March 19, 2008
Supreme Court Justices Cast Skeptical Eye on D.C. Gun Laws
Walter Dellinger has argued before the Supreme Court on many occasions. In fact, according to a Post profile of the lawyer and academic, he's been in front of the nine justices often this year -- three times in the last four weeks. And while yesterday's argument may have been one of the most historic, it probably wasn't the most fun.
Dellinger, who argued for the District in yesterday's ground-breaking case on the Second Amendment, didn't get more than 30 seconds into his argument before he was peppered with pointed questions from various justices. It didn't get much easier from that point on. In fact, you could say he faced a less skeptical crowd of justices the last time he stood before the court -- when he argued that ExxonMobil shouldn't have to pay punitive damages for spilling 11 million gallons of oil off the coast of Alaska.
Throughout the almost two-hour proceedings, justices including Chief Justice John Roberts, Samuel Alito, Antonin Scalia and swing-voter Anthony Kennedy took apart the District's argument that the Second Amendment grants only gun ownership in the context of a state-regulated militia, and that the city's restrictive gun laws are both necessary and constitutionally sound. And while Alan Gura, who argued against the District, faced a number of prying questions himself, he faced comparably smooth sailing in contending that residents both need and should be allowed to keep handguns in their homes.
Photo by mnesterpics
Let's be honest -- after yesterday, we shouldn't have much hope that the District's gun laws will be upheld. If decided plainly on historical and philosophical grounds, the city's almost absolute prohibition on handguns seems to run headfirst into what the justices -- and the many briefs filed in support of Dick Heller, the man whose lawsuit against the city kicked off the case -- claim the founding fathers meant when they drafted the Second Amendment. According to Kennedy, the fact that guns were originally used by settlers to defend themselves against "hostile Indian tribes and outlaws, wolves and bears and gizzlies and things like that" proves that the right was always individual and used for self-defense. Of course, most District resident don't have to fend off wolves or Indian tribes, but you get the point.
While the court seemed content in arguing that the Second Amendment protected an individual right to own a gun, there was much less discussion -- or consensus -- on what type of restrictions would be reasonable for cities and states to impose. It was in this that Dellinger may have made some of his best points. While noting that the initial decision of the U.S. Court of Appeals for the D.C. Circuit could potentially allow residents to own machine guns and use armor-piercing bullets, Scalia and Roberts argued that neither of those two are commonly owned and that a court might find it reasonable to allow them both to be banned because they are so dangerous. "But a handgun is concealable and movable," Dellinger fired back. "It can be taken into schools, into buses, into government office buildings, and that is the particular danger it poses in a densely populated urban area."
It was on this very point that Solicitor General Paul Clement deftly straddled both sides of the argument. Agreeing that the Second Amendment protects an individual right to own a gun, Clement also asked that the court carefully take into consideration the effect any ruling would have on federal gun laws, especially those related to machine guns. If the court ruled that the Second Amendment strictly allowed individual gun ownership -- this scuttling the concept of "reasonable" restrictions -- gun laws across the country could be challenged, and individual judges would be left with the unenviable task of defining when and how the ownership of certain weapons could be limited or regulated.
At the end of the day, Clement may save the District. At its core, his argument was that while the court should find for the individual right perspective, it should similarly be careful in defining what standard needs to be applied in deciding whether a particular regulation is permissible. While Roberts didn't seem to relish having to do this, it may not be lost on the rest of the justices that clarifying a historical debate on the Second Amendment could create far more problems that it solves. Sure, the District's gun laws would be overturned, but what type of restrictions would city officials be allowed to impose? A lack of guidance isn't something District officials -- or anyone else, really -- want in going forward.
There are of course other questions that may factor into the court's final decision. Does the fact that the District still allows residents to own rifles and shotguns serve as an adequate substitute for their ban on handguns? If not, why not? And if the court has agreed that other rights can be reasonably restricted, why should the Second Amendment be any different? Is a philosophical victory for the gun rights movement worth the potential legal chaos if the court doesn't set some standard or offer some guidance in moving forward? And while there is surely some merit in looking back to legal doctrines and historical documents dating back hundreds of years, isn't it a little foolish to base an entire decision on the assumption that Americans are still settlers fighting off wolves and bears?
