Wednesday, October 10, 2007

THE FATE OF THE SECOND AMENDMENT








The D.C. Gun Ban: May be going to the Supreme Court

By de Andréa

On September 4, the District of Columbia government asked the Supreme Court to reverse a federal appellate decision in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), which upheld a Second Amendment challenge to D.C.'s ban on all functional firearms.

This should be one of the major issues of our time; few Americans are cognoscente of the true meaning or original purpose of the Second Amendment. The truth is that without the Second Article of the bill of rights all Americans rights are in jeopardy. One must be aware that the right to keep and bear arms is …“necessary to the security of a free state”... If it is necessary, then without the individual right we do not have a Free State.

The six D.C. residents who brought the lawsuit against the district, although they won in the lower court — agree with the city that the Supreme Court should revisit the Second
Amendment for the first time since 1939. A four-square pronouncement from the High Court is long overdue. The entire nation, not just Washington, D.C., needs to know how courts will interpret "the right of the people to keep and bear arms.” Sometime before year-end, the justices will decide whether to review the case. If the Supreme Court chooses to intervene, a final decision will probably be issued by June 30, 2008.

D.C. Mayor Adrian M. Fenty and attorney general Linda Singer, in their petition to the Supreme Court and in a Washington Post op-ed ("Fighting for Our Handgun Ban," September 4), raise four arguments in support of the city's ban. Their first argument is that the Second Amendment ensures only that members of state militias are properly armed, not that private citizens can have guns for self-defense and other personal uses.

It is interesting how Legal Manipulators otherwise known as lawyers can read words in a document that are not printed on the page or ever discussed by the framers of the document. Like magicians, they pull things out of thin air, in this case the word “State” as in “state militia” appears as if by magic just to support their agenda of disarming the citizens of a free state, for the purpose of rendering them helpless in the face of either criminal or government tyranny.

If one knows even a little about U.S. history, State militias did not even exist at the time of the assemblage of the Constitution. The Constitutional architects feared even a standing Federal army. The revolutionary war was not fought with state militias but citizen militias a bunch of rag tag farmers that General Washington finally whipped into shape. State militias did not exist until the civil war.

That contentious question has been debated at length on these pages. See Dennis Henigan, "The Mythic Second," March 26, 2007; and Robert A. Levy, "Thanks to the Second Amendment," April 16, 2007.

The city's remaining three arguments — two legal claims and one policy claim — have received comparatively less attention. First, declares the mayor, even if the Second Amendment protects private ownership of firearms for non-militia purposes, a ban on all handguns is reasonable because D.C. allows possession of rifles and shotguns in the home. Second, the Amendment restricts the actions of the federal government, but not the states, and D.C. should be treated the same as a state for Second Amendment purposes. Third, "handgun bans work"; the streets of the Nation's Capital are safer as a result. Let us consider each argument in turn.

It is okay to ban handguns as long as rifles and shotguns are permitted.

The D.C. Circuit, for good reason, called that argument "frivolous.” "It could be similarly contended," wrote Senior Judge Laurence Silberman, "that all firearms may be banned so long as sabers were permitted.” After all, D.C. does not ban home possession of knives or hatchets, not yet anyway. Does that justify the city's handgun ban? Could publication of cookbooks be barred under the First Amendment as long as restaurant guides were allowed?

Moreover, the argument is not only frivolous but a flat out lie, D.C. Code bans not just handguns, but all functioning firearms. Rifles and shotguns in the home must be unloaded and either disassembled or bound by a trigger lock. That's why one of the Parker plaintiffs, who owns a shotgun, had to sue in order to render the weapon usable in an emergency.

Not to worry, says the mayor. "The District does not … construe this provision [regarding rifles and shotguns] to prevent the use of a lawful firearm in self-defense.”

This statement is really telling of the ignorance of these District Leaders or are they just lying again to manipulate their own laws to make them read differently every time they are read, talk about a living document.
This assurance might be heartening were it not disingenuous. Once a rifle or shotgun is loaded, according to DC law, it is no longer a "lawful firearm.” Accordingly, D.C.'s pledge, limited to lawful weapons, is an empty one. A gun must be operative and loaded before it can be used in self-defense, in doing so the weapon becomes illegal. Moreover, any owner who waits to load and assemble a gun until it is needed for self-defense has waited too long. If the mayor means what he says, he should have no problem repealing the city's ban on home possession of functional rifles and shotguns, as the Parker plaintiffs have demanded.

