Osler's Razor

I guns are outlawed, only cats will have guns.
 

I think that the cause of the problem with guns is not necessarily access, but access with a lack of training, or access by people who shouldn't, psychologically speaking, have guns.

In my past, pre-law school life, I was something of a martial arts enthusiast. There's actually a bit of lively debate in the martial arts community between those of us who did "combat sports" like judo, boxing and kickboxing, and either traditionalists or the "reality-based self-defense" people. In my experience and opinion, the RBSD people weren't based in reality. Most of them had messiah complexes and rich fantasy lives where they continually saved everyone from the "bad guys" with their superior martial knowledge. They were also big advocates of things like concealed carry and eliminating gun-free zones.

However, it's safe to say that the vast majority of these people had never been even in a simulated conflict. Fighting hurts. I mean, it really hurts. It hurts a lot when you're wearing pads and being thrown on a padded mat and have a referee to call people off. When you don't have those safeguards, fighting is ugly. And nothing goes quite the way you think it's going to in your head.

These people, who are willing to play the hero, aren't the type I want with guns. Even if you're a good target shooter, unless you're one of the few that actually goes through the kind of training necessary to perform under stressful conditions (law enforcement, military, etc.) I don't want you trying to be a hero. Good intentions are good intentions, but someone who has never pressure-tested their self-defense skills is as much a danger to the people around him as to himself and the putative "bad guys."

So, I don't disagree with private gun ownership for sport or collectorship reasons. And, I think that communal ownership of other guns, for the purposes of a citizen militia, is both Constitutional and advisable (assuming, again, proper training).

That brings us to the issue of private ownership of handguns. While some handguns have sporting purposes, and certainly there are collector reasons for owning them, the general purpose of the handgun is to kill people, even if used in self-defense. I don't know if it is a true infringement of the right to bear arms to restrict handgun ownership, or to even ban private, non-collector ownership altogether. So, I'm probably inclined to buy the argument that failed in the D.C. Cir., that there is no absolute, private right to own firearms, even though I don't think that argument will be successful in the Supreme Court.
 

Oh, just so you know-- I will update the post once the opinion comes out.
 

Although I'm generally pretty supportive of states rights, it's more out of deference to the awesome scheme of governance the founders worked out than to an overblown idea of divine-right state sovereignty. (Except Texas...our sovereignty is guaranteed by our status as “God’s Country"…like a papal state, only better.) But it seems to me that if the founders saw fit to put guns in the constitution, then they meant for the Supreme Court to be the arbiters of the “well regulated” language. I love shooting guns, and I think a lot of personal responsibility has been forgotten in the gun control debate, but I’m also glad the Court finally grew the huevos to tackle this head-on. Absent a definitive 2nd Amendment interpretation from the only authority that can give us one, gun laws have become a morass of divisive politics, misguided policy, and overall ineffective governance of the issue.
 

To answer your last question, if the Courts are supposed to be a co-equal branch of government, then no, I don't have a problem with a 5-4 decision overturning a legislative decision. Especially one by a City Council.
 

I hate guns. Hate them. I don't hunt. I don't shoot recreationally. I don't own one, and I doubt I ever will. They scare me.

So, this is always a difficult issue for me because as a personal matter I would prefer if nobody had guns.

However, I'm confused by your claim that the court has to interpret some relatively vague language here. The text of the constitution, as you so rightly point out, reads "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."

Seems pretty simple. The right to keep and bear arms shall NOT be infringed. The text doesn't say, "the right to keep and bare arms shall not be infringed as long as you're part of a well regulated militia." It also does not say, "the right to keep and bear arms shall not be infringed so long as militias are an important and vital part of the defense of this country and its many states." Nope, it says such a right may not be infringed. When people talk about vague constitutional provisions I can see their point, but this one doesn't even seem close to me.

And, what bothers me is that if you think we should regulate guns (and I'm all for you here if that is the side you come down on) because militias are no longer necessary and the amendment is based on a different time/place/etc. then lets go through the process of getting the constitution amended to express that desire. Lets actually go through the process of convincing people we're right, and getting them to vote for a change to the constitution, instead of hoping the court will just ignore what seems to be fairly direct language in the constitution.
 

The problemw with these gun nuts is that they assume that if gun regulations go away, only the "good" people will have guns, which they can then use to kill the "bad" people. I'm pretty sure that less regulation means it will be easier for bad people and kids and whoever else to get some guns.
 

This comment has been removed by the author.
 

RRL--

Maybe ambiguous is better than vague, because the second amendment is fairly unique in having that prefacing clause. It should mean something. The truth is that our magical Constitution has some pretty poorly-drafted sections.

