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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."