Day In Court

DC Vs. Heller goes to court this week.

Despite mountains of scholarly research, enough books to fill a library shelf and decades of political battles about gun control, the Supreme Court will have an opportunity this week that is almost unique for a modern court when it examines whether the District’s handgun ban violates the Second Amendment.

The nine justices, none of whom has ever ruled directly on the amendment’s meaning, will consider a part of the Bill of Rights that has existed without a definitive interpretation for more than 200 years.

“This may be one of the only cases in our lifetime when the Supreme Court is going to be interpreting the meaning of an important provision of the Constitution unencumbered by precedent,” said Randy E. Barnett, a constitutional scholar at the Georgetown University Law Center. “And that’s why there’s so much discussion on the original meaning of the Second Amendment.”

Of course, the “collective right” case is completely intellectually bankrupt, and has been recognized as such even by Laurence Tribe, the dean of liberal con-law wonks. But it wouldn’t be the first time the SCOTUS entertained a bankrupt notion with complete credibility.

The outcome could roil the 2008 political campaigns, send a national message about what kinds of gun control are constitutional and finally settle the question of whether the 27-word amendment, with its odd structure and antiquated punctuation, provides an individual right to gun ownership or simply pertains to militia service.

If the right “of the people” to keep and bear arms is a collective right, then the First Amendment rights “of the people” to free assembly only refers to legislatures.

The stakes are obviously high for the District, which passed the nation’s strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.

The law’s challengers — security guard Dick Anthony Heller is the named party in the suit — say the measure has been an abysmal failure at cutting crime or stanching the city’s homicide rate, and a success only in depriving the law-abiding of a ready weapon for protection. The District contends that banning handguns is a logical decision in an urban setting, where more guns would result in more killings.

While the SCOTUS will make its ruling with no reference to actual criminological facts, ones’ lobotomy would have to be botched pretty badly to not notice that the only way “gun-free” DC could get “more kililngs” is if they required their criminals to use grenades and flamethrowers.

The city’s lawyers argue that the Second Amendment does not provide an individual right and that, even if it does, the amendment is not implicated by legislation that concerns only the District of Columbia.

One wonders, then, if the rights to speak, worship, assemble and publish are similarly free of Constitutional pollution?

[Libertarian lawyer Robert] Levy and lawyers Alan Gura and Clark Neily were able to persuade the U.S. Court of Appeals for the District of Columbia Circuit last year to do what no other federal appeals court had ever done: strike down a local gun-control ordinance on Second Amendment grounds.The amendment says that “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,” and all but one of the circuits that had considered the issue previously had interpreted it as providing a gun-ownership right related only to military service.

But Senior Judge Laurence H. Silberman, a conservative icon, wrote for a 2 to 1 panel that the amendment provides an individual right just as other provisions of the Bill of Rights do. And because handguns fall under the definition of “arms,” he wrote, the District may not ban them.

The Supreme Court’s endorsement of an individual right would be a monumental change in federal jurisprudence, but perhaps not surprising. Even a small but growing group of liberal constitutional scholars — “against my political instincts,” in the words of Harvard law professor Laurence H. Tribe — have endorsed the individual-right view.

But even fundamental rights are subject to government restrictions, and whether the justices are ready to decide on the reasonableness of the District’s ban could be the crucial question of the case.

And that’s the crux of the matter; getting the official interpretation of the badly-written amendment officially recognized as an “individual right” will change the definition of “reasonable”; any law that prohibits “the people” from doing what the Amendment intended – protecting them from enemies criminal, trans-national and elected – is always reasonable if you start from the assumption that the individual’s right to defend himself and his community is granted by our creator, rather than official fiat.

(The standard-issue strawman you’ll see bandied about, by the left and even some conservatives who should know better, is “if you toss out the notion of reasonable restriction, then people will be able to buy machine guns”.  For starters – if you take a law-abiding person that’d never harm a fly but in legal self-defense, and put a machine gun (or howitzer, or flamethrower or grenade or nuclear weapon) in their hands, you’ll have a guy with a machine gun who wouldn’t harm a fly except in self-defense).

