Appeals Court Nixes Washington D.C.’s Home Gun Ban
A federal appeals court has turned thumbs down on a Washington D.C. anti-gun law that is the kind of law that even many advocates of gun control find extreme:
A federal appellate panel today struck down parts of the District’s gun law as unconstitutional, ruling that the city cannot bar people from keeping firearms in their homes.The decision was a victory for six D.C. residents who said they wanted to keep firearms for self-defense. But it could have much broader implications: The case eventually could wind up before the U.S. Supreme Court as a test of the thorny issues surrounding the Second Amendment and the public’s right to keep weapons.
The District has one of the strictest gun laws in the nation — barring all handguns unless they were registered prior to 1976 — and that law has come under attack over the past three decades in Congress as well as the courts. Today’s ruling guts key parts of the law, but does not address provisions that prohibit people from carrying unregistered guns outside the home.
Mayor Adrian M. Fenty (D) and other D.C. officials were reviewing the opinion and planned a press conference for this afternoon.
The ruling came on a 2-to-1 vote by the U.S. Court of Appeals for the D.C. Circuit. Senior Judge Laurence H. Silberman wrote the majority opinion, also signed by Thomas B. Griffith. Karen LeCraft Henderson dissented.
“We conclude that the Second Amendment protects an individual right to keep and bear arms,” Silberman declared in the 58-page majority ruling.
There is gun control — and then there is gun control. And this gun control banning guns altogether is one that many (including this writer) feels goes way too far. In fact, the constitution makes it clear that people are allowed to own and keep guns. There are then gradations in that assertion — and that’s what most gun control has been about so far. CONTROLLING versus totally BANNING ownership of guns.
You can see a wide variety of views on this in “blogtopia” (that term was created by this guy). And even here you can see that some who you’d expect to be in favor of gun control find the Washington, D.C. law extreme. Meanwhile, to those who oppose any kind of gun control, the law is “proof” that people who want gun control are trying to eliminate the right to own guns (which is generally not true):
Wizbang ponders the impact of this on the 2008 Presidential race and on Rudy Giuliani’s prospective candidacy. Taylor Marsh doesn’t like the D.C. law one bit. La Shawn Barber notes that DC’s crime rate WENT UP after the gun ban was put in place. And for a lot of conservative blog reaction read Michelle Malkin and law professor Glenn Reynolds (who says this is a “very important” development, among other things)..
In fact, stereotypes do NOT apply here.
You can’t assume “oh, all the liberals will be upset.” In fact, solid, thoughtful progressives such as Colorado lawyer Jeralyn Merrit applaud the ruling. And make sure you read the always-blunt-and-honest The Gun Toting Liberal’s take on the ruling. Applause also comes from The Impolitic.
So what do you find here?
A rare thing these days: consensus.
26 Responses to “Appeals Court Nixes Washington D.C.’s Home Gun Ban”
[...] Original post by Joe Gandelman and software by Elliott [...]
[...] ***** Our friend, Joe Gandelman of The Moderate Voice has referenced this post with a fantastic roundup entitled Appeals Court Nixes Washington D.C.’s Home Gun Ban — a “must read” Technorati Tags: 2nd Amendment, Civil Liberties, Constitution, Current Events, District of Columbia, GOA, Guns, Headline News, Headlines, Libertarians, Nanny State, News, News and Politics, NRA, Politics, RTKBA, SCOTUS, Supreme Court, Tyranny [...]
I know it’s against the rules to disagree with anything in the constitution and all, but I gotta say that I find the right to bear arms as an amendment whose day has long since past. Back when it was written, it made a sort of sense, there were other armies, no organized law enforcement in much of the country and a native population to eliminate. But that’s all over now, and Americans guns are dedicated exclusively to killing other Americans. None of the arguments for person killing guns (as opposed to hunting shotguns) seem very convincing.
