Ye have not, because ye ask not
Jim Babka on Jun 26th 2008
Ask, and you shall receive. Concede, and you shall lose. The DISTRICT OF COLUMBIA ET AL. v. HELLER is in — and most of the news is good.
The Justices ruled that the language of the Second Amendment indicates its purpose is for militias, but that the amendment lacks language that limits the use of weapons to only the purpose. The Second Amendment is an individual right.
They also state that individual Americans can own commonly used firearms for self-defense purposes, but that they are not opening up the box on a host of other regulations involving bans on more exotic weapons, laws restricting felons and mentally-ill people, sales rules, concealed carry laws, and the like.
But they did rule that because the handgun is a common weapon of choice for self-defense, the DC ban on handguns is unconstitutional — and that includes rules for trigger locks or disassembly of the firearm because it would render the gun useless at the moment of self-defense.
But there is one caveat — one bit of bad news — that should be strategically instructive here. This bill permits DC to implement a handgun licensing requirement that would approve someone like Heller, a DC special policeman, whose application for registration of a handgun, that he desired to keep at home, was denied. Here is how the syllabus portion (a summation of the findings) of the decision puts it…
Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
There were several Second Amendment advocates concerned by the concessions of the Heller attorneys in this case. And here we have the Supremes, in plain language, confessing that perhaps they would’ve ruled licensure unconstitutional as well, if only Heller’s attorneys had made such an argument, rather than concede the point.
Something quite similar has happened in other cases. For example, in the Shrink PAC case, Justice Souter, writing the majority decision, said he couldn’t even consider, like his colleagues had, overturning campaign finance laws because the plaintiffs hadn’t asked for that.
How often have we failed to secure a victory because the people representing us were engaged in discovering the Art of the Possible, when they could’ve won more if only they’d sought to define what was Possible, and straightforwardly ask for it.
As Howard Phillips has said, “If we want to achieve victory, first we must seek it.”
Ask. Seek. Knock.
Hardball delenda est.
Filed in The Bench
I’m just amazed that 4 of the 9 actually wrote against this decision. It really is a pretty common sense position on a VERY draconian law. At least the justices who sided with the Bush Administration in the Guantanamo detentions case realize that if they’re going to let the government have that sort of power then they at least have to let you have a gun…
Unless, of course, you are a resident of the District, or any other urban, gun-plagued area. Because, of course, this decision denies the government a whole host of mechanisms for reducing the ownership and use of devices meant only for the maiming and killing of human beings (handguns have no productive purpose) while not requiring citizens to act in a responsible manner. What this decision will mean is that the purveyors of death can continue to act in an irresponsible manner, flooding our country with cheap death devices, and the only relief provided by the courts is to turn our streets into the Wild West. That is good news.
Meanwhile even more straight guys trying to compensate for their tiny endowment can go out and get surrogate members through any of the unregulated and protected-from-liability gun shows or illegal sellers. Any of these men can then that his woman is his property by blowing her brains out if she tries to leave or act independently (for good measure he might blow away her kids too, if she’s really lucky) or ratchet up a local gang war or attack innocent people.
As for home defense, please. Sean Taylor’s machete certainly didn’t stop his death, and a gun would have proven just as useless. When I was personally gay-bashed, I was lucky the bashers only had a brick to smash my face in; if they had a gun, I’d be dead now (and if I’d have a gun, the exact same result - there was no time or opportunity to pull a weapon on my attackers, other than my fists).
It is high time this society starts holding straight men accountable for the violence they inflict on the rest of us; unfortunately the Court has just dramatically harmed our ability to control their inherently violent nature.
this decision denies the government a whole host of mechanisms for reducing the ownership and use of devices meant only for the maiming and killing of human beings
As I understand it, the evidence is very spotty that gun bans can meaningfully reduce the amount of gun violence at all. DC itself is a good example of this.
…handguns have no productive purpose
If someone has broken into your house, which would you rather have, honestly — a gun, or a phone to call the police? Which one do you think is going to impress a burglar more?
I agree that there are times when a gun would not help. But other times, it certainly would. Best of all, the chance that a homeowner might be armed causes positive externalities for the rest of us: Criminals will think twice about attacking any of us, thanks to the gun ownership of a few.
… while not requiring citizens to act in a responsible manner.
The laws against assault, menacing, and reckless behavior already achieve this purpose.
Oh, and as a side note, I’ve heard it said that certain higher-ups at the NRA didn’t really want this suit going forward, since they were convinced it would fail. I’m happy to see the gamble pay off.
The NRA is putting a happy face on this ruling, but it’s really not what they wanted. It overturns total bans like the one DC had, but the majority opinion explicitly says that it does not overturn a whole host of gun control measures that the NRA opposes. And that, I think, is precisely the right outcome.
Applying a bit of economic theory to lobbyists, the less settled by judicial decision gun law is, the better things are for the NRA. I believe Mr. Kuznicki is also correct that the putative reason the NRA opposed the suit was fear the Court would rule in favor of D.C. That’s a legitimate concern, but I prefer self-interest as a motive. Oh, and of course the majority of those measures the NRA opposes were not before the Court and so its failure to strike them down is not at all the same thing as affirming their constitutionality.
CPT_Doom wrote: “this decision denies the government a whole host of mechanisms”
That’s a policy argument captain. Now would you like to try a constitutional argument?
Seriously, with almost every Supreme Court decision, whether I agree with it or not, what pisses me off most is the assjacks who criticize the argument on policy grounds. Have they ever stopped to think what the concept of a constitution, as opposed to mere statutory law, means?
I’m not going to be able to find it now, because I see that the Washington Post has updated their article and removed it. But I found particularly galling when Justice Stevens claimed that the conservatives had in effect invented a new right.
No, they’d just read that thing you’re supposed to be interpreting.
Yeah, liberal judges should be particularly careful about using language about finding “new rights” given their (our) support of a wide range of unenumerated rights. In fact, I found it fascinating that Scalia so powerfully argued that whenever the bill of rights uses “the people” it is speaking of individual rights while Stevens argued that it only signified collective rights. Change the case to any number of unenumerated rights in the context of the 9th amendment and their respective positions would immediately reverse themselves.