The American Spectator

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Dissent and Concurrence

3.14.07 @ 12:01AM

STATE OF CONFUSION
Re: Robert VerBruggen's Locating Gun Rights:

Robert VerBruggen writes, "In a footnote, [dissenting judge and GHWB appointee, gee thanks dad] Henderson even noted United States v. Verdugo-Urquidez, a case that ruled the term 'the people' meant 'a class of persons who are part of a national community' and specifically mentioned the Second Amendment. To this she responded that as the Tenth Amendment relegates some rights to the States, and not to the District, so does the Second."

But Mr. VerBruggen fails to note that the majority on page 50 in Parker directly rebutted Henderson as follows "Our dissenting colleague --in order to give a meaning to 'the people' in the Second Amendment consistent with her interpretation -- analogizes to 'the people' in the Tenth Amendment. Dissent at 5 n.5. Contrary to her suggestion, however, the Tenth Amendment does not limit 'the people' to state citizens. Rather, the Tenth Amendment reserves powers to 'the States respectively, or to the people.' The dissent provides no case holding that 'the people,' as used in the Tenth Amendment, are distinct from 'the people' referred to elsewhere in the Bill of Rights. The one case relied upon, Lee v. Flintkote, 593 F.2d 1275, 1278 n.14 (D.C. Cir. 1979), is inapposite. That case merely contrasts the District, on the one hand, with the states, on the other; the meaning of 'the people' as used in the Tenth Amendment was not at issue. Indeed, Verdugo-Urquidez, 494 U.S. at 265, directly contradicts the dissent's reading of 'the people' in the Tenth Amendment, just as it contradicts the restrictive reading of 'the people' in the Second."

And if that doesn't bring a smile to your lips, take a gander at the majority's footnote on page 55:

"Of course, the District's virtual ban on handgun ownership is not based on any militia purpose. It is justified solely as a measure to protect public safety. As amici point out, and as D.C. judges are well aware, the black market for handguns in the District is so strong that handguns are readily
available (probably at little premium) to criminals. It is asserted, therefore, that the D.C. gun control laws irrationally prevent only law abiding citizens from owning handguns."

If I understand the process correctly, D.C authorities will appeal first to D.C. Court of Appeals en banc. Then it will proceed to the Supremes.

Parker is a terrific decision, worth reading in its entirety (well, perhaps not Henderson's incredibly tortured dissent). There may still be hope.
-- Frank Natoli
Newton, New Jersey

In his piece on the recent Parker decision, Robert VerBruggen observes: "The ruling makes no issue of the fact Miller and Layton were not militia members. Rather, Miller and Layton failed to prove a militia might use a sawed-off shotgun."

My readings on the Miller decision indicate that, before the case could be heard, both men skipped bail, disappeared, and eventually were found dead. The case for militia utility of a short-barreled shotgun (called a "trench gun" by doughboys in WWI) wasn't proven because it wasn't argued. The solicitor general, in effect, got a free shot and won by default.

But the Miller case was actually a victory, of sorts, for Second Amendment advocates: the Court issued a writ of certiorari allowing Miller and Layton--as *individuals*--to plead their case, based upon the Second Amendment. Were it only a "collective" right, the writ would've been denied, because the two men would've lacked "standing".
Even Laurence Tribe (albeit reluctantly) has conceded this point---when he switched from the "collective" side to the "individual" side.
-- David Gonzalez
Wheeling, Illinois

HAPPY THANKSGIVING
Re: Ben Stein's Gratitude Is Wealth:

"Gratitude for what you have right now. Gratitude especially for what you have now that so many people would die for, gratitude for what you have now that won't last. That's what makes you rich quick. And no tax at all. That's the secret. As to the money... Stop thinking about it for this morning and just tell your wife you love her."

Ain't it the truth!

"I finished with some pitiful iron shots and went into the clubhouse. The halls were empty. The average age of the members at this club is 72 and many are older. How many men and women walk along these halls every day, I thought, with memories of long-time wives or husbands who are now on the other side? How many of them walk down this hall and then go home alone to a solitary meal and an afternoon and night of watching TV alone, with only memories of when they had a wife or husband or kids that watched TV with them?"

I was 28, my husband had been deployed to Panama back in August. I buried him in March. I existed, like the older members of that golf club, not fully alive and not quite dead, almost numb to the world about me, memories to comfort me. We did not have a LONG marriage, barely 5 years and 10 months and no children living. I was supposed to be undergoing testing why I kept having miscarriages at the 2-month point. Not attending to paperwork related to my husband's death. We were going to take leave and travel together to see family and spend some alone time. I saw family, all of them, and I was spending time alone with Him.

Letter to the Editor

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