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)
SECOND AMENDMENT, RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS, MILITIA, DISTRICT OF COLUMBIA, GUN BAN, HANDGUNS
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]
and
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:
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