D.C. is like a state, and the Second Amendment doesn't apply to states.
The District relies on an 1886 case, Presser v. Illinois, for the proposition that the Second Amendment applies only to the federal government, not to the states. Admittedly, D.C. is not a state. But, says the mayor, the city should be treated the same as a state when courts review its gun control regulations. Therefore, so the argument goes, the city is immune from a Second Amendment challenge.

That argument fails on two counts. First, none of the amendments in the Bill of Rights originally applied to the states. Beginning in 1897, however, 11 years after Presser, the Supreme Court decided that the post-Civil War enactment of the 14th Amendment was intended to "incorporate" most of the Bill of Rights in order to hold state governments accountable for violations. To be sure, the Court never formally ruled that the Second Amendment was incorporated, but even ultra-liberal Ninth Circuit judge Stephen Reinhardt has conceded that "Presser rest[s] on a principle that is now thoroughly discredited."

Second, even if states are exempt from the Second Amendment, the Constitution expressly grants to Congress, not a state, plenary legislative power over all matters whatsoever in the Nation's Capital. Because the Second Amendment indisputably applies to the federal government, it therefore applies to the District, a federal enclave. D.C.'s assertion that its city council, a creature of Congress, should enjoy an exemption from the Second Amendment that binds Congress itself is quite simply bizarre. If it were true, then the Seventh Amendment right to a jury trial in civil cases — which also hasn't been incorporated — would not apply to D.C. either. But the courts have held otherwise. See, e.g., Pernell v. Southall Realty (U.S. 1974).

The city responds that the Second Amendment is different because, unlike the Seventh, the Second is a limitation on federal power over the states. In effect, that's the collectivist or states' rights view of the Second Amendment. Thus, the District's claim of exemption merges with, and depends on, its collectivist interpretation of the Second Amendment. If D.C. is wrong about the Second Amendment, then its "no-incorporation" argument collapses as well.

The argument "Handgun bans work"; they have "saved countless lives."
Before the District banned handguns in 1976, the murder rate had been declining. Soon afterward, the rate climbed to the highest of all large U.S. cities. It also rose relative to nearby Maryland and Virginia as well as relative to other cities with more than 500,000 people. During the 31-year life of the gun-ban, the average, violent crime rate per capita in Washington, D.C. has been higher than in any other major city in Ameriaca.

In 12 of the years between 1980 and 1997, including all nine years from 1989 through 1997, the violent crime rate in D.C. exceeded 2,000 per 100,000, reaching a high of 2,922 in 1993, versus 1,481 in 1976 — a 97 percent increase in violent crime, 17 years after citizens were forbidden from defending themselves with firearms. Moreover, the murder rate climbed as high as 81 per 100,000 inhabitants in 1991; triple the pre gum-ban levels. As of 2005, the last year for which I have data, the murder rate is still 32 percent above the 1976 level.

Again the DC officials make it up as they go along these statistics are available from the FBI Bureau of Statistics. I certainly hope that these bunch of lies are all the DC lawyers have when they go before the U.S. Supreme court. If so, the Second Amendment will finally, after 200 years become an inalienable right as the framers intended.

Two non-partisan, respected federal government agencies recently examined gun controls and found no statistically significant evidence to support their effectiveness. In 2004, the National Academy of Sciences reviewed 253 journal articles, 99 books, and 43 government publications evaluating 80 gun-control measures. The researchers could not identify a single gun-control regulation that reduced violent crime, suicide, or accidents.

A year earlier, the Centers for Disease Control and Prevention reported on an independent evaluation of firearms and ammunition bans, restrictions on acquisition, waiting periods, registration, licensing, child access prevention laws, and zero tolerance laws, which only encourage criminals. Conclusion: none of the laws had a meaningful impact in reducing gun violence.

THE BOTTOM LINE: Based on those statistics, there is a compelling argument that Americans deserve an opportunity to defend themselves by possessing suitable firearms. But even if the data were to cut the other way — even if it could be demonstrated (which it emphatically cannot) that more gun laws lead to less crime — gun laws are not just about public policy. They are about the meaning of the Constitution. Hopefully, the U.S. Supreme Court, at long last, will answer this vital question: Does the right to keep and bear arms belong to us as individual citizens, or does the Constitution merely recognize the collective right of states to arm the members of their militias?

de Andréa

Related articles:

No comments: