I also doubt that conservatives will be too upset by the "judicial activism" involved in the Supreme Court overturning the DC handgun ban. I don't really understand the details of the ruling at this point, but I'm not complaining about it either. From a policy perspective, what DC is trying to accomplish is just futile -- as long as the District is a very small patch of land adjacent to Virginia, there's no way gun regulations of this sort will prevent criminals from acquiring weapons.
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Activism I Can Believe In
26 Jun 2008 10:23 am
Comments (140)
Now that every DC resident will magically be turned into Rambo McRobocop and will be an unerring dispenser of hot lead justice, there will never be a violent crime in DC again.
Matt,
I suggest you buy the 454 Cassul. You can shoot through walls with the thing. Yeeehaaaaw!
Since guns help people defend themselves from criminals, clearly not only should we allow handguns in DC; we should launch a program to arm & train DC residents.
I'm sure we can count on the NRA to actively support such an active expansion of government / citizen participation in the lessons of preventing crime through handgun ownership.
"...as long as the District is a very small patch of land adjacent to Virginia, there's no way gun regulations of this sort will prevent criminals from acquiring weapons."
The District is adjacent to Maryland as well. Truth be told, there's no way gun regulations of this sort, even applied nationally, would prevent the acquisition of firearms by criminals determined to get them.
I'm not sure if you're being sarcastic, but "judicial activism" doesn't mean any time the court over turns a law -- as it is proper to do when said law is in violation of the constitution.
Even sarcastically, let's not give the "tyrants in black robes" crowd this linguistic victory.
"It's an .88 magnum...it shoots through schools."
"there's no way gun regulations of this sort, even applied nationally, would prevent the acquisition of firearms by criminals determined to get them."
There're limitations to that argument. There's no way we can stop all crime, but it's still good to prohibit certain behavior. In this case, you're balancing the efficacy of a ban against individual rights, and, in some people's view, the law is not effective enough to warrant the reduction of personal freedom (because of DC's proximity to Maryland and VA). A national ban, though, would change that calculus.
Will this force Secret Service agents to be a bit more "enthusiastic" in their duties?
Truthfully, it was already faster for me to buy a .380 from someone in NE/SE than it was to go about it the legal way in Virginia (although the legal route was cheaper).
Anyone that thinks this will lead to a huge uptick in gun violence shouldn't panic. Guns were already plentiful here, they may get a little cheaper, but I doubt there will be a significant rise in shootings.
Matt - I can't see how this is "judicial activism", unless your point is that the term itself is meaningless when used by conservatives to attack rulings that favor liberal/progressive opinion. If so, meh. Some rulings clearly are a bit of legislation from the bench, on both sides. This, not so much.
I have always supported the entire Bill of Rights and (I hope obviously not contradictorily) have been a vocal advocate of repealing the 2nd rather than attempting to do away with it via a death of a thousand cuts. The 2nd Amendment was never meant to limit gun ownership to hunters in red states, and this ruling seems sound to me.
That said, I am in favor of a national referendum on the 2nd, and believe that Americans can reach a reasonable agreement on what we want the present and future of firearms ownership to look like in this country.
Truth be told, there's no way gun regulations of this sort, even applied nationally, would prevent the acquisition of firearms by criminals determined to get them.
Ridiculous and meaningless statement.
While it's obviously impossible to eliminate the use of firearms by criminals, other countries manage to make possession of firearms by criminals far less common than in the United States. Are you suggesting that law enforcement in the US is simply incompetent compared to the forces of other nations?
On the bright side, Obama's chances just went from 70 to 90 percent.
"I don't really understand the details of the ruling at this point, but I'm not complaining about it either."
You could try noticing that the court has never ruled on the 2nd amendment this straightforwardly, so it's hardly activism. You might also try reading what the founders thought about an armed populace, and trying to apply that to the wording of the 2nd amendment.
Then again, that would involve having to educate yourself, something you seem very, very disinclined to do.
I'm not sure if you're being sarcastic, but "judicial activism" doesn't mean any time the court over turns a law -- as it is proper to do when said law is in violation of the constitution.
Well, that's the problem. "Judicial activism" doesn't mean anything at all - it's just a cudgel to use against decisions you don't like. Sarcasm is the only thing it's good for.
Truth be told, there's no way gun regulations of this sort, even applied nationally, would prevent the acquisition of firearms by criminals determined to get them.
Constantly asserted without evidence. Many, many countries reduce gun violence and the amount of guns in their borders extremely effectively through strict legislation. No, you will never perfectly eliminate the problem. We certainly could reduce the problem to a tremendous degree. And even if we really only kept guns out of the hands of non-criminals, that would be a good thing, considering you are something like 48 times more likely to injure or kill yourself or a loved one than to injure or kill a criminal.
People act as though when you become a criminal, they give you a Certified Criminal card and you can then get into Criminal Sam's Club and buy an Uzi off the rack. Illegal guns were once legal guns. Dramatically reducing the number of legal guns in the system dramatically reduces the number of illegal guns in the system.
