Right To Bear Arms

[Snowden]

Right To Bear Arms
By Linda Chavez

Washington, D.C., will become a safer place to live and work thanks to the U.S. Supreme Court ruling Thursday against the city's absolute ban on handguns. The Court ruled that the Second Amendment's guarantee of the right to bear arms is an individual right, not just one that permits states to maintain militias, striking down one of the nation's toughest anti-gun laws. As someone who lived in the District at the time the city imposed its ban 32 years ago, I say it's about time.

I bought my first gun in 1974 after my husband was mugged in broad daylight just blocks from the White House. My husband was picking up our 6-year-old son from school when a man approached him and demanded money. When my husband refused, the man picked up a two-by-four and hit him on the back of the head, knocking him to the ground.

The event traumatized all of us and sent me to a local gun shop to purchase a handgun. I properly registered the .357 Magnum, according to the District law in effect at the time, learned how to shoot it, and kept it safely in my home for the next two years.

But in 1976, the city changed its law, grandfathering in people like me who already owned guns, provided they bring their guns to a government building downtown to re-register them. By that time, I was pregnant with my second child. As the deadline approached, I tried a couple of times to stand in line to re-register the gun but gave up as the wait stretched into hours. On the final day, I went downtown again, gun in tow, only to see a line extending for blocks. As pregnant as I was, there was no way I could stand in line for several hours. So, I returned home, knowing my gun would be illegal if I kept it in my home.

For the next several years, I stored my gun in Virginia, where we owned a small cabin, to comply with the law. Ironically, there was no crime in the area where my cabin was located, so I had no need of the gun there. But I had several brushes with crime in D.C.

Soon after the gun ban went into effect, an intruder hid in my house one day in what was one of the most terrifying incidents in my life. I happened to see the man lurking near my staircase as I headed into the kitchen. I managed not to scream but continued walking away and quietly phoned the police. I confronted the intruder once I knew the cops were on the way. He acted as if I had somehow wronged him by calling the police but didn't stick around to explain to the authorities what he was doing in my house.

Around the same time, a serial rapist started attacking women in our neighborhood, including two women who lived within a block of my house. And even though I still owned a gun, I couldn't legally keep it nearby to protect myself. Police eventually caught the rapist, a teenager armed with a knife, but all of us in the neighborhood lived in fear for the weeks he was preying on victims.

Then, two years ago, I was again living in D.C. on Capitol Hill when I heard an awful racket through the walls of my townhouse. It sounded as if someone was being thrown down the stairs, with men shouting and doors slamming. When my husband rushed outside to see what was happening, he found our young neighbor visibly shaken. He had come home to find a man in his upstairs hallway, obviously burglarizing the house. Again, I wished I had my gun in D.C., but bringing it into the city would have made me a criminal.

These incidents were all near misses. Many other D.C. residents haven't been as lucky. They fall victim to violent crimes in their homes yet can't do anything to defend themselves.

The D.C. gun ban never made a dent in the city's gun crime; it still ranks among the most dangerous places in America. At least now, the Supreme Court has acknowledged the constitutional right of law-abiding citizens to protect their own lives when the police can't.


Linda Chavez

[Woodmonkey]

What's Next for Gun Control?

By ALEX ALTMAN 31 minutes ago

The U.S. Supreme Court's 5-4 decision overturning Washington, D.C.'s handgun ban is the biggest gun rights ruling since the Second Amendment was ratified in 1791. The Court had not waded into this divisive issue since 1939, when it declared, "We cannot say that the Second Amendment guarantees the right to keep and bear" arms. But on Thursday the Court broke its silence to do just that, ruling for the first time that the Constitution confers an individual right to gun ownership beyond providing for "a well regulated Militia," as the amendment states. The Constitution does not permit "the absolute prohibition of handguns held and used for self-defense in the home," Justice Antonin Scalia, the court's arch-conservative, wrote in the majority opinion.

Proponents of gun rights may rejoice at winning this heavyweight tussle, but their victory comes by way of a nuanced decision. The ruling, which affirms a federal appeals court decree, makes clear that individual ownership rights are limited. "It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose," Scalia wrote.

Gun-control advocates say the ruling's focus on gun bans safeguards reasonable gun restrictions from the flurry of litigation it will undoubtedly trigger. "The Court's decision indicated regulation of guns, as opposed to the banning of handguns, is entirely permissible," says Dennis Henigan, vice president for law and policy at the Brady Center to Prevent Gun Violence. "The ruling gives a constitutional green light to a wide range of gun restrictions." Scalia said the Court's decision "should not be taken to cast doubt" on many existing restrictions against gun possession, including handgun possession by felons and the mentally ill, possession in schools and government buildings and rules governing commercial arms sale. Says Henigan: "I don't think that there is any federal gun control law that's likely to be struck down."

