Tuesday, March 18, 2008

Gun-Rights Showdown

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several D.C. citizens contending that the ban on the possession of operable firearms inside one's home violates the Second Amendment. The Circuit Court of Appeals for D.C. agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions. The majority and dissenting opinions in this case will be taught in law schools for years to come. Here's a layman's guide to the significance of the case:

- Heller will be decided on originalist grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the "dead hand of the past." They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the "dead hand" of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual "right to keep and bear arms" that "shall not be infringed." In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intention of the Framers of the Second Amendment was to protect the continued existence of "a well regulated militia," the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution.

- The Second Amendment protects an individual right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called "collective right" of states to preserve their militias -- notwithstanding that, everywhere else in the Constitution, a "right" of "the people" refers to an individual right of persons, and the 10th Amendment expressly distinguishes between "the people" and "the states." Now even the District asserts the new theory that, while this right is individual, it is "conditioned" on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won't be based on a "collective" right of the states.

Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much effect on current gun laws. Here's why:

- Heller is a federal case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the 14th Amendment, which limits state powers.

Nowadays, the Court asks whether a particular right is "incorporated" into the Due Process Clause of the 14th Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward -- especially given the overwhelming evidence that the right to keep and bear arms was among the "privileges or immunities of citizens" to which the 14th Amendment refers. Those who wrote the amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.

Finally, Heller involves a complete ban on operable firearms in the home. No state has a comparable law. And under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would be gun rights.

But although the implications of striking down the D.C. gun ban are limited, a decision upholding an unqualified individual right in Heller would still be a significant victory for individual rights and constitutionalism. To shrink from enforcing a clear mandate of the Constitution -- as, sadly, the Supreme Court has often done in the past -- would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.


Kentucky: Burglar Shot By Homeowner, Arrested: "An alleged burglar who was shot by a homeowner in Harrison County Sunday night is now behind bars. The incident happened at about 9:30 p.m. at a home on Old Lair Road. Police say Thomas Perysian, 25, of Cynthiana was discovered by homeowner Kevin Landrum, who shot Perysian in his right hand and forearm with a shotgun. Police say Landrum called them from a cell phone while holding the gun on Perysian. Police say Perysian was treated and released from UK Hospital. He is now being held in the Grant County Detention Center on first-degree burglary charges."

SD: Accused Killer Claims Self-Defense: "Accused killer Titus Dansby claims he only shot in self-defense. Dansby is charged with first-degree murder and aggravated assault in the death of 24-year-old Cedric Hall. At his first court appearance today, lawyers revealed Dansby called 911 himself after shooting Hall. And the defense claims he only shot after he saw Hall reach for a shotgun in his car. Titus Dansby has a license to carry a firearm. His friends and family say he had it to protect himself, and that he was afraid of Cedric Hall. Dansby claims he'd called police several times in the last week. He even met with them Thursday to talk about Hall carrying a gun and that he threatened him. Dansby's friends and family say he had no choice but to shoot. Several people who live at the Somerset apartments witnessed the last two shots that took the life of 24-year-old Cedric Hall. But the events that led to the shooting are known first-hand only by the four people involved in the parking lot fight."

Alabama bill still not enough: "The problem with Hank Erwin's bill seeking to arm academics and ROTC students on Alabama campuses isn't that it goes too far. It doesn't go far enough, and it fails to ask the fundamental question: Why do we allow boards of trustees in state-funded institutions to violate the constitutional rights of its students? Every eligible student who can obtain a concealed carry permit in the state of Alabama should be able to carry on campus, without exception, and without harassment by their educational institution. The presumption that a permit holder is qualified to make life and death decisions isn't modulated by the fact that they are enrolled in school. Any permit-holder has the responsibility for knowing the rules of engagement the same way driver's license holders learn the rules of the road, and students are no exception. In fact, educated people are substantially less likely to commit violent crimes, and research shows that a concealed carry permit holder is 37 times less likely to use a gun in a violent crime than a non-permit holder.... The problem with Hank Erwin's bill is that it falls victim to the pervasive liberal notion we should somehow have to justify our desire to carry a firearm... "

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