Individual gun laws never work, because the vast majority of crime is committed by illegal weapons. But I was hoping that sometime in my lifetime the political landscape would change and Congress would take some action to try and reduce the number of guns in the country as a whole. Unfortunately, today makes that pretty much impossible.
"On the bright side, Obama's chances just went from 70 to 90 percent."
Hmm. If so, then why did Obama decide to call his earlier support for the DC ban "inartful" ahead of this opinion. It's almost like he knew that he was on the wrong side of this one, from a polling perspective.
I can't see how this is "judicial activism", unless your point is that the term itself is meaningless when used by conservatives to attack rulings that favor liberal/progressive opinion.
It's judicial activism because the DC law in question was a reasonable regulation targeting a particular type of firearm (handguns), not a ban on firearms per se. As far as I know, Washingtoninans were able to possess rifles and shotguns. With this ruling, the court is saying it is more competent than local authorities to formulate public safety regulations.
I hope I have a gun the next time I hear a so-called conservative babbling on about his love of federalism.
Many, many countries reduce gun violence and the amount of guns in their borders extremely effectively through strict legislation.
And many countries reduce gun violence while having legal gun ownership. The Swiss don't seem to have problems with gun violence.
Hmm. If so, then why did Obama decide to call his earlier support for the DC ban "inartful" ahead of this opinion.
James Robertson: Are you really that stupid, or do you just play a stupid character on the blogosphere?
Obviously Obama "knew he was on the wrong side of this one." Guns are popular in America. Nobody disputes that. This ruling, by helping to defuse the passions of American gun zealots, helps Obama.
I'm not sure if you're being sarcastic, but "judicial activism" doesn't mean any time the court over turns a law
Oh, it's pretty clear (from this post and the last) that Matthew is being perfectly straightforward: Matthew believes that any time a court does anything, it is "judicial activism".
Which is either deliberately obtuse or pretty moronic on Matthew's part. I'm not sure which.
"I also doubt that conservatives will be too upset by the "judicial activism" involved in the Supreme Court overturning the DC handgun ban."
Matt, how is the Court engaging in "judicial activism" when it is strike down a government's total ban against a citizen's right to "keep and bear arms" that violates the clear language of the 2nd Amendment? Isn't that the whole point behind judicial review?
If you were truly interested in chastising the Court for engaging in "judicial activism", then where's your criticism of yesterday's decision in the death penalty for child rapists case? There, we have 5 members of the Court imposing their own personal views that the 8th Amendment prohibits such a law when the historical record is clear that laws imposing the death penalty for rape against adult women, let alone against a child, existed at the time of the Amendment's adoption and no one at the time would have suggested that such laws violated the Amendment.
Did the wording of the 8th Amendment somehow change to justify the Court's actions? No. But the actual language of the Amendment that doesn't matter to liberals who believe that the Constitution is a "living-breathing document." Instead, the Court invalidated a law because of the majority's unsupported claim that a "consensus" exists against such laws and their ability to discern "evolving standards of decency", which now renders such laws unconstitutional.
There is your example of "judicial activism" to decry. One that even Obama couldn't publicly support, but which clearly represents the thinking of Justices that he would appoint if given the chance.
As far as I know, Washingtoninans were able to possess rifles and shotguns.
We were, but we had to keep them locked and/or disassembled in our own homes, which pretty clearly infringed on the ability to use them for self defense in a variety of situations. That is part of the ruling as well.
It's judicial activism because the DC law in question was a reasonable regulation targeting a particular type of firearm (handguns), not a ban on firearms per se.
No, the precedent was Miller, which the DC handgun ban contradicted, in terms of types of firearms protected by the 2nd.
With this ruling, the court is saying it is more competent than local authorities to formulate public safety regulations.
Um, no. The DC handgun ban was in violation of the 2nd as it stood. Like I said, I favor a complete removal of the 2nd and a fresh start over shit legislation designed to neuter or eliminate it. I view it as a consistent support for the Bill of Rights and Constitution, even though I don't personally have a vested interest in possessing a handgun here.
The handgun vs. rifle aspect was never really in doubt- given the precedents, if individual right was ruled in favor of, a blanket handgun ban would be out the window.
And many countries reduce gun violence while having legal gun ownership.
Nearly all countries that effectively "reduce gun violence" allow for "legal gun ownership." As far as I know, hunting and shooting are still popular pursuits in much of Europe and Canada. These places don't eliminate ownerships of guns. They quite sensibly strictly regulate and restrict said ownership.
Having less of something obviously doesn't mean having none of it.
"Many, many countries reduce gun violence and the amount of guns in their borders extremely effectively through strict legislation."
Really? What evidence do you have to support that claim, other than your blithe assertion itself? Examples, please. I suspect you're really talking about the institution of strict gun laws in nations that didn't have much gun ownership to begin with. I'll give you a counter-example--Jamaica. Yeah, that gun prohibition law in the early 1970's really did the trick. No gun violence there, no sirreee.
