The Supreme Court of the United States just struck down the Washington D.C.’s ban on handguns arguing that it was unconstitional. But were they right, or has the SCOTUS dropped down on it’s knees before the almightly NRA? Or are they defending freedom and justice worldwide in a fashion worthy of Superman? The full text of their opinion can be found here. The 12 Angry Men discuss…
Angry New Mexican
The District of Columbia v. Heller ruling shipped with it’s own set of knee-pads for the SCOTUS. And a tube of astroglide. And a sawhorse. Because at the end of the day, the ruling was nothing so much as a sell-out to the NRA. Now, granted, the SCOTUS didn’t go out and endorse the public ownership of crew-served weaponry, but barring that minor oversight, the Opinion of the Court, as penned by Justic Anton “Kill ’em all” Scalia, was the largest victory in court for the NRA in decades. Let me explain.
The first holding of the court was another wonderful example of conservative judicial activism. The court held that the Second Ammendment grants “an individual right to posess a firearm unconnected to service in a militia.” While that opinion has been widely held by many Americans and has been the de facto policy of the land in many states, it’s really not what the Second Ammendment says, given that it allows for the right to bear arms explicitly due to the need of a militia. Justice Stevens notes as much in his dissent.
Second, the court overturned the District’s requirement for trigger locks. Nevermind the fact that trigger locks save lives each and every year — by making guns less likely to be accidentally fired — the iron will of the NRA will broker no exceptions. The Court’s assertion that trigger locks makes it “impossible for citizens to use arms for the core lawful purpose of self-defense” is laughable. Justice Breyer’s dissent points out the absurdity of the majority’s reading of the DC statute which lead to this holding.
Finally, the court struck down the ban on handguns because the law “amounts to a prohibition on an entire class of `arms’ that Americans overwhelmingly choose for the lawful purpose of self-defense.” The holding there is a bit disturbing since the identical logic could be used against say, an assault weapons ban, should assault weapons become more popular among Americans (no doubt the NRA already has this idea in mind). The idea that if a sizable minority of American’s use gun X nobody can ban it, is another blow to federalism, as it potentially allows (a minority of) states with liberal gun laws to override the laws of those who have stricter laws.
For all these reasons, and the others that Justices Stevens and Breyer enumerate, this was a bad decision. But I’m sure Justice Scalia will have a nice hunting vacation sometime this fall.
Angry Overeducated Catholic
Well, you are of course, free to make up meanings for words whenever you wish, but for those who care about the accepted meanings of words, here’s what the actual Second Amendment actually says:
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.
Let’s leave aside arguments over the meaning of Militia in the 17th and 18th centuries, and just point out that the structure is: “For this reason, this right shall not be infringed.” Whatever the reason is, it cannot override or destroy the right that follows. It may inform our understanding of limits to it, but not so far as to be a weapon to destroy the natural right being enumerated. And that right is clear: the right of the people to keep and bear Arms.
The Constitution can enumerate rights of states, and if the writers had intended the revisionist meaning ANM proposes, they certainly could have said “the right of the states…” But their intent was never to simply support the states over the Federal government, but to state clearly that basic rights of humanity include the right to the means of defense, survival, and—if need be—rebellion against tyranny. Let’s not forget that these were radicals, folks—radicals who had just overthrown their King and “lawful” government not 20 years ago.
And the notion of “conservative judicial activism” is laughable here. Originally, of course, pesky things like the Bill of Rights did not apply to the states or localities. Established churches, draconian gun regulations, trampling civil rights—all fine at the state level, originally. “Activism” is particularly funny here, because the champion of Incorporation (incorporating the Bill of Rights into the Fourteenth Amendment which does explicitly apply to the states) was, of course, a strict constructionist. Indeed, he was in many ways similar to Scalia in his belief that we should actually follow the document we have and not the “living document” we’d like to have.
So, perhaps rather than shilling for the NRA, Scalia is simply being faithful to that icon of Incorporation, Hugo Black!
