The Supreme Court quite recently heard its first gun control case dealing with an individual's right to own firearms since 1939. The case was originally brought by one Dick Heller of Washington, D.C. D.C.'s current gun control law is effectively a ban on an individual right to own a handgun. The law actually says that you must register your handgun with the city, but the city hasn't registered them since 1979. Also, no other firearm (i.e. rifle or shotgun) may be kept loaded or assembled inside a person's residence. D.C.'s position is one of crime prevention. Heller's position is one of self defense. Heller won in a lower court decision, and the Supreme Court has heard the case.
I will make no attempt to hide where I stand. Heller is right. His right to defend his home against potential invaders outweighs his city of residence's right to restrict handgun ownership to those who disobey the laws. That is effectively what is accomplished every time a ban of any kind is passed. Only the criminals then possess whatever was banned.
I listened to the majority of the oral arguments on CSPAN (I missed the D.C. lawyer's argument). First, I am really, truly glad that I will never be the Solicitor General of the U.S. This guy got grilled, and, to his credit, did really well. I guess that if you stick a brilliant legal mind in front of nine other brilliant legal minds, it all works out. There were two major points from the orals that I wanted to address.
The first was something brought up by Souter. Apparently it was illegal to keep a pistol loaded in one's home in Massachusetts back in the late 1700's. This was due not to gun control influences (assuming there were any at the time, which I doubt), but due to fire control issues. You see, black powder is quite flammable, and it's storage was restricted to the upper floor of buildings to allow for the best chance of saving the building in case of fire.
Souter's point was this: If a state could make a law (no loaded pistols) to account for extraneous circumstances (fire), why could D.C. not make a law (no handguns) to account for its own circumstances (one of the highest murder rates in the country)? He was asking this question repeatedly to the guy defending Heller, and the lawyer never gave any answer, always dodging the point. I don't know why. The answer is that restriction of handguns and functional long guns intended solely for the protection of an individual's or family's home gives an unfair advantage to the criminals. I think part of the definition of a criminal is one who disobeys the laws. If I'm a criminal and I know that nobody in the city has a gun but me and my fellow criminals, I've got free reign to burglar (or worse) any home I want.
Second point from the orals: I really believe that the majority of the Supreme Court Justices (I'm going to leave out Thomas here because he didn't talk, so I can't attest to his motivations, and I'm also leaving out Stevens because his opinion was blatantly obvious) are truly interested in ruling based on framer's intent and precedent. The last case to address this issue was Miller in 1939. That decision said that an individual's right to own firearms was restricted to those arms which would have "some reasonable relationship to the preservation or efficiency of a well regulated militia", specifically meaning that a sawed off shotgun would be useless in a militia setting, so we can't have those. The biggest shock of the case for me was when Ginsburg implied that machine guns, while not reasonable in a militia setting in 1939, could be considered reasonable, in fact necessary, now. Her point wasn't that we should be able to have machine guns (which is debatable), quite the opposite. She was suggesting that the precedent had outlived its usefulness. But she recognized what upholding that precedent could mean. Also, there was much argument over whether the right to "keep and bear arms" is one right or two, and when a person is considered to be "bearing arms".
Overall, I think that this is a fascinating case. I think that the good guys (Heller) are going to win (the swing vote of Kennedy was hammering not having the ability to defend yourself in your house as not okay), though how broadly the decision is applied is the big unknown. I suppose we shall find out this summer how this all shakes out and what is is all going to mean for our right to own and use firearms.
District of Columbia v. Heller
Posted by Joel on 3/23/2008
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21 comments:
I am definitely rooting for Heller. My right to own a gun and defend my family is a basic right guaranteed by the constitution. If we lose that right, I think a lot of innocent people will suffer, and we will be headed toward anarchy.
One can not logically argue that making guns illegal would decrease the amount of violence. The thugs who use guns recklessly will get them legal or not. Same with drugs, those who want to use them will find a way legal or not. It is my right to bear arms so why do they question it?
But the question, folks, is whether in fact the right for you to personally own a gun is what is guaranteed int he Constitution. Is it the right to bear arms, as in any type of firearm for any reason, whenever you want generally speaking, or is it the right to a "well-ordered militia" meaning defending oneself or one's city/state against an invasion or a tyrannical government?
That's the question, if I'm not mistaken. So saying that it's your right and no one should question it rather misses the boat entirely as to why the Court is hearing it.
I'm on vacation but I'll be checking in periodically this week anyway, because I am sick sick sick and I just can't get enough. :)
That is a scary thought if the right to bear arms is being reduced to just a well-ordered militia. I think the right to bear arms means I have the right to protect myself and my family. If that right is taken away, who is going to protect me from invasion of my home? The government? Yeah right . . .
watch out with that thought Stephanie---according to comments made in other sections you are venturing into gray area ie. thinking about fighting against the government, which is "treason"!!