Nearly all countries that effectively "reduce gun violence" allow for "legal gun ownership."
Correlation does not equal causation. What were gun crime rates before and after. Perhaps, these countries already had relatively lower gun crime rates even when they had fewer gun control laws.
Look, I'm libertarian enough to be agnostic on gun control, and I think that there are some compelling arguments in favor of limited public access to guns. But when Yglesias posts on the subject, Jesus, it's hard not to argue in an entirely anti-gun way. It's hard because both he and many of the commenters around here seem to be engage in a contest to see who can have as juvenile and callous an opinion on guns as possible. It's 90% "guns are cool!", I-need-to-feel-powerful-cause-I-can't-get-laid bullshit. (You know, like taking a picture with a Punisher t-shirt and two guns like you're some douchebag high school student out to make a really bitching Facebook profile pic.)
I would like for once for Yglesias to acknowledge that gun violence in the DC area has been a horrific and terrible problem for the poor residents of the city, that there's nothing glamorous about the murders and maimings that take place in DC every week, and that a community that is desperate for some solution has been denied at least a partial remedy. And I would also like him to acknowledge that though he sees no downside to gun ownership for him, he is part of a community, and the same laws he pines for that gives him easy access to guns hurts the (poor, black) community that exists as background noise in his life.
There are some really despicable class politics bubbling under the surface of DC bloggers enthusiastic, I-love-playing-Quake style of support for guns. Affluent white media types descend on DC and treat it like it's nothing more than a playground for the political intelligentsia-- precisely the kind of behavior liberal values argue against.
It's judicial activism because the DC law in question was a reasonable regulation targeting a particular type of firearm (handguns), not a ban on firearms per se.
Huh? This makes no sense whatsoever. The fact that the law doesn't ban every firearm of every sort ever created would not mean the law can't be unconstitutional. Just as the fact that a law banning some particular form of speech doesn't ban every type of speech would not mean that the law couldn't be unconstitutional. (Hey, my law banning all liberal blogs is just a reasonable regulation targetting a particular type of speech (liberal blogs), not a ban on speech per se! According to you, that law would be perfectly constitutional, right?!)
We were, but we had to keep them locked and/or disassembled in our own homes, which pretty clearly infringed on the ability to use them for self defense in a variety of situations.
And had the court confined itself to ruling on this issue, I'd be in agreement.
Um, no. The DC handgun ban was in violation of the 2nd as it stood.
Um, according to five activist justices it was. Four others disagree. Eight years of Obamian court shaping could swing things to my view of things.
An armed society is a polite society as Mogadishu and Baghdad have shown.
"This ruling, by helping to defuse the passions of American gun zealots, helps Obama."
That might be true, if only we knew what Obama really thought on this (or really, any) issue.
More so than any politician I can recall, Obama's public positions all come with an expiration date, stamped "as soon as they start making me look bad"
While it's obviously impossible to eliminate the use of firearms by criminals, other countries manage to make possession of firearms by criminals far less common than in the United States. Are you suggesting that law enforcement in the US is simply incompetent compared to the forces of other nations?
Are you suggesting that it isn't?
More seriously, even with the best police force in all possible Americas what's possible in other countries might be impossible here, or so much more difficult as to be practically impossible. First of all, the guns are already out there. Even if every NRA lobbyist and active member were Raptured tomorrow, there would still be a lot of illegal and semi-legal weapons whose owners wouldn't be inclined to part with them, probably a lot more than there are today in Britain or wherever.
Secondly, the federal system means that America has something like 60 different, overlapping jurisdictions with competing legal systems. That isn't a problem most countries have.
And had the court confined itself to ruling on this issue, I'd be in agreement.
In ruling on whether or not the 2nd protected an individual right, the consequences wouldn't be "confined" to that issue. Once individual right was decided upon, the handgun ban necessarily becomes unconstitutional, as I imagine any future "assault weapons ban" would be.
Miller already staked out the types of firearms permitted under the 2nd to a great degree. Once the 2nd is applied as an individual right, blanket bans on specific types of arms protected by the 2nd obviously get tossed out as well.
Freddie, D.C. is already one of if not the most violent city in America. Are you saying the violence would be even worse without the gun ban? Or, presumably, that it will go up now?
If true, what does that say about the competence of D.C. government and the nature of its citizenry?
Isn't the point not that it will keep guns from criminals but that it will give the DC courts more arsenal to prosecute those criminals? It's like mail fraud or RICO for violent crime. In that regard, overturning the ban is a huge step backward.
Isn't the point not that it will keep guns from criminals but that it will give the DC courts more arsenal to prosecute those criminals? It's like mail fraud or RICO for violent crime. In that regard, overturning the ban is a huge step backward.
Are you suggesting that it isn't?
