Thursday, June 26, 2008

D.C. v Heller: SCOTUS scores

In a long overdue ruling,
the Supreme Court struck down a Washington D.C. gun ban as being in direct conflict with the Second Amendment. This 5-4 ruling will be viewed as controversial because of the touchiness of the subject, but there is nothing controversial about the outcome, other than the tardiness of it and the paper-thin dissent that will probably not stand up to additional challenges coming (e.g., SF, Chicago).

First, the gun ban. Most of us would easily admit the gun issue in America is a difficult subject to broach. It's certainly a gray area, with a broad spectrum of valid opinion that involves law, emotion, experience, tradition, statistics and huge amounts of hypotheticals. But I think that makes it even more important to talk about, and if extremes can be found, those extremes should give us solid footing to move back towards the other direction. The D.C. gun ban was so strict that citizens could not even keep a handgun in their own house -- not unloaded, not locked, not disassembled, not nothing.

Fittingly second, the Second Amendment. "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." Apparently, there is some debate over the punctuation in the sentence, but those are the words. Is that statement utterly dense or impenetrable? I'm not saying we all read it the same, but it's not rocket science. You don't need to have a degree in constitutional law to get it. In fact, it reminds me of Animal Farm (if my memory could be accurately stirred), where the Pigs gradually take control of the laws and make them more and more complicated and confusing until the Horses and all the animals can't make sense of them or remember what they had all agreed to in the first place. Well let's not say it's complicated when it's not. That writing has remained unchanged and on the same wall for over 200 years.

Third, the arguments for the D.C. gun ban. 1) The second amendment only protects members of state militias, 2) The ban is OK because it allows rifles and shotguns, 3) Washington D.C. (not a state) is like a state, and the second amendment doesn't apply to states, 4) handgun bans in general save lives.

So although this ruling may stir a lot of debate in a lot of areas of our country, the problem as I have laid it out is purely legal. It is also purely straightforward in this rare case of extremism. One at a time, I will address these arguments with no net below me -- I have no legal background yet feel qualified nonetheless, and you should too.

The second amendment only protects members of state militias. I'm not a historian either, but I'm pretty sure state militias were raised to protect towns, counties and states themselves whenever threats were apparent. Who made up these militias? Well, the People did. And, although the amendment clearly says the word "militia", it only describes them as being necessary and regulated. Clearly, it links the "People" (not the militias) to the right to "keep and bear arms".

The ban is OK because while banning all handguns, it allows rifles and shotguns. Well, it's interesting to pick this one apart and maybe even a little tricky. The ban does allow people to keep unloaded rifles and shotguns in their home either disassembled or with trigger locks. Say nothing of the connotation of "keep" somehow referring to private property, with "bear" somehow referring to public commons, this ban has not only squashed "bear" but has infringed upon "keep". And so, is it right for the city or state to construct a law that infringes so deeply into personal property rights that civil rights have been bulldozed all the way into a locked closet? This is not a ban on how people should behave in public, this is a ban on how people should behave in private.

Washington D.C. (not a state) is like a state, and the second amendment doesn't apply to states. This argument is bizarre. I almost don't even get it. My impression of the Bill of Rights is that it is designed to protect individuals from any sort of legal coercion, local, state or federal. The legal standing of Washington D.C. is moot in this case, since it is the aggressor against all citizens within. Imagine if there were a similar ban on certain types of speech that you could or couldn't have within your own house within Washington D.C. If it were the state of South Dakota enforcing the law, would that make the law more valid?

Handgun bans in general save lives. This one is an extremely important one to handle well, because the implication of the validity itself of this argument is extremely dangerous. First, let me ruin my own logic by entertaining the argument directly. In my experience, I have seen absolutely no credible evidence to show that gun bans increase or decrease the amount of gun violence or violence in general. I'm sure there are studies out there of "before and after" statistics showing both cases to be true. However, chasing this argument is both distracting to point and dilutive to the foundational importance of having three, separate branches of government. Unlike what some of our SCOTUS members may vainly think, the squaring of questionable laws to the Constitution and precedent must not take into account the social outcomes of those laws but rather only the direct coherent interpretation of the validity of said law to the Constitution. This may break Souter's Harvard heart, but he is not allowed to consider the effects of the laws on the People as such. Those effects are for the People to notice to serve as reasons to elect officials to then change such laws if undesirable. The Supreme Court does not reserve the right to imbue written laws with personal, political or social meanings through rulings, only to strike them down on legal standing; Warren Courts be damned.