Unfortunately, support for this vacuous strawman came from a source I’d have hoped was unlikely:

The city received an unlikely lifeline from the Bush administration, which told the court that the amendment provides an individual right but that the appeals court erred in deciding that the District’s ban was automatically unconstitutional.

“If adopted by this court,” Solicitor General Paul D. Clement wrote in the government’s brief, “such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns.”

And in a wonky, legal context, Clement was right. And my response is “so friggin’ what? If you have a law that infringes a constitutional liberty, you defer to the liberty first, and figure out the legal trimmings later – presuming there’s actual potential a real plague of law-abiding citizens owning machine guns, which are expensive to buy and feed; horses are probably cheaper.

(Although in the unlikely even the SCOTUS does blow things that far open, put me down for an HK21…)

Clement said that the District’s law may well be unconstitutional, but that the case should be returned to lower courts for “application of a proper standard of review” and to permit “Second Amendment doctrine to develop in an incremental and prudent fashion.”

Which, again, makes some wonkish, academic legal sense. But the state’s deprivation of the law-abiding citizen’s right to defend himself isn’t wonkish and academic; criminal scum roam DC freely, undeterred by academic canoodling or the citizenry.

Gun rights supporters were furious about the government’s position, and Vice President Cheney went so far as to join a friend-of-the-court brief that specifically rejects the administration’s view. Levy said returning the case to lower courts would be a “death knell,” and his team has urged the court to apply “strict scrutiny” to any government action that would restrict gun ownership.

Said Gura: “What we want to do is take prohibition off the table.”

Gura is, of course, correct.

The case is complicated by the District’s secondary argument that the Second Amendment is not implicated by legislation that applies only to the District of Columbia.

The challengers have received a broad array of political support, signs of the strength of the gun rights movement: More than 31 states and a majority of the House and Senate have signed friend-of-the-court briefs.

Including, it must be noted, Minnesota’s DFL attorney general Lori Swanson.  For now, anyway.

Among the presidential candidates, Republican Sen. John McCain signed on, while Democratic Sens. Barack Obama and Hillary Rodham Clinton did not.

Both of the Democrats, aware of the NRA’s power among America’s vast silent majority, will shy away from making any waves; they’ll likely model their approach after Bill Clinton’s; hide behind vagaries like “I support hunting!”, while slipping gun control into many tangentially-related issues.

The real takeaway, of course, is that the Second Amendment movement can not get complacent. We’ve won an amazing chain of victories in the past fifteen years, since the nadir of the “Assault Weapon” Ban and the ’94 “Crime” Bill. But even though the orcs are against the ropes, this ruling could make it possible for them to come out swinging again, should it go badly.

If the SCOTUS upholds Heller, or even sends it back to the federal courts on scrutiny grounds, what it means is that both sides of this debate will have to start doing what all of us Real Americans have had to do for the last forty years; take their case out in front of the people and try to convince legislatures, one legislator at a time, that their notion of good law passes constitutional muster.  Granted, we gun nuts are used to this; it’s the other side that relies on courts to do their legislating for them.

All you gun nuts out there have to stay involved – keep your NRA dues paid, get involved with GOCRA and CCRN-MN (the organizations that brought you Concealed Carry Reform in Minnesota, and have proved among the most successful grassroots political organizations in Minnesota in my adult lifetime), write and call your legislators, show up at committee hearings to show the Legislature that Real Americans have, do and will always outnumber the grabbers – and, above all, win over the skeptical one at a time.

Stay tuned to your regional Second Amendment bloggers for updates as Heller wends its way. Joel Rosenberg, Carnivore at TvM, and of course Clayton Cramer for all the news the media and the Sorosphere don’t want you to get.

UPDATE:  Pointed to the correct Clayton Cramer blog…