No one knows for sure how the court will rule. While what the justices said may count for a lot, there are many other factors that go into a final ruling -- the input of their clerks, the time separating when the arguments were made and when the ruling is issued, and how the justices finally line up to write the majority opinion, the concurring opinions, and the dissent. While Scalia and Thomas can be counted on to side with one end of the ideological extreme, will Roberts and Alito be swayed by what John Paul Stevens and Stephen Breyer have to say? Will Kennedy have to balance an apparent sympathy with the individual rights argument and a need for a standard on what restrictions are reasonable?
Who knows. But for next few months, District residents and officials will remain in suspense, waiting for a ruling on a case that is nothing short of historic.
>> SCOTUSBlog's coverage of the case.
>> Harry Jaffe on the lack of a local angle in the Supreme Court.
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I'd venture to say that perpetrators of armed robbery are more dangerous to an individual in their home than wolves or bears or indian tribes. Unless I'm mistaken and bears carried glocks.
Fully automatic weapons, silencers, short shotguns, etc (Title II firearms) have been legal for years. You need only pay a hefty tax, register with ATF and local law enforcement, and pass an extensive background check. If they were smart, DC would start looking for ways to CHA-CHING cash-in on the inevitable rush of legal firearms into DC. Say, a $20 per cartridge bullet tax, or a four-figure fee to register your gun in DC.
Anyway, there's nothing wrong with this situation that an expensive bureaucracy can't prolong.
"after yesterday, we shouldn't have much hope that the District's gun laws will be upheld."
Ummmm...why would we hope that the gun laws are upheld? I see these gun laws on the book, but I still see people getting shot on a near daily basis in the District.
Forget the wolves and bears, what a straw-man. How about the thugs and criminals that will soon have to worry about their prey now being legally armed and able to protect themselves?
Monkey - They will first tax the sale of the gun ( 2 or 3 hundred %), then you have to bring three references, your birth certificate, blood type and pay cash. They will give you your gun after the mandatory 6 month waiting period BUT before you can buy bullets ($20/ea) you have to take the gun home and store it (you would never be allowed to have the gun and the bullets in the same room).
All the while it will be business as usual for the criminals in this city...
The total and complete prohibition of a U.S. citizen owning a handgun in the District of Columbia is a violation of the Second Amendment. That's what I heard yesterday.
Woo Hoo. I'm getting all goosepimply just practicing -- You've got to ask yourself one question: 'Do I feel lucky?' Well, do ya punk?
You forgot the mandatory DC gun licensing exam, which will include such classic questions as, "How is a raven like a writing desk?" and "If four-out-of-five people suffer from diarrhea, does that mean the fifth person is enjoying it?"
@ Logan Resident:
I'm sure the District could still ban the sale of firearms in the city. They'd have to choose to let gun stores in to the city, and if they did then you're right in the fact that the could make them prohibitally expensive. Unfortunately that's irrelevant, because you can get in and out of any gun show in Chantilly, VA in half an hour with a brand new piece of shiny chrome.
Anyway, anti-gun people should look on the bright side. If the district plays this right, they can just increase the penalty for owning an unregistered firearm, forcing every gun owner to register their weapons. Hell, even do what California does and take a shell casing fired from each gun and store it in case the weapon is used for a crime. A large number of registered guns is better than a large number of unregistered guns that will never be registered because they are deemed illegal. The government turning a blind eye to the state of weapon possession in this city is finally over and they should use this all as an opportunity to get people to register their guns.
If each DC marriage license comes with a handgun, the resulting murder-suicides will reduce any backlogs in Divorce Court.
wizzyliz - the second amendment says nothing about "handguns" or "muskets" or "rifles" or "shotguns" or "semi-automatic gatling guns.
i'm not a pro-gun person, but i would argue that the second amendment says something about "the right to bear arms" not "the right to bear handguns". am i wrong?
so how is the restriction of certain arms not a legal possibility?
Make having a gun license contingent on being up-to-date on all alimony and child support payments. That'll learn 'em to bring a gun to DC.
ty - you're right, i like the idea of "everyone register" and then we get a law where unregistered weapon=massive sanction.
Yeah something like a two strikes your out law where if you're caught with unregistered weapons more than once you're barred from owning a firearm in the District, and if you're caught after that then you go to jail. D.C. should be doing everything they can to get people to register their firearms, not discourage registration via taxation, endless paperwork, and mixed signals on how to actually register a firearm.
If anyone is bored and wants a play by play on how mismanaged the system currently is for registering a weapon, read this: http://www.triggerfinger.org/weblog/group/category/the_so-called_capital_of_the_free_world/index.jsp.
