Human Events | Mark Skousen | Jan. 22, 2008
Although there are several important cases this term, none will have the effect on the public’s mind that the Supreme Court’s decision in District of Columbia v. Heller will have. In that case, the Supreme Court will finally take up one of the great, undecided matters of constitutional law: Whether the Second Amendment guarantees a personal right to bear arms. Whatever the Court decides, it will have implications on electoral politics for the next generation.
Unfortunately, the Bush Administration has ignored an opportunity to push the Court toward the right on the issue, and transform the politics of the 2008 elections in the process.
A key step in the development of Second Amendment jurisprudence was the Bush Administration’s decision to adopt the “individual rights” theory of the Second Amendment. This theory holds that the Supreme Court’s Miller decision was, in essence, incorrect, and that the right to keep in bear arms means what it says — that an individual has a right to own guns. The Department of Justice in 2001 reversed the Clinton Administration’s previous position on the right to bear arms, setting off a firestorm of criticism. Yet for the past seven years, the Administration has stood its ground and consistently instructed its United States Attorneys to argue for the individual right to bear arms, if they could given the law of their Circuit.
So it came as an absolute shock to many supporters of an individual right to keep and bear arms when the Solicitor General filed a brief in the Heller matter opposing the plaintiffs’ claims. This remarkable brief brings back memories of the Administration’s position in the Grutter and Gratz cases, where the Administration argued that, while the schools’ affirmative action policies were unconstitutional, the rationale behind them was not.
The Solicitor General’s brief in Heller similarly tries to split the baby. It argues, strenuously, that the Constitution does protect and individual’s right to bear arms. It also argues that, like other rights in the Bill of Rights, the right to keep and bear arms is not unlimited. It then suggests a more restrictive test for the right than that used by the Court of Appeals: that a court should consider the practical impact of the regulation on the right to bear arms and the government’s interest in the enforcement of the regulation, rather than the Court of Appeals’ more categorical approach to regulations of “Arms.” In other words, it argues for a kind of intermediate scrutiny. The Solicitor General suggests that the Court adopt a different test than that used by the Court of Appeals, and then remand the case for further review.
Which raises the question: What the heck was the Bush Administration thinking? For decades, a critical component of the Republican coalition has been working class gun owners who are bothered by the Democrats’ embrace of gun control. Republicans actually seem to have won that battle, with Democrats backing off of gun control legislation in the recent Congress. Why after enduring so much hostile press would the Bush Administration sell out the NRA at this critical juncture? And why make the reversal in a difficult election year, when the support of gun control opponents will be so critical to Republican fortunes?
There are two potential answers. The generous answer lies in the composition of the Court. It is thought that the four “conservative” Justices — Thomas, Scalia, Roberts, and Alito — are sympathetic to the individual right to bear arms. The four “liberal” Justices — Stevens, Ginsburg, Breyer and Souter — may be more hostile. This leaves Justice Kennedy as the swing vote. Kennedy is notoriously difficult to predict, especially on high-profile “social issues.” It is also true that within the next few years, Justices Stevens and Ginsburg will be replaced, possibly with a Republican President. So the Solicitor General may be gambling that Justice Kennedy will be easier to persuade with a lower standard, or that if the plaintiffs get a remand, the Court may be more conservative when the case comes back up, and more likely to win in the long run.
The less generous answer lies in the reality of the Bush Administration. Contrary to the caricatures painted by liberals, there are precious few issues that the Administration has not sold the Right out on. No Child Left Behind, the prescription drug benefit, monstrous budget deficits, McCain-Feingold, Patient’s Bill of Rights . . . all of these issues cross the gamut of modern politics, and all of them are issues where the Bush Administration’s Rovian plotting has placed it at loggerheads with standard conservatism. Even on judges, where the Administration usually wins plaudits, conservatives forget Harriet Miers, and forget that two of Bush’s first ten Court of Appeals appointments were Clinton appointees. Is it really that hard to believe that the Administration would lurch to the left on the issue of guns?
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Not to mention Bush’s steadfast refusal to secure our borders and his towing the liberal line that Islam is a religion of peace. He is a Wilsonian statist. LHM.
I agree, Michael. Even sadder to me than the Solicitor General’s brief is the captivity of much of organized religion in America by the anti-self-defense folks.
