Justices Agree on Right to Own Guns

[Shogun]

By MARK SHERMAN

WASHINGTON (AP) - Americans have a right to own guns, Supreme Court justices declared Tuesday in a historic and lively debate that could lead to the most significant interpretation of the Second Amendment since its ratification two centuries ago.

Governments have a right to regulate those firearms, a majority of justices seemed to agree. But there was less apparent agreement on the case they were arguing: whether Washington's ban on handguns goes too far.

The justices dug deeply into arguments on one of the Constitution's most hotly debated provisions as demonstrators shouted slogans outside. Guns are an American right, argued one side. "Guns kill," responded the other.

Inside the court, at the end of a session extended long past the normal one hour, a majority of justices appeared ready to say that Americans have a "right to keep and bear arms" that goes beyond the amendment's reference to service in a militia.

Several justices were openly skeptical that the District of Columbia's 32-year-old handgun ban, perhaps the strictest in the nation, could survive under that reading of the Constitution.

"What is reasonable about a total ban on possession?" Chief Justice John Roberts asked.

Walter Dellinger, representing the district, replied that Washington residents could own rifles and shotguns and could use them for protection at home.

"What is reasonable about a total ban on possession is that it's a ban only on the possession of one kind of weapon, of handguns, that's considered especially dangerous," Dellinger said.

Justice Stephen Breyer appeared reluctant to second-guess local officials.

Is it "unreasonable for a city with a very high crime rate ... to say no handguns here?" Breyer asked.

Alan Gura, representing a Washington resident who challenged ban, said, "It's unreasonable and it fails any standard of review."

The court has not conclusively interpreted the Second Amendment since its ratification in 1791. The 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."

The basic issue for the justices is whether the amendment protects an individual's right to own guns no matter what, or whether that right is somehow tied to service in a state militia.

A key justice, Anthony Kennedy, seemed to settle that question early on when he said the Second Amendment gives "a general right to bear arms." He is likely to be joined by Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas - a majority of the nine-member court.

Gun rights proponents were encouraged.

"What I heard from the court was the view that the D.C. law, which prohibits good people from having a firearm ... to defend themselves against bad people is not reasonable and unconstitutional," National Rifle Association executive vice president Wayne LaPierre said after leaving the court.

Washington Mayor Adrian Fenty said he hoped the court would leave the ban in place and not vote for a compromise that would, for example, allow handguns in homes but not in public places. "More guns anywhere in the District of Columbia is going to lead to more crime. And that is why we stand so steadfastly against any repeal of our handgun ban," the mayor said after attending the arguments.

A decision that defines the amendment's meaning would be significant by itself. But the court also has to decide whether Washington's ban can stand and how to evaluate other gun control laws.

The justices have many options, including upholding a federal appeals court ruling that struck down the ban.

Solicitor General Paul Clement, the Bush administration's top Supreme Court lawyer, supported the individual right but urged the justices not to decide the other question. Instead, Clement said the court should say that governments may impose reasonable restrictions, including federal laws that ban certain types of weapons.

Clement wants the justices to order the appeals court to re-evaluate the Washington law. He did not take a position on it.

This issue has caused division within the administration, with Vice President Dick Cheney taking a harder line than the official position at the court.

In addition to the handgun ban, Washington also has a trigger lock requirement for other guns that raised some concerns Tuesday.

"When you hear somebody crawling in your bedroom window, you can run to your gun, unlock it, load it and then fire?" Justice Antonin Scalia said.

Roberts, who has two young children, suggested at one point that trigger locks might be reasonable.

"There is always a risk that the children will get up and grab the firearm and use it for some purpose other than what the Second Amendment was designed to protect," he said.

On the other hand, he, too, wondered about the practical effect of removing a lock in an emergency. "So then you turn on the lamp, you pick up your reading glasses," Roberts said to laughter.

Dellinger said he opened the lock in three seconds, although he conceded that was in daylight.

While the arguments raged inside, dozens of protesters mingled with tourists and waved signs saying "Ban the Washington elitists, not our guns" or "The NRA helps criminals and terrorists buy guns."

Members of the Brady Campaign to Prevent Gun Violence chanted "guns kill" as followers of the Second Amendment Sisters and Maryland Shall Issue.Org shouted "more guns, less crime."

