Reason Magazine - Topics > Guns

Republic of Montana

rbalko@reason.com (Radley Balko) — Tue, 13 May 2008 12:00:00 EDT

Several dozen Montana politicians, including Secretary of State Brad Johnson, have adopted an unconventional take on the Second Amendment case currently before the U.S. Supreme Court: They’ve threatened secession. D.C. v. Heller, the first substantive Second Amendment case the Court has heard in nearly 70 years, could definitively settle whether the right to bear arms is an individual right or a collective right.

In a joint resolution, the Montana politicians argue that when Washington approved the state constitution, including a clause granting “any person” the right to bear arms, upon the Treasure State’s entry into the Union in 1889, the federal government recognized that clause as consistent with the Second Amendment. If the Court comes down on the side of a collective right, they argue, it would breach the compact for statehood between Montana and the federal government.

“Some speak of a ‘living constitution,’ the meaning of which may evolve and change over time,” supporters of the resolution explain on their website. “However, the concept of a ‘living contract,’ one to be disregarded or revised at the whim of one party thereto, is unknown.” Therefore, they argue, “A collective rights holding in Heller would not only open the Pandora’s box of unilaterally morphing contracts, it would also poise Montana to claim appropriate and historically entrenched remedies for contract violation.” Said remedies include opting out of its breached compact with the federal government—in other words, seceding from the Union.

D.C.'s Homicide Rate May Be Through the Roof, but Montanans Kill Themselves a Lot

jsullum@reason.com (Jacob Sullum) — Mon, 05 May 2008 15:21:00 EDT

Citing a connection between gun ownership and "firearm death rates," the Violence Policy Center concludes that the U.S. Supreme Court should uphold the District of Columbia's gun ban:

The five states with the highest per capita gun death rates were Louisiana, Alaska, Montana, Tennessee and Alabama. Each of these states had a per capita gun death rate far exceeding the national per capita gun death rate of 10.32 per 100,000.
By contrast, states with strong gun laws and low rates of gun ownership had far lower rates of firearm-related death. Ranking last in the nation for gun death was Hawaii, followed by Massachusetts, Rhode Island, New Jersey and New York.
VPC Legislative Director Kristen Rand states, "Blind allegiance to the Second Amendment comes at a deadly price. Many residents in pro-gun states cheer the possibility of a June Supreme Court ruling that could place gun controls across the nation at risk, never realizing that those states stand as proof of the need for such laws."

Using state-level data for this comparison is problematic, since it ignores intrastate differences in gun control and gun ownership—between New York City and upstate New York, for instance, or between Chicago and downstate Illinois. In any case, the VPC's full table suggests that the relationship between gun ownership and gun-related deaths is not quite as neat as the group's press release implies. North Dakota, Kansas, Utah, Wisconsin, Maine, Vermont, Minnesota, and Iowa all have relatively high gun ownership rates (above 40 percent), but all have firearm death rates below the national average.

Nor is it clear that the firearm death rate—which includes suicides and accidents as well as homicides but excludes deaths caused by other means—is the correct way to measure the success of a policy (gun control) that presumably aims to achieve a net reduction in deaths, not merely a change in the mixture of methods. Nine out of the 10 states with the lowest overall murder rates—Vermont, Iowa, Utah, Montana, Maine, Wyoming, Hawaii, North Dakota, South Dakota, and New Hampshire—have relatively loose gun rules. States with relatively strict gun control do look better in the overall suicide rankings. Presumably suicide is the reason why a state like Montana, which ranks near the top in gun ownership, 44th for murder, and first for suicide, comes in third on the VPC's list of states with the highest gun death rates.

It's not clear, of course, whether Montanans' propensity to kill themselves is caused by all those guns. With any comparison like this one, we need to keep in mind that correlation does not prove causation—especially when the correlation is based on a cherry-picked outcome measure and a simplistic top five, bottom five comparison. Even given those parameters, the VPC's presentation of the data is skewed by its decision to leave out a jurisdiction that has both the country's strictest gun control and by far its highest murder rate—more than twice the rate of its nearest competititor. The omission is especially puzzling because it was the controversy over this jurisdiction's gun laws that evidently prompted the VPC to assemble its table.

Speaking of which, shouldn't the constitutionality of D.C.'s gun ban hinge on the Constitution, as opposed to the suicide rate in Montana? By cautioning against "blind allegiance to the Second Amendment," the VPC essentially concedes that D.C.-style gun control is unconstitutional, while arguing that it should be upheld anyway.

The VPC press release prompted a credulous, one-sided UPI story and a Honolulu Star-Bulletin editorial crowing about the superiority of Hawaii's gun laws.

[Thanks to Dan Gifford for the tip.]

The Cops That Couldn't Shoot Straight

schapman@tribune.com (Steve Chapman) — Thu, 24 Apr 2008 07:00:00 EDT

When a rash of gun murders takes place, it makes sense for the police to do one of two things: renew tactics that have been effective in the past at curbing homicides, or embrace ideas that have not been tried before.

But those options don't appeal to Chicago Police Supt. Jody Weis. What he proposes is a crackdown on assault weapons.

I'm tempted to say this is the moral equivalent of a placebo—a sugar pill that is irrelevant to the malady at hand. But that would be unfair. Placebos, after all, sometimes have a positive effect. Assault weapons bans, not so much.

If there are too many guns in Chicago, it's not because of any statutory oversight. The city has long outlawed the sale and possession of handguns. It also forbids assault weapons. If prohibition were the answer, no one would be asking the question.

The recent spate of killings gives a misleading impression. Since the peak years of the early 1990s, the number of murders in Chicago has fallen by more than half. In the first three months of this year, homicides were down by 1.1 percent. No one would describe the current murder rate as acceptable, but the city has made huge progress.

It has done so despite the alleged problem cited by Weis, which is the availability of guns, and particularly one type of gun. "There are just too many weapons here," he declared at a Sunday news conference. "Why in the world do we allow citizens to own assault rifles?"

Actually, in Chicago "we" don't allow citizens to own assault rifles. Elsewhere they are allowed for the same reason other firearms are permitted. The gun Weis villainized is a type of semiautomatic that has a fearsome military appearance but is functionally identical to many legal sporting arms.

And its bark is worse than its bite. As of March 31, there had been 87 homicides in the city. When I asked the Chicago Police Department how many of the murders are known to have involved assault rifles, the answer came back: one.

As it happens, we already have ample experience with laws against these guns. From 1994 to 2004, their manufacture and sale were banned under federal law. Yet the number of murders committed with rifles and shotguns began falling in 1991, three years before the law was enacted.

It's true that gun homicides also fell while the law was in effect. Does that prove the value of the ban? Not exactly, since stabbing deaths fell even faster, as did murders involving crowbars, baseball bats and other blunt objects. Obviously other factors were behind the improvement.

The irrelevance of the law was plain to see. In 2004, Tom Diaz, an official of the pro-gun control Violence Policy Center, said, "If the existing assault weapons ban expires, I personally do not believe it will make one whit of difference" in curbing gun violence.

No surprise there. Anyone with criminal intent had plenty of deadly options at hand. The so-called assault weapons, contrary to what you might assume, were no more powerful or lethal than other, unbanned guns.

Not only that, but criminals, the people most likely to commit violent crimes, were completely unaffected by the ban—for the simple reason that they are not allowed to buy or own guns of any kind.

As Florida State University criminologist Gary Kleck notes, most criminals arm themselves by stealing guns or buying guns stolen by someone else. So new restrictions don't make much difference to them. The federal ban was a classic illustration of how gun control works. Law-abiding people who rarely misuse their guns were deprived of options. Ex-cons went on as before.

Why wouldn't a gun ban dry up the supply of firearms available to criminals? Three reasons: There are more than 200 million guns in private hands. They have a very long useful life. And it doesn't take many to supply the nation's bad guys with all the ordnance they need.

Gun control hasn't worked as a remedy for crime. So what makes anyone think the answer is more gun control?

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

The Killer Elite

mmoynihan@reason.com (Michael C. Moynihan) — Wed, 23 Apr 2008 15:15:00 EDT

At this point in the news cycle, it is perhaps unnecessary to reprint Sen. Barack Obama's continuously reprinted comments about those bitter, clingy, armed, pious, and disaffected voters of Pennsylvania. But in case your interest in this never-ending race waned upon the exit of Mike Gravel, here is, once again, the Illinois Democrat explaining why the rural poor are supposedly swayed by conservative—rather than liberal—populism: "You go into these small towns in Pennsylvania and, like a lot of small towns in the Midwest, the jobs have been gone now for 25 years and nothing's replaced them...And it's not surprising then they get bitter, they cling to guns or religion or antipathy toward people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations."