Even if federal gun laws remain intact, gun-rights activists will likely invoke the Court's ruling at local and state levels. Mark Tushnet, a constitutional law professor at Harvard Law School, says he anticipates a "period of uncertainty" as lower courts wrestle with whether the ruling can be applied to their jurisdictions. Ultimately, he says, "the answer is going to be yes, but it's going to take one big case or a series of smaller ones to establish." Randy Barnett, a professor of legal theory at Georgetown University Law Center, notes that while Scalia's opinion "telegraphs" his belief that the ruling will apply to states, "that's not what this case is about. It's about gun bans, not [gun control] regulations." Neither expects that to deter pro-gun forces from using the Court's ruling as ammunition. Both Tushnet and Barnett agree that Chicago, which has banned gun ownership since 1982, is likely to be the setting for the next major gun rights battle. (Chicago mayor Richard Daley called the court's ruling "a very frightening decision" and vowed to quash challenges to the city's ordinance.)

At issue in the present case, District of Columbia v. Heller, was the city's ban prohibiting ownership of handguns that were unregistered as of 1976 - a statute that, by effectively nullifying possession, ranks among the nation's stiffest. Dick Anthony Heller, a security guard, filed suit against the district after it denied him permission to register, and thereby keep, a handgun intended for self-defense within his home. A D.C. federal appeals court supported Heller on the grounds that the city's ban violated his Second Amendment rights.

In tackling these thorny legal questions, the Supreme Court had to grapple with the Bill of Rights' most puzzling item. 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." Its confounding syntax aside, Scalia said the fact that the Amendment is framed in a military context is "unremarkable" given the era's martial climate. His argument, says Northwestern Law School professor John McGinnis, is rooted in the judicial philosophy of originalism: "When there really isn't clear precedent, you look at what this meant at the time," McGinnis says. "Scalia's point is that there's nothing to suggest [that arming state] militias exhausts the scope of the clause."

In one of two dissenting opinions, Justice John Paul Stevens called Scalia's argument "strained and unpersuasive." He also blistered the majority for its expansive reading of the Amendment's "ambiguous" text. "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia," Stevens wrote. "The Court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding."

Instead of rendering the Second Amendment a dormant law, the Court's ruling has given it life. "It is not the role of this Court to pronounce the Second Amendment extinct," Scalia wrote. That view aligns the Court's conservative wing with most current scholarly interpretations, says Barnett, the Georgetown professor. But despite finally affixing its imprimatur on a reading of the convoluted Amendment, the Court's ruling raises nearly as many questions as it settles. As Justice Stevens wrote, it "leaves for future cases the formidable task of defining the scope" of its impact.

The Source

[Scrappy]

This was a good interview explaining the nature of the ruling, and more exacting on what the dissenting opinions were about.

Q&A: D.C. Gun Ban Overturned; What's Next?

by Bill Chappell


“In theory, people can now go and ask for licenses. And they can't be turned down, unless the rejection is based on some reasonable criteria.”

Law professor Robert Weisberg



NPR.org, June 26, 2008 · The Supreme Court's ruling that the District of Columbia can't ban its residents from owning handguns has advocates on both sides of the gun-control issue scrambling to reshape their strategies. The 5-4 decision is the court's first ruling on gun ownership since 1939.

For insight on the case, we spoke to professor Robert Weisberg of Stanford Law School in California. A former Supreme Court clerk, Weisberg now heads the Stanford Criminal Justice Center.

What is your initial reaction to the court's decision to declare the District of Columbia's handgun ban unconstitutional?

I think the Supreme Court just created new job opportunities for constitutional law attorneys. But this ruling may be much narrower than it appears. The D.C. gun law was the most draconian in the country.

It was this extreme statute, saying that otherwise qualified people — an average innocent citizen who could pass a background check — under the D.C. ordinance, she would violate the law by keeping a handgun in her home.

That's a very draconian ban.

It was extreme enough that it was as if it were written by the NRA, to force the court to come out and say, "Oh my God, that's just going too far."

And yet, this case wasn't filed by an average citizen, but by a security guard, Dick Anthony Heller, who lives in a high-crime area.

He is an extremely sympathetic plaintiff — seemingly as qualified a gun owner as you can have. He was somebody who just barely fell outside the line of a police officer.

It was the perfect case to force the Supreme Court to say that maybe a legislature can go too far in restricting gun ownership. It was bound to happen.