The City Council that adopted the ban said it was justified because "handguns have no legitimate use in the purely urban environment of the District of Columbia."

Dick Anthony Heller, 65, an armed security guard, sued the district after it rejected his application to keep a handgun at his home for protection in the same Capitol Hill neighborhood as the court.

The last Supreme Court ruling on the topic came in 1939 in U.S. v. Miller, which involved a sawed-off shotgun. Constitutional scholars disagree over what that case means but agree it did not squarely answer the question of individual versus collective rights.

Roberts said at his confirmation hearing that the correct reading of the Second Amendment was "still very much an open issue."

http://apnews.myway.com/article/20080318/D8VG2PR00.html

 

[Gunny]

Good Guys 1, Losers 0

 

[Larkinn]

Good Guys 1, Losers 0

Might be a good idea to wait until the opinion comes out to decide who the winners and losers are.

 

[Larkinn]

http://www.opiniojuris.org/

The final group of amicus briefs I would like to highlight compares the firearm death rates in different countries to argue for and against gun control. An amicus brief by the American Academy of Pediatrics, et. al. offers an interesting comparative analysis of the firearm death rates in the Untied States and other democratic nations.


The firearms death rate in the United States far surpasses that of other democratic nations. A 1997 study analyzing firearms deaths for children aged 14 or under in 26 industrialized countries found that 86 percent of all deaths occurred in the United States. The rate for firearms homicide alone was 16 times higher in the United States, while the firearms suicide rate was 11 times higher and the firearms unintentional death rate was nine times higher.

In 1995, the firearms death rate in the United States was 13.7 per 100,000. In comparison, the firearms death rates in countries that severely limit access to handguns were significantly lower. For example, in 1995, Canada had a firearms death rate of 3.9 per 100,000; Australia had a rate of 2.9 per 100,000; and England and Wales had rates of 0.4 per 100,000. One of the most glaring distinctions between these countries and the United States is the significantly lower incidents of lethal violence caused by handguns.


Another amicus brief filed by Professors of Criminal Justice makes similar comparisons:


Criminological research has established that the high rate of handgun homicides in the United *7 States is due, at least in part, to the high rate of handgun ownership in the United States. The rate of handgun ownership and the rate of handgun homicides in the United States, when compared to the same data from other countries, illustrate the strong correlation between the availability of handguns and the incidence of handgun homicides.... [T]he United States experiences about four times the level of handgun homicides per 100,000 people than Israel, Sweden, Canada, Australia, and Great Britain combined.


But these arguments did not go unchallenged. The Association of American Physicians and Surgeons argued in an amicus brief that:


The use of handguns in suicide in no way proves that an alternative method would not be used if handguns were unavailable. In fact, the evidence is to the contrary. Japan, Hungary, and Scandinavia all have far more restrictive gun control than the United States, and yet they have suicide rates 2 to 3 times higher than the U.S. For example, the suicide rate in Hungary is 35.38 per 100,000, compared to only 12.06 per 100,000 in the United States.

The AAP Brief relies on a country-by-country comparison in arguing that the firearm related death rate in the United States was much higher in 1995 in the United States than in Canada, Australia, and England and Wales, all of which have restrictive gun control. AAP Brief at 25. But the data for gun deaths in the United States include guns used in self-defense, as in fending off an assault, robbery or rape, and higher homicide rates in the United States existed long before there was gun control in other countries….

Different societies have different confounding factors, such as crime-inducing drug addiction, single-parent families, promotion of violence in the media, and varying approaches to juvenile delinquency and schooling, all of which inevitably affect crime rates. Those confounding factors are best eliminated by looking at the effect of gun control on the same society, and as shown below, gun control typically results in an increase in overall crime rather than a reduction. Gun control is hardly supported if murders by switchblades increase as death by firearms declines.


