Does the 2nd Amendment Guarantee A Right To Self Defense? The Courts Disagree.

2 Comments

The NRA keeps referring to the 2nd Amendment as a “sacred” right, but I always thought that anything sacred was usually somehow given to us by God. But in fact, the right of Americans to own guns without any connection to some kind of military unit didn’t come from God at all. It came down from a 2008 Supreme Court decision that was decided by one vote. And in fact, the NRA was reluctant to push the Heller case to the Supreme Court because it looked probable, if not likely, that Justice Kennedy would swing over to the liberal side of the nation’s highest tribunal and that would be the end of that.

Immediately after Heller, various pro-gun groups began challenging state and local laws which allowed for private ownership of guns, but made the licensing process so onerous or arbitrary that owning a gun was difficult enough, using it for self-defense, particularly self-defense outside the home, was basically a non-existent right. In Washington, D.C., the U.S. District Court ultimately found the city’s license requirements unduly restrictive, but in California, a fairly restrictive process in San Diego County for the issuance of concealed-carry licenses was upheld.

This past week another California gun case made it all the way to the Supreme Court, but by a 7-2 margin, Kennedy, Alito and Roberts all moving to the other side, the Court refused to hear a case from San Francisco whose law states that “no person shall keep a handgun within a residence owned or controlled by that person unless the handgun is stored in a locked container or disabled with a trigger lock.” The law was challenged by, among others, an “elderly lady” who believes that she could never defend herself against an intruder if she had to “find her glasses, turn on the light, find the key to the lock box, open the lockbox….” If this isn’t a civilian version of the Keystone Cops, I don’t know what is.

The Ninth Circuit admitted in its ruling upholding the law that it was creating a “burden” on the core right of the 2nd Amendment, but it found this burden to be outweighed by the evidence presented by the City of San Francisco that “guns kept in the home are most often used in suicides and against family and friends rather than in self-defense and that children are particularly at risk of injury and death.” Uh-oh, here comes all that public health research by Kellerman, Hemenway and others about the risks of unlocked guns rearing its ugly head in a federal court. The pro-gun folks have lavished no end of expense and energy trying to discredit such research, and what they got for their efforts was the research was used to justify a limitation on their most sacred right.

The plaintiffs in this case, of course, produced some research of their own, which consisted of data from the Department of Justice showing that 60% of all home robberies take place between 6 P.M. and 6 A.M., precisely the period when people might be sleeping and their need for self-defense is “most acute.” But there’s only one little problem with this data because it also shows that only 1-2% of all forcible home robberies resulted in serious injury to someone present in the home, which means in terms of real numbers that only 10,000 individuals nationwide might have needed to defend themselves against a criminal assault.

The next case which might be reviewed by the SCOTUS involves a challenge to the San Diego law which makes it difficult for anyone to carry a concealed gun for self-defense. Let me give the plaintiffs in that case a little free advice: I wouldn’t push the self-defense argument too far even if Scalia used it as the basis for Heller in 2008. What the SCOTUS recognized in that decision was the fact that 300 million guns are floating around in civilian hands. But that’s not the same thing as saying that every pair of those hands can walk around with a gun.

 

 

Let’s Hear It For Antonin Scalia: The Best Gun Salesman Of All Time.

Leave a comment

As the wheels start turning towards the 2016 election, I can’t figure out why the gun lobby continues to prattle on about the ‘threats’ posed by liberal candidates like Hilary, when everyone knows that the industry’s best friend is that arch-liberal Barack Obama, whose presence in the White House for nearly another two years means that guns will continue to sell like crazy until he departs from the scene. And even though gun sales have slackened off since the halcyon days right after Sandy Hook and ammunition is once again appearing on at least some retail shelves, there’s no question that the only thing that really drives the gun business is the fear that gun owners won’t be able to buy or own any more guns.

Gun makers have never been able to convince a majority of Americans to go out and buy guns. With all the recent efforts to attract new gun consumers like women, college students and Blacks, the profile of the average gun remains a blue-collar White male with a family and a truck who lives in one of the 13 Confederate states, the 3 border states and the rural parts of 5 Midwestern states. Most gun owners are politically conservative and, generally speaking, vote bright red. Looking for liberal gun owners is like trying to run a fundraiser for a politically conservative candidate in Silicon Valley or the Hollywood Hills. The fact that certain demographics sway one way and others sway in the opposite direction shouldn’t come as a big surprise. We are a pretty diverse country, and diversity tends to create different points of view.

Yet despite these differences, the one thing that just about everyone believes is that the Constitution is truly the law of the land. And while Republicans paint Obama as some kind of anti-Constitutional despot, anyone who would take such partisan nonsense seriously well…you can fill in the rest. Which is why I find myself coming back to examine the 2008 Heller decision, because when all is said and done, this decision is more important for the future health and welfare of the gun industry than anything liberal gun-grabbers like Barack or Hilary could say or do.

Not only did the Court decide 5-4 that owning guns was a Constitutional right, the majority justified the decision by claiming that the right of personal gun ownership actually pre-dated the Constitution, the 2nd Amendment simply codifying a long-established practice that existed even before the Framers met in Philadelphia in 1787 or, for that matter, before British troops fired on colonials at Concord Bridge in 1776. It turns out that George Washington owned more than 50 firearms, both long guns and handguns, which qualified him as a true gun nut for his day. Thomas Jefferson, not only was an accomplished gunsmith, but invented some of the assembly-line techniques that later were used in the manufacturing of small arms.

The number one Constitutional gun nut, however, is none other than the author of Heller, Antonin Scalia, whose justification for claiming that we have a Constitutional right to own a gun is based on nothing more than his own needs. Try as he might, Scalia was utterly unable to find any significant legal precedent which justified using a gun for self-defense against personal threats or crime. Aside from a few vague statements from the anti-Federalist side, the overwhelming definition of self-defense in pre-Constitutional jurisprudence and commentaries involved defense against political threats from a national state.

Scalia is considered to be the foremost champion of centralized government authority sitting on the High Court. But I’ll bet that when he sat down to write Heller he was thinking first and foremost about how to protect his own guns. The fact that he crafted a decision effectively limiting the authority of the federal government while giving him and the rest of us the right to always own guns makes him a much better salesperson for the gun industry than Barack or Hilary could ever hope to be.

Follow

Get every new post delivered to your Inbox.

Join 170 other followers

Build a website with WordPress.com
%d bloggers like this: