Bang Bang, George - You Missed!

This appeared in the Bucks County Courier Times last week, and it absolutely screams for a response.

A shot in the arm for the GOP

By striking down the District of Columbia's extraordinarily strict gun control law, which essentially bans guns, a federal appeals court may have revived gun control as a political issue. It has been mostly dormant since autumn 2000, when Al Gore decided he was less interested in it than in carrying states such as Michigan and Pennsylvania: "Gore Tables Gun Issue as He Courts Midwest" [New York Times, Sept. 20, 2000]. The appeals court ruling appalls advocates of gun control laws and should alarm the Democratic Party.

The court ruled 2 to 1 that the D.C. law, which allows only current and retired police officers to have handguns in their homes, violates the Constitution's Second Amendment: "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."

And since Chickenhawk George did not provide these details (though preoccupied with Al Gore before he gave the reader the full background for some bizarre reason, Will being the “journalist” that he is), I’ll do so now (noted by Paul Helmke of Handgun Control in the Atlanta Journal-Constitution here – the case in question is Parker v. District of Columbia)…

For the first time in American history (a U.S. Court of Appeals) declared a gun law unconstitutional based on the second amendment – (in the process), that ruling does the following:

• Ignores binding Supreme Court precedent. In the 1939 case of Miller v. United States, the U.S. Supreme Court indicated that there was no Second Amendment right independent of "some reasonable relationship to the preservation or efficiency of a well regulated militia." The Second Amendment "must be interpreted and applied" in such a way as to support the "obvious purpose to assure the continuation and render possible the effectiveness of such forces," the court held.

The judges writing for the majority in the Parker ruling don't even mention the Miller case until halfway into their decision, and then ignore its holding. As the dissenting judge in Parker made clear, Miller "succinctly — but unambiguously — set down its understanding of the Second Amendment" and this court did not follow. If this Appellate Court can treat precedent of nearly 70 years so cavalierly, what other changes might we see in the coming years?

• Discounts the express language of the Second Amendment. While the Second Amendment has only 27 words (and three commas), many try to ignore its opening clauses: "A well regulated Militia, being necessary to the security of a free State." To the District of Columbia circuit judges, this "prefatory" language defines a "salutary civic purpose" only, but does not mean anything in the way of limiting "an individual right to keep and bear arms."

And of course, the Repugs wasted no time trying to capitalize in typical fashion, as noted by the New York Times here…

In a sleazy political stroke, Republicans played the gun lobby’s card (3/22) as the House was on the verge of redressing one of the longest-running injustices of American democracy: the denial of a Congressional vote to the taxpayers of the District of Columbia. The historic proposal for full representation in the House was derailed by a G.O.P. motion to attach a ban on Washington’s legitimate attempts to outlaw firearms in the city limits. Democratic leaders had to retract the bill and promise to prevail later without such a poison pill.

Now that we have some much-needed context, back to Will…

This ruling probably will be reviewed by the Supreme Court, which 68 years ago seemed to hold that the amendment's first 13 words circumscribe the force of the rest. That is, there is a constitutionally protected right to "keep and bear" guns only insofar as the keeping and bearing are pertinent to service in state-run militias.

Which, as noted above by Helmke, is the true intention of the second amendment (why do I have a feeling that we’ll be arguing about this forever, though?).

In 2000, advocates of stringent gun control thought they had won their argument with historical evidence when an Emory University historian, Michael Bellesiles, published "Arming America: The Origins of a National Gun Culture." This book, which was awarded the Bancroft Prize, the most coveted honor for American history scholarship, argued that when the Second Amendment was written, guns were not widely owned or reliable enough to be important. Therefore the amendment was written to protect only the rights of states, not of individuals.

Before long, however, other scholars argued that much of Bellesiles's "research" consisted of meretricious uses of, fabrication of, or disregard of evidence, and the Bancroft Prize was rescinded. And in 1989, Sanford Levinson of the University of Texas Law School had written in a Yale Law Journal article, "The Embarrassing Second Amendment," that the amendment's language, properly read, is an embarrassment to those who favor whittling away the amendment's protection of the individual's right to own guns.

I can’t imagine the kind of breathtaking arrogance required for someone to write a document with a title of “The Embarrassing Second Amendment,” but I will only say (based in part on this Wikipedia article) that the language is vague and subject to interpretation because, at the time the amendment was written, James Madison and many of our founders envisioned a conflict between state and federal militias, and the language represents a compromise of sorts. I will never believe that the author of the second amendment wrote it to override common sense gun laws.