Now, let's ignore that last bit of hypocrisy—if anyone has fanned the flames of anti-trade sentiment, it's Obama—and say that it's not too difficult to agree with The Economist's characterization of these comments as a bit "snooty." The claim that religious zeal (the Christian fundamentalism is implied) or gun ownership correlates to the number of shuttered Pennsylvania factories is pretty thin gruel. Recognizing this, both Obama's current opponents, Sens. Clinton (D-N.Y.) and McCain (R-Ariz.), pounced, calling the comments "elitist" and accusing their fellow senator of being hopelessly "out of touch" with the real America.

For its part, many in the media—excepting the conservative-leaning Fox News, of course—jumped into the breach to defend their beloved frontrunner. Consider the reaction of the pundits on CNN's The Situation Room, hosted by Wolf Blitzer, to the charge that Obama displayed a hidden contempt for the armed and religious. First, CNN's house windbag Jack Cafferty denied that Obama was trading in elitism. Rather, explained Cafferty, Obama was simply acknowledging that Pennsylvania is the Saudi Arabia of America. "What happens to [unemployed] folks like that in the Middle East, you ask? Well, take a look. They go to places like al Qaeda training camps." Regardless of whether gun ownership and economic desperation are causative, Cafferty (who has his own problems with inflammatory comments) denounced previous American leaders—cough, Bill Clinton, cough—that "shipped the jobs overseas and signed phony trade deals like NAFTA."

U.S. News & World Report Contributing Editor Gloria Borger weighed in with wrist-slap for Obama's "inartful" terminology. "But," she continued, "I think he's expressing a sentiment of mad as hell voters not going to take it anymore that we've seen throughout this election." The McCain and Clinton campaigns, Borger said, were after the same thing, which is to "portray Obama as this sort of effete elitist who doesn't understand the real working class people or Independent voters."

And, finally, CNN legal analyst Jeffrey Toobin sputtered that the whole thing was taken out of context. It was, he proclaimed, a "fake issue. I think [Hillary Clinton] is completely distorting what Obama said. And I think it's just shocking, frankly... I think [Clinton's attack] ad is a disgrace." Toobin declared that by dint of his family background, Obama was incapable of elitism: "Well, I just think it's remarkable that Barack Obama, this guy who grew up in a single family household with no money, who lived in Indonesia, who, you know, was—came from very modest upbringings, somehow he's the elitist." (While certainly not rich, it's worth reminding that Obama, the son of two university-educated parents, attended an "exclusive and prestigious" private school in Hawaii, Columbia University, and Harvard Law School.)

So in The Situation Room, there was consensus. The story was silly season stuff; a prototypically Clintonian diversion from the substantive issues.

While CNN scoffed at the thought of Obama not understanding the rural, white working-class voter, a number of pro-Obama bloggers and pundits were turning on his accusers. At The Atlantic, Andrew Sullivan linked to a column by New Criterion editor Roger Kimball, and directed readers to "check out the photo" of Kimball wearing a bowtie and sporting turtle-shell glasses. What does this elitist buffon know from elitism?

Writing in The New Republic, Jonathan Chait railed at the "hypocrisy" of certain elite media figures, saving special ire for "George F. Will [who] decided to leap to the defense of the proletariat. Yes, that George F. Will."

In case you didn't immediately understand the source of Chait's sarcasm, he clarified that Will is "the fabulously wealthy, bowtie-wearing, pretentious reference-mongering, Anglophilic fop who grew up in a university town as a professor's son, earned two advanced degrees, has a designated table at a French restaurant in Georgetown, and, had he dwelt for any extended time among the working class, would be lucky to escape without his underwear being yanked up over his ears." Oh dear. Rumor has it that, in his Georgetown estate, Will has a shelf devoted to the novels of Evelyn Waugh, that poncy, ascot-wearing Brit (boo!) who wrote florid novels about fox hunting and buggery, which Will reportedly reads while consuming expensive French food!

So here we have a class-war version of the "chickenhawk" charge. Don't advocate for war unless you have served, don't speak for the peasants if you wear a bowtie and recommend Chesterton novels to your (probably foreign) friends. Members of the right-leaning bourgeoisie are incapable of spotting and deploring such condescension directed at those who typically vote for right-leaning candidates.

Chait writes that populist, fist-shaking pundits such as Chris Matthews and Bill O'Reilly, who bully guests and interviewers with references to their "real America," blue-collar credentials, "are multimillionaires who retain only the most remote connection to blue-collar life." This is true enough. But Obama's defenders use the very same line of argumentation in explaining away his "bitter" comments. So when critics such as Toobin tell Wolf Blitzer that Obama "grew up in a single family household with no money," it is perhaps worth mentioning that it should also be tough for Obama to retain his working-class connections—if he ever had any—when he earned $4.2 million in 2007.

Though it likely had little or no effect on yesterday's loss in Pennsylvania—potentially insulted voters were leaning largely toward Hillary Clinton anyway—it is not outrageous to think that Obama's extemporaneous bit of pop sociology was indicative of a generally condescending attitude towards the Other (that was the basic point of Will's column, which found precedent for such feelings in Adlai Stevenson's failed presidential runs in 1952 and 1956). That attitude will surely be revisited in the general election.

The inclusion of guns in Obama's complaint is, I think, especially revealing. A convincing argument can be made that xenophobia is more appealing to the dispossessed and downtrodden—They're taking our jobs! They're invading our country!—and a convincing case can be made that Obama has employed similar, though not explicitly xenophobic, language when railing against NAFTA stealing American jobs. But what does any of this have to do with guns, other than to signify that these are bitter country rubes that, to paraphrase What's the Matter with Kansas author Thomas Frank, foolishly vote against their own interests?

Nevertheless, Jeffrey Toobin told CNN viewers, what Obama said "was factually accurate." But is it? As Syracuse University professor Arthur Brooks wrote in the Wall Street Journal, "It turns out [gun owners] have the same level of formal education as nongun owners, on average. Furthermore, they earn 32% more per year than nonowners. Americans with guns are neither a small nor downtrodden group. Nor are they ‘bitter.' In 2006, 36% of gun owners said they were ‘very happy,' while 9% were ‘not too happy.' Meanwhile, only 30% of people without guns were very happy, and 16% were not too happy."

So Obama's gun analysis was not only incoherent (how does one "explain their frustrations" by shooting skeet, anyway?), but based on lazy presumption and stereotype that's not that backed up by any data. And George Will might well be a fop, but his distillation of Obama's argument strikes me as reasonable: "Americans, especially working-class conservatives, are unable, because of their false consciousness, to deconstruct their social context and embrace the liberal program." In other words, Barack Obama thinks that, whether they know it or not, the gun-toting plebes of America are in desperate need of "change."

Michael Moynihan is an associate editor of reason.

Akron, Too

rbalko@reason.com (Radley Balko) — Mon, 21 Apr 2008 15:27:00 EDT

In Memphis this week, it was a "terrorism sweep" that failed to catch any terrorists. In Akron, police embarked on a citywide "gun sweep" that didn't turn up any guns.

But like the authorities in Memphis, they did find plenty of other ways to stay busy:

Authorities arrested 72 people in the third night of a Gun Violence Reduction Sweep on Friday night and Saturday morning, Akron police Lt. Rick Edwards said.
Edwards said 115 charges were filed. Of those charges, five were felonies, 35 were misdemeanors and 75 warranted arrests for people with outstanding warrants, Edwards said. Of the warranted arrests, seven were felonies and 68 were misdemeanors.
Authorities also issued 88 traffic citations, including four for operating a vehicle under the influence.
During the sweep, authorities also conducted bar checks at the Bank Lounge at 1078 Kenmore Blvd., where patrons were arrested on drug charges, and at the Boulevard Lounge at 995 Kenmore Blvd., where liquor violations were issued against the liquor permit holder and several patrons were charged with drug offenses, Edwards said.
During the citywide sweep, officers confiscated 5.2 grams of crack cocaine, one-tenth of a gram of powdered cocaine, 13.1 grams of marijuana, 9 Oxycodone pills and 19 Percocet pills, Edwards said.
No guns were confiscated during the Friday-Saturday action, Edwards said.

These allegedly-regulatory "alcohol inspections" of bars that include searching patrons for drugs are becoming increasingly common.

Is Obama's Position on the D.C. Gun Ban a Mystery?

jsullum@reason.com (Jacob Sullum) — Wed, 09 Apr 2008 18:22:00 EDT

Conservative columnist Robert Novak, who last month claimed Barack Obama "has weighed in against the D.C. [gun] law," now describes the Illinois senator's position as "unrevealed":

In response to my inquiry about his specific position, Obama's campaign e-mailed me a one-paragraph answer: Obama believes that while the "Second Amendment creates an individual right... he also believes that the Constitution permits federal, state and local government to adopt reasonable and common sense gun safety measures." Though the paragraph is titled "Obama on the D.C. Court case," the specific gun ban is never mentioned. I tried again, without success, last week to learn Obama's position before writing this column.

