by James Oliphant
In what could be a historic decision, a majority of the Supreme Court Tuesday appeared ready to embrace the view that the Second Amendment creates an individual right to own a gun.
While that conclusion alone could elate many gun-rights supporters, that may not have been the most difficult question in the case argued today before the court.
That question is: If such a constitutional right exist, how may legislatures and city councils limit that right? And the profound disagreements Tuesday among the justices on that question suggest that the answer may come amid some serious shades of grey.
It was a day that immediately announced itself as dramatic.Crowds of wanna be-spectators and protesters filled the sidewalk in front of the court building on Capitol Hill. The D.C. police was out in force, keeping the public off of the plaza and the steps of the court. Inside, more than 90 members of the media crammed into the small gallery along one wall of the court chamber.
At issue in the case is the legality of Washington D.C.'s restrictions on guns, which includes a total ban on handgun ownership. (Chicago has a ban similar to Washington's and the city is watching this case closely.) As is typically the case, however, the arguments themselves rarely ventured into the kind of in-your-face rhetoric both sides in the fight over gun rights employ with abandon. And in fact, both sides in the case quickly abandoned some hard-line elements of their positions, perhaps in an effort to find some common ground with a majority of the court.
Initially, the advocates focused on the amendment itself, literally poring over the text, which 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."
Why was this unusual? In most constitutional cases, the justices are long past exploring the primary source and have developed a body of law over 200 years of jurisprudence examining the nature of the right at issue.
But this comes to the court as clean of that kind of scaffolding as can be. The last time the court examined the Second Amendment was in 1939 in United States v Miller. At one point, Chief Justice John Roberts said "we're starting fresh."
That seemed true even to the extent that some justices clearly were ready to toss Miller aside. Justice Anthony Kennedy, normally the court's swing vote, opined that Miller perhaps was too limited in its view of the Second Amendment. Kennedy, for his part, seemingly came out strongly for some sort of right of self-defense, placing himself among what appears to be a five-justice majority that believes in an expansive view of gun rights. He repeatedly spoke of the amendment being ratified at a time when settlers had to defend himself and "his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that."
Much of the debate focused on core concepts of American liberty and their wellsprings, such as the English Bill of Rights of 1689, and the motives of the authors of the Constitution, such as John Madison, and the states that helped hammer out the Bill of Rights. But as with almost everything in the gun debate, the facts surrounding the development of those rights were open to subjective interpretation.
Where Kennedy and Justice Antonin Scalia clearly saw an individual right to self-defense and protection from the government embedded in the textual language, other justices, such as John Paul Stevens, saw only a right to for state militias to be trained and armed. Stevens said that only two of the original 13 states explicitly provided for an individual right of self-defense, suggesting that the opportunity was there for the federal government to more plainly adopt that language if it so chose.
That seemed to be the initial hurdle in the case, whether the Second Amendment applies only in a military context. Madison "exactly equated bearing arms with rendering military service," said Walter Dellinger, who argued the case for the District of Columbia. Dellinger, the former U.S. Solicitor General under President Clinton, argued the amendment simply restored power to the states to regulate their own militias after Congress had appropriated that power in an article of the Constitution.
Scalia, however, suggested the amendment was instead insurance against government tyranny, such as the British government that provoked the American Revolution. "Why isn't it perfectly plausible, indeed reasonable, to assume that since the Framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed."
Perhaps sensing that he was losing ground, Dellinger switched gears in mid-argument, saying that if the court did indeed find an individual right in the Constitution, that that right could be subject to "reasonable" regulation, such as the D.C. gun law.
"What is reasonable about a total ban on possession?" Roberts asked.
Dellinger replied that while D.C. law prohibited handgun ownership, it allowed for the ownership of trigger-locked or disassembled rifles and shotguns in the home. Dellinger repeated the point several times, suggesting that the law provided for an exception for self-defense in home even if the law didn't necessarily spell that exception out.
Justice Samuel Alito was skeptical. "So even if you have the gun, under this code provision it doesn't seem as if you could use it for the defense of your home." Alito said. At one point, Roberts asked Dellinger how much time it took to remove a trigger lock before the gun was ready to fire. Dellinger replied that it was a matter of seconds. (Roberts joked he would have to turn on the light and find his reading glasses, first.)
Dellinger also implored the justices to allow the District of Columbia to legislate according to its own identified needs in a densely-packed urban area plagued by violent crime. "Here you've got local legislation responding to local needs," he said. Handguns, he argued, are easily concealed and can be taken to schools, subways and government buildings.
Arguing for the opponents of the ban, D.C. lawyer Alan Gura said the Second Amendment went beyond the regulation of state militias, that defense of the home was a primary purpose. Toward that, he said that D.C. ban essentially made that impossible. "They simply don't trust people to defend themselves in their home," Gura said.
But in a move that surprised some observers, Gura appeared to concede large chunks of his argument, moving away from an absolutist position on gun rights. He concurred, at one point, with Justice Stephen Breyer that a ban on machine guns or plastic guns would be constitutional because those weren't arms normally carried by members of state militias.
(Solicitor General Paul Clement, who argued for the Bush administration, took a different view of this, saying that since machine guns were used by members of the military, they likely could not be banned, but that plastic guns, which evade metal detectors, could be, because of the threat they pose to security. Kennedy agreed. "Machine guns are more related to the militia now than the handgun," he said.)
Breyer asked Gura if he was asking for "1,000 judges" to interpret local gun regulations instead of allowing cities and states to pass laws for public safety. "The government can ban arms that are not appropriate for civilian use," Gura said.
Justice David Souter asked Gura whether statistics involving gun-related crimes and homicides were relevant to their review. "All the more reason to allow a homeowner to have a handgun!" Scalia interjected.
Gura replied that yes, policymakers could look at the statistics, but in the case of D.C.'s laws, they weren't relevant. "There are extreme measures," Gura said.
