June 27, 2008
WASHINGTON — The Supreme Court ruled that the Constitution guarantees individuals the right to keep handguns in the home, ending a debate about the Second Amendment’s 18th-century language while opening new battles over the politically charged issues of guns, crime and violence.
For the first time, the Supreme Court affirms the individual right to own guns. Gun deaths in the U.S. average 80 a day.
In a 5-4 opinion by Justice Antonin Scalia, the court struck down perhaps the nation’s toughest gun law, a 1976 District of Columbia ordinance that effectively bans handguns and required that rifles be disassembled or disabled by trigger locks in the home.
The decision stopped short of invalidating other local, state and federal gun regulations. The court also declined to hand legislators a blueprint for permissible gun regulations, acknowledging that the contours of the Second Amendment right, like other constitutional rights, will have to be mapped in litigation over the years to come.
Gun-rights advocates said their efforts will now swing toward challenging handgun bans in other cities, licensing laws and other statutes, such as zoning laws that ban gun stores. Among the issues that the court left to future litigation: whether the government can restrict other kinds of firearms besides handguns, specifically assault weapons, which have been the focus of numerous legislative battles at the state and federal level.
Paul Helmke, president of the Brady Campaign to Prevent Handgun Violence, one of the NRA’s chief opponents, said there could be a silver lining. Because the decision eliminates the specter of gun confiscation, advocates will be more willing to come to the table and discuss other gun-control issues.
Reflecting the passion and political importance of gun owners in an election that could be decided by independent voters, both presidential candidates immediately embraced the opinion — while shading their comments to emphasize different portions of the decision that appealed to their varying bases.
“Unlike the elitist view that believes Americans cling to guns out of bitterness, today’s ruling recognizes that gun ownership is a fundamental right — sacred, just as the right to free speech and assembly,” said Republican John McCain, seeking to join the gun enthusiasts’ celebration while warning that the decision still left open the chance that lawmakers could enact firearms regulations that stopped short of an outright ban. “This ruling does not mark the end of our struggle.”
His Democratic opponent, Barack Obama, was more restrained, saying that he “always believed that the Second Amendment protects the right of individuals to bear arms.” He emphasized that while the ruling protects a core right and “the D.C. gun ban went too far,” the protection “is not absolute and subject to reasonable regulations enacted by local communities to keep their streets safe.”
The Bush administration sought simultaneously to endorse the decision while assuring the public that existing federal gun regulations would remain intact.
“As a longstanding advocate of the rights of gun owners in America, I applaud the Supreme Court’s historic decision today confirming what has always been clear in the Constitution: the Second Amendment protects an individual right to keep and bear firearms,” the president said in a statement. He urged the District of Columbia to “swiftly move” to protect residents’ Second Amendment rights.
In its own statement, however, the Justice Department noted that the court said some restrictions on gun possession were permissible. The Justice Department said it “will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws.”
Pro-gun advocates and supporters of the District of Columbia’s firearms ban demonstrated outside the Supreme Court in March.
The court’s decision appears to strike a balance on gun ownership that reflects the views of the general public. A majority of Americans, 59%, said they oppose laws that ban the sale of handguns, according to an April poll conducted by the Pew Research Center. Yet a similar number, 58%, said it is more important to place controls on gun ownership versus the 37% that said it is more important to protect the right to own a gun.
Despite the opinion’s broad language, it was unclear if it would apply beyond the District of Columbia, the federal enclave whose unique status as the seat of government makes it part of no state. Although the district’s elected City Council operates autonomously under home-rule legislation approved by Congress, Washington’s municipal government is, as a constitutional matter, part of the federal government.
In a footnote, Justice Scalia noted that the issue known as “incorporation” — whether federal rights also are binding on state governments — wasn’t before the court, and observed that prior cases “reaffirmed that the Second Amendment applies only to the Federal Government.” In a 1997 book, he suggested views even more ominous for gun enthusiasts, writing that “properly understood, [the amendment] is no limitation upon arms control by the states.”
For Dick Heller, the security officer who challenged the ordinance, the court’s 5-4 ruling means district officials must issue him a license to keep a handgun in his Washington home. But it doesn’t necessarily allow him to buy another one in the district — or require the city to allow gun stores to operate within its boundaries. District officials, noting that the decades-old gun ban was widely popular within their city, pledged to do all they can to limit firearms in their jurisdiction.
Three activists from Virginia cheered the U.S. Supreme Court’s decision on the District of Columbia’s gun ban Thursday.
Elsewhere, cities with tough gun laws seized on the decision’s focus on Washington. Because it only concerns the District of Columbia, the ruling “does not apply to state and local governments,” said Benna Solomon, a deputy corporation counsel for Chicago. Chicago has one of the strictest gun regulations. City officials said they are expecting a challenge but would continue to enforce its handgun ban until ordered by a court to cease.
