The Supreme Court has ruled in the case of D.C. v. Heller, finding that there is an individual right to bear a firearm for self-defense and hunting. The AP suggests that the ruling goes farther than the Bush administration wanted, which may be bad news for a well ordered society.
The opinion is available here. Comments when the beast is read, but I wouldn’t worry too much: a scan of the syllabus suggests that the majority opinion, by Scalia (in another 5-4 split) suggests a limited and regulated individual right to possession. Scalia, for example, does not doubt that age-old bans on possession of firearms by felons or the mentally ill are constitutional. While this is interesting, it’s not earth-shattering, at least as far as I’m reading. I daresay so far that I was right.
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Update (3:18 PM):
I was right! Scalia discusses at length – see pages 54-64 – permissible and impermissible regulations. Concealed carry is justly outlawed. Military assault rifles are justly outlawed, despite their presumptive utility in fighting a modern-day army: (“the fact that modern developments have limited the degree of fit between the prefatory clause [on the militia] and the protected right cannot change our interpretation of the right.”). D.C.’s gun control regime fails only because it amounts to a ban on handguns, which flies in the face of the self-defense rationale that Sclaia exalts, since “the American people have considered the handgun to be the quinessential self-defense weapon.” Although it worries me that Scalia objects to a balancing test to determine what is proper regulation – he says, “we know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest balancing’ approach,” which leads me to believe he hasn’t been reading equal protection law for about 50 years – I am confident that this decision, properly applied, just codifies what we already knew: gun regulation has to be reasonable, and can’t obliterate the right to self-defense.
Honestly, this is a very moderate Scalia opinion, aside from one word sentences every now and again – “Grotesque.” “QED.” – and is probably the best constitutional solution, given our Second Amendment. Whether it’s the best solution for society is another question.
When are we going to get a follow-up on those gun questions I posed? I’m curious to hear your response.
Posted by Progressive Conservative | June 26, 2008, 10:43 amDo you mean your questions on my comparison to England? While I agree that the comparison isn’t perfect, I do think it’s the best we’re going to get, and it suggests that while certain crimes rise when guns are banned, certain other crimes drop like a stone. Among them, gun murders. If I had to choose, I’d rather decrease gun murders and increase mugging, no?
Posted by Ames | June 26, 2008, 10:58 amNewsmaxTV’s Ashley Martella reports the Supreme Court Liberals rule IN FAVOR of child rapists!
Posted by SheBee | June 26, 2008, 11:02 amGun crime is due to illegal trafficking in guns, not from lawful sales and lawful ownership.
The questons I was referring to was on assault weapons. I asked you to define an ‘assault weapon’ and asked if you think banning them would be enough.
Posted by Progressive Conservative | June 26, 2008, 11:04 amI don’t remember what anybody said about England, but I remember seeing this campaign recently. The Brits don’t seem to feel like their laws have been effective at stopping violent crime.
http://www.channel4.com/news/microsites/D/disarming_britain/index.html
Posted by Collin | June 26, 2008, 11:20 amAh. I’d define an assault weapon as any rapidfire or burst weapon. AK-47, Uzi, etc.
I think Miller and the legislative history of the 2A bear out that weapons like that aren’t necessary for the militia or for hunting; they’re murder weapons, gang weapons, and terrorist weapons. I think banning them from personal use would be enough, while of course law enforcement gets to carry them. What more would you expect?
Posted by Ames | June 26, 2008, 11:37 amThat’s sort of what I expected you would say. I would direct you to the Firearm Owners Protection Act of 1986 which effectively ended the manufacture of machine guns in the U.S. Furthermore it rendered the number of machine guns in the U.S. static because no more could be made and importation was banned in the 1930′s.
The guns you are talking about are HIGHLY regulated. They are hard to come by and very expensive. Despite what you see in Chuck Norris movies, most gangbangers do not have Uzis.
The primary problem with guns and crime is that some people make after-market modifications to semi-auto weapons like AK-47s. An ‘assault weapons’ ban is not going to stop that because these people have already proven they don’t care about the law. If the guns they modify disappear they will begin building them from scratch or find a way to modify something else.
