Gun Case Attorney Targets Laws in Other Cities
MICHELE NORRIS, Host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
ROBERT SIEGEL, Host:
And I'm Robert Siegel. Yesterday, the Supreme Court did more than just overturn the District of Columbia's ban on handguns. It affirmed - some would say it established - a right; the right of an individual, a civilian, to own a gun and keep it in the house. Judge Antonin Scalia, who wrote the 5-to-4 decision, acknowledged that this right, like the right of free speech, can be limited. But as to where the Second Amendment right ends and lawful regulation of guns begins, that is now a question for the courts.
And the next case, it seems, will be over Chicago's gun-control law. Lawyer Alan Gura filed suit there yesterday, on behalf of four Chicagoans who want to keep handguns in their homes. Alan Gura argued the D.C. case, and he joins us in the studio right now. Welcome.
ALAN GURA: Thank you for having me.
SIEGEL: Now, we should say first, this was your first case before the U.S. Supreme Court.
GURA: That's correct.
SIEGEL: You're 37 years old.
GURA: That's right.
SIEGEL: A rather big event, to establish a right in your first outing.
GURA: Yes it was, thank you so much. It was a wonderful experience. I really enjoyed it.
SIEGEL: Well, let's start with the phrase: to keep a gun in their homes. Justice Scalia wrote about the right to have a gun to protect one's home. Would it be fair, do you think, to have a law that permits keeping a gun but only keeping it at home?
GURA: No, a person can keep a gun in a place of business, of course - which actually, in Washington, D.C., was permitted. You could have a functional firearm in a place of business in Washington. It was in the home where they did not allow you to have an operable gun.
The Second Amendment also protects the right to bear arms, and as the court explained, bear means carry. Now of course, once you get outside the home, the government's regulatory interest increases, and so we could expect to see a greater role for regulation if you're talking about walking around with firearms in public.
However, as we know in our law, the home is a place of extralegal protection. The king cannot knock through your threshold without a warrant - from the ancient times; now, of course, codified in our Fourth Amendment. And time and again, we've seen the court be very sensitive to what happens inside the home. And so that was a place to start.
SIEGEL: I want to read to you something from today's editorial in The New York Times. It was very critical of the Supreme Court's ruling. It said, "The court left open room for gun-control advocates to fight back. It made clear that there were gun restrictions that it was not calling into question, including bans on gun possession by felons and the mentally ill, or in sensitive places like schools and government buildings." And the Times goes on - "That last part is the final indignity of the decision. When the justices go to work at the Supreme Court, guns will still be banned. When most Americans show up at their own jobs, they will not have that protection."
Is the Times correct? That is, should my employer, National Public Radio, have the right to ban guns from the workplace, or is that my constitutional right - to bring one here?
GURA: Well, your employer has property rights. We believe in those as well. And if the employer wishes to take the position that it doesn't want to have guns in the workplace, it can do so; just like the employer could also ban you from bringing a copy of The New York Times into your workplace.
SIEGEL: I can't plead that my First Amendment rights are being violated in that case?
GURA: If your employer is not the government, absolutely not. You know, the private-property owner can determine what happens on his or her property, and so you don't have any constitutional rights against other individuals or private businesses. But I think The New York Times is a little bit hysterical in this.
I mean obviously, we're not going to see common-sense gun laws that help the police solve or prevent crimes while respecting the individual right to keep and bear arms - we're not going to see those laws overturned or, I would hope, not even challenged. But laws that do nothing but frustrate gun ownership; laws that are designed to make gun ownership expensive, difficult, just unduly burdensome; those are going to be examined.
It's not too much to ask for the government, when it regulates guns, to simply mind the fact that it is stepping near an area where individuals have rights, and it should be careful.
SIEGEL: Let's look at some of the gray areas, though. Justice Scalia talked about felons, barring felons from gun ownership. What about somebody who has a restraining order against him to stay away from his wife. He's not a felon. He now has a constitutional right to have a gun. Can he be denied that right, can it be suspended in his case?
GURA: Well, I believe it can. In fact, currently federal law states that if you are the subject of a restraining order - presumably we would all like, in that situation, the person had some notice, there was a hearing, there was some due process, the person then became the subject of a restraining order - that perhaps that person can be denied weapons. That's not...