The 12 Angry Men Blog 
June 26, 2008 at 1:29 pm
The United States is not like Israel or Sweden where every male own a weapon to be used in the militia. We have delegated our defense to police and the military. Even the National Guard maintains their weapons in armories. Owning a weapon in support of a militia is contextually null. The right to bear arms for the purposes of maintaining a food supply, e.g. hunting applies only to a small minority of the population and I suspect that some accommodation could be made here. Owning a weapon for protection is somewhat less equivocal — the people who point out that it is more likely to shoot and injure a family member rather than an intruder have a point, as do others espousing gun safety agruments. Still there are ways this could be done within the context of a general ban.
No. The critical aspect of the second amendment is for a populace to have the means to redress grievances against a tyranical government when other means fail. All else is chaff before the flail.
And given the ever intrusive government policies, laws, and oppressive enforcement, I say the more guns the better.
June 26, 2008 at 2:14 pm
The critical aspect of the second amendment is for a populace to have the means to redress grievances against a tyranical government when other means fail.
Ah, my favored tired justification for opposition to gun control! Always gets brought out every time pro-gun advocates run out of actual reasons to oppose gun control. And the reasoning is always faulty. That’s the best part.
Case in point: Saddam Hussein’s Iraq. A sizable number of families owned at least one assault weapon (usually an AK-47). But yet Saddam, a tyrant by anyone’s estimation, ruled with an iron fist until the US invasion. Guns, which were cheap and easily available in Saddam’s Iraq, did *not* protect freedom.
They don’t protect freedom in the US either. Sorry.
June 26, 2008 at 3:09 pm
Ah, my favored tired justification for opposition to gun control!
That’s funny, it’s mine, too. But tired doesn’t mean irrelevant. Iraqis don’t have the national sense of rebellion to solve problems. They have the sense of only ever knowing crushing pessimism. We’re not Iraqi (and neither, in this sense, will be the modern generation of Iraqis).
Effective or not, it is guaranteed by the Bill of Rights. Trials by jury may not be the most effective way to establish the truth of an accusation, but it’s a guaranteed right. Those who want a trial by Inquisitor are SOL, they get 12 yahoos being led around by 2 sets of lawyers, for better or for worse.
Gun-control and birth-control are abstract euphemisms for other goals. Neither really wants to control the thing (a gun, or birth), they both aim to control -people-. As such, and to the extent that existing laws are written, neither of those is a power properly held by the states, and certainly not held by the federal government. One of these failings is being righted this week. The other one has a way to go.
And while we’ve established professional corps for defense and protection, it is not a complete delegation of responsibility (and authority). We are not subjects to be ruled by officials and police and have nothing to contribute except the sweat of our brow. We hire them to concentrate on those things which we ourselves can only participate in part-time. This is somewhat like we support religious to pray always, when we can only pray part-time. They are specialists, and particularly competent, but that doesn’t relieve us from our duty to pray, or defend, or police.
June 26, 2008 at 3:24 pm
“Case in point: Saddam Hussein’s Iraq. A sizable number of families owned at least one assault weapon (usually an AK-47). But yet Saddam, a tyrant by anyone’s estimation, ruled with an iron fist until the US invasion. Guns, which were cheap and easily available in Saddam’s Iraq, did *not* protect freedom.
They don’t protect freedom in the US either. Sorry.”
That’s because they won’t let us have crew-served weapons!!! The march of technology, coupled with the bans that folks already have no problem with have already destroyed any ability of the populace to throw off the yoke of oppression. But as AOC says, the language is pretty cut-and-dried. If you want folks not to own guns, you should just repeal the 2nd Amendment.
I want my TOW missile!
June 26, 2008 at 3:52 pm
Not to mention that, in fact, gun ownership in Iraq did help folks resist Saddam: just not all the folks. Both Shia resistance groups and Kurdish paramilitaries used small arms to good effect—though they were both greatly helped when we (the U.S.) kept Saddam’s heavy weapons off their backs.
But, AI’s right—the problem in Iraq was one of culture, not arms. Both are essential.
