Tuesday, March 18, 2008

Supreme Court Hears 2nd Amendment Case

Today the United States Supreme Court will hear oral arguments in a case that goes to the heart of the 2nd Amendment to the United States Constitution. The essential issue before the Court is whether the 2nd Amendment provides an individual the right to keep and bear arms and whether the government (in this case, the city of Washington D.C.) can severely restrict the type of arms (i.e. handguns) that can be owned by citizens.

I have my own thoughts on the 2nd Amendment and gun control legislation (see if you can guess where I stand...) and I could probably write fairly extensively on those thoughts. Instead, I wanted to post just a few brief (well, brief-ish) notes about the issues.

Obviously, before any opinion can be reached, the key starting point must be the text of the Constitution itself. Sadly, far too many people think that they know what various provisions of the Constitution say without actually reading the full language. So here is the 2nd Amendment to the United States Constitution (all 27 words):
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.

So what exactly does the 2nd Amendment mean? That is the issue before the U.S. Supreme Court today.

All too often, when people talk or think about the 2nd Amendment, they quote the second clause of the Amendment without regard to the first clause. However, ignoring the first clause is a flawed way of reading the text of the Amendment; after all, if the first clause has no meaning, then why was it included? It is instructive to note that of the Bill of Rights, only the 2nd Amendment includes a preamble or explanatory language; all of the other Amendments in the Bill of Rights simply enumerate what laws cannot be passed or rights cannot be infringed. Thus, the first clause of the 2nd Amendment must mean something.

And if the first clause does not mean anything, then what precisely does the second clause itself really mean? After all, it says that the right "to keep and bear arms, shall not be infringed". Does that mean that laws prohibiting assault rifles (machine guns) are unconstitutional? Does that mean that laws prohibiting convicted felons from owning guns are unconstitutional? Does that mean that laws limiting access to high explosives are unconstitutional? Does that mean that laws prohibiting carrying a gun into a school are unconstitutional? Do we really want a society where people walk around "packing heat"?

I think that it is also worth thinking about the 2nd Amendment with some degree of temporal context that is not as relevant for other provisions of the Constitution. For example, speech is speech and religion is religion, whether in 1791 or 2008. But the weapons of 2008 bear little resemblance to the weapons with which the Founding Fathers were familiar. Do you think that George Washington or Thomas Jefferson could even contemplate an automatic pistol that holds 18 armor-piercing bullets with a rate of fire of 25 rounds per minute and an effective range in excess of 100 feet, let alone an AK-47 , Uzi, MAC-10, night-vision scope, laser targeting, rocket propelled grenade, or Stinger anti-aircraft missile? Compare today's guns to those available when the 2nd Amendment was written, when a soldier had to manually load each round into his gun (don't forget about adding black powder) and then shoot a small round lead bullet (that certainly wasn't going to penetrate Kevlar body armor) for a fairly short distance without too much accuracy. In other words, the world has changed and the 2nd Amendment has not. It is also worth noting that the meaning of "cruel and unusual punishments" has changed with time (no more drawing and quartering, hanging, or beheading), so why shouldn't the meaning of "keep and bear arms" change with the times, as well?

There really appear to be two things driving much of the anti-gun control rhetoric (other than blind allegiance to the 2nd Amendment): protection from criminals and protection from government. I want to address these (briefly) in reverse order.

Some people have argued that the government should not "take away" their guns because then the government could "take over" (this appears to be one of those black helicopter/new world order sort of fears). First, does anyone really believe that our government (which, let's face it, can barely manage to keep the government semi-functional) really intends some kind of coup to destroy "freedom" (although I might argue that the Bush administration, with programs like warrantless wiretapping and imprisonment of American citizens as "enemy combatants" does have some eerie similarities to some of these fears)? And, assuming for a moment that such a plan was in the works, does anyone really believe that individual gun owners will be able to stop M1 tanks, F-18s, Blackhawk helicopters, nuclear submarines and aircraft carriers, Predator drones, and soldiers as well-trained and well-equipped as ours?

As to public safety and the right of people to defend themselves in their homes, the right to have a weapon does seem like a good idea. We've all heard the refrain that if the government takes away our guns, only criminals will have guns. But, the last time I checked, the police had guns too. Moreover, if we put an end to the availability of guns (even just handguns, I suppose), then, after a time, it will become more and more difficult for criminals to get those guns. Just look at how little criminal gun violence exists in other developed countries that do have stricter gun control laws. And don't forget the number of children who die each year playing with the guns that their parents purchased to protect their home. The guns may have protected the homes from burglars, but they certainly did not protect the families from innocent and curious children.

Personally, I think that tighter government regulation of guns (together with efforts to get handguns out of the hands of criminals) will do far more to protect me and my family than would owning a handgun myself.

Well, those are just a few of my thoughts on the subject. Now, it all appears to be in the hands of the Supreme Court. Unfortunately, I don't have high expectations.

For some additional information, please see "High Court Starts Case Challenging D.C. Gun Ban" by Nina Totenberg (NPR's legal affairs reporter).

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