November 21, 2007

"Apt Natural - I Have a Gub"

Hatched by Dafydd

Inveterate (or invertibrate) movie-goers will of course recognize the title immediately, coming from one of the first crime "mockumentaries" ever made.

So what can we expect as the Supremes warm up to the great gun-rights debate next year?

The decision itself will hinge on one fundamental question that has been controversial since the early 20th century, but was fairly commonly held, I believe, prior to 1900: Does the Second Amendment protect the gun rights of each individual legal resident -- or does it only protect the "rights" of states to have National Guard units?

(States do not have "rights," of course; only powers, privileges, and immunities. But gun prohibitionists are forced to use the word "rights," because that's what the Second Amendment uses, and they must match.)

All the blather about constitutional amendments being outmoded won't make a dent on the court -- either side; everything will hinge on what the words actually meant when they were written and what they mean today. The complete text of the amendment reads:

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.

Yes, I know; it's overpunctuated by today's standards. But it was written in 1789, and different rules for punctuation applied.

Clearly, when the Founders ratified this amendment two years later, they envisioned a national militia in place of a standing army (they were down on permanent armies making permanent war).

The idea was that if we were attacked, word would go out to every hamlet and town (or "every omlet in town," as I used to think), and all the Minutemen would drop their scythes -- or their printing presses, though they'd better step nimbly out of the way if they didn't want to lose a toe or two -- grab their "Kentucky" long rifles (made in Pennsylvania), and band together into an unbreakable wall of national defense.

Obviously, we don't do things like that anymore... so how should we interpret the amendment now?

Those of us who believe in gun rights argue that with the rise in urban residency and the increased firepower of criminals, individuals still need private arms in order to "establish justice, insure domestic tranquility, provide for the common defense, [and] promote the general welfare." We argue that crime statistics, particularly those by Professor John Lott, demonstrate that an armed populace has less crime, not more, without any measurable increase in accidental gun deaths or injuries.

Those who support gun prohibition hang their hats on the first four words, arguing that the original purpose -- the citizen's militia that took the place of a standing army -- no longer exists, and the only corresponding extant entity (since the Dick Act, a.k.a. the Militia Act of 1903) is the National Guard (divided into state commands).

Therefore, the prohibitionists will argue, the rights "granted" by the amendment devolve upon the various states, which control the National Guards when not activated by the federal government.

I find this argument untenable for that very reason: Passing lightly over the idea of states having "rights," how can states possess the constitutional right to "keep and bear arms," if in the same breath we agree that D.C. can simply federalize those arms (and the folks keeping and bearing them), thus removing them from state control? It's utterly contradictory.

Ergo, either the amendment means nothing -- or else it means that the rights granted protected adhere only in "the people," as the words themselves make clear. In all other uses in the Constitution, "the people" translates to each individual person.

(Fundamental rights are not "granted" by the government, of course, but by "Nature and Nature's God." Governments can only protect them -- or violate them.)

Note that the Founders had no difficulty writing "the states" when they meant the states, as for example in the Tenth Amendment, which explicitly distinguishes between the states and the people:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

I believe any fair-minded reading of the Second will lead a judge to agree that "the right of the people" in that amendment means the same as the exact, same phrase in the Fourth Amendment: an individual right held by each individual person. Thus, I believe that we can count on the four fair-minded judges, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, to vote to uphold the circus-court ruling finding the D.C. gun ban "unreasonable and unconstitutional."

I likewise believe, based upon their well-enunciated constitutional gestalt, that we can rely upon Justices Ruth Bader Ginsburg, Stephen Breyer, and David Souter to vote to restore the gun ban.

As usual, Justice Anthony Kennedy will be the National Enigma. But (be sure you're sitting down), I consider Justice John Paul Stevens to be a wild card... he might actually side with gun owners, basing his decision upon the second-amendment analysis of some liberal con-law professors, of which the most important are Lawrence Tribe and Alan Dershowitz, both of Harvard.

If I had to guess, I would expect that the Court would vote to confirm the decision of the D.C. Circus (overturning the Washington D.C. gun ban) by 6-3; I have a hard time believing that Justice Kennedy would vote against a position on such a controversial issue to which both Roberts and Stevens agreed.

