Monday, June 28th, 2010

When Will the Supreme Court Affirm the Constitutional Right to Not Be Shot?

TAKE ON, THEY'RE FREEThis song is getting tiresome and out of tune: the Supreme Court, 5 to 4, has just decided that, essentially, no state or local government may prevent our proud citizens from owning guns. But what about the states' rights, to do as they see fit? Clearly the owning of guns is not an issue regarding which we must protect our sovereign states from those meddlers in the Congress. And what about everyone's right to liberty-our right to not be shot and stuff? In light of a brutal gun attack on Saturday- three people in a crowd were randomly shot Saturday night in San Francisco at a gay event-it seems worthwhile to look at Justice Stevens' rather stern dissent.

The notion that a right of self-defense implies an auxiliary right to own a certain type of firearm presupposes not only controversial judgments about the strength and scope of the (posited) self-defense right, but also controversial assumptions about the likely effects of making that type of firearm more broadly available. It is a very long way from the proposition that the Four­teenth Amendment protects a basic individual right of self-defense to the conclusion that a city may not ban handguns….

[F]irearms have a fundamentally ambivalent rela­tionship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims. The threat that firearms will be misused is far from hypothetical, for gun crime has devastated many of our communities. Amici calculate that approximately one million Americans have been wounded or killed by gunfire in the last decade. Urban areas such as Chicago suffer disproportionately from this epidemic of violence. Hand­ guns contribute disproportionately to it. Just as some homeowners may prefer handguns because of their small size, light weight, and ease of operation, some criminals will value them for the same reasons. ….

Hence, in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day-assuming the handgun's marginal contribution to self-defense outweighs its marginal contri­bution to the risk of accident, suicide, and criminal mis­chief-it may make you and the community you live in less safe overall, owing to the increased number of hand­ guns in circulation. It is at least reasonable for a democ­ratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare.

43 Comments / Post A Comment

deepomega (#1,720)

If you want it to be legal for states to ban gun ownership, amend the constitution. It sucks, but that is how it works, and unless you want state governments using the same arguments to try and limit free speech you should be happy this is how it goes.

Mm, I don't agree with this. The point here is that there are conflicting Constitutional readings. The Court interprets the Constitution and its amendments; they have chosen to do so in one way here.

BadUncle (#153)

Yeah, it depends on the era. The "individual ownership" interpretation wasn't read into the Constitution until the latter end of the 19th century. With time – and changing court appointees – that interpretation will probably change.

until then, I'm gettin' me a chain gun. For, uh, home defense.

deepomega (#1,720)

Well I come at it from two angles. First, the individual right to bear arms has been upheld twice recently, and that's a lot of stare decisis. Second, I'm no longer opposed to individual gun ownership after a lot of discussions about it with people who aren't as white/affluent/in safe places as me. A two-pronged disagreement!

"that's a lot of stare decisis."


Well you can be for gun ownership! I'm not going to argue with that. I'm not opposed to guns, actually. And I do think we clearly have a right to own them in this country!

You should give this document a read, particularly the Breyer dissent.

"If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views? See Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. 877, 923-924 (2007) (BREYER, J., dissenting) (noting that stare decisis interests are at their lowest with respect to recent and erroneous constitutional decisions that create unworkable legal regimes); Citizens United v. Federal Election Comm'n, 558 U. S. ___, ___ (2010) (slip op., at 47) (listing similar factors); see also Wallace v. Jaffree, 472 U. S. 38, 99 (1985) (Rehnquist, J., dissenting) ("[S]tare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history"). At the least, where Heller's historical foundations are so uncertain, why ex- tend its applicability?
My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations."

NinetyNine (#98)

I hope you put your time in telling Operation Rescue that further challenges to Roe v. Wade are absurd, since it has approximately eleventy billion more stare decisis.

deepomega (#1,720)

Hah! Clearly. Roe v Wade is effectively unturnoverable for the foreseeable future. While I think the concept can be used to create an aura of untouchability to legal rulings, it also has its purpose! That is to say, limiting the constant retrying of cases over and over and over. The SC definitely will overturn itself, but the fact is that right now the issue of states banning handguns is pretty much out.

On top of that, I'm not too impressed with the dissent quoted in the original piece! Once Heller took steps towards affirming an individual right to bear arms, that's it. It doesn't matter what the tradeoffs are safety v liberty wise, because the amendment has been interpreted, and the states should no more be able to jack around with that then they should be able to shut down newspapers/detain people for no reason/quarter troops/whatever.

That's all well and good, but if the Court were serious and principled about incorporation (like Clarence Thomas(!)) it wouldn't have restricted the scope to just gun rights.

KarenUhOh (#19)

America, meet your well-regulated militia: the Bloods, the Crips, and the Posse Comitatus.

keisertroll (#1,117)

Don't forget the Latin Kings, the Van Buren Boys, and the Wolverines.

