Sunday, June 29, 2008

Lock, Stock, and a Smokin' Supreme Court Decision

It is incredible how much controversy a single, badly constructed sentence can create. Take, for example, the Second Amendment.
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.

Just what the hell does that mean? Does it mean that the people have a right to bear arms individually? Or does it simply mean that the states may establish militias?
According to the majority of the Supreme Court, the first part ("A well regulated militia, being necessary to the security of a free State") doesn't mean anything, it just adds flavor. This seems unlikely.
The amendment was written when every capable man was expected to be a member of a militia, and furnish his own fire-arms. This is why the amendment says "the people" rather than "militia members", the two were then interchangeable. What the amendment states is that a man should have a gun so that he may be a member of a state militia.
One question is, why are we parsing these words, the whole thing seems pretty archaic. We no longer have universal militias, and we don't expect a man to bring his own gun to be in a state militia. Things were different then... for example, can you imagine a concealed fire-arm in the time of the founding fathers?
So, I think the Supreme Court majority is wrong. The Constitution does not permit an individual right to bear arms, not really. But the decision doesn't really bother me. Mark Kleiman's full post on the subject:
Now that the Supreme Court has struck down the DC gun ban, how much should we expect the Washington homicide rate to go up as a result?


There's simply no evidence that keeping guns out of the hands of those currently eligible to own them under Federal law (adults with no felony convictions, no domestic-violence misdemeanors or restraining orders, and no history of involuntary commitment for mental illness) reduces the level of criminal violence. Nor is there evidence that allowing anyone who can pass a background check and a gun-safety course to carry a concealed weapon increases the level of criminal violence. All that matters is keeping guns away from people who demonstrably shouldn't have them. Present law does that, but the gun lobby has done many things to make that law impossible to enforce.

With any luck, taking the "gun confiscation" card out of the political pack might actually reduce the fervor of the opposition the NRA can whip up to sensible measures such as requiring background checks for gun sales by private individuals (the current rule that requires them only for purchases from gun dealers), computerizing data on which dealers are selling the guns that get used in crimes, and developing and deploying technology that would allow police to identify, from a bullet or a shell casing found at a crime scene, when, to whom, and by whom the gun that produced that metal was lawfully transferred.

That won't satisfy the people who think that guns are icky and who want to inconvenience gun owners as much as possible. But that was never a legitimate object of public policy.

Footnote Even if local gun ordinances were useful, the Supreme Court decision leaves most of them in place. The DC ban made it a crime to have an unregistered firearm, and prohibited registration of any handgun. A DC resident could have a long gun at home, but only disassembled or with a trigger lock, and there was no exception for self-defense, though there were other enumerated exceptions: if the text were read literally, it was a crime under DC law to remove the trigger lock from your rifle to confront a home invader. No, I'm not making this up, though both the District and Justice Breyer assert that the statute should be read to include the self-defense exception that its text omits.

Justice Scalia went out of his way to say that anything less drastic might well pass muster.

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Justice Breyer, in his closely-reasoned dissent, purports to carry out an "interest-balancing" test between the citizen's interest in self-defense and the District's interest in crime control. But nowhere in his account does he cite a single study showing that a local ban on private handgun ownership actually prevents crime, for the excellent reason that no such study exists.

Basically, the problem is not that we don't have enough gun control, merely that it is not well-enforced. This seems right to me. the only suspect part is the idea that this ruling will defuse the gun issue for the next election. This could be partly true, at least of the more moderate gun enthusiasts. On the other hand, there are lots of people in America who think the UN is going to go door to door to confiscate guns. To loons like these, the ruling probably won't have an effect.
I have previously made clear my antipathy toward the conservatives of the court, but I'm not too angry about this call. They aren't the only ones who think that the constitution provides an individual right to bear arms. Barack Obama, a constitutional law professor before he was a senator, has said the same thing, and qualified it by saying this right must be regulated for reasons of safety. There's nothing in the Supreme Court's majority opinion that would contradict this position.

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