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Some background on the D.C. handgun and self-defense bans:


1. Since the enactment of the 1976 D.C. ban on handguns and on home self-defense with any gun, handgun bans have been almost universally rejected by the American body politic. Indeed, 45 states now have laws to prevent the local enactment of laws like the D.C. ban. (Court, capital and handgun. Ft. Worth Star-Telegram.) Accordingly, under a "living Constitution" theory, the case against bans on handguns and on self-defense with firearms is very strong.

2. The D.C. ban is manifestation of the bigotry and incompetence which pervade much of the D.C. municipal government. (A Capital Crime. America's 1st Freedom.)

3. The case for handgun prohibition is very weak, once its premises are carefully examined. (Peril or Protection? The Risks and Benefits of Handgun Prohibition. 12 St. Louis University Public Law Review 344 (1993).)

4. Although the Court has not issued a major Second Amendment decision since Miller in 1939, the Supreme Court has mentioned or discussed the Second Amendment in thirty-five other cases, almost always in a context which requires an individual rights interpretation. (The Supreme Court's Thirty-five Other Gun Cases. 18 St. Louis University Public Law Review 99 (1999).)

5. The interpretation of state constitution right-to-arms clauses strongly points to an individual rights interpretation of the Second Amendment. Over the last four decades, voters in many states have added or strengthened state constitution right to arms clauses, always doing so by overwhelming majorities. These state actions affirm the vitality and importance of the right to arms under a "living Constitution" theory. (What State Constitutions Teach about the Second Amendment, 29 Northern Kentucky Law Review 845 (2002). Cited in Mosby v. Devine, 851 A.2d 1031, 1040 (R.I. 2004), majority opinion by Chief Justice Williams; State v. Hamdan, 264 Wis.2d 433, 467 n. 23, 665 N.W.2d 785, 802 n. 23 (Wisc. 2003), majority opinion by Justice David T. Prosser.)

6. The claim that a gun in the home of an ordinary person is a terrible danger which clearly outweighs the protective value of the gun is empirically false. (The Fallacy of '43 to 1'. National Review Online.)

7. The Brady Campaign claims that it does not support handgun prohibition, and that it does support self-defense by law-abiding gun-owners. Yet the Brady Campaign has fought vigorously in Congress against attempts to reform the D.C. handgun and self-defense bans, has fought in the instant case to preserve the bans, and fought (under one of its former names, the National Council to Control Handguns) to preserve the handgun and self-defense bans in D.C. Superior Court and the D.C. Court of Appeals in the 1976-78 case of McIntosh v. Washington.

GV_:
Accordingly, under a "living Constitution" theory, the case against bans on handguns and on self-defense with firearms is very strong.

You're confusing "living Constitution" with the Court's 8th Amendment jurisprudence. This point makes little sense.
11.20.2007 2:34pm
nunzio:
GV:

Lawrence, Roe, Griswold and the various parental rights cases are living constitution cases. I think that's what he's referring to.
11.20.2007 2:42pm
PLR:
Some "background" you got there. Reducing the prevalence of handguns in Murder Central is evidence of bigotry and incompetence. Got it.
11.20.2007 2:48pm
Ralph Phelan (mail):
"7. The Brady Campaign..."

Where do they get their money, anyway?
11.20.2007 2:57pm
Kevin P. (mail):
Although a lot of anti-gun funding comes from the Joyce Foundation, I don't think the Brady Campaign receives much of it.
11.20.2007 3:03pm
WHOI Jacket:
PLR, fat lot of good "removing the guns" has done for DC, eh?
11.20.2007 3:09pm
Marc B. (mail):
Calling this merely "some background" leaves one with the impression that you're going to at least attempt for objectivity in framing the history and circumstances surrounding the gun ban instead of a list of pretty debatable arguments against the ban. Try for a little nuance next time... you'll be a whole lot more persuasive and much less easily written off as an ideologue.
11.20.2007 3:15pm
Virginian:


Some "background" you got there. Reducing the prevalence of handguns in Murder Central is evidence of bigotry and incompetence. Got it.



PLR, fat lot of good "removing the guns" has done for DC, eh?


And who in their right mind thinks that this ban "reduced the prevalence of guns"? All it did was disarm the victims and make it much safer for the criminals.
11.20.2007 3:17pm
Virginian:

Calling this merely "some background" leaves one with the impression that you're going to at least attempt for objectivity in framing the history and circumstances surrounding the gun ban instead of a list of pretty debatable arguments against the ban. Try for a little nuance next time... you'll be a whole lot more persuasive and much less easily written off as an ideologue.