States with assault-weapons bans or licensing requirements for gun owners said that they felt confident their laws wouldn’t have to change as a result of the ruling. “The decision affirms the right of states to regulate gun ownership in order to preserve public safety,” said David Wald, a spokesman for New Jersey’s attorney general.
The village president of Morton Grove, Richard Krier, said that lawyers were reviewing the community’s ordinance following the decision and that he had “every intention” of complying with it.
Morton Grove has banned the possession of handguns in the homes of its 22,000 residents since 1981, as well as other dangerous weapons.
Delivered on the last day of the Supreme Court’s term, the 5-4 decision underscored the central place the court plays in the nation’s politics and culture as well as its law. For the third time this month, a major constitutional issue was decided by a single vote — that of Justice Anthony Kennedy, the maverick conservative who earlier sided with the court’s liberals to extend habeas corpus rights to Guantanamo detainees and bar the execution of child rapists. Today, he lined up on the right to hold that each household in Washington may arm itself with deadly weapons to fend off intruders.
Justice Scalia’s opinion was a 64-page tour from the obscure origins of gun rights in the fratricidal wars of 17th-century England through the violent struggles that defined America in its colonial revolt against the British crown, its division over slavery and the subsequent repression of freed blacks. It continued through to the modern era, where battles against foreign invasion and between internal factions have given way to urban crime.
“By the time of the founding, the right to have arms had become fundamental for English subjects,” Justice Scalia wrote, in an opinion joined by Chief Justice John Roberts and Justices Kennedy, Clarence Thomas and Samuel Alito. “The Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”
The Second Amendment, in its entirety, reads: “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.”
That phrasing has led to countless debates over what precisely is being protected — a right of states and their citizens to organize militias, obviating the need for a standing army; a right of individuals to arm themselves, in case they may someday need to form a militia; or some other construction involving either or both personal and collective rights.
The Supreme Court last heard a Second Amendment case in 1939, when it upheld a federal ban on interstate transport of short-barreled shotguns. Since sawed-off shotguns had no “reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument,” the court found then. Ever since, most courts have seen the amendment as providing for weapons possession in connection with service in a militia, or its modern descendant, the state-run National Guard.
Justice Scalia, however, wrote that his opinion was consistent with the 1939 ruling, which he saw as holding only that not all guns were covered by the Second Amendment. Otherwise, he wrote, why would the court focus on “the character of the weapon rather than simply note that the two crooks were not militiamen?”
Gamut of Restrictions
The court’s liberal wing strenuously disagreed, offering its own historical construction that emphasized a gamut of restrictions on firearms over the same swath of time and asserting that the 1939 case, which itself examined precedents on weapons possession dating to colonial times, had settled the matter.
Yet the lead dissent, by Justice John Paul Stevens, did not dispute that the Second Amendment protects an individual right. Rather, he wrote, the question was the “scope of that right,” which protected militia service but left additional regulation to the judgment of the legislature. The Second Amendment’s drafting history revealed the founders’ “concern about the potential threat to state sovereignty that a federal standing army would pose,” something that could be checked by state militias, he wrote, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.
–Gary Fields and Louise Radnofsky contributed to this article.
February 19, 2008
by Rick Lynch<!– put date below, before tag –>, February 18, 2007 With the Supreme Court’s decision to examine the constitutionality of D.C.’s gun ban, the nation once again turns to an intense examination of the wording of the Second Amendment. One way to understand an amendment whose words have confused generations is to study its somewhat confusing text. But another way is to examine at whose request the amendment was written.