Yes. I don't think there's any broad-based evidence pointing to a major quality gap in American law enforcement vs. that in other rich nations, or at least none that would explain away the vastly higher incidence of homicide (and especially gun homicide) in the US.
First of all, the guns are already out there. Even if every NRA lobbyist and active member were Raptured tomorrow, there would still be a lot of illegal and semi-legal weapons whose owners wouldn't be inclined to part with them...
Who's arguing otherwise? Were the US to adopt UK style gun regulations tomorrow morning, it would obviously require time and money to bring American gun homicide rates down to British levels, if such a reduction were even possible. I would argue that strict firearms regulation would help bring about a large reduction in the incidence of homicide in the United States; I offer no specific estimate about how large that drop would be.
Secondly, the federal system means that America has something like 60 different, overlapping jurisdictions with competing legal systems. That isn't a problem most countries have.
True. And what they also don't have is a court telling them they can't strictly regulate firearms even if they wanted to.
Nice to know that 180-some years after Denmark Vesey and Nat Turner, we're still paying the price for the specter of servile rebellion that hung over the young Republic.
My favorite part of the opinion:
"We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting
upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with
the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43(1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very
product of an interest-balancing by the people—which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and
home."
The distain with which judges treat second amendment rights as opposed to finding all sorts of expansive interpretions for first, fourth, sixth, eighth (penumbras, anyone?) rights has always bothered me. Now the court has affirmed what most Americans believed the second amendment to mean.
On the bright side, Obama's chances just went from 70 to 90 percent.
I think it's true that Obama's chances go up on this, but maybe not for the reason you think. His stance on gun control is one major reason I'd hesitate to vote for Obama. With this ruling, it takes the gun issue (mostly) off the table, and I, and other Obama-leaning gun enthusiasts can vote for him without fearing him re-enacting things like the dumbass assault weapons ban.
Is it possible that this ruling might, in the very long run, help gun regulation?
Now that the Court has ruled that individual gun ownership is a constitutional rights, does that end the entire line of reasoning, the whole "slippery-slope" shabang, that gun control is a step to "outlawing" guns? Guns are now legal until the second amendment is appealed, does the whole semi-paranoid NRA style of argument lose force, so in the long run will it will it easier to pass some kind of comprehensive national regulation scheme?
"There's no way we can stop all crime, but it's still good to prohibit certain behavior"
Yes, ideally behavior which actually harms other people, rather than behavior which enables you to harm other people, but which also has a vast range of perfectly legitimate applications.
Could someone who knows legal stuff please answer this:
Now that we got an individual right to bear arms, can't the legal question shift to what is a reasonable definition of "firearm" in a particular area? For instance, if DC wants to define firearm down (so it can outlaw more guns), is that okay?
There is nothing to prevent D.C. from requiring extensive education and training prior to issuing permits to possess firearms, and instituting extraordinarily severe sanctions for possession of a firearm without a permit. In fact, I highly suspect that if extremely severe minimum sentences (say, 25 years without parole) were handed down upon conviction of any type of violent crime in D.C., including possession of a firearm without a permit, the murder rate in D.C. would plummet. It really isn't complicated to reduce the rate of violent crime; lock up violent criminals, upon their first conviction, until they are elderly, thereby minimizing the rate of recidivism. Gee, I dunno, maybe resources could be redirected from the War on Drugs to fight a War on Violent Criminals.
If I were under the impression that any prominent conservative had any intellectual honesty whatsoever, I would be surprised at the vast conservative silence with respect to the Court's finding of a right that is never mentioned in the Constitution (to say nothing of the right to own some kind of handgun--or something). But having paid attention to the right's lack of consistent standards with respect to any policy or philosophy, I'm not surprised.
So it goes with conservative jurisprudence: states' rights is nothing but code for hating niggers, strict constructionism is the cover for Scalia to make up whatever reactionary bullshit he feels like, ...and let's not forget Bush v Gore.
Shockingly, it turns out conservatives only protest when their favored policies are overturned, and that the supposed philosophical foundations for their objections are lacking in salience and importance when laws they detest are nullified by judical fiat.
When it is acknowledged that conservatives start at the conclusion they prefer and then subsequently find rationalizations for their beliefs is when we start having an honest conversation on judicial matters. I also advocate for my prefered rulings without respect to some make believe constitutional hermeneutics, but I'm at least honest enough not to pretent otherwise.
I'm not sure if you're being sarcastic, but "judicial activism" doesn't mean any time the court over turns a law -- as it is proper to do when said law is in violation of the constitution.
Congress has exclusive authority over the District. They have ceded much of that authority to the local government. The second amendment is premised on the ability of the States to raise militias. The District is not a state. Ergo, judicial activism.
And if this...
“In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”
...isn't the courts stepping in to do Congress's job and demanding that legislation be written to their satisfaction, then what is judicial activism but an empty barb thrown around by adherents of conservative jurisprudence or originalism as its more often and inaccurately called?
Am I taking crazy pills?
