March 18, 2008

Reasonably Disarmed

Heller v. District of Columbia goes to the Supreme Court today, as a group of Washington, D.C. residents contend that the ban on operable firearms inside homes in the District of Columbia—including an outright ban on handguns not registered prior to 1976—violates the Second Amendment and is unconstitutional.

Robert A. Levy, co-counsel to Heller has an op-ed posted in today's Boston Globe that highlights the correct individual rights argument.

Predictably, the editorial board of the New York Times has an op-ed of their own against the individual rights perspective, which they seem to feel applies to the First Amendment, but not the Second.

They write, quote dishonestly:

Today the Supreme Court will hear arguments in a politically charged challenge to the District of Columbia's gun control laws. The case poses a vital question: can cities impose reasonable controls on guns to protect their citizens? The court should rule that they can.

The District of Columbia, which has one of the nation’s highest crime rates, banned private ownership of handguns. Rifles and shotguns were permitted, if kept disassembled or under an easily removed trigger lock. It is a reasonable law, far from the ban that some anti-gun-control advocates depict.

What is "reasonable" about a law that turns a homeowner into a felon the moment he takes a trigger lock off his firearm (including rifles or shotguns) and loads it during a home invasion to protect his family? The Times refuses to address the obvious unfairness of this law, and the fact that it completely precludes any legal armed self defense, even during the most violent of crimes.

As you might expect from the Times, they follow one deception with another.

The United States Court of Appeals for the District of Columbia Circuit ruled that the law violates the Second Amendment, which states: "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." The decision broke with the great majority of federal courts that have examined the issue, including the Supreme Court in 1939. Those courts have held that the constitutional right to bear arms is tied to service in a militia, and is not an individual right.

The 1939 case in questions is of course, United States vs. Miller in which a pair of bootleggers were arrested for transporting a sawed-off shotgun in violation of the National Firearms Act of 1934, which required certain firearms to be registered and a $200 transfer tax be paid every time an NFA firearm was transferred. The two men were charged for not paying the $200 tax on the the shortened shotgun. Neither of the bootleggers nor their defense showed up for the Supreme Court case, as Miller had been killed by that time, and the other defendant, Layton, accepted a plea bargain.

In reality, Miller is a very murky ruling, having been cited by both gun control advocates and gun rights advocates alike. Far from being a pro-gun control case, Miller is inconclusive at best, which the Times dishonestly and purposefully overlooks.

They continue:

The appeals court made two mistakes. First, it inflated the Second Amendment into a sweeping right to own guns, virtually without restriction or regulation. Defenders of gun rights argue that if the Supreme Court sticks with the interpretation of the Second Amendment that it sketched out in 1939, it will be eviscerating the right to own a gun, but that is not so. Americans have significant rights to own and carry guns, but the scope of those rights is set by federal, state and local laws.

The second mistake that the appeals court made — one that many supporters of gun rights may concede — was its unduly narrow view of what constitutes a "reasonable" law. The court insisted that its interpretation of the Second Amendment still leaves room for government to impose "reasonable" gun regulations. If so, it is hard to see why it rejected Washington's rules.

Again, only at the Times could they attempt support a law that completely outlaws the use of a firearm as a firearm as a "reasonable" restriction.

Perhaps if the District of Columbia ruled that their citizens had the right to own a printing press"or today, a computer printer"but required it to be kept disassembled or locked up, and made it illegal to either load it with paper or ink, then the Times might change their tune.

That, of course would require far more intellectual honesty than exists at the Times, and it seems that putting truly innocent people at risk to the whims of criminals does not weigh heavily on their souls.

Posted by Confederate Yankee at March 18, 2008 09:00 AM

Right from the outset, I would like to point out that I am Scottish, living in Scotland, and thus removed from this debate.

However, I have been interested in the debate over the Second Amendment for a long time now, and have formed my own conclusions based on my interpretation of the wording, the context of the times and the legal precedents that have followed, the transition of the Militia as an entity into the National Guard, for instance. The intent that I can decipher is that the Second Amendment does specifically protect the retention of firearms by private citizens for the purpose of duty in the Militia, so that were raising of a militia required, time would not be wasted distributing weapons. Secondary effects include the ability for citizens to form an Irregular detachment to engage the enemy as skirmishers in the early stages of any invasion, until an organised response can be formed, and the inability of the Government to bar the citizens from access to weapons in order to ensure it's own survival. I point out, though I think it is a factor, perhaps an important one, the retention of firearms for the purpose of giving citizens the ability to remove the government is not the primary intention of the Second Amendment. The private ownership of firearms is justified, and protected, under the requirement of potential militia service. As the Militia is now legally the National Guard, that would mean that the only uninfringable right to own a firearm would be possessed by members of the National Guard, and only extending to weapons that could be used in the service of the National Guard. In the days of the Militia, people who privately bought a firearm that could be used for Militia service could get a refund by taking it to their Militia officer.

