One Year After Heller
One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.
The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.
The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.
Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.
It will be interesting to see what the next year brings for the Second Amendment.
New Doherty Book Review
There is a new review of Brian Doherty‘s book, Gun Control on Trial: Inside the Supreme Court Battle over the Second Amendment, over at The American Spectator.
The review captures the uphill battle that the Heller litigants faced in the District of Columbia:
When an employee on the Taxicab Commission once suggested that taxicab drivers be able to arm themselves for self- defense, a spokesman for then mayor Anthony Williams said, “The proposal is nutty, and obviously, it would not be entertained seriously by any thinking person.” After D.C. readjusted its laws in the wake of Heller so that guns were no longer prohibited but regulated to the point of making ownership exceedingly difficult, Mayor Adrian Fenty justified it thusly: “I don’t think [the people of D.C.] intended that anybody who had a vague notion of a threat should have access to a gun.” Apparently the mayor doesn’t know or doesn’t care that once a threat is real, it’s probably too late to go through all of the city’s regulatory hoops.
Cato held a book forum for the event, which is available here. Also check out Reason TV’s videos of Brian discussing this historic legal battle, both before and after the decision came down.
Yes, California, There Is an Individual Right to Keep and Bear Arms
Last June, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects an individual’s right to keep and bear arms, at least in the home for self-defense. Here’s our own Bob Levy, who masterminded the Heller litigation, talking about that decision:
While the Court’s ruling was a watershed in constitutional interpretation, it technically applied only to D.C., striking down the District’s draconian gun ban but not having a direct effect in the rest of the country.
Well, today the Ninth Circuit (the federal appellate court covering most Western states) ruled that the Second Amendment restricts the power of state and local governments to interfere with individual right to have guns for personal use. That is, the Fourteenth Amendment “incorporates” the Second Amendment against the states, as the Supreme Court has found it to do for most of the Bill of Rights. I rarely get a chance to say this, but the Ninth Circuit gets it exactly right.
Here’s the key part of Judge Diarmuid O’Scannlain’s opinion:
We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.
In short, residents of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington now join D.C. residents in having their Second Amendment rights protected. And courts covering other parts of the country — most immediately the Seventh Circuit, based in Chicago — will have their chance to make the same interpretation in due course.
Just as interesting — and potentially equally significant — is the footnote Judge O’Scannlain drops at the end of the above text in response to arguments that the right to keep and bear arms, regardless of its provenance as a fundamental natural right, is now controversial:
But we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.
Quite right.
“If I Had ONLY a Gun”
ABC’s 20/20 did a hit piece on the Second Amendment and armed citizens on Friday night. The show responded to the growing sentiment that “if I only had a gun,” maybe an armed citizen could make a difference in a spree shooting such as the incidents at Virginia Tech and Northern Illinois University. In reality, it ought to be called “if I had ONLY a gun.” Picking people without concealed carry permits to represent the armed citizen and rigging the scenario to ensure that they don’t defeat your narrative is propaganda, not journalism.
Several college students are selected to represent the “armed student” hypothetical, given some marksmanship training, and armed with training guns that shoot paint bullets. The firearms instructor who trained them plays spree shooter and storms the room. All of the students are hit before they can effectively engage the mock spree shooter.
The show handicaps this scenario in favor of the attacker in several ways. First, none of the students selected are actual concealed handgun permit holders who carry daily and practice regularly. Those with more experience get it from shooting Airsoft guns or from a form of shooting that does not involve drawing from concealment. The poor performance of the students in hitting the attacker is supposedly explained by the lack of law enforcement firearms training.
The simulation is too narrowly construed to show the full impact of an armed response. First, the experiment is limited to one armed student in the first classroom that the spree shooter hits. At Virginia Tech, the spree shooter entered several rooms, so a student in any room other than the first would be able to draw, find a position of cover and concealment, point the gun at the door, and wait for the assailant to enter. Second, the experiment supposes that an intended victim pulling a gun and shooting back, even if not immediately effective, does nothing to stop the attack.
These results don’t reflect the reality of an armed citizen responding to a spree shooter. Contrary to what the firearms instructor says, it is not “too much for a normal person” to deal with. Often, the mere confrontation with an armed response takes them out of their revenge fantasy and derails the killing spree.
New Podcast: ‘War on Drugs, War on Guns’
Attorney General Eric Holder said recently that in order to quell the violence spilling over from the drug war in Mexico he will push to reinstate the ban on “assault weapons” in the United States.
But, says Legal Policy Analyst David Rittgers in today’s Cato Daily Podcast, a policy like that won’t do much to quell violence.
The [drug] cartels have access to lots and lots of money because of our prohibitionist policies in the US. And because of this money they can get these weapons whether we have them legal or illegal…and they’ll have access to the black market to get fully automatic machine guns if they want them.
… If you like the war on drugs, you’re going to love the war on guns.
Good Coverage of AG Holder’s War on Guns
As I said earlier this week, Eric Holder’s push for an “assault weapons” ban is a misguided policy that will not have any serious impact on Mexican drug cartels. It really ought to be called a “ban on semi-automatic firearms with politically incorrect cosmetic features,” but that doesn’t exactly roll off the tongue. I am pleased to see that CNN is providing coverage of this that notes (1) the difference between semi-automatic sporting arms and machine guns and (2) that Mexican authorities are not releasing the serial numbers of firearms seized from the gangsters. This is probably because many of these guns are coming from the Mexican government, not American gun stores. The drug cartels are putting up billboards to recruit soldiers and policemen as hired muscle. Don’t be surprised when they walk off the job with the guns you issued them, and don’t shift the blame to the Second Amendment.
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