Supreme Court strikes down DC gun law
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- June
- 26
In a widely anticipated ruling today, the U.S. Supreme Court struck down a Washington, D.C. gun law, ruling that Americans have a right to own guns for self-defense and hunting.
The 5-4 ruling w — the justices’ first major pronouncement on gun rights in U.S. history — went further than even the Bush administration wanted, but probably leaves most firearms laws intact, according to an Associated Press account.
Justice Antonin Scalia, who wrote the majority decision, said that an individual right to bear arms is supported by “the historical narrative” both before and after the Second Amendment was adopted.
This entry was posted
on Thursday, June 26th, 2008 at 11:05 am by Glenn Blain.
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The Sullivan Act is next!
Except that the Sullivan Act does not forbid ownership, as the DC law did. It only permits local jurisdictions to regulate ownership. It allows (not requires) localities to say who is allowed to own handguns, and what permits, if any are required.
I feel that it is at least partly presumptuous of Scalia to say that bearing arms is supported by the “historical narrative.” The Founding Fathers probably never anticipated fully automatic weapons (yes, I do know the difference between fully auto and semi-auto…), nor the desire of folks to own them for fun. I guess we don’t need to worry about Indian attacks much anymore, nor hunting for our own food.
Hey, if you feel like you need to protect your family, or enjoy hunting, go right ahead. Just own and use your weapons legally, that’s all anyone can ask.
Well walltrombone misses the point entirely. The right to keep and bear arms was essential to the security of a free state, not exclusively an individual right, though it clearly was in the view of the framers. As anyone who is honest will acknowledge, having just thrown off the yolk of an oppressive tyrranical government, the Founding Fathers knew well that the only reason that had been possible was an armed citizenry. Do I have to spell the rest out for you?
The Sullivan Act is vulnerable both as written and as applied. As written, it requires a showing of need for a carry license. If carrying a firearm for self-defense is found to be within the protections of the Second Amendment, then it would doubtless be an unreasonable burden on that right to have to show need. No fundamental right can be restricted to a showing of necessity. However, the Heller case did not address carrying firearms outside the home, so it is unclear how carrying outside the home applies to the Second Amendment.
By holding that the Second Amendment is an individual right, the way the Sullivan Law is applied is vulnerable to immediate challenge. New York City charges $340 for a 2-year license and Nassau charges $200 for a five-year license, even to keep a handgun in the home. These fees were sustained by a scheme founded on court rulings that keeping a handgun is a privilege and not a right. In light of the Heller decision, the governments will now have the burden of justifying these burdens on a fundamental Constitutional right.
Walt, when you say ” it is at least partly presumptuous of Scalia to say that bearing arms is supported by the ‘historical narrative’ it is obvious to me you did not read the entire opinion, or if you did, you weren’t paying attention. Scalia’s lengthy, scholarly opinion explains the historical narrative in exquisite detail, with loads of citations to primary sources.
Further, Scalia addresses handily the specious point that “The Founding Fathers probably never anticipated fully automatic weapons”: “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,
even those that were not in existence at the time of the
founding.”
are you arguing that automatic weapons should be
allowed to be kept by ordinary citizens..
I’m not sure what you’re asking. First, full-automatic weapons manufactured before 1986 are already legal to own under federal law, as long as the appropriate tax is paid on it. Some states like NY prohibit them, but most states permit ownership.
Second, the issue of whether full-automatic weapons are covered under the Second Amendment was left unresolved by the Heller decision. While the court does not go so far to say that machineguns are absolutely not protected, it implies that “M-16 rifles and the like” are not within the protection of the Second Amendment because they are not “in common use at the time” by “the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.”
The flaw in the court’s reasoning is that a primary reason machineguns are not now “common” is that they have been restricted by federal transfer taxes since 1934, and partially banned since 1986. It is not necessarily because people chose not to possess them. There is still room to show in future challenges that machineguns are in fact lawfully possessed by citizens in their home (and thousands of them are), but the “common” aspect will be a matter of interpretation.
BTW, only one lawfully owned machinegun has ever been used in the commission of a violent crime, and that was by a law-enforcement officer (either current or retired—I forget which). The record on lawful ownership of machineguns by private citizens is exemplary.
Bloomberg is already yelling “Not in my city.” Little Napolean likes only the laws he chooses, most of them “nanny” laws. What Constitution?
I like Sara—she’s either going to law school or is a member of the bar already. She argues well. and is a welcome presence on these boards.
As to the DC decision: too bad it’s too late for Vince Foster. If only that man had had a gun on him, he’d have rolled over on the Clintons. ;>
Don’t worry. Here in DC we have three whole weeks to work on some Scalia-proof gun laws.
I’ve started drafting some:
http://notionscapital.wordpress.com/2008/06/27/dc-gun-license/