The Second Amendment does not grant the right to keep and bear arms. It PROTECTS that right from infringement by other laws, but only in the circumstances it lays out. That's the crux. It does not speak in any way to the rights of private ownership of firearms for any other purposes. It also does not proscribe them, they simply don't come into the reading of the Second Amendment. And I am of the opinion that the Constitution as the premier legal document of the United States of America, MUST be enforced wholly and completely. From my interpretation, the individual state court rulings that the Second Amendment does protect individual firearm ownership rights for purposes such as self defence are biased readings of the Amendment due to public pressure. The purpose of Amendments is to update the primary legal document of the country so as to remain applicable to current times. I would argue that the Second Amendment is, to a greater or lesser degree, no longer valid, and needs either updating or replacing.

Given that one of the secondary reasons for a citizens right to bear arms independent of Government oversight IS preparation for the eventuality that the Government might one day have to be removed by the citizens, though not the primary reading of the Amendment as I have said, the legal alteration of the private Militia into the Government-controlled National Guard violates one of the premises of the Amendment. I am not suggesting that the National Guard be scrapped and the Militia reinstated, merely that the Second Amendment is not longer applicable to the current times. In addition, the ownership of firearms for self defence is a good idea, one that should be enshrined in law. My arguments on how elements of such practise should be handled do not come into this argument at this point. I believe that the founders of your country would have chosen to protect individual firearm ownership rights were the necessity of enshrining it in law foreseen. For a country that was born on the tenants of individual responsibility as well as freedom, it is in keeping with the national character. But currently, there is not such law in the American legal pantheon that addresses the protection of such rights. One is needed. Arguing over subtle or incorrect interpretations of an irrelevant law is pointless.

Posted by: Elydo at March 18, 2008 10:10 AM

"It does not speak in any way to the rights of private ownership of firearms for any other purposes."

It does not speak of any purposes. Read it in its original wording.

"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."

Note the comas. What they are saying is that we need a well regulated militia, and the people's right shall not be infringed.

If they were talking about the people of the militia then it would have read as follows.
"A well regulated militia being necessary to the security of a free State, the right of those People to keep and bear arms shall not be infringed"

Also, there are still state sanctioned militias that are not the National Guard.

Posted by: Matt at March 18, 2008 01:41 PM

Thanks, Elydo. That was fair and well written. I'm not sure your reading of the first clause of the 2nd Amendment is entirely correct. At the time of it's writing Arms were not just optional equipment but a real necessity in hunting for provender or trade and first defense against raiding natives, and foreign incursions. None of these legitimate reasons for the retention of firearms are enunciated because it was understood. Well, the natives are no longer restless. Hunting is now an avocation and militias are anachronistic. I believe "well regulated militia" is a colorful flourish on the founders intent. Well regulated is perhaps wishful thinking but the militia then comprised of every able bodied man is scarcely distinguishable from the electorate at large. They wanted an armed populace. Without it we would have faced George III with pitchforks and rakes as the French battled Louis the following decade. Remember this is a time when the possession of weapons and hunting dogs were royal prerogatives in Europe. They saw as well the potential of their new enterprise to be taken over by tyrannical faction and they wanted the populace able to defend itself. While the growth in the state's weaponry makes that unlikely the spirit pervades. Moreover what world power would think to successfully invade the US whose citizenry bristles with weapons?

Maybe it's time 'self-defense' is finally clarified in the 2nd Amendment. Recent history shows us 'gun-free' zones are shooting galleries.

Posted by: i b squidly at March 18, 2008 01:59 PM

"Well, the natives are no longer restless."

Squidly. Perhaps the Natives in the traditional sense are no longer restless, but as you state in the last part of your post, there are most definitely restless natives, ;)

I honestly do not see a need to redefine anything, well for anything other than legal rhetoric, because it still applies in its original text.

We still need to defend ourselves, in the case of "restless natives" or from some foreign soldiery (we all know that this will probably never happen, but better to have em and not need em than need em and not have em), as well as protecting ourselves should violent action be required to defend against a tyrant (also not likely, but see above).

Call me a nitpicker.

Other than that, good well thought out out posts, both of you.

Posted by: Matt at March 18, 2008 03:21 PM


Thought-provoking post. Thanks!