Solicitor General Clement, arguing for the government, took a middle ground, contending that an individual right to own a gun did exist in the Constitution, but that right could be regulated, citing federal firearms laws as an example. It's possible that, although Clement spoke for the shortest time, he may have offered the court a compromise position to adopt, one that perhaps a plurality of justices could embrace.
Before the arguments, the government's position was vilified by some gun-rights advocates, who complained that the White House and Justice Department had essentially sold them out by abandoning a more aggressive position. Vice President Dick Cheney even signed a congressional brief, also signed by Sen. John McCain, that called for a more hard-line view of the Second Amendment. Conservative columnist Robert Novak last week even suggested that Clement may switch his position at argument and embrace the Cheney approach. That didn't happen.
After the 100-minute arguments concluded, gun-rights supporters were optimistic. "I was very pleased with how they went," said Dick Heller, the D.C. security guard who filed suit after being told he couldn't register a handgun.
Meanwhile, D.C. officials repeated the need to keep the law in place to preserve public safety. Police chief Cathy Lanier said the law was "not a complete ban on guns." And the city's top lawyer, Peter Nickels, contended that "there is no constitutional right not subject to reasonable regulation."
Deciding what is and isn't reasonable, of course, is easier said than done. The justices have but a few months to make that determination. Their decision isn't likely until June.
Read the transcript of Tuesday's arguments here.
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Comments
Thank you, thank you, Justices Alito and Roberts for opening the light of sanity to this liberal lawyer's silly argument:
"Scalia, however, suggested the amendment was instead insurance against government tryanny, such as the British government that provoked the American Revolution. "Why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed."
Perhaps sensing that he was losing ground, Dellinger switched gears in mid-argument, saying that if the court did indeed find an individual right in the Constitution, that that right could be subject to "reasonable" regulation, such as the D.C. gun law.
"What is reasonable about a total ban on handguns?" Roberts asked.
What, INDEED, is reasonable at all about allowing a government to disarm the citizenry? Something that's never been allowed in the more than 200 years of this republic. I can't wait to read the smackdown this gun grabber gets in the final opinion.
Posted by: Jeff | March 18, 2008 3:02 PM
How about these nutty Republic Party gun freaks?
They still think roving gangs are going to storm the shores of America, just like back in the good ol' American Revolution days, and they're going to fight off the "evil doer's" with their 12 gauge shotgun that they use to hunt squirrels with in their back yards.
Specail ed Stevie S,
I think this is where you come in and start crying about how everyone is picking on your beloved little Wingnuts.
Posted by: John Hussein E | March 18, 2008 3:16 PM
As of 2;23 p.m., the article read, "Much of the debate focused on core concepts of American liberty and their wellsprings, such as the English Bill of Rights of 1789..."
Mr. Oliphant, the English Bill of Rights was in 1689, not 1789. Dec. 16, 1689, to be exact.
Posted by: Bruce | March 18, 2008 3:26 PM
What is reasonable about allowing the government to disarm me from my fully automatic Glock?
What is reasonable about allowing the government to disarm me from my fully automatic assault rifle?
What is reasonable about allowing the government to disarm me from my sub machine gun?
What is reasonable about allowing the government to disarm me from my fixed machine gun?
What is reasonable about allowing the government to disarm me from my flame thrower?
What is reasonable about allowing the government to disarm me from my RPG launcher?
What is reasonable about allowing the government to disarm me from my C4 explosives kit?
What is reasonable about allowing the government to disarm me from my shoulder fired SAM?
What is reasonable about allowing the government to disarm me from my battlefield tactical suitcase nuclear bomb?
What is reasonable about allowing the government to disarm me from my civilian tank with attached grenade launcher?
Posted by: john | March 18, 2008 3:39 PM
Insurance against government tyranny? Where has he been the last seven years, grouse hunting?
Posted by: dt | March 18, 2008 3:48 PM
Roberts and Scalia, who have a history of ruling in favor of the Imperial Presidency and big corporations is suddenly concerned about the rights of individuals? Ha, ha, ha.
Posted by: dt | March 18, 2008 4:07 PM
People should be able to have guns.... Take that away from us and a bunch of angry rednecks will be knockin on your doors.......
Posted by: Jed Clampet | March 18, 2008 4:08 PM
I approve of absolute right to buy any arms imaginable.
Posted by: Al Khida | March 18, 2008 4:13 PM
I think this is where you come in and start crying about how everyone is picking on your beloved little Wingnuts.
Posted by: John Hussein E | March 18, 2008 3:16 PM
nah... they know you're a loser too. I'll let them defend themselves against your little nerf arrow attacks.
Posted by: Steve Hussein S | March 18, 2008 4:14 PM
Insurance against government tyranny? Where has he been the last seven years, grouse hunting?
Posted by: dt | March 18, 2008 3:48 PM
I think that they were referring to real "tyranny"... not this conspiracy tyranny the liberals make up. Fortunately we haven't had any real 'tyranny' in a long time if ever that I am aware of.
Posted by: Steve Hussein S | March 18, 2008 4:19 PM
I'm not worried about roving gangs storming our shores of america and having to defend the homeland. I'm more worried about some liberal society can do more idiots taking away my right to defend myself against americas roving gangs. So you had better watch your children now a days cause i will blow someones head off and worry about the court battle later . signed an armed american citizen.
Posted by: camcomm | March 18, 2008 4:28 PM
nah... they know you're a loser too. I'll let them defend themselves against your little nerf arrow attacks.
Posted by: Steve Hussein S | March 18, 2008 4:14 PM
Bed Wetter Stevie,
Do all the sexually confused, gun loving GOPer's like you believe that the second coming of the American Revolution is just around the corner or is that just you?
I'm so in your head, little Stevie, and you know it!
http://www.amishrakefight.org/gfy/
Posted by: John Hussein E | March 18, 2008 4:33 PM
Illiterate history in the Head Filled with Sludge that is Demented and Deranged Johnnny E:
"They still think roving gangs are going to storm the shores of America, just like back in the good ol' American Revolution days, and they're going to fight off the "evil doer's" with their 12 gauge shotgun that they use to hunt squirrels with in their back yards."
