Tag: second amendment

The Second Amendment Protects Both Keeping and Bearing Arms

Even before its recent enactment of ill-advised and (at least partially) unconstitutional gun-control measures, New York was no stranger to draconian restrictions on the right to keep and bear arms. The Empire State, like most states, requires a license to carry a handgun outside of one’s home, but differs from many by requiring prospective licensees to show “proper cause” before obtaining a license. State officials have broad discretion in finding such proper cause, which for non-celebrities typically requires proof of extraordinary personal danger documented by threats to one’s life — effectively leaving criminals, bodyguards, and retired law enforcement officers as the only armed civilians in public places.
 
Unable to make such a showing and thus denied licenses, a diverse group of New Yorkers, represented by Alan Gura — who successfully argued District of Columbia v. Heller (2008) and McDonald v. Chicago (2010) at the Supreme Court — filed suit in federal court challenging the constitutionality of the licensing scheme. Both the district court and the U.S. Court of Appeals for the Second Circuit upheld the law after purportedly applying “intermediate scrutiny,” which allows a challenged statute to survive only if it is “substantially related to the achievement of an important governmental interest.”
 
But the Second Circuit gave short thrift to the Second Amendment, treating New York’s restrictions as garden-variety legislation rather than measures infringing on a core constitutional right. In legal terms, the court effectively employed “rational-basis review,” which simply requires legislation to be rationally related to a legitimate government interest. Instead of requiring the state to show that its restriction on carrying firearms for basic self-defense has some concrete connection to public safety and crime prevention, the court deferred to the political branches by finding that assessing “the risks and benefits of handgun possession” and creating licensing schemes are “precisely the type of discretionary judgment[s] that officials in the legislative and executive branches of state government regularly make.”
 
The plaintiffs have now asked the Supreme Court to review that ruling and provide guidance to all lower courts regarding how to evaluate laws in tension with the Second Amendment. Today, Cato filed a brief supporting that petition. Like any constitutional right, the Second Amendment has no force absent a clear jurisprudential doctrine that ensures its enforcement. While the Second Circuit has applied a very deferential standard, other courts have expounded different doctrines since the Supreme Court ruled in Heller that the Second Amendment protects an individual right. For example, the Chicago-based Seventh Circuit demands that a restriction on Second Amendment rights satisfy a heightened level of scrutiny that requires “an extremely strong public-interest justification and a close fit between the government’s means and its end.” Given divergent lower-court rulings and the current political climate, the Second Amendment is in dire need of a clarified and robust standard of review — much like that afforded other constitutional rights, requiring federal and state governments to prove that laws infringing those rights are narrowly tailored to serve a compelling interest. Whatever the standard of review may ultimately turn out to be, Kachalsky v. Cacacse provides an excellent vehicle for the Supreme Court to pronounce it — and to show that the Second Amendment protects more than the right to keep a gun in one’s home.

D.C. Treats Celebrities Better Than Veterans, Illustrating the Absurdity of Gun Laws

Last month, D.C. attorney general Irvin Nathan announced that he would not be prosecuting David Gregory for displaying an empty ammunition magazine on his national TV show Meet the Press—even though NBC knew ahead of time that this action would violate D.C. law. In a letter to NBC, Nathan admonished Gregory for knowingly flouting the law, but said he decided to exercise “prosecutorial discretion” and not pursue a criminal case. “Prosecution would not promote public safety in the District of Columbia, nor serve the best interests of the people,” Nathan wrote.

In the Washington Post story about this episode, I was quoted as calling Nathan’s decision “a wise use of prosecutorial discretion” but that the episode “illustrates the absurdity of some of these gun laws.”  My position apparently paralleled that of the NRA—even though Gregory had waved the illegal magazine in front of the group’s executive VP, Wayne LaPierre—but “thousands of gun advocates” signed a White House petition calling for Gregory’s arrest because he ought to be treated the same as anyone else.

Indeed, a friend soon pointed out to me that D.C. authorities were not treating people equally: Last summer, Army Specialist Adam Meckler, a veteran of the Afghanistan and Iraq wars, was arrested and jailed for having a few long-forgotten rounds of ordinary ammunition—but no gun—in his backpack in Washington. Meckler violated the same section of D.C. law as Gregory did, and both offenses carry the same maximum penalty of a $1,000 fine and a year in jail.  [H/t: Jason Epstein]

Well, that’s disgusting, and D.C. authorities ought to be ashamed of themselves. But the correct response isn’t to waste taxpayer dollars on prosecuting David Gregory, but rather to not prosecute the Adam Mecklers of the world. 