Maybe he could do that if there were a single decent (evidence-based, rather than emotion-based) argument in support of the ban
11.20.2007 3:21pm
Mr. X (www):
I say this as an NRA member for my entire adult life: Don't ever cite to America's First Freedom if your intent is to persuade anyone.
11.20.2007 3:48pm
bb:
Mr. X:

You really need to read what Mr. Kopel has linked to. It is an article that he wrote and was published in America's First Freedom. That is also the case with all the other links to articles that Mr. Kopel provided. They're his stuff and what he's already written and researched.

Are you expecting him to write a new paper for each of the topics that he's linked to and have them submitted to a publication that you see as more "reputable" before you will read any of them, even though they are articles that he wrote? C'mon...
11.20.2007 4:22pm
The Ace (mail) (www):
Reducing the prevalence of handguns in Murder Central is evidence of bigotry and incompetence. Got it.

Hilarious.
Um, and what is the evidence the prevalance of handguns has been reduced?
Do you know anything about the DC homicide rate or the gun-crime rate?

Obviously not
11.20.2007 4:35pm
glangston (mail):
Some "background" you got there. Reducing the prevalence of handguns in Murder Central is evidence of bigotry and incompetence. Got it.



Actually it's the attempt to reduce the means of self-defense that is bigotry and incompetence.
11.20.2007 4:39pm
The Ace (mail) (www):
in framing the history and circumstances surrounding the gun ban instead of a list of pretty debatable arguments against the ban.

Published recently:


Guns were used in 63 percent of the city's 188 slayings in 1976. Last year, out of 169 homicides, 81 percent were shootings.


More:


Washington D.C. ranked number 1 in violent crimes and murder per 100,000 residents for the years 2004 and 2005. For violent crime, D.C. had 1459 crimes per 100,000 residents almost double 2nd place South Carolina which had 761 For murder, D.C. had 35 per 100,000, 3.5 times 2nd place, Maryland


As always, comments from leftists are parody.
11.20.2007 4:51pm
Mr. X (www):
You really need to read what Mr. Kopel has linked to. It is an article that he wrote and was published in America's First Freedom. That is also the case with all the other links to articles that Mr. Kopel provided. They're his stuff and what he's already written and researched.

Are you expecting him to write a new paper for each of the topics that he's linked to and have them submitted to a publication that you see as more "reputable" before you will read any of them, even though they are articles that he wrote? C'mon...


Actually, I read the article when it first came out in the print version of the magazine. My comment was with regard to persuading people who are not already sympathetic to pro-gun views. Any citation to an official NRA rag, even if the article is brilliant, undercuts the entire argument.
11.20.2007 4:51pm
Vivictius (mail):
It doesnt undercut the argument, it just causes it to be ignored by people who will not listen anyhow. So actually it is quite usefull in find out who is not worth talking to.
11.20.2007 5:41pm
Sebastian (mail) (www):
The gun ban in Washington DC is bigoted? Oh, come on Dave, surely our nation's gun control laws wouldn't be racist in origin, now would they?
11.20.2007 6:03pm
Hello:
All these other arguments aside, the parts I've never been get my mind around are the first two portions: "A well-regulated militia, being necessary to the security of a free State-".

I always felt that, if the purpose was not to protect maintenance of militias, why couldn't the 2nd Amendment simply say: "The right of the people to keep and bear arms shall not be infringed".
11.20.2007 6:25pm
ReaderY:
I don't think statements like "The D.C. ban is a manifestation of the bigotry and incompetence which pervade much of the D.C. municipal government" help anything or will persuade anyone, and they may do the opposite.
11.20.2007 8:21pm
Visitor Again:
I always felt that, if the purpose was not to protect maintenance of militias, why couldn't the 2nd Amendment simply say: "The right of the people to keep and bear arms shall not be infringed".

It could have, but it didn't. So what?

If the purpose of the second amendment were solely to protect maintenance of armed militias, why didn't the second amendment simply say: The right of members of a militia to keep and bear arms shall not be infringed? Why was the right guaranteed to the people in general, a group much broader than the militia?

I have no special expertise in this area, but I can think of two reasons off the top of my head why it might have done so.

First, one way of ensuring a militia is armed is by ensuring that the general population from whom a militia is drawn has the right to keep and bear arms. Perhaps it was for this reason that the right was given to all people whether or not they were at present in a militia.

Second, perhaps the maintenance of an armed militia was not the only purpose behind the second amendment, but merely the only purpose that is mentioned. That one purpose of the second amendment is explicitly mentioned does not mean it was the only purpose. Perhaps it was deemed the only reason worth mentioning because other purposes underlying the right to keep and bear arms--for example, personal self-defense--were so well understood, recognized and accepted that they needed no explication.