No, Basement Dweller, roving gangs did not storm the shores back in the American Revolution days. Those were English Redcoats.
Everdumb Deranged and Demented Johnnny E: no clue about anything in life. Basically just like any other Loony Lefty. The most worthless creatures on Earth.
Posted by: John D | March 18, 2008 4:35 PM
"How about these nutty Republic Party gun freaks?
They still think roving gangs are going to storm the shores of America"
Actually the criminal gangs are not storming the shores they are walking accross our southern border
Posted by: Dan Kauffman | March 18, 2008 4:37 PM
Who is John Madison?
Posted by: vr | March 18, 2008 4:51 PM
How many would howl if some of the other rights in the bill of rights were legislated away? Would you tolerate abrogating the individual's right to free speech, or freedom of assembly, or freedom of religion, or the right to a trial by jury, or just compensation for government takings? The Bill of Rights were adopted to limit government infringements on our freedoms, not a grant to regulate our freedoms. Once you permit the government to regulate our freedoms, they are no longer our freedoms - simply the grant of what a government will permit us.
Posted by: joe | March 18, 2008 4:51 PM
Yes, I need my handgun to protect me from government tyranny.
I can take out an Abrams tank or a Blackhawk helicopter with my 22 Beretta right?
Posted by: Treasonous gun lover | March 18, 2008 5:07 PM
Everdumb Deranged and Demented Johnnny E: no clue about anything in life. Basically just like any other Loony Lefty. The most worthless creatures on Earth.
Posted by: John D | March 18, 2008 4:35 PM
More deep thoughts from Lil Johnny Nosebleed.
Posted by: John E | March 18, 2008 5:08 PM
You gotta love the nutty confused little Republic Party Jed Clampett's!
They don't want their government to take away their sawed off shotguns but they'll gladly raise their hands and volunteer to let their government spy on them.
Idiots!
http://www.bushflash.com/14.html
Posted by: John Hussein E | March 18, 2008 5:14 PM
I agree everyone should be allowed to carry a musket like 200 years ago. Miss me with the first shot. I can run half a mile before you reload.
Posted by: steve | March 18, 2008 5:19 PM
The arguments against the Second Amendment are baseless and subversive... http://truthalert.net/Top%20Five%20Baseless%20and%20Subversive%20Arguments%20Against%20the%20Second%20Amendment.htm
Posted by: Mike | March 18, 2008 5:23 PM
"They still think roving gangs are going to storm the shores of America"
There already here. Of course MS 13 may just be misunderstood immigrants looking for honest work. However, I could be mistaken.
Posted by: NVnospin | March 18, 2008 5:29 PM
So you had better watch your children now a days cause i will blow someones head off and worry about the court battle later . signed an armed american citizen.
Posted by: camcomm | March 18, 2008 4:28 PM
Thank you for illustrating why some people should not be allowed gun ownership.
Posted by: Luke | March 18, 2008 5:32 PM
As recently as WW II Home Guard units carried shotguns, often personally owned for security purposes. I recall reading of a Maryland Home Guard unit using double barreled 16 guage shotguns with Civil War bayonets soldered on for anticipated crowd control. There were local tyrannies, such as Athens Tennessee in 1946 where people were forced to pick up their shotguns to run off a political machine.
Posted by: Kevin L. Jamison | March 18, 2008 5:55 PM
No! John Hussein...as usual you are completely wrong. The Republicans (law abiding citizens)have to protect themselves from the lowlife, scumbag, criminal portion of our society that Liberalism created!!! Go ahead and try to take my guns away...I would prefer you kick my door in at 2 o'clock in the morning and see what happens!!!!!
Posted by: Joe | March 18, 2008 6:21 PM
Go ahead and try to take my guns away...I would prefer you kick my door in at 2 o'clock in the morning and see what happens!!!!!
Posted by: Joe | March 18, 2008 6:21 PM
Another gun nut who simply can't wait to kill some one. Look at his excitement at the thought of taking another human life. It thrills him. How very sad, and how very barbaric.
Posted by: Michael | March 18, 2008 6:45 PM
I would like to add that WEEKS ago, Senator Obama, a constitutional law geek, articulated his own views on this subject. He stated that he felt the constitution gave Americans the right to own guns, but that governments had the right to regulate the ownership. Similar to the fact that free speech can be regulated to protect against defamation, false advertising, and child pornography. I believe that the Supreme Court will issue an opinion incorporating Obama's comments, and it shows me what a good head Obama has and good judgment in critical areas.
Posted by: tony.s. | March 18, 2008 8:13 PM
Michael....my point is, that anybody can kick your door in at 2 o'clock in the morning and cause you harm. Even liberals would arm themselves "after" someone breaks into their house and rapes or murders a member of their family. Conservatives are smart enough to prepare themselves before their loved ones are attacked.
Posted by: Joe | March 18, 2008 8:33 PM
I believe that the Supreme Court will issue an opinion incorporating Obama's comments, and it shows me what a good head Obama has and good judgment in critical areas.
Posted by: tony.s. | March 18, 2008 8:13 PM
You are not wrong to suggest that Second Amendment rights might be made to give way to compelling governmental interests that are furthered by narrowly tailored laws. But, if I were you, I would not expect the court to address those in its opinion. The D.C. gun ban is under review is absolute. Thus, talking about reasonable restrictions under these circumstances would not be relevant to answering the question before the court. Since the Court limits itself to answering the questions before it, and does not issue advisory opinions on related subjects, it is not likely that its lead opinion will address the reasonableness of other restrictions.
Posted by: John W. | March 18, 2008 9:40 PM
Yes, and you just can't wait for that door to get kicked in can you Joe? Or for some kid to be on your lawn? Or some one to really tick you off. You just can't wait to pull that trigger. You can feel the power. Every time you caress your gun you feel it, you want it, you need it.
Posted by: Michael | March 18, 2008 10:05 PM
Joe,
OK Joe, you've seen "Death Wish", now go see "An American Gun" and get some perspective.
Do you remember the pizza guy who knocked on the door and the man who answered blasted him away because he felt threatened?