Let's look at three statements:
"I'm hungry; let's go out to eat."
"I'm sick; I won't be at work tomorrow."
"Bill has cancer; he needs chemo."
All of these statements have the same structure as the second amendment: A therefore B.
If I'm no longer hungry, you would assume I'd cancel dinner, as the reason to go eat is removed.
If I'm well, you'd assume I'd be back at work.
If Bill had a false positive, you'd cancel chemo.
And if militias no longer exist, the right to bear arms is longer relevant.
This seems stupidly obvious to me. Am I missing something?
The kinds of criminals we are afraid of do not buy their guns from the gun store in Manassas. They buy them on the street, trade drugs or cars for them, or steal them during a burglary. The handgun genie is out of the bottle and no amount of gun control short of mass confiscation is going to put her back in.
Yes, Michael M., you are. A militia, as the term was employed at the time the Bill of Rights was ratified, still exists.
D.C.'s government has as much legitimate power to ban handgun ownership as it does to ban the publication of the Washington Post.
D.C.'s government has as much legitimate power to ban handgun ownership as it does to ban the publication of the Washington Post.
DC has a state militia? Has DC's governor ever had to call them out? Have their senators and representative ever decided to review the troops? Is the state bird on their uniform?
"I would be surprised at the vast conservative silence with respect to the Court's finding of a right that is never mentioned in the Constitution"
I would be, too, but amendments ARE part of the Constitution, and the 2nd amendment DOES mention this right. Got to have a pretty severe case of "firearms aversive dyslexia" to not notice that mention.
D.C.'s government has as much legitimate power to ban handgun ownership as it does to ban the publication of the Washington Post.
Do you really think the government has no right to regulate what kind of arms people can carry? Can I have Stinger missile? Fat man or little boy sitting in my backyard? Since we recognize the right of the government to regulate which kinds of guns citizens can carry, and since the DC ban didn't restrict ownership of all guns, I don't think you can make this claim.
And if militias no longer exist, the right to bear arms is longer relevant.
The understanding of a militia at the time was that it comprised all able-bodied men over 18. It was a non-governmental army essentially. So by the original understanding, militias are still around.
Freddie, just as "militia" at the time of the Constitution meant, "every able-bodie person" (well, every able-bodied white man, but thankfully we've progressed there), "arms" meant, "small arms, the things you can carry on your person." You can argue whether a stinger missile qualifies, but you can't really argue that handguns aren't "arms."
"I would be, too, but amendments ARE part of the Constitution, and the 2nd amendment DOES mention this right. Got to have a pretty severe case of "firearms aversive dyslexia" to not notice that mention."
See Michael M.
Even if you disagree with him, an individual right to bear arms is never mentioned in the Constitution, just like the right to privacy isn't either (which conservatives have been bitching about since Griswald). I don't care that they are arguing for what they want, but their supposed principles are nonexistant.
I would be, too, but amendments ARE part of the Constitution, and the 2nd amendment DOES mention this right. Got to have a pretty severe case of "firearms aversive dyslexia" to not notice that mention.
Again, there is no specific language defending the right to own guns in the US Constitution. We already do pick and choose which kinds of weapons we allow the citizenry to have. There's no difference between saying citizens can't have guns and saying citizens can't have nukes. Now, if you want to be a maximalist and say that the government doesn't have a right to regulate any weapons, that's a consistent opinion. It happens to be the only logically consistent reading of the 2nd amendment that says the government can't ban guns.
RD, you are ignorant regarding the meaning of the word "militia", and if you wish to maintain that the word "State" refers to each individual State government, and not to the "state", in the sense of the "government", thus giving people who live in D.C. different Constitutional rights than people who live in Chicago, well, you just go right ahead.
Yes, Michael M., you are. A militia, as the term was employed at the time the Bill of Rights was ratified, still exists.
Not in any real sense. The Reserve Militia exists more on a theoretical plane than in the real world.
In fact, I highly suspect that if extremely severe minimum sentences (say, 25 years without parole) were handed down upon conviction of any type of violent crime in D.C., including possession of a firearm without a permit
I was not aware that possession of a firearm without a permit was a violent crime. The idea of taking away someone's whole life for a non-violent crime which didn't actually harm anybody seems pretty outrageous, at any rate.
"I would like for once for Yglesias to acknowledge that gun violence in the DC area has been a horrific and terrible problem for the poor residents of the city, that there's nothing glamorous about the murders and maimings that take place in DC every week..."
Funny how it sounds like you're saying the gun ban never did any good anyway.
Blue Moon,
Maybe I'm naive, but it seems to me that the handgun problem could be alleviated by enforcement of a strict law against illegal gun possession. I'm sure many areas do this, but illegal guns seem to be a much bigger problem to me than, say, drug dealing.