I think we can learn a lot about this issue if we look at other nations which have outlawed citizen ownership of guns. Like in Spain, citizens can't have guns. Only policemen, etc can. But that is a country rife with violence among its people.
For the record, I don't think a gun by itself is a threat. When were guns invented? How much violence was in the world prior to that time?
Its the thoughts of the person holding the gun that issues the threat.
I was thinking more along the lines of a burglar entering my home, not the government. If a burglar is breaking into my home, who is going to protect me? Me.
Great posts and comments. I'm still in shock about the whole lack of 2nd Amendment rights in D.C. We "trust" our elected officials to watch out for us, yet they just make their constituents sitting ducks. You're right Joel, the anti-gun law just makes the crooks stronger and gives them the clear advantage over an unarmed citizen.
What good is the Constitution or the Bill of Rights if some people who were on a super liberal nut job power trip open their mouths and essentially negate our 2nd Amendment rights?!
This Heller case is a no brainer and I hope that he wins, scratch that, I know he will. In fact, I might just go out and buy myself a 12 gauge shotgun to celebrate.
So you guys really think there is absolutely no foundation for the argument that maybe, possibly, the second amendment's two clauses (the "right to bear arms" and the right to maintain a "well-regulated militia" overlap, or in other words that one is restating the other? That the right to bear arms is indeed the right to a well-regulated militia, and that they are not two separate things?
I don't personally know enough about the history and the climate and the times in which the Amendment was written to say whether that interpretation is correct or not, only that I have heard it raised by a number of people who are in a position to know so I think it's worth considering, along with the interpretation that it means a man has a right to bear arms to defend himself and his family, etc.
There are many countries that either do or do not allow guns, and their violent crime rates are all over the map. I don't think we can point to whether a nation allows its citizens to carry guns or not and then point to its violent crime rate and say there is a causal correlation. Obviously there are many other contributing factors.
I do agree that any way you slice it, DC's gun laws are kind of kooky. If a man does indeed have a right to protect his home and family, against whatever it is deemed protection is necessary against, then being required to keep the gun disassembled and unloaded isn't really supportive of that.
Do you gun folks have any thoughts on what type of weapons should be "allowed"? Handguns? Rifles? Assault weapons? I'm fairly gun-illiterate (as in, I just disclosed the entirety of the terminology at my disposal) so talk to me like I am five years old. But I really want to know. What kind of guns do you think are permissible and reasonable, and under what conditions should they be stored, and should they be carried in public, etc?
And WHY?! Don't forget the why please. :) I want to know more than "it's my right", if possible. Why should it be your right, under the second amendment?
Different Kevin...! Thank you the Wizzle for bringing it back to what the Constitution says, not what we want it to say. I am rooting for Heller, but a lot of conservatives are giving the wrong reasons for doing so.
PS "Obviously," really? my tirades have all come to naught...
kws, what are the "right" reasons?
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.
Sometimes it is used this way: 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.
I interpret this to mean:
1. A well regulated militia that is necessary to the security of a free state shall not be infringed.
2. The right of the people to keep and bear arms shall not be infringed.
3. A well regulated militia that is necessary to the security of a free state and that requires people to keep and bear arms shall not be infringed.
Obviously my interpretation is not unequivocal fact, or else we wouldn't have the Supreme Court deciding how to interpet it. But, it does seem pretty clear to me that it protects "the right of the people to keep and bear arms".
Personally I think that the way it has been interpreted for years...namely, people have the right to keep and own firearms as well as the right to a well-regulated militia (meaning the militia is regulated by the people, not a neo-Cromwell).
Does anyone besides me think that changing the interpretation of this amendment, like 200 years after it was written and initially interpreted, is a bit ODD?
Don't you think our great-great-grandparents were probably closer in time to the mindset of the country at the time of the writing of the constitution, hearing stories about it, etc from their own grandparents, and the fact that people were always allowed to own guns just maybe demonstrates the intent of the authors??
Yes, Amy, I do.
Yes, but firearms have changed so much since the Constitution was written that it seems utter insanity not to periodically reevaluate our stance to make sure that with the invention and popularity of ever more destructive weapons, we are still holding true to the intent of the amendment.
And I think the amendment is, as written, utterly up in the air as far as interpretation, and it is necessary to examine every available piece of documentation and context to get at the "true" meaning, if that's possible. Including, of course, word of mouth if such things existed.
Thank God we've reevaluated some practices that were in place for a very long time, from the foundation of the country. I don't know, maybe slavery, women's suffrage...
Rachel - What should we be "allowed" to own? This is a very interesting question that I've been thinking about a lot lately.
