Thursday, June 26, 2008

Shooting blanks at the Heller decision

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 slip opinion in District of Columbia v. Heller is 157 pages long.

All of these pages were necessary, apparently, for the Supreme Court to affirm by a 5-4 margin that the Second Amendment (quoted above) prevents Washington D.C. from imposing a total ban on the ownership and use of guns.

By my count, the Second Amendment clocks in at 27 words... so that comes to about 5.8 pages per word. There are two dissents. Justice Stevens' dissent starts at p. 68 of 157. The second dissent, by Justice Breyer, starts at p. 114.

Almost all the mischief in interpreting the Second Amendment comes from the prefatory clause -- the bit about a well-regulated Militia being necessary to the security of a free people.

At one point in our history, the Militia was every able-bodied male above a certain age. We might be called upon to grab our rifles or muskets or even a pike, if that was all we had, to go and repel invaders. You know: Indian attacks. The Redcoats are coming -- that sort of thing.

Later, "militia" began to be associated more with the National Guard. Back when I was a lad, the National Guard was something that a young man could enlist in and thereby avoid the draft -- and overseas service. There was that police action in Vietnam, for example, that boosted National Guard enlistments dramatically. Although the National Guard might be "federalized" for specific purposes -- Eisenhower made threats along these lines to force state compliance with school desegregation orders, for example -- it was a rare thing. But even a generation ago, a state National Guard unit was identifiably part of the state from which it was drawn.

Today, though, National Guard service guarantees long stints overseas in Afghanistan or Iraq or anywhere else the military is assigned. Guardsmen are under federal orders almost constantly -- they face all the dangers that our soldiers and sailors and marines in regular service face... only, all too often, without the same training... or armor.

Our nation was born in revolution. In our founding mythology, our sturdy yeoman forefathers grabbed their guns and formed up on the village green and fought off the greatest army in the world. (It's mythology only because it was too often untrue: Neighbor A might have taken up arms alright... but only to shoot at Tory Neighbor B, who was serving with the British. And short-term enlistees -- the sturdy yeomen who grabbed muskets for a summer campaign -- would too often turn around and go home when the fighting got too fierce or they had enough of suffering and dying. Read any biography of George Washington's -- other than, I suppose, Parson Weems', and you'll see what I mean.)

But embedded deep in our national psyche is a fear that, without guns in our homes, a government could become oppressive and tyrannical, trampling on our liberties. We the people are the ultimate guarantors of our liberties. We do not trust that government will always be on our side in our quest to remain free, and on some level we believe that the threat of a well-armed popular uprising helps keep government in its place. An outright ban on the possession of firearms, as in Washington, D.C., or here in Chicago (our ordinance is about as onerous as the District's) obviously triggers that deep-seated fear.

That said, I'm ambivalent about today's decision -- which, of course, I can't have had time to study yet in any great detail.

Justice Stevens may have the better side of the argument -- that the Second Amendment refers to a collective right to a Militia, not to an individual right to keep guns at home -- at least in terms of the precedents of the Supreme Court -- if you could call today's National Guard anything other than an adjunct of the federal military.

Still, even before today's opinion, I have wondered why gun ownership has to be dependent on the reading of the Second Amendment arrived at by today's majority. The Ninth Amendment provides, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Wouldn't the right to keep arms -- surely recognized from Colonial times -- be a "retained" right -- even if the Second Amendment were deemed to apply only to "militias"? I make no pronouncements here, even tentative ones; I merely ask the question.

The other aspect of the gun ban that bothers me is why the District of Columbia fought so hard to keep it in place.

It obviously doesn't work: Criminals have guns. Lots of guns. Here in Chicago, with a similar law in place, gang-bangers shoot guns at and kill each other with distressing regularity, occasionally taking down innocent bystanders either by accident or because of mistaken identity. It turns out that criminals may not care that much what the law says. Therefore, the only people who don't have guns are law-abiding saps.

Still, this is not a constitutional objection: Stupid laws may be constitutional, too, you know. Nor am I entirely clear on how arming the law-abiding saps would help keep gang-bangers from shooting up the streets.

On the whole, whether it's just a manifestation of my deep-seated American psyche or not, I think an out-and-out ban on the possession of firearms in any locality is bad... I just don't know, yet, that today's decision is particularly good.


Rob said...

I'm not clear on just how effective banned guns is without likewise banning bullets. Gang-bangers ain't gonna reload their own ammo, so if they couldn't get the bullets easily & cheaply, perhaps the availability of the weaponry would be less of an issue.

As much as I am all for our American freedoms, I've grown to be opposed to anyone other than law enforcement & militia having guns. Simply put, our society as a whole is too damn lazy or unwilling to self-regulate ourselves, so we need overbearing laws to protect us against our own silly selves. Not sure about that? Where are little children getting guns with which to act upon their frustrations in school? I dunno. But if we can't even keep firearms out of the hands of our children, we deserve to have the right to own that weaponry taken away.

Part of this stems from my view of guns as I've matured too. Really, the sole purpose of a gun is to destroy or kill something or someone. Now, in the case of hunting, the end result may be food on your table - and when my late father-in-law was a boy, his family depended on exactly that for survival - his rifle was a tool that helped him literally provide for his mother & sisters. But realistically, we're way beyond that point now.

Ralph said...

I have to agree that we should have the right to own and operate firearms with only obvious restrictions (felons, etc).

