Thursday, June 26, 2008

Guns, the Constitution and the Supreme Court

Well, the Heller decision is in at last. The Supreme Court has confirmed - by a razor-thin majority of 5-4 - that it's an individual right to 'keep and bear arms', and to own a firearm and use it for defense in the home, as well as other legal purposes.

The decision doesn't go very far beyond affirming the individual right. The question of what is a 'reasonable' restriction on that right will doubtless be decided in court cases up and down the country over the next few years. At least the basic right itself has been firmly asserted at last - something that was long overdue.

I simply can't understand some of the language and reasoning of the dissenting judges. I'm going to have to review their points carefully. However, I think that anyone with half an ounce of gray matter in their heads could understand that the Founding Fathers and the framers of our Constitution clearly saw the right to keep and bear arms as an individual right. Even liberal and/or Left-wing Constitutional scholars such as Professor Laurence Tribe of Harvard Law School have acknowledged this. Given that the Constitutional amendments incorporated in the Bill of Rights are aimed at 'the people', and confer rights upon individuals, how can it logically be denied that the Second is as much an individual right as the First or the Fourth? How could four justices dissent from such a generally accepted fact? This baffles me. It's irrational, illogical, and totally at variance with the facts of the matter - facts that can be easily ascertained by referring to the Founders' and Framers' own words.

I'm also aware that no right exists pure and untrammeled, as an 'absolute' right. From the very beginning, the SCOTUS has ruled that rights are subject to 'reasonable' regulation. This is, again, obvious to any right-thinking person. Clearly I, as a firearms owner and carrier, can't insist on my right to bear arms on the property, or in the home, of someone whose religious or other views convince them that such ownership or carrying is somehow immoral, or otherwise wrong. On their land, in their home, they have the right to exercise their rules. I can either adhere to their rules under such circumstances, and leave my gun at home, or exercise my own right of choice, and not visit premises or people where such restrictions apply.

This is going to be rather more tricky to work out with regard to states and municipalities. Many states now offer concealed-carry permits, but some don't: and of those that do, some offer them on a 'may-issue' basis, where they reserve the right to deny a permit for reasons they consider good. I think the Heller decision is likely to make such policies unconstitutional, as they discriminate against a Constitutional right. I look for such states to move to a 'shall-issue' basis for their permits, and for those denying such permits to come under increasing pressure to issue them.

The problem is going to hinge on the 'bear' aspect of the Second Amendment. The 'keep' part is fairly straightforward: any outright ban on firearms, or a class of firearms, is now clearly unconstitutional. However, the anti-gun lobby will now argue that one can be severely restricted in where and how one can 'bear' the arms concerned. I note with interest that in the fabled 'Wild West', law officers such as the Earps and Hickok had ordinances promulgated in the towns where they served, forbidding the carrying of firearms. Those ordinances were probably unconstitutional, of course, but there are many modern equivalents, in particular the Washington, DC regulations involved in the Heller case.

Anti-gunners would like, I'm sure, to restrict the 'bearing' of arms to the confines of one's own home, or a shooting range, or during travel between them. I think such restrictions will be ruled too strict - at least, I hope so - but I'm sure the anti-gun lobby will try to work around that. It'll be interesting to see what sort of lawsuits come down the pike in the next few years.

I expect the anti-gunners to mount all sorts of attempts to introduce restrictions like the following:

  • Forbidding the possession of full- or semi-automatic weapons, restricting civilian ownership of firearms to non-automatic weapons like bolt-, slide- or lever-action long guns and revolvers;
  • Restrictions upon the caliber of weapons allowed;
  • Restrictions on ammunition, including trying to forbid the use of hollow-point projectiles and restrict the quantity of ammunition (and/or ammunition components) one is allowed to store at home;
  • An 'arsenal license' would be required for owners of more than a certain number of firearms, including onerous (and expensive) storage requirements;
  • Further attempts to reimpose the so-called 'assault weapons ban' (which was never an outright ban, and didn't affect assault weapons anyway - they were already regulated by legislation concerning full-auto firearms).
It's going to be an interesting few years. Those of us who own firearms and support the Second Amendment are going to have our work cut out to fight off the flood of new attacks on our rights. The anti-gunners have already started their barrage of propaganda against the Heller decision. Josh Sugarman, executive director of the anti-gun Violence Policy Center, ignores law and the Constitution and instead attacks Justice Scalia directly, trying to paint him as a tool of the fearsome 'gun lobby'. That's about what I'd expect of Sugarman, given his past pronouncements. The VPC's own press release also ignores law and the Constitution, and bleats about the touchy-feely issues it espouses without saying anything much about the law that underlies the matter. Again, that's about what I'd expect from this sanctimonious, logic-less, feelings-rather-than-facts group.

Heads up, friends. One battle's been won. The war remains active.


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