At any rate, the second amendment, like the eighth amendment, leaves a lot of definitional work to the courts-- "cruel," "unusual," "arms," etc.

Really, I think that if you give the second amendment the reading you suggest-- that it strictly prohibits infringing on an individual right to keep and bear arms (and that's frankly a pretty reasonable reading), then you can't have any gun control at all, because regulations necessarily "infringe" on that personal right. The Second Amendment, by prohibiting "infringement" is different than, say, the first amendment, which says that the government can't "prohibit" the free exercise of religion (leaving some regulation available).

Ironically, the free exercise of religion is nearly an absolute right, while the right to bear arms, even after Heller, may be severely restricted. That seems to be backwards. We seem to be unable to "infringe" on the free exercise of religion, but only barred from "prohibiting" guns outright.

Still, I'll admit to liking it better that way... but I don't think that is what the Constitution says.
 

Am I the only one confused on the extent to which the 2nd Amendment applies to the states after Heller? Scalia says this question is not presented by the court, which is presumably because DC is not a state. There is no language about the 2nd being incorporated by the Due Process Clause of the 14th. What this seems to mean to me is that if, say President Obama nominates a gun-control oriented justice, or President McCain nominates a "stealth justice" similarly inclined, a simple change in composition of the court could render this decision as only applying to the Federal Govt.

Below, I've pasted Scalia's brief treatment of this in a footnote in the majority decision - he refers to a 1875 case, Cruikshank, which held that the 2nd Amendment only applied to the Federal Government.

"With respect to Cruikshank’s continuing validity on incorporation,a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government"
 

anon. 10:14--

I don't see why this would not apply to the states-- they are probably just waiting for an appropriate case to consider incorporation into the 14th amendment.

I don't get how there isn't a limitation on "arms" to be just the kinds of guns a militia would use.
 

unarmed -
You've got it backwards...us "gun nuts" know that no matter how strict the gun control laws are, "bad" people will still find some way to get guns anyways or take advantage of an gunless populace. We are not as naive as you think...we are the realists :-)

lane -
I think that most pro-gun folks would agree with most of what you are saying. I don't want someone thinking that they need to play hero because they have a concealed carry permit and a cool gun like Robocop or Neo. Most of us are sane. We don't keep a gun in our house hoping someone will break in so we can go all hero and shoot them.
 

It's too bad that the precedent was set in a jusrisdiction as poorly run and policed as DC. Bad facts make bad law, and that happened here. DC is full of guns despite the ban, and in the wrong hands, mostly because the police do a lousy job of enforcing that gun law.
 

We have a lot of guns, and we need them! For example, yesterday we took Spencer to Art Camp, then Bill and I went to this place where builders send you to pick out appliances and we picked out our cooktop and wall oven. There was a kooky lady there but I do not have time to get into it right now as I have an appointment in a Galaxy Far, Far Away. Then we came back to Art Camp, took him to swimming, watched him do that, and then we went to the house to talk about flooring and then went to Karate and then did more flooring stuff then I had to go to WW and then we finally ate dinner.

Anyways, the kooky lady with wall ovens totally tried to rip us off, and I had to shoot her. I used Spencer's Ruger 9mm, which we got him for his 4th birthday. It was a Spongebob party, and they make these excellent Spongebob gift bags, and we put it in there.
 

Nice one Tyd.

Unelected judges striking down laws made by elected representatives of the people. Is this what Bush means by "activist judges"?
 

I have feeling the TYPwbleach is not our friend from Oregon. Pretty good imitation though!

Look, the outcome here is a model of simplicity: the Supreme Court says you can't execute a child rapist, but you can have a gun to shoot the child rapist if he breaks into your house.
 

anon 10:14 -

im similarly confused and hopefully osler can clear it up. perhaps i should have paid attention in prof. guinn's class but the 2nd amendment still doesnt apply to the states, therefore if Texas - or any state for that matter - wanted to take away ALL guns - they could as long as it was square with their state constitutions (which almost all states have a right to bear arms statute as Scalia noted in the majority which may be why they really didnt feel the need to incorporate). the only reason the 2nd amendment came up is that DC is controlled by Congress and thus federal law applies. The court didnt by that DC was basically a de facto state with its own police powers. so am i correct that this decision isnt really as big of a deal as many in the media are making it out to be because the state's powers are unchanged (ive already read some stories saying this will have an effect on a Chicago handgun law).
 