That is the way I see it. I know there is plenty of room to disagree, as apparently four of our Justices did. However, their dissent was so weak, I believe it was offered only symbolically so as not to freak the nation out too badly. Imagine the message a 9-0 ruling would have sent, regardless of the legal soundness of it. But, is John Paul Stevens truly demented enough to write, that he doubts "that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons." That sounds the same as when a person loses an argument on merit and resorts to meta-arguing over the debate just had. It also sounds as if at least one member of SCOTUS believes that it is more important to protect the tools of politicians to make laws than it is to protect the tools citizens need to protect themselves, both physically and legally.

Debate on: be civil! Suggested reading, The Tempting of America by Robert Bork.


Coovo said...

I cannot write a serious comment on this very serious issue because I have no idea what SCOTUS is and I'm to lazy to find out.

Actually, I'm sure you wrote a fine analysis about this landmark ruling. For me, it matters not what you wrote because I cannot come down on the side of guns. Doesn't mean I'm right or they're wrong. I just don't like, and won't ever own one.

Wait, is SCOTUS that shrink from Law & Order?

Ryan said...

Coov, thanks for the comments.

SCOTUS is the supreme court of the united states.

I think your actual comment is one of the main things being debated now. Some members of the supreme court try to interpret the constitution based on some personal or social feelings they have. I'm with you, I will probably never own a gun in my life.

But as a legal question, it is important for us (when it is rarely possible) to call a spade a spade and make the supreme court do its job. If the supreme court would fail to protect this second most important amendment in a very slanted, obvious case, then it becomes scary to think how weak they might be about the first amendment.

As an aside, I remember one of my good buddies who lives in D.C. showing me some news footage on Youtube about a grocery store on his block that got robbed a few times in a row. The owner pleaded with the neighbors to catch the criminals and then put bars on his windows. Bars? The crooks never once broke a window and snuck in, they walked in broad daylight and held a gun on the guy and stole all his money. He needed a gun under the counter, not bars on his windows.

Anyway, I'm not sure how the ban affected businesses, but imagine if you lived in a neighborhood where people would just walk up to you or into your store and hold a gun to you, threaten your life and have their way with you. I probably would own a gun if I lived in that neighborhood.

But that's debatable.

Roller said...

Excellent post, Rye. I think I fall somewhere in the middle of the Extremes. Somewhere after "More Than Words", and somewhere before their other song.

I think I have a knee-jerk reaction of "the less guns, the better", but I don't believe in comprehensive bans on guns. I do believe in thorough background checks, though. Critics may argue that it's a slow and possibly costly process that bogs down people who have better things to do, to which I would respond "then fix the process".

There is no way an 18-year old girl should be able to purchase 2 shotguns and a TEC-DC9 without drawing some suspicion. I am in no way suggesting that a ban on guns or stricter background checks would have stopped this massacre. But I don't see how it would have hurt, and I don't see how making someone wait a little longer before they can purchase the weapon is wrong.

Rye, I thought your point on the Supreme Court's role in the issue was spot on. Again, excellent post. This is the kind of stuff that Coovo is paying you for.

La-da-di-da da-di-da da da da daaa.... more than words...

Coovo said...

If we ever get back to Law & order we may have to do one on the shrinks SCOTUS v. Olivette. Bald v. beautiful (sorta). Brains v. Brains.

Now that I have gotten over my initial rage over seeing a newsworthy post on my blog, I feel I can comment a little better.

I generally believe your own house should be your refuge and you can whatever you want with you in there. I'm still not sure why Tank Johnson would need guns and ammo for a special task forces unit living in Gurnee but that's just me. Still he was in his house. Allowing people to carry concealed weapons makes me nervous.