Another amicus brief filed by Criminologists, Social Scientists, [and] Other Distinguished Scholars also challenged the connection between death rates and gun possession:


The evidence from foreign jurisdictions leads to the same conclusion as the United States data. In general, comparison of “homicide and suicide mortality data for thirty-six nations (including the United States) for the period 1990-1995” to gunstock levels shows “no significant (at the 5% level) association between gun ownership and the total homicide rate.” Additionally, in a 2001 European study of 21 nations' data, “no significant correlations [of gunstock levels] with total suicide or homicide rates were found.”…

A 2007 study compared gun ownership and murder in every European nation on which the data could be found. Again, nations with more guns did not exhibit higher murder rates. Indeed, the tendency is generally the opposite: murder rates for the seven nations having 16,000+ guns average out to 1.2 per 100,000 population while the murder rates for the nine nations having just 5,000 or fewer guns is well over three times higher, at 4.4 per 100,000. These national comparisons suggest that the determinants of murder are factors such as basic socio-economic and cultural factors, and not the mere availability of guns. Leading gun control advocates have admitted that “Israel and Switzerland [have] rates of homicide [that] are low despite rates of home firearm ownership that are at least as high as those noted in the U.S.” To the same effect, within Canada, “England, America and Switzerland, [the areas] with the highest rates of gun ownership are in fact those with the lowest rates of violence.”


To the extend the Supreme Court attempts to digest this information, I would expect this comparative analysis will be useful in assessing whether the District of Columbia had a proper basis for restricting gun possession. These sort of briefs offer pragmatic arguments for justifying government restrictions on individual liberties. As I have argued here, "the Court frequently has relied on foreign authority to curtail, not expand individual liberties. The United States Reports are replete with instances in which the Court has relied on foreign experiences to uphold the constitutionality of government action that limits individual rights."

Related Posts (on one page):

1. Oral Argument in Heller and the English Roots of the Second Amendment
2. Comparative Death Rates and the Second Amendment
3. Government Tyranny and the Second Amendment
4. International Law and The Second Amendment

 

[Larkinn]

http://www.opiniojuris.org/

Two of the more interesting amicus briefs in District of Columbia v. Heller argue, in effect, that we need the right to bear arms in order to protect the citizenry from the possibility of government tyranny and genocide. Here is an excerpt from an amicus brief by a group called Jews for the Preservation of Firearms Ownership (JPFO).


Throughout history, the disarmament of populations has all too frequently resulted in genocide and mass oppression. History is replete with this familiar pattern. To limit the right to keep and bear arms to a state regulated militia is to disregard what the Framers understood - that individual possession of arms is essential to preventing usurpation by the state.

During the 20th Century, more than 70 million people were slaughtered on a massive scale by their own governments after first being disarmed. This pattern repeated itself in Ottoman Turkey (1915-17), the Soviet Union (1929-45), Nazi Germany and Occupied Europe (1933-1945), Nationalist China (1927-1949), Communist China (1949-52, 1957-60, and 1966-70), Guatemala (1960-81), Uganda (1971-79), Cambodia (1975-79) and Rwanda (1994)just to name a few.

In many cases, firearm confiscation followed only after the groundwork was laid by purportedly “reasonable” regulation and registration of firearms. History illustrates just how readily the standardless “reasonable” regulation of firearms invites large scale abuse by the state and ultimately paves the way for wholesale confiscation of arms and the mass slaughter of the disarmed (much like the massive censorship that likely would arise under a rule permitting “reasonable” regulation of speech and press).


Another group, Association of American Physicians and Surgeons, Inc.(AAPS), makes a similar argument “that without the right to bear arms, an emasculated citizenry becomes vulnerable to tyranny, terrorism and genocide.”

I doubt the Court will be persuaded by these arguments, at least in the sense of it being a legitimate contemporary concern in the United States. But the argument may have some utility to explain historical understandings of the Framers’ intent. Both briefs argue that the Framers were concerned about the possibility of government tyranny and included the Second Amendment as a final check against government abuse. The AAPS brief argues:


While the Founding Fathers may not have anticipated genocide, they certainly did anticipate tyranny and added the Second Amendment to safeguard against it. James Madison observed “the advantage of being armed, which the Americans possess over the people of almost every other nation” and noted how this was an important check and balance on the power of government…. Supreme Court Justice Joseph Story considered the Second Amendment to be the most important individual right of all: The right of the citizens to keep and bear arms has justly been considered the palladium of the liberties of a republic; since it offers a strong moral check against usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.