However, I freely admit that I am not a scholar on this matter; I just know what makes sense and what doesn’t.

He noted that if James Madison, the foremost shaper of the Constitution, and his colleagues in the First Congress intended the Second Amendment to protect only the states' rights to maintain militias, the amendment could have simply said: "Congress shall have no power to prohibit state militias." Or as Virginia's George Mason, who opposed ratification of the Constitution because it lacked a Bill of Rights, said, "Who are the militia? They consist now of the whole people."

Of course, Will is purposely derailing the issue of incidents of gun crime that have occurred in D.C. while the ban has been enforced (and it still will be enforced, pending appeal - I guess those residents aren't part of Will's "whole people") versus gun crime in cities with comparable populations where no ban exists, or other trends to determine the ban’s effectiveness. I can’t provide that information at the moment either, though I’ll keep checking (but of course, Mr. Hot Shot Corporate Media Columnist here would do that if he were really interested in telling the story straight).

When Madison and others fashioned the Bill of Rights, they did not merely constitutionalize — make fundamental — the right to bear arms. They made the Second Amendment second only to the First, which protects the freedoms of speech, press, assembly and worship. They did that because individual dignity and self-respect, which are essential to self-government, are related to a readiness for self-defense — the public's involvement in public safety. Indeed, 150 years ago this month, in the Dred Scott decision, Chief Justice Roger Taney said that one proof that blacks could not be citizens was the fact that the Founders did not envision them having the same rights that whites have, including the right to "keep and carry arms."

I am absolutely mystified as to why Will would use the logic of one of the Supreme Court’s most infamous moments (re., the Dred Scott decision) to reinforce a U.S. Appeals Court ruling which, as Paul Helmke noted previously, ignores prior case law as well as the intent of the District of Columbia circuit court judges that defines gun ownership for “a salutary civic purpose only.”

Increasingly, however, some constitutional scholars and judicial rulings argue that several restraints the Bill of Rights puts on government can be disregarded if the worthiness — as academics or judges assess that — of government's purposes justifies ignoring those restraints. Erwin Chemerinsky, professor of law and political science at Duke University, argued in The Post last week that even if the Second Amendment is construed as creating an individual right to gun ownership, the D.C. law should still be constitutional because the city had a defensible intent (reducing violence) when it annihilated that right.

Sound familiar? Defenders of the McCain-Feingold law, which restricts the amount, timing and content of political campaign speech, say: Yes, yes, the First Amendment says there shall be "no law . . . abridging the freedom of speech." But that proscription can be disregarded because the legislators' (professed) intent — to prevent the "appearance" of corruption and to elevate political discourse — is admirable.

So…Will seems to be saying that there is a contradiction between people who support McCain-Feingold because the bill impacts the first amendment right of free speech (and I don’t agree with that premise) and people who disagree with this decision because it impacts the second amendment “right to bear arms.”

So much stupidity, so little time…

In this argument, Will completely ignores the expressed wishes of the District of Columbia, which was responsible for instituting the ban to begin with. Also, McCain-Feingold, being congressional legislation, is something that can be modified more easily than settled law (in the case of Parker).

Finally, by altering McCain-Feingold, a result could be that more “soft” money would find its way directly into political campaigns directly from wealthy donors once more, as opposed to being filtered through “527” groups. As a result of altering the D.C. handgun ban (as Parker has done), people could die.

So I’m sorry – I see no equivalency here as imagined by Will.

If the Supreme Court reverses the appeals court's ruling and upholds the D.C. gun law, states and localities will be empowered to treat the Second Amendment as the D.C. law does: as a nullity. This will bring the gun control issue — and millions of gun owners — back to a roiling boil. That is not in the interest of the Democratic Party, which is supported by most ardent supporters of gun control.

That’s absolutely ridiculous. However the Supreme Court rules on this (assuming they hear the appeal), it will not result in any sweeping national trend one way or the other. States, cities, and other municipalities throughout this country will continue to wage the battle over the interpretation of the second amendment regardless. And as much as I decry the status quo on this, it is preferable to bad case law as represented by the Parker decision.

And by the way, Atrios brings us these golden moments with today’s propagandist (via Eric Alterman’s book; sounds like Will’s personal life is as tangled as his attempts at logic).