Posted by: iconoclast at March 18, 2008 04:20 PM


Federal Code: title 10 sec. 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

Even if the government were to change the definition of the "militia", which currently includes me in the "unorganized militia", it cannot change the definition of the "People" in the consititution without amending it. The right is one of the People to keep and bear arms.

Posted by: Liberty Defender at March 18, 2008 07:54 PM

Thank you, I am a Redneck, and a Marine. I am not always able to put thought down on paper (or keyboard in this case).

Posted by: Matt at March 18, 2008 08:16 PM

The hatred the left has for the Constitution is stunning! I couldn't imagine being so intellectually dishonest as to try and change the obvious meaning of the second amendment.

Posted by: Capitalist Infidel at March 19, 2008 12:54 AM

Many thanks for all the compliments.

Capitalist, if that's directed at me, I would argue that the meaning isn't obvious, thus the debates going on about it. My flatmate is from North Carolina, and she generally subscribes to the common view given by most here, that the second half of the key sentence, that the right of the people to keep and bear arms shall not be infringed, is not tied to the first half, the security of a free state being dependant on a well-regulated militia. The militia reference is more a hook to hang the meat of the Amendment upon, if you will. My own view is as I have outlined, that the militia reference establishes the context, and thus the limitations, of the right to bear arms being beyond infringement, that is, beyond the ability of any other law to circumscribe. The sheer fact that the amendment IS open to interpretation would indicate that it needs to be revised. Typically, in a situation where a law is open to interpretation, the precedent set by the courts enacting that law set the interpretation. That has not happened in the case of the Second Amendment, some state courts have ruled one way, some another, generally in both cases due to lobbying by interest groups. The current case is the first time the Supreme Court has addressed it in 70 years.

My own conclusion still comes out to the Second Amendment being revised to be clearer in it's intent, and a new law being drafted to grant the right, or protect it if you believe it's an inherent right in the first place, to keep and bear arms for self defence.

Remember, during the era of the Founding Fathers, every male of appropriate age was automatically a member of the militia, thus had the right to have a militia weapon, even aside from the key fact that a weapon was as necessary as a decent pair of boots.

In Addendum: Me, Left? No. Me a very strange mix of political ideologies that I would expect to piss off the hard-liners of both sides. Which reassures me, as they're the people I don't generally agree with anyway.

Posted by: Elydo at March 19, 2008 01:30 AM

If you understand 5th grade grammar then the meaning is not only obvious it's a fact. As long as you know what a comma means then you'll know what the second amendment means. The only ones "debating" it are the fascist left. What were the first things that both Stalin and Hitler took away from its citizenry? That would be their guns.

Posted by: Capitalist Infidel at March 19, 2008 04:24 AM

Right, so now we're getting insulting.

Though I am actually dyslexic and also likely have Aspergers, I'm in the process of getting diagnosed, so a retard comment next would possibly be more accurate than saying I don't understand fifth grade grammar.

It's amusing that you make an argument about understanding how to use commas and fail to utilize one in your first sentence, there should be one after "obvious" in order to accentuate your point. And no part of this debate is about the Government removing people's access to firearms. The key point is whether the Second Amendment PROTECTS the right to keep and bear arms from Government regulation, and the circumstances withal.

Posted by: Elydo at March 19, 2008 10:43 AM

Very thoughtful Elydo. Thanks for keeping the discussion civil.

Just to clarify, the National Guard should not be considered militia, vis a vis the 2nd Amendment. The Army and Air National Guards are a part of the National Guard Bureau which is a subordinate command withing the Department of Defense. The only true, non-federal militias would be State Defense Forces. Not all states have them and, while Federally recognized, they receive no Federal funding. They are the only state 'militia' forces that cannot be federalized by the PotUS. Also, with the John Warner Defense Authorization Act of 2007, the Gov. of a state is no longer the sole CiC of the NG units during emergencies within in his or her state.

This is important to remember when trying to keep with the spirit in which the 2nd Amendment was written - that the People may need to overthrow a tyrannical government as the Fathers had just completed doing.

Posted by: Dan Irving at March 19, 2008 02:28 PM

This is another part that is wrong, at least as I understand this.

The case poses a vital question: can cities impose reasonable controls on guns to protect their citizens? The court should rule that they can.

They aren't ruling on whether a city can do this, but whether the federal government can since D.C. is ultimately controlled by the federal government.

I might be wrong about this, but this is a different question than one would face NYC or Boston.

Posted by: Tony B at March 20, 2008 03:23 AM

I would also argue that we do not get the right to self defense from any piece of paper, it is a given right that all humans possess. Since these weapons in the hands of the people should be used in self defense, then we do not require it to be placed on paper to say so. Ya know what I mean?

Posted by: Matt at March 23, 2008 03:59 PM