Posted by: bridget | 12 November 2007

S. Ct. May Hear DC Gun Ban Case

The Supreme Court will announce, as early as tomorrow, whether it will hear the D.C. gun ban case on cert (Story here).  The District prohibits the ownership and carrying of all handguns; one may  not even keep one in a house for self-defence.  This goes far beyond the scope of “reasonable restrictions” that the Supreme Court has allowed.  Those restrictions apply to either a narrow category of people (minors, felons, the mentally insane – those too violent or incompetent to safely handle a weapon) or to a narrow category of weapons (AK-47s, sawed-off shotguns – those too dangerous to be used outside of a professional military, or those used specifically for the commission of crimes).  According to the NRA, about half of gun owners have handguns.  DC’s ban is overbroad: its scope is not limited to a certain class of persons, more likely than others to harm themselves, nor is it limited to certain types of weapons. 

Most opponents of Second Amendment rights point to the prefatory language therein:

A well-reguled Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

As a functional matter, the purpose clause is identical to that found in Art. I, Sec. 8, cl. 8 (“To promote the Progress of Science and useful Arts…”); no one has ever argued that Congress may only allow for copyrights and patents on those things which promote philosophy and engineering.  Functionally, the purpose clause does not limit the right to keep and bear Arms to those who happen to be in a state militia; it merely states its raison d’etre.  After all, if the Founders so intended that construction, they would not have claimed that this is a right of the people (used expansively elsewhere); they would have limited the right to militia-men. (More here and Resnick, 77 U. Det. Mercy L. Rev. 1.)

The Founders were kind enough to tell us exactly why they stuck the Second Amendment in there – something about being necessary to our freedom and security.  It would be odd to use this language to argue, first, that the right contained therein is not really a right at all, and, second, that it is for our own good to revoke said right. 

At the time of the Founding, the militia compromised every able-bodied, free man (here).  Even if the Second Amendment were limited to militia-persons, that is hardly a substantive restriction upon the right to keep and bear arms.  Furthermore, militias were under the control of the States (although the Congress could call out the militia for national needs); the Second Amendment has only (as of yet) been held to apply against the federal government.  It is nonsensical to import the state’s definition of a militia into potential federal laws.   We would be left with the situation in which the federal government could prevent all non-militiamen from keeping arms, and any State could override the restriction by inducting everyone within its borders into the militia.  A federal ban on weapon-owning would thus apply differently to people, depending on their state of citizenship, and such a ban would be (in a strange reversal of the theory behind the Supremacy Clause) subject to state whim. 

One of the arguments against Second Amendment rights is that the right only protects the right which would have existed at the time of the Founding: right to own muskets capable of firing a shot every few minutes.  Should the same rationale be applied to the First Amendment, our right to free speech and a free press would be limited to that found in the late 18th century: no blogs, internet, movies, magazines, or newspapers printed on modern presses (which are clearly capable of disseminating much more information than those printed on older presses).  Furthermore, the ability of the people to resist tyranny cannot be realised when oppressors are fighting with modern technology and are resisted with muskets and flintlocks; it is only when the would-be tyrants or criminals are evenly matched against civilians that a free, secure state may be realised. 

Finally, the Founders were not a bunch of legal nerds hanging about in a dingy, Dark Ages cave, with no conception of technology aside from those nifty candles invented 200 years ago; their number included Benjamin Franklin; they expressly provided for a patent system in the Constitution; and they were aware of developments in weapons technology.

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Responses

  1. Great points about the musket argument (as if the Founding Fathers didn’t understand that weapons tend to advance over time – hence their wording: “bear arms”)

    Did you see the Ted Nugent clip about guns? I love the part where he points out how foundational the concept of protecting yourself is.

  2. It’s a cliche, but I believe in gun control…

    …with both hands.

  3. Good points.

    I guess human nature does not change. I would say the concerns of the country’s founders are as vailid today as they were then.

  4. Neil,

    No, I hadn’t seen that clip. The self-protection element of gun ownership encompasses protection from other civilians (which can never be completely outsourced to the police, no matter how we may try) and protection against a tyrannical government. I just do not see either threat as irrelevant in a modern era.

  5. Matthew,

    (Snort) I like it. :)

    There’s always, “Keep your laws off my gun,” “My gun, my choice,” “If you can’t trust me with a gun, how can you trust me to protect my family?” and “Keep the government out of the nightstand.”

  6. Sunday School Teacher,

    Agreed. There is something perverse in the argument that advancing weapons technology makes us safer if we don’t have those weapons and our attackers (civilians or others) do.

    It always gets to me that the people who stand to benefit the most from gun ownership are those who face the most discrimination. Gay men and lone women are prime targets; should they be without a means to protect themselves? Specifically for women and the elderly – it is difficult to go through the world as physically inferiour to others around you. I’m quite strong for a woman, but I know that between me and a strong man, I’m toast, every time. We can’t legislate sexual dimorphism into irrelevance. Why not let us protect ourselves from predators?

  7. Bridget…….I used to own a Chinese-Communist AK-47 Assult Rifle with bananna clips and enough ammo to make the national news. I even had it worked out with the MP’s to get it undetected back into the USA, but I left Vietnam on an Emergency Leave and had to telex instructions to sell my AK. Hmmm…..DC would be unhappy with me. :) ……steve

  8. Hi Bridget — Here’s a clip of the Nuge regarding the 2nd Amendment if you’re interested. I always find the Nuge to be interesting. :)

  9. So that’s where I saw the Ted clip! I should have know it was at Tammi’s.

  10. Lol Neil! Happy to jog your memory. :)


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