In a similar vein, the JPFO brief argues that:


These Nineteenth and Twentieth Century examples illustrate how well the Framers of the Constitution understood the essential role an armed citizenry plays in the defense of a free people. They had before them a rich history of European despotism from which to draw the keen understanding that armed people are free people and thus were unmistakably aware of the essential nexus between firearms ownership and liberty….

The great fortune of the American people is that our Constitution was crafted in such a manner as to minimize the likelihood of needing our arms to oppose a tyranny arising from within. Yet, the Second Amendment was created as the final barricade against the unthinkable - the day when the rest of our Constitutional safeguards have failed us and we stand exposed to the brutal reality that so many in history have understood only too late.

 

[Larkinn]

This and the two above posts are some of the amicus curiae( friend of the court) briefs filed with the court and a bit of analysis from an int'l law website.

As we all know, this week the Court will hear what is arguably the most important case of the year, District of Columbia v. Heller. In Heller, the District of Columbia has presented comparative analysis of the practice of other countries in support of its gun control restrictions. Not surprisingly, this has led to several amicus briefs responding to the argument.

I will highlight some of the other briefs later, but today I wanted to emphasize a very interesting amicus brief by a group of international scholars from Australia, Belgium, Canada, England, France, Germany, Italy, Denmark and Portugal challenging the District of Columbia’s assertions. Here is a taste:


In the Petition for Writ of Certiorari, Petitioners represent that other nations have reached the same conclusion concerning handguns as they have. “[M]ost industrialized countries strictly control civilian access to handguns and allow the carrying of handguns for personal protection only under very restrictive conditions …” Petitioners repeat this assertion in their merits brief where they state: “Many cities, states, and nations regulate or ban handguns based on the unique dangers of those deadly weapons.” Contrary to this assertion, most foreign gun laws in democratic nations are not nearly as restrictive as those found in Washington D.C., where private individuals are burdened by an outright ban of all functional firearms in their homes.



Much of the brief focuses on country-by-country comparisons. But it also has some fascinating historical analysis of international law (citations and footnotes omitted):


Some of the earliest works on the subject of International Law were by fourteenth century Milanese scholar Giovanni da Legnano, whose work, De Bello, De Represealiis et de Duello was one of the first attempts to establish international rules for warfare. Legnano's treatise closely examined the individual right of self-defense as the basis of establishing a derivative right of a nation to engage in war. Legnano believed that, “self-defense proceeds from natural law, and not from positive law, civil or canon.” Self-defense was not an artificial construct of positive law, but instead was an inherent instinct. Legnano did not confine the natural right to merely protecting one's life. He explained that self-defense was proper not only in defense of life, but also in defense of one's property, and that deadly force to protect that property was justified if necessary. Further, the principle of self-defense allows a person to come to the aid of a relative or friend whose person or property is being attacked. Finally, Legnano noted that a victim is not required to use only the exact level of force that his assailant uses by posing the rhetorical affirmation: “suppose a strong and vigorous man strikes me with his fist, and I am a poor fellow who cannot stand up to him with the fist. May I defend myself with a sword?”

Following in the footsteps of Legnano was the sixteenth century Spanish scholar, Francisco de Victoria. Victoria wrote several works on the subject of the “just war” and his classroom at the University of Salamanca became known as “the cradle of international law.” Like Legnano, Victoria believed that the justification for war was necessarily predicated upon adopting the individual right of self-defense as its derivative source. Thus, Victoria's first proposition articulated the individual right of self-defense: Any one, even a private person, can accept and wage a defensive war. This is shown by the fact that force may be repelled by force. Hence, any one can make this kind of war, without authority from any one else, for the defense not only of his person, but also of his property and goods. The foundation established by Legnano and Victoria created the platform for the father of International Law, Dutch scholar, Hugo Grotius. His work, The Rights of War and Peace, is considered the cornerstone of modern International Law and Grotius is hailed as “the founder of modern civilized interstate relations.”

The essential elements of Grotius' works were founded upon the precepts of self-defense and self-preservation. Grotius wrote that even human babies, like animals, have an instinct to defend themselves. Further, this instinct extended to the protection of property rights and was one of the fundamental elements of the social fabric of modern society, because if people were barred from using force to protect their property from those who would take it by force, then “human Society and Commerce would necessarily be dissolved.”