My favorite argument in this case is the one whereby an unarmed population is helpless against it’s government, whereas a population with handguns can rise up when the time comes. If the government ever decided to use the armed forces against the populace, and the armed forces cooperated, having handguns would only make it a tad more difficult to submit the populace. Yeah, you got you’re colt, the army has Black Hawk helicopters, you are dead meat.
The US is one of the only countries in the civilized world that allows person killing guns to it’s civilian population. It also is one of the civilized countries with the highest homicide rate. Gee, you think there could be a connection? Just someone tell me what positive things guns give the US that would be gone if there were no guns in civilian hands.
“In fact, the constitution makes it clear that people are allowed to own and keep guns.”
No, that’s not a fact. The constitution’s words are very confusing in this point, mentioning the right to bear arms only as a sideline in a sentence about militias. Consequentially, there are two different ‘schools’ on how to interpret this. And the division goes right through the courts, as this case showed.
This can’t be decided by looking at the words of the constitution alone. You have to take into account, too, what the lawmakers intended to achieve with this right. But this would be the job of a historian, I don’t know enough about this to come to a final conclusion.
However, personally, I think that the start of the sentence makes it crystal clear that the main point was to bolster the defense of liberty by supporting a collective effort “being necessary to the security of a free state”: ‘a well regulated militia’. Note that this isn’t allowing any armed posse, but ‘milita’ in singular and only ‘a well regulated’ one. Also, ‘a free state’ seems to indicate that this was alos meant as a safeguard against arbitrarirly federal power, something the ‘Anti-Federalists’ were very afraid of. So, this is clearly aimed at providing a legal ground for the existence of something like the national guard. The confusion comes with the part “the right of the people to keep and bear arms”. It isn’t clear how this connects to the start of the sentence, with ‘and’ or ‘or’? But I think that since it’s about “the right of the people“, not simply ‘the right of people’ or even ‘the right of any citizen’, this shows that its not an individual right, but just a further reinforcement that the “militia” is meant to be an armed one.
I guess what the creators intended to establish was an armed force very much like the Swiss army. Afaik the Swiss have a draft, and the recruits are militarily trained for some months. After having served their time they automatically become part of the reserve, and they take their guns and basic equipement at home! The idea is that the reserve will be instantly ready for the defense of the nation on very short notice. But pls note that the reserve forces are not allowed to bear their military arms in public as private persons, and that the Swiss has strict regulations on private ownership of arms. This model fits into the ideas and experiences of the War of Independence.
So, imho ‘the right of the people’ isn’t a right for the individual. ‘The people’ don’t have lost their right just because citizen are prohibited from keeping arms under certain circumstances. Accordingly, almost everybody wants to keep convicted criminals from having the right to own arms, which would be an unconstitutional ‘infringement’ if the second ammendment was meant to be an individual right. Imho this shows that it isn’t.
However, it’s unlikely that there will ever be a common agreement on the interpretation of this ammendment. Since this is mainly a political question, what does it say about the efficiency of democracy when its representatives haven’t been able to clarify such an important question for such a long time? It’s beyond pathetic.
I am somewhat murky on the details but I came across this story a long time ago in American Heritage magazine. During World War 2 a corrupt sheriff and his cronies “won� election in a Southern town. They used their office for graft and to shake down the citizens for money. They abused their office to not only stay in power but physically intimidate anyone who questioned the way they ran things, opponents were jailed, threatened, or run out of town. The sate government did nothing to intervene. When the veterans returned they got together and ran a reform candidates for Sheriff and Mayor, obviously they had a lot of support from the long suffering community that was tired of living in fear. Just as the election neared the candidates were jailed on trumped up charges to eliminate them from running from office and also deliver a warning to the opposition. The veterans, many of them combat veterans of the Pacific and Europe, weren’t so intimidated. They showed up at the courthouse, armed, and demanded the immediate release of the candidates. The Sheriff, trapped in the courthouse, called in the State police to quell the disturbance. When the police arrived they realized very quickly that theses veterans were not going to go away, that they meant business when they said that the reformers were going to be released to run for office. The police knew that no matter what the political connections the Sheriff might have at the State level these veterans were not to be denied, any attempt by law enforcement to put down the reformers would be met by an armed citizenry, a militia and a well trained one at that. To settle things the State Police negotiated the release of the candidates, and promised that the State would insure a clean and above board election. The reformers won handily and things returned to normal. Could the situation have been resolved with peaceful protest? Maybe, I don’t know. But don’t kid yourself, the State police knew that despite the Sheriffs political connections the thought of going up against these armed and determined veterans had sealed his fate. I lived in the city of Chicago during the Daley years, I know first hand about a one party state and rigged elections. I know about how the police can operate if there is no oversight and they are part of a political machine. I don’t trust government, yes tyranny exists, I have seen it, and I want to be armed against it.
