The upcoming Supreme Court case of District of Columbia v. Heller has brought out a ton of amici, as one would suspect, ranging from Jews for the Preservation of Firearms Ownership to Pink Pistols (Gays and Lesbians for Individual Liberty), to the most natural ally of all, the National Rife Association. Thanks to SCOTUSblog and Doc Berman for putting this all together.
For as long as I can remember, the NRA was the loudest voice against any law that limited the right to keep and bear arms (RKBA amongst those engaged in the struggle). With fiery rhetoric and cold cash, they fought against every perceived violation of the right of each and every individual to arm themselves, as the Second Amendment said they could. This was fundamental. But that was then, and this is now.
All those years of effort are now unbearably close to bearing fruit. The issue is before the Court. The scholars are now behind them. The stars have aligned. No longer are they the lunatic fringe that liberals claimed them to be, but righteous Americans demanding nothing more or less than what the Constitution guarantees.
But just as the vision of the Second Amendment has turned around, so too has the NRA. How odd to see the shoe on the other foot.
The National Rifle Association argues in its amicus brief to the Supreme Court that the Second Amendment does not apply to felons. The “Martha Stewart” exception has been born.
This individual right to keep and bear arms is a fundamental right; the Second Amendment on its face describes it as essential to a “free State”—a democratic state free from government tyranny. As with the fundamental democratic rights guaranteed by the First Amendment, laws burdening Second Amendment rights should be subjected to strict scrutiny and struck down in their entirety when overly broad. Petitioners and their supporting attempt to conjure fears of legal bedlam should courts examine firearms laws under strict scrutiny, yet they present no real argument that long-standing laws regulating the ownership and use of firearms, such as laws barring ownership by convicted felons or the insane, would fail to pass muster under that test.
Well, ain’t that something? It appears that “the people” just turned into “the people we like” when it comes to fundamental, unequivocal rights.
So “strict scrutiny” provides a test that will allow the government to legislate away the Second Amendment right of Martha Stewart to carry a weapon to protect herself, eh? The NRA responds to what they characterize as Professor Chemerinsky’s “in terrorem argument” that under their proposed strict scrutiny test for this fundamental right, felons and the insane would still be subject to regulation. Why? They don’t say. They just say they would. A little dodge and weave around the threat that the Supreme Court might sink their big win if the bad guys get guns too.
This is not going to be as easy as the NRA would like it to be. As posted here, I see some difficulty in drawing the fine distinctions that the NRA suddenly supports, in contrast to its fundamental rights position. Will strict scrutiny keep guns (not to mention swords, knives, etc.) out of the hands of felons? What about felons whose crimes bear no connection to violence? Or felons convicted 40 years ago? Or felons whose crime was possession of a weapon, the fundamental right itself?
Heller is going to be one interesting decision. But the NRA, ever true to its mission, is busy trying to scurry around that little hole it dug for itself over the years, and just keeps digging.