The Last Gun (7 page)

The shooting did not slack off with the sunrise. At about nine thirty
A
.
M
., a fourteen-year-old-boy in Gulfport, Florida, accidentally shot his friend in the arm with a .357 Magnum revolver, one of two handguns he had brought to the friend's home to show off.
⁷
Later in the morning, in Lebanon, Pennsylvania, Raymond Zegowitz, forty-three, shot to death his girlfriend,
Khrystina Bixa, twenty-three, then committed suicide with the gun. Neither of Bixa's children—three-year-old Christian and twenty-month-old David—were injured, although police could not say whether the children had seen the shootings.
⁸

In Litchfield, Connecticut, Bruce Bochicchio, forty-three, was arrested and charged with threatening his wife and failing to surrender his guns after a restraining order had been issued against him for fighting with his son. Police seized eleven guns, including a rifle and two fully automatic submachine guns, from the family's home. In 2005, Bochicchio's brother, Michael, a retired state trooper, had shot his wife to death and wounded her lawyer in front of a courthouse, then killed himself. At the time of his arrest, Bruce Bochicchio and his wife, Christine, were caring for the orphaned children of his brother.
⁹
Later in the evening, Kenneth Anton Duckett, thirty-seven, walked into the observation area of the indoor pool at the Montclair, New Jersey, YMCA. He shot to death Monica Paul, thirty-one, in front of her eleven-year-old daughter, while her four-year-old son was swimming. Duckett, who was under a restraining order forbidding him from contact with Paul, fled the scene.
¹⁰

Shortly after five thirty
P
.
M
. in Bridgeport, Connecticut, twenty-two-year-old Tamboria Raiford opened fire with a handgun from her front porch into a crowd of adults and children. April Barron, forty, was hit in the head by one of the bullets, but apparently survived her injury.
¹¹
In Deerfield Beach, Florida, a bullet fired through the door hit three-year-old Salayah Buie in the leg while she was watching television with her family. Members of the family suspected that the shooting was in retaliation for an incident earlier in the day. They had notified the county sheriff's office that a pit bull had come into their yard and killed their cat.
¹²
Police arrested three teenagers in Rock Hill, South Carolina, after shots were fired from their car around six thirty
P
.
M
. The teens were chasing another car.
¹³

The macabre dance continued into the night. In Hampton, Arkansas, a four-year-old boy found a loaded handgun in a living
room cabinet at about eight thirty
P
.
M
. He shot his five-year-old sister in the head, killing her.
¹⁴
In Omaha, Nebraska, three separate shootings left seven people injured,
¹⁵
while in Hartford, Connecticut, a young man was shot and killed in a parking lot, and a teenage girl was shot in the face and seriously wounded in a separate incident.
¹⁶
Around eleven
P
.
M
., an armed standoff began in a trailer park in Tucson, Arizona, after police responded to a report of shots being fired and found one man dead outside a trailer. A SWAT team eventually entered the trailer and found two other people dead, one an apparent suicide.
¹⁷

The day ended with the grisly discovery of a domestic murder-suicide. Just before midnight, police in Hattiesburg, Mississippi, found the bodies of Tracy Kennedy, sixty-six, and his wife, Judith, sixty-eight, inside their home. Both had gunshot wounds to the head. The county coroner concluded that Tracy Kennedy had shot his wife first and then committed suicide.
¹⁸

These incidents are, of course, only a fraction of the gun violence that occurred that day. On average, slightly more than eighty people a day are killed by guns in America, and about twice as many are injured. So these anecdotes—gleaned from news reports of the day on
Nexis.com
—are just a glimpse of the real world of America's daily dead and mutilated, a blood-red flag seen faintly through the news media's gun-violence whiteout.

There was, however, no media whiteout at the U.S. Supreme Court in Washington, D.C.
¹⁹
The most dramatic incident of the day involving guns happened in the Court Chamber of that august body. There was a torrent of reportage about the majority opinion in the case of
District of Columbia v. Heller
,
²⁰
delivered by Associate Justice Antonin Gregory Scalia.
²¹
Scalia delivered the opinion from an ideological ivory tower, far removed from the reality of gun violence in America.

It would be difficult to imagine a venue more remote than the Supreme Court from the trailer park in Alabama where Jimmy Tanks died defending his car with a gun, or the home in Lebanon, Pennsylvania, where Khrystina Bixa's boyfriend shot her to death.
The monumental bronze doors that guard the Supreme Court building at the top of the white marble steps on its West Front weigh six and a half tons. Oak doors open from a Great Hall into the Court Chamber, in which the nine justices of the Supreme Court sit when delivering their decrees. The courtroom “measures 82 by 91 feet and has a 44-foot ceiling. Its 24 columns are Old Convent Quarry Siena marble from Liguria, Italy; its walls and friezes are of Ivory Vein marble from Alicante, Spain; and its floor borders are Italian and African marble.”
²²
These royal appointments are appropriate to the nine justices who constitute the third branch of government, with as much power among them as Congress and the president. Seven of the nine are millionaires, one (Justice Thomas) may be a millionaire, while only one (Justice Kennedy) is definitely not.
²³

Scalia delivered his decree from the courtroom's wing-shaped mahogany bench in a grim, condescending, semimonotone.
²⁴
As he droned on, he transported himself and the decision back to the eighteenth century—a disease-ridden world of powdered wigs, pockmarked faces, flea-bitten bodies, and ignorance of the basic principles of public health, disease, and injury prevention. It was a time when even educated leaders “knew” that regular baths promoted promiscuity and that many diseases were caused by foul smells or, as in the case of yellow fever, by immoral behavior.
²⁵
It was from this dismal sump of smug ignorance that Scalia drew the wisdom he shared that day in 2008.

