Interview: The Way of the Gun
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MJ: How likely is it that Parker vs. District of Columbia will go before the Supreme Court?
RL: It is highly likely for a number of reasons—most importantly, this is a very big issue. In addition, this D.C. opinion was the very first opinion of any appellate court in history to overturn a gun control regulation based on the Second Amendment. And it also is highlighted by the fact that all the other circuits, with the exception of the 5th Circuit in Texas, disagree.
MJ: A circuit split is one of the main reasons a case would go before the Supreme Court?
RL: That’s correct. You have a circuit split which means you have different laws that are now applicable across the country. The Supreme Court ordinarily will try to resolve that sort of thing so we have uniform laws across the country.
MJ: If the Supreme Court upholds the decision, how would this ruling affect gun laws on the books in states throughout the nation?
RL: First, we need to look at how will it affect D.C. If they uphold the appellate decision (D.C. has applied for a petition to have the case go before the full-judge panel of the circuit court—the case was heard before a three-judge panel originally), it will say that the D.C. gun ban is unconstitutional.
The task after Parker, assuming Parker is upheld, will be twofold. The first is to determine whether the Second Amendment applies to the states. Assuming the Second Amendment does apply to the states, the next question will be what regulations are permissible and what restrictions are not permissible.
Even the NRA concedes that you can’t have mad men running around with weapons of mass destruction. So there are some restrictions that are permissible and it will be the task of the legislature and the courts to ferret all of that out and draw the lines. I am sure, though, that outright bans on handguns like they have in D.C. won’t be permitted. That is not a reasonable restriction under anybody’s characterization. It is not a restriction, it’s a prohibition.
MJ: Regarding the Parker case, the six plaintiffs were carefully chosen. Can you discuss your selection process?
RL: We wanted gender, racial, economic, and age diversity. We weren’t looking for criminals. We didn’t want a crack head coming into the court as a poster boy for the Second Amendment. Most importantly, we wanted compelling cases.
MJ: You said that Parker v. District of Columbia is the first case where a broad interpretation of the restriction has overturned a state gun law. Have there been previous challenges?
RL: Yes, there have been a ton of challenges. There have been 30, maybe even 40 in the district alone, but they are challenges brought by criminals protesting the fact that they have been charged with a felony in possession of a firearm or that they have committed a crime like robbing a bank and their sentence has been enhanced because they carried a gun. These criminals charge that they should not have their sentence enhanced because they have a Second Amendment right to carry a gun. These cases are nonsense and the courts have properly thrown them out. So this is the first challenge that was compelling on its facts and where folks went out of their way to find plaintiffs with the requisite characteristics that I mentioned.
MJ: Are there similar cases pending in D.C. and in other states?
RL: There are all kinds of cases pending, but I do not know of any case that is imminent and is similar to ours in that it is law-abiding citizens with compelling facts who simply just want to be able to defend themselves.
MJ: Could you talk about the longstanding controversy that has existed over the interpretation of the Second Amendment?
RL: The controversy boils down to this: Does the Second Amendment secure the right of individuals to keep and bear arms or does it simply apply to the right of states to arm the members of their militia? This controversy has raged since 1939 and, of course, it existed even before then.
MJ: Even if the case doesn’t go before the Supreme Court, doesn’t it pretty much turn gun control legislation upside down?
RL: In D.C., something is going to have to be done with existing gun laws. Secondly, and I think more importantly, since D.C. is the residence of the federal government, it means that the federal government can be sued in D.C. no matter where an injury or rights violation takes place. Any challenge to federal gun laws can be brought in D.C. and will be governed by the law in D.C. That means that D.C. has a much bigger impact than other locations.
MJ: Considering the district has the most stringent gun laws on the books, what message does this send out to pro-gun rights people and anti-gun rights people. Does this not show other states the way? Could there be some kind of ripple effect?
RL: This will depend on whether the Second Amendment even applies to states. This is going to be next big issue that comes before the court. My own view is that the arguments are compelling—that the Second Amendment, like every other part of the Bill of Rights, will apply to the state governments. Assuming that’s the case, the state governments will be on notice, just like D.C. is on notice.
MJ: What impact will the Virginia Tech shootings have on your case?
RL: Logically, it shouldn’t have any impact. In Parker, we are not addressing concealed carry and the outdoor usage of guns. We’re talking about a gun in the home for self-defense. And that’s it. So as a matter of cold law, the situation at Virginia Tech is not relevant in terms of the Parker litigation.
Now could it have an effect? Well, of course. People can’t read about an experience of this kind of horror without being affected by it. And judges in the courts are no different. People’s views about gun control, about self-defense, and the Second Amendment are certainly impacted by these practical, real-life experiences. After all, that’s why we look for these compelling facts. We’re not dealing with just an abstract Second Amendment. We’re dealing with a Second Amendment that applies to real-life people, and so I suspect that there will be some effect.
Now the next question is, what effect is it likely to have? There will be one camp that says, “The events at Virginia Tech prove that we have too many guns in the country and what we need is tighter gun control.” And there will be a second camp that is equally vigorous and equally outspoken, and I will be part of it, that says, “What happened at Virginia Tech proves that what we need is for people to be able to defend themselves.”
After all, it is hard to stop somebody from open firing and killing someone. But you sure as heck can stop someone from doing number 31, 32, and 33. Who knows how many lives would have been saved if somebody who had a valid state-issued permit was carrying a gun and put an end to this guy? As to whether it will be read in that manner by judges on the D.C. Circuit or in the Supreme Court, I just don’t know.
MJ: If not more stringent gun control, what do you think makes a difference in the likelihood that a tragedy like this could occur?
RL: With respect to the root causes of violence, I’m no expert but, among other things, it’s illegitimacy, unemployment, dysfunctional schools, teenage pregnancy, and drug and alcohol abuse. And in this case, it was probably none of the above. It was probably just a crazy person. I mean you can’t eliminate all crazy people.
MJ: Are you a proponent of any gun laws?
RL: I’m a proponent of a lot of gun control laws. I support regulations on some type of weapons. We can’t have people having shoulder-launched missiles in every home. That’s ridiculous. I support regulations on some types of persons, the obvious one being felons, the mentally incompetent, and people that are young. I would obviously permit regulations on some types of uses, like murder. It’s clear that these types of regulations have to exist. Where should the line be drawn, what age should it be? I don’t know. I’d have to think about that and I’d like to see more evidence.
And all of them are under attack, by dems and repubs.
What is next, I wonder ?