Posted by: dt | March 18, 2008 11:53 PM
Posted by: Michael | March 18, 2008 10:05 PM
Michael, you're loony if you think anyone, conservative-gun-person or otherwise, hopes for the day he or she can pull a trigger and kill someone. Firearms are kept in the home so one can be prepared when all else fails.
I mean, I'm not expecting a fire, but I still keep a couple of fully loaded fire extinguishers in the house too. Does that sound like I just can't wait for an arsonist to show up? Maybe I can plug him with my pistol AND put out the fire too!
You misread what Joe said because you can't fathom his defiance. He wasn't looking for just anyone to kick his door in. He was looking for the government to try to take his guns at 2:00 in the morning - to see what would happen. There's nothing wrong with being defiant in the face of tyranny. Thomas Jefferson preached it his whole life. He’s the one that said, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Joe was only saying the same thing in his own inimical way.
Posted by: John W. | March 19, 2008 12:55 AM
I'm not worried about the hords storming our shores,only the moles within, when we have a mole leader.
Posted by: ike1947 | March 19, 2008 1:53 AM
The right to keep and bear arms is absolutely essential these days as it was in the days of the Founders of our country. The regulation which the government needs to be involved in is the unlawful use of weapons to harm other people unprovoked. The response of using a weapon to defend oneself from bodily harm is well within the rights of the people, which is, as I believe, covered under the category of "the common defense." The fact that someone has a weapon and is capable of using it is in itself usually quite an effective defense. The Constitution has no provision to categorize the type of arms, which would stand to reason to allow any type of arms to be owned by the citizenry. The regulatory part of government is supposed to be concerned with the act of criminality, not the object with which it was committed. The problem with trying to regulate an object is that it comes with a lot of gray areas. handguns come in all shapes and sizes, and can be modified to no longer fit under the regular definition of such, and therefore cause problems as to the enforcement of such regulation. The proper way in which laws should be written and enforced is that they need to protect against harm to others, regardless of the object used. The effectiveness of a weapon is entirely dependent upon the skill and motivation of the user, not the design of the weapon itself (though it does have quite a bit to do with it).
The worst part of this whole gun ban argument is that the proponents of the ban equate a gun with crime. If that were the case, an increase in police force would actually cause an increase in crime, due to the larger number of guns on persons in the public. The rhetoric to attach evil to the ownership of a gun is getting very tiresome. People need to be held accountable for their actions, and these people need to realize that people, not guns are the perpetrators of crime.
Posted by: Trevis | March 19, 2008 2:33 AM
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” Joe was only saying the same thing in his own inimical way.
Posted by: John W. | March 19, 2008 12:55 AM
I love watching Republicans and conservatives define treason as patriotism. I love watching Republicans and conservatives supporting shooting law enforcement officers and federal agants. The Branch Dividians were heros for shooting those ATF agents serving a warrant, Right John?
Why do conservatives hate the United States of America so deeply that they constant talk about the violent overthrow of it's government?
Posted by: Michael | March 19, 2008 8:48 AM
Michael, you accomplished nothing with your post. nice work.
Its about the Constitution. Elementary school would teach you that that Constitution outlines "rights" and these "rights" belong to the citizens of these United States. When these "rights" are infringed upon, we have the right to rebel and stand up for them.
Nobody would celebrate the shooting or a police officer or a federal agent... well... I suppose if there were to be a point at which they became unconstitutionally empowered (police state), it could come to that, but I highly doubt it will and hope it doesn't. It would likely sign the end of our brilliant company as we know it.
Posted by: Steve Hussein S | March 19, 2008 10:06 AM
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
Sorry, John W, (and Thomas Jefferson), but if it is "refreshing" to kill, I prefer not to drink from that well.
The only blood that refreshes me is the "Blood of Christ". I wish more people would feel the same way.
Especially now, during Holy Week, We need to understand the teachings of Peace and Forgiveness that Christ came to earth to instill in all of us.
Posted by: David J | March 19, 2008 11:25 AM
John W,
First off, I was listening to oral arguments on NPR yesterday and they spent SIGNIFICANT time discussing "reasonable restrictions." So your confidence that this will go unaddressed may be misplaced. In fact, the commentators thought that the main point was whether banning handguns constitutes a reasonable restriction.
Let's not forget, folks, that handguns are a lousy home-defense weapon. A shotgun is far more useful. Banning handguns does not in itself ban an individual from protecting their home. It does, however, ban a weapon that is FAR more likely, on account of its small size and ability to be hidden, to be used in a crime than it is to be used effectively in defense against home invasion.
"You misread what Joe said because you can't fathom his defiance. He wasn't looking for just anyone to kick his door in. He was looking for the government to try to take his guns at 2:00 in the morning - to see what would happen."
Umm, nice spin but this is clearly NOT what Joe was saying. Note the extra exclamation points:
"Go ahead and try to take my guns away...I would prefer you kick my door in at 2 o'clock in the morning and see what happens!!!!!"
Posted by: Joe | March 18, 2008 6:21 PM
"Michael....my point is, that anybody can kick your door in at 2 o'clock in the morning and cause you harm."
I don't think he's talking about the government taking his guns, John. The "you" is Michael, or any other "lib" who would want to take his gun away. He's clearly daring anyone to "bring it on" so he can "pop a cap" in 'em.
The bloodlust clearly shows through, which is why you go through pains of at once defending him but also stating that no real "conservative" would have such blood lust.
Its a game I see you play a lot and i actually respect it in theory, because you are trying your damnedest to weed the Bush Republicans who believe in Big Brother, corporate welfare and endless debt form the "true conservatives" like yourself who actually believe in what Republicans pretend to believe in.
Unfortunately, for all of us actually, I think you are quite wrong. Bushism is the natural progression of the last decades of movement conservatism. It is winning, and it is most certainly giving conservatism a bad (though I would argue deservedly) name.
As I've said many times before, it would be healthy for America if the Democratic Party was substantially tougher in fighting for its ideals, and if the Republican Party actually believed in the rhetoric it uses successfully to win elections. A man can dream.
Posted by: Jones | March 19, 2008 11:36 AM
I never want to fire my gun but if my family is threatened and my kids future is threatened then I will pick up my gun for defense. I would do so only as a last resort. I would not want to see our government overthrown but if it becomes a tyranical government is no longer our government. On top of that we are the United States of America. That means we are a collection of States not provinces. Each one is a government and has the right to stay united or not. Though I would never want to see it seperated. I would try to defend any American from threats and would try to do so with non-leathel force but if it comes to the murder, rapist, or tyrant would go before I let someone else if I can help it.
Posted by: SH | March 19, 2008 11:55 AM
*****
Posted by: Michael | March 19, 2008 8:48 AM
Michael,
You have an uncanny knack (or curse) for making people say things they never said. I, for instance, never said anything about treason or patriotism. Nor, contrary to your assertions, would I have called the Branch Davidians heroes.
But I can tell you that the government is not above the law, and it, too, must stop at a man’s front door without breaking in if it doesn’t have a valid reason for entry. Police can turn into non-police in the eyes of the law, and even into criminals, if they unlawfully violate the sanctity of a man’s home. In which case, the law does not protect them – or punish the homeowner – if one of them gets shot for creating the fear of a home invasion.
And Conservatives don’t hate the government. We love the Constitution – which is the only legitimate basis for government. We just can’t stand those in government who can’t follow the Constitution.
What I’d like to know is why so many pseudo-liberals hate the U.S. and its government by constantly wanting to follow their own ways and discarding the limitations of the Constitution?
Posted by: John W. | March 19, 2008 12:11 PM
Jones:
You mean it isn’t Hussein Jones?
First, I understand that Washington D.C. has tried to couch the question before the Court as one of “reasonable restrictions,” which is why all that time was spent at oral argument on the issue. But that was not the question raised or resolved by the rulings of the district court or the D.C. Circuit Court of Appeals. The district court determined, as a matter of law, that D.C. could ban all firearms because there is no individual Second Amendment right to firearm possession. The Court of Appeals disagreed, and ruled that D.C.’s statute, banning the possession of all functional firearms (by requiring that all rifles, shotguns, and pre-ban handguns be “unloaded and disassembled or bound by a trigger-lock or similar device . . .”) violated the Second Amendment. Reasonableness of regulations was never raised or resolved.
As a general rule, appellate courts (the U.S.S.C. included) do not address issues that could have been, but were not, addressed and resolved by a lower court. Waiting for a later appeal to raise an issue is normally the death knell for it under the doctrine of “invited error.” As such, the D.C. move to re-cast the issue as one of reasonable restrictions sounds like a desperate move. From what I heard of the argument, many of the Justices were unmoved by the attempt. Roberts, himself, asked, “What is reasonable about a total ban on possession?" That, to me, says that some members of the Court are looking at this case through the same lenses as those used by the majority of the Court of Appeals. That doesn’t bode well for D.C.’s case. Although I might be wrong, I don’t give the “reasonable restrictions” rationale much hope for being the deciding issue for these reasons. I wouldn’t be surprised if the issue were commented upon in one opinion or another as being an impermissible shift in issues.
Second, I disagree with your claims that, “. . . handguns are a lousy home-defense weapon” and that, “[a] shotgun is far more useful.” A person could end up getting killed by armed intruders by the time he or she reaches for a shotgun, undoes the safety (or the trigger lock per the D.C. regulation) and/or cycles it and takes some semblance of aim. There is simply no safe or easy way to keep a shotgun as ready and easily available as a pistol. There is, likewise, a greater risk of collateral damage with a shotgun than with a pistol. In the close environs of a home a shotgun can be unwieldy. The same is not true of a pistol. In any event, both shotguns and pistols are merely tools, and neither are any good if the operator is unskilled in their use.
Third, if you read further up the thread, you will see that Joe’s March 18, 2008 post at 6:21 p.m., was a direct response to a post by John Hussein E. (you know John E., a.k.a. “Bender,” the robot from Futurama?). The post of John E. immediately prior thereto (at 5:14 p.m.) made direct reference to “the Government tak[ing] away . . . ” Republicans’ “sawed off shotguns.” So, yes, indeed, he was responding initially to the suggestion of governmental weapons confiscation. At least, that’s the way I read it. He then changed the subject or broadened the discussion to the problem of “anybody . . . [kicking] your door in at 2 o’clock in the morning and caus[ing] you harm” – only after Michael challenged him on it.
In which case he was talking about the government taking his guns. That was clearly in the mix. It is neither spin nor a game on my part. Nor, for that matter, was (or is) it bloodlust on Joe’s part. His expressed willingness to shoot someone was conditional and limited to defending his home in the event someone unlawfully violated the sanctity thereof to either confiscate his weapons or cause harm. If you read all of Joe’s posts in context you would have seen that. It’s only by parsing the number of exclamation points he used that you missed the more obvious message.
Fourth and finally, regardless of what you think of Bushism (e.g. neo-conservatism), it is not part of the natural progression of conservatism at all. I have on numerous occasions in the past documented how much of a sharp break with conservatism it really is. I am not going to repeat myself here. I refer you, instead, to the speech “Neo-conned” which Representative Ron Paul delivered on the floor of the House of Representatives. You can find it here:
http://www.house.gov/paul/congrec/congrec2003/cr071003.htm
It contains a painfully accurate critique of neo-conservatism and how it represents a radical departure from (and betrayal of) traditional conservatism in America.
And Jones, I do believe that a limited, constitutionally orthodox government is the best for our country. Your progressives in the Democratic party have no genuine respect for constitutional limitations. If they did, I might be a Democrat. (But if they did, Hillary Clinton wouldn’t even be in the running.) I might become a Libertarian or “Constitution Party” member if the Republicans don’t clean up their act soon.
Posted by: John W. | March 19, 2008 2:55 PM
John W:
That was an excellent post. I can tell you are a highly intelligent person who gives deep thought to things. You belong in the Libertarian Party. I invite you join us.