I agree with this decision, however, I do feel as if much litigation will ensue to hash out the extent of this right. I think Scalia's comparison of Heller to Reynolds v. US (an early 1st Amend. free exercise case) is heartening. I would respectfully dissent from the view expressed by Professor Osler, I think that, if we are to be consistent in our intrepretation of the Bills of Rights, they must all stand coequal. Thus, the same level of suspicion should greet a gun control statute as should greet a law burdening the free exercise of one's religious faith. Further, I do agree with the statement that "when guns are outlawed, only outlaws will have guns." I think that the vast majority of gunowners are responsible individuals, and that attempting to suppress ownership of a certain type of gun/guns generally is as untenable of a position, constitutionally, as supressing "irresponsible" speech or exercise of one's faith. The most obscene example of this regards NFA (National Firearms Act) weapons- there has been a freeze on new select fire weapons since 1986, however, an individual I knew who grew up "in the hood" could procure a Combloc AK-47 for $150 on the street corner? Obviously even the restrictive scheme of NFA 1934 cannot prevent easy illegal availability of fully automatic weapons, so how can proponenets of gun control claim that restricting my right to have a 38 revolver will stem the illegal firearms market.

-Chicago
 

Osler:

I think you're 100% right. My reading of the 2nd Amendment would prevent any and all federal regulation of guns. Do I like that, not really. But I didn't get to draft the constitution and I certainly understand why they would want it that way (protect yourself from tyranny...it is a lot easier to avoid a firing line if you can fire back), but I like some gun control and think States should implement reasonable gun control laws. Like, for instance, communists shouldn't have guns, because history proves that is always a bad idea. Or, Germans shouldn't have guns because it makes Polish people scared. Etc.

Again, I'm all for changing the 2nd amendment through the democratic process. I'm just glad that today the textual significance of the constitution was on display instead of the political bias of the judges.
 

P.S. What is wrong with "kids" having firearms. Target shooting is a popular recreational pastime for many youth, as is hunting. I find it absurd that allowing "kids" to have the possibility of possessing firearms is somehow enough to throw people into a fix of apolexy. Shooting, under adult supervision, is a safe activity, and enjoyable bonding between elders and youth.
To make it clear, no, I am not saying "lets give the 2 year old a revolver." Rather, I am saying that minors CAN and DO responsibly use firearms for a variety of activities. Further, how can we allow some of these same "kids" to volunteer for the military at 17, if we want to keep firearms out of the hands of youth. A M240 is far more dangerous than the "evil, scary" handgun.

- Chicago
 

Why aren't we discussing the "Millionaires Amendment" case that was decided today. The court has taken yet another stand against the unconstitutional restriction of political speech contained within "campaign finance reform" laws. Good for them...
 

If DC has changed its views on who should have guns, why can't we let that body of citizens make those changes? Why can't we let the actual voice of the people be heard through voting or through the election of legislators? Why do we have to allow 9 "little dictators" to tell us what society wants when we are capable of doing that all on our own?
 

Responding to REI and reiterating my earlier post, the Judiciary is a co-equal branch of government. It is supposed to be brake on Executives and Legislative bodies that overreach. By setting up a Judiciary with independent powers, we have a safeguard against runaway politicians.

Presidents who tried to take too much power or act outside the law have been limited, if not defeated by a strong independent judiciary. Examples include FDR and his mega-government programs(some would say fascist), certainly Nixon and his arguments of executive privilege and most recently Bush and the Guatanamo mess.
 

iplawguy, I believe REI was being cute by quoting something I said yesterday in an attempt to both be sarcastic and try to point out that I'm being hypocritical.

Of course, there are a whole load of distinctions between the court's decision in Kennedy yesterday and the Heller decision today, but I will just give you one.

1. D.C. is a federal disctrict, subject to the restrictions in the bill of rights without the necessity of the 14th amendment, and therefore if you're someone who questions the legitimacy of extending the bill of rights' restrictions to the states, like I am, then it is obvious why laws in the district should be and fairly can be treated differently than the laws of the 50 states.

I will admit that my position as a fairly strict constructionist when it comes to the constitution means that I'm all in favor of todays holding and fairly distraught over yesterdays decision in Kennedy. But that doesn't make those positions hypocritical or antithetical to one another. And as I say several times in this comments thread, I'm all for using the legislative process to amend the constitution in regards to gun control and the 2nd amendment, which is completely consistent with my position yesterday in regards to relying on the court to serve its function and relying on the legislative branches to serve theirs.