But at a February 15 press conference in Milwaukee, Obama made it pretty clear that, while he believes the Second Amendment protects an individual right to arms, he does not think Chicago's handgun ban or the D.C. gun law, which effectively prohibits keeping a firearm at home for self-defense, violates that right:

There's been a longstanding argument among constitutional scholars about whether the Second Amendment referred simply to militias or whether it spoke to an individual right to possess arms. I think the latter is the better argument. There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation....I think that local jurisdictions have the capacity to institute their own gun laws...The City of Chicago has gun laws, as does Washington, D.C. I think the notion that somehow local jurisdictions can't initiate gun safety laws to deal with gang-bangers and random shootings on the street isn't borne out by our Constitution.

I pieced these quotations together from an A.P. story, an ABC News report, and a Chicago Tribune blog item; I haven't been able to locate a complete transcript. But Obama's meaning does not seem mysterious to me. Indeed, A.P. matter-of-factly reported that "he voiced support for the District of Columbia's ban on handguns"—although, to be fair to Novak, ABC News legal correspondent Jan Crawford Greenburg interpreted Obama's remarks differently, saying "he declined...to take a position on whether the D.C. gun ban violates the Second Amendment."

This is not just nitpicking. Obama's past positions on gun control and recent statements about gun rights provide little reason to believe he takes the Second Amendment seriously. And as I've argued, it's hard to see what meaningful restrictions the Second Amendment imposes on gun control if something like the D.C. law can pass constitutional muster.

Openly Armed = Frequently Hassled

jsullum@reason.com (Jacob Sullum) — Wed, 02 Apr 2008 12:31:00 EDT

In Ohio, where the state constitution declares that "the people have the right to bear arms for their defense and security," supporters of that right waged a long battle to overturn an 1859 ban on carrying concealed firearms. A constitutional challenge was successful at the trial and appeals court levels but rejected by the Ohio Supreme Court. The state legislature finally enacted a nondiscretionary carry permit law in 2004. Since then anyone 21 or older with a clean record who passes a safety course has been eligible for a permit. A recent story in The Columbus Dispatch notes a fact that was widely overlooked during the debate over concealed carry in Ohio: Openly carrying a gun was never illegal in Ohio, and it does not require a permit, although people who tote rifles or strap pistols to their belts in public can expect "some unwanted attention from police officers":

Philip Turner, 30, discovered that in July when he walked from his Hilliard apartment to his parked truck wearing a gun on his belt. At the time, Turner worked protecting banks' ATMs as they were serviced and delivering diamonds to jewelry stores.
An undercover agent with the Ohio Investigative Unitthe police agency that enforces the state's alcohol, tobacco and food-stamp laws -- saw the gun and quickly ordered him against his truck with his hands on his head.
"He came up and treated me like a felon for absolutely no reason at all," Turner said. "There wasn't even a suspicious action on my part to warrant him taking this action against me. Had I been out waving a gun around the parking lot, (then) yeah."
After being detained for about 30 minutes, and after Hilliard police arrived at the agent's request, Turner was released without charges. An internal investigation that concluded this week found that neither Agent Timothy Gales, who had stopped Turner, nor his partner, Betty Ford, did anything wrong.
However, it also revealed that Gales did not know it was legal for Turner to carry a gun openly, said Lindsay Komlanc, spokeswoman for the state Department of Public Safety. As a result, more than 100 agents in the unit are to attend a mandatory refresher course on Ohio's gun laws over the next couple of months, she said.

In addition to avoiding hassles from police officers who are ignorant of the law, concealed carry offers the advantages of not alarming passers-by and of keeping criminals uncertain about who is packing. The latter feature means that even the unarmed can benefit from the potential deterrent effect. Whether that effect has had a measurable impact on crime remains controversial in Ohio as elsewhere. The violent crime rate in Ohio, which had been declining pretty steadily since the early 1990s, continued the downward trend in 2004, the year concealed carry permits were first issued, went up slightly in 2005, then down slightly in 2006, the most recent year for which the Bureau of Justice Statistics has data.

[Thanks to Dan Gifford for the tip.]

'Police Are Like Vampires'

jsullum@reason.com (Jacob Sullum) — Wed, 26 Mar 2008 10:11:00 EDT

As they wait to hear whether the U.S. Supreme Court will rule that the District of Columbia's firearm restrictions are unconstitutional, D.C. police are grabbing guns while they can. Under a program scheduled to begin in a couple weeks in the Washington Highlands neighborhood, police will go door to door, asking for permission to search. Any guns they discover will be confiscated and destroyed, unless they are linked to a crime. The police are promising "amnesty" for violations of the city's gun ban and for any other crimes they happen to find evidence of during the searches. This is hard to believe on its face: If they find a few kilos of heroin, piles of cash, or a severed head, they're not going to ask any questions? Even if they make no immediate arrests, what guarantee is there that they won't be back later, with a warrant ostensibly based on an independent source of information? Not surprisingly, residents are suspicious:

"Bad idea," said D.C. School Board member William Lockridge. "I think the people should not open your doors under any circumstances, don't even crack your door, unless someone has a warrant for your arrest."
Ron Hampton, of the Black Police Officers Association, said he doesn't expect many in the community to comply.
"This is one of those communities where the police even have problems getting information about crimes that are going on in the community, so to suggest, now, that the police have enough community capital in their hand that the community is going to cooperate with them, I'm not so sure that's a good idea," Hampton said.

In Boston, meanwhile, police have scaled back plans for a similar gun hunt in "four troubled neighborhoods" after unexpected resistance from the community. They promise to search only the rooms of minors, with permission from their parents or guardians, and "keep the discovery [of a gun] confidential under most circumstances." An ACLU attorney notes that public housing residents could be evicted for having guns, to which a local advocate of the searches responds by suggesting that police "would support any family that cooperated with the police and oppose their eviction." The Boston Globe says critics complain that "police will not guarantee that residents would face no criminal charges if guns or drugs were found":

"Police are like vampires. They shouldn't be invited into your homes," said Jamarhl Crawford, chairman of the New Black Panther Party in Roxbury, who moderated the meeting [of 100 residents at the Roxbury Family YMCA].
"Vampires are polite; they're smooth," he said in an interview the following day. "But once they get in, the door closes. Havoc ensues."

If you are wondering why anyone would consent to a search of his home when there's evidence of a crime there, there are two main explanations: 1) The person who consents may not know about, say, the bag of marijuana in the dresser drawer, and 2) people are intimidated by the police and may feel constrained to say yes even when they know it will get them into trouble. They may think that police will find a pretext to do the search anyway, in which case they will be angrier, more destructive, and possibly violent. In neighborhoods where residents tend to view police as an occupying force rather than peace officers there to assist them, that reaction may be especially likely.

[Thanks to John Kluge and Brett Wallis for the tip.]

Bloomberg on Your Barrel

jsullum@reason.com (Jacob Sullum) — Fri, 21 Mar 2008 16:40:00 EDT

In 2006 New York Mayor Michael Bloomberg pushed through a law that bans gun coloration kits from the city, punishing anyone who uses, buys, or sells one with up to a year in jail and a $1,000 fine. The Daily News reports that Lauer Custom Weaponry, a Wisconsin company that sells such kits, is taking revenge by offering the Bloomberg Collection of gun paints, which includes Manhattan red, Bronx rose, Brooklyn blue, Queens green, and Staten Island orange. The company also sells a stencil of Bloomberg's face to decorate gun barrels and a Bloomberg Collection EZ Camo Kit, which includes stencils to help you decorate your gun with the image of a brick wall covered by graffiti. Bloomberg had a good chuckle over it, saying, "If you take yourself too seriously, politics will kill you." Just kidding:

An outraged Bloomberg called gun-coloration kits "a tragedy in the making."
"Making a quick buck by coloring a handgun to look like a toy is craven and beneath any honest businessman," Bloomberg told the Daily News. "By coloring these guns, a real one looks like a toy, and a police officer won't be able to tell the difference."
"Imagine an officer who comes upon a teenager pointing a pink gun into a crowd. If the gun is a toy, an innocent teenager may be killed - and others, too.
"Our police officers have a hard enough job as it is, and that's why we passed a law to prevent these deadly tragedies from occurring."

The Daily News seems to accept this rationale, describing Lauer Custom Weaponry as a "company that disguises deadly firearms with bright paints and camouflage" and saying its "products were banned in the city in 2006 because they make dangerous guns look like innocent toys." Which does seem like a pretty disreputable business to be in. Not until the end of the story do we get an inkling that killing kids and cops is not the company's mission:

The bright paints were meant to help rescue workers and range masters locate guns more easily—not fool cops, [company spokesman Toby] Johnson said. They regularly sell the colors named after the boroughs and have even sold "five or six" Bloomberg camo kits, Johnson said.
Women also are big fans of the colors, he added.
"The ladies like it. They fashion their guns after their clothing," Johnson said.