The Court's starkly divided (5–4) ruling turned on its head at least seventy years of settled Constitutional law. Hailed by ideological conservatives as an example of “originalism”
²⁶
—a putative return to strict construction of the “original intent” of the Constitution's framers, as opposed to the judicial lawmaking liberal courts are accused of doing through their “loose construction” of the Constitution—
Heller
struck down the District of Columbia's long-standing ban on the private possession of handguns. “We hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against
rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”
²⁷

“Our opinion is very lengthy,” Scalia warned in his oral presentation. “This summary that I'm giving will state little more than the conclusions. If you want to check their validity against the dissent's contrary claims, you will have to read some 154 pages of opinions.”
²⁸
In a nation in which a serious contender for nomination as a candidate for the office of president derided the sitting president as a “snob” for promoting college education,
²⁹
one might wonder how many of those affected by Scalia's decision would accept his challenge to read its arcane text. In fact, Scalia's opinion is so long that an eminent conservative judge quipped that its bulk would “perhaps just overwhelm the doubters.”
³⁰
Deep within this leviathan, Scalia wrote the following crucial paragraph:

It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.
³¹

The statements in this paragraph are pivotal to the decision, in which the majority decided that the Second Amendment confers an “individual right”—as opposed to the long-standing rule that the right is a “collective right,” intended to ensure the viability of state militias (and their successor, the National Guard). But as
Scalia acknowledged in his opinion in
Heller
, even an individual right is not limitless.
³²
So where the Court drew the line limiting an individual's right was crucial to the modern gun industry. High-powered, high-capacity, military-derived handguns are a vital component of the gun industry's lifeblood. Scalia's portentous effusion provided a factual basis that ensured that the ruling in
Heller
would protect handguns, the most lethal implement of portable killing power ever invented. And yet every alleged fact in the paragraph is at best mischievous myth, at worst demonstrably false. It is significant that, in an opinion top-heavy with ponderous citations to legal authority, Scalia cited not a single source—not one—to support the assertions in this vital paragraph.

In truth, these words are no more than an example of what lawyers call ipse dixit—“a bare assertion resting on the authority of an individual.”
³³
Allen Rostron, a constitutional scholar and law professor, captured this in his critique of Scalia's opinion:

Justice Scalia . . . is certainly entitled to whatever personal views he may have about the relative merits of handguns versus long guns for home defense purposes. But his reliance on that sort of nakedly personal assessment of a public policy issue, to resolve a crucial legal issue in a landmark decision on the Constitution's meaning, is startling. It looks very much like the sort of “judge-empowering” “interest-balancing” that he denounces the dissenters in
Heller
for endorsing.
³⁴

The criticism is more than ironic in Scalia's case. He blasted his colleagues for a decision in 2002, stating that “seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members.”
³⁵
Unfortunately, Scalia's paragraph lies at the axis of a legal ruling that will cost millions of Americans their lives and millions more grave injuries. Its influence is like toxic waste thoughtlessly released into a water supply.

It was not the first time Scalia got his facts wrong in a rhapsody
of enthusiasm for the make-believe world of gun rights. Praising a pro-gun rights book written by Joyce Lee Malcolm, then a history professor at Bentley University,
³⁶
a business college in Massachusetts,
³⁷
Scalia pronounced the book “excellent.” He noted that the author was not a “member of the Michigan Militia, but an Englishwoman.”
³⁸
His point was apparently that an Englishwoman is more credible than an American member of a right-wing militia. Scalia was wrong on his facts, however. Malcolm is not an “Englishwoman.” She is an American.
³⁹

Some might dismiss Professor Rostron's evaluation as sour grapes. Before he became a law professor, he was a senior staff attorney at the Brady Center to Prevent Gun Violence, a well-known gun-violence prevention organization. But it is hard to dismiss the caustic analyses of
Heller
by two federal appeals court judges—Richard A. Posner and J. Harvie Wilkinson III—both of whom were appointed to the bench by President Ronald Reagan and both of whom are highly regarded as conservative jurists. According to the
New York Times
, “Judge Wilkinson, who sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was recently considered for a spot on the Supreme Court. Judge Posner, of the Seventh Circuit, in Chicago, is perhaps the most influential judge not on the Supreme Court.”
⁴⁰
CNN senior legal analyst Jeffrey Toobin
⁴¹
wrote of Posner in 2006, “A prolific scholar and perhaps the nation's best-known federal appeals-court judge, Posner wields singular authority from his chambers, in Chicago.”
⁴²
Perennial pro-gun activist John Lott, a virtual factory of much-criticized and regularly debunked pro-gun academic “studies,” lauded Posner and Wilkinson as two of the three “outstanding” judges serving on federal courts of appeal in 2006.
⁴³
The conservative magazine the
Weekly Standard
wrote that Wilkinson “long has been regarded as one of the most respected conservatives on the federal bench.”
⁴⁴

Neither Posner nor Wilkinson can be dismissed as simpering liberal gun haters. Yet it is hard to decide which of these two conservatives jurists' scorn was more withering. The honor probably
should go to Wilkinson, who, the
Weekly Standard
noted, “bestows upon Scalia's opinion the most scathing condemnation known to conservatives: comparison to
Roe v. Wade
.”
⁴⁵
The comparison has a special sting for Scalia, who was reported in 2005 to especially loathe two high-court cases:
Roe
and
Lawrence v. Texas
, a 2003 decision which declared unconstitutional a law forbidding homosexual sodomy.
⁴⁶