MikeBarthel (#1,884)

And the Jets!

Van Buren Boy (#1,233)

We're a peaceful organization now.

Did you get your tats removed?

LotaLota (#1,703)

Just issue them Constitutionally-approved letters of marque and reprisal and whatever they do, it'll all be straight up and legal.

Solves the unemployment problem, too.

keisertroll (#1,117)

The only gun I want in my home is "Machine Gun" by the Commodores.

(dances to the funk in his head)

Miles Klee (#3,657)

"Machine Gun" by Slowdive is the extent of my arsenal.

carpetblogger (#306)

I'm too Gunshy to have an arsenal, except in my head.

"Machine Gun Etiquette" by the Damned

shostakobitch (#1,692)

Bikini Girls with Machine Guns by The Cramps.

Bobby Womack (#4,074)

Machine Gun by Portishead.

egad (#1,355)

I guess this is where 'knifecrime island' is one step ahead. At least the knife wielder can discriminate. I imagine* a handgun is far more likely to kill or injure innocent bystanders, inflict injury or death via accidents and has the potential to cause harm to numbers of people in a small amount of time.

Although I probably shouldn't comment on American constitutional rights being a foreigner, but the 'right to own a gun' has always seemed completely stupid to me.

*Qualified due to laziness about finding stats.

El Matardillo (#586)

Fortunately, Choire, you are in the minority. Also, as a practical matter, if you try to take guns away from the people who own them, many of them will use those guns to kill you, so there's that.

Gun control is hitting your target with the first shot.

NinetyNine (#98)

Got a gun for my troll. Good trade!

El Matardillo (#586)

Don't just keep it in a drawer. Take it to the range and practice. Support your local gun shop!

sigerson (#179)

Handguns are a plague and a curse. All of them should be banned. This ruling will hopefully lead to eventual reasonable regulation of handguns, along the lines of how free speech is regulated. In other words, shotguns and rifles will be viewed in the same light as satire or journalism (protected). Meanwhile, automatic machine guns and handguns will be viewed in the same light as child pornography and obscenity (criminal).

Possessing a handgun is far more likely to lead to the accidental death or shooting of a loved one than the protection of that loved one from harm.

El Matardillo (#586)

Hahahahahahaha! This is really funny. You must be smoking some really potent unicorn dust in your gumdrop house on Lollipop Lane.

Backslider (#819)

By the logic of the gun nuts, the 2nd Amendment would protect my right to acquire and use a neutron bomb.

Come to think of it, I've always wanted one of those. Maybe I can grab one at a dealer show in Tennessee.

We fantasize about photon torpedoes around our house.

ow that hurt (#3,919)

You will still be frisked for a weapon, if you visit the Supreme Court building,
of course.

Backslider (#819)

This raises an interesting/stupid question. TSA staff at airports are federal government agents. They are infringing my right to bear arms when I fly to Tampa to visit my Gramma. Why has no one filed suit?

ow that hurt (#3,919)

Funny, I always brought a gun to visit my Grandma, too.

In Tampa.

KenWheaton (#401)

And those gun-control laws were working so well in Chicago. Damn.

(Of course, there's New York as a counter-example. Now I've gone and confused myself.)

eric.lassard (#3,646)

New York City hasn't tried to ban handgun ownership. But you need a license to own one legally and the penalties for illegal handgun possession are very severe. Since bans on gun ownership increasingly don't pass constitutional muster, this strategy might be worth adopting in other cities concerned about high levels of gun crime.

Information on NYC gun licensing:

sigerson (#179)

This is the Justice Brennan approach. Grant the right and strike down the law but then find through the exceptions to the rule a way to bring it all back in. Handguns = child porn. Neither should be protected by the Constitution.

El Matardillo (#586)

Restricting my rights? That's a taserin'.

eric.lassard (#3,646)

the national dialogue over guns tends to be dominated by ideologues. The pro-NRA crowd won't stand for any regulations at all, and at the other extreme others want to ban guns entirely. ("handguns = child porn"?) As tends to be the case when ideological belief trumps pragmatism, the debate is highly tedious. Steering a middle course, as NYC's policy more or less does, seems like a productive way to promote public safety while avoiding all the tired arguments.

Jamie Kelly (#5,759)

Sing it with me folks: You have the right… Not to be killed.

TripleStack (#5,127)

I don't associate with alot of criminals, but I imagine few of them have ever said, "I would murder with this gun, but I haven't got the license for it."

eric.lassard (#3,646)

well, along the same lines, it's often argued that an outright ban on handguns keeps law-abiding citizens from owning them without deterring criminals from acquiring or using them.

Now if only we'd do something in this country about the actual causes of violence.

Scum (#1,847)

Scalia's concurrence demolishes the Stevens dissent. Just demolishes it.

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