FYI that dude is a gun NUT, but whatever.
i'm not a pro-gun person, but i would argue that the second amendment says something about "the right to bear arms" not "the right to bear handguns". am i wrong?
I think there was some discussion of this at yesterday's hearing. I seem to recall reading some exchanges about whether "arms" was a military term, and whether weapons like machine guns were really needed for self defense. Dare I ask if it covers monkeyrotica's beloved trebuchet? Though those are hardly as convenient as a Saturday night special.
The problem with mandating registration of weapons or facing massive fines is that it won't work for criminals. Currently DC mandates that no handguns are allowed and if you're caught with one, you're supposed to be hit with substantial criminal penalties. That's not working too well, as all posters know. How many gun prosecutions are brought by the US Attorney's office? What's the average sentence? How often is a gun possession charge pled down to some misdemeanor? What makes anyone think the same isn't going to happen in a mandatory registration scheme?
Unless we really get tough on illegal gun possession - and that will require the US Attorney's office to actually prosecute these cases and not plea them down to meaninglessness - we're going to be looking at the same situation that we've got now: criminals possessing illegal weapons and not really being deterred by the potential criminal penalties.
Now, if you crank up the criminal prosecutions, and tie illegal gun possession to a loss of public housing and welfare benefits, maybe that will cause some deterrence. Otherwise, we're going to be in the same place we are now, except that law-abiding citizens can have guns at home.
cranky -- well, i think i'd prefer that we keep the current rules on possession and prosecute like crazy those who break the laws, but since that isn't currently working, like you said, then maybe bringing the whole topic to the forefront, which this court case is doing, will lead to the police, DAs, and judges actually cracking down on illegal gun possession (however that is defined going forward).
that would be the best possible scenario i could see coming out of all of this.
As for punishing lawbreakers, again, there's the beauty of the trebuchet: you can use it to throw people as well as things at people.
Cranky - you hit the nail on the head.
If all the criminal have and use guns regardless of the laws ... Why do people fear law-abiding citizens owning legally registered weapons (in this case hand guns)?
It does look like the gun ban is history.
So soon we'll be enjoying a massive reduction in crime rates, like those enjoyed by the twin mavens of gun-lovin', Richmond and New Orleans.
Oh, wait.
Fending off Indian tribes.... let's not assume that's a thing of the past.
That woman working the gift shop at the Native American museum was pretty damn aggressive. I'm betting if I showed her my hard, sexy sidearm she would have piped right down....
Hillman - Is one of the arguments for overturning the gun ban that it will decrease crime? I thought the arguments were more along the lines of personal liberties and the right to protect yourself in your own home, etc. I assume from your statement that you would not own a gun even if it were legal. Would you have an issue with your neighbor having a legally owned gun in his home? If yes, why?
There's always the argument by gun advocates that states with higher levels of gun control laws have higher rates of gun-related crimes and vice versa. I don't know the validity of the stats that form that argument, but since it's been repeated on the Internet, then it must be true.
Perhaps a better comparison would be the rate of gun violence per 100,000 people in cities/urban areas (so as to include places like Prince George's County) over time, especially if several of those cities enacted gun control laws.
Maybe gun control laws will reduce crimes in DC. Maybe not. But without sustained police enforcement of the laws, actual prosecutions by the US Attorneys office, and tough sentences imposed by judges, I'm not sure simply having guns will by itself be any sort of panacea to crime.
Now, Marion Barry has been holding hearings on gun violence in DC. I've tuned in from time to time and found it to be basically sad stories of crime victims and appeals for more money from anti-violence community groups (some well-established, others sorta shady or with no effective track record). If the gun ban is overturned, I would hope there would be a meaningful Council discussion on ways to reduce violent crimes in DC. The AG's office, US Attorney's office and the Superior Court judges would all have to be part of this discussion.
But I would not hold my breath. After all, this is the same government that had a big tizzy about the Mayor controlling access to the luxury boxes at the Verizon Center and demanding their own luxury box.
There's always the argument by gun advocates that states with higher levels of gun control laws have higher rates of gun-related crimes and vice versa. I don't know the validity of the stats that form that argument, but since it's been repeated on the Internet, then it must be true.
Perhaps a better comparison would be the rate of gun violence per 100,000 people in cities/urban areas (so as to include places like Prince George's County) over time, especially if several of those cities enacted gun control laws.
Maybe gun control laws will reduce crimes in DC. Maybe not. But without sustained police enforcement of the laws, actual prosecutions by the US Attorneys office, and tough sentences imposed by judges, I'm not sure simply having guns will by itself be any sort of panacea to crime.