For example, if 200 years from now constitutional scholars are trying to determine whether the Smith Tax Act of 2008 increased or decreased the taxes Social Security recipients paid on their retirement income, knowing that the act came into being as the result of pressure from AARP would pretty much end that debate. This, then, is a vital question when seeking to understand the Second Amendment. For if you know the context in which the Amendment was written, if you know for whom it was written, if you know who was clamoring for it and what were their concerns, then that can help settle any argument of individual rights versus collective rights. The Bill of Rights was written by Congressman James Madison to fulfill a promise made to the Anti-Federalists after pressure from that group had cost him a Senate seat — pressure brought to bear because of his opposition to amending the Constitution with a bill of rights. The Bill of Rights, then, as any history book will confirm, came into being to satisfy the single most suspicious, vociferous, and relentless foes of the new federal government. That is the all-important context in which the Bill of Rights was created. The Anti-Federalists, men filled to varying degrees with fear, mistrust, and loathing of the new federal government, insisted on a bill of rights as additional shackles imposed on that new government. Knowing that alone, knowing that the famous Bill came into existence only to please those most apprehensive of the new government, definitively ends any confusion or debate surrounding the meaning of the Second Amendment. There is simply no way on Earth the Anti-Federalists would have surrendered to the new and mistrusted government the right to own any gun they wanted at any time they wanted in any number they wanted. To believe differently, to believe that the Second Amendment actually gives the federal government the authority to regulate firearms, one must believe the absolutely unbelievable. One must believe that the Anti-Federalists, fearing and loathing federal power, compelled Madison to compose this laundry list of rights, this list of things over which the government was to have no authority and, very near the very top of the list, these people in fear of the federal government desired a clause that reads, “Despite the fact that Article I, Section 8 does not empower you federal government people to infringe our firearms rights, we hereby correct that mistake and surrender to you a right which we previously held, but wish now to give away.” We must further believe that James Madison was such a monumentally incompetent and abysmal writer that, when trying to give the federal government this new authority to regulate the private ownership of firearms, the last fourteen words of the Amendment read, “The right of the people to keep and bear arms shall not be infringed.” We must also believe that revolutionary American history conceals some hitherto unknown and utterly undocumented groundswell of public desire for gun control. Picture in your mind for a moment the rough-and-tumble individualist who gave birth to this nation, a man who had tamed a wilderness, fought Indian wars on and off for 180 years, and successfully faced down the world’s mightiest empire. Hold a picture of that man in your head for a moment and then try to imagine his being told that this new federal government would have the power to regulate his ownership of firearms in any manner it saw fit, including imprisoning him for possession of any firearm for any reason at any time. No honest or serious person could ever claim to believe that any part of the American electorate in the 1700s desired federal gun control, let alone the Anti-Federalists who forced the creation of the Bill of Rights. Rick Lynch is an author living in Virginia. He is finishing a book on constitutional issues entitled They Are Vicious. Send him email.
February 3, 2008
Do you know where the Republican Candidates stand on gun control and the Second Amendment?
Mike Huckabee on the Second Amendment: http://www.mikehuckabee.com/?FuseAction=Issues.View&Issue_id=18 Gun Owners of America on Mike Huckabee: http://gunowners.org/pres08/huckabee.htm Gun Owners of America on John McCain: http://gunowners.org/pres08/mccain.htm Gun Owners Rating of John McCain: http://www.gunowners.org/mccaintb.htm Gun Owners: "Abysmal, wretched, and pathetic" comment: http://www.gunowners.org/mccaintb.htm Gun Owners of America on Mitt Romney: http://gunowners.org/pres08/romney.htm Romney’s "chip away" comment: http://gunowners.org/pres08/romney.htm Romney expressing support of Massachusetts laws: http://gunowners.org/pres08/romney.htm Romney’s "lifelong hunting": http://abcnews.go.com/Politics/wireStory?id=3013787 Romney’s "lifetime" NRA membership (see last line of story): http://abcnews.go.com/Politics/wireStory?id=3013787http://www.google.com/search?hl=en&q=when+did+Romney+join+the+NRA&btnG=Google+Search Romney’s lack of actual gun ownership: http://www.boston.com/news/local/articles/2007/01/14/romney_retreats_on_gun_control/?page=2 Romney signs permanent assault weapons ban: http://www.boston.com/news/local/articles/2007/01/14/romney_retreats_on_gun_control/?page=2http://www.google.com/search?hl=en&q=Romney+sign+assault+weapon+ban&btnG=Google+Search
January 23, 2008
Comparisons by “Concealed” 1-22-08:
Washington, D.C. has the most restrictive gun prohibition in American. Their social experiment – criminalizing practitioners of the Second Amendment – since 1976, has proven that draconian anti-gun laws only ensure that bad guys have guns. Texas, by comparison, has one of the most liberal gun rights law in America. Citizens of Washington D.C. are twice as likely to be a victim of violent crime as is a Texan. Disgustingly, out of every 100,000 citizens of D.C., 1370 were victims of violent crime in 2004. Let’s break than down: This means that 1% of its citizenry was a victim of crime in the aforementioned time frame. Conversely, “Gun Happy” Texas had 540 victims of crime out of each 100,000 residents. These are “violent” crime statistics.
In order to really deal with the devilish details, one has to look at murder statistics. Gunaphobic D.C. crosses at the head of the finish line with 36 of every 100,000 citizens dying of murder. Those gun-toten Texans have about 6 in 100,000 perish from murder. In round figures, you and your family, visiting the cradle of justice, stands 6 times greater chance of being murdered than visiting Texas. It’s your choice, America – Gunless D.C. (unless you are a b.g.) or Gun toten Texas. Personally, I think I will stick with Texas. (Data derived from 2004 FBI Crime Statistics.)
January 21, 2008
The Second Amendment a second class right?