However, as I said, and as Guess said, that’s not the point: your fear of guns in private hands should not trump my Constitutional rights. And that’s ultimately the point, whether the reasons are good or bad, it’s a fundamental right which the government must not infringe!
June 26, 2008 at 5:59 pm
your fear of guns in private hands should not trump my Constitutional rights.
So sayeth the majority opinion. But Justice Stevens would disagree with you and note that the Constitution doesn’t actually say what you think it does.
Plus, let’s be honest: Just because the SCOTUS says “X is a constitutional right” doesn’t mean that it (a) really is or (b) really should be. I think there are enough court decisions (Roe v. Wade, Kelo v. New London) that many readers of this blog disagree with. We’ll just add DoC v. Heller to that list….
June 26, 2008 at 9:39 pm
Today’s ruling puts this Angry wannabe in a strange predicament.
The employer engages in selling firearms and related products, and thus is a large supporter of the NRA. Naturally, there is a culture of supporting the Second Amendment, especially since it helps keep the company out of a plethora of legal snares.
One of the gun-lovers’ favorite arguments that I always hear is “Those who are going to use handguns to kill will find a way to get them regardless of the availability of legal means to do so.” The implication, as you can hopefully see, is that those law-abiding citizens who want to protect themselves with a handgun need a legal means to do so to combat those who will skirt whatever laws exist to obtain one.
However, my thoughts on the ruling from SCOTUS lead me to think the went to far in this ruling. While the DC ban on handguns may or may not have helped fight crime, any law that keeps guns out of the hands of responsible citizens is not a good law. I accentuate the word responsible because assuming all citizens cannot use a gun responsibly is incredibly silly. However, I still feel there should be a way to keep guns out of those irresponsible hands if they do attempt to make a purchase through legal channels. With all the anti-terrorist tactics being used by the government, it’s surprising they haven’t attempted to extend it over to guns. (If they have, consider me ignorant.)
Removing the mandate for trigger locks is foolish, as I will point a finger at the court when I read a Washington Post story about a 5-year-old dying after getting a hold of daddy’s gun and accidentally firing it because of SCOTUS’ idiocy on this aspect of the ruling.
June 27, 2008 at 10:35 am
AIH: Agreed – Overturning the trigger lock portion of the law was the real absurdity of the SCOTUS’ ruling.
Perhaps I need to go to Roswell and consult with the Grays on this one. They might be the only ones who understand Justice Scalia’s bizarre and otherworldly logic on the overturning the trigger lock mandate.
June 27, 2008 at 10:36 am
The interesting thing was that Scalia’s argument was so well reasoned. The first point was that he settled the issue on the militia question by pointing out that the operative clause was the “right to keep and bear arms” and that the prefatory clause about the “importance of a well regulated militia” was subordinate. Then he brought in 20 years of scholary research via amicus briefs that supported individual rights as “original public meaning”.
Contrast this to Breyer’s opinion where he wanted to subordinate the 2nd amendment to ‘balancing’ against pressing needs. Scalia rightly notes that this balancing is not how we normally protect individual rights. Breyer would never ‘balance’ a right to privacy (which never occurs in the Constitution) nor would he apply balancing to the recent habeas corpus decision in Boumediene v. Bush.
June 27, 2008 at 12:03 pm
Okay, let’s actually look at this “bizarre and otherworldly logic”:
We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56–57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel . . . , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D. C. Code §7–2507.02. The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A. 2d 744, 755–756 (1978).28
So, since they’ve just upheld your right to keep firearms in your home, and to use them for self-defense, the Court apparently seems to feel that a blanket ban on their use at home—possibly specifically targeted at self-defense, and certainly easily interpreted to forbid self-defense—is also unconstitutional.
If D.C. had written a reasonable law seeking to maximize gun safety, they could have written one which required trigger locks be placed on any firearm “stored in a home” or “kept in a home” or whatever, with a clear exception for actual use (e.g. “until the weapon is prepared for lawful use”).