Grotius based his rules for war between nations predicated on the underlying individual natural right of self-defense and observed that the rationale for both were based upon the same moral principle: “t is allowed to Repel Force by Force.” It is upon the foundation of the fundamental individual right of self-defense that the structure of International Law is built.

Second only to Hugo Grotius was 17th century scholar Samuel Pufendorf, whose eight volume masterpiece, Of the Law of Nature and Nations, incorporated theories of Grotius, and the philosophies Thomas Hobbes and John Locke. Pufendorf; like Grotius, used natural law theory to construct the law of nations. The primary natural law employed by Pufendorf was that of self-defense: “Defence is a thing of more ancient date than any Civil Command…” and that no state can therefore forbid self-defense.

The natural right to self-defense which forms the very core of the principles of International Law, has one final component which protects the means by ‘which the right can be exercised. Thomas Hobbes explained “it is in vain for a man to have a right to the End, if the right to the necessary means be denied him, it follows, that since every Man hath a right to preserve himself, he must also be allowed a right to use all the means, and do all the actions, without which he cannot preserve himself.”


I seriously doubt the Court will utilize foreign or international law materials in its decision. Nonetheless, I think the historical arguments presented by these international scholars may have more value than their contemporary comparative country analysis. We know from recent years that historical constitutional comparativism is the least controversial form of borrowing, embraced by liberal and conservative justices alike. I also would expect the Court to focus on constitutional history in its decision, and it is quite possible that the international context may play a part of that historical analysis.

 

[RetiredGySgt]

Might be a good idea to wait until the opinion comes out to decide who the winners and losers are.

Absolutely. Nothing has been said or done to indicate what and how the Supreme Court will rule at all. I suspect they will rule that a nebulous right exists but that the power to regulate is supreme. In other words they will play lip service to the 2nd Amendment.

And in the end, reasonable regulation is a must. One can have a right and that right does not have to be without bounds. The Government has a responsibility to protect the citizenry after all.

So lets wait and see exactly how the court rules and if it even matters.

 

[steeliniraq]

Is it me or is it not our right to bare arms? I could swear that was one of our rights as Americans! Guns dont kill people, people do! Also tell me everyone. What do I do when some killer, who gets his guns illegally, breaks into my house and kills my entire family? THIS IS MY RIGHT.

 

[RetiredGySgt]

Is it me or is it not our right to bare arms? I could swear that was one of our rights as Americans! Guns dont kill people, people do! Also tell me everyone. What do I do when some killer, who gets his guns illegally, breaks into my house and kills my entire family? THIS IS MY RIGHT.

Not according to the anti gun loons and the majority of Liberals.

And what does not help is the gun nuts that claim we can own rocket launchers and machine guns with no license.

 

[Larkinn]

Is it me or is it not our right to bare arms? I could swear that was one of our rights as Americans! Guns dont kill people, people do! Also tell me everyone. What do I do when some killer, who gets his guns illegally, breaks into my house and kills my entire family? THIS IS MY RIGHT.

If you want the right to bare arms, wear a vest.

And if someone breaks into your house and kills your entire family, you die. Just like the 8 year old who picks up the loaded legal gun and plays with it.

By the way, is a nuke an arm? Do we all get one of those as well?

K...so guns don't kill people, people do. Then I guess you wouldn't mind taking away all of the guns that the US troops in Iraq have? After all, they aren't killing people so they are probably just weighing them down.

 

[RetiredGySgt]

If you want the right to bare arms, wear a vest.

And if someone breaks into your house and kills your entire family, you die. Just like the 8 year old who picks up the loaded legal gun and plays with it.

By the way, is a nuke an arm? Do we all get one of those as well?

K...so guns don't kill people, people do. Then I guess you wouldn't mind taking away all of the guns that the US troops in Iraq have? After all, they aren't killing people so they are probably just weighing them down.

Your a retard on this issue.

You are aware that less than 1000 people a year die due to accidental discharge of firearms? That we have around 300 million firearms in the country in civilian hands?

So again I guess you want us to take away private ownership of vehicles since 50k a year die due to accidents with them.

 

[Larkinn]

Your a retard on this issue.

You are aware that less than 1000 people a year die due to accidental discharge of firearms? That we have around 300 million firearms in the country in civilian hands?