I wouldn't use a sidearm myself with the wheelchair, as that would be physically difficult. But law abiding citizens should be allowed.

In DC, law-abiding people not of the political class ought to be able to have firearms as a deterrent. Some neighborhoods are eough. But the liberal politicos who live in safe, trendy and very expensive areas like Georgetown live in fantasyland. They wouldn't get it.

But could afford to hire private, gun-toting security services for their 'protection'. No inconsistencies with that...right??

Empress Bee (of the high sea) said...

i don't own a gun to kill something, i own (and carry) a gun for self defense. i learned how to use it properly, and i have a permit to carry it. all that being said, could i shoot someone? i honestly don't know...

smiles, bee

Rob said...

I'm not condemning that notion at all, Bee - in fact, my wife had insisted that we have a handgun in our home for exactly the same reasons (until we brought our son home) - but ultimately, having a gun for self-defense still kinda validates my contention that the sole purpose of a gun is to destroy or kill something or someone - in this case, before they can harm you.

My fear had always been that having a gun only meant that I could, in my adrenaline-jacked, shaking like a tree, 3 in the morning stupor, ATTEMPT to shoot at someone breaking into my home. Chances are, my aim would be for crap and I'd miss. Might even riccochet a bullet off something and catch my own silly self. But Mr. Career Criminal is far less likely to be rattled & nervous and would probably fare much better with his shot. So, I guess I figured that pulling a gun on an intruder would be about as likely to antagonize and worsen the problem as it would be to remedy it.

The even bigger fear of the wapon landing in the wrong hands drove me to get rid of the gun altogether before we brought our new son home.

But I'm really not so much anti-gun as I am a realist - you cannot force responsibile behavior and given that more people than not have shown that they're not willing to voluntarily act responsibly, the next best thing is to remove the ability for them to have a gun in the first place.

Equip the police, sure. Arm the milita to the teeth, certainly. But would I sleep better knowing that my jackass, redneck, next-door neighbor has a loaded gun and is ready for action? Heck no!

The Curmudgeon said...

Rob wrote, "As much as I am all for our American freedoms, I've grown to be opposed to anyone other than law enforcement & militia having guns. Simply put, our society as a whole is too damn lazy or unwilling to self-regulate ourselves, so we need overbearing laws to protect us against our own silly selves."

Gosh, I hope you're wrong -- because if you aren't, the American Experiment is over.

Rob said...

I wish I was wrong, but the proof's in the pudding.

Until somebody can assure me that we no longer need to be concerned with the possibility of 10 yr old kids carrying handguns to school, I say the public has no business owning firearms.

Yes, the responsible few will suffer for the sake of the reckless majority. Is that fair? No. It is still true? Yep.

Kacey said...

After reading some of the comments, I am left with one big problem. What would happen in a world where only the militia had guns? It seems like it would be very easy for the armed militia, army or whatever to overthrow the existing government and institute something akin to Saadam's Republican Guard.
We do have one handgun in our home. It is our son-in-law's first service revolver from the Ohio Highway Patrol. When they changed guns, we bought his first one to save it for him, because he couldn't afford to buy it at that time. Not all guns are bad, nor are all people bad, but some of each are a deadly combination.

landgirl said...

"Not all guns are bad, nor are all people bad, but some of each are a deadly combination." I like this practical wisdom of Kacey but how to translate that into laws or behaviors is where it gets so tricky.

Having lived now in a country that is pretty anti-gun I have seen the statistics for young people murdering each other. Knives are pretty effective and several people last year were kicked to death for heaven's sake. Just typing that makes me want to cry. Taking guns away from them would not have saved their lives.

I live in the country where guns are a part of life. There are very strict licensing and control regulations.

I am with Cur standing up for the virtue of holding on to certain rights, even those that make us a bit uncomfortable in their execution.

I hold the American Experiment most dear both for its own sake and for the sake of a model for the rest of the world.

Anonymous said...

One thing that seems to escape a number of people is the futility of a gun ban with regard to it's intended purpose (i.e. to reduce crime). It sounds billhilly, but the fact is, if you outlaw guns then only outlaws will have guns. Does this apply to everything? Of course not; but as I write this an armed lunatic is currently running free in our part of Illinois about 100 miles west of Chicago after a week of pursuit, 2 stolen vehicles, 3 home invasions, and at least one murder. Repeat: As I write this, he's still on the loose, last known to be carrying 2 stolen handguns.
Does anyone with 3 brain cells to line up in a row really think this oxygen-thief really cares whether it's legal for him to own a firearm, and furthermore, if local and regional law-enforcement can't catch him despite his being in the area for a WEEK, does anyone have the right to tell me I can't protect my family?

Ben and Bennie said...

People will always find a way to kill other people. It is that simple. Landgirl's comment is right on target (pardon the pun). Countries that have become anti-gun do not avoid homicides or crime. Criminals will always figure out a way to get a weapon.

Like Bee my wife and I both have a concealed weapons permit. I sometimes carry a good amount of cash on me because of my job. My wife often works late in the winter months and must venture to her car in the dark.

But I truly agree with Rob on one point. A parent who allows their child access to a gun should not have the right to own one.

Empress Bee (of the high sea) said...

some great points here guys. in the south we all pretty much have guns. i think they are almost required to get a drivers license. (just kidding, don't flame me!)... thanks curmy for making us all think a little...

smiles, bee