Gun Control: How the Supreme Court got it all wrong

(Guest post by Craig Olson.  Craig is a longtime resident of the Washington D.C. area and a recently retired employee of the Sate Department.  He's also my older --and smarter [or so he would claim]-- brother.)

The Supreme Court's 5-4 decision to declare unconstitutional a Washington, D.C. law that outlaws the right of individuals to possess handguns was predictable given the Court's conservative make-up.  Still, the decision fails all tests of constitutional law and common sense.

 
The Court said that the D.C. law was unconstitutional because it violated the Second Amendment to the Constitution.  The Second Amendment 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." 

 

Notwithstanding the unusual punctuation and use of capital letters in the amendment, it should be clear to any reader of English that the Framers justified the right to bear arms solely and exclusively on the basis of states' rights to constitute and regulate militias.  It should be clear also that, in the absence of state militias, which have long since been replaced by our professional army and local police forces, individuals do not have a right to keep and bear arms.  This is, in fact, what the Supreme Court concluded in the 1939 case of United States versus Miller.

 

In his majority opinion, Justice Antonin Scalia dismissed Miller out of hand and, in so doing wrecked his own reputation as a fundamentalist and literalist interpreter of the Constitution.  Rather than relying on precedent (Miller) or the language of the amendment itself, Scalia argued, astonishingly, that, according to his "years of scholarly historic research," the dependent introductory clause to the amendment was only one of the reasons that the Framers recognized what he said was a "preexisting" right to bear arms.  Scalia went even further by writing that the Second Amendment "surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 

Say what?  Where does the Second Amendment say that?  Do we pay Supreme Court justices to be historians or judges?  Here are some names and incidents that Scalia the historian should have taken into account:  Lincoln, Garfield, McKinley, Kennedy, Reagan, Columbine, Virginia Tech.

The Court's decision also fails on common sense grounds.  The D.C. law, which about three-quarters of D.C. residents favor, was aimed at banning a particular type of firearm -- handguns.  But now that the Court has "elevated above all other interests" individuals' right to "use arms," what is to keep homeowners from acquiring and using machine guns, or mortars, or, for that matter, nukes?  All those are "arms," no?  If the Second Amendment outlaws the right of a community to decide that individual possession of handguns is not in the community's interests, wouldn't the Second Amendment also prohibit a community from outlawing individual possession, say, of bazookas?

 

Virtually every developed country, including Canada, Japan, and most of Europe, have very strict controls (including, in many cases, bans) on handgun possession.  Not surprisingly, the countries with those controls have far lower rates of violent crime than does the United States.  Statistics are crystal clear, moreover, that if you have a handgun in the house, it is far, far more likely that a member of your household will use that handgun to commit suicide or to kill another family member -- accidentally or deliberately -- than to use the handgun to defend "hearth and home" against an intruder.

 

Defenders of the Court's decision will argue that the D.C. ban did little to reduce violent crime in D.C.  But that is easily explained by the fact that handguns are readily available in Virginia.  Virginia's laws are so lax, in fact, that they allow individuals to wear pistols, without a license, in readily visible holsters, just like in the Wild West.  D.C. police do not stop cars crossing the Potomac River from Virginia into D.C. to see if they are transporting handguns.

(N.B. -- A Blue Oregon post yesterday called the language of the Second Amendment "ambiguous."  As Craig points out, it is anything but ambiguous.  I've previously written as much on my post "The grammar and politics of the Second Amendment." --Terry

 

Comments

[Chuck Butcher]

Terry,
I bet you'll be real surprised that I take exception to this article.

Miller ruled on the militia utility of a sawed off shotgun not anything in respect to membership in an organized militia. The ruling was that the shot gun did not meet the military requirements and could be outlawed. You can't get from there to militia = national guard = no individual right. There is no historical view of the collective right previous to the 1970s. Brady propaganda regardless and the framers had no intention whatever in formalizing the militias or folding them into State control. "a free state" is the absolute disqualifier of that idea, this is not "the state" or "the United States" nor "the State" it is a description of a condition of being that is outside government.

Research the literature of the 2nd prior to the 1970s and see what is there, no need to take my word for it. As to the perception of security your brother felt, it was the illusion of someone "doing something" as opposed to reality; the numbers make it pure nonsense. It is really odd to find a progressive blog arguing for the restriction of liberties rather than their expansion. I believe you'd be offended by the security argument regarding the other BORs.

[Terry]

I don't know how you define "liberties", Chuck, but I can live without the "liberty" of Wesley Higdon to gun down his boss after an argument over goggles. He then felt free to shoot and kill four of his co-workers.

The families of the dead are probably counting their blessings in the wake of the Supreme Court's protection of HIgdon's Constitutional right "to keep and bear arms."

[Harry Kershner]

Hey, Craig. I'm a 1964 graduate of Ballou HS in DC. Hot time, summer in the city.

