Journal Sentinel Gets It Wrong On Parker

<sarcasm>What a shock.</sarcasm>

Let’s take this piece by piece, shall we?

The drafters of the U.S. Constitution get much credit for their foresight in that they came up with a blueprint for a national democracy that has withstood the test of time. But what if these agrarian, 18th-century thinkers had gotten a glimpse of today’s urban warfare in America - made possible in part by guns far more accurate, speedy and deadly than the single-shot, muzzle-loading firearms around when they wrote the Second Amendment?

They would be shocked at the “urban warfare.”  They would be shocked that the victims of this “urban warfare” don’t have the right to defend themselves in many of our country’s jurisdictions, including the nation’s capital.

Also note the attempt to blame the guns.  Somehow, I don’t think the “agrarian, 18th-century thinkers” would be so quick to pass the buck from the criminals responsible for causing the state of “urban warfare.”

James Madison might say: Hey, we’d better clarify that amendment so it won’t hamper government in enacting sensible regulations for these future weapons of much destruction.

Yeah.  Cause Madison was all about promoting government infringement upon those pesky rights the drafters thought sacred enough to single out in the Bill of Rights.  Do these idiots actually think that the drafters of the Constitution and Bill of Rights, operating under the political and social climate of the time, would promote enacting “sensible regulations”?   Especially on firearms, considering the drafters’ primary concern with the 2d Amendment was ensuring the ability of the populace to protect the security of a free State?

That didn’t happen, of course. So last week, the U.S. Court of Appeals for the District of Columbia interpreted the ambiguously worded amendment in a way that permitted it to declare unconstitutional D.C.‘s strict gun-control ordinance.

Indeed, the ordinance goes too far in that it effectively bans handguns at home. Another defect is that it does not specifically permit the use of long guns for self-defense. But the court went too far, too. It should have left to the democratic process any correction of these defects.

How about we enact a statute that prohibits the Journal Sentinel from covering any issues related to state or federal law?  When they attempt to challenge it on 1st Amendment grounds, maybe the courts will tell them to leave it to the democratic process to correct.  Freedom of the press is only a constitutionally protected right, after all.

The three-judge panel was too activist. It departed from mainstream jurisprudence, which is to regard the Second Amendment as safeguarding more the right of states to form militias than the right of individuals to carry arms.

First, they misstate “mainstream jurisprudence.”  The only Supreme Court opinion on point, Miller, does not stand for what the Journal Sentinel seems to think it stands for.  The Court addressed Miller (and the common misstatement of Miller‘s holding) at length in the opinion.  Perhaps the Journal Sentinel missed that part.  It’s only pages 29-58 of a 58 page opinion.

Second, just because something is “mainstream jurisprudence” doesn’t make it correct.  We’re not dealing with an issue that has been repeatedly litigated, and on which there is an established body of settled law.  The Supreme Court has not addressed the 2d Amendment since Miller was decided—in 1939.  Miller is the only Supreme Court case to hold* that the 2d Amendment is a collective right (*as the Parker opinion points out, that’s not really the holding of Miller—it’s just commonly misinterpreted as such).  I wonder how the Journal Sentinel would have felt about Dred Scott?  Or the state of defamation law before NY Times v. Sullivan?

The dissenting opinion even argues that the Second Amendment doesn’t apply to D.C., since the amendment’s focus was on protecting states from the standing army of the federal government. It makes no sense to give the federal seat the right to defend itself against itself.

That’s why the dissenting judge is now a laughing stock.  Her logic was as follows:

1.  The 2d Amendment exists to protect the militias.
2.  The militias’ only purpose is to protect the interests of the individual states.
3.  D.C. is not a state.
4.  Therefore, the 2d Amendment does not apply to D.C.

#2 is absolutely laughable in the face of history, and the contemporaneous record.  The dissenting judge went reaching for a straw—any straw—to reach her desired result.  She found it in the phrase “being necessary to the security of a free State.”  That’s “State” as in nation-state.  The drafts of the Bill of Rights show that the drafters meant “State” to refer to the nation, not to an individual state.  The usage of the phrase elsewhere in the document is consistent with this interpretation.  Plus, it leads to the absurd conclusion that the 2d Amendment doesn’t apply to D.C. at all.  Somehow, I don’t think that’s what the drafters had in mind.

But the legalities aside, the wise course is for the people, through their government, to have the right to regulate firearms for safety’s sake. The people ought not to overregulate - which D.C.‘s ban on pistols and revolvers not registered before Sept. 24, 1976, does.

Nothing in this ruling will prohibit reasonable regulations on the 2d Amendment.  The opinion is clear on that.  But the regulations must be reasonable.  Requiring a gun to be stored unloaded, disassembled, and locked is not reasonable.  Prohibiting a person from carrying a gun in their own home is not reasonable.

The gun-control ordinance calls for keeping firearms in the home unloaded and disassembled or disabled by a trigger lock. But the wording is such that it can be interpreted as barring the assembly of the weapon or the removal of the trigger lock in a moment of self-defense. That defect needed fixing, but not by the courts.

It’s unconstitutional, and it needs fixing by the courts.  Does the Journal Sentinel really think that D.C. would fix it in a fit of conscience without being forced to?

The district may appeal the verdict to the full Court of Appeals, which should reverse. Meanwhile, D.C. should loosen the ordinance to permit the licensed possession of handguns in homes and the use of firearms in self-defense.

Fat chance of #1.  D.C.‘s only chance of avoiding this case as precedent for the rest of the country is to do #2, but even that might not be enough.  I have to ask, though, where the Journal Sentinel stood on “loosen[ing] the ordinance” before this decision came out?  Hmmm….. I wonder….

 

 

Posted by Jed at 1911 hrs
Firearms + Law