouldn’t have been able to file our brief if we hadn’t received help from members with backgrounds in the legal field in finding an attorney to work with us on this case. If you know of an attorney who might be willing to work with us on future Second Amendment cases, please reply to this message with the attorney’s name and contact information.

Of course, filing amicus briefs isn’t the only way to change laws and influence court decisions. Abraham Lincoln once said:

Public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.

We can all exert an influence on public sentiment, day in and day out. One way is by contacting media outlets when they misrepresent issues related to gun violence, as the PBS News Hour did in misrepresenting the Second Amendment during its coverage of the oral arguments in the NYRPA v. NYC case on December 2. You can read the transcript of the “Guns in America” segment by clicking on this link, and you can send your concerns regarding this segment of the PBS news hour to [email protected]. We need to teach print, radio, and TV journalists to replace terms like “Second Amendment advocates” and “gun rights organizations” with the term, “gun control opponents,” and to educate journalists concerning the fact that there was no constitutional right, Second Amendment or otherwise, for anyone to own a gun in our country outside of service in a well regulated militia prior to the rogue 2008 Heller decision.

We need to stay in touch with our elected officials and continually urge  them to demonstrate more political courage in openly advocating and doing everything within their power to overturn the Heller decision and achieve the adoption of stringent gun control laws in the United States comparable to the laws that have long been in effect in all other high income democratic countries – countries in which mass shootings, including shootings on school campuses, are rare or non-existent,[24] and in which the rate of gun deaths is, on average, one tenth the rate in the United States.[25]

And finally, we can talk openly and unapologetically to friends, family members, and colleagues about the need to take definitive steps to end the shameful epidemic of gun violence in our country.

Thanks for your support and activism. While we work to combat the ills in our society, including our country’s epidemic of gun violence, it’s also important to take time out to enjoy the good things in life. I hope that you and your family have a safe and joyful holiday season.

 

Sincerely,

 

 

Bill Durston, MD

President, Americans Against Gun Violence

Note: Dr. Durston is a board certified emergency physician and a former expert marksman in the U.S. Marine Corps, decorated for courage under fire during the Vietnam War.

 

 

 

 

References

 

[1] Warren Burger, PBS News Hour, December 16, 1991, https://vimeo.com/157433062.

[2] District of Columbia v. Heller, 554 US (Supreme Court 2008).

[3] McDonald v. City of Chicago, No. 3020 (SCt 2010).

[4] United States v. Cruikshank, 92 US 542 (Supreme Court 1876); Presser v. Illinois, 116 US (Supreme Court 1886); U.S. v. Miller, 307 U.S. 174 (1939) (n.d.); Lewis v. United States, No. 55 (U.S. 1980).

[5] Richard Posner, “In Defense of Looseness,” The New Republic, August 26, 2008, https://newrepublic.com/article/62124/defense-looseness.

[6] Saul Cornell, “Originalism on Trial: The Use and Abuse of History in District of Columbia v. Heller,” Ohio State Law Journal 69 (2008): 625.

[7] John Paul Stevens, The Making of a Justice: Reflections on My First 94 Years (New York: Little, Brown, 2019), 482.

[8] Miller.

[9] Lewis, 445.

[10] “BRIEF FOR PROFESSORS OF LINGUISTICS AND ENGLISH DENNIS E. BARON, Ph.D., RICHARD W. BAILEY, Ph.D. AND JEFFREY P. KAPLAN, Ph.D. IN SUPPORT OF PETITIONERS  in the Case of District of Columbia v. Heller,” 2008.

[11] Carl T. Bogus, “The Hidden History of the Second Amendment,” U.C. Davis Law Review 31, no. 2 (Winter 1998): 309–408.

[12] Henry Baldwin, Johnson v. Tompkins et al (Circuit Court, E.D., Pennsylvania April 1833).

[13] Groves v. Slaughter, 40 US (Supreme Court 1841).

[14] Max Farrand, “The Records of the Federal Convention of 1787, Vol. 1,” Online Library of Liberty, 1911, https://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-vol-1.

[15] Hugh Blair Grigsby and R.A. Brock (ed), The History of the Virginia Federal Convention Of 1788: With Some Account of Eminent Virginians of That Era Who Were Members of the Body, vol. I (Richmond, Virginia: Virginia Historical Society, 1890), https://books.google.com/books?id=4VQ6vgAACAAJ&dq=the+history+of+the+virginia+federal+convention+of+1788&hl=en&sa=X&ved=2ahUKEwis8Pu4se_jAhWQsZ4KHe0LDXMQ6AEwAXoECAIQAg.

[16] Joseph Gales, The Debates and Proceedings in the Congress of the United States, with an Appendix, Containing Important State Papers and Public Documents, and All the Laws of a Public Nature; with a Copious Index, 42 vols., Annals of the Congress of the United States. (Washington: Gales and Seaton, 1834), https://catalog.hathitrust.org/Record/008688952.

[17] James Madison and Gaillard Hunt (ed), The Writings of James Madison Comprising His Public Papers and His Public Correspondence, Including Numerous Letters and Documents Now for the First Time Printed, vol. V, 1787–1790 (New York and London: G.P. Putnam’s Sons, 1904).

[18] Arthur L. Kellermann and Donald T. Reay, “Protection or Peril?,” New England Journal of Medicine 314, no. 24 (June 12, 1986): 1557–60, https://doi.org/10.1056/NEJM198606123142406.

[19] Arthur L. Kellermann et al., “Injuries and Deaths Due to Firearms in the Home,” Journal of Trauma and Acute Care Surgery 45, no. 2 (1998): 263–67.

[20] Deborah Azrael and David Hemenway, “‘In the Safety of Your Own Home’: Results from a National Survey on Gun Use at Home,” Social Science & Medicine 50, no. 2 (January 2000): 285–91.

[21] “Linguists’ Brief.”

[22] Miller.

[23] Lewis, 445.

[24] Max Fisher and Josh Keller, “What Explains U.S. Mass Shootings? International Comparisons Suggest an Answer,” The New York Times, November 7, 2017, sec. Americas, https://www.nytimes.com/2017/11/07/world/americas/mass-shootings-us-international.html.

[25] Erin Grinshteyn and David Hemenway, “Violent Death Rates: The US Compared with Other High-Income OECD Countries, 2010,” The American Journal of Medicine 129, no. 3 (March 1, 2016): 266–73, https://doi.org/10.1016/j.amjmed.2015.10.025.