The current challenge to the District of Columbia’s gun laws is
the first Supreme Court case to directly consider the right to bear
arms in seven decades. DC law virtually bans handguns, and it
requires that long guns be non-functional when stored.
So it’s disappointing that a “pro-gun” presidential
administration filed a brief Friday arguing that the appeals court went
too far by ruling that handgun bans are categorically
unconstitutional. The Second Amendment reads, “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.”
It wouldn’t be so bad if the Justice Department actually put
forth a logical argument. The federal government enforces gun laws,
including strict regulations on fully automatic weapons, and a
Supreme Court ruling could in theory interfere with this duty.
Unfortunately, the brief settles for knocking down straw-men in the
place of the appeals court’s actual arguments.
It’s important to understand the court’s precise logic. It
started by finding that the Second Amendment protects a right of
individuals to own weapons, not a right of states to arm militia
members. The Justice Department, thankfully, agrees.
But this raises two questions: (A) What kinds of guns does the
Second Amendment refer to when it says “Arms,” and (B) what
regulations may the government place even on those weapons?
On the first question, the court looked at the weapons ordinary
people owned in Founding era. Based on the second Militia Act of
1792, the court reasoned:
“It follows that the weapons described in the Act were in
‘common use’ at the time, particularly when one considers the
widespread nature of militia duty … [T]he Act distinguishes
between the weapons citizens were required to furnish themselves
and those that were to be supplied by the government … The Act
required militiamen to acquire weapons that were in common
circulation and that individual men would be able to employ, such
as muskets, rifles, pistols, sabres, hangers, etc., but not
cumbersome, expensive, or rare equipment such as cannons.”
From this, one can deduce that the Founders meant to include
rifles and pistols when they wrote “Arms.” The court further wrote,
of handguns:
“The modern handgun — and for that matter the rifle and
long-barreled shotgun — is undoubtedly quite improved over its
colonial-era predecessor, but it is, after all, a lineal descendant
of that founding-era weapon, and it passes Miller’s
standards. Pistols certainly bear ‘some reasonable relationship to
the preservation or efficiency of a well regulated militia.’ They
are also in ‘common use’ today, and probably far more so than in
1789.”
On the second question, the court decided, quite logically, that
an outright ban on any of the protected weapons would be
unconstitutional. However, some regulations short of bans would be
OK. The Second Amendment does not, in the court’s view, guarantee a
right to carry a concealed weapon. Gun registration and proficiency
testing are acceptable. Prohibitions on gun ownership by people who
exhibit “insanity or felonious conduct” don’t infringe a
constitutional right.
With the ruling in mind, this Bush administration gem has to be
one of the dumbest statements ever to make it into an official
government statement:
“The court’s decision could be read to hold that the Second
Amendment categorically precludes any ban on a category of ‘Arms’
that can be traced back to the Founding era. If adopted by this
Court, such an analysis could cast doubt on the constitutionality
of existing federal legislation prohibiting the possession of
certain firearms, including machineguns.”
FIRST OFF, MACHINE guns cannot be “traced back to the Founding
era.” Such a situation would have given early patriots a leg up
when it came to mowing down Redcoats (Say ‘ello to my little
friend!), but it just wasn’t so.
The Justice Department argues that M-16s could be seen as
“lineal descendants” of colonial arms, but automatic weapons use
firing mechanisms that differ completely from those of standard
guns. 1861’s hand-crank-powered Gatling gun, followed by the
self-reloading Maxim machine gun two decades later, clearly created
a whole new method for spraying lead.
More importantly, even granting the ludicrous notion that
machine guns are Founding-era weapons at heart, recall the appeals
court’s assertion that the Second Amendment doesn’t protect all
arms “that can be traced back to the Founding era.” It protects
arms akin to those in “common use” at that time, and those that are
in “common use” today.
When it comes to the distinction between bans and other
regulations, well, the administration has a hard time keeping that
one straight. It specifically notes that the appeals-court
interpretation “both secures individual rights and allows
‘reasonable restrictions,’” but editorializes, “the Second
Amendment’s protection of individual rights does not render all
laws limiting gun ownership automatically invalid” as though that
runs counter to the decision. The brief also spends an entire page
defending prohibitions on felons owning guns, even though neither
side disputes the validity of said prohibitions.
The administration proposes that courts “should consider (a) the
practical impact of the challenged restrictions on the plaintiff’s
ability to possess firearms for lawful purposes (including the
nature and practical adequacy of the available lawful
alternatives), and (b) the strength of the government’s interest in
enforcement of the relevant restriction.” It takes no position as
to whether the DC laws would pass such a test.
In other words, the courts should decide whether, in a given
circumstance, a given policy is good enough to warrant a given
degree of infringement on gun rights. They shouldn’t decide that
the words “shall not be infringed” prohibit certain policies in all
circumstances. This is squishy jurisprudence at best.