Guns don’t protect against tyranny very well — look at Iraq. Political capital, a belief by the public in good government, protects against tyranny. Even if no citizen had a gun, an attempt to impose, say, a Nazi state would not work. The army would not fight for it, and the people would not take it. But if you reduce liberties a bit at a time, and don’t rush up too hard against political will, you can make government more autocratic without a single shot being fired.
When talking about this most people forget that most of our Founding Fathers didn’t even want a standing army. Citizen militas were literally the only form of military when the Constitution was written so of course they had to be protected.
That said, as I grow older (and read about violence in European countries, especially Britain which is closest to us culturally) I find myself more sympathetic to the idea that gun bans hurt those that aren’t physically strong and our violence rates have more to do with our nation’s psyche rather than free access to firearms — a point explicitly made in Bowling for Columbine that most detractors tend to ignore.
carpeicthus: excellent point. Even the most brutual regimes need a large chunk of the populace to participate and fealty to our principles should prevent that from ever happening.
Lynx summed it up very well. It strikes me as ironic that as we try to disarm the Iraqi citizens, our own want to keep on toting.
The problem is, first of all, the powerful NRA lobby and, second, enforcement. Our drug laws have done nothing but fill up prisons. So, a better and smarter approach to gun laws would be necessary.
Considering how many seem to have a real love affair with their weapons, I suspect the best solution is a really tough control and regulation policy.
The 2nd Amendment is clear in it’s thinking. The first part gives the rationale for the very strong second part. It doesn’t limit or modify it. The FF wanted “the People” to be armed. They thought it would provide a bulwark against tyranny. You may argue that now the people are in no danger of tyranny(Something the Left would take vigorous exception to) or that individual arms are no defense against a modern military(Something military historians would take exception to), but it doesn’t invalidate the Right of the people to bear arms.
The average citizen has the right to defend their lives and property. The modern firearm allows the elderly, the weak, the infirm, women, and the busy(Not everybody has the time to become a black belt in karate) to accomplish that. Denying them that Right, like the DC laws do, is tyranny at it’s worst.
Pete, nice leap frog over the initial reference to militias.
If anyone knew the DC area, they would understand how ludicrous it will be to legalize owning handguns here. We have a high-crime, urban environment, with a large segment of poverty-stricken, poorly-educated residents. To allow the ban to be removed goes against the wishes of the majority, and will make it much harder for the police to keep order. Many violent criminals have been brought up on charges of illegal firearm possession; it is a law that allows the cops to arrest someone before they commit a more serious crime. This will also make recruiting of police officers much more difficult, as it adds to the dangers they face daily.
I also interpret the second amendment as Gray does, to mean that gun ownership is allowed as part of a well-armed militia; I’m quite certain that the Founding Fathers did not intend for private citizens to have weapons caches in their homes to include semi-automatic and automatic weapons.
While I too, have a healthy distrust of government power, I prefer a ballot on Election Day to taking up arms against it. If the federal government ever did try to establish an autocracy, we would not be able to stop our own military, which possesses far superior weapons.
But if you reduce liberties a bit at a time, and don’t rush up too hard against political will, you can make government more autocratic without a single shot being fired.
Carpeicthus: This is an amazing observation- just brilliant, and in my view, what we are experiencing right at the moment!
domajot,
What I was elaborating on is that the second part is the stronger of the two.