Now, Marion Barry has been holding hearings on gun violence in DC. I've tuned in from time to time and found it to be basically sad stories of crime victims and appeals for more money from anti-violence community groups (some well-established, others sorta shady or with no effective track record). If the gun ban is overturned, I would hope there would be a meaningful Council discussion on ways to reduce violent crimes in DC. The AG's office, US Attorney's office and the Superior Court judges would all have to be part of this discussion.
But I would not hold my breath. After all, this is the same government that had a big tizzy about the Mayor controlling access to the luxury boxes at the Verizon Center and demanding their own luxury box.
Sorry for the double posting. Damn Morlocks messing with my mouse.
Cranky - I think that high gun control=high crime thing is a faulty syllogism. The concealed carry crowd uses it a lot in their arguments. Most urban centers have concentrated poverty, concentrated crime, and are more likely to have strict gun control laws. Many of the areas where you have concealed carry laws are relatively low-crime affluent suburbs. I'm not sure one can extrapolate "more guns=less gun violence." The equation should be "less poverty=less gun violence."
But it's a lot easier to just pass a law than it is to get rid of poverty.
Logan:
Actually, I'm all about the guns.
The very day it becomes legal to own an assembled shotgun in DC I'll traipse down and get a license to do so.
I think the SC arguments were about constitutionality.
But I constantly hear the far side gun rights folks whining about DC's crime rates, and blaming it on gun control. I just like to point out that Richmond and New Orleans, both gun -happy locales, have similar crime rates. And NYC, quite the stringent gun control bastion, has far lower rates.
I think gun control laws are useful in DC mostly as a means to an end. That is, MPD often uses the evidence of an illegal weapon to get a search warrant for car, house, etc. And that's when the drugs, body parts, etc., all come bubbling up.
Beyond that, I think the data is all over the place as far as effectiveness of gun control.
And of course DC isn't a good example, as any idiot knows the flow of guns into DC from VA and MD is non-stop.
You're right IMGoph.
HANDGUNS ... RIFLES ... PISTOLS ... REVOLVERS ... SHOTGUNS ... they're all different.
Yet a "handgun" is the smallest "arm" which would fit perfectly into my new Chanel bag. The Gatling is way too bulky for me.
Hillman - Sorry - I thought you were anti-gun ... I am trying to understand the Liberal point of view on this issue (with great difficulty). Even if the ban is lifted the police should still be able to get search warrants when they suspect there are illegally kept weapons in a given location. I assume that guns owned by criminals would be considered illegal under any circumstance.
Martin - Every D.C. resident should be able to vote, its their constitutional right.
Martin - No D.C. resident should be able to own a a hand gun, even though it is their constitutional right.
I realize I put these in simpleton terms but your stances confuse me. I am for voting rights and I am for being able to own a gun so we have opposite views and I am not looking to argue I just would like clarification.
I think the term 'liberal' may not really fit here. I know lots of lefties that love guns too.
Anywhere you have overwhelming numbers of poor people, like we do in DC, you will find overwhelming amounts of crime, wholly unrelated to the legal status of firearms.
The solution is to outlaw the poor, not firearms. That is a referendum for which I would happily vote.
The solution is to outlaw the poor, not firearms. That is a referendum for which I would happily vote.
And that's where the trebuchet comes in really handy. Not to be confused with Bobby Boucher.
why would you want bear arms anyway? i mean, there all hot and scratchy.
jzeefe - "anywhere you have overwhelming numbers of poor people, like we do in DC, you will find overwhelming amounts of crime, wholly unrelated to the legal status of firearms."
Evidently you never lived in India, or China, or Russia (or, previously, the Soviet Union) or in Turkey, or North Korea - NONE of which have - or had - overwhelming rates of crime (with the exception of that perpetrated upon the people by the respective governments).
It's way past time to put to rest that old gem of liberal oral diarrhea.
Here's hoping the Supremes get it right and reaffirm the Constitutional right to bear arms. It will be a pleasant change for the thugs and jerks to finally have to think whether their intended victems might in fact not be unarmed. Personally, I can't wait for one of the MFs to break into my house to get his little greeting.
Logan - you are right that New Orleans and Richmond both permit legal ownership of guns and each has a high crime rate. Do you think it is a coincidence that they also share a similar demographic with DC?
Can you attribute it to something else?
Switzerland has an extremely high rate of gun ownership - and low rate of crime. And different demographic.
Go figure!