‘Who Has the Right to Own Guns?’ Two Top Advocates Battle it Out
By: Elizabeth Stull

WASHINGTON SQUARE — High Noon came on the first Monday in October for two well-known New York attorneys who faced off in a mock Supreme Court argument about the Second Amendment.

Armed only with their wit, experience and existing case law, Brooklyn attorney Barry Kamins and Jeh C. Johnson argued the merits of a case that could soon come before the real U.S. Supreme Court, at an event for the Office of the Appellate Defenders.

In the past 100 years, the U.S. Supreme Court has only issued one decision on the Second Amendment right to bear arms. In U.S. v. Miller (1939), the Supreme Court found that weapons possession must bear “some relationship to the preservation of a well-regulated militia.”

This year, the Court may grant certiorari to review the issue for a second time. The case is District of Columbia v. Parker, and both sides have asked the Court to review the matter. It involves a city law that bans people from keeping handguns in their homes. The issue is whether the Constitution protects an individual’s right to bear arms for private purposes, or just the states’ right to arm individuals for the purpose of maintaining militias.

Kamins, a recognized expert in criminal law and procedure, author, scholar, adjunct professor and president of the citywide Association of the Bar of the City of New York, chose the more difficult position.

He stepped up to the podium in an auditorium filled with unsympathetic New York attorneys and law students, in a city where the mayor campaigns for gun control, and argued that individuals have the right to keep guns in their homes. The case law was slim, as rare as a friend in an uneven fight.

He could not count on support from the bench, either: this judicial panel was as different from the real Supreme Court as Justice Thurgood Marshall (the former NAACP lawyer) was from the current, conservative Chief Justice John Roberts.

Undaunted by the odds against him, the Brooklyn defense lawyer pulled out his rapier wit and distinguished the Supreme Court’s decision in Miller. That case upheld a law against carrying weapons from one state to another, a public activity, whereas the current statute reaches inside someone’s home to take their personal property, Kamins said. The Miller statute specifically targeted sawed-off shotguns, whereas the Parker statute is broader, he argued.

With only two cases in his quiver of precedents, Kamins took careful aim with each one, attempting to cripple the opposing arguments. He leaned on the 5th Circuit’s decision in U.S. v. Emerson (2001), which upheld an individual’s right to bear arms for private purposes. The D.C. Circuit Court in Parker also found that “the Second Amendment protects a right to keep and bear arms.”

The historical and contextual meanings of each word in the amendment become significant in determining whether the Constitution provides an individual right or “collective right” to bear arms.

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