DC v. Heller: No Room to Argue

Today the Supreme Court will hear it's first Second Amendment case in about 75 years. I've heard all manner of hyperventilating about this case by people on all sides of firearms issues. Anti-gun types say that they are concerned that if the Court upholds the lower court's decision, the ability of states and municipalities to enforce any of their existing gun control laws could be threatened. A few deluded pro-gun people are rejoicing at the same prospect.

Allow me to clarify what is actually at stake here. District of Columbia v. Heller is really only looking at the most far-right, totalitarian concept of gun control. Not the measures that any state has on it's books. The question before the court is whether a government can completely ban private ownership of firearms.

That is essentially the situation in DC. Handguns are forbidden to any private citizen, even within their own homes. Rifles and shotguns are theoretically available, but DC has made the process of obtaining the required permits deliberately impossible for ordinary people to navigate. Then even if you do somehow secure a permit to possess a shotgun or rifle in your own home, at all times that weapon must be either disassembled or disabled by the use of a trigger lock. You may not assemble or unlock the weapon even to clean or maintain it. Literally, if a crazed, drunken burglar kicks in your front door and starts beating your wife with a baseball bat, it is illegal for you to remove that trigger lock in order to defend yourself and your family.

Under DC's body of law, even rifles and shotguns effectively cease to be weapons in the hands of people who follow the letter of the law just as surely as if those objects had been cut in half. If a firearm cannot be assembled, unlocked or loaded under any circumstances, then it is not really a firearm anymore. Thus it is that the District of Columbia has completely banned the private ownership of firearms.

Intelligent minds can disagree about all sorts of gun control measures. If it is in fact legal for the government to ban possession of firearms by convicted violent criminals or the mentally incompetent (and nobody disputes that fact), then it is reasonable for the government to take steps to determine whether the purchaser of a firearm is in fact a violent criminal. So it's not hard to make the case that things like background checks are in compliance with the 2nd Amendment. Or look at the right to carry a concealed weapon. I'm all in favor of that right and I have a concealed weapon permit myself. But I'm not sure that is a 2nd Amendment issue per se, since open carry is legal in Virginia and the 2nd Amendment just says that the people get to have weapons - not that we get to conceal them.

DC's gun ban is different from these other issues. This isn't a grey area. This isn't a question of regulations intended to keep firearms out of the hands of criminals. The question is whether a local government can completely ban a right which is explicitly granted to the people in the Constitution.

Some would attempt to argue that when the founders wrote 'the people,' they were really referring to 'the government.' The idea is that the 2nd Amendment was only intended to establish that the government is allowed to have some kind of collective defense. However, this is a pretty scary type of logic if you apply it consistently. If we've decided that rights granted to 'people' in the Bill of Rights were actually granted to governments rather than to the people as individuals, then you can kiss your freedom goodbye.

'The right of the people peaceably to assemble'? Nah, that just means that the government can hold meetings. They can arrest you for standing in a group and waving signs around.

How about the 4th Amendment?

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.'

Huh. I guess that was just establishing that the government cannot be audited? Yeah, that's it. The founders just wanted to prevent any of that pesky transparency in government.

It's all pretty stupid, isn't it? But this is where you end up going if you claim that the words 'the people' actually refer to the government rather than, you know, the actual people.

I don't see any logical defense of DC's total ban on private ownership of firearms. The whole thing hinges on the idea that government can decide that a Constitutional right is inconvenient or dangerous and take it away just because they want to. The justices on the Supreme Court are not idiots. I think they are going to rule against the ban. But this won't really change much of anything for 99% of Americans. Only a very few places in America have bodies of law that add up to a total ban on firearms. And those cities will not have to give up on all of those laws. They'll just have to loosen things up enough to allow law-abiding people to have some realistic legal means of possessing firearms. This case is about drawing a line in the sand right about where everyone knew that it probably was in the first place.