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Monday, March 19, 2007

Handgun bans' logic got shot full of holes

By Dennis Byrne
Chicago Tribune

Our good and well-meaning friends in Chicago, Wilmette and other towns that have outlawed the possession of handguns, even in the sanctity and privacy of the home, might want to notice that the nation's second-highest court has tossed out a similar weapons ban.

By overturning a Washington, D.C., handgun ban 10 days ago, the district's federal appeals court affirmed