Posted by: Matthew G | March 19, 2008 4:45 PM
"In which case he was talking about the government taking his guns. That was clearly in the mix. It is neither spin nor a game on my part. Nor, for that matter, was (or is) it bloodlust on Joe’s part. His expressed willingness to shoot someone was conditional and limited to defending his home in the event someone unlawfully violated the sanctity thereof to either confiscate his weapons or cause harm."
Which is exactly what happened at Waco. The ATF showed up to confiscate the Branch Dividians weapons.
If you support the yse of deadly force in that situation in the hypothetical, why is not reasonable to believe you support the use of deadly force in the specific instance of Waco, where the exact same principal is involved. You clearly believe that government confiscation of weapons is illegal, and attempts to enforce such orders, being illegal, should be met by deadly force at the door, just as the Branch Dividians did.
I make you say nothing John.
Posted by: Michael | March 19, 2008 4:58 PM
“ 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 only question is: WHO ARE "The poeple"?
If the "people" are the citizens of the U.S. ... then the question is academic... but if the people are the militia then no, the 2nd is NOT for the public. Which would lead to the question of why is this included in the Bill of Right for the citizens of the US? The Military as an organization IS NOT a US citizen... although the members of the militarty organizations are.
To find an answer to this question, ... One only need read the first sentence of the Declartion of Independance ... then decied who "the people" are.
Posted by: phil | March 19, 2008 5:04 PM
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Posted by: Matthew G | March 19, 2008 4:45 PM
Thanks, Matthew, you are too kind.
The only reason I hesitate to join the Libertarian Party is that the prevailing view among Libertarians is the irreconcilable position of favoring a minimalist, constitutional government guided by the rule of law, on the one hand, while decrying the use of any form of force or coercion to exact compliance with laws, on the other hand.
Don’t get me wrong. I believe that Jefferson’s ideas about minimalist, constitutional government are correct. I, too, want our government to leave us alone and stick to their job of defending us and keeping us free at home. But I think it is idealistic, and not at all practical, to disavow the use of any coercion to exact compliance with the laws. It is precisely because of the federal government’s lassitude that our laws are not only not obeyed, but that their violation is outright flaunted. What, then, is the significance of a rule or law if no one is held to abide by it? If you can answer these questions to my satisfaction, I will change my registration to Libertarian within the week.
Posted by: John W. | March 19, 2008 5:46 PM
The anti-gun activists (also known as "victims") have been chipping away at the Second Amendment for ages, but I have yet to meet one of those mean-spirited, name-calling anti-gunners who will focus long enough to honestly answer a couple of simple questions: First, do you support your government and your government's actions without question? Second, do you honestly believe that disarming the civilian population of America will reduce gun violence?
If you simply answered "No" to those questions, then you're still a thinking, autonomous human being, thank God, so we might be able to communicate.
Of course, the anti-gunners out there are stirring their pots of bubbling vitriol, just waiting for an opportunity to unleash their latest "redneck Republican" propaganda in response to any discussion of the Second Amendment. Which amply demonstrates just how shallow and isolated these anti-gunners really are.
It's not that anti-gunners are uneducated -- there are some pretty intelligent people in the anti-gun movement — it's more a matter of their intent. Which is sinister. We're talking about a movement that wants to take firearms OUT of the hands of "racist redneck Republicans" (which means disarming the American people) and placing all firearms under the control of the government.
What IS IT that the anti-gunners fear? It's not guns, because they WANT our military and police and other executive agencies to remain fully armed. They aren't going to stop the production and use of firearms -- they just don't want CIVILIANS to have legal access to those firearms. In the anti-gunners perfect world, guns will still exist, and criminals will still procure them in criminal fashion, but civilians (that's the majority of us) must be unarmed.
Why?
Because. We. Might. Revolt.
Which is what the Second Amendment, AND the Constitution, AND the Declaration of Independence is all about. Gun control is about suppressing revolution. It's about REMOVING our RIGHT to rise up against the central government. Plain and simple.
Posted by: Charles Miller | March 20, 2008 12:57 AM
If someone breaks into your home, call the police; they are the militia. Why must federal government limit the abilities of local governments to regulate rights and respond to trends in violence and crime with means that are most effective for their population density, region, and other factors most apparent to that locale? I think it was inappropriate for Roberts to laugh about finding his glasses... clearly there is no guarantee that having any firearm in the home will provide any safety--too many circumstances are undetermined. However, while there is a firearm in the home that is easily accessible/prepared to be discharged, then there is definitely an increased probability for injury to occur.
Posted by: Fred | March 20, 2008 7:35 AM
As usual, lacking logic or fact, the anti gun/anti self defense respondents immediately lose self-control and resort to phony stereotypes and personal insults.
Frankly, I'm glad they don't like guns. For the public's safety, they shouldn't be permitted anywhere near a weapon more dangerous than their mouth.
Posted by: C. Revet | March 20, 2008 8:53 AM
John W, you are a bright spot in a sea of morass. You make those that would try to convolute everything you write look rather silly. Keep up the good work! I really like reading your posts, they're a breath of fresh air!
Posted by: Turboguy | March 20, 2008 9:12 AM
Does anyone care about this Country? The Government is slowly taking away all are rights and the safest way for them to do it is by slowly taking away our right to bare arms and protect ourselves. Look how corrupt our Government officials are today! Thats why the second amendment 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." A FREE STATE.. To defend ourselves against the Tyrants that are trying to get in office today
Posted by: Mr. Jones | March 20, 2008 9:39 AM
I'm a democrat, but I still feel that I have every right to use any weapon I feel necessary to protect myself, my family, my property and my country from anything or anyone who wants to take them away from me.
Posted by: Ed | March 20, 2008 2:50 PM
I previously was in favor of more stricter laws. But the death of Sean Taylor of the Washington Redskins made me realize the validity of self protection. Sean Taylor is certainly stronger and faster than 99% percent of the population. But that did not help him one bit during his home invasion. The intruder had a gun and he had a machete....guess who won? A gun is a tool and any tool can be used for good or evil. Even if there was a total BAN on gun ownership throughout the USA do you believe that we have the power to stop illegal shipment of arms to bad guys here? If yes, I'm sure your happy in your fantasy world.
