Scorecard for Today's D.C. Gun Law Showdown
Grammar, history, intent, the District's unique role in the Constitution, and crime in contemporary society could all play major parts in today's historic Supreme Court session on Washington's handgun ban. You may need a scorecard to keep tabs on the 75 minutes of argument.
(Good news is the court intends to release audio of this morning's session after it ends, sometime before noon.)
First question: grammar. If the argument gets hung up on the grammar question that has divided gun rights supporters and opponents for many decades--what is the true purpose and meaning of the so-called preamble to the Second Amendment, "A well regulated Militia, being necessary to the security of a free State"?--then there's a good bet the ultimate decision will focus on whether the right to keep and bear arms is an individual or collective right. That debate has raged since well before the 1939 Supreme Court decision in which the justices said that the amendment is really about how to assure that armed civilian militias be available to defend the people.
Interestingly, the challengers who got the D.C. gun ban overturned in the federal appeals court concede that the preamble "informs the nature of the right to bear arms," calling it a "declaration of purpose." That's not nearly the statement by the D.C. government in its brief that the "obvious purpose" of the amendment is to protect state militias, but it does indicate an agreement by both sides that the right to bear arms may be something short of a purely individual right to have a gun for whatever purpose they might wish. And the District brief grants that the militia as conceived in the Constitution is indeed "the people." So while the two camps are hardly ready to join hands around the campfire and sing Kumbaya, the justices have some space to push the two sides toward each other.
Much may turn on whether the justices get into the dueling ideas about how to describe the Amendment's roots in early American history. Both sides emphasize that the Amendment's meaning lies in how it came to be, but they choose different periods to make their case. The pro-gun advocates lean on the colonial period, offering a stirring and profoundly radical story about how the aggrieved American colonists created "extralegal" militias and fought hard against the British authorities' efforts to suppress these voluntary, informal bunches of armed men. These militias were "critical" to the success of the Revolution, says the brief filed by the original plaintiffs in the case. Given that background, they say, it's essential that Americans today have the right to take up arms once more should their government fall into tyrannical ways.
Oh no, cries the D.C. government--the Second Amendment cannot be an invitation to treason, which is, after all, the highest crime imaginable under the Constitution. Rather, the city argues that the Amendment refers to the post-revolutionary militias, when states sought to establish their authority and put down private rebellions, with the help of citizens. In a strange way, the D.C. brief is the more conservative document in this case: While the pro-gun side basically says that Americans must be armed to prepare for the next time they have to overthrow their government, the District's lawyers are aghast at this notion. They write that the right to own guns historically "did not permit individuals to decide for themselves when to resist tyranny."
Getting into this history would make for a tremendously fun session today, a chance for the justices to flex their academic muscles and demonstrate just how dedicated they really are to the essentially radical and rebellious roots of this nation.
More likely, however, much of the session will be devoted to debating legal questions of intent and the government's power to regulate arms. While the pro-gun side argues that the ability of government to set limits on arms applies primarily to weapons that are not in "common use" (machine guns, who knows, even nuclear weapons), the city argues that it has the right to regulate against handguns because they are a particularly dangerous weapon in an urban environment. The pro-gun argument falls flat, the city says, because "virtually any weapon falling into common use is immune from proscription," no matter how powerful or dangerous that weapon might be.
If, as many court observers believe, these justices are likely to declare an individual right to bear arms, they would also likely affirm the right of the District and other governments to regulate weapons. But how far can such regulation go if there is a guaranteed right to private ownership of arms?
The District's most novel, and to some, bizarre, argument is its claim that the Second Amendment uniquely doesn't apply to Washington because we're not a state. If the justices spend much time on this, I'll eat my copy of the Second Amendment. The city's reasoning here is that where the Constitution limits federal interference with states' authority, the District is free to do as it wishes because nyah-nyah, we're not a state. The city's lawyers are really stretching on this one. The pro-gun side scoffs at this argument, noting that since the District was created out of two states, the rights and guarantees in the Constitution apply to D.C. residents exactly as if they were still living in Virginia and Maryland.
Will the justices stay on a theoretical level or dive into the contemporary factors that led the District to pass the handgun ban in 1976? The D.C. Council said then that handguns "have no legitimate use in the purely urban environment of the District of Columbia." And the original plaintiffs in this case argue that the city's crime-ridden streets demand that they be permitted to defend themselves against attack.
Tom Palmer, one of the six D.C. residents who filed the original suit, believes a handgun saved his life, not here, but in California more than two decades ago, where he was surrounded by a bunch of young men shouting anti-gay epithets and threatening to kill him. Only by displaying his gun did Palmer manage to escape unharmed, he says. "It saved my life," he says. "There's no question in my mind."
Years later, living in the District, an intruder burst into Palmer's apartment and promptly scurried away when he saw that Palmer was at home. "I would have felt much more comfortable if I had a functional firearm in my home," he says.
Palmer is no longer a named party in the suit, which has been narrowed to just one of the original six, but his argument stands as the pro-gun side's response to the District's claim that handguns "are responsible for a disproportionately high number of violent crimes, accidents and suicides," especially in an "exclusively urban jurisdiction" like Washington.
If the city's argument is that it's just too dangerous to allow "concealable and lethal handguns," then the pro-gun side counters that "the scourges of crime and terrorism" demonstrate that the constitutional guarantee of gun rights is still relevant.
Watch for the discussion to focus on the limits of permissible regulation. The government must weigh the preservation of liberty against the preservation of human life, say those who challenge the gun ban. They grant that some regulation of guns is fine, even necessary, but their examples run to banning felons from buying guns or requiring background checks of purchasers.
The city tries to minimize the reach of its ban, saying that it merely "limits access to one particularly dangerous gun." But of course the District also places strict limits on rifles and shotguns, so its claim to be concerned just about the handgun is less than fully straightforward.
Should be a fascinating morning. Come ahead with your observations as the show unfolds.
You can hear my discussion with Tom Palmer, one of the original six plaintiffs in the gun case, and David Henigan, legal director of the Brady Center to Prevent Gun Violence, at the Raw Fisher Radio archive.
And tune in at noon today--or anytime over the course of the week--to hear this week's edition of the show, featuring some of the region's top food bloggers chatting about the latest trends and ideas in restaurants.
By Marc Fisher |
March 18, 2008; 12:10 AM ET
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