The fear that gun owners like myself have is that liberals (and let’s be honest, this is almost exclusively a liberal cause) will try to take this one step further and classify all semi-automatic guns as ‘assault rifles’. Obama already voted in favor of this in Illinois which either proves ignorance or bad judgement. A ban on semi-auto guns will remove a large % of the guns from American homes, most of which are there for benign purposes. I personally hunt squirrels with a .22 semi-auto that is pretty harmless (by gun standards) but could be effected by a ban.
Most people that say they support an ‘assault weapons ban’ are either unfamiliar with firearms and just have a knee-jerk reaction to the term ‘assault weapon’ or they really just want to see all guns removed and this is the first step.
The problem with guns in this country is that there is no real pursuit of gun traffickers. I spoke about this issue in I spoke about this issue in May. If I can be so bold as to quote myself, this is what I said:
The big problem I see with assault weapons is the same problem we have with all weapons and that is the loopholes in enforcement which allow gun traffic to thrive, especially in inner cities. Any new gun legislation would be much better aimed at catching gun traffickers than in going after a particular type of gun. On this point both conservatives and liberals need to change their views.
Conservatives have been guilty of obstructing any attempts at gun regulation, even in the form of simple gun sales restrictions. Their fear of this being the first step towards taking their guns is justified, but it makes their obstruction no less problematic. On the other side of the aisle, liberals refuse to see the corollary between criminals and gun crime and instead blame the guns themselves, which is misplaced.
I also borrowed heavily from an article by Jim Kessler in Democracy Journal which details the real problem of gun trafficking and exposes the fabricated issue of ‘assault weapons’. This is what he has to say:
There are 280 million firearms in private hands in America, and last year there were about 300,000 gun crimes. That means that at least 279,700,000 guns did nothing wrong. We also know that in 89 percent of crimes, the person using the gun was not the person who originally bought it. In 34 percent of crimes, the firearm was bought in one state and used in a crime in another. And in 32 percent of crimes, the firearm was less than three years old.
This indicates that the root of America’s gun crime problem is not the number of guns in the hands of Americans, but an extensive web of gun trafficking operations that funnel firearms to criminals. In some cases, the trafficking operations cover long distances. Nearly 40 percent of all crime guns recovered in New Jersey and New York came from Virginia, Georgia, Florida, and the Carolinas. Nine out of 10 crime guns changed hands between the first purchase (which was likely legal) to the last purchase (which was certainly illegal).
What we need, then, is a new national strategy to reduce gun violence: Don’t restrict gun rights, but instead deepen the sense of gun ownership.
I’m not one of these stereotpical ‘gun nuts’. 3 out of the 5 guns I own are for hunting purposes and the other two are for self-defense. I don’t collect guns and I don’t get a hard-on for so-called ‘black rifles’ but this is an issue that has gotten out of control. I firmly believe that most liberals who support these bans on various weapons would change their mind if they educated themselves better about guns. For those that still see legally owned guns as a problem, well there’s nothing any of us can say to change that view.
Sorry for going crazy long here Ames. Obviously this is an issue I care a lot about.
Posted by Progressive Conservative | June 26, 2008, 12:40 pmI served in the armed forces for over a decade. In that time, I had the opportunity to watch trained, responsible, people work with firearms.
In that time, I went from believeing that everyone should have mandatory firearms training and be issued a semi-automatic rifle to beign a firm believer in keeping guns out of the hands of the common people.
None of the data has mitigated against that thus far.
I’m not necessarily agin private ownership of lethal weapons. But I’d feel a lot better about it if, at time of purchase, you had to give a fingerprint, two DNA samples, and two ballistic cross-check samples.
But presumably no responsible or law-abiding owner would object?