Posted by: odinfury | March 20, 2008 5:17 PM
Of course insanity is doing the same thing over and over and expecting a different result. On the practical side of things, if the gun ban were going to reduce crime, then why hasn't it worked in D.C., for the last thirty years?
Posted by: Tim Reimer | March 20, 2008 5:26 PM
"the Supreme Court Tuesday appeared ready to embrace the view that the Second Amendment creates an individual right to own a gun."
No, they didn't appear to think the Second Amendment "creates" an individual right. The know that it guarantees that right, morons.
What we really need is a 2nd Amendment with teeth; so we could prosecute and imprison criminals like Nagin & Blanco. And yes like the city fathers of DC and CHicago.
Posted by: CC Ryder | March 20, 2008 6:21 PM
Liberals suffer from a sort of historical and social tunnel vision. It has been so long since the issue of tyranny has cropped up in their immediate environment that they are incapable of seeing the danger. The framers of our constitution very wisely anticipated this sort of complacency and built a safeguard into the text. We should all be thankful that not everyone has forgotten why it is there.
Did I hear someone say, “Just call the police?” If you think that, you no longer have a basis for understanding.
Posted by: Scott Wall | March 20, 2008 7:58 PM
All the talk about militias and revolutions... c'mon, do you really want to live 300 years ago? Or maybe some of you just lack indoor plumming?
The ban is for some guns, not all, rifles and shotguns are still in play. And as far as enforcement goes... they aren't going house to house searching for guns.
Once again, just because you have a gun doesn't mean you'll get a chance to use, nor does it mean you'll survive a home invasion, nor does it mean the invader(s) will not survive. But the risk that someone in your house will get shot is increased immensely from the scenario where you don't have a gun in the house. And, yeah, don't call the police... just keep paying for their service. I think we should all be quasi-deputies and be able to enforce select laws when ever we want. Or maybe it's just those who are afraid of the unknown bad guy in the dark that feel better clutchin' their own barrels in the night....?
Posted by: Fred | March 20, 2008 9:26 PM
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Posted by: Fred | March 20, 2008 9:26 PM
Fred, I hate to tell you this, but you’re just not winning friends and influencing people by suggesting that people who favor the RKBA are a bunch of hillbillies who lack indoor plumbing. That is at once condescending and offensive.
I am unconvinced by your discussion of risks attending the possession or use of firearms in the home. Those who support or oppose the RKBA are way too passionate to be trusted to come up with objective statistics of the kind necessary to justify what you said. I know for a fact that the statistics used to support the claim of an increased risk “that someone in your house will get shot” by having a gun in the home were padded by suicide statistics. Those kinds of shootings have nothing to do with confronting a home invader. I’m not calling you a liar. I just don’t trust your sources or their reasoning.
Your further suggestion that people ought to call the police first or in lieu of resorting to self-help against an attacker is unreasonable. When seconds are critical, the police are minutes away. Remember that the need for police protection arises upon detection of the assailant in or about one’s home. The individual, already in close proximity to the invader, has to call the police, and the police dispatcher, in turn, must then send police from wherever the closest officers happen to be. If they are too far, caught in traffic, or already working on something equally serious, the citizen facing his or her attacker is just SOL. Remember also that police don’t have a duty to respond to every call for emergency assistance immediately. They have the discretion to prioritize their official duties among several calls. Their duty is to the community at large, and not to everyone or any particular person. Nor do most police departments have enough officers to protect everyone. In these situations, people are left to fend for themselves or become victims.
This is not a question of being a quasi-deputy peace officer or being able to enforce the law (which citizens have the common-law right to do anyway). It is a question of being able to use effective methods of self-defense. Pointing a gun at someone and/or pulling the trigger is not a nice thing to do. Then again, neither is home invasion, rape, robbery, burglary or murder. It is expecting too much to rely upon the good nature of a criminal not to harm someone once he has already broken into their home to satisfy his own base desires. Some criminals are crazy or sadistic. Others know they won’t stay free for very long if they leave eyewitnesses. Yet others are just looking for cash or goods to trade for a high. The problem is that one can’t discern which, of any number of these or similar motives, an intruder might harbor. There are a substantial number of people who are now dead because they guessed wrong and surrendered.
Finally, you try to minimize the sweep of the law by observing that it doesn’t ban shotguns or rifles. I’m not saying you are being deceptive – but the law also requires homeowners to keep such weapons in inoperable condition. D.C. has prosecuted people for keeping their rifles and shotguns too ready to use. At a minimum, as I understand the law, one must keep a trigger lock on such a weapon at all times. In a stressful situation - such as when one is facing an attacker – even a few extra seconds can give an assailant the opportunity to overpower and neutralize any defensive efforts. In any event, shotguns and rifles are heavier and longer than pistols and, therefore, more unwieldy in the limited spaces often encountered in a home. A misfired rifle is also more likely to breach the walls of a home and inflict collateral damage on others nearby. A shotgun is similarly capable of causing too much collateral damage in a home. Pistols either do not suffer from these drawbacks, or they can be adapted to avoid them.
If you think that all of us gun-toting hillbillies haven’t given a lot of thought to the stuff you brought up, you have another thing coming. We simply prefer the option of maintaining control to becoming victims.
Posted by: John W. | March 21, 2008 8:48 AM
Hey John. Well thanks, that was a very civil and thoughtful response. I agree with everything you said to an extent. I still think accidental injury or death by gunshot is much more likely when there is a gun ready to be fired in the home than when there is not. I also think the best way to stop a home invasion is to deter would-be invaders through security systems that pose less of a threat to the inhabitants or visitors, and are less likely to be used as weapons irrationally or to be taken outside the home or even stolen from the home. I see this as broaching the question, once again, of the benefit to the individual vs the benefit to the community. Given the threats and risks and alternatives to home security, where there are no competing threats, risks and alternatives to the benefits gained by the community, then I still support the law. My question then is, rather than refuting the increased risk, which need not be statistical, it is just logical: if there is no gun in the home, one cannot be shot; whereas if there is one, then one can be shot, anyway, rather than refuting the threats and alternatives, can you match the detriments to the community that approving the law has.