If you google for “God not guns” you’ll find an outreach program of the Brady campaign that has come to an impressive state of maturity. Click the “view a full list of our partners” link at the bottom of their page. You’ll see quite an array of influential backing for ever more restrictive gun laws.
When honest, law abiding and responsible citizens cannot defend themselves, it is always the innocent and defensless that suffer. Criminals and murderers could care less about gun control laws. As a matter of fact all of the mass killers always attack schools, churches, malls, universities and other places where they know that people are defensless and do not have arms to protect themselves. Notice these specimens never dare approach a well-armed citizenry.
I don’t see a problem with people who have proven themselves to be law-abiding having the right to own and carry a weapon (even in public and concealed in a purse or vehicle). I do not understand, however, why the NRA is so opposed to sensible restrictions such as waiting periods and background checks which would deny weapons to people with recent violent and criminal histories (not necessarily common mental illnesses such as depression).
Owning a gun is a responsibility, much like driving a vehicle. If you prove yourself unable to handle that responsibility (such as reckless operation or driving while under the influence of drugs or alcohol), you are eventually denied the right to drive at all. I don’t see why this same logic shouldn’t extend towards deadly weapons as well.
I’ve thought about whether I should own a gun or not. Personally, they make me nervous, and in the couple times in my life I could have used one, it probably would have done more harm than good. I was once confronted by a gang of about a dozen thugs while living in Los Angeles late at night. They all had guns and knives. They eventually left without harming me or even taking anything I had with me. Perhaps they were just bluffing, perhaps the Good Lord was just watching out for me that night, I have no idea. I can tell you, however, that had I brandished a weapon, I most likely would have died that night instead of walking home safe.
James, you raised very valid observations regarding the NRA’s uncompromising position on background checks. I see no problem requiring that gun dealers run background checks on buyers to eliminate those with mental problems and criminal records; especially since technology and Internet access allows them to run instant checks. There is no reason to oppose such reasonable and fair requirements. If indeed the NRA is opposing this and there are no other issues involved that may influence the regulations, they are hurting themselves, the industry, and the law abiding gun owners out there.
I usually agree with Mr. Banescu. In this case, however, he assumes / implies something that is flat wrong:
In fact, gun dealers are currently required by federal law to run such checks with the FBI on every single sale. They do so routinely and, in my experience, scrupulously.
The actual area of controversy, usually fuzzed-over by the anti-gun people, is whether sales between private individuals should require similar background checks. Federal law does not require this. Some states do, some don’t.
Before you decide that private sales should have FBI background checks (or whether we need any other new, restrictive laws), consider this: Federal law currently restricts sale of all guns — regardless of whether by dealer or private individual — to adults who have no serious legal, mental health, or domestic violence records, and who are not under restraining order. (What is meant by my term “serious” is defined in considerable detail by the government. It is what you would want.)
So what, exactly, will new laws accomplish? Picture an individual who is willing not only to commit a crime of violence (against the law, by the way) using a gun (against more laws), but also to violate existing laws in merely procuring the gun. Do you seriously imagine such a person will be inhibited by an additional laws? If you do, I’d like to hear your scenario.
I used to think a few new gun laws would make us safer. Now I can’t imagine how they possibly could. Can any of you?
The anti gunners have no idea on the facts about guns. they don’t care they just want guns to go away.This ignorance is their defense .They think there are no laws regulating gun, but there are many.Words like assault weapons they like to use to scare people. Assault weapons are fully automatic and will spray bullets like a water fountain .I believe fully automatics were out lawed in the 1940 to civilians. Anti gunners view( if it looks like a duck it must be a duck.Wrong an AR15 civilians version of the m16 military is a semi auto not fully auto like the m16 (one trigger pull one bullet)semi autos and pump guns like the ar15 have been around since the 1900.the look & operation has been updated in the last 100 years. you don’t drive a model t ford do you? The newest thing now is back ground checks for me to give or sell a gun to a friend or family.The government thinks its people have no common sense.I would not sell a gun to someone I think is shady or is not responsible to have a gun. They just keep chipping away at your freedom until it gone.Get the facts & stand up for your rights.
Augie writes: “So what, exactly, will new laws accomplish? Picture an individual who is willing not only to commit a crime of violence (against the law, by the way) using a gun (against more laws), but also to violate existing laws in merely procuring the gun. Do you seriously imagine such a person will be inhibited by an additional laws? If you do, I’d like to hear your scenario.”