[Thanks to JD for the tip.]

Counting to Five in D.C. v. Heller

jsullum@reason.com (Jacob Sullum) — Wed, 19 Mar 2008 18:04:00 EDT

In one of the threads about the D.C. gun ban case, at least one commenter was skeptical that there are (at least) five votes on the Supreme Court in favor of an individual-right interpretation of the Second Amendment. If you read the transcript of yesterday's oral arguments, you'll see that John Roberts, Antonin Scalia, Samuel Alito, and Anthony Kennedy are pretty clearly on board:

Roberts [addressing Walter Dellinger, D.C.'s attorney]: If [the right to keep and bear arms] is limited to State militias, why would they say "the right of the people"?...
That concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable....
So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers? [referring to the distinction between handguns and long guns]
Scalia: I don't see how there's any contradiction between reading the second clause [of the amendment] as a personal guarantee and reading the first one as assuring the existence of a militia....The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed....
[Blackstone] thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.
Alito: If the amendment is intended at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense, and even as to long guns and shotguns...they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?
Kennedy: The amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms....
In my view [the Second Amendment] supplemented [the Militia Clause] by saying there's a general right to bear arms quite without reference to the militia.

Clarence Thomas, as is his wont, did not say anything during the oral arguments. But if any justice could be counted on to support a Second Amendment that imposes significant restraints on gun control, it would be him. Thomas is an avowed "original intent" jurist, and the contemporaneous evidence on the meaning of the Second Amendment, as demonstrated in the respondent and amicus briefs (not to mention the appeals court decision overturning D.C.'s gun ban), strongly favors the view that it is about more than state militias.

The Right Kind of Gun Rights

info@reason.com (Jonathan Rauch) — Wed, 19 Mar 2008 15:00:00 EDT

Yesterday, unbeknownst to itself, the Supreme Court heard arguments in a gay-rights case. To most people, admittedly, District of Columbia v. Heller is a gun-rights case. In fact, it's the most important gun-rights case in decades, one that may cast a shadow for decades to come. But to gay Americans, and other minorities often targeted with violence, Heller is about civil rights, not shooting clubs.

Nine years ago, one of the first columns I wrote for National Journal told the story of Tom G. Palmer. One night some years ago in San Jose, he found himself confronting a gang of toughs, as many as 20 of them, intent on gay-bashing him. Taunted as a "faggot," threatened with death, Palmer (and a friend) ran for their lives, only to find the gang in hot pursuit. So Palmer stopped, reached into his backpack, and produced a gun. The gang backed off.

If no gun? "There's no question in my mind," Palmer told me in 1999, "that my friend and I would have been at least very seriously beaten, and maybe killed."

Today Palmer lives in Washington, D.C., which has the most restrictive gun-control law in the country. You can't own a handgun in Washington unless it was registered before 1976 (or unless you are a retired D.C. police officer). You can own a shotgun or rifle, but it must be disassembled or locked (except while being used for lawful recreation or at a place of business; you can protect your store, in other words, but not your home). In Washington, therefore, Palmer could not legally protect himself with a gun, even if the gay-bashers had chased him right into his home.

Although gay life in America is safer today than it once was, anti-gay violence remains all too common. The FBI reports more than 7,000 anti-gay hate crimes in 2005 alone, and since 2003 at least 58 people have been murdered because of their sexual orientation. Perhaps because gay-bashings often begin in intimate settings, the home is the single most prevalent venue for anti-gay attacks. In public, of course, gay-bashers make sure that no cops are around. For that matter, sometimes the police are part of the problem, responding to gay-bashings with indifference, hostility, sometimes abuse.

Those facts are from an amicus brief that two gay groups—Pink Pistols and Gays and Lesbians for Individual Liberty—have filed in Heller. Pink Pistols is a shooting group, formed partly in reaction to stories like Palmer's (and partly, full disclosure, in reaction to an article I wrote urging gays to take up self-defense with guns).

"Recognition of an individual right to keep and bear arms," says the brief, "is literally a matter of life or death" for gay Americans. The Heller plaintiffs are asking the Supreme Court to strike down Washington's gun law as unconstitutional. One of those plaintiffs, not coincidentally, is an openly gay man: Tom Palmer.

At issue is the legal meaning and reach of the controversial Second Amendment, which says: "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." Oddly, the Supreme Court has not definitively ruled on the amendment's meaning. The last important precedent came down a long time ago, in 1939, and it left the issue murky.

In most of the time since then, conventional wisdom assumed that the amendment confers no right on individuals, but instead empowers the states to form militias and other armed forces. In recent years, however, that interpretation has lost ground under academic scrutiny. It has become clearer that the Founders believed just what the amendment said: The people have a right to own firearms of the sort that would have been used in militia service in those days—that is, pistols and long guns.

Why would the Founders have cared? One reason is as relevant today as ever: Guns were needed for self-defense, a prerogative the Founders regarded as fundamental to freedom. As John Locke wrote, "If any law of nature would seem to be established among all as sacred in the highest degree, ... surely this is self-preservation."

The second reason, by contrast, strikes modern Americans as archaic, if not embarrassing: States' armed populations could resist and overthrow a tyrannical central government, acting as an insurrectionary militia—much as Americans had recently done in overthrowing British rule. That may have made sense in 1790, but today the insurrectionary rationale would seem to imply a right to keep and bear surface-to-air missiles and grenade launchers, among other things.

Between a right to keep and bear nothing and a right to keep and bear surface-to-air missiles lies a whole lot of middle ground. That the Supreme Court may finally provide some guidance is thus major constitutional news. But what should the Court do?

It could make the Second Amendment a dead letter by finding that it guarantees no individual right at all. This is what the District of Columbia wants. But judicially repealing the Second Amendment would be a mistake, both as a matter of constitutional literacy and also, more important, on moral grounds. The Declaration of Independence's great litany, "life, liberty, and the pursuit of happiness," puts life first. A law that prevents people from defending their own lives, even in their own homes, denies the most basic of all human rights.

Instead, the Court could adopt the District's fallback position, which is that even if there is an individual right to gun ownership, the right is so weak that the District's gun law doesn't violate it. This would also be a mistake. If a near-total ban on handguns—even for self-defense in the home, and bolstered by a prohibition on operable long guns—does not violate the language and intent of the Second Amendment, then nothing possibly could.

What the plaintiffs in Heller want the Court to do is throw out the D.C. law as unconstitutional, without necessarily saying what other kind of law might pass muster. This keep-it-simple approach has a lot going for it. The Court would place an outer boundary on the argument over the Second Amendment, saying, in effect, "Right now we're presented with an easy case, so we'll make an easy call: The government can't indiscriminately ban guns in the home. What else the government may or may not be able to do we'll decide some other time, when those cases make their way to us."

But that approach would leave some ambiguity about the Second Amendment's reach, which is why the Bush administration is uncomfortable with it. The administration worries that flatly overturning the District's law could leave federal gun laws—restrictions on machine guns, for instance—vulnerable to challenge, so it is asking the Court to declare the Second Amendment a kind of intermediate right, one that individuals hold in principle but that the government could often override in practice.

That idea seems strange at best, mischievous at worst. It asks the Court to enshrine a new kind of constitutional right: a "sort of" right, which makes a libertarian gesture but won't get in Washington's way. Think of it as Big Government constitutional conservatism. For the Bush administration, importing Big Government conservatism into the part of the Constitution designed to protect individuals from Big Government may be par for the course, but it would be a far cry from what the Founders had in mind for the Bill of Rights.

A fifth approach makes more sense: The Court would overturn the District's law and add an explanation. Without trying to lay out detailed standards, the Court would clear up confusion about the Second Amendment by unambiguously identifying the core right it protects as reasonable self-defense by competent, law-abiding adults.

Reasonable self-defense leaves room for firearms regulation. Exotic and highly destructive weapons could be restricted or banned, because no one needs a machine gun or grenade launcher for protection against ordinary crime. Felons, not being law-abiding adults, could still be barred from gun ownership.

Most of the government's gun laws, in fact, would have no trouble passing the self-defense test (as the Heartland Institute calls it in an amicus brief), because most gun laws are reasonable and don't leave people defenseless. As for the insurrectionary purpose of the Second Amendment, the Court could either repudiate it explicitly or pass over it in silence, consigning it to irrelevance.

The self-defense test is good policy, because it aligns the Second Amendment with modern needs and sensibilities. It is good law, because it rescues the amendment from being a dead letter or an embarrassment.

And it is morally sound, because it honors in law what gay people know in our hearts: Being forced into victimhood is the ultimate denial not only of safety but of dignity.