But, very cute on your part REI. You got to avoid making an actual argument in favor of sarcasm...good for you Smarty McSmartypants :)
 

It seems to me the language in the Second Amendment, i.e. the clause "A well regulated militia being necessary" which directly prefaces and modifies "people," is rooted in the contex of another time, when "people" were men who volunteered for the militia . . . or maybe even automatically were assumed to be in the militia should the need arise. I admit I don't know all the specifics of the history of the late eighteenth century, but it seems fairly obvious from the wording of the amendment. Today, we would read "people" as everyone, and certainly not everyone is in the armed services or the national guard or feels the expectation to jump to fight off an attacking army . . .

I guess I'm saying --and I'm sure others have said this--that a strict reading of the Constitution which would very simply allow individuals to possess guns isn't necessarily called for. I think the historical context of the constitutional language is important in this issue.

As to whether the Supreme Court or the states should make the law on gun possession . . . I don't know. We elect the president who appoints the Supreme Court and we elect the Congress who confirms them, so we do have an indirect influence on what the Supreme Court decides.
 

http://cbs2chicago.com/local/supreme.court.handguns.2.757471.html

The NRA has filed suit challenging a Chicago handgun ban based on today's ruling. Doesn't though the city of Chicago have the right to do what it wants because only Illinois state law applies and not the second amendment?
 

Ah, the current Supreme Court. What's next? Absolving Exxon?
 

RRL--

So, RRL, will you be against striking down the Chicago law now being challenged by the NRA?

Love,

Smarty McSmartypants

(I noticed that you are not above the use of sarcasm yourself)!
 

REI:

To answer your question, if the Court upholds the law on the basis that the 2nd Amendment doesn't apply to the States then I'm all for it. Bully to them. I think we have all accepted it as a fait accompli that the Bill of Rights applies to the States through the 14th Amendment, and I think anything that starts to question that assumption and rallies back for states rights/sovereignty would be a good thing.

However, in the much more likely scenario that they determine the 2nd Amendment does apply (or what I like to call the "Chicken Sh$t" position) then I'm all for striking it down.

By the way, I'm much less concerned about the criminals having the guns, and much more concerned about what happens when the only people with the guns are the police, the army, and other tools of the State.
 

It's funny that way-- the conservatives (painting with a broad brush here) seem really pro-police most of the time, but then think they need guns so they can shoot back at the police if necessary. That does not sound like a good plan to me! I would like that the criminals have no guns and that the police have all the guns, like in Canada.
 

I write only to comment on one thing:

When the Supreme Court strikes down legislation enacted by Congress, it's not being activist. It's their job to say what the Constitution means and strike down any law that violates its language. Judicial 'activism' is a term that should be for instances where the court gets on its high horse and legislates from the bench, adding to, subtracting from, or redefining legislation. Saying "no, Congress, you can't do that" just doesn't seem very activisit to me.
 

It is funny to me because liberals (painting with a broad brush here, but not that broad) are always very quick to tell us how dangerous the police are whether it be singling out minorities, taking bribes, or various other acts restricting your civil liberties. At the same time, liberals (slightly narrower brush) seem to love to protect criminals ("free Mumia Abu-Jamal" anyone).

Yet, they seem so willing to make cops the only ones with the weapons. The people they inherently distrust.

I never said I wanted more criminals to have guns, I simply pointed out that I am more worried with an unchecked State.

Alex - you are the first person today to use the term "judicial activism." I don't necessarily think what the court did yesterday in Kennedy was activist or what they did today in Heller was activist, I just happen to think one was wrong and one was right.

Oh, and seriously, nobody wants to talk about the FREE SPEECH case that came out today. C'mon people, the Court struck out for your right to be heard in the political process!!!! This is good stuff people!!!! Guns are boring, speech is sweet.....

Though I'm sure someone will say, "I'm confused by your position because it is my understanding that conservatives hate free speech, and babies, and dogs, and cruise control..."
 

this nra chicago suit really strikes me as just politics for the NRA to scare up votes. a lot of big cities have strict gun laws (particularly the blue state ones like San Francisco)... but they choose Chicago of all places... could that possibly be because a certain figure running for national office used to be a state senator from Chicago...
 

I think no one on here has the means to have their "speech" take the form of thousands of dollars in political contributions.

We're limited to the kind of political speech with no impact.
 

I gotta say that, even as a lawyer, my feeling is that on a day when the Dow sheds 350 points and oil climbs to $140/barrel, whether soemeone in the District can own a gun is so freakin' irrelevant it's amazing it ranks as the top news story of the day. The world economy is in free fall because, among other things, GWB and his stooges can't control the dollar. Frankly, pretty soon I'll need to buy a gun to defend my gas tank from siphoners...
 

Guns stop a beating heart!
 

