More on the Heller Decision

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firearms, Social Issues, Supreme Court

I wrote last night that, whether I like it or not, the 2nd Amendment really was intended to protect an individual right rather than a collective right to own firearms, so yesterday’s SCOTUS decision wasn’t all that shocking to me. My opinion is not based on case law but on the history of the state militias in the early years of the republic and also on some primary sources from those early years that seem to assume an individual right. I have not read the Heller decision and have no idea how the justices came to their conclusions. I’m just explaining how I came to mine.

Cass Sunstein, a professor at Harvard Law School, has an opposite opinion on Heller. He writes in today’s Boston Globe that yesterday’s decision was “a dramatic departure from how the Constitution has long been understood.” Sunstein knows law a lot better than I do, so I’m not going to argue with him.

On the other hand, Eugene Robinson’s thinking on the matter is pretty close to mine.

I’ve never been able to understand why the Founders would stick a collective right into the middle of the greatest charter of individual rights and freedoms ever written — and give it such pride of place — the No. 2 position, right behind such bedrock freedoms as speech and religion. Even Barack Obama, a longtime advocate of gun control — but also a one-time professor of constitutional law — has said he believes the amendment confers an individual right to gun ownership.

And even if the Second Amendment was meant to refer to state militias, where did the Founders intend for the militias’ weapons to be stored? In the homes of the volunteers is my guess.

I can’t say what the Founders intended, but the 1st Congress declared that it was up to individuals to not just store their muskets in their homes but to acquire the muskets on their own. In the Militia Act of 1792, Congress stipulated which citizens were required to enroll in the militia, then said –

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

This is the biggest reason why I think the 2nd Amendment intended an individual right, not a collective right.

Robinson continues,

I believe the Constitution is a living document that has to be seen in light of the times. I believe the Supreme Court, in Roe v. Wade, was right to infer an implicit right to privacy, even though no such thing is spelled out. I think the idea that the Founders’ “original intent” should govern every interpretation of the Constitution is loony — as if men who wrote with quill pens could somehow devise a blueprint for regulating the Internet.

But I also believe that if the Constitution says yes, you can’t just blithely pretend it says no. Yesterday’s decision appears to leave room for laws that place some restrictions on gun ownership but still observe the Second Amendment’s guarantee. If not, then the way to fix the Constitution is to amend it — not ignore it.

I agree again. We are not being consistent if we read one amendment in the Bill of Rights in a less liberal light than we read the rest of it. And if it becomes acceptable for one amendment to be ignored, then any of them can be ignored.

That said, at the very least I want state and local governments to have some ability to regulate, register, and control firearms in their jurisdictions. Adam Liptak writes in today’s New York Times that the Heller decision allows room for this. Liptak also writes,

As the list of affected localities demonstrates, gun control laws of the sort most likely to be affected by Thursday’s decision are almost exclusively urban. Indeed, some 40 states pre-empt local gun regulations, indicating significant tensions between state lawmakers and municipal officials.

The NRA and other gun-rights groups already have mounted a campaign to force urban areas to adopt the same minimal firearm restrictions as one might find on the open range in Montana. In other words, they want one national standard, and the hell with the right of state and local governments to judge what regulations or restrictions — short of a ban — are best for their citizens.

I’ve lived or worked in rural areas, in suburbs, and in Manhattan. The realities of population density have a huge impact on peoples’ attitudes toward firearms. I wrote back in 2004:

… years ago I lived in a suburb of Cincinnati, and I remember that usually whenever a squirrel set off somebody’s home security alarm the menfolk of the neighborhood would come running out of their homes waving handguns, ready to shoot some fleeing perpetrator.

I remember this vividly because my infant daughter’s room was in a corner of the house nearest the street and also nearest the home of one of the more rabid gun-waving neighbors. A few times I scooped her out of her crib and brought her into the middle of the house to keep her safer from stray bullets. Fortunately the posse never actually shot at anybody.

In NYC neighborhoods with high drug traffic it sometimes happens that a gunfight breaks out, and stray bullets kill an innocent child. This does not inspire most New Yorkers to go out and buy their own guns to protect themselves. On the contrary, New Yorkers generally don’t approve of people carrying guns for protection.

After living here awhile, I came to understand why. New Yorkers habitually seek safety in numbers. If you keep to areas where there are lots of other people, you are generally safer than if you are somewhere isolated. New Yorkers prefer subway cars and elevators with at least a couple of other people inside, even if the other people are strangers. They stay in well-lit, high-traffic areas.