I'll start with the whole militia argument. The original point of the militia was to allow the citizenry to defend themselves against a corrupt/overbearing/illegally acting/etc government. Back in the day, this was a legit deal. The people had the same weapons and technology available to them as the governments of the world did. Anything the government had that they didn't (canon, for example) could be expected to be won in battle and were not absolutely necessary for victory. Jump forward a few hundred years. The "militia" of today would be a joke against the government. Are you kidding me? We aren't even allowed access to machine guns, let alone howitzers (which are modern-day canon that can shoot at least 20 miles with pinpoint accuracy), jet aircraft armed with heat-seeking and/or laser-guided missles, nuclear weapons, bombs of any sort imaginable, ships, bombers, etc. We don't really even have the capability for something as basic as radar so we could have any warning we were about to be blown up. We (gun rights people and anti-gun rights people) need to come to the realization REALLY QUICKLY that the idea of "a well regulated militia" is dumb. My .45 (handgun with a bullet that is 45/100 of an inch in diameter) and my neighbor's .30-06 (rifle with a bullet 30/100 of an inch in diameter that was invented in 1906) don't stand a chance. So let's drop this idea that the citizenry can defend itself against the government (even if it has the right to do so).
So what should we be allowed to have access to? Overall, and in all seriousness, I think that the federal gun laws as they currently stand are pretty gosh darn good. Many of the state and municipal gun laws are too restrictive. I don't think that anybody should have to register (or anything equivalent) any gun that they own. This just makes available a list somewhere so the government knows who has guns. It isn't any of their business. I think that the availabilty of the .50 caliber rifle (which has a half-inch diameter bullet and can punch through 1/2" steel at over 1000 yards) is awesome, though the cost is very restrictive to most of us (not to mention the ammo is something like $5 a bullet). I don't think that we should be able to buy the same machine guns that the military uses. It wouldn't hurt my feelings to have automatic handguns available, though I'm not bent on it. I would also support some kind of magazine capacity limit on them so you couldn't do this. I think that any currently available gun or accessory (please read as "post assault weapons ban expiration") needs to stay available. Obviously there are things out there that most people don't realize and that I'm not sure how people obtain legally.
I don't mind instant background checks. I think that we do need to incorporate some kind of national mental health background check (if they haven't; I haven't bought a gun recnetly...) to avoid the VA Tech situations. But we don't need any more restrictions on what we can and can't own.
To be honest, this discussion reminds me of that quote that the constitution will hang by a thread in the last days. How many things in the constitution and bill of rights are subject to "new interpretation"?
All I know is that if citizens aren't allowed to legally arm themselves, then only those who disregard the law (i.e. criminals) will have them. Sounds pretty stupid to me.
Sorry. I forgot the WHY!
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.
Two rights (well, three if you think that keep and bear are separate rights): 1) To be able to form a Militia. 2) People can keep and (3) bear arms.
Militia thing is dumb, as I've mentioned. So we have the right (or rights) to keep and bear arms under the Second Amendment.
Who decides which arms gets a lot trickier, but that is a battle I'm willing to fight another day. Just leave things as they are for now, at least federally. Back off all the more restrictive local laws to match. I will be happy.
This had to be the framer's intent. Look at the English Bill of Rights (from which the Constitutional Convention attendees would have had to draw some inspiration): "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law." This was its own little right. No attachments. The men who wrote the second amendment, in my opinion, were following suit and EXTENDING that right to allow for militia formation. Not using the militia as an excuse for owning arms. More rights, not more restrictions.
English Bill of Rights here for your own reference.
Joel, I agree with your judgment of the framer's intent. Well done.
In my opinion, the second amendment does provide the right for the people to keep and bear arms. Do I think that a country without guns would be one with less violent crime? Yes I do, but I'm a realist, and it's a couple hundred years late for that.
So I'm cool with the people owning guns for the purpose of defending their homes - I think that is essentially the purpose the founding fathers intended when drafting the (ridiculously vaguely-worded) second amendment.
I do think, however, that governments at the federal, state, and local levels have the right to limit this right within reason. Let's look at this a little more closely. All of these things qualify as "arms": handguns, hunting rifles, shotguns, sniper rifles, machine guns, shoulder-mounted rockets (bazookas), bombs, nuclear warheads, ICBMs, etc.
Obviously, it shouldn't be allowable for an ordinary citizen to possess a nuclear weapon. So then, who gets to decide what is allowable and what is not? The government must be able to regulate this to a certain degree.
In this case, I'm willing to put my trust in the brilliant American system of checks and balances to come up with a reasonable solution.
Personally, I think the DC statute is a little ridiculous because it is not allowable to keep a loaded weapon in the house. If the intent of the second amendment is to give the people the right to defend their homes, then in my opinion that clause of the DC law should be struck down.
But the real issue for most non-extremist minds on this issue is which "arms" are allowable and which are not. If it were up to me, I'd say handguns, shotguns, hunting rifles, etc. are fine, while automatic weapons, greater than .50-caliber rifles, etc. are not. You don't need a cache of military-grade weaponry to defend your home, I'm sorry.
Good explanation Dave.
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