I know your point Ryan is about the law, the constitution and the bill of rights and SCOTUS's ability to interpret it correctly. I certainly think that nothing is as sacred as our first amendment, but a part of me also knows that when these all of this was written slavery was legal and women couldn't vote.

I have about as much credentials to speak on the Constitution as I have to talk about Zimbabwe or NASCAR, but I think the balance between interpreting law and doing what is best for this country our PResident calls 'Merica, is a line finer than the angel hair pasta I consumed last night.

Coovo said...

I do have one question though. Upon re-redaing your post, you say "If the supreme court would fail to protect this second most important amendment . . ."

Do you believe that th 2nd amendment is our "most important?"

Ryan said...

Glad some discussion came out of this, even if it's just us. Fine, this is our country club then.

Rollz, I agree with you in terms of finding a livable middle ground with guns. I think legally though, we have gotten so extreme in our interpretation of the 2nd that it is time to swing back the other way. Although the "right" to keep and bear belongs to the People, clearly it notes that a Militia should be regulated. So this forms some sort of constraint. Personally, I feel that any weapon a cop can have, no law should take away from us. At the very least.

I have changed my personal opinion of this over the years given new experiences. I think assault weapons, in spite of their scary names, should be legal to highly regulated citizens. Assault weapons are basically automatic deer rifles with long clips. I think conceal and carry laws that used to scare me (I thought "more guns, more violence") have proven to be no problem. Frankly, even though I don't carry, I like the idea that a criminal might think I am.

Our next door neighbor has a concealed weapon license. How do I know? Because the sheriff's office came and interviewed us about him to see if we ever heard him arguing or saw any violent streaks in him, etc. I call that extensive.

As for the chick purchasing those Columbine weapons, she actually didn't. It's like when you get some guy walking in the liquor store to buy you a case when you're 17. She, as is consistent with criminals, broke the law to get those guns.

The big question I have is what to do about schools? Certainly, I don't want armed guards in high schools, etc, or metal detectors, but does something need to be done? Colleges are a different story though. Almost all the violent shooting sprees happen on U campuses, where intelligent and pedantic professors want to make a safe haven. But these too often just turn into killing grounds.

Think of how many responsible professors there are (actually...) or ex-military or national guard who are enrolled who could carry.

If even 1 out of 100 people had such responsibility, I think these massacres would be limited in scope rather than enabled by law.

Coov, I'll have to do some thinking on it, but I am confident enough to say I think the Founders made that the 2nd amendment on purpose. I think in their minds, it was like the second most basic thing they could agree on.

Remember, in spite of the faults of the time that were only later corrected (women's suffrage, ending slavery), the Stamp act and other situations of the time had the Founders own government as the biggest threat to their lives. Soldiers could just enter your house at will. Second amendment stops that.

Coovo said...

Ryan, you make some excellent points with solid reasons is to why the second amendment is the way it is.

I think it is interesting that there may be some priority to the bill of rights as if to say you right to bear arms is more important than your right to privacy or illegal searches. A right I consider more important and more pertinent in today's world than the 2nd.

What we need to get are some of those guns from TV which always kill the bad guys, but miss every vital organ in the good guys. Smart guns I think they are called

Coovo said...

i obviously mean your right to not be illegally searched, not to conduct illegal searches.

Roller said...

Rye, you're correct on the Columbine purchase - my mistake. I had seen it was a straw purchase, but I thought that was a reference to the two purchasing it through the girl.

My stance on the right to carry concealed weapons isn't firmly in one camp or another, but I don't subscribe to the logic that it deters crime. I just don't see how more guns means less crime. If someone is desperate enough to rob at gunpoint, I don't think the "what if that person has a gun" possibility is big enough to deter the crime. And the victim having and possibly using a gun probably increases the chances that one or both of them will use it. I don't have any data to support that, it's just my hunch.

I'll echo Coov's sentiments on the Constitution with respect to the context in which it was written vs. today's context. And of course this is why we have a process for amendment.

I think we can all agree that SCOTUS did its job in its ruling, but we disagree regarding the some of the laws that are in place today as allowed by the 2nd Amendment. Not trying to end this discussion, just trying to sum up where we are right now.

Now if you guys will excuse me, I gotta go polish my GAT.