In short, they insulate themselves from harm with lots of nearby human flesh. Thick crowds of strangers that an Ohioan would find suffocating are comforting to a New Yorker. The thought that somebody in the flesh shield might whip out a gun and start shooting that flesh is more frightening to New Yorkers than the burglaries that worried my neighbors in Ohio.

I’m not personally opposed to gun ownership. If I lived in an isolated cabin in Montana I’d probably keep a loaded shotgun on the wall, too. But in densely populated areas, guns may not be the self-defense tool of choice. This is a point many “heartlanders” cannot grasp.

BTW, the guy I called “one of the more rabid gun-waving neighbors” was married to Mean Jean Schmidt’s twin sister. But that’s another story.

Wayne LaPierre of the NRA
is already hollering about the defeat of elitism: “Behind every gun control law is a ruling elitist class that can’t stand your ability to take care of yourself.” So the NRA will try to override every municipality in the U.S. whose citizens, through their elected officials, have decided they prefer certain gun control laws. I swear, the word “elitist” is losing all meaning except “anyone I don’t like.”

Jay Bookman of the Atlanta Journal-Constitution writes, “You know, this victory could eventually backfire politically on LaPierre and his buddies.” I think it could, too.

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10 Comments

10 Comments

  1. Virginia  •  Jun 27, 2008 @10:32 am

    The central question is: a right to bear what kind of arms? Obviously some categories are excluded (nuclear weapons, anthrax cannisters). In the case of DC, the ban was on handguns. You could still have rifles and shotguns, which strike me as a very effective way of defending you home if that is what this is all about. (Why doesn’t the National Rifle Association stick to its name and get off the handgun kick?)

    What the Court seems to have done is to define the right to bear arms as applying to handguns. This in itself wouldn’t bother me much if it were possible to have a sensible licensing system, but of course the NRA will never stand for that. They seem to define the right to bear arms as meaning that any idiot can get any weapon with a minimum of inconvenience. I have always failed to see how this makes America a better place.

  2. scottreads  •  Jun 27, 2008 @11:37 am

    I kinda agree with your take. At least, you can make a plausible argument either way, and the idea that a country as historically gun-obsessed as ours might make this a fundamental individual right isn’t exactly a head-scratcher to me. I may not like it, and I don’t, but Heller is supportable based on a reading of the text and (as you helpfully supply it) the relevant social/cultural history.

  3. felicity  •  Jun 27, 2008 @12:15 pm

    I agree with VIRGINIA adding that there’s a big difference between a musket and a handgun.

    According to Cass, “Its (the Constitution) meaning is not stable over time,” is the across the board basic point of contention on the Court as there are those who argue that the meaning is stable. Well, even Jefferson suggested that the 1787 document was probably good for no more than 30 years.

    Example: privacy is not mentioned in the document because privacy in 1787 had to do with toilet functions – hardly seems necessary to put into law an individual’s right to relieve himself.

    Personally, I’ve always been perplexed as to why guns that can be shot multiple times without reloading are permissable to own whereas things like hand grenades aren’t – they both kill many people in a few seconds. In my book, equally unjustified is private ownership of handguns, uzis, machine guns – automatic weapons of any kind – and hand grenades.

    I also agree with Cass that Supreme decisions reflect the political climate at the time and the leaning of the Court majority at the time far more than some impersonal, disembodied interpretation of the document.

  4. Gordon  •  Jun 27, 2008 @12:22 pm

    I agree with your take, too (though it took one of your posts a few years ago to push me to look closer).

    The evolution of the draft text is helpful.

    It seems the argument hasn’t changed much in a couple hundred years: some wanted to tie it strongly to being in a militia; some wanted a pure individual right. The compromise was probably deliberately vague.

  5. jerri  •  Jun 27, 2008 @1:06 pm

    Betcha the founders never knew of a guy who after getting fired from his job, goes home, gets his musket, goes back to work, kills his boss and any other co worker he can find, and then kills himself. I cannot construct a law that addresses this behaivor can you.

  6. maha  •  Jun 27, 2008 @1:25 pm

    jerri — It was a pre-capitalist society, but they had murders then, too.

    Believe me, I’m in favor of gun control as much as anyone. But I’m not going to work backward on this issue, meaning I’m not going to start with what I want (gun control) and then interpret the Constitution to justify it. That’s intellectually dishonest.

    I also think that maintaining the integrity of the Constitution is very important, even if I disagree with a part of it. We can’t just arbitrarily ignore the parts we don’t like, like the Bushies do with the 4th Amendment.

