January 7, 2008
D.C. Outlines Case In Defense of Gun Ban
When District lawyers face the Supreme Court in March to defend the city's ban on handguns, they'll not only be fighting to save a local policy -- they'll also be asking the court to decide whether the Second Amendment protects gun ownership in an individual capacity or only under the auspices of a state-run militia.
Last Friday the District submitted its brief to the court, laying out in 79 pages why the District needs the ban and why the ban is consistent with a historical reading of the Second Amendment. "The primary concerns that animated those who supported the Second Amendment were that a federal standing army would prove tyrannical and that the power given to the federal government in the Constitution's Militia Clauses could enable it only to federalize, but also to disarm state militias," reads the brief. "There is no suggestion that the need to protect private uses of weapons against federal intrusion ever animated the adoption of the Second Amendment." The brief also argues that in allowing residents to own rifles and shotguns, the city's gun laws are no more restrictive than other reasonable limits on other constitutional rights that the court has allowed. It similarly claims that the Second Amendment only applies to federal legislation; states are allowed to restrict gun ownership.
Unlike past filings and arguments, the brief is a substantial and impressive work of historical and legal analysis. While the city originally seemed to focus its case on more practical matters -- it hoped to tug at the hearts of justices who are surely aware of the city's violent past and continuing struggles with crime -- the arguments presented to the court take aim at the idea that the Second Amendment was written to protect an individual's right to own a gun and that that right is absolute.
Of course, we expect the conservative wing of the court, led by the acerbic Antonin Scalia, will try and pick apart both the District's historical argument and its contention that limiting handgun ownership actually helps limit crime rather than leaving residents without the means to protect themselves from it. It should be difficult, though, for the court to disagree that like many other rights written into the Constitution, certain restrictions on gun ownership are permissible.
We've long been concerned that the gun ban hasn't helped reduce violent crime in the District -- if anything, it has ensured that criminals, not citizens, are the ones who are armed. But the brief makes a passionate and well-argued case for why the ban should be upheld, and, more broadly, why reasonable restrictions on gun ownerships in urban environments are necessary. Even if the court decides that the city's historical interpretation of the Second Amendment is wrong, it may still agree that the right to gun ownership is not absolute. And in that, the city will get as close to a victory as it could hope for.
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Much like Hillary Clinton's campaign, the city is going to go down in flames with this one. Looking forward to the fireworks!
$10 says the court (in a flurry of concurring opinions) finds A) the 2nd amendment is an individual right and B) that right can be reasonably regulated.
Any thoughts on whether DC's unique status (Home Fool Rule) will play a role in the application of the Constitution to "state's" rights when DC is not a state? I am definitely not a lawyer, so it's a sincere if dumb question.
I agree with TLB.
Hopefully this will at the very least result in DC residents being able to have functioning guns (handguns or long guns) in their homes for self defense.
What part of "shall not be infringed" do you not understand?
ppsailor01,
Most people would probably consider me a "gun nut", but even I believe there have to be limits on the public arming themselves. No citizen needs access to nuclear arms for example. Now where exactly that line should be drawn, I'm not sure.
I'm with TLB, but have my own $5 that if there is an individual right, the gov'ts right to regulation is subject to heightened scrutiny. You know how I earn that money, so when I wager, I'm serious.
ppsailor01 - when "make no law" means "make no law," someone'll get back to you on that.
It similarly claims that the Second Amendment only applies to federal legislation; states are allowed to restrict gun ownership.
Oh, good gravy. No, no, no. Are states allowed to infringe upon reasonable search and seizure? How about the freedom of the press. We'll shut down the Moonie Times yet!
April is gonna be a busy month at the gun registration counter @ the Indiana Ave. police station.