But they didn’t. Because D.C.’s law was not a gun regulation law, it was a gun ban law, and its purpose was not to increase safety but to disarm law-abiding citizens, (while allowing the privileged elite to play with the guns their fat-cat connections allowed them to legally own).
And that purpose—however expressed—is completely unconstitutional, as SCOTUS properly pointed out.
Or, again, your fear of my guns does not take away my Constitutional right—even if your fear is for my kids…
June 27, 2008 at 12:26 pm
I will not say that I have read the full rulings and opinions of the court, but one thing reported by the AP actually really irritated me.
“….In dissent, Justice John Paul Stevens wrote that the majority ‘would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.’…”
How on earth can you get to be a Supreme Court justice and not understand the history of this nation and that this is EXACTLY what the founding fathers did. Perhaps Mr. Stevens should remember the 2nd most important document in American History, and the document that preceded the Constituion and Bill of Rights and recognized why they were so necessary.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
That is the 2nd paragraph of the Declaration of Independence and to this day it gives me the chills. Does the Honorable Mr. Steven believe that in the event of “a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism” that a citizen shall exercise their “right…(and) duty to throw off such Government, and to provide new Guards for their future security” with nothing more than a shaken fist and harsh words. Ask Mr. Mugabe how he feels about such threats to his power. I suspect his respect for their fists and fury is somewhat less than it would be for a furious man (or a million furious men) with firearms.
Justice Stevens really got under my skin by making what I feel is the most offensive statement about armed citizenry he could possible make.
June 27, 2008 at 1:40 pm
AOC:
If D.C. had written a reasonable law seeking to maximize gun safety, they could have written one which required trigger locks be placed on any firearm “stored in a home” or “kept in a home” or
whatever, with a clear exception for actual use (e.g. “until the weapon is prepared for lawful use”).
As one of the dissenting justices noted (Stevens, I think) the majority opinion read such an exception into many of the historical laws they considered and discussed (most of which did not have one). But for some reason they refused to read it into DC’s law.
That’s the bizarre and otherworldly part. Not to mention an affront to judicial minimalsm. If the Court really felt that it was necessary to make that exception explicit (which legislatures never bothered with in the past), they could have carved just enough of a hole to make an exception.
But they didn’t. They shot the whole trigger-lock mandate. And I stand by my assertion that it’s bizarre and otherworldly for that very reason.
Or, again, your fear of my guns does not take away my Constitutional right
Once again, I will side with Breyer and Stevens and note that this “right” did not exist until this week.
June 27, 2008 at 2:23 pm
But they didn’t. They shot the whole trigger-lock mandate. And I stand by my assertion that it’s bizarre and otherworldly for that very reason.
My understanding of the evolution of the Law is that judges attempt to do the minimum damage to the statutes as possible. In this case, I believe that the minimal damage (to the Law) was to dump the entire mandate (“trigger locks”) because doing otherwise would open the judicial system to multiple variations of Law and possible unwanted precedences as various jurisdictions attempted to adjust their laws to add exceptions, conditionals, etc. Better to dump the mandate and to force a more considered statute.
June 27, 2008 at 2:27 pm
Which is to say that the judges may have sided with opinions that trigger locks were in general a good thing, however as a matter of Law, “as implemented”, the statue was in error.
SCOTUS has to consider a) the case at hand, b) possible followon consequences of any decicion; and c) the impact on the Law process itself.
June 27, 2008 at 2:41 pm
One of the gun-lovers’ favorite arguments that I always hear is “Those who are going to use handguns to kill will find a way to get them regardless of the availability of legal means to do so.”
The “Guns Don’t Kill People, People Kill People” argument.
The only argument for gun control in this context is that banning guns would lower the efficiency of people killing people. I for one, know several ways to kill you that don’t involve guns, are cheaper, quieter, easier, and harder to detect. Each method has drawbacks, some of which guns resolve. None-the-less, a better argument for you anti-gun people would be how to eliminate the need or desire for person a to kill person b. Across the street from where I live, a lady stabbed her live-in boyfriend to death (Knife — not gun) because he didn’t have any money to give her. What kind of reason is that for killing soneone. If we adhered to AOC or AM’s philosophies, this would never happen. Why are we discussing nuances of gun policy when social fabrics are disintegrating? My new motto:
“Rolled-up newspaper don’t kill people, people kill people”.