    I suspect someday the 2nd Amendment will be further amended to resolve the issue, but I don’t expect to live to see that.

  7. joanr16  •  Jun 27, 2008 @1:29 pm

    They seem to define the right to bear arms as meaning that any idiot can get any weapon with a minimum of inconvenience. I have always failed to see how this makes America a better place.

    Hear hear.

    My gut reaction is, we’re no closer to understanding the 2nd Amendment now than we have been for 219 years. As a society, we place way too damn much faith in the gun as a solution to our problems. Ex-wife taking too much of your paycheck? Hand me my Smith & Wesson. Repo guy at the door? The bank can pry my rifle from your cold, dead hands, buddy. And my favorite: Let’s issue handguns to the entire student body at every university in the land. Like half of them aren’t experiencing some form of emotional disorder on any given day.

    The court did exactly what I expected, and decided to continue support of this scary, immature thinking.

  8. paradoctor  •  Jun 29, 2008 @6:59 pm

    Heller vs DC clarified the 2nd Amendment, which I suppose is a good thing. The 2nd Amendment is poorly worded, even ungrammatical, but I think they left the issue vague for good reason. By reading clarity where there had been not, this Court engaged in judicial activism.

    Next up is the Chicago handgun ban. This is about local jurisdiction; and so involves the 10th Amendment.

    The DC ban was overturned because DC is under federal rule. This underscores a sore point; that DC is governed as a colony of the federal government.

  9. Comrade Rutherford  •  Jun 30, 2008 @12:19 am

    I live in New York City for almost 20 years. I never once was mugged, never once felt like I needed a firearm. And I certainly didn’t want anyone else to have one either. I rode the subways at all times of the day or night, and walked the streets of Manhattan and Brooklyn without concern. After 11 PM, the one subcay car with the most people is always the one with the conductor.

    Near one of me last apartments, there was a group of homies that always hung out on one corner on my route from the subway. Unlike other white people that bowed their head and scurried by, I was respectful and said hello as I passed. I had nothing to fear from them. Another guy called me names once, and I ignored that, and later I still said hello anyway. Two years after I had moved in, he stopped me and said that, for a white guy I was alright, that I was the only one that was respectful.

    Ironically it was the rookie cop that was the most threatening. Early 20s, handed a firearm and told that everyone in the city was their enemy, these guys were the most dangerous armed people in the five boroughs.

    I don’t want ANYONE to have guns in dense cities.

  10. Jaime Clemente  •  Oct 21, 2008 @7:31 pm

    I think several points have been missed in this argument. First, up until the 1930′s, it was generally agreed that the 2nd (like the rest of the first 10 Amendments) was speaking to an individual right.

    The second point is that Washington D.C. enacted this ban under the guise of reducing violent crime. Violent crime not only increased, it increased at double digit rate. D.C. spent the next ten years as the most violent city in the nation (and D.C.’s ordnances governing long arms are similar to the ones governing handguns). It is up to the individual as to whether they want to use their rights (like deciding to vote); it is not up to the government to decide whether the individual can use their right. If said individual abuses their right (depriving others of life, liberty and the pursuit of happiness), then they should be prosecuted. But the government has the responsibility to uphold the Constitution, as an entire document, not picking and choosing what they want to uphold.
    How many of you was be beyond furious if we were talking about similiar government behavior concerning abortion?

    Thirdly, given the amount of firearms in private hands in this country and that only about 1% of those weapons are actually used in crimes), to say that this is purely a crime prevention issue is ludicris. This is more about power than crime. The major cities that have the most severe anti-firearm ordnances on the books also tend to be the ones that have the police departments with the biggest problems with civil rights corruption. New York, D. C., Chicago, Los Angeles, etc., all are either currently under, or have been under, some degree of Department of Justice oversight because of patterns of civil rights abuse and corruption. What these laws amount to are modern “Jim Crow” laws, with law-abiding minorities residing in urban areas being those the most affected.

    By the way, the Clinton Administration, with the help of the Supreme Court, actually did more to weaken the 4th Amendment protections, than any other administration, including the current one.

    And I don’t know about you, but having to undergo a federal thumbprint and background check every time I want to purchase any firearm is an inconvenience; but it’s one that as a law-abiding citizen of this country, I have no problem enduring. I am tired of being told by the “powers that be” that unless I work for them (i. e. a law enforcement officer) I cannot be trusted to have firearms. That sounds a whole lot like the very type of situation the Constitution was drafted to protect against.

    This is not a “liberal vs. conservative”, or “democrat vs. republican” issue. There is a rather diverse population on each side of the issue.



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