On the political front, I'm not sure how much this will affect the presidential election. I disagree with Glenn Reynolds, who wrote:

This is probably bad for Democrats, given that most Americans believe they have some sort of right to arms under the Constitution.

It's also probably bad for Rudy Giuliani and Mitt Romney, who have generally been less supportive of gun rights than the other GOP contenders.

First, regardless of positions in the past, both Giuliani and Romney have rushed to get out in front of this case -- on the side of the angels. Rudy Giuliani:

Rudy Giuliani made the following statement today regarding the Supreme Court’s decision to review the Court of Appeals ruling in Parker v. District of Columbia:

"I strongly believe that Judge Silberman’s decision deserves to be upheld by the Supreme Court. The Parker decision is an excellent example of a judge looking to find the meaning of the words in the Constitution, not what he would like them to mean."

Mitt Romney:

Today, Governor Mitt Romney issued the following statement on the U.S. Supreme Court's decision to review District of Columbia v. Heller:

"It is my hope that the Supreme Court will reaffirm the individual right to keep and bear arms as enshrined in the Bill of Rights and protect law abiding gun owners everywhere. To further guard this fundamental liberty, as President, I will take care to appoint judges who will not legislate from the bench but will instead strictly interpret the Constitution."

Second, the great Democratic gun-control debate was in the 1990s... ancient history, as far as most voters are concerned. Except for some diehards in ultra-liberal districts or states (e.g., Sen. Chuck Schumer, D-NY, 100%), the Democrats have pretty much dropped gun control from their electoral lexicon...

Sen. Hillary Clinton (D-Carpetbag, 95%), who was a loud gun prohibitionist as recently as 1999-2000, nowadays barely mentions the topic. The closest I found was this April 2007 snippet:

"You have to balance the Second Amendment rights against keeping guns out of the hands of criminals and people who are unstable -- and that has always been what everyone I know has been seeking to accomplish," Senator Clinton said. "Maybe this tragic incident will get us to think about how to get back to that balance."

This hardly sounds like a response that would satisfy Rosie O'Donnell.

I like this piece, by the bye: The candidates were each interviewed a week after the Virginia Tech shootings; if ever there were a time to smoke out gun prohibitionists, that would have been it. Here is what Sen. Barack Obama (D-IL, 95%) said:

While Obama suggested there may be a need for restrictions on so-called semiautomatic guns, he contends Democrats must steer clear of alienating "lawful" gun owners. "I'm a strong believer in the rights of hunters and sportsmen to have firearms. I'm a believer in homeowners having a firearm to protect their home and their family," Obama said. "It's hard for me to find a rationale for having a 17-clip semiautomatic."

(I must confess puzzlement about Obama's 17-clip semiautomatic; I don't think I would buy one -- those "clips" must stick out like quills on a porcupine -- but I'd sure love to hold one in my hands... assuming I could find the grip hidden among the antenna-farm of clips.)

Finally, we have John Edwards; he mentions hunting but not self-defense... but he doesn't rule it out, either; he simply ignores that reason for owning a gun:

"I believe in the Second Amendment and I think it's important for hunters rights to be protected. It's part of my culture because of the way I grew up," Edwards said during a news conference Friday night in Des Moines. "But I don't think you need an AK-47 to hunt...There's some weapons that are not necessary for sportsmen and hunters."

(I'm sure that Rep. Dennis Kucinich, D-OH, 100%, Sen. Chris Dodd, D-CT, 95%, and Gov. Bill Richardson all favor heavy-handed gun control; but really, who cares? They're about as likely to be elected president as "Mother" Sheehan.)

Regardless of the actual beliefs of the Democratic front runners, and regardless of what they would really do if they got into office, none denies an individual Second-Amendment right to keep and bear arms; and Obama openly affirms it.

Thus, I just don't see this issue cutting significantly against the Democrats: Anybody who believes that they're secretly in favor of gun prohibition (as I believe) is almost certainly already in the GOP camp for 2008. So don't look for gun rights to tip the scales of the presidential race.

