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March 21, 2008

DC v Heller and the Future of Gun Control

The Supreme Court just hear arguments in a case that potentially has important implications for the Second Amendment and gun control. It's the first time the Court has taken on meaningful issues on this topic in almost 70 years and argument actually seemed to focus substantive issues rather than a technical resolution (relating to DC not being a state but under the oversight of the Federal Govt).

As this post details, the case has a variety of briefs with some surprises in terms of how positions fall out. My comment on this case will be limited to Vice President Cheney signing on to a brief opposing the ban.

Normally, interests of the federal govt are represented by the Solicitor General, who argued here that there is a personal right of gun ownership but that the DC regulations were overall rational  (because his job is to defend existing federal gun control laws...) Cheney signed on to a brief with members of Congress urging the Court to strike down DC's law, which includes a ban on handguns in the nation's capital.

So the Bush administration has scaled back many personal freedoms arguing that they need tools to fight their ill-conceived  war on terror. At every chance, they expand powers of the federal government - to wiretap, search, etc. But the one freedom Cheney defends is the right to have handguns in the nation's capital, even though it is well known that Al Qaida practices political assassinations in urban areas?

Let's be clear that this comment does not suggest that terrorists will obey the law, or that the law against handguns will prevent terrorists using them. Rather, the law against guns can be an important tool to disrupt terrorists and terrorist plots.  If law enforcement got wind of something, searched and found weapons, the current law would allow them to make arrests, detain and gather other information. If there's no gun law, then there may or may not be other grounds to hold suspects, but make no mistake that the law is a potentially important tool - or at least as useful as a very, very long list of "tools" the administration has wanted.

[As background, see mar Hamm's Terrorism as Crime, which argues that terrorists commit any number of more minor, everyday crimes in establishing themselves, their identities and further larger plots. These crimes can frequently provide the justification for arrests, just as mafia types get caught up on tax evasion - not the charge we'd really like to bring, but at least it gets them off the street. My StopViolence site has some chapter excerpts; there's an earlier version of this he did for the National Institute of Justice called Crimes by Terrorist Groups (abstract or document/pdf).]

For those interested in the case, here's the prview from Cornell Law School (link at end goes to the rest of the preview)

District of Columbia v. Heller (07-290)
The District of Columbia bans possession of handguns, and bans anyone from carrying a handgun or other deadly or dangerous weapon without a license within its borders (the "Gun Ban"). It also requires that any firearms which may be kept within the District, such as rifles, be kept either disassembled or with a trigger lock. These are some of the most restrictive gun laws in the nation. Joseph Heller claims these laws violate his Second Amendment right to "keep and bear Arms." The Supreme Court has not taken a Second Amendment case since 1939, and it has never decided whether the Second Amendment confers a right to bear arms upon individuals or only upon the militias it refers to in its opening clause. In the intervening 69 years, the federal and state governments have passed many laws regulating and restricting the ownership and use of guns. Should the Supreme Court uphold the D.C. Circuit's invalidation of the Gun Ban, it could have a substantial impact on these gun laws and will almost certainly lead to more litigation as gun rights advocates challenge those laws as violating the Second Amendment. If the  Court finds that the Gun Ban is constitutional, it will strengthen the ability of government to regulate gun ownership, and may result in more restrictive gun laws across the country.  (Continue reading this preview via Cornell Law...) 

You can read the transcript of oral argument via the Supreme Court website or Oyez has an audio version (listen to it on the web or download an mp3) along with the transcript.

My favorite quotes include Mr Dellinger (arguming in support of DC's law):

this right of personal liberty, the Blackstonian right, is an unregulated right to whatever arm, wherever kept, however you want to store it, and for the purposes an individual decides, that is a libertarian ideal. It's not the text of the Second Amendment, which is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license [emphasis added]


If you're going to protect the kind of right that is -- that is being spoken of here, different from the militia right, the plain language to do it would be "Congress or the States shall pass no law abridging the right of any person to possess weapons for personal use." And that's not the right that is created here. 

As I noted above, Cheney split with the federal government in this case; public health professionals are on both sides; academics are on both sides; women are on both sides; former Justice Dept officials are on both sides; you get the idea:


District of Columbia v Heller - Overview of selected briefs

DC = Petitioner

Heller = Respondent

Brief for the United States of America as Amicus Curiae

Brief for Violence Policy Center and the Police Chiefs for the Cities of Los Angeles, Minneapolis, and Seattle

Brief of District Attorneys as Amici Curiae in Support of Petitioners

Brief for New York, Hawaii, Maryland, Massachusetts, New Jersey, and Puerto Rico in Support of Petitioner

Brief for 55 Members of the United States Senate, the President of the U.S. Senate [Cheney], and 250 Members of the U.S. House of Representatives in Support of Respondent

Brief for the States of Texas, Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, Washington, West Virginia, and Wyoming in Support of Respondent

Brief for Members of Congress in Support of Reversal

Brief for Former Department of Justice Officials in Support of Petitoner

Brief of the American Bar Association

Brief for Former Senior Officials of the Department of Justice in Support of Respondent

Brief for Professors of Criminal Justice in Support of Petitioner

Brief for Professors of Linguistics and English Dennis E. Baron, Ph. D, Richard W. Bailey, Ph. D, and Jeffrey P. Kaplan in Support of Petitioner [Don't laugh - a great deal of the case centers around understanding the relationship between "well regulated militia" and "the right of the people to keep and bear arms"]

Brief for Criminologists, Social Scientists, Other Distinguished Scholars, and the Claremont Institute in Support of Respondent

Brief for Organizations and Scholars Correcting Myths and Misrepresentations Commonly Deployed by Opponents of an Individual-Right-Based Interpretation of the Second Amendment in Support of Respondent

Brief for Academics in Support of Respondent

Brief for Academics for the Second Amendment in Support of Respondent

Brief for the American Academy of Pediatrics, the Society for Adolescent Medicine, the Childrens Defense Fund, Women Against Gun Violence, and Youth Alive! in Support of Petitioner

Brief for the Association of American Physicians and Surgeons in Support of Respondent ["AAPS has long defended the practice of ethical medicine, and firearms serve an essential role against misuse of medicine by tyrannical governments for unethical goals."]

Brief for the National Network to End Domestic Violence et al. in Support of Petitioner [Women are killed by intimate partners more often than by any other category of killer. It is the leading cause of death  for African-American women aged 15-45 and the seventh leading cause of premature death for U.S. women overall. Intimate partner homicides make up 40 to 50 percent of all murders of women in the United States, [and that number excludes exlovers, which account for as much as 11% of intimate partner homicides of women] When a gun [is] in the house, an abused woman [is] 6 times more likely than other abused women to be killed."]

Brief for 126 Women State Legislatures and Academics in Support of Respondent

Brief for the Pink Pistols and Gays and Lesbians for Individual Liberty in Support of Respondent ["More anti-gay hate crimes occur in the home than in any other location, and there are significant practical limitations on the ability of the police to protect individuals against such violence."]

Brief for the the American Jewish Committee et al. in Support of Petitioner

Brief for Jews for the Preservation of Firearms Ownership in Support of Respondent

Brief of Brady Center to Prevent Gun Violence, et al. as Amici Curiae Supporting Petitioner

Brief of Nat’l Rifle Assoc. et al. as Amici Curiae in Support of Respondent

Brief of Congress of Racial Equality as Amicus Curiae in Support of Respondent

Brief of NAACP Legal Defense & Educational Fund, Inc. as Amicus Curiae in Support of Petitioner


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