I’d also settle for a one-year waiting period :-)
Posted by Metro | June 27, 2008, 2:52 pmI’ve always been annoyed with the shorthand the 2nd amendment used, phrasing the means (keeping and bearing arms) to an end (killing people who need killing, i.e. are trying to kill you) as the end itself (“The right same as anyone to live and try to kill people. I mean, you know… people that are… That’s a dumb planet.”) But that said, yeah. The right to attempt lethal self-defense, whether it works or not, is an absolute right, and I think Scalia’s absolutely right to have rejected the balancing approach. Rights are rights, and they shouldn’t be negotiated on. Allowing for interest balancing allows for abominations like the “undue burden” test from Casey, rather than the “no impedement whatsoever” test that ought to be in place.
Anyway, I’m curious as to why you think a ruling that ensures the most effective means of exercising the absolute and fundamental right of armed self-defense (which as an individual right is also, as the Black Panthers rightly noted, aggregateable into a collective right belonging to any group targeted for oppression due to its common defining feature) is bad for society. If I had to describe one of the recent rulings as right on the law, dreadful for society, it would have been Kennedy. It was correct as a matter of precedent from Coker v. Georgia, the Woodson v. North Carolina/Roberts v. Louisiana portions of Gregg v. Georgia, and those other 70s death penalty cases that overstated the importance of killing people by wrongly making murder the only capital crime in the U.S. and making swift execution the harshest available penalty, rather than the penalty for low-tier capital crimes like those of Bernard Ebbers and Ken Lay with execution-by-torture available for those such as Patrick Kennedy. But since those were precedents that turned the 8th Amendment into something that does more damage than it’s worth and Kennedy v. Louisiana should have overturned, rather than extended, the legally correct result accentuates the social damage done by those precedents.
Posted by Steve | June 27, 2008, 3:02 pmI’m not necessarily agin private ownership of lethal weapons. But I’d feel a lot better about it if, at time of purchase, you had to give a fingerprint, two DNA samples, and two ballistic cross-check samples.
But presumably no responsible or law-abiding owner would object?
I have no problem with all that. I think a one-month waiting period is acceptable. The gun show loophole is tough. It’s a great way to get a gun at a decent price and I love attending them, but we need a background check.
I understand fears of a ‘registration process’ but it’s worked for years on machine guns and no one has stormed into their bedrooms in the middle of the night.
Posted by Progressive Conservative | June 27, 2008, 3:11 pmYou know, PC, that’s the most reasonable response I’ve ever heard to that statement. I dropped that idea on a thread at the time of Virginia Tech for exactly the reason you stated and had to wear an asbestos suit every time I checked back to survive the flaming.
If all gun owners were willing to take that much responsibility, I might feel a lot better about the issue. So thanks.
I realize I’ve also failed to provide my location–I live in Canada. So our gun culture is, I think, fundamentally the same but also different in several ways.
Steve, you lost me. Are you seriously suggesting the death penalty should be expanded to other crimes? And that death-by-torture should actually be an available punishment?
Because they’ve tried that before in what we now call the civilized nations, and dumped it. With overwhelmingly good reason.
Posted by Metro | June 27, 2008, 3:39 pmAny responsible hunter or recreational shooter isn’t going to buy a gun two days before a season or a shooting match. If they are that dumb, I don’t want to be in the woods or at the range with them.
The one caveat of course is someone (probably a woman) who is being stalked/threatened. We’ve all heard stories of the law failing them and to be honest, cops can only do so much. I’d hate to think of a mother being killed by a jealous ex-husband in the middle of a 30-day waiting period. I don’t have an idea on how to address that one but it is the one obstacle I can see.
