NYTimes.com:
In a 2-to-1 decision, a panel of the court, the United States Court
of Appeals for the District of Columbia Circuit, ruled [D.C.'s 30-year-old handgun ban]
unconstitutional.
The Second Amendment says, “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.” The basic question in the case was whether the first clause limits the second one.
Most
federal appeals courts have said that the amendment, read as a whole,
protects only a collective right of the states to maintain militias —
in modern terms, the National Guard. But in yesterday’s decision, the
majority focused on the second clause, saying that the amendment
broadly protects the rights of individuals to own guns — an approach
that has been embraced by the Justice Department and by some
constitutional scholars.
I haven't read the opinion, so I don't know what the court based its decision on, but just as a guess I would say they probably were persuaded by recent scholarship around whether the adopters and ratifiers of the Second Amendment meant to create an individual right. This does create a real conflict among the Circuits with far-reaching consequences, so my guess also would be the Supreme Court takes the appeal.
In the short run, how does it affect things politically? There are a lot of happy NRA members tonight. They're potent in the GOP, but it's unclear to me whether it affects the national races. State Republican campaigns will latch onto it and beat the drum for a gun in every pocket.
From a policy standpoint, whew boy. Let's say it gets to the Supreme Court and is upheld. Ta da! New individual right for defense lawyers to litigate. It'll take years, maybe decades, to flesh out the contours of where the right to own a gun begins and ends. Does violence increase? Sure. Some ownership restrictions will undoubtedly be overturned, and there's a direct relationship between the number of guns people own and how many people get killed. How many? No clue. The important thing is, a lot of lawyers will get paid.
If the Supreme Court overrules it or refuses to hear the appeal, we're back to square one, with the exception of D.C. in the latter case. Can D.C. get more violent? Stay tuned.
Long term, the politics seem more interesting if the Court upholds the decision. First of all, having the only right they care about validated might take some of the steam out of the NRA. On the other hand, all those cases to litigate - it could be they get new life out of them. The difficulty there is the NRA may find itself on the same side as the ACLU a little too much. The gun-rights cases being litigated would occur in the criminal context, with all the gruesome, propaganda-ready details that involves. Say, a guy with a history of domestic violence gets a gun because the requirement of having a clean record is held unconstitutional. Then he goes and kills his ex and her new boyfriend and kids. Then there is the question of why the Constitution stops at the courthouse door - why can't people bring guns to court? Onto trains and planes? And there is the question of what we mean by a gun - fully automatic weapons? They're too good at defending yourself with? Constitutionally, you can no more ban a machine gun under the Second Amendment than you could ban a really fast printing press under the First Amendment, they'll say. And so on. This may make it a tough sell.
Personally, I think the NRA are a bunch of stupid, extremist wackos who need to get a life. Anyone who thinks seriously that the Second Amendment serves as any kind of guarantee the government will not behave in a liberty-destroying manner is fucking crazy. The gun owners I know are either genial hunting sorts who have been sadly hypnotized by all the propaganda, or they're assholes with handguns. People who carry a handgun concealed are usually just looking for an excuse to use it. They like to tell stories of brandishing it, usually in traffic, to demonstrate their toughness.
What to do about the NRA nutbars and gun violence generally? Fuck if I know. Americans like violence and they like having the means to kill each other at their disposal. Our culture glorifies gun violence (in the most unrealistic manner possible) and people love it. Sure, they make sympathetic noises when some kid gets killed accidentally, but basically the cult of the gun comprises part of the general societal attitude that life is tough, so you better be tougher. Underlying all of it is racism, as suburban whites load up to defend themselves from people of various shades of brown, and those same suburbanites can't get too worked up if a sea of guns sloshing around inner cities leads to a few less scary dark people.
So, bottom line, however this case ends up, I can't see how it will make things better, but it has the potential to make things worse.
Yippee for nihilism!
Update: The revised article has more detail on the reasoning. Turns out it wasn't historical evidence at all, just good old fashioned conservative judicial activism:
The
majority in yesterday’s decision pointed to a 1998 dissent in which “at
least three current members (and one former member) of the Supreme
Court have read ‘bear arms’ in the Second Amendment to have meaning
beyond mere soldiering.” They were former Chief Justice William H.
Rehnquist, who died in 2005, and Justices Ruth Bader Ginsburg, Antonin
Scalia and David H. Souter.
Here's a really interesting passage:
In a 1996 dissent while serving on the federal appeals court in
Philadelphia, Judge Samuel A. Alito Jr., now a justice of the Supreme
Court, wrote that he would have struck down a federal law regulating
the possession of machine guns under the commerce clause of the
Constitution.
Alito would bar the feds from using the commerce clause to regulate machine guns, which means the feds would lack almost all power to regulate them. Awesome. I am investing in body armor stocks if the Court grants cert.
But wait, there's more!
“It seems passing strange,” Judge Laurence H. Silberman wrote for the
majority, “that the able lawyers and statesmen in the First Congress
(including James Madison) would have expressed a sole concern for state
militias with the language of the Second Amendment. Surely there was a
more direct locution, such as ‘Congress shall make no law disarming the
state militias’ or ‘states have a right to a well-regulated militia.’"
Well, your Honor, you convinced me. If there is one argument that cannot be beat, it's that the judge thinks a constitutional provision should have been written differently if it were to be interpreted any way other than what the judge prefers. Tell me, Judge Silberman, what does the Ninth Amendment mean? Hint: Start with what you want it to mean, then work backwards. This technique works great for much of the Constitution, since the language is as opaque as any results-oriented jurist could desire.
But wait! Judge Silberman doesn't want you to think it's the Wild West. He'll cabin this new right that he's created, by pulling a few limits out of the same orifice he drew his holding from:
Judge Silberman, writing for the majority yesterday, said the
decision’s reasoning still allowed “reasonable restrictions” on the
ownership and use of guns, and he gave some examples. It is “presumably
reasonable,” he wrote, to prohibit drunks from carrying weapons and to
ban guns in churches and polling places. Judge Thomas B. Griffith
joined the majority decision.
Judge Silberman concluded that the Second Amendment protects an
individual right just as the First Amendment protects free speech and
the Fourth Amendment bars unreasonable searches.
So the right to carry a gun is like the right to free speech, but if you're a drunk you can't carry a gun, says Judge Silberman. As far as I know, drunks still have the right to free speech, slurred though it may be. The right to possess a firearm is like the right to be free from unreasonable searches and seizures, but if you go into a polling place you can't carry a gun, says Judge Silberman. Why? You can't be searched for no reason if you go into a polling place. It is true that speech near polling places can be regulated, because it has a detrimental effect on the integrity of elections to have people yelling in your ear as you're trying to close the curtain on the voting booth. In what scenario is a concealed handgun intimidating? It's concealed!
Fortunately, this is what's called dicta, which is latin for bullshit. Dicta is not the law, it's the soft, brown padding the law comes packaged in. Judge Silberman throws out this dicta because he's very impressed with his own powers of cogitating, he's just invented a new right and he's on a roll. If his holding prevails, it will be left to others to figure out the actual limits. Silberman's an artist, man, don't hold him back.
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