SIEGEL: You don't think that's trumped by the Heller decision of the Supreme Court?
GURA: Well, I think that so long as there is due process, and if there's an adjudication, then yes. If a person is dangerous, he or she should not have guns.
SIEGEL: Yesterday, we heard from Los Angeles Police Chief William Bratton, who supports gun control and was part of an amicus brief in this case. He said that trigger locks on guns prevent suicides and accidental deaths with children, and they make it harder for people to steal a gun and use it for a crime.
In oral arguments in this case, you said that you were okay with the requirements of some jurisdictions that you have to store a gun in a safe. I'm just curious, since trigger locks were ruled out in a sense, did you get a broader ruling from the court than even you had sought?
GURA: No, I sought to have the trigger-lock law here invalidated. And in fact, it wasn't really a trigger-lock law. It was not what we call a safe storage law, it was actually a functional firearms ban.
It's important to remember, the Washington, D.C. law that got struck down stated that a person must always keep the gun unloaded and either disassembled or bound by a trigger lock. And there is no exception for home self-defense. So that even if a person could load and assemble their firearm in a timely enough manner in the middle of the night, the minute they do that, they become a criminal, and that simply is wrong.
If you have a right to a gun, you have the right to a gun that works. Now, the government can tell you to store it in a safe manner, and I don't think anybody should have a problem with that.
SIEGEL: Even within your own home, the government can tell you that?
GURA: Sure. And for example, in some states, in Virginia, there can be criminal liability if a child discovers a gun and say, brings it to school. But that's very different than saying your guns must always be inoperable, no exception for self-defense.
Now, safe storage might mean different things to different people. If the law is written in such a way which is respectful of individual right, I don't believe it should be too much of a problem.
SIEGEL: I'm curious about what you make of this idea of the right, of the constitutional right, that is I have a license from the state to drive, but I don't think I have a constitutional right to drive. Someone might be able to argue there is somewhere in the Constitution, but I don't think so. What does it mean, then, for me to have this constitutional right to gun ownership. How constrained must the state be in the ways it would license or regulate me?
GURA: Well, I think you bring up a great point. There is no constitutional right to have a car or a cell phone or a television set, and if the government were to ban those things, I'm sure a lot of people would be very upset. But if they were to consult their Constitutions, they would see no explicitly enumerated right to have those objects.
Guns, however, are specifically mentioned in the Constitution. They are a form of property the government cannot simply take away from you or prevent you from having, willy-nilly. They have to be respectful. And that means that the government has to demonstrate that there is a compelling interest to enact whatever law it wants to enact, and that whatever the government is doing is I think narrowly tailored to serve that interest and that there is no less restrictive way to serve that interest.
SIEGEL: Mr. Heller is now enshrined in constitutional history. He was the security guard who wanted to be able to take his gun home with him. What's he doing?
GURA: Well, he's very happy. He actually went to work after the decision came out. He celebrated a little bit, and then he went back to work, and I think he's taking it easy today. But he's very happy, and of course, we should all be very happy. The Supreme Court affirmed that we do have an individual right under the Bill of Rights. It's always a good day when the Supreme Court expands the protections that we have.
SIEGEL: You had one justice - if one justice had been of a different stripe and agreed more with Justice Stevens' view of the Second Amendment and the meaning of the right to bear arms, it would've gone the other way.
GURA: It would have, and that's a scary thought. That is something to consider. It's sad that four of the justices would have written the Second Amendment out of the Constitution, and I'm sorry that we couldn't reach any of them. It was my one slight disappointment in all of this. I felt that we might have reached more than five of them, but of course, I'm happy with five.
SIEGEL: Some people say a win is a win is what...
GURA: A win is a win. It is the law. It is now the said law of the United States, and the government needs to conform its conduct to that decision.
SIEGEL: Alan Gura, thanks a lot for talking with us.
GURA: Thank you so much.
SIEGEL: Alan Gura, who argued for the successful side in yesterday's Supreme Court ruling on gun rights. Transcript provided by NPR, Copyright NPR.
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