Now, I’ve never been a prosecutor or even practiced criminal law, so it could well be that it’s outside the ethical bounds of discretion not to charge someone who so brazenly flaunts the law as Gregory and the NBC producers did. But if incidents like these doesn’t make people realize that it’s lunacy to criminalize, as a strict liability offense, no less (meaning that your knowledge or mental state is irrelevant), the mere possession of magazines, bullets, and other gun-related accoutrements (without even getting to an “assault weapon” ban, etc.), then nothing will. A magazine is a metal box with springs, of which there are hundreds of millions in the country.  A bullet is a piece of metal that, in the absence of a gun, is less deadly than a rubber band. It’s people who insist on demonizing such objects that lend creedence to those on the other side who believe that any gun regulation is a step toward confiscation and tyranny.

Let me be even clearer: Criminalizing the possession of a magazine or bullet is as extreme as legalizing the private ownership of nuclear missiles. The idea that celebrities should be treated no differently than anyone else is an important one to draw from the David Gregory incident.  But it’s even more important, at least in the context of our ongoing discussion over gun policy, to understand that putting stupid laws on the books doesn’t make us any safer and indeed draws resources away from actions (like investigating, prosecuting, and preventing violent crime) that do.

Reading the Washington Lawyer Magazine

The flagship publication of the DC Bar Association is the Washington Lawyer.  The December issue reviews a new book by legal journalist Jeffrey Toobin, The Oath.  Here’s an excerpt from the magazine’s regular reviewer, Ronald Goldfarb:

What is clear is Toobin’s ability to tell intriguing stories, and also to present sound overviews of important cases and the jurisprudence they represent without dumbing down the legal analysis. An example is his story behind the notorious District of Columbia v. Heller case dealing with gun control. I know the inside story from the man behind the case (not Dick Heller, the selected plaintiff, but Robert Levy, the chair of the board of directors of Cato Institute who dreamed up the case and managed its route to new constitutional law), and Toobin’s story rings true. Toobin’s characterization of the politics, history, and constitutional law surrounding this very important decision is smart and informative. His conclusion that Justice Antonin Scalia’s majority opinion was “an improvisation designed to reach a policy goal” is ironic. Scalia argues that the Constitution is “dead,” not a living document, and Toobin shows how perverted Scalia’s theory is by using the justice’s own words and reasoning in Heller. Rather than an example of his repeated preaching that the Constitution is “textualist” and “originalist,” Scalia’s opinion demonstrates that the Constitution is what the justices say it is: always dressed up in chameleonic jurisprudence to suit the justices’ predilections and to reach their political conclusions. (Bush v. Gore is a classic example.)

There you have it: A sound overview without dumbing anything down.  Cato chairman Bob Levy “dreamed up” an idea about some constitutional right to keep and bear arms. Then Justice Scalia said, “My predilections match your dream!”  Scalia then cobbled together some nice-sounding arguments and now America has to  live with this darn Heller precedent.

Mr. Toobin, the book author, makes the claim that Scalia was once a “conservative intellectual” but is now a “right wing crank.” The book reviewer, Mr. Goldfarb, then informs us that Toobin’s treatment of the justices is “quite balanced.”  (I know you don’t believe me—so go read it yourself.)

For a quick blog post, suffice it to say that Scalia was not alone on this. Four other justices agreed with his conclusion in Heller. I would also note that distinguished liberal scholars—Sanford Levinson, William Van Alstyne,  and Nat Hentoff, to name a few—hold similar views of the Second Amendment.

For more on the Heller case and the Second Amendment, go here and here.

For another look at the worldview of establishment liberalism, go here.

On the Perils of Single-Issue Politics

NPR ran a story this morning, “NRA Targets One Of Its Own In Tenn. Race,” that nicely illustrates the perils of single-issue politics, although you’d never learn the principle of the matter from the NPR account. It seems that the NRA has launched a $75,000 ad campaign against state Rep. Debra Maggart, a long-time NRA member and avid gun-owner who a year ago had an “A+” rating from the NRA. Her sin? She and several other Tennessee Republican officials opposed a bill that would have allowed employees to keep guns in their cars while parked in their private employers’ parking lots.

The NRA’s Chris Cox, who’s spearheading this political vendetta and, in the process, is supporting Maggart’s tea-party backed opponent, invokes both “our First Amendment right to assemble to petition our government” and, of course, the Second Amendment, seemingly oblivious to the fact that neither is relevant here. In fact, the issue could not be simpler: individuals, including employers, have a right to determine the conditions on which others may enter their property.