At bottom, the right is given to the people in general, and it is not limited to militia members. The phraseology of the second amendment would have been a singularly curious way of extending the right only to militia members.
11.20.2007 8:44pm
Dave D. (mail):
...The only referrence to "the people" that is disputed by the left is the second amendment. Why is that ? Because they don't want the second amendment to mean, the "Real people", but some construct that means the people in concert, not the individual people that the founders meant. The founders meant, the individual PERSON. They depended on the PERSON to support THEIR government, THEIR choice, not some socialist group but the person himself. Only that would guarentee our freedom, HIS freedom. What part of People don't you understand ?
11.20.2007 10:14pm
Tatterdemalian (mail):
Or maybe the founders were clever enough to realize how the pace of weapons technology was picking up (the Bushnell Turtle? Our ships will never be safe if pirates get their hands on those!) and wanted an out, for when truly catastrophic weapons that needed to be kept out of the hands of superstitious peasants were invented.

Still, the ban on handguns is an abuse of this safety valve. Modern handguns are more accurate than flintlock pistols, but not by all that much, and the increased accuracy and smaller bore size greatly reduce the chance of killing innocent bystanders.

In fact, considering the bore size of some of the museum pieces I've seen, many old flintlocks were more like sawn-off shotguns than handguns. If Hamilton and Burr could carry them, why can't we?
11.20.2007 10:34pm
Clayton E. Cramer (mail) (www):

All these other arguments aside, the parts I've never been get my mind around are the first two portions: "A well-regulated militia, being necessary to the security of a free State-".

I always felt that, if the purpose was not to protect maintenance of militias, why couldn't the 2nd Amendment simply say: "The right of the people to keep and bear arms shall not be infringed".
You might start by reading the legislative history of the Second Amendment. Originally it was: "The right of the people to keep and bear arms shall not be infringed;" then the militia clause. A committee of eleven members of the House did the rearrangement in July, but there is not a single shred of evidence that tells us why they moved it around. And oddly enough, until the 20th century, there is not a single written opinion or constitutional commentary that claims the Second Amendment protected a right of the states--and quite a few that say that it protects an individual right.

Remember that the reason that DC has this gun control law which is so Draconian is that it is about the only really big city in America which is overwhelmingly majority black. Black elites are scared witless of black criminals, and have a very hard time distinguishing black criminals from their overwhelmingly black victims. I guess if you are an elitist, they all look alike.
11.20.2007 11:23pm
Virginia Gun Owner:
I agree with the commenters who have suggested this list is far from persuasive. My own opinion is that the Supreme Court will strike down the ban (i.e., affirm the D.C. Cir.) and that this is probably the correct resolution. I also own firearms.

However, your list suggests ideologically driven blindness.

1. As GV said, you are confusing "living Constitution" with the recent 8th Amendment jurisprudence. Your point makes little sense.

2. This point is baseless. Your article blithely throws around the bigotry invective, but this provacative label is attached merely because "the current law puts D.C. citizens in the same position as slaves". Your labelling only makes sense if the motivation of the current law is to put "D.C. citizens in the same position as slaves". You present no evidence for any such claim. The fact that a particular category of law has been used to base for racially motivated reasons does not mean that the category of law necessarily has a racist purpose or effect. I first thought your point in the list was simply inartfully articulated, however, upon reading your article, it now appears to be quite an ideological twisting of facts in order to be able to cast aspersions on the motives of those you oppose.

D.C.'s incompetence in many things is really irrelevant to whether the gun ban is constitutional and only tangentially relevant in a discussion of whether it is a good idea (tangentially relevant only in that if the D.C. Council thinks it is a good idea, it probably is not).

But throwing in the bigotry claim is underhanded.

3. A fairly even-handedly articulated point. Though, of course, how weak is up for individual interpretation and "weak" is not the same as illogical or obviously a ruse to implement a bigoted policy (as you suggest in point 2).

4. While I believe the individual rights view is probably the historically correct view, a quick perusal of the 35 other cases indicates you are really stretching to find support in those case.

5. A solid point.

6. "empirically false"? Your article only establishes (accepting its claims as true) that it has not been empirically proven that "a gun in the home of an ordinary person is a terrible danger which clearly outweighs the protective value of the gun." Your link does nothing to empirically demonstrate that such a statement is false. Of course, there is a world of difference between something not having been empirically proven and something being proven to be empirically false. You cannot be so obtuse as to misunderstand that difference.

In order to empirically demonstrate falsehood, one would need first to compare the number (e.g., rate per 100,000 gun-owning households) of instances a person with criminal intent was dissuaded by a gun (who, consistent with your own arguments, would not have been dissuaded by a knife, alarm system, frying pan, poison, scarecrow, continuously-looped Sound of Music, or other deterrent method) with the number of injuries or deaths caused by a gun (which would not have happened anyway by use of a knife, etc.). Assuming you could find any reliable data for determining these numbers, you then have to develop some means of comparing the "terrible danger" with the "protective value" which, I submit, is highly subjective and, thus, incapable of empirical proof.