Posted by Progressive Conservative | June 27, 2008, 4:13 pmMetro, absolutely. As an example, the People’s Republic stipulates execution as a possible sentence for crimes carried out where being a State official is an aggravating factor. I think that’s a reasonable basis for making white-collar crimes a capital offense. Likewise, I think once financial crimes reach a certain magnitude, the death penalty is an appropriate punishment for doing life-damaging injury to hundreds or thousands of people. No, the fraud that Ebbers committed with Worldcom wasn’t injurious enough to any one person to justify his execution, but I think the number of people he injured does justify execution. By the same token, I don’t think the humane methods of swift execution such as lethal injection, gas chamber, and firing squad are proportional to a crime such as rape, which causes its victim to live through decades of at-best semi-reparable emotional trauma. Or physical, for that matter: Stump v. Sparkman articulated judicial immunity in an appeal from what should have been a criminal-capital, rather than civil, proceeding. There’s lots of things people do to each other that are more injurious than murder though are not lethal. I think punishment should reflect that. As mere execution is the appropriate punishment for mere murder, something more severe than mere execution is needed to provide retribution and equilibrium for acts more severe than mere murder, and execution-by-torture is what “more severe than mere execution” describes, no?
As to how that ties to Heller, well, D. A. Clarke asked the rhetorical questions, ” If the State is not going to step in and enforce severe penalties for abusing and murdering women, then is it women’s responsibility to do so? When a woman’s dignity, honour, and physical person are assaulted or destroyed, how shall we get justice? How shall we prevent it from happening again? f the courtroom and the law are owned by men (if a Clarence Thomas, for example, can be appointed to the Supreme Court regardlesss of the evidence that he routinely insulted and harassed women) at what point are women entitled to take the law into their own hands?” As the death penalty is further suppressed within the legal system, extralegal systems can acquire the moral legitimacy that the legal system has abdicated, and privately born arms enable such systems to work. Granted, an unregulated system of vigilantism has a much greater risk of wrongful execution than a properly-regulated legal system, but elevated risk is still less risk than the certainty of wrongful non-execution in the legal system.
Posted by Steve | June 27, 2008, 4:40 pmHi PC, sorry for the delay. First of all, I never properly thanked you for a nice tribute. I’m glad we’ve not been talking past each other, and I’m glad we have so much common ground. I think I would enjoy that drink :)
On that note, I’m set to agree with you on some points. I don’t think I’d classify semiautomatic pistols as “assault weapons.” If you really think they are that prevalent, and that innocent in common use, I think they’d be (1) protected by Heller, and (2) not bad for the reasons that I think assault weapons are bad.
Assault rifles like AK-47s et al are no essential part of any self-defense regime. While a ban may not pull them entirely from the illegal market, it also frustrates no legitimate purpose, so long as it’s narrowly tailored not to sweep in semiauto pistols like you point out. A ban also escalates sanctions against someone caught with the guns, and may promote deterrence, justify longer incarceration for particularly nasty criminals, or at least make someone think twice before (1) owning a weapon whose sole purpose is mass violence and (2) using it to that effect. While I admit that for some people no law is deterrent enough, that argument (“they’ll just build there one”) reduces to an argument to ban nothing. Besides, I don’t see anything wrong with making it harder for bad guys to get bad guns, or with making it harder for terrorists to get weapons of terror.
I also agree WHOLEHEARTEDLY that the secondary market and the black market trade is the real problem. I don’t think we should ignore that while going after assault weapons; I think we should do both. But I’m willing to agree that I should define “assault weapon” narrower, and I appreciate the thought you’ve obviously put into the issue.
Posted by Ames | June 27, 2008, 11:31 pmThanks for replying Ames. I really wanted to have this conversation. I haven’t talked guns with a sensible liberal in quite some time.
And no, we haven’t been talking past each other. Election years are just kind of weird. i try hard to be non-partisan but it gets hard.
On the guns; Personally, I have no interest in AK’s. They are the most mass-produced gun in the world and the quality varies from country to country, so there are some lousy ones out there. And there’s so many better choices for a hunter. I think a lot of collectors like them because there’s a historical significance. (I would argue it is the most important weapon ever produced).
What you have to keep in mind though is that an AK, bought legally and unmodified, is just a rifle. It shoots a round as fast as you can pull the trigger. I had BB guns when I was 12 that did the same thing. If you want to argue that an AK is an ‘assault rifle’ based on the round it shoots, again, there are benign hunting rifles that shoot vastly superior rounds, also in semi-auto.