The Second Amendment prevents the government, not private parties, from infringing your right to keep and bear arms. If a private party can ban you from his property for any reason, good or bad, he can do so for carrying a gun. So too with the First Amendment: it limits what governments, not private parties, may do; government may not violate your rights of assembly and petition, none of which is happening here.

As so often happens, here again we see how single-issue politics, in the name of liberty, ends up undermining liberty. The tea party should know better.

Second Amendment Victory

The landmark Heller ruling said the Constitution protects a person’s right to keep a gun in his home for purposes of self-defense, at least as against the federal government (the case was filed in the federal capital city, Washington, DC). Next, the Supreme Court ruled that the right to keep a gun in the home  also had to be honored by state and local governments. The litigation has now moved on to consider whether, and to what extent, the right to keep and bear arms must be honored outside the home.

Yesterday, a federal court invalidated a Maryland law that granted carry permits only to those who could show a ”good and substantial reason” for carrying a gun (general worry about the possibility of a criminal attack was  inadequate). The Court said the Maryland law “impermissibly infringes the right to keep and bear arms guaranteed by the Second Amendment.”

Last month Cato released a study concerning the frequency with which persons use guns for self-defense—way more often than the average person realizes.

Cato associate policy analyst David Kopel, has more over at the Volokh blog.

New Cato Study: Tough Targets

Today, Cato is releasing a new study, Tough Targets: When Criminals Face Armed Resistance from Citizens, by Clayton Cramer and David Burnett.  The paper makes use of a news report-gathering project to explore in more detail how Americans use guns in self-defense.

The paper makes many excellent points, but I’ll mention just three here.  First, the average person tends to imagine that these self-defense situations involve criminals getting shot.  Such cases do occur, but the overwhelming number of self-defense cases involve situations where the gun is never fired.  

The second point relates to the first.  The average person usually does not hear about defensive gun cases because news media organizations do not consider the incidents worthy of coverage.  If a burglar runs away from a break-in when he discovers that someone is at the home and is armed, it may only garner a terse mention in the paper, if it makes the newspaper at all.  With no shot fired, no injuries, and no suspect in custody, newspeople typically decline coverage.  The point here is not to criticize the news media’s handling of such incidents–rather it is just to remind readers that we tend to hear about criminals using guns to perpetrate crimes, but we do not hear about many self-defense cases.  In this milieu, it is understandable why many people would develop negative opinions about guns.

Third, when a gun owner does shoot a rapist or is able to hold a burglar at gunpoint until the police arrive on the scene, it is very likely that more than one crime has been prevented.  That’s because had the culprit not been stopped, he very likely would have targeted other people as well.

Gun control proponents stress the idea of harm reduction.  They say the enactment of  firearm regulations will reduce accidents and the criminal use of guns.  But if policymakers are truly interested in harm reduction, they must consider the number of crimes that are thwarted by gun owners.  Each year gun owners prevent a great deal of criminal mayhem–murders, rapes, batteries, and robberies.  Tough Targets gathers dozens and dozens of examples of ordinary people using guns to stop criminal attacks.  The defensive use of guns happens much more often than most people realize.

In addition to the paper itself, we have a new page on the Cato web site that will track, to the extent we can, defensive gun cases around the country.

For more information, listen to a podcast interview with co-author Clayton Cramer, or see related Cato scholarship.

Will You Be Able to Protect Your Family if Politicians Destabilize Society?

About a week ago, I wrote that people in western nations need the freedom to own guns just in case there are riots, chaos, and social disarray when welfare states collapse.

Much to my surprise and pleasure, this resulted in an invitation to appear on the National Rifle Association’s webcast to discuss the issue.

As I noted in the interview, I’m just a fiscal policy wonk, but the right to keep and bear arms should be a priority for anyone who believes in freedom and responsibility. And even though I only have a couple of guns, you can see that I’m raising my kids to have a proper appreciation for the Second Amendment.

I don’t think we’ll ever get to the point where we suffer societal breakdown, but I won’t be too surprised if it happens in some European countries. We’ve already seen the challenges faced by disarmed Brits during recent riots in the United Kingdom.

In the NRA interview, I pointed out that law enforcement is one of the few legitimate functions of government, so it is utterly despicable when politicians fail to fulfill that responsibility and also deprive households from having the ability to protect themselves.

Last but not least, watch this video if you want to be inspired about protecting the Second Amendment. Pay close attention around the five-minute mark.