“Shall not be infringed” is very strong language. So you can argue the exact meaning of the first part, but since it simply provides an explanation for the second, it should in no way become the controlling phrase in the Amendment. Gunbanners accuse gun rights partisans of glossing over the first part, but it is they who ignore the controlling second part.
Pete,
You give a good overview. What we have is something that I don’t understand. Way over and above arguments about selfprotection and the meaning of the words in the Constitution, there is a goodly block of people who just like the idea of packing. When you read their blogs, you gat a sense of how attached emotionally they are to guns.
Is it a sense of strength or power? It might also reflect the lifestyle of ranchers and country (vs. urban) lives. Sometimes it seems to be a nostalgic reenactment of rugged frontier days.
I wish some psychologist would investigate and write a book. It interests me.
domajot,
There are levels of involvement in every hobby/technology/toys. From the casual to the fanatical. You can always find somebody further out on the end of the scale if you look. It’s been my experience that gun owners are no different than non-gun owners in that respect. People who carry regularly are no different. Most of them don’t talk about the fact they carry and never brandish. It’s just a tool.
We don’t ban powerboats because some yahoo’s cigarette boat is sucking down 3 gallons of 100 octane a minute and we don’t ban guns because some yahoo hangs every accessory imaginable off of his AR-15. As long as he’s not hurting anyone we tolerate people’s eccentricities. If you look on the firearms bulletin boards, people who embrace being “tacticool” get ridiculed mercilessly. It’s good sport.
Pete,
You may be right about the people you know, but I can’t look at a gun without an awareness that it’s a tool for killing. I would no more want a gun in my house than dynamite or a collection of deadly poisons.
Imagining a crowd of people, all armed, when an argument starts is very scary to me. I prefer fisticuffs, if some are hell bent on fighting.
domajot,
Not presuming your level of familiarity with firearms, but in my experience once a person is introduced to a target pistol, is shown the safe + proper way to handle it, and has the opportunity to shoot up some paper targets, they don’t turn Republican, but they do modify their position on them.
In the past I’ve taken a more than a few of my acquaintances to the range for their first time and have had uniformly good results. One trip involved 2 female co-workers, a couple, whose politics were to the left of George McGovern. It’s become a cliche, but both shot passably well right out of the box. Neither had ever handled a gun before.
Just a suggestion, find a gun owning relative or friend who you trust and ask them to go target shooting. Nobody’s asking you to join the NRA, but just to keep and open mind and see what your fellow citizens are talking about.
Pete,
I’m not talking about target practice or the party of choice for gun owners.
I am talking about what it means in a volatile society when guns are readily available to put the period to any argument.
Hunting, target practice and self-protection are on one side of the situation. The well armed angry crowd (or even individual) are on the other.
Somewhere we need to step in to prevent the available from becoming the deadly. We regulate the sale of alcohol, cigarettes and medicine-
all with limited success, and all besically potential tools for self injury. Guns are tools for injuring others and deserve no less concern, I would say more.
Well as for people acting on impulse and using a firearm to hurt someone, generally it’s not a bolt out of the blue. They’ll usually have a history of acting inappropriately and using the gun is the final act. Owning a gun doesn’t make you homicidal. I’ve been plenty angry at people, to a point where I’ve wished them ill. The next step in the chain wasn’t taken and the same is true for the huge + vast majority of the 80+ million gun owners in this country.
Another thing to consider, the type of person who goes berzerk is generally younger and fitter than his potential victims. He’s almost as lethal with a knife, axe, or baseball bat. Disarming the populace means you disadvantage the victims more than the perpetrators.
Pete,
You voice all the traditional arguments on one side of the debate. There are a whole slew of others, however. for the other side.
You cite the young volatile fellow apt to go berserck. Well, a knife is less likely to be used from a distance, so the potential victim has more opportunity to elude and defend.
And so on.
My ideal will always be to see people settle scores with words, not violence. As long as that ideal is not possible, I want to see us at least moving in the right direction to make gun duels at high noon the less likely prospect.