Also, for all the people who live in rural and suburban areas that demand handguns for self-defense, how often to home invasions occur in which a handgun would have prevented serious personal injury? I've heard a similar number of stories about friends and family being accidentally shot by startled people in their own homes. Seriously, I'd guess the risk of being killed or raped by a home invader is less than .0001% It is terrifying to be sure, but I'm not convinced that public policy should be dictated by extremely rare events.
My favorite part of the Second Amendment is the "Well Regulated" bit. I see this ruling as as a step forward if regulation is the response. As Shine pointed out above, we can ignore slippery slope arguments and regulate the living hell out of gun ownership: You want to own a handgun in DC? Fine, join a well regulated militia, do two years of service (a la Switzerland or Israel), get a battery of background and mental health checks, and sure, here's your gun. Have fun.
Funny how it sounds like you're saying the gun ban never did any good anyway.
As Yglesias pointed out, this ban doesn't accomplish much, because it's too easy to get guns from other places and bring them to DC. That doesn't change his ethical duty to talk about the actual cost of gun violence in DC, particularly when he favors politics that support precisely the inner-city poor who are the overwhelming victims of gun violence.
Again, there is no specific language defending the right to own guns in the US Constitution... There's no difference between saying citizens can't have guns and saying citizens can't have nukes... It happens to be the only logically consistent reading of the 2nd amendment that says the government can't ban guns.
I'd agree in principle with the maximalist reasoning, but think it's so obvious that that nukes would fail a strict scrutiny test on a 9-0 vote (assuming a complainant ever managed to get their case heard), that the practical interpretation of the 2nd amendment ought to be that people can own whatever guns they want. Missiles, anti-tank weapons, nukes and other wmd can't be owned.
I agree with others that the political saliency of the gun control issue just lost a lot of steam, at the national level, anyway. The whole concept of "gun prohibition" is finished, but there's a lot that the NRA won't like about this ruling.
Yes, there is an individual right to bear arms, and yes, unduly burdensome limits on firearms ownership--like bans on entire categories of firearms, and mandatory trigger locks in the home--are not kosher. But the Court seemed to clear a good many limits that the NRA hates--some registration and permit requirements, bans on some subcategories of firearms, bans on concealed carries, etc.
What I would like to see is a statement by the gun supporters as to what weapons they think that the Government has a right to ban from private ownership. It should be noted that the 2nd amendment doesn't say guns, it says arms. For instance, does the Government has the right to ban private ownership of nuclear weapons, which, after all, certainly qualify as arms? If the answer to this question is yes, then where do they propose to draw the line?
Again, there is no specific language defending the right to own guns in the US Constitution... There's no difference between saying citizens can't have guns and saying citizens can't have nukes... It happens to be the only logically consistent reading of the 2nd amendment that says the government can't ban guns.
I'd agree in principle with the maximalist reasoning, but think it's so obvious that that nukes would fail a strict scrutiny test on a 9-0 vote (assuming a complainant ever managed to get their case heard), that the practical interpretation of the 2nd amendment ought to be that people can own whatever guns they want. Missiles, anti-tank weapons, nukes and other wmd can't be owned.
Seriously, I'd guess the risk of being killed or raped by a home invader is less than .0001% It is terrifying to be sure, but I'm not convinced that public policy should be dictated by extremely rare events.
The chances of my vote changing who becomes the next president are much lower than that, but I'm glad that whether a right is constitutional doesn't hinge on its "success" percentage.
RD, you are ignorant regarding the meaning of the word "militia", and if you wish to maintain that the word "State" refers to each individual State government, and not to the "state", in the sense of the "government", thus giving people who live in D.C. different Constitutional rights than people who live in Chicago, well, you just go right ahead.
Oh, I'm sorry is "being necessary for the security of a free State" not plain enough in its intent and original meaning for you?
Well, John, the law exists on a theoretical plane. Also, if you wish to claim that owning a firearm without adequate training, or that owning a firearm despite being within a specifically defined class of people whose behavior has caused a duly elected legislative body to ban your ownership, does not constitute a violent threat to your fellow citizens in violation of the law, okay. I disagree.
Freddie, the Amendment doesn't state that the rights of the people to bear any sort of armament shall not be infringed, any more than the First Amendment says Congress shall pass no law which regulates or prevents a newspaper from printing anything the publisher desires. Under your logic regarding language, all libel and slander attorneys would need to learn new specialties.
Scalia:
It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense
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Certainly, with all those newly freed heathens running around causing havoc, guns were required by white communities for their very survival. Scalia is a racist piece of shit.
"I'd agree in principle with the maximalist reasoning, but think it's so obvious that that nukes would fail a strict scrutiny test on a 9-0 vote (assuming a complainant ever managed to get their case heard), that the practical interpretation of the 2nd amendment ought to be that people can own whatever guns they want."
Why? You just admitted that Constitutional logic has nothing to do with it and the justices just make up whatever ad hoc bullshit they feel like, so why is it obvious that people ought to be able to have any handgun they feel like?
If anybody disagrees with the hermeneutics of our respected black shirts, they hate America!
