Sunday, June 29, 2008

DC Gun Ban Gone

The Supreme Court has overturned the District of Columbia gun ban. The ruling was 5-4, with the conservatives (plus Kennedy) in the majority, and the liberals in the minority.

Here is the decision: District of Columbia v. Heller

Here is some analysis of the decision.

After reading DC v Heller
Court: A constitutional right to a gun
Commentary: So, what’s next on guns?

We shall deal the with the good and bad in the decision, as well as the implications for other gun laws, and who deserves honor and shame in this case.


Of course, the court struck down the law requiring handgun registration while also not allowing any handguns to be registered. It also struck down the law preventing carrying a gun in your own house and requiring that long guns always be locked up. (It did not address the issue of handgun licencing in principle.)

Justice Scalia's opinion provides an excellent exposition of the meaning of the Second Amendment. As a bonus, it is also in places hilariously witty, particularly when slapping down some of Justice Stevens' assertions.

Scalia notes that the right to keep and bear arms is preexisting--the Second Amendment protects it, not grants it.

Scalia provides a good summary of the various state keep and bear arms provisions.

Scalia provides an interesting exposition of cases and legal commentaries concerning the second Amendment, including US v. Miller.

Scalia ably refutes the argument that you don't need handguns if you have long guns, which was not refuted in the oral arguments.

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. 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.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
Properly understood, it is unlimited. The English provisions that Blackstone commented on may not have been. Courts may have made such statements, but that does not make them right. The right applies to 'arms' as the term was understood by the Founders, basically those weapons useful for defense against individuals. It does not apply to nuclear weapons, of course. No manner of keeping or carrying an arm may be banned. As long the purpose is not to commit some other crime, the right covers it.

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Prohibitions on felons and the mentally ill owning guns are legitimate if they are incarcerated. However, if a felon has served his time or 'mental illness' is simply the opinion of a psychologist about someone who has not been committed, then it is not. Which places are really 'sensitive' can be determined by how they treat the general public. If they allow visitors unmolested, then they are not sensitive and arms must be allowed. Only if the public is allowed by permission only, and hence there are guards and barriers (e.g. military bases) can arms be banned. Aside from the prohibition of selling arms to known criminals, regulation of the sale of arms is illegitimate.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
This makes no sense. Whether you have a right to have a weapon depends on how many other people use it? The definitions of 'arms' cited earlier in the opinion don't say this. Whether a type of arm is common, or even exists, has no connection to whether you have a right to it. According to the standard the court proposes, if the government bans a weapon after it is common, this is unconstitutional, while if it bans it before it is common, this is constitutional, even though it is a greater infringement!

One is tempted to blame Justice Kennedy for the flaws in the majority opinion, though this cannot be proven.


What does this decision mean for other gun control laws? The only federal gun control law clearly appears to be unconstitutional is the gun-free school zones act. Not necessarily the part about the schools themselves, but the part that bans guns within 1000 feet of a school, theoretically including people's houses. In fact, an earlier version of the same law was struck down as unconstitutional because the commerce clause did not allow such a regulation.

The 1932, 1968, 1986, and Brady (1993) gun control bills are not affected by this decision. Of course, it is certainly possible that future decisions could build on this one and affect them. The Lautenberg amendment (1996) related to 'domestic violence' might possibly be affected.

Whether state gun laws are affected depends on whether the Second Amendment applies to the states. The only way it could do so is if it is 'incorporated' by the 14th amendment. Courts have not to date ruled that it is, and have treated the rest of the Bill of Rights piecemeal on this point. The court declined to rule on this issue, and it sent mixed signals. Incorporation is a very dubious principle, but as long as it exists, there is no reason why it should not be used to advance freedom.

If the Second Amendment is incorporated, then laws such as the Chicago gun ban would be unconstitutional. The NRA has already filed suit against Chicago and several of its suburbs for their gun bans, and against San Francisco for its ban on guns in public housing. Several other local gun laws could be threatened.


Who deserves credit for this decision? Justices Scalia, Thomas, Alito, Roberts, and Kennedy, of course. Lawyers Alan Gura and Robert Levy filed this lawsuit and guided it through years of hard work. The plaintiffs Heller, Parker, and the others. The NRA (later on) for rounding up lots of Congressmen and state Attorneys General to support the suit.

Who doesn't deserve credit? The Bush administration, whose Solicitor General opposed overturning the ban and argued this position in court. The NRA (early) which tried to sabotage the suit by filing a non-Second Amendment suit and merging the two. In fairness, the NRA had very real concerns about the strategy behind this suit. If Justice O'Connor was still on the court instead of Justice Alito, the result could have been very different.

Finally, shame must be affixed to Justices Stevens, Souter, Ginsberg, and Breyer. They attempted a truly evil act. They tried to annihilate one of our most basic rights and freedoms. For this they deserve our everlasting contempt.

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