By Charles Bloomer
web posted January 21, 2008
The Solicitor General has issued a truly bizarre amicus brief to the Supreme Court in the case of Heller vs. District of Columbia, the case that is challenging the District’s ban on handguns.
The Solicitor General’s Office represents the administration in cases before the Supreme Court and, as in this case, presents the administration’s position. Needless to say, the Solicitor General’s Office has considerable influence before the court.
The brief presented by the Solicitor General makes some valid points upon which Second Amendment supporters can agree. The brief states the administration’s opinion that the right to keep and bear arms is an individual right, and that laws restricting that right should be subject to “strict scrutiny” – meaning that legislators must weigh the proposed benefit of the law carefully before infringing on a Constitutionally guaranteed right. Additionally, the brief expresses the opinion that the District of Columbia’s strict gun ban should be overturned. So far, so good.
The Solicitor General’s brief also takes a bizarre turn. While the Solicitor General calls for “strict scrutiny” for gun laws in general, he calls on the Supreme Court to apply only “intermediate scrutiny” as it determines Heller vs. DC. The Solicitor General also argues that the Second Amendment is not a “fundamental” right.
So what the Solicitor General seems to be saying is that, well, sure, the Second Amendment calls for individual rights, and those rights should be afforded “strict scrutiny” most of the time, but the administration does not believe that gun rights are “fundamental” rights, and so, therefore, Your Honor, you don’t need to be too strict in your decision-making process in this case. In fact, we don’t think you should really decide this case, but you should send it back down to the Circuit Court for more study, and while they are at it, tell them they only need to use “intermediate scrutiny”.
In essence, the Solicitor General is saying that our Second Amendment rights are second-class rights that don’t rise to the level of “fundamental” rights as do really important rights such as the First Amendment, or the Fourth and Fifth Amendments. Truly bizarre.
One needn’t be a lawyer to recognize the esoteric nonsense in the Solicitor General’s argument. Let me provide some esoteric sense.
First, the argument that the Second Amendment is not a “fundamental” right is blatantly false. As I have written before, our gun rights are inherent in our inalienable rights to life, liberty and the pursuit of happiness– rights endowed by our Creator. Gun ownership gives us the tools for self-defense so that we can exercise those rights. The concept of inalienable rights is enshrined in the Declaration of Independence, a foundational document. The Declaration gives us the big picture, philosophical ideas that serve as the foundation of our nation. The Bill of Rights is a more specific declaration of those rights – rights to be guaranteed, not granted, by the government. The Bill of Rights is a restriction on government, not citizens. The tone of that restriction is embodied in the First Amendment – “Congress shall pass no law….” – and repeated in the Second Amendment – “shall not be infringed”.
Further, the idea that the Second Amendment rights are not “fundamental” is not consistent with earlier Supreme Court rulings. For instance, in U.S. vs. Cruikshank (1876) the Court ruled “the right [to keep and bear arms] was not created by the [second] amendment, neither was its continuance guaranteed, except as against congressional interference.” This means that the right to keep and bear arms was not created by the Second Amendment, the right pre-existed the Second Amendment, and that right would continue to exist even without the Second Amendment. The right to keep and bear arms is, indeed, a fundamental right.
The argument the Solicitor General makes that Heller vs. DC should only be afforded “intermediate scrutiny” is pure governmental arrogance. Anytime any law is considered that potentially restricts any of our Constitutionally guaranteed rights, whether in the legislative process or in judicial review, the principle of “strict scrutiny” should apply. Legislators need to be absolutely sure that whatever benefit they propose is worth the cost of restricting our inalienable rights. The same cost-benefit analysis must be applied when judges review contested laws.
The Solicitor General appears to be playing a bit of CYA here. The Solicitor General is a government functionary whose job is to protect the government, especially in a case where a perceived erosion of government power and authority may occur. The government, and this is the case no matter which party is in charge, wants to maintain its grip on authority. (I realize this sounds cynical, but how many cases can you think of where any government voluntarily gave up power? I can only think of two cases – the collapse of East Germany, and the voluntary split of the Czech Republic and Slovakia.) The current government, represented by the Solicitor General, is afraid the Supreme Court’s decision, if based on strict scrutiny, will nullify a great majority of the current gun laws in affect – federal and state, not just in Washington, D.C. – and result in a tremendous loss of government power.
The Bush administration needs to withdraw the Solicitor General’s amicus brief for further review, research, and study. The Solicitor General’s advisors and staff need to hit the books and review a significant concept that they have previously missed – The Constitution, and especially the Bill of Rights, are specific limits on government, limits adopted by the consent of the governed.
And in the process of re-educating themselves, they need to look up the definition of “shall not be infringed.” ESR
Charles Bloomer is a Contributing Editor for Enter Stage Right. His website is Liberty Call U.S. © 2008 by Charles Bloomer