****Even if the court decides that the city's historical interpretation of the Second Amendment is wrong, it may still agree that the right to gun ownership is not absolute. And in that, the city will get as close to a victory as it could hope for. *****
Which is nowhere, since Miller said "Nope, you can't have sawed off shotguns because there is no evidence in the record that sawed-off shotguns were either historically or currently used as military hardware (of a non-heavy weapon variety, although that distinction was made in a separate case that escapes me and is the reason you can't buy hand grenades and recoilless rifles at Wally Mart). So long as the military uses it and it's not ridiculously powerful, it should be AOK, including the venerable Colt 45 sidearm. When the dust settles I want mine in chrome with ivory grips (like Patton) but with an engraved picture of Chuck Brown. But I digress.
No, if the District has a snowball's chance in hell they will prevail on the definition of Militia, but I suspect that will not be the case. Instead, the Court will most likely say there is no evidence that the Framers intended to make the second clause critically dependent upon the first, because that reading undermines the ability to form militia in the first instance. There will most likely be all kinds of dicta talking about the concerns of the Framers at the time and the fact that there may have been other criteria or concerns which resulted in the undeniable conclusion that regardless of what those concerns were, perhaps they only mentioned the biggie, (namely, that whole federalist/anti-federalist hoo-ha that was a brewin and wouldn't fully rear its ugly head until some 70 years later when this nation decided to thoroughly disembowel itself over a very closely related issue.
Notwithstanding how it ended up reading, the first clause of the Amendment might have very well read:
(1) "Because the Brits may come back"* or
(2) "What with all those native types who just won't play nice on our Proclamation Line of 1763"; or even
(3) "As Georgetown regularly becomes a hotbed of libertine and debauchery" . . . the right of the People . . .
It just doesn't matter. The Court is going to strike this down. It's just a matter of whether Roberts will come out on the steps of the S Ct. buidling and point his gavel in the direction he is planning to knock it out of the ballpark beforehand.
*They did!
Oh, good gravy. No, no, no. Are states allowed to infringe upon reasonable search and seizure? How about the freedom of the press. We'll shut down the Moonie Times yet!
Here's the thing - there's some chicanery involved. The Bill of Rights, by its terms, only apply the the federal gov't. The 1st and 4th Amendments (as well as others) apply to states only b/c of the 14th Amendment. The Supreme Court hasn't incorporated the 2d into the 14th....yet. So, gravy aside, the brief is correct for the time being.
The Supreme Court hasn't incorporated the 2d into the 14th....yet. So, gravy aside, the brief is correct for the time being.
Although correct, I don't see how the Supreme Court, especially one with an ideological tilt towards gun ownership as an individual right, could agree with the District's reasoning. How can they just pick and choose which amendments are worthy of inclusion into the 14th Amendment Club and which aren't?
If I remember my Constitutional Law flashcards, the 14th Amendment has incorporated all of the Bill of Rights provisions to the states, except for the 2nd Amendment and the right to a grand jury. If the Supremes decide to incoporate the 2nd Amendment into the 14th, then all states' gun control laws become subject to legal challenge. Which is not going to win us any friends in any gun control states, although pro-gun folks will love us for causing the downfall of gun control.
I don't think there is any way for the city to plausibly argue that "reasonable" gun control includes a complete ban on handgun ownership, as well as the rendering of any long guns to be totally useless. The fact that the city's attorneys had a tough time figuring out whether a person could physically move a long gun from one room to another is pretty good evidence that the "reasonableness" of those regulations is pretty low.
Based on the current compostion of the Court, I think we have good chances at losing. But, the issue will be whether the Court finds that although the 2nd Amendment is an individual right, the state still has a big interest in regulating it so long as it follows some standard framework.
If DC loses this case, then Fenty and Nickles will have to answer the question of why they chose to appeal the case, rather than simply taking the loss, and slightly revising the gun ban rules, and waiting another several years for someone else to challenge them. Because if DC loses and state gun control is struck down, the legal decisionmaking of Fenty & Co. will be in for some harsh criticism.
What part of "shall not be infringed" do you not understand?
