The Bush administration urged the Supreme Court to overrule the D.C. Circuit’s decision in Parker v. District of Columbia, alleging that the court used the wrong standard of review (story here). The administration said that the ban may well be unconstitutional, but should be analysed under a more deferential standard (intermediate scrutiny instead of strict scrutiny).
“The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of ‘Arms’ that can be traced back to the Founding era…. If adopted by this court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns [sic].”
There are several things wrong with this, but let’s take the high points. First of all, a strict scrutiny standard (“narrowly tailored to meet a compelling state interest”), long used by the Supreme Court for virtually every statute which directly opposes a Constitutional mandate, would still permit the federal government to outlaw some forms of firearms. Generally, the Court has upheld restrictions on certain, narrow classes of guns (i.e. machine guns), and the possession of guns by certain individuals (minors or the insane, whom would be more likely to hurt themselves with the weapons,. and felons, who may use them to commit crimes). These are all understandable under strict scrutiny, and would withstand that review. The “parade of horribles” argument makes little sense when legislatures are still free to act to protect the people from the aforementioned horribles.
Second, the idea of tracing an arm back to the Founding era, before granting it protection, is utter foolishness. Let’s analogise to the First Amendment. Should only those “presses” and “speeches” traceable to 1791 be protected? Newspapers of limited circulation (approximately 2,000 copies per week) would be permitted, as would speeches in the public square; however, blogs, television, radio, cable, on-line newspapers, and the New York Times (circulation 1.1 million daily, 1.6 million on Sundays, printed in hundreds of cities – hardly something contemplated in the Founding Era) would not be allowed. The same rationale should not be applied to the Second Amendment. Furthermore, the very protections secured by the Second Amendment – the ability to defend oneself against hostile governments and law-breakers – would be undermined by such a position. A free populace cannot remain that way long when a government armed with AK-47s controls those armed with steak knives, flintlocks, and the occasional shotgun (used for hunting only, of course!). Our enemies – either our neighbours, intent upon homicide; our government, intent upon tyranny; or foreign nations, intent upon dominating us – cannot and will not constrain themselves to use weapons “that can be traced back to the Founding era;” they will meet us with all the firepower at their disposal, leaving us underarmed and virtually unarmed. This gets better:
Washington lawyer Walter E. Dellinger, who has been retained to argue the city’s case before the court, added: “While there is a great deal in the solicitor general’s opinion with which we disagree, I am gratified they recognize the Court of Appeals erred in striking down the District’s law without considering whether it was reasonable to ban a type of weapon — handguns — which can be concealed and carried into schools, office buildings and subways.”
Oh, heaven forbid a teacher be able to stop a school shooting. Sure, teenagers are noisy and disruptive, but they ought not be shot at like clay pigeons when attempting to receive an education. Furthermore, did we learn nothing from Colorado? Did Mr. Dellinger become an attorney after being unceremoniously stripped of his balls? Those who can carry guns, concealed on their persons, are deterrents to those intent upon mass slaughter. Your average deranged psychopath cares little about a fine and a misdemeanour charge, which will not exacerbate several consecutive life sentences; however, law-abiding citizens do so mind a criminal record, however slight, and are forced to choose between obedience to the law and the protection of themselves, their families, and those around them.
As a side note, perhaps one previously mentioned on this blog, the structure of the Second Amendment is virtually identical to that of Art. I, Sec. 8, cl. 8: “The Congress shall have the power To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” (here). No one really believes that, when the USPTO grants a patent on a device which does nothing to promote the useful arts, or when a copyright is granted to a film that does nothing to promote theology or philosophy (or do anything save waste time and kill brain cells), the Constitution is violated; yet, the same approach is used on the Second Amendment. Utter nonsense.