In other words, are the purported benefits to the community at large from the law plagued with comparable detractions and detriments as are the benefits gained by the individual when the law is not in effect?
If you can make that argument, you may sway me. I have a Browning 9 mm and a s/w 22 long range... you should be able to change my mind...
Posted by: Fred | March 22, 2008 1:29 AM
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Posted by: Fred | March 22, 2008 1:29 AM
Fred:
I, too, appreciate your civility and candor.
I can think of a significant detriment to the community that arises from barring lawful possession of operative firearms in the home. It’s an ugly fact, but a fact nonetheless, that disarming a population creates a greater potential for its victimization. Criminals who know that a population is likely to be unarmed are encouraged to prey on them. Countries like England and Australia, where gun ownership has been virtually abolished, have suffered substantially higher crime rates, including an increase in daylight burglaries. We also know from criminals interviewed in prison that the prospect of meeting an armed homeowner is a deterrent to burglary, home invasion and their attendant offenses. Thus, permitting the possession of firearms in the home serves as a deterrent, even if some people don’t care to arm themselves. It is the perception of an armed populace that serves as the deterrent.
Washington D.C. is, itself, proof that a ban on lawful possession of firearms is no proxy for a violence-free environment. Contrast D.C. to other, large cities (of the same or greater size) with fewer incidents of violent crime where firearm possession in the home is both legal and attended by relatively few restrictions. San Jose, California, comes prominently to mind as an example of this.
In the second place, it is simply not true that not having a gun in one’s home removes the possibility of getting shot. An armed robber or burglar who brings his own weapon immediately changes the whole mix. Consider, again, how ineffective D.C.’s gun restrictions have been against the black market trade in firearms, or their unlawful use. There is certainly no guarantee that the perception of an unarmed populous will cause criminals to de-escalate their methods of control or attack. Pointing guns at defenseless victims is always a good way of getting them to cooperate.
In the third place, the use of burglar alarms is no proxy for safety from invasions of one’s home. A good burglar alarm system – e.g. with motion detectors and private or police monitoring – is far too expensive for many people to afford. (A handgun or long gun is much, much cheaper). And even for those who can afford such systems, there is no guarantee that well prepared criminals will be significantly deterred. Daylight home invasions with the occupants are home (when alarms and motion detectors are usually off) are entirely undeterred by an unarmed alarm. Nor do alarms provide much deterrent when the crime consists of killing the occupants or kidnapping them for ransom (which is actually becoming more popular). In the latter cases, the criminals are gone long before private security or police can respond.
In the fourth place, much of the danger of accidental death from firearms can be remedied through safety training. Some States require a safety course in the use and storage of a handgun before one can be lawfully purchased. I seriously doubt that such requirements would run afoul of any favorable Second Amendment ruling from the high court. The same States that impose these training requirement also make it a crime to allow small children and minors to have unsupervised access to loaded firearms. Thus, responsible owners are put on notice that they have a duty to preserve safety without compromise from careless firearm ownership.
For example, I was raised around firearms because my father was a peace officer, gun enthusiast and former career soldier. My father kept his firearms in a gun safe, and any firearms that were out of the safe were kept under his close custody and supervision. Most importantly, he was a stickler for gun safety, and we were drilled on it. Not only were these words spoken, they were consistently demonstrated in practice and example. My subsequent training in the Boy Scouts and (later) the U.S. military have reinforced this training. I have never had an accident with a firearm, or even a near accident. Neither has anyone else in my family as a result of this kind of training. And it doesn’t take being a rocket scientist or brain surgeon to be able to follow these rules.
Finally, I would like to say that I think it unfortunate that our discussion must remain incomplete due to the lack of information on a number of serious matters. Police and government agencies do not keep satisfactory statistics on a number of issues that might make some of these issues clearer. They do not tell us, for instance, how many times firearms are used properly in defense of one’s home. They do not tell us (or even approximate) how many times people draw firearms in self-defense without firing them. Nor do they keep statistics on the circumstances of accidental deaths. All deaths resulting from firearm use are reported as homicides, and those statistics are used against those who assert the RKBA – and often unfairly so.
Posted by: John W. | March 24, 2008 8:22 PM
It started in 1776 and wont end for any time in the foreseeable future. Even then we had LIBERALS who LOVED ENGLAND and Loved ole King George and Fought FOR HIM AGAINST US...those who would be free. So we will those that believe Guns kill people - they do not. People Kill People, its that simple. Our society as a whole is sick and getting sicker. The violence has not gotten worse because of Guns, but because people are morons, people are mentally ill, people are greedier and just plain stupid (Stupider). Per capitia and even when you compare the population and crime rates of 100 years ago, our murder, rape and violence rates have soared....Guns have been around all that time and even more readily available then.
So, Liberals, how do you explain it? How do you explain a sick society? Take away the guns? Ok, now you have these same nut jobs using swords...OH...WAIT...that’s ALREADY HAPPENING!!! I think I've already seen 4 news stories of sword deaths, why? Because the perpetrator couldn’t get a gun. Ok, now, lets go ahead and start registering Swords, Knives etc... When will you learn? When will you open your eyes to the REAL problem in our society? Men and women who have basically thrown a number of generations of children on the alter of Convenience? Why do we wonder why they turn out like they do? Sure there are always going to be bad apples, but a half bad barrel of bad apples?
Posted by: James Speed | March 25, 2008 9:32 PM
If the second ammendment doesn't refer to the individual right to keep and bear arms, then what does "We the people" refer to in the preamble of the constitution? Does it mean that its only the Governments right to have freedom of the constitution? You think about that...
Posted by: Lance J Golay | April 8, 2008 3:22 PM