The ‘assault’ label comes from the fact that this gun was manufactured for the battlefield and is used by some bad people around the world. It’s been used to kill literally millions of people. But that is the use, not the gun itself. There’s simply nothing unique about an AK-47 that makes it more deadly than a decent marksman with any number of hunting rifles or even a good pistol.
You have to get past the ‘assault’ label and see guns for what they are. I’m willing to compromise on guns. I think certain ammo should be restricted to law enforcement. I like waiting periods and background checks. I like registering guns. But we don’t need any new ‘bans’. That is an overreach.
Posted by Progressive Conservative | June 28, 2008, 1:07 amSo you argue that history & use is the controlling factor of what should be an assault weapon, and therefore banned, but that it’s too slippery to be adequately pinned down?
I think that’s a good concern, but I think it’s one that we could get past. While AKs are benign normally, I guess, as you said yourself, their susceptibility to modification towards full automatic is a problem, and, yes, their common use is a problem. But I’m having problems thinking up a good way to define that too. Clearly the right to bear arms stops short of the right to own nuclear submarines. But where does it stop, to you, viz. the guns one can permissibly own?
Posted by Ames | June 28, 2008, 12:02 pmSo you argue that history & use is the controlling factor of what should be an assault weapon, and therefore banned, but that it’s too slippery to be adequately pinned down?
No, I argue that it’s history and use is why people make the mistake of calling them ‘assault rifles’. the only guns i would argue have exclusively miltary applications would be fully-automatic weapons and high-powered sniper rifles in the .50 cal range. But these are already fiercely regulated and ownership is finite and requires a large investment of time and money. THAT program has been working for around 70 years.
While AKs are benign normally, I guess, as you said yourself, their susceptibility to modification towards full automatic is a problem, and, yes, their common use is a problem. But I’m having problems thinking up a good way to define that too. Clearly the right to bear arms stops short of the right to own nuclear submarines. But where does it stop, to you, viz. the guns one can permissibly own?
If you make the analogy of a car and a gun, we can substitute one for the other. Most people follow the law with regards to driving cars. Some though are going to drive drunk, without a license or without training. We don’t suggest taking cars off the street. What we gun proponents want desperately is to persuade rationale folks like yourself to not blame guns, but to blame those who would use them for crimes. Even if we took every gun off the street, American criminals would be killing rival gang members with swords. We all know that. It’s the culture, not the weapons.
Posted by Progressive Conservative | June 29, 2008, 9:56 pmI do think that’s right, and I’m actually coming around to your side on this. But, I think of guns as a violence intensifier: surely you’re right that the culture’s most to blame, but guns make death easy. We tolerate handguns because we have to, and because the evidence does point to them being used defensively and serving a positive societal role. However, I think that when we go beyond handguns and hunting rifles, that balance begins to weigh against them. While assault rifles aren’t to blame 100% – guns don’t kill people, people kill people – people with BIGGER guns kill MORE people, and I can’t think that even semi-assault rifles have much to add.
Sorry it’s taken me so long to respond. I’ve been busy at work, and I feel like I have to do posts, which makes me neglect comments… I’m bad.
Posted by Ames | July 3, 2008, 10:41 pmWith respect, PC, you can’t compare a gun to a car.
Because a car, properly used, will never cause a death or injury. I’d say “save by accident,” but there really aren’t any accidents except the ones we make.
When a handgun is used strictly for the purpose for which it is designed, a human being dies.
The same is true for swords, but until I see a headline reading “Workplace Stabbing Kills 6″ I don’t think I’ll be calling for knife control.
I’m very impressed, by the way, with how the discussion has gone here. You and Ames seem to have managed to establish that most gun owners aren’t arguing for the freedom to lug a .50-cal machine gun around in their car, and that most gun control proponents aren’t arguing to ban ownership of anything bigger than a potato gun.
I wonder if we can narrow the commonalities further?
A glorious Fourth to all, eh? From a northern neighbour.
Posted by Metro | July 4, 2008, 1:09 pm