Using that reasoning you could make an argument against all background checks. In other words, why have background checks at all if those who want a gun will get one regardless? Having background checks on private sales would plug the last hole in the system, and would be no more intrusive than they are with commercial sales. Someone who wanted a gun illegally could still get one, but at least he’d have to work at it.
Some gun laws have interesting unintended consequences. As far as I can tell, the main effect that the ban on high-capacity magazines had was to drive up the prices of pre-ban high-cap mags. It also spawned a huge market in compact and subcompact handguns.
On the other hand, some gun owners saw the ban on high-cap mags as The End of Civilization As We Know It. I never understood that, because if a civilian can’t do what he needs to do with 10 rounds, either in hunting or self-defense, something is seriously wrong. The high-cap mag ban didn’t do much good, but it didn’t do much harm either.
I would suggest three new gun laws:
1) people in all states should be able to have concealed handgun licences on a “shall-issue” basis. In other words, if you meet the criteria, you get the license; it’s not up to the local sheriff’s discretion.
2) there should be full reciprocity for handgun licenses across all states. Under the current system, it’s like having a driver’s license that’s only valid in your home state. There is some reciprocity, but it needs to be universal.
3) Training requirements for concealed handgun licenses should be expanded. Anyone who has a concealed handgun license should have training at least equivalent to the content of the basic handgun course offered by Massad Ayoob’s Lethal Force Institute, and people should be required to have refresher courses every few years. Many states have training requirements that are not sufficient.
Well, Jim, I agree with you in many ways. I disgree in one way that might seem incidental. However the reasons for the disagreement are fundamental. I believe strongly in training for firearms owners. I believe equally strongly that such training should not be required by law.
I’ve received the kind of training you recommend. As a volunteer I’ve trained hundreds of people in gun safety classes. I think everyone who owns a gun should get high-quality training. However, the fact I think it is a good idea does not mean I think it should be a legal requirement.
Here’s why I don’t think training should be required by law. My state has been “shall issue” since the 1960s. It does not require proof of training to get a carry permit. Every time the training issue comes up before our legislatrue, the anti-gun lobby lards the bills up with extraneous requirements, including registration of firearms. So I prefer the status quo. Since I don’t recall hearing of any accidents or mischief caused by people around here with carry permits, the status quo is pretty good.
This is an example of why I am opposed to new laws that will probably not accomplish their stated goals (reduce crime and accidents), but will accomplish unadvertised goals (register guns). Legislative bait and switch is as bad as any other kind of bait and switch. And its results stay with us for a long time.
Augie writes: “I believe strongly in training for firearms owners. I believe equally strongly that such training should not be required by law.”
I believe it is a matter of fact that the remaining states without “shall-issue” licenses won’t grant them without a training requirement. On top of that, I think it would be impossible to have universal reciprocity without mandated training. I understand your argument and see the merit, but I’m arguing from a practical point of view.
Also, I think a training requirement is a reasonable governmental requirement. In post #4 JamesK compared a handgun license to a driver’s license: “Owning a gun is a responsibility, much like driving a vehicle.” I see what he means, but I disagree with that.
The difference is that a driver’s license focuses on proficiency in driving; it obviously presumes that that the licensee will “drive.” But concealed handgun training focuses on NOT using the weapon except, as the title of Ayoob’s book says, “in the gravest extreme.” Stated differently, there are countless routine occasions when someone can drive. But the circumstances under which one can legally deploy a handgun are NEVER routine; they are rare, for most non-existent, and even those rare occasions have serious legal implications.
I see handgun training as a simple public safety issue. Carrying a concealed handgun is a privilege, not a right. As a privilege it carries with it a tremendous responsibility. If someone walks around with a concealed handgun that’s great, but I want to know that that person has received some basic training in the use and non-use thereof. I want to know that the person knows enough about ballistics and penetration to select the appropriate hollow point ammunition. I want to know that the person understands the concept of “background.” I want to know that the person will not, through ignorance, jeopardize the privilege of concealed carry for the rest of us.
For what it’s worth, both my wife and I have concealed handgun permits. I have a Glock 19 (in my opinion one of the best for concealed carry), and she carries an HK USP 40 compact. For home defense we have a Mossberg pump shotgun with a tactical light. So far neither of us has had an occasion to use any of those, and I very much hope that that trend continues.
My posts here are now always “under moderation,” and I don’t know if this will survive the moderation filter. If it does, all of the above, as always, is “my humble opinion.”