Content, Domestic, Issue, Judicial — May 27, 2008 at 9:12 pm

Much Ammo About Nothing

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Few issues bring forth such bilious bombast as the firefight between gun advocates and anti-gun activists. Shootings at Northern Illinois University and Virginia Tech recently brought questions of gun control back into the public consciousness. Now, as the Supreme Court prepares in this summer’s District of Columbia v. Heller to address the 2nd Amendment for the first time since 1939’s U.S. v. Miller, the bile is rising once more.

Illustration by Shaina Rubin

But all the hoopla may turn out to be for naught if the Supremes turn in a narrow ruling, one which confines its scope to the specific law in question: a prohibition on operable guns (i.e. capable of discharge) in private residences in the District of Columbia. Although both sides are working themselves into a lather over the case, it’s probable that the ruling will leave them disappointed. Given the current composition of the court—which hinges on the moderately conservative Justice Anthony Kennedy —the Nine will almost certainly rule that gun ownership is an inalienable right, but one that can be regulated. In any event, how we got to this point merits a discussion of the battle over the 2nd Amendment.

Those who seek to strengthen controls on private ownership of firearms point to the United States’ high level of gun crime compared to other industrialized nations: approximately 7 murders using firearms (75% of all murders) per 100,000 people in the United States, compared to an average of .35 per 100,000 in Europe, and .75 in Canada. By comparison, the rate in Russia is about 20 per 100,000 and in Colombia 60 per 100,000. Additionally, 53% of all suicides in the United State are with guns. Add it up, and groups like the Brady Campaign and the Coalition to Stop Gun Violence believe they have a compelling statistical case in favor of strict limits on who can own guns and where gun owners can take them. Some claim that statistics alone should invalidate any claims made to a personal right to own firearms – that empirical evidence pointing out the greater public good garnered from restrictions on gun ownership, or even a ban on private firearms, should outweigh an antiquated piece of parchment.

Yet statistical arguments made by both sides have proven problematic. John Lott, author of More Guns, Less Crime, has argued that “shall-issue” laws—which require that any citizen be issued a handgun license upon request —correlate to lower rates of violent crime. But in its review of the book, the New England Journal of Medicine noted that Lott failed to adopt proper statistical controls when comparing crime rates in such disparate areas as Idaho and New York City. In urban areas, more guns lead to more crime, while in rural areas, where gun ownership is more prevalent, violent crime rates are lower. This evidence, however—even if it supports gun control—is irrelevant to the legal question addressed in Heller. Both sides of the case have presented arguments rooted in interpretations of the original meaning of the Amendment —not in the view that the interpretation must change to meet changing social conditions or statistical evidence.

The essential problem, then, is whether that first clause of the Amendment—which 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”—is more important than the second. That is, whether the amendment is primarily discussing a militia, or a more general right to bear arms. Proponents of gun control argue that “keep and bear arms” was only intended to protect firearms insofar as they were necessary for militias. No militia, no need for guns. They have been supported by decisions such as 1984’s United States v. Kozerski, in which the opinion declared, “the right guaranteed by the Second Amendment is a collective right to bear arms rather than an individual right, and has application only to the right of the state to maintain a militia and not the individual’s right to bear arms.” On the other hand, the decision in Parker v D.C., the case immediately preceding Heller, defined a militia as “an organized military body —such as the National Guard,” which would seem to indicate that militias are not as defunct as gun control advocates would like to believe.

Of course, one of the original intentions of the Second Amendment perceived by gun rights defenders, that of allowing the people an ultimate recourse against a tyrannical government, rings a bit hollow these days. When the government can oppose citizens’ hunting rifles with stealth bombers, aircraft carriers, and Abrams tanks, the futility of such an argument becomes apparent. The Minutemen as a militia could form a fighting force not much different from that of the British redcoats; it seems improbable that the average NRA chapter would stand ten seconds against a modern military.

A greater flaw lies in the argument made by those seeking to uphold the DC gun ban, which completely negates individuals’ rights to bear arms purely for self-defense on one’s property. Justice Anthony Kennedy made the point somewhat comically when he raised a hypothetical case in which a settler on the frontier would need to defend himself from a grizzly bear attack. He might not be a member of a militia, but surely the Second Amendment was intended to guarantee his ability to defend himself and his family. Opponents of the “collective rights” doctrine point out that the other amendments in the Bill of Rights guarantee individual rights and ask why the Second should be any different.

With four solid conservative votes in Justices Clarence Thomas, Samuel Alito, Antonin Scalia, and Chief Justice John Roberts, and the swing vote—Kennedy —obviously sympathetic to the plaintiff, it is almost certain that the D.C. regulation will be struck down, and that an individual—rather than collective—right to bear arms affirmed. In his analysis of Heller, constitutional scholar Randy Barnett concluded that while the court is likely to rule that the Second Amendment provides for an individual right, its ruling will be so limited as to indicate that most existing gun regulations would likely be upheld. At the same time, because the District of Columbia isn’t a state—it’s technically under Congressional jurisdiction—and because its gun ban is far more extreme than those elsewhere, the ruling in Heller will not be a final answer to the question of gun control in the United States.

Much, then, remains to be determined. A proper balance must still be sought between the moral right to self-defense and the troubling abundance of weapons in American society —an estimated 235,000,000 firearms for 300,000,000 people. Nor can the court decide the effectiveness of the gun regulations it rules constitutional. It also cannot arbitrate the sticky electoral side of the issue—Barack Obama recently came under fire for suggesting that poor rural Americans “cling” to guns (and religion), the first time in the ‘08 cycle that the issue has been raised, since both Democratic candidates evade it as a “third rail.” And, ultimately, Heller cannot even decide the law—or though stare decisis, deference to previous decisions, may guide the Court, it cannot override the express will of the people. The debate on gun control—not one of rhetoric and bloviation, but a real, substantive discourse—must continue.

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