What part of "well-regulated militia" do you not understand? And when do I get my own TOW missle battery and nuclear weapons? Columbia Heights is still a "developing" neighborhood, after all and I have the right to defend myself.
Wheee! Debating with eight-year-olds makes me feel younger!
I don't think there is any way for the city to plausibly argue that "reasonable" gun control includes a complete ban on handgun ownership, as well as the rendering of any long guns to be totally useless.
But it's not a ban. You can legally own a firearm so long as it was registered prior to the ban, and as of today, there are a grand total of about 4 available. So if you can track those 4 guns down, and are willing to pay their price, you too can own a firearm in DC.
AJP, the militia part is a descriptive clause, not an independent one. Before you accuse other people of being eight-year-olds you might want to brush up on your grammar-school grammar.
The collective right is such a bunch of nonsense. Do you have a collective right to freedom of speech and not an individual right? There is no way the court is going to start down the path of defining the Bill of Rights as collective rights. If they start with the 2nd Amendment, they won't end there.
That's great, HCE, what with it having nothing to do with my question.
Despite the 1st saying you can't restrict freedom of speech, everyone with half a brain cell knows that "speech" is, and should be, regulated- i.e. the "fire in a crowded theater" argument, libel laws, copyright, etc. No civil libertarian is stupid enough to advocate what is essentially an anarchic interpretation of the First Amendment, so why do gun nuts get hard over doing that with the Second?
So I repeat- if the right to keep and bear arms shall "not be infringed" in any way whatsoever, then why can't I own a bazooka? Why can't I have a gun turret mounted on the top of my car? Why can't my 5-year old nephew carry a loaded Glock to school in his Yu-Gi-Oh lunchbox?
Oh, that's right... because the government has the right to regulate an overall "right to bear arms." You can debate just what "well-regulated" means, but if you're actually arguing that "well-regulated" means "not regulated at all," then yes, you're thinking like a child.
That's great, HCE, what with it having nothing to do with my question.
Despite the 1st saying you can't restrict freedom of speech, everyone with half a brain cell knows that "speech" is, and should be, regulated- i.e. the "fire in a crowded theater" argument, libel laws, copyright, etc. No civil libertarian is stupid enough to advocate what is essentially an anarchic interpretation of the First Amendment, so why do gun nuts get hard over doing that with the Second?
So I repeat- if the right to keep and bear arms shall "not be infringed" in any way whatsoever, then why can't I own a bazooka? Why can't I have a gun turret mounted on the top of my car? Why can't my 5-year old nephew carry a loaded Glock to school in his Yu-Gi-Oh lunchbox?
Oh, that's right... because the government has the right to regulate an overall "right to bear arms." You can debate just what "well-regulated" means, but if you're actually arguing that "well-regulated" means "not regulated at all," then yes, you're thinking like a child.
I still haven't figured out how a well-regulated militia is supposed to train itself if it doesn't have its own guns. I suppose they could just use their fingers and go "Pyoo! Pyoo!"
And speaking of pyoo, where do I go to file a complaint about that christiansingles.com ad? Not only did my "date" lack the requisite cleavage, she wasn't even a virgin according to Ezekiel 25:17!
It also depends how you define 'arms'. With the "shall not be infringed" wording, the government should be very limited in how it can regulate small arms.
Any pistol, shotgun, or rifle shouldn't be subject to much regulation. Anything beyond a machine-gun that a grunt might carry is military equipment and generally not small arms. Tanks, nukes, etc are obviously not small arms.
Regardless, your argument is a red herring. Currently the 2nd Amendment is much more restricted that the first.
I'm with you, DC Daddy! Call me the crazy prospector babbling on the outskirts of town, BUT: could the thing be "the states angle"? Such that the District expects to be shot down (ha!) on the gun argument but then turn right around and corner the Court into agreeing that DC is, indeed, a state?? Well, could it?! In a sense "throwing the game" for the larger goal of statehood?
...sigh, I know, but it's so crazy that it just might work...
Next I'll jump my moped over the reflecting pool.