© Copyright 2008 National Journal

Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.

D.C. ♥ Armed Self-Defense

jsullum@reason.com (Jacob Sullum) — Wed, 19 Mar 2008 14:07:00 EDT

Defending the Washington, D.C., gun ban before the Supreme Court yesterday, Walter Dellinger insisted it was never the city's intent to prohibit residents from using rifles and shotguns for self-defense in the home. All it wanted to do, Dellinger said, was ban handguns, because they are highly portable, readily concealable, easily stolen, and uniquely suited to urban crime. Even if (as seems likely) the Supreme Court rules that the Second Amendment protects an individual right to arms, he said, it should uphold the handgun ban as a "reasonable regulation":

Chief Justice John Roberts: What is reasonable about a total ban on possession?
Dellinger: What is reasonable about a total ban on possession is that it's a ban only on the possession of one kind of weapon, of handguns, that's been considered especially dangerous....There is no showing in this case that rifles and [shotguns] are not fully satisfactory to carry out the purposes [of self-defense].

But as Roberts, Justice Samuel Alito, and Justice Antonin Scalia noted, D.C. requires that all firearms, including long guns, be kept "unloaded and disassembled or bound by a trigger lock or similar device." The statute does not include an exception for self-defense. It thus seems to rule out unlocking and loading a gun even while under attack, let alone keeping one loaded and unlocked in case of an attack. Dellinger nevertheless maintained that the law does not prohibit the possession of functional firearms in the home, contrary to the interpretation the city has offered in previous cases and the one it implicitly endorsed at the U.S. District Court level in this case.

The District, which initially was openly contemptuous of the argument that D.C. residents should be allowed to defend themselves with guns, apparently has warmed to the idea. "It is a universal or near universal rule of criminal law that there is a self-defense exception," Dellinger said. "We have no argument whatsoever with the notion that you may load and have a weapon ready when you need to use it for self- defense." He added that "there ought to be an opportunity for the District of Columbia to urge its construction, which would allow for a relatively robust self-defense exception to the trigger lock provision." To which Scalia replied:

I don't understand that. What would that be—that you can, if you have time, when you hear somebody crawling in your bedroom window, you can run to your gun, unlock it, load it, and then fire? Is that going to be the exception?

Dellinger said he reads the storage requirement as permitting two options: "unloaded and disassembled" or "bound by a trigger lock" (as opposed to "unloaded and disassembled" or "unloaded and bound by a trigger lock"). In other words, it's OK to keep a gun loaded as long as it's locked, which Dellinger said can be accomplished with a combination lock that can be removed in three seconds. Two justices wondered if the operation would be that fast in an actual emergency:

Scalia: You turn on the lamp next to your bed so you can turn the knob at 3-22-95...
Roberts: You turn on the lamp, you pick up your reading glasses...

At another point Dellinger said a good test case would involve "a loaded gun on [the] night stand, no children present, without a trigger lock." If a gun owner could escape conviction for violating the storage requirement in those circumstances, he said, "I think then the statute might well be constitutional." If not, "in my view, it probably wouldn't be."

Note that all of Dellinger's proposed end runs around the plain language of the storage requirement involve getting arrested for exercising the fundamental right of self-defense and hoping the courts will be sympathetic—a situation that, as I argued last week, should be considered unacceptable. In the end, Dellinger basically invited the Court to throw out the storage provision, saying, "if we are wrong about that and the trigger lock [requirement] is invalid, that has no effect on the handgun ban."

A transcript of the oral arguments is available here (PDF). A ruling is expected in June.

D.C. Gun Ban Arguments

jsullum@reason.com (Jacob Sullum) — Tue, 18 Mar 2008 17:41:00 EDT

Based on today's oral arguments in District of Columbia v. Heller, Reuters counts at least five votes for the individual-right interpretation of the Second Amendment and against the constitutionality of the D.C. gun ban:

A majority of the nine-member high court seemed to support the view that the Second Amendment of the U.S. Constitution protected an individual right to keep and bear arms, rather than a right tied to service in a state militia....
"What is reasonable about a total ban on possession?" Chief Justice John Roberts asked Washington, D.C.,'s lawyer, Walter Dellinger, referring to a provision barring private possession of handguns.

Dellinger said the ban was only on the weapons that have been considered especially dangerous.

Justice Samuel Alito, who like Roberts was appointed by President George W. Bush, cited another provision requiring rifles or shotguns be kept unloaded and dissembled or bound by a trigger lock, and said it did not seem as if they could be used as such for the self-defense of one's home.

If Roberts and Alito are inclined to uphold the D.C. Circuit decision overturning the gun ban, that bodes well for defenders of the Second Amendment, since Clarence Thomas and Antonin Scalia presumably are as well. As for Anthony Kennedy, A.P. reports that he "said the Second Amendment gives 'a general right to bear arms.'"

Addendum: The Washington Post concurs with Reuters' assessment, saying, "A majority of the Supreme Court today seemed to clearly indicate that the Second Amendment provides an individual right to possess a firearm and several justices appeared skeptical about whether the District of Columbia's handgun ban could be considered a reasonable restriction on that right." Both Reuters and the Post implicitly distinguish between believing the Second Amendment protects an individual right to arms and viewing the D.C. law as unconstitutional. But as I've said, the latter is required by the former, unless the Court is prepared to say the Second Amendment does not apply in the nation's capital (as Laurence Tribe has argued) or implausibly interpret D.C.'s law as permitting people to use long guns for self-defense, something its plain terms seem to rule out.

Another Drug Raid Nightmare

rbalko@reason.com (Radley Balko) — Tue, 18 Mar 2008 16:30:00 EDT

Imagine you're home alone.

It's 8 p.m. You work an early shift and need to be out the door before sunrise, so you're already in bed. Your nerves are a bit frazzled, because earlier in the week someone broke into your home. Oddly, they didn't take anything; they just rifled through your belongings.

But the violation weighs on your mind. At about the time you drift off, you're awakened by fierce barking from your two large dogs. You hear someone crashing into your front door, as if he's trying to separate it from its hinges. You grab the gun you keep for home defense and leave your room to investigate.

This past January that scenario played out at the Chesapeake, Virginia, home of 28-year-old Ryan Frederick, a slight man of little more than 100 pounds. According to interviews since the incident, Frederick says when he looked toward his front door, he saw an intruder trying to enter through one of the lower door panels. So Frederick fired his gun.

The intruders were from the Chesapeake Police Department. They had come to serve a drug warrant. Frederick's bullet struck Detective Jarrod Shivers in the side, killing him. Frederick was arrested and has spent the last six weeks in a Chesapeake jail.

He has been charged with first degree murder. Paul Ebert, the special prosecutor assigned to the case, has indicated he may elevate the charge to capital murder, which would enable the state to seek the death penalty.

At the time of the raid, Ryan Frederick worked for a soft drink merchandiser. Current and former employers and co-workers speak highly of him. He also recently had gotten engaged, a welcome lift for a guy who'd had a run of tough luck.

He lost both parents early in life, and friends say the death of his mother hit particularly hard—Frederick discovered her in bed after she had overdosed on prescription medication. After the deaths of both parents, Frederick grew close to his grandmother, who then died two years ago.

Friends and neighbors describe Frederick as shy, self-effacing, non-confrontational, and hard-working. He had no prior criminal record. Frederick and his friends have conceded he smoked marijuana recreationally. But all—including his neighbors—insist there's no evidence he was growing or distributing the drug.

According to the search warrant, the police raided Frederick's home after a confidential informant told them he saw evidence of marijuana growing in a garage behind the home. The warrant says the informant saw several marijuana plants, plus lights, irrigation equipment and other gardening supplies.

After the raid, the police found the gardening supplies, but no plants. They also found a small amount of marijuana, but not much—only enough to charge Frederick with misdemeanor drug possession.

Frederick told a local television station that he was an avid gardener. A neighbor I spoke with backs him up, explaining that Frederick had an elaborate koi pond behind his home and raised a variety of tropical plants. He'd even given his neighbors gardening tips on occasion.

One of the plants Frederick told the local television station he raised was the Japanese maple, a plant that, when green, has leaves that look quite a bit like marijuana leaves.

So far, Chesapeake police have given no indication that they did any investigation to corroborate the tip from their informant. There's no mention in the search warrant of an undercover drug buy from Frederick or of any extensive surveillance of Frederick's home.

More disturbingly, the search warrant says the confidential informant was inside Frederick's house three days before the raid—about the same time Frederick says someone broke into his home. Frederick's supporters have told me that Frederick and his attorney now know the identity of the informant, and that it was the police informant who broke into Frederick's home.

Chesapeake's police department isn't commenting. But if true, all of this raises some very troubling questions about the raid, and about Frederick's continued incarceration.

