This column by ACRU Senior Legal Analyst Ken Klukowski was published August 5, 2013 on Breitbart.com.
The National Rifle Association (NRA) sued the Obama administration’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) over a federal law denying law-abiding young adults their Second Amendment right to own a handgun. After fighting it out in the lower courts, the NRA has now petitioned the U.S. Supreme Court to take the case.
The case is NRA v. BATFE, and the lawyers representing the NRA are the best in the nation on this issue.
Federal law allows all law-abiding adults (meaning ages 18 and over) to purchase a rifle or a shotgun. But that same federal law mandates that you must be 21 or over to purchase a handgun. Law-abiding adults who are 18, 19, or 20 can buy a rifle or shotgun, but are regarded by the federal government as too “irresponsible” to buy a handgun.
This is out of step with the Constitution. In 2008, the Court held for the first time in D.C. v. Heller that the Second Amendment right to keep and bear arms is an individual right of private citizens. Then in 2010, the Court held in McDonald v. Chicago that the right to bear arms is not only an individual right, but a fundamental right, which means burdens on that right are subject to a very strict form of judicial scrutiny that places many such restrictions on the chopping block.
But after those two cases, almost all of the gun-control measures examined by lower federal courts have been upheld. The lower courts are in need of further guidance from the Supreme Court on just how robust and powerful the right to keep and bear arms is in our Constitution.
The federal law at issue in NRA v. BATFE was enacted years before Heller and McDonald. And it is a perfect example of a law that should be struck down.
This is especially true after the Twenty-Sixth Amendment. Ratified in 1971, it lowered the voting age nationwide from 21 to 18. The idea took hold during the Vietnam War that if someone was old enough to be drafted to fight for this country, then he ought to be able to vote.
This is a much easier argument. If someone is “responsible” enough to be drafted into the military to fight with a gun, and can buy other types of guns, how does the Constitution allow them to be denied the form of gun which is the most common and popular for self-defense?
On July 29, Paul Clement and Chuck Cooper filed the NRA’s petition for certiorari at the Supreme Court, formally requesting that the justices take the case. Paul Clement is widely regarded as one of the finest Supreme Court litigators of this generation (and argued for the NRA in McDonald), and a former law clerk to Antonin Scalia. Chuck Cooper is one of the most accomplished constitutional lawyers in the nation. He is the former top legal advisor to the Reagan administration under Attorney General Ed Meese–with a special and unparalleled mastery of Second Amendment law and history, and is a former law clerk to William Rehnquist.
The NRA is to be commended for committing the resources necessary to retain both Bancroft (Clement’s law firm) and Cooper Kirk (Cooper’s firm) in this important case. Heller and McDonald were low-hanging fruit. Now that those cases are on the books, the real serious lawyering begins to convince the Supreme Court to define the Second Amendment with the breadth and strength that other fundamental rights enjoy, such as freedom of speech and religious liberty.
The NRA’s CEO, Wayne LaPierre, has evidently authorized a major investment into world-class legal defense for the Second Amendment. The decision of which legal team to go with would have been made by Chris Cox and David Lehman, executive director and deputy executive director of the NRA’s political arm, the Institute for Legislative Action (ILA), assisted by ILA’s legislative counsel, Chris Conte.
This is the time to go all-out with the best legal talent in the nation, and the NRA has done so. The fact that ATF will be defended by Solicitor General Donald Verrilli at the U.S. Justice Department means that the justices know this case would have outstanding legal teams on both sides of the case, making it a very attractive one for the Court to grant review.
The Court will likely vote on Sept. 30 on whether to take this case. If the justices agree to hear it, arguments should be in January 2014, with a decision before July 2014.