My favorite part of the Second Amendment is the "Well Regulated" bit.
Except that it doesn't say that the arms should be well regulated, it says that the militias should be. There's no implication whatsoever that "well regulated" should be applied to "the right to keep and bear arms"
RD, you apparently are ignorant of the meaning of "State" (or "state", as it was originally submitted for ratification to Congress, before a scribe used the capitalized version when it was sent to the states). We'll just have to disagree that people in D.C. have different Constitutional rights than people who live in Chicago.
Having read through the decisions, one gets the sense of how limited the idea of original intentions really is.
Neither Scalia nor Stevens makes a poor argument, although Scalia's repeated claims that Stevens does reflects poorly on his judicial temperment.
At the heart of the dispute is the fact that some state constitutions explicitely state that there is a right to bear arms for the purpose of self defense. Scalia takes this to establish that the 2nd Amendment must do so too, and apparently unlike the states found it not to be worth mentioning.
Stevens takes the decision not to mention that the right to bear arms is one of self-defense, while at the same time putting the right specifically in the context of a militia to indicate that they were not asserting that right. That is to say Stevens considers it significant that they chose to mirror the words of those Amendments which seem to limit the right to military purposes, while Scalia considers it significant that there existed Amendments which explicitely included self-defense while there are none that explicitely exclude it.
But two things seem to weaken Scalia's version. The first is that his take on a draft of the Amendment which explicitely excluded pacifists from having to take up arms as long as they paid a replacement makes no sense at all. The obligation described there only makes sense on the military reading of the Amendment, the idea that this draft was meant to suggest that Quakers has to pay people to defend their houses is silly. And if the words in the second amendment refered only to the military context in that draft, it is hard to see how those exact same words would change meanings after that clause was edited out.
The other is that Scalia's explanation of the preamble is rather unconvincing. It is certainly true that the clearest threat to the right to bear arms had been cases of the state disarming militias whose loyalties were in question. The idea that they wrote an amendment to protect rights A, B, and C but threw in a preamble to explain the least important of these because it was the one most likely to be taken away seems rather silly. It would be as if the Framers has put a preamble in front of the first amendment like "Since busybodies try to interfere with people's enjoyment of art that they they consider pruriant, ..." Who would be silly enough to focus on the least important aspect of a right in setting out the reason for it?
And yet Scalia, original interpretist that he is, states that undoubtedly they considered the other aspects of the right to be more fundamental. Which seems mostly to indicate that had he been there authoring the right he would consider the other aspects more fundamental. But the words in the Amendment suggest that the writers didn't agree.
The limitations that Scalia places on the scope of this decision further suggest that he ultimately intends to interpret the 2nd Amendment as he would have intended it. There are certainly no historical case provided to indicate that demanding a gunlock would violate the 2nd Amendment. How could it be a constitutional matter, rather than a legislative one, as to what is a reasonable balance between safety, and how quickly the gun becomes usable?
Actually, gun control laws in the post Civil War South were most frequently used to keep freed slaves disarmed, so they could be more easily attacked by the Klan and other racists.
I'm confused, Will Allen-- by what you just said, then, there's no right to own guns guaranteed by the Constitution. Again, none of you are confronting the central question. The 2nd amendment says the right to bear arms is protected. It doesn't say anything about which kinds of arms. If you all don't think there is a constitutional protection on owning Tomahawk missiles or weapons-grade plutonium, how can you say there is a constitutional protection on owning guns? If the government can make a judgment call about which kinds of arms can be regulated, why can't it make the judgment call that guns can be banned, just like nuclear weapons or mortars or bazookas?
Blue Moon, that's not exactly true. Lots of handguns in the District were purchased "legally" by straw purchasers in Virginia. That is, it wasn't truly a legal sale because it was a straw purchase, but if the straw purchaser had been buying for his own use (and before this ruling, kept the gun in his house in Virginia instead of giving it to someone in D.C.), it would have been legal.
Anyway, Matt's right that the gun ban was largely ineffective because the District is so close to lots of places where handguns can be bought and owned legally (although there's no doubt in my mind that this ruling will lead to an uptick in gun crimes). However, a national handgun ban would work, simply because for most of the country, there wouldn't be anywhere you could go to legally buy a gun (and for those places near the Mexican border, you're still going to have to go through a checkpoint on the way back home). And moreover, when the legal market goes away, then Smith & Wesson, etc., are going to stop making handguns because there's nowhere profitable to sell them. Handguns, unlike drugs, require a degree of engineering sophistication and industrial methods, so there's little ability for a black market to create enough demand for their manufacture, only their illegal resale.
Why? You just admitted that Constitutional logic has nothing to do with it and the justices just make up whatever ad hoc bullshit they feel like, so why is it obvious that people ought to be able to have any handgun they feel like?
I don't understand where I admitted that Constitutional logic doesn't have anything to do with it.