As a Texas Concealed Handgun Licensee (along with 288,908 other Texans as of 2007), I've carried a concealed handgun either in my car or in my pocket for about 9 years (except when I must make an appearance at the court house or other places where carry by licensees is prohibited.). First, my exposure to other licensees (some of whom are fellow lawyers)--in various settings-- shows them to be some of the most law abiding and level-headed persons I've encountered. Second, never once in nine years have I ever even considered using or displaying my gun. Many of the opponents of the concealed carry laws assumed that road rage, etc, would lead to frequent shootings by licensees. In the 13 years since the CHL law passed in Texas this has yet to occur (at least not to my knowledge – anyone know of such an instance?) Needless to say, the opponents have been eating their words for the past 13 years of no such incidents.

For me, my pistol is much like a fire extinguisher in that it will likely never be used but it's there for the highly unlikely event that an emergency might necessitate its use. In addition, lawfully carrying a gun make me feel free in ways that people from many other countries will never know -- much like a comedian who stands before an audience and pokes fun of President Bush and then goes home without fear of being paid a visit by a government agent.

I’m glad to be an American and I’m glad I made ‘good choices’ throughout my life (no criminal record, etc.), and for those two reasons I receive the right to possess a gun – all for which I am very, very thankful.

Strip us law abiding citizens of such rights?…in the name of ____[fill in the blank -> safety, fighting terrorism, etc]. Do that, and what will distinguish America from (most) other countries? “Fight for our freedom” is what we tout as we send our troops into war, yet why do we not pursue and exercise those freedoms with equal vigor here in our own backyards? So, if you obey the law and play by the rules, then you should go out there and exercise a right every once in a while. It feels good and you deserve it. So, go out there and vote, make fun of Bush, host a prayer group, host an atheist group, go target shooting – experience things that many of the other people on this planet can only dream about doing.
 

I don't know... can we shoot child rapists?
 

I like lamp.
 

Tradelawguy is right. (even if he is a wimp about snow) This really is not that important an issue in the grand scheme of things. We could be headed for 1970's era stagflation and energy scares, yet Congress and the Prez simply dither.

Then again, they'll have to pry my lamp from my cold dead hands.
 

FYI that earlier post about me shooting the kooky appliance lady? That was not written by me. And I did not shoot her. Spencer was not packin' heat that day, so instead I locked her inside of a Bosch 24 inch tall tub stainless steel dishwasher that features the ECOWASH option and delayed start.

That should take care of her 30% mark up....

Tydbpbleach whomever you are...I am glad you enjoy my blog but Spencer has no use for a gun. He has a box grater.
 

Personally, I would like to see Justice Scalia shoot his intruder with one hand and dial 9*1*1 with the other (as heard more than once on NPR).

It has always appeared to me that it requires 2 hands to accurately hit the target and keep the gun barrel steady. Granted I have only tried this with amusement park games.
 

Yeah I heard that quote by Scalia on NPR (delayed) and I couldn't believe what I was hearing; it sounded so flippant. Kinda frightening.
 

And, swissgirl, what would you if faced with an intruder?
 

Well, I think we should either all be armed--why not every single American issued a gun along with a Social Security Number, at birth?--and trained to use it, or none of us should be armed.

Justice Scalia sounded mighty damn familiar with using a handgun. I don't particularly like imagining my Supreme Court justices that way.
 

Swissgirl,

I would like to address a comment you made.

You said "Justice Scalia sounded mighty damn familiar with using a handgun. I don't particularly like imagining my Supreme Court justices that way."

I find it particularly disturbing that you don't like to imagine Justice Scalia engaging in a constitutionally protected activity. I suppose don't like to think that Scalia exercises his right to free speech, his right to assemble, and his right to participate in religion. Perhaps we should confine our Justices to a dark room in the basement to ensure that they are not familiar with any recreational activities?
 

Unarmed said "The problem] with these gun nuts is that they assume that if gun regulations go away, only the "good" people will have guns, which they can then use to kill the "bad" people. I'm pretty sure that less regulation means it will be easier for bad people and kids and whoever else to get some guns."

That is brilliant. I feel obligated to use "Unarmed's" rationale to rebut.

The problem with these civil liberty haters is that they believe if all guns are taken away, criminals ("bad" people) would turn in their guns just like law abiding people ("good" people). I'm pretty sure that if Americans were required to turn in their guns, criminals (“bad” people), whom by definition are people who do not abide by the law, would NOT turn in their guns. This would leave "bad" people with the ability to shoot people with guns, and "good" people the ability to shoot back with their I-Phone cameras.