CONSTITUTIONAL `FRAUD' WHY DIDN'T GUN LOBBY APPEAL TO HIGH COURT?

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, February 17, 1993                   TAG: 9302170326
SECTION: EDITORIAL                    PAGE: A9   EDITION: METRO 
SOURCE: RICHARD M. ABORN
DATELINE:                                 LENGTH: Medium
CONSTITUTIONAL `FRAUD' WHY DIDN'T GUN LOBBY APPEAL TO HIGH COURT?
MEMBERS of the National Rifle Association deserve an explanation from their leaders in Washington.
For years, NRA leaders and lobbyists have been telling members, and the American people, that the Second Amendment's "right to keep and bear arms" prohibits gun-control laws. For years, the NRA has claimed that this right is not limited to people serving in a "well regulated militia," despite the inclusion of those words in the amendment. For years, the NRA has insisted that its interpretation of the Second Amendment is absolutely correct.
Why, then, was the NRA afraid to ask the U.S. Supreme Court to hear its constitutional challenge to California's law banning military-style assault weapons? For almost three years, the NRA had pursued a lawsuit to overturn the California law as a violation of the Second Amendment. Twice the NRA lost in the lower federal courts. But when the time came to take the case to the Supreme Court for the ultimate showdown, the NRA walked away. Why?
The excuses given so far just don't wash. One NRA spokesman was quoted as saying the case hadn't fully "percolated" through the court system and therefore was not ready for Supeme Court review. Wrong. The case was as ready as it was going to get. Having lost in the U.S. Court of Appeals, the NRA had the right to file a petition asking the Supreme Court to review the Court of Appeals ruling. No petition was filed.
The NRA also has claimed that it will file a new suit against the California law in state court. That remains to be seen, but it does not explain the NRA's decision to drop its pending Second Amendment suit. The fact remains that the NRA had an opportunity to ask the Supreme Court to endorse its view of the Second Amendment. The gun lobby was silent.
Finally, according to another NRA official, the California suit was abandoned because it presented the wrong theory of the purpose of the "right to keep and bear arms," erroneously linking the right to the sporting use of guns. This is the strangest excuse of all. Under the law, the NRA was free to present the Supreme Court with any theory about the Second Amendment that it thought would be persuasive; instead, it did nothing.
Former Chief Justice Warren Burger said last year that the NRA's insistence that gun-control laws violate the Second Amendment is a "fraud" on the American people. By failing to appeal the California case, the NRA has entered a plea of "guilty" to Justice Burger's charge. The NRA was afraid of a Supreme Court showdown because its legal position has no substance. As the historical record shows, and as the Supreme Court long ago decided in United States vs. Miller (1939), the Second Amendment guarantees the right to keep and bear arms only in service to the organized state militia (now the National Guard).
The NRA leadership undoubtedly will continue its misrepresentation of the Constitution. But the next time you hear Charlton Heston describe the NRA as the great protector of some imagined constitutional right to be armed, ask yourself: If this "right" is so precious, why was it not worth defending before the Supreme Court?

by Archana Subramaniam by CNB