D.C.'s Gun Ban Is History (Updated)
The District of Columbia's ban on handguns is history because the Second Amendment guarantees an individual right to possess firearms and because throughout much of our history, "the American people have considered the handgun to be the quintessential self-defense weapon...," Supreme Court Justice Antonin Scalia writes today in an exhaustive and scathing defense of gun rights. "A complete prohibition of their use is invalid."
But Scalia says in today's 5-4 opinion tossing out Washington's gun ban that the idea of licensing handgun possession is fine and that the District is free to have such a regulatory scheme. "The Constitution leaves the District of Columbia a variety of tools for combating that problem [gun crime], including some measures regulating handguns," Scalia writes. "But what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."
Scalia and dissenting Justice Stephen Breyer agree that there is a place for regulation of gun ownership, but other than Scalia's vague assurances that the Court approves of existing restrictions on where guns may be possessed and who may possess them, the Court today gives precious little specific guidance about how strict a limit might prove constitutional.
The District will now have to come up with a new regulatory scheme for handguns, presumably focused on the licensing approach that Scalia assumes will take the place of the total ban that's been in effect since 1976.
Guns won't be sold in D.C. shops anytime soon; the D.C. Council and the mayor first have to come to agreement on new laws to replace the 1976 rules that the Supreme Court today invalidated.
In its first ruling in 70 years on the meaning of the Second Amendment, the Court decided that the Constitution guarantees an individual right to bear arms and is not merely a protection of state militias.
Scalia wrote the majority opinion; dissenters are Justices David Souter, Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens.
There is not a word in Scalia's 64-page opinion addressing the District's arguments in its defense of its law that it has a right to regulate guns differently because it is not a state; that is, that the city's unique place as a federal district exempts it from some of the constitutional rules addressed to states.
Only in Breyer's dissent is there an extensive discussion of the District's reasons for its decision to ban guns and of the unique urban ills that led the city to this extreme act. The ban, Breyer argues, "represents a permissible legislative response to a serious, indeed life-threatening, problem,...the presence of handguns in high-crime urban areas." Breyer looks back at gun control efforts in Boston, Philadelphia and New York in Colonial times to show that America's largest cities restricted the firing of guns.
The justices instead took this case as the opportunity to make historic and sweeping decisions about the nature and meaning of the Second Amendment.
"There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms," Scalia writes. But he immediately adds that just as the guarantee of free speech in the First Amendment is not absolute, so too is there a state role in regulating gun ownership.
Stevens, in his dissent, comes to the opposite conclusion, examining the historical record to argue that there is no evidence that the Founders intended to enshrine any individual right to self-defense with firearms in the Constitution. Calling Scalia's approach "strained and unpersuasive," Stevens says the Second Amendment "does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons."
In the majority ruling, Scalia says that while the Constitution indeed states that the right to bear arms is related to the purpose set forth in the Second Amendment--"a well-regulated militia being necessary to the security of a free state"--that is merely a preface that states one purpose of gun ownership, and the right extends to other purposes, such as self-defense and hunting. "The Second Amendment's prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia," Scalia writes. But quoting from Pennsylvania's Declaration of Rights in 1776, Scalia finds that there was a larger purpose to the right to bear arms: "the people have a right to bear arms for the defence of themselves, and the state . . . ."
Breyer in his dissent concedes that one purpose of the Second Amendment was "to help
assure citizens that they would have arms available for purposes of self-defense." But he says that was at best a secondary purpose to the protection of state militias.
Scalia and the majority quickly note that the right to bear arms is not absolute and that regulations on gun ownership have been held as constitutional over and over--including bans on certain types of weapons or by certain people (felons and the mentally ill, for example) and on possessing firearms in sensitive places such as schools and government buildings.
The District's ban on handguns, however, went way too far, the Court decided, because it banned an entire class of weapons that people rely on for self-defense.
Scalia's first defense of the individual right to bear arms is grammatical. A strong believer in the idea that the words of the Constitution should be read plainly, Scalia says that the existence of a preface that refers to state militias does not mean that that collective use of firearms is the only circumstance in which guns should be legal.
In a scathing dissent, Justice Stevens accuses Scalia of a bit of sophistry, saying that the prefatory words about the militia are the heart and soul of the Amendment and that there is therefore no right to bear arms other than for the defense of the nation.
Stevens pores through early American history to find examples of instances where the bearing of arms was meant exclusively to refer to military action. But to bear arms, Scalia retorts, "in no way connotes participation in a structured military organization," and he has his own bevy of historical citations to show that owning a weapon often had little to do with serving in the militia. (Scalia, never one to mince words, accuses Stevens of mounting a "bizarre argument." These guys have a future on cable TV.)
For many of the justices, today's case was about whether the Court ought to overturn its last statement on the Second Amendment, the 1939 Miller case that upheld the idea that the right to bear arms is a collective, not individual, one. Stevens says that case clearly distinguishes between military and non-military uses of guns, that the precedent governs and that the Court should abide by it. Scalia argues that that case centered on the type of weapon being used--a short-barreled shotgun--not on the basic right to carry arms. Scalia reads the Miller case to mean only that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."
Justice Stephen Breyer takes a different tack in his defense of the D.C. law, arguing that an urban area has special concerns because of congested living and that cities should be permitted to have stricter controls on guns. Breyer finds some examples from early American history to back up the idea of a different standard for crowded places, but Scalia dismisses this line of thinking as ahistorical and too willing to make exceptions to a basic right: "A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional
guarantee at all."
While Scalia says the individual right to bear arms is enshrined in the Constitution, Stevens says his fundamentalist colleague is the one who is today putting new ideas into the plain meaning of the Founders: "The right the Court announces was not 'enshrined' in the Second Amendment by the Framers; it is the product of today's law-changing decision," the dissenting justice writes. Stevens says Scalia and the majority have now opened the floodgates of litigation over every possible regulation and limitation placed on gun ownership or possession. As Breyer puts it, "The decision will encourage legal challenges to gun regulation throughout the Nation.... [Did] the Framers [intend] to guarantee a right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick
up a loaded gun on their parents' bedside table?"
Scalia completely ignores Breyer's extensive argument about the unique dangers of handguns in big cities. Breyer concedes that District residents are proportionately victim to more homicides now than before the gun ban. But he argues that the crime stats don't really prove anything: Just because D.C. murder rates climbed after the gun ban was instituted doesn't mean there was any cause and effect. "As students of elementary logic know, after it does not mean because of it. What would the District's crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say." Breyer says it is lawmakers, not judges, who should draw conclusions from the evidence and create policy accordingly.
But Breyer was on the losing side in this decision, and so it is indeed judges who have decided that the D.C. gun ban was an unconstitutional experiment. Now, Mayor Adrian Fenty and the D.C. Council have to create a new architecture for gun regulation in a city where shootings are so common that there are now rooftop sensors deployed across large swaths of Washington to collect the sounds of gunfire and help direct police toward the latest pops in the night.
Original Source : http://blog.washingtonpost.com/rawfisher/2008/06/dc_gun_ban_the_decision.html