Just like there are some compelling, narrowly tailored exceptions to the first amendment, there obviously are to the second as well. I think that virtually everyone agrees that the weapons (nukes, WMD, etc.) I listed would be among such exceptions. I (and many others) don't think that anything that fires a bullet is.
"We'll just have to disagree that people in D.C. have different Constitutional rights than people who live in Chicago."
People who live in DC don't have a right to be represented by a Senator or a Representative.
Why? You just admitted that Constitutional logic has nothing to do with it and the justices just make up whatever ad hoc bullshit they feel like, so why is it obvious that people ought to be able to have any handgun they feel like?
I don't understand where I admitted that Constitutional logic doesn't have anything to do with it.
Just like there are some compelling, narrowly tailored exceptions to the first amendment, there obviously are to the second as well. I think that virtually everyone agrees that the weapons (nukes, WMD, etc.) I listed would be among such exceptions. I (and many others) don't think that anything that fires a bullet is.
I am aware that those who advocate the second amendment as an individual right, will go picking through Blackstone and speeches by James Madison to prove that "a free State" refers to the US as a nation state. These are often the same people that cringe at seeking out extra-constitutional textual evidence of Establishment Clause meaning when discussing the separation of church and state.
So, even though Congress has the ability to raise an army to provide for defense, to protect that same "free state," individuals must also have the right to arms to contribute in some well-regulated fashion to that "free state's" protection. And what entity would regulate that militia? Well, if it was Congress, that would just be the army, so, it must be the State states, no?
Client #11, no individual in Chicago has such a right, either. The State of Illinois is constitutionally guaranteed Senators and Representatives.
Again, Freddie, by the logic you employ to interpret language, newspapers should be able to legally publish any person's medical records without his permission, or even print false information, no matter their status as a public figure.
Matt, how is the Court engaging in "judicial activism" when it is strike down a government's total ban against a citizen's right to "keep and bear arms" that violates the clear language of the 2nd Amendment? Isn't that the whole point behind judicial review?
Chicounsel, you are completely clueless. The ruling's overturning of the handgun ban was based on the premise not of a constitutional nature (since "long guns" were not banned for self defense purposes), but rather based, from the opinion itself, that people prefer handguns for self-defense, and thus should be considered to be a Constitutionally protected form of self-defense, even though other firearm options were available.
Again, none of you are confronting the central question. The 2nd amendment says the right to bear arms is protected. It doesn't say anything about which kinds of arms. If you all don't think there is a constitutional protection on owning Tomahawk missiles or weapons-grade plutonium, how can you say there is a constitutional protection on owning guns? If the government can make a judgment call about which kinds of arms can be regulated, why can't it make the judgment call that guns can be banned, just like nuclear weapons or mortars or bazookas?
I don't understand what's unclear about this--There are pretty specific ways to limit an enumerated constitutional right.
Under strict scrutiny, for instance, a law which limits the right must be: a) narrowly tailored, b) The least restrictive means available and c) be in services of a compelling gov't interest.
I don't think any significant portion of people would disagree that a law banning citizen ownership of nukes meets these three criteria and passes the strict scrutiny test with flying colors.
However, lots of people (including 5 Justices, it seems) believe that a law regulating gun ownership does not meet these criteria, and so would be unconstitutional under the strict scrutiny test.
Does that address "the central question"?
"Just like there are some compelling, narrowly tailored exceptions to the first amendment, there obviously are to the second as well. I think that virtually everyone agrees that the weapons (nukes, WMD, etc.) I listed would be among such exceptions. I (and many others) don't think that anything that fires a bullet is."
Fine, but you are (apparently, to me anyway) claiming a right that isn't in the constitution. To me it's an example of the I can't define it, but I know what porn is when I see it school of faux logic; it really means that I have no coherent philosophy and just make decisions on an ad hoc basis.
I think we should spurn such dishonesty and just advocate for rulings we agree with without claiming to be able to divine the thoughts of men who lived two centuries ago, or pretend that there is a possibility of a systematic hermeneutics applied to an anachronistic, vague, and logically inconsistent document. For esample, just because the word "militia" is used to describe two different things (a 18th century non-state military organization and Tim McVeigh and his posse), doesn't mean they are the same phenominon; words and organizations change, and it is silly to pretend that a militia has the same political and social value it did centuries ago--and Timmy's corpse isn't the only thing protecting Lady Liberty from being captured by the state.
It's all nonsense. Nobody has a coherent philosophy of jurisprudence that is applicable to our Constitution; it's impossible. Argue you should be able to own a handgun, but stop pretending it's a direct logical consequence from the second amendment--it isn't.
No, Rd. The fact that Congress can raise an army does not preclude it from regulating a militia. Raising an army is a time consuming process, in an era without a standing army, whereas the militia is always in existence.
True enough, but I was sort of hoping for a tongue-in-cheek response from Justice Stevens, something to the effect of "[This decision] will almost certainly cause more Americans to be killed."
Posted by Seth | June 26, 2008 10:34 AM