But it's very hard to say whether this opinion would invalidate other less extreme laws.

The court's majority was explicit in limiting the reach of its opinion. It said it in no way limits legislatures from prohibiting gun possession by felons or severely mentally ill individuals, for example.

And a license requirement that is reasonable may be OK. The court doesn't say exactly what "reasonable" is. The ruling settled the big symbolic issue, but didn't settle most of the practical issues.

The court's ruling declares that Washington, D.C.'s handgun ban is not enforceable in its current state. Does that mean anyone can now buy and own a gun there?

Well, they still have to get licenses. The license requirement wasn't struck down. In theory, people can now go and ask for licenses. And they can't be turned down, unless the rejection is based on some reasonable criteria.

So, the city is likely to start implementing some criteria right away.

But it would not be legal for someone to just go out and buy and possess a handgun today, without at least going through the motions of getting a license, to give the district a chance to implement some criteria under the licensing law.

It's this funny thing, because right now, the licensing may be a formality, because there are no criteria. And the case seems to say that today, Mr. Heller should be able to walk into the licensing office and get a license.

So, in a certain sense, retaining the licensing is an empty formality. But presumably it won't be an empty formality, because the district will figure out some criteria it wants to apply.

The court had two dissenting opinions on the case, one by Justice Stephen Breyer and one by Justice John Paul Stevens. Do they give any indication of what might happen in future gun-control cases?

They're sort of complementary. The Stevens dissent is the general one. On historical grounds, it basically disagrees with the majority on whether the right to bear arms is collective or individual. Stevens' opinion says that history shows that the only real meaning of the right to bear arms was a kind of states' rights power to organize militias, not an individual right.

The Breyer dissent takes the majority to task on the level of scrutiny. Breyer is telling the majority, "You can't just declare a general individual right to bear arms, and then say that this statute falls."

Since the majority doesn't say that the right to bear arms is absolute, Breyer is saying to them, "You have to tell us by what criteria we determine when a gun ban is reasonable or not. You don't tell us that, and you never really examine this particular statute in any detail to see if it's reasonable or not."

So, Breyer is prompting a wider review of U.S. gun law?

Right, this is sort of a suggestion for future cases. He says the proper way to look at this is by an "interest-balancing" test.

If a jurisdiction can offer the courts an important and convincing enough policy reason for a certain gun restriction —particularly if, as in D.C., there may be an unusual exigency about violent crime, the courts might be obliged to uphold the law, in light of those special, local interests.

But he complains that the court was in such a rush to make its general declaration that it didn't take the district's specific arguments about the need for this particular gun ban seriously enough.

So, even though it's a dissent, it may be a clear signal to future courts about how to interpret the majority.

Would that also give other jurisdictions a signpost, a hint of how to write their own gun bans?

It might. But at the same time, the Scalia majority says it doesn't really like Breyer's standard, this "interest-balancing" thing. It thinks that that's too vague.

But I don't think you can really tell from the majority opinion what standard will be applied down the road, to more typical gun laws. I think the most important thing to note is the extreme nature of the D.C. gun statute.

And courts are going to have to not only decide how different other statutes are from this one; they're also going to have to evolve some criteria for evaluating those differences. And we just don't know yet.

The District of Columbia is not the only place trying to restrict handguns. What do you see happening in other cities and states?

Clearly, various plaintiffs and groups are now going to challenge lots of gun laws around the country. At the same time, lots of jurisdictions are going to defend their gun laws by laying out arguments about the special need that would support a particular ban in a particular place.

Washington's law was an absolute ban on handguns. I'm unaware of anything that extreme. It's the combination of, "you can't own a handgun at all," and for other, larger, guns, "you have to have them unloaded and trigger-locked, except in places of business."

There's a little uncertainty, though. The court left open the possibility that the trigger lock and unloading rule might be acceptable as a general matter, if exceptions were made where there was an argument for self-defense — for instance, someone who has been threatened, or who lives in a neighborhood where there have been violent break-ins.

The law could possibly be interpreted as having an exception to the trigger lock and unloading rule for those circumstances. The statute wasn't interpreted that way; it was treated as if there was no exception possible. So we don't know if a law with those restrictions that also allowed for certain exceptions for self-defense might be permissible.

What about the states that already have laws in place?

I think gun laws that are only slightly less restrictive than D.C.'s may be in trouble.

Technically speaking, all this can say is that this particular law is unconstitutional. And any law lacking any of the important draconian features of the D.C. law could conceivably be legitimate. But we just don't know yet.

— From a conversation that was condensed and edited.

What the Handgun Ruling Really Means : NPR