Well they are pretty rare right now. There is a macho mind set among some young urban african-american males. Unfortunately they are armed as a consequence of defending their drug businesses, so gun play is part of their world.
Kritter and Gray really miss the point. If the protection was for the Milita then the last part would have said “the right of the MILITA to keep and bear arms…”. Also, please note this would have been the first time anyone gave thought to protecting the army’s right to have guns by mentioning this in the constitution.
If the time for private ownership of guns has passed, change the constitution instead of relying on activist judges.
E. Zach Lee
While the gun grabbing politicians and other 2nd amendment foes cry loud and long that ‘more guns means more crime,’ the facts reveal that just the opposite is true.
The city of New York for example, where they have strict anti-gun laws, has a murder rate that’s double that of the rest of the state. Despite strict gun control, Chicago was the murder capital of the United States in 2003. In Philadelphia, the city of brotherly love where anti-gun politicians are calling for more strict anti-gun laws for the entire state, their murder rate was 7 times higher than the rest of Pennsylvania. And finally, in Washington, D.C. where they have the most restrictive gun laws in the entire country (where people can’t even own pepper spray without registering it), they were the murder capital of the United States – up until recently.
So who leads the nation in murders now you might wonder? Mayor Ray Nagin’s city of New Orleans is now the murder capital of the United States, according to a recent news report. The article was focused on the fact that the violence has grown in New Orleans in the 19 months since Hurricane Katrina hit, even though the population itself is only half of what it was before the storm. This reality has caused the number of people applying for permits to carry concealed firearms to double. Even with only half the population and State Police and National Guard units patrolling some streets, it’s still managed to take the shameful title of murder capital away from D.C.
And just who is it that are applying for permits to carry firearms? They are law-abiding citizens made up of doctors, lawyers, construction workers and soccer moms. They see the possible threat and are getting themselves better prepared to meet it face to face should the need ever arise.
Those who want to restrict firearms ownership by law-abiding citizens are constantly calling for new gun laws to be written, yet they’re naïve if they think that criminals will ever obey those laws or turn in their weapons if they were suddenly banned by additional legislation. There are at least 20,000 firearms related laws out there already, but the laws and rules will never apply to the criminals because they will never follow them. They’re criminals. Breaking the law is what they do, it’s pretty much their job. The only thing to be accomplished by enacting gun laws that prohibited firearm’s ownership by law-abiding citizens is that the new laws would make instant criminals out of the law-abiding citizens who refuse to turn over their guns, and potential victims of those who did. A by-product to such foolish mandates would be that it’d give thugs, bullies, and criminals the advantage by allowing them as lawbreakers, to remain armed, for as we’ve established, they do not and will not obey our laws.
“False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils, except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. — {Thomas Jefferson’s “Commonplace Book,” 1774-1776, quoting 18th century criminologist Cesare Beccaria in “On Crimes and Punishment”, 1764.}
“Firearms stand next in importance to the Constitution itself. They are the American people’s liberty, teeth and keystone under independence. The church, the plow, the prairie wagon and citizens’ firearms are indelibly related. From the hour the pilgrims landed to the present day, events, occurrences and tendencies prove that, to ensure peace, security and happiness, the rifle and pistol are equally indispensable. Every corner of this land knows firearms, and more than 99 and 99/100 percent of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms anywhere and everywhere restrains evil influence. They deserve a place of honor with all that’s good. When firearms go, all goes. We need them every hour.” {George Washington. When addressing the second session of the First U.S. Congress.}
“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the Press, or the rights of Conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms;…” {Samuel Adams, Debates & Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87 February 6, 1788.}
“I am thus far a Quaker, that I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation: but unless the whole will, the matter ends, and I take up my musket and thank heaven he has put it in my power.â€? {Signed: A LOVER OF PEACE [Thomas Paine] “Thoughts on Defensive Warâ€? – Pennsylvania Magazine – July, 1775.}