Now for my disagreement.

As much as it hurts me to disagree with Chomsky (in Terry's grammatical lesson), I have to say that I never have been able to understand the wording of the 2nd Amendment, and I've read that it was intentionally written as a triangulating position because of differences of opinion between the authors. I do think we need a law that clarifies the matter, because I agree that we should not be selling nuclear weapons to people, even if I may need them to protect my family.

I also agree with my libertarian brothers and sisters that the power of government should be feared and resisted, so I have no problem supporting a right to have some types of firearms. Chomsky's argument notwithstanding, I believe that the fact that citizens are likely to be armed does deter some strongarm tactics by the militias of the state.

[Terry]

Hey, Harry, we graduated high school the same year, just on different sides of the continent. (We're the first of the baby boomers!)

I'll let Craig respond to both your comments, although I must say that I have a hard seeing an armed citizenry as a deterrent to government tyranny. I just wrote a comment to Blue Oregon disputing the notion. (It's like #82 of the 83 currently displayed.)

[Chuck Butcher]

Terry in a country where drugs have been banned longer than guns how difficult is it to get them? What is required is a willingness to break the law to do so. There are sufficient guns in illegal circulation to make the situation nearly the same so what you propose is to make legal ownership difficult. You will penalize the law abiding.

When people lose their minds bad things will happen. I don't like it any more than anyone else. I suppose that a real good restriction of civil liberties might have prevented 9/11, Bush would have us think so.

[Matt Vreeland]

Terry,
I just happened to stumble upon your blog while browsing the web, and I'd like to comment on this article because you make quite a few erroneous statements.

First of all, with regard to the wording of the amendment itself, note well that the "right to keep and bear arms" is being granted to "the people," not to the "well-regulated militia," by the main clause of the sentence. The rhetorical device employed in the first part of the sentence ("A well-regulated... free State") is known as an "ablative absolute," a form borrowed from Latin prose that would have been familiar to the framers of the Constitution, most of whom were classically educated. All it is saying is that a well-regulated militia is necessary in and of itself; as any expert of the English language will tell you, it is not a a condition for the main clause of the sentence, which explicitly grants the right to keep and bear arms to the people. You could read the inclusion of the ablative absolute in two ways: Either the right of the people to keep and bear arms must exist in order to maintain a militia, or the right of the people to keep and bear arms must exist in order to keep that militia in check. Which interpretation was meant by the framers isn't clear, but it is inconsequential to this discussion; either way, the right of the *people* (having nothing to do with the militia) shall not be infringed. That makes the right to keep and bear arms an individual right.

Now, with regard to international gun laws and violent crime rates, you would do well to check your facts. It is true that many (but certainly not all) developed countries have strict controls on handgun ownership and usage, but it is also true that these countries typically have higher violent crime rates. Here are some examples: Violent crime in the United Kingdom -- especially violent crime involving handguns -- has been on the rise ever since they banned handguns in 1997 (source: http://news.bbc.co.uk/1/hi/uk/1440764.stm). On the other hand, Switzerland has virtually no violent crime and virtually no gun control (far less than the United States even). How can that be? Well, it's simple: Criminals don't follow gun laws.

I guarantee that with the removal of this ban you will see substantial decreases in violent crime in D.C. within five years.

To learn more about the truth about gun control and its ineffectiveness, I recommend http://www.gunfacts.info

[Terry]

Thanks for the comment, Matt.

Unless you read the link to my post "The grammar and politics of the Second Amendment", I think your argument is with my brother, Craig, who wrote the post on the Supreme Court decision, particularly regarding international gun control laws. I'll let him respond to your objections and defend his own "erroneous" statements. (I do, however, agree with his conclusions.)

I would only point out that in my original post, I reference the leading linguist and grammarian of the 2Oth century, Noam Chomsky, who denies emphatically that the 2nd Amendment granted an "individual" right to keep and bear arms.

Latinate grammar, by the way, is passe, quite inadequate to the task of describing the structure of the English sentence. That's what motivated Chomsky to create his Transformational Grammar.

[Craig]

"ablative absolute?" Nice, try Matt Vreeland.

Let's simplify at bit. Suppose the Framers had written the Second Amendement as a simple declarative statement: "The right of the people to keep and bear arms, shall not be infringed." Now, you're on solid ground.

But the Framers saw fit to qualify the that declarative statement by prefacing it with 12 words: "A well regulated Militia, being necessary to the security of a free State,"... Gee, I wonder why in the world they would have done that.

[Matt Vreeland]

My mistake on addressing the post to you, Terry.

Craig,
Broken down grammatically, the second amendment does indeed contain that declarative statement. The first half of the sentence is not a conditional statement, it is merely an introductory one.

Interpretations of the wording aside, what response do you have to the figures regarding violent crime and gun control, all of which point to higher rates of violent crime in areas with higher gun control? I believe that this is the more important issue when considering the legitimacy of gun control laws.

Cheers,
Matt

[Craig]

The answer to your question, Matt Vreeland, about gun control and crimes of violence is simple. There are no controls on the interstate commerce of handguns. All along the East Coast, there is a lively trade in guns originating from purchases in states with lax gun control laws to areas (largely urban) where guns are harder to purchase.

But the issue is not so much deterrence of crime as detterence of household violence associated with guns. The facts are clear. If you have a gun in your house, you are 12 times more likely to see that gun used to kill or injure a member of your household than to use it to shoot or deter an intruder.

Ask yourself why countries -- like most in Europe -- that ban individual possession of handguns have far lower levels of violent crime than does the United States. Ask yourself also if the U.S. would not be better off if noone had a handgun. And please don't reply that if you ban handguns, only criminals will have them. It may take a while, but there is no technical reason why, over time, we couldn't rid ourselves of all these weapons.

[Matt Vreeland]

Craig,
According to ATF, 93% of the guns used in crimes in this country were obtained illegally. That means they were not obtained in a gun store in Virginia or anywhere else; they were either stolen or purchased on the black market.

Criminals aren't motivated by the legal availability of guns; they're motivated by opportunity, and stricter gun controls on law-abiding citizens gives them more opportunities to commit crimes. That's why D.C.'s murder rate rose 134% (!) from the handgun ban year (1976) through 1996, while the national murder rate dropped 2% during the same time period (source: Dr. Gary Kleck, University of Florida using FBI Uniform Crime Statistics, 1997). That's also why Maryland, the state that claims to have the toughest gun control laws in the nation, ranks #1 in the nation for armed robbery and #4 in both violent crime and murder (source: FBI Uniform Crime Reports (UCR) for 2000).

Your statistic about guns in the house being 12 times more likely to kill or injure a family member is misleading. First of all, the vast majority of deaths caused by firearms at home are suicides. Accidental gun deaths account for an extremely small percentage of accidental deaths each year, about .08% (source: Center for Disease Control, WISQARS). You are four times more likely to burn to death or drown, 17 times more likely to be poisoned, 19 times more likely to fall to your death and 53 times more likely to be killed in a car accident than you are to be accidentally killed by a firearm. Additionally, there is no way that you could possibly have an accurate record of the number of crimes that privately owned guns deter without violent incident each year; crimes that never happened aren't documented. It's true that it is very unlikely that a privately owned firearm will actually be used to shoot an intruder -- usually pointing a gun at a would-be offender is enough to scare them away -- but that's a good thing.

If you'd like an international example of gun control screwing over law-abiding citizens, look no further than the United Kingdom, where firearm use in crime has more than doubled (!) since they banned handguns (in the entire nation, so no state border hopping there) in 1997. Robbery, violent crime and murder have all been on the rise since the handgun ban as well (source: British Home Office, reported by BBC news). The fact is that most "first-world" countries with stricter gun control actually have higher, not lower, rates of crime, especially violent crime. There are some exceptions to this, such as Japan, but for the most part, this holds true.

Look, I don't own a gun myself, and I'm with you insofar as I think it would be nice if we could somehow make them truly unavailable for everyone. But that's impossible, and refusing to allow law-abiding citizens to defend themselves puts everyone at unnecessary risk and encourages criminals to commit more crimes.

Cheers,
Matt

[Craig]

Matt,

Please don't confuse the readers of this blog with cherry-picked numbers.

You say that firearm violence has "more than doubled" since handguns were banned in the UK in 1997. If that's the case (and I have no reason not to believe you), the number must have been very small in 1997. The fact is that in 2004 (latest year for which I have data), firearms were used to kill a total of 73 people in England and Wales (I don't have the data for Scotland and Northern Ireland). I'm not much of a mathematician, but, if there were 73 deaths in England and Wales in 2004, and if this represents a doubling since 1997, then there were about 37 firearm related deaths in 1997.

To throw in a few other countries with strict handgun controls, in 2004, firearms were used to murder 56 people in Australia, 184 people in Canada, 5 people in New Zealand, and 37 people in Sweden.

How do these numbers compare with the U.S.? In 2005 (latest year for which I have data), firearms were used to kill more than 30,000 people in the U.S. Of these, 12,000 were murdered and 17,000 committed suicide with the remainder killed accidentally. In addition, for every firearm fatality in the United States in 2005, there were more than two non-fatal firearm injuries.

Yes, the population of the United States is five times that of the United Kingdom, but, by my rough math, the U.S. had, in the cited years about 400 times more firearm related deaths than England and Wales (again, I can't find the data for Scotland and Northern Ireland, but I doubt whether they would change the relative numbers much.) Looking at it another way, in England and Wales, there was about one firearm death for every 800,000 people. In the U.S. there was one for every 30,000.

Even if the UK data represents some kind of doubling, I'll take the UK numbers over the U.S. numbers every time.