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February 20, 2003

Bird hopes to argue gun case before highest court

By MARTI TAYLOR-DN Staff Writer

A Rancho Tehama man recently appealed to the supreme law of the land in his attempt to make California officials admit that private citizens have a constitutional right to bear arms.

Having his case denied, appealed and unruled upon, has still not deterred Don Bird, 68. The retired contractor, who filed suit against California officials after the passage of several gun-control laws, hopes the U.S. Supreme Court will hear his case.

Bird refers to the Second Amendment to the U.S. Constitution, which states "a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

The quest for acknowledgement of a right to keep and bear arms, originally granted to Americans in 1791 through the ratification of the Bill of Rights, led Bird to file a Writ of Mandamus in U.S. District Court.

Bird's lawsuit, filed against Gov. Gray Davis and various California legislators, claims the government infringed upon his Second Amendment rights by passing several gun-control laws. Bird claims these laws violate his private right to bear arms.

In November 2001, Bird filed a civil lawsuit in U.S. District Court in Sacramento. The lawsuit demanded Gov. Gray Davis and Attorney General Bill Lockyer "obey the oath (of office) and acknowledge the fact and exact true wording of the Second Amendment."

In his suit, Bird has simply asked for acknowledgement of his Second Amendment rights to keep and bear arms as a private citizen.

With a denial of the Writ of Mandamus at the U.S. District Court Bird was able to take his case of the Ninth Court of Appeals in San Francisco.

In March 2002, Bird was told by U.S. Magistrate Judge Gregory G. Hollows that "neither the Second nor the Ninth Amendment to the United States Constitution grants a private right to bear arms."

After an appeal, the court refused to rule on Bird's petition. In their sole comments on the case the court said that to the best of their knowledge "no related cases are pending."

The Ninth Amendment to the U.S. Constitution reads "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Bird's legal journey now leads to the U.S. Supreme Court. He has prepared a 24-page Petition for Writ of Certiorari and submitted it to the Supreme Court, asking that they either issue a ruling on his case or order the Ninth Circuit to render a decision. Bird, who does not have an attorney, hopes his case is heard by the U.S. Supreme Court later this year.

Bird has labored on the case for more than two years now. According to the former Marine, he did all his own legal work and writing. Bird also funded the suit entirely on his own at an estimated cost of $5,000 for filing, refiling and copy costs.

The case, according to Bird, has reached the Supreme Court in an unusually fast amount of time and at a minimal cost for such a case.

"This case is for everyone who believes in the Second Amendment," said Bird. "I'm just here to right a wrong."

According to Bird, the Supreme Court has not made an important or impacting decision regarding the 2nd Amendment in more than 65 years, since 1938.

Bird's quest has been fueled by comments from current U.S. Attorney General John Ashcroft. Last year, Ashcroft made the statement that individuals "have the right to keep and bear arms."

When asked why he initiated the lawsuit, Bird says "it's a principal thing, words mean everything." He also maintains that the Second Amendment is the most important of the 10 in the Bill of Rights because it "keeps a government in line from taking freedoms away from the people."

It is, "protection against tyranny," he adds.

Bird is also emphatic about distancing himself from "fringe elements" that would chose to destroy parts of the government. He describes himself as a defender of the Constitution and a "patriot." Bird said he does not want himself compared with militants or extremists.

"I love my country with all my heart, I just don't agree with some of the people who are running it," said Bird.

Bird has said that the process has not left him despondent over the state of the American legal system, the opposite in fact, renewed in his belief that it is working as chartered.

"I'm living proof that the courts are listening, you may not get the answer you like but they're listening," said Bird.

He now puts the fate of his obsession in the hands of nine men and women, who's decision will be final.

"I'm sitting in the big court now. My biggest hope is that they at least consider the case," said Bird. He hopes to hear soon the decision of justices, Renquist, O'Connor, Scalia, Souter, Thomas, Ginsburg, Breyer, Stevens and Kennedy, but say's no matter what it is he will not give up. "I will take these guys to the wall."