Special prosecutor Paul Ebert said at a recent bond hearing for Frederick that Shivers, the detective who was killed, was in Frederick's yard when he was shot, and that Frederick fired through his door, knowing he was firing at police.

Frederick's attorney disputes this. Ebert also said Frederick should have known the intruders were police because there were a dozen or more officers at the scene. But some of Frederick's neighbors dispute this, too. One neighbor told me she saw only two officers immediately after the raid; she said the others showed up only after Shivers went down.

What's clear, though, is that Chesepeake police conducted a raid on a man with no prior criminal record. Even if their informant had been correct, Frederick was at worst suspected of growing marijuana plants in his garage. There was no indication he was a violent man—that it was necessary to take down his door after nightfall.

The raid in Chesapeake bears a striking resemblance to another that ended in a fatality. Last week, New Hanover County, N.C., agreed to pay $4.25 million to the parents of college student Peyton Strickland, who was killed when a deputy participating in a raid mistook the sound of a SWAT battering ram for a gunshot, and fired through the door as Strickland came to answer it.

In the case where a citizen mistakenly (and allegedly) shot through his door at a raiding police officer, the citizen is facing a murder charge; in the case where a raiding police officer mistakenly shot through a door and killed a citizen, there were no criminal charges.

Over the last quarter century, we've seen an astonishing rise in paramilitary police tactics by police departments across America. Peter Kraksa, professor of criminology at the University of Eastern Kentucky, ran a 20-year survey of SWAT team deployments and determined that they have increased 1,500 percent since the early 1980s—mostly to serve nonviolent drug warrants.

This is dangerous, senseless overkill. The margin of error is too thin, and the potential for tragedy too high to use these tactics unless they are in response to an already violent situation (think bank robberies, school shootings or hostage-takings). Breaking down doors to bust drug offenders creates violent situations; it doesn't defuse them.

Shivers' death is only the most recent example. And Ryan Frederick is merely the latest citizen to be put in the impossible position of being awakened from sleep, then having to determine in a matter of seconds if the men breaking into his home are police or criminal intruders.

You wonder how many people can honestly say they'd have handled it any differently than he did.

Radley Balko is a senior editor for reason. This article originally appeared at FoxNews.com.

Guns for Vasectomies

gillespie@reason.com (Nick Gillespie) — Tue, 18 Mar 2008 16:07:00 EDT

Because this modern world just isn't fucking weird enough:

Officials in central Madhya Pradesh state's Shivpuri district decided to adopt the policy—already tried out by some neighbouring states—to increase the low vascectomy rate.
"I came to know that it had to do with their perceived notion of manliness," said Manish Shrivastav, administrative chief of Shivpuri district, part of the Indian Chambal region, which is famed for its lawlessness and bandits.
"I then decided to match it with a bigger symbol of manliness—a gun licence," he said. "And the ploy worked."...
"I never bothered to apply for a licence before because I knew it was not so easy to get," said Shivpuri resident K.K. Saxena, 55, who recently underwent the procedure. "But when I heard about this then I decided to apply."
Saxena was provided with a medical slip confirming his sterilisation to attach to his gun application.
About 10,000 to 15,000 people apply each year for gun licences in Shivpuri, but only about 500 permits are granted annually.

More here.

Here's hoping the Supreme Court, currently hearing its major gun-control case since 1939, doesn't read about this.

Second Amendment Scrutiny

jsullum@reason.com (Jacob Sullum) — Mon, 17 Mar 2008 13:38:00 EDT

On the eve of oral arguments in District of Columbia v. Heller, here are a few articles that may be of interest to people following the case:

Alan Gura and Robert Levy, two of the lawyers representing D.C. resident Dick Heller in his Second Amendment challenge to his city's gun ban, summarize their arguments in the Legal Times.

The New York Times notes the division between Solicitor General Paul Clement and Vice President Dick Cheney regarding the level of scrutiny that gun control should get under the Second Amendment, mentioning the Robert Novak column I discussed last week.

The intra-administration split is also mentioned in The Washington Post's preview of the case.

Gura and Levy say the Supreme Court need not specify a level of review: "Because Dick Heller challenges a categorical ban on handguns, as well as a near-total prohibition on exercise of Second Amendment rights relating to long guns, the outcome of the case does not depend on applying a specific constitutional standard of review." But if the Court decides to set a standard, they add, strict scrutiny—meaning that regulations must be the least restrictive means of achieving a compelling government interest—is clearly appropriate, since the right to keep and bear arms, which grows out of the right to self-defense, is a fundamental right. They say regulations such as "the ban on felons possessing firearms, instant background checks for gun buyers, and sentence enhancements for using a gun in commission of a crime" would survive strict scrutiny.

In my column last week, I suggested that if D.C.-style gun control does not violate the Second Amendment, it's hard to imagine what sort of gun control would.

Next in the Series: Car Owners Are Not Just Hit and Run Drivers and Get-Away Men

jsullum@reason.com (Jacob Sullum) — Thu, 13 Mar 2008 12:46:00 EDT

Reuters reporter Tim Gaynor ventures into the scary, foreign world and discovers that gun owners "are not just urban criminals and drug dealers. There are hunters and home security advocates, and then there are the gun collectors." The headline: "For some in U.S., guns are a hobby like any other."

[Thanks to Paul in Seattle for the tip.]

Bush Does Care About the Second Amendment, Just Not Very Much

jsullum@reason.com (Jacob Sullum) — Thu, 13 Mar 2008 11:18:00 EDT

Robert Novak reports that "disorganization and weakness in the eighth year of [Bush's]presidency" are responsible for the bizarre split within the Bush administration over whether the Supreme Court should uphold the D.C. Circuit decision overturning the District of Columbia's gun ban. To the dismay of gun rights advocates, Solicitor General Paul Clement is asking the Court to send the case back to the D.C. Circuit to consider whether the District's laws can withstand "intermediate scrutiny" under the Second Amendment. Vice President Dick Cheney, meanwhile, has joined 55 senators and 250 House members (in his capacity as president of the Senate) in a brief that urges the Court to uphold the D.C. Circuit ruling, saying that "the District's prohibitions on mere possession by law-abiding persons of handguns in the home and having usable firearms there are unreasonable per se" and that "no purpose would be served by remanding this case for further fact finding or other proceedings." Novak claims the president agrees with Cheney:

The president and his senior staff were stunned to learn, on the day it was issued, that Clement's petition called on the high court to return the case to the appeals court....The president could have ordered a revised brief by Clement. But under congressional Democratic pressure to keep hands off the Justice Department, Bush did not act....
While [Cheney's] unprecedented vice presidential intervention was widely interpreted as a dramatic breakaway from the White House, longtime associates could not believe Cheney would defy the president. In fact, he did not. Bush approved what Cheney did in his constitutional legislative branch role as president of the Senate.

Lord knows Novak's sources are much better than mine, but I'm not sure I buy this. If Bush cared enough about the issue, he could and would have intervened. This part is even more suspect:

Bush finds himself left of Democratic presidential candidate Sen. Barack Obama....Sen. Obama has weighed in against the D.C. law, asserting that the Constitution confers individual rights to bear arms—not just collective authority to form militias.

As I pointed out in my column a few weeks ago, Obama has specifically cited D.C.'s ban as an example of gun control that should be upheld notwithstanding the individual right to keep and bear arms. In this week's column, I explain why that position is so hard to defend.

Clement's brief is here (PDF). The congressional brief signed by Cheney is here (PDF). Last month Brian Doherty noted an op-ed piece criticizing the Justice Department's position by Cato Institute legal scholar Bob Levy, who spearheaded (and financed) the gun ban challenge. The Goldwater Institute gets into more detail here (PDF).

Safety in Defenselessness

jsullum@reason.com (Jacob Sullum) — Wed, 12 Mar 2008 07:00:00 EDT

In a recent Wall Street Journal op-ed piece, Harvard law professor Laurence Tribe urged the U.S. Supreme Court to uphold the District of Columbia's gun restrictions, the subject of a case the Court will hear next Tuesday. Conceding that the Second Amendment guarantees an individual right to possess firearms, Tribe said that right does not rule out a decision to ban handguns while allowing "rifles, shotguns and other weapons less likely to augment urban violence."

The U.S. Court of Appeals for the D.C. Circuit disagreed, concluding that the District cannot constitutionally ban the type of gun most commonly used for self-defense. But even if Tribe is right that the Second Amendment allows D.C. to ban handguns, he is wrong to assume D.C. residents are free to use long guns instead.

D.C. requires that all firearms in the home, including rifles and shotguns, be kept "unloaded and disassembled or bound by a trigger lock or similar device." That "safe storage" requirement makes it pretty hard to use any gun for self-defense, except maybe as a club. It makes D.C.'s gun laws look extreme even compared to those of other cities that ban handguns. If D.C.-style gun control does not violate the Second Amendment, it's hard to imagine what sort of gun control would.

The "safe storage" rule includes exceptions for guns kept in places of business and for guns "being used for lawful recreational purposes within the District of Columbia." It does not include an exception for self-defense at home.

Although three of the original plaintiffs in the D.C. gun ban case said they wanted to keep functional long guns in their homes, the District did not claim they already were allowed to do so. Instead it dismissed the very idea of armed self-defense as self-evidently absurd. "It cannot be seriously contended that the Second Amendment, even if applicable, guarantees private persons a right of ownership or possession of firearms on the basis of an asserted need to resort to self-help," D.C.'s lawyers told U.S. District Judge Emmet Sullivan.

But when the plaintiffs appealed Sullivan's dismissal of their complaint, the District suddenly began to suggest there might be exceptions to the "safe storage" requirement that are not mentioned in the statute. "The [D.C.] Council appears to have recognized that on rare occasions, in the event of a true emergency when necessary for self-defense, a gun could be unlocked," it said.

The only evidence the District cited for this claim was one council member's remark about how long it takes to unlock and load a gun. The District nevertheless suggested that "local courts are likely to give the law a narrowing construction for emergencies."

That possibility does not save the statute, the D.C. Circuit ruled, since "judicial lenity cannot make up for the unreasonable restriction of a constitutional right." Furthermore, a "narrowing construction" is by no means a foregone conclusion.

In its Supreme Court brief, the District asserts that an exception for self-defense at home "is fairly implied in the trigger lock requirement," but it does not explain how. Courts reasonably could read the law's specific "safe storage" exceptions to mean there are no other exceptions.

As Bellingham, Washington, attorney Jeffrey Teichert notes in a friend-of-the-court brief, D.C. courts have convicted residents of violating other gun regulations even when they used their weapons for self-defense. In one such case, the District argued that "self-defense would only excuse the use of the weapon, not the possession of the weapon."

This sort of uncertainty would be considered intolerable in the exercise of any other fundamental right. Could a law requiring that books in the home be kept under lock and key be redeemed by arguing that courts probably would give it a "narrowing construction"? If the right to keep and bear arms means anything in practical terms, it means that someone who uses a gun to defend himself in his own home should not have to throw himself on the mercy of the courts.

Are Guns on Campus Uniquely Dangerous?

jsullum@reason.com (Jacob Sullum) — Thu, 06 Mar 2008 12:11:00 EST

Students for Concealed Carry on Campus, a group that formed in the wake of last year's Virginia Tech massacre, has attracted new support following last month's shootings at Northern Illinois University, which once again revealed the limitations of campus security measures. On Wednesday The New York Times reported on the debate over an Arizona bill that would allow concealed carry on campus. According to The Philadelphia Inquirer, at least 12 other states are considering similar legislation. Utah is the only state that already allows guns on campus.

As I said after the Virginia Tech murders, I am sympathetic to the idea that students and faculty members who are licensed to carry guns should be allowed to carry them on campus. "Gun-free zones" clearly do not protect people from gun-wielding maniacs (or ordinary criminals or scary ex-boyfriends) and may well attract them to places where they know their victims will be unarmed. Guns in the right hands can deter attacks or at least cut them short.

The downside of letting people carry weapons on campus is the same as the downside of letting them carry weapons anywhere else: Everyday arguments might escalate into deadly violence, accidents might happen, police (assuming they ever arrived in time) might mistake a law-abiding gun owner for an attacker, drunken gun owners could start whooping it up by wildly firing shots into the air, etc. These are the same arguments that gun controllers deployed in opposing the liberalization of concealed carry laws across the country, and the nightmare scenarios never materialized, even though 39 states now have nondiscretionary permit policies. On the whole, permit holders turned out to be remarkably well-behaved, committing crimes at a lower rate than the general population and rarely doing anything bad enough to lose their permits.

Instead of an increase in violence, adoption of Florida-style concealed carry policies has been followed by a decline in violence. The extent to which that decline can be attributed to more guns in the hands of law-abiding people in public places remains a matter of much controversy. But one thing seems pretty clear: The fears stoked by opponents of concealed carry liberalization were unjustified. Are there good reasons to think their dark predictions about guns on campus will be any more accurate?

[Thanks to KD Sim for the Inquirer link.]

The Long and the Short of the Second Amendment

jsullum@reason.com (Jacob Sullum) — Tue, 04 Mar 2008 17:44:00 EST

If you, like me, were wondering how support for the D.C. gun ban can be reconciled with the belief that the Second Amendment protects an individual right to arms, you might want to check out Harvard law professor Laurence Tribe's op-ed piece in today's Wall Street Journal. Tribe, who switched to the individual-right view of the Second Amendment several years ago, nevertheless urges the Supreme Court to uphold the D.C. law when it considers the case later this month. He says the Second Amendment does not guarantee "an absolute right to possess the weapons of one's choice" and so does not rule out a handgun ban. "Under any plausible standard of review," he writes, "a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms. "

Tribe ignores another aspect of D.C.'s gun law, the provision requiring that even long guns be kept "unloaded and disassembled or bound by a trigger lock." That requirement makes it pretty hard to use any gun for self-defense, except maybe as a club. But Tribe has another argument against accepting the D.C. Circuit's conclusion that the gun ban is unconstitutional:

It would transform a constitutional provision clearly intended and designed to protect the people of the several states from an all-powerful national government into a restriction on the national government's uniquely powerful role as governor of the nation's capital, over which Congress, acting through municipal authorities of the District, exercises the same kind of plenary authority that it exercises over Fort Knox.
Using a case about national legislative power over gun-toting in the capital city as a vehicle for deciding how far Congress or the state of California can go in regulating guns in Los Angeles would be a silly stretch.

In other words, the Second Amendment, which says "the right of the people to keep and bear arms shall not be infringed," simply does not apply in the District of Columbia. So I guess we can forget that part about handguns vs. long guns.

On a blog devoted to the D.C. gun case, Alan Gura, one of the attorneys representing plaintiff Dick Heller, seems surprised by Tribe's position:

This is quite a change from Prof. Tribe's position in May 2007. At that time, in correspondence with us, Tribe said he would consider playing a "more central role" in our case, with the aim of helping us appeal to justices he perceived to be centrist and left of center. It's difficult to see how his current position would accomplish that goal.

Don't Capitulate to Tragedy

schapman@tribune.com (Steve Chapman) — Mon, 03 Mar 2008 07:00:00 EST

The University of Texas Tower is one of the glories of Austin. The 71-year-old limestone skyscraper rises 307 feet above the tree-shaded campus, dominates the city skyline and, on special occasions like a national championship, is lit up in the school's signature orange. Turn on the PBS show Austin City Limits sometime, and you'll see it glowing behind the musicians.

But the building's history is not all happy. In 1966, Charles Whitman carried several guns up to the observation deck and began firing at passersby on the ground. By the time police shot him to death, he had killed or wounded dozens of people and assured that he and the tower would forever be linked.

Yet the university and the city refused to let that be the final chapter. Not only did the tower stay, but the public was allowed back in, though it was closed in 1975 after a rash of people jumping to their deaths. In 1999, after the installation of a shield to prevent suicides, the administration once again opened the doors. Four decades later, the association with Whitman is inescapable. But that is only a small part of what the tower means.

There are lessons there for any institution that goes through a similar tragedy: Be strong. Hold to your own purposes. Understand that this will pass. Don't let a psychopath govern you from the grave.

But none of these was offered by the governor of Illinois or the administration of Northern Illinois University in the aftermath of the Valentine's Day slaughter in a lecture hall on the DeKalb campus. In what must come as a shock not only to the people of the state but the rest of the country, they propose to bulldoze the building and replace it with a new one, at a cost of $40 million.

If the facility were an ancient firetrap, this might be the right moment to do the inevitable. But Cole Hall is a perfectly functional building that, having been built in 1968, is younger than your average tenured professor.

Until now, as The Chicago Tribune reported last week, no one thought it needed replacement: "Instead, a $20 million request to renovate the Stevens Building, which houses the anthropology department and theater program, has consistently been at the top of the university's capital requests."

Officials, however, insist it would be unthinkable to use a building scarred by terror. NIU President John Peters said he "made the decision that we had to raze that, we had to demolish that building and replace it with something fitting, something fitting our needs and as a memorial." NIU board chairwoman Cherilyn Murer agreed, "Instincts told you that we cannot have students in this building."

But a lot of people in the state have instincts that say something very different: You don't squander $40 million to erase a memory that can't be erased. Lots of places have witnessed nightmarish events. But we normally don't punish the building. We mourn, we remember, we use the site to help us understand and overcome what happened, and we press on.

That's what happened at the University of Texas. It's what happened at Virginia Tech, where a mass shooting took place last year. It's what happened at Columbine High School.

Ford's Theater in Washington remains an operating playhouse even though Abraham Lincoln was shot there. The Louisiana State Capitol in Baton Rouge, where Gov. Huey Long was assassinated in 1935, still serves as the seat of state government.

No one would have seriously suggested levelling those buildings just because something awful happened in them. They are part of history, and history is often dark and savage. To wipe out a place merely because of a grim event is not an act of healing but an act of capitulation.

Returning to Cole Hall after the massacre promises to be painful for students at NIU. But pain is a part of life that college students, like everyone, must learn to endure, preferably with courage and resolve. Restoring the building to the noble use for which it was meant -- higher education -- would help in that process.

Most important, it would allow NIU students to show what they are made of. As President John Kennedy said, some things are worth doing not because they are easy, but because they are hard.

COPYRIGHT 2008 CREATORS SYNDICATE, INC.

Oakland Police Try to Corner the Market in Guns

jsullum@reason.com (Jacob Sullum) — Wed, 27 Feb 2008 11:10:00 EST

Speaking of lame gun control schemes, the Independent Institute's Alex Tabarrok takes aim at gun buy-back programs in The Oakland Tribune and blows them to kingdom come:

In an authoritative study, the National Academy of Sciences reported that "the theory underlying gun buy-back programs is badly flawed and the empirical evidence demonstrates the ineffectiveness of these programs."...
Imagine that instead of guns, the Oakland police decided, for whatever strange reason, to buy back sneakers. The idea of a gun buyback is to reduce the supply of guns in Oakland. Do you think that a sneaker buyback program would reduce the number of people wearing sneakers in Oakland? Of course not.
All that would happen is that people would reach into the back of their closet and sell the police a bunch of old, tired, stinky sneakers.
Gun buybacks won't reduce the number of guns in Oakland. In fact, buybacks may increase the number of guns in Oakland.
Imagine that gun dealers offered a guarantee with every gun: Whenever this gun gets old and wears down, the dealer will buy back the gun for $250.
The dealer's guarantee makes guns more valuable, so people will buy more guns.
But the story is exactly the same when it's the police offering the guarantee.

At $250 per gun, the Oakland program cost $250,000, most of which was not even budgeted. Tabarrok notes that "the first two people in line at one of the three buyback locations were gun dealers with 60 firearms packed in the trunk of their car." He wonders why police don't cut out the middlemen and buy guns directly from manufacturers.

[Thanks to Don Boudreaux for the tip.]

Isn't Self-Defense Common Sense?

jsullum@reason.com (Jacob Sullum) — Wed, 27 Feb 2008 07:00:00 EST

Under the Second Amendment, Barack Obama says, "There is an individual right to bear arms, but it is subject to common-sense regulation, just like most of our rights are subject to common-sense regulation." The leading candidate for the Democratic presidential nomination thus seems to be on the same wavelength as the U.S. Court of Appeals for the District of Columbia Circuit, which in a decision last March said "the protections of the Second Amendment are subject to the same sort of reasonable restrictions that have been recognized as limiting, for instance, the First Amendment."

But there is a crucial difference between these superficially similar formulations: The appeals court meant what it said, and Obama doesn't. Although the Illinois senator has learned to pay lip service to the Second Amendment, the details of his past and present positions on gun control suggest he neither understands nor respects the right to keep and bear arms.

In last year's ruling, which the U.S. Supreme Court will soon review, the D.C. Circuit overturned a Washington, D.C., gun law that bans possession of handguns in the home and requires that rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." The law thereby effectively bars city residents from using firearms for self-defense in their own homes.

Obama evidently considers that de facto prohibition a "common-sense regulation," since he recently cited Washington's law as an example of constitutionally permissible gun control. "The notion that somehow local jurisdictions can't initiate gun safety laws to deal with gangbangers and random shootings on the street isn't borne out by our Constitution," he said.

The D.C. gun law, passed in 1975, isn't really about gangbangers, which it has not exactly disarmed, or random shootings on the street, which it has not noticeably curbed. In effect if not intent, it is about disarming law-abiding residents who might want to protect themselves from gangbangers and other violent criminals.

It's not surprising that Obama sees nothing unconstitutional about this situation, since he does not acknowledge that the Second Amendment has anything to do with self-defense. "As a former constitutional law professor, Barack Obama understands and believes in the constitutional right of Americans to bear arms," his website claims. "He will protect the rights of hunters and other law-abiding Americans to purchase, own, transport, and use guns for the purposes of hunting and target shooting" (emphasis added).

This is the only substantive discussion of the Second Amendment on Obama's website. It's part of a document that lists "Protecting Gun Rights" as a subcategory of "Supporting the Rights and Traditions of Sportsmen," which is like listing "Protecting Freedom of Speech" as a subcategory of "Supporting the Rights and Traditions of Auctioneers."

It's true that hunting—at the time an important source of sustenance, as opposed to the hobby it has become for most Americans—was one of the gun uses the Framers had in mind when they guaranteed the right to arms. But as the D.C. Circuit emphasized when it found Washington's gun law unconstitutional, "the people's right to arms was auxiliary to the natural right of self-preservation," which was "understood as the right to defend oneself against attacks by lawless individuals, or, if absolutely necessary, to resist and throw off a tyrannical government."

Because Obama ignores these aspects of the Second Amendment, he sees no constitutional barrier to a complete ban on the manufacture, sale, and possession of handguns, which he supported when he ran for the Illinois Senate in 1996. Two years later he said he favored a ban on the sale or transfer of all semiautomatic firearms, which would cover not only most handguns but many hunting rifles and shotguns as well.

Responding to criticism that Obama has since changed his position on gun control, his campaign declares that "Obama has been consistent." If so, consistent civil libertarians—the ones who do not mentally skip from the First Amendment to the Fourth—should be worried.

© Copyright 2008 by Creators Syndicate Inc.

Gun Control Non Sequiturs

jsullum@reason.com (Jacob Sullum) — Tue, 26 Feb 2008 20:07:00 EST

While researching my column for this week (about Barack Obama's position on gun control), I came across this lame response from Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, to the recent shootings at Northern Illinois University (NIU):

Do we give up and say we can't do anything about these tragedies? Or do we take common-sense steps today to make it harder for dangerous people to get dangerous weapons?...
Over the years, the Brady Campaign has proposed numerous common-sense measures to reduce and prevent gun violence. It may be difficult to stop "suicide shooters" like the Northern Illinois University killer, but there are steps we can take as a nation.
We can require background checks for every gun transaction in America. Current Federal law requires that only Federally licensed gun dealers do a computer check on the criminal backgrounds of purchasers who buy guns from them. Yet there is no such restriction on unlicensed sellers who sell guns at gun shows, from the trunk of their cars or at their kitchen tables. If we want to make it harder to dangerous people to get dangerous weapons, we must close this loophole, and require that all gun buyers undergo a background check.
We can limit bulk purchases of handguns to cut down on the illegal gun trade. Gun buyers currently have no Federal limits on the number of guns they can buy at one time. Gun traffickers take advantage of the unlimited number of guns they can purchase at a time in order to sell guns to criminals and gangs....
We can also ban the sale of military-style assault weapons and high capacity ammunition magazines. One thing the Virginia Tech and Northern Illinois University shooters had in common was that they both used high capacity ammunition magazines that would have been prohibited under the Federal Assault Weapons Ban that expired in 2004.

The NIU murderer, Steven Kazmierczak, legally purchased the shotgun and three handguns he used, which did not qualify as "assault weapons," from a licensed dealer on three trips over seven months, and there does not seem to have been anything about his background that disqualified him from owning firearms. So the only possibly relevant suggestion offered by Helmke is to reimpose a 10-round federal limit on the size of magazines. But considering that Kazmierczak fired the shotgun six times and the handguns 48 times; that it takes just a few seconds to switch magazines; and that police arrived about six minutes after the attack started, by which time Kazmierczak already had killed himself, it is doubtful that the death toll was any higher than it would have been had he been carrying 10-round magazines. In fact, I cannot recall reading an account of a mass murder in the U.S. where "high capacity" magazines made a demonstrable difference.

The rest of Helmke's "common-sense steps" could not possibly have stopped this attack. So why trot them out and pretend otherwise? Because that's what gun controllers routinely do, as I noted in a 1994 article for reason. Their lobbying, publicity, and fundraising imperatives prevent them from admitting the truth: With something like 200 million guns in circulation and no reliable way of predicting which quiet graduate student will go on a rampage one day, this sort of thing is bound to happen occasionally. No policy short of wholesale firearm confiscation can prevent such incidents, although (as I've argued) allowing law-abiding people to carry concealed weapons in heretofore "gun-free zones" might help reduce the number of injuries and deaths after an attack starts.