However, you have not even given us that numerical analysis in support of your claim before making it. Your statement is false.

7. Because the Brady Campaign and their honesty/motives/history has no bearing on the legal issues or, really, the political issues involved, this is my only response to that point.

In summary, you have intermingled some decent points with ideologically driven invective and demonstrably false claims (which is particularly disturbing as you accuse your ideological opponents of making false claims). While I am quite sympathetic both to the individual rights view of the Second Amendment and to striking down the D.C. handgun ban, I have now noted that you, Mr. Kopel, are a wholly unreliable source of information on this topic. You should not publish this type of nonsense in places where people who are not card-carrying members of the NRA can read it, because it only makes you and the NRA look dishonest and spiteful.

You should update your post with appropriate corrections, retractions, and apologies.
11.21.2007 10:41am
x (mail):
Miller, as I recall, indicated that the specific problem (guilty verdict remained) was that a sawed off shotgun was not suitable for Militia service.

So today we have, what, M-16? grenade launcher? etc? that ARE suitable for Militia service. So if there is an individual right, we all have a right to fully automatic weapons, and so forth?

Just wondering what follows if that is so?

x
11.21.2007 10:46am
Hello:
If the purpose of the second amendment were solely to protect maintenance of armed militias, why didn't the second amendment simply say: The right of members of a militia to keep and bear arms shall not be infringed? Why was the right guaranteed to the people in general, a group much broader than the militia?

I have no special expertise in this area, but I can think of two reasons off the top of my head why it might have done so.

First, one way of ensuring a militia is armed is by ensuring that the general population from whom a militia is drawn has the right to keep and bear arms. Perhaps it was for this reason that the right was given to all people whether or not they were at present in a militia.

Second, perhaps the maintenance of an armed militia was not the only purpose behind the second amendment, but merely the only purpose that is mentioned. That one purpose of the second amendment is explicitly mentioned does not mean it was the only purpose. Perhaps it was deemed the only reason worth mentioning because other purposes underlying the right to keep and bear arms--for example, personal self-defense--were so well understood, recognized and accepted that they needed no explication.

At bottom, the right is given to the people in general, and it is not limited to militia members. The phraseology of the second amendment would have been a singularly curious way of extending the right only to militia members.


That makes sense. Thanks--
11.21.2007 1:54pm
jj mollo (mail):
I am a liberal, but I am not particularly opposed to the free interpretation of the 2nd amendment. My only problem is practical. I don't want to take guns away from people defending their homes, but since I live in Philadelphia I am eager to see the current laws regarding felons, minors, etc., enforced. The problem is that the current laws are unenforceable. Gov. Rendell has proposed some changes that seem reasonable to me, yet can't get them out of committee because of the hard-line politicians representing the non-urban areas of the state. What is so threatening about a limit of one gun per month? What is so unfair about requiring people whose guns are lost or stolen to report the event? Are there any feasible compromises that we could make to somehow cut down on the illegal gun traffic in Philadelphia?
11.21.2007 6:47pm
Ian Argent (mail) (www):
Both of those suggestions will make NO DIFFERENCE in the availability of guns to criminals, they will only place an undue burden on legitimate gun owners (and would-bbe guns owners).
11.21.2007 8:47pm
Ian Argent (www):
Excuse me - these are laws intended to combat an already-illegal st of activities; namely straw purchases and buglary. There are already laws against both - enforce them.
11.21.2007 10:03pm
Carl in Chicago (mail):
Excellent summation, David. As is usual.

I applaud the grant from the SCOTUS, and particularly so under the assumption that it will bring desperately needed objectivity to the discussion of gun control.
11.22.2007 12:12pm
Yolanda Jackson:

In order to empirically demonstrate falsehood, one would need first to compare the number (e.g., rate per 100,000 gun-owning households) of instances a person with criminal intent was dissuaded by a gun (who, consistent with your own arguments, would not have been dissuaded by a knife, alarm system, frying pan, poison, scarecrow, continuously-looped Sound of Music, or other deterrent method) with the number of injuries or deaths caused by a gun (which would not have happened anyway by use of a knife, etc.).


You're close but your logic has a fatel flaw. You could do the above examination but the numbers would have to reflect exclusively on crimes and deaths related to legally owned firearms. By its very nature, the DC Gun Ban has no application to illegally possesed weapons used in the commission of a crime and thus fall outside the context of your philosophical arguement and resulting statistics. The ban exclusively applies to law abiding citizens.

The conclusion is because the law can't prevent law abiding citizens from committing crimes (because they're law abiding, after all) and because criminals disregard the law, that the law has no application to public safety.

I'm not sure what statistics are available for gun crimes committed exclusively by legally owned guns.
11.24.2007 3:19pm