Nevertheless, if the case is adjudicated as I expect, it will be a stunning and wonderful day for civil liberties in America; and if it goes the opposite way, it will be a black mark we shall never live down. And even if there is no direct affect on the presidential race, the case should at least reopen the national conversation on individual rights vs. State power -- which should definitely benefit Republicans downticket.

Hatched by Dafydd on this day, November 21, 2007, at the time of 5:27 PM

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The following hissed in response by: Bookworm

Great post. Are you sure you're not a lawyer? My only quibble, if you could call it that, is that you said, and I read it with my own eyes, that the Founders, in their great wisdom, working with rules from the 1780s, overpunctuated. To which, I say, Never!

Happy Thanksgiving!

The above hissed in response by: Bookworm [TypeKey Profile Page] at November 21, 2007 5:46 PM

The following hissed in response by: nk

(Fundamental rights are not "granted" by the government, of course, but by "Nature and Nature's God." Governments can only protect them -- or violate them.)

Heh! Good one, Dafydd.

Seriously, this is not a conservative vs. liberal issue. It's a statist vs. libertarian issue. And I agree with you about Stevens. But I have the feeling that he (and maybe Thomas) may be the sole dissenter in an opinion which says "oh yes, the Second Amendment gives you a right to keep and bear arms but it's not an undue burden to allow you to only have rifles and shotguns which are disassembled and locked in their cases in your home".

The above hissed in response by: nk [TypeKey Profile Page] at November 21, 2007 8:21 PM

The following hissed in response by: hunter

This is the kind of analysis that makes this blog one of the gems of the blogosphere. Thank you.
And Happy Thanksgiving to you and yours.

The above hissed in response by: hunter [TypeKey Profile Page] at November 22, 2007 5:33 AM

The following hissed in response by: Geoman

Yes, excellent.

Really, any plain reading of the text indicates that the right to bear arms is an individual right. The first part of the statement only provides a justification for that right - why bearing arms by individuals is a good thing (a militia being necessary).

I would add something to your analyses. The founding father's fervid fear was not solely that a militia would protect the U.S. from invasion from the outside, but said militia would protect the American people from an overreaching Federal government. They imagined that subsequent revolutions might even be necessary to overthrow future tyrannies, and that simply having an armed populace (that could forma local militia) might discourage such tyrannies from forming in the first place.

Most of the constitution was built on this basis of controlling and limiting government power over individuals. The second amendment was intended to be the guarantee of all the other rights in the constitution.

I also find that the concept of making a law against guns reduces criminality - wouldn't someone prepared to rob a bank, home, or individual also be prepared to break the law in owning a gun?

The above hissed in response by: Geoman [TypeKey Profile Page] at November 22, 2007 11:17 AM

The following hissed in response by: John Anderson

"...if the case is adjudicated as I expect"

Er, `hope` perhaps? Worst case, give the appearance of following Miller (while actually turning it on its head) by finding that since handguns are indeed issued as individual weapons by military (and para-military, eg police/militia) a complete ban cannot be enacted by Federal entities. Whether that would include DC I am not sure - probably not. This would assert the individual "right", yet allow [DC or other] non-Federal governments to ban anything at all.

The above hissed in response by: John Anderson [TypeKey Profile Page] at November 22, 2007 3:11 PM

The following hissed in response by: Dick E

100% agreed, Dafydd. Furthermore:

Why is it that for nearly everything written in the past we seek to know the writer’s intent, but when it comes to the Constitution it’s OK to consider original intent irrelevant compared to “proper” interpretation in light of current circumstances?

When you’re reading something written by someone else you can’t blithely ignore the clear meaning of their words.

The Framers’ intent is clear: When they wrote the Second Amendment, individual gun ownership was common, and there is no evidence that they intended to change the status quo.

And if the Second Amendment was intended merely to provide for a militia-in-readiness, why weren’t people who were not potential militia members prohibited from owning guns? (I’m not sure what all the non-militia-eligible categories were, but they probably included women, the disabled, children, and maybe Indians and some foreigners.)

The above hissed in response by: Dick E [TypeKey Profile Page] at November 22, 2007 11:52 PM

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