June 27, 2008 at 7:20 pm
And we all have once again exhibited why the gun control arguments on both sides ultimately get out of control:
Slippery slope rationale rules.
June 28, 2008 at 4:48 pm
I wonder if a better approach to problems like Junior getting his hands on Dad’s Saturday Night Special and shooting Bobby down the street, aka the trigger lock issue, might be better handled by prosecuting Dad for child endangerment and negligent homicide. This would, at least, give powerful incentive for Dad to keep his Taurus 45 locked up tight, which is where it belongs.
Now irresponsible dad isn’t going to keep his gun locked up, but if you own a gun you had damn well better expect to take responsibility if someone gets shot with it. If the shooter is a minor for whom you are responsible…. In short, the Second Amendment isn’t a “freedom from the responsibility that comes along with owning a deadly weapon” clause. Or so sayeth the instructors of the defensive firearms class I took several years back (one of whom was a police officer).
June 28, 2008 at 6:03 pm
http://clivecrook.theatlantic.com/archives/2008/06/guns_and_the_supreme_court.php
June 30, 2008 at 10:36 am
In Frank Herbert’s book, the Dosadi Experiment, he discusses a group known as the Bureau of Sabotage. Jorge X McKie, one of their operatives figures prominantly in the book.
The interesting thing was why this bureau came into existence in the first place. Seems as though the government lost all touch with reality and several folks got together to “redress their grievances’. A couple of asassinations of key government personnel made the others a bit more circumspect about feeding from the pubic trough.
Now I will be the first to admit that this is wishfull thinking given the nature of people. (I just saw “Wanted” – case in point), but wouldn’t it be interesting to see what happened.
June 30, 2008 at 11:02 am
An interesting response to ANM’s claim above that the dissent doesn’t interpret the 2nd Amendment as an individual right:
From Instapundit:
“[S]omething became clear to me as soon as I started writing: What’s most striking about Heller is that absolutely everybody — majority and dissents — says the Second Amendment protects an individual right.
It’s true that the dissenters’ view of that right is somewhere between “minimalist” (to be charitable) and “incoherent” (to be accurate). But nonetheless, all nine Justices specifically said the right is individual, and thus rejected the “collective right” position on the Second Amendment, a position that’s been the mainstay of gun-control groups, newspaper editorialists, and lower federal courts for decades, and one that was presented by those adherents as so obviously correct that those arguing for an individual right were called “frauds” and shills for the NRA.
Yet the collective right theory could not command a single vote on the Court when actually tested. It was, it seems, a paper tiger all along.”
July 2, 2008 at 3:03 pm
Well I think the thing to remember here is that by “otherworldly logic” ANM really means “disagreeing with ANM’s opinion”. Though politically I am very different from AOC, and APO, like those two (and unlike ANM), I love and respect the constitution and the rights it maintains.
I will never own a handgun. But I will defend your right to do so. Why? Because I’m not a communist. I believe in the rights enshrined in the constitution, and believe they were put there for a purpose (overthrowing the gov’t should it become tyrannical). Which, by the by, isn’t a tired argument, plenty of modern societies have done it. That the Iraqi’s didn’t is an artifact of Islam (better tyranny than a day of anarchy).
July 9, 2008 at 11:45 am
AM: Acutally, I only applied “otherworldy” to overturning the trigger lock mandate. And I have at least one dissent in explict agreement with that point. But, then again, facts have never bothered you much have they? 🙂
July 10, 2008 at 2:15 pm
[…] Chicago liberals are going so far as to call for the repeal of the 2nd amendment. The 12 Angry Men chimed in on the decision and readers will note my opinion. But I wanted to specifically look at the State of Illinois and […]