So again I guess you want us to take away private ownership of vehicles since 50k a year die due to accidents with them.

Again, cars are integral to our economy, guns aren't.

Not counting how many people are saved by going to hospitals for cancer treatments, surgery, doctor checkups, etc, etc.

Not counting how many people are saved by ambulances.

Try again.

 

[steeliniraq]

If you want the right to bare arms, wear a vest.

And if someone breaks into your house and kills your entire family, you die. Just like the 8 year old who picks up the loaded legal gun and plays with it.

By the way, is a nuke an arm? Do we all get one of those as well?

K...so guns don't kill people, people do. Then I guess you wouldn't mind taking away all of the guns that the US troops in Iraq have? After all, they aren't killing people so they are probably just weighing them down.

The 8 year old who picks up a gun is a tragic victim of a horrible parent that will go to jail. And I guess it is ok if my entire family dies as long as you get your bill passed making guns illegal. Oh by the way the criminals and thugs still have their illegal guns. So in the end all you did is unarm those Americans that used handguns proper and for self defense. Thanks you tard. I hope one day you get to experience a man that has a gun and wants to kill you then come talk to me about this. Thats if you live through it.

 

[Special Ed]

Guns don't Kill People; Bullets Do

 

[Larkinn]

The 8 year old who picks up a gun is a tragic victim of a horrible parent that will go to jail.

It is tragic. And while the parent was the enabler, there simply aren't very many things in this world that children can so easily kill themselves with.

And I guess it is ok if my entire family dies as long as you get your bill passed making guns illegal.

Right...thats the only tradeoff there is.

Oh by the way the criminals and thugs still have their illegal guns.

Which they will now have to smuggle in, and will be much harder to acquire once they are illegal.

So in the end all you did is unarm those Americans that used handguns proper and for self defense.

Not quite, no.

Thanks you tard. I hope one day you get to experience a man that has a gun and wants to kill you then come talk to me about this. Thats if you live through it.

Sure. If that gun happens to have been legally bought, as the large majority are, you willing to support banning guns?

 

[Gunny]

If you want the right to bare arms, wear a vest.

And if someone breaks into your house and kills your entire family, you die. Just like the 8 year old who picks up the loaded legal gun and plays with it.

By the way, is a nuke an arm? Do we all get one of those as well?

K...so guns don't kill people, people do. Then I guess you wouldn't mind taking away all of the guns that the US troops in Iraq have? After all, they aren't killing people so they are probably just weighing them down.

This has got to be the dumbest thing I've ever seen you post in 5 years.

 

[Psychoblues]

Guns are for trained soldiers and educated hunters. But, criminals like them as well. Just what is a peace loving American to do?

 

[Bern80]

And what does not help is the gun nuts that claim we can own rocket launchers and machine guns with no license.

then i guess for the sake of this argument you will have to lump me in as one of those nuts.

What is your specific argument as to why some types of guns need to be regulated more than others?

 

[Larkinn]

This has got to be the dumbest thing I've ever seen you post in 5 years.

Your like a retarded puppy following me around saying "wrong" and "omg I disagree" after everything I say.

Feel free to explain WHY its so dumb. Or, you know, just continue making asinine comments.

 

[Bern80]

It is tragic. And while the parent was the enabler, there simply aren't very many things in this world that children can so easily kill themselves with.

Other than the myriand of cleaning solvents in your home, mommies pills, alcohol. Gonna have to try again on that one.

Right...thats the only tradeoff there is.

Since you imply that there are more, what would those be?

Which they will now have to smuggle in, and will be much harder to acquire once they are illegal.

I believe crack is illegal too and there's none of that around.

Not quite, no.

If you didn't disarm law abiding citizens, what exactley did you do?

Sure. If that gun happens to have been legally bought, as the large majority are, you willing to support banning guns?

What part of guns don't kill, don't you get? That argument requires that if I legally by a car and kill someone with it we should ban cars.

As much you anti-gun folk don't like that inconvenient comparison it is none the less valid. Both are inanimate objects, neither can kill anybody w/o a person acting on them. When someone runs someone over with a car, where is the ire against the car? Where is the outrage at all these fast moving vehicles all over the place? Where is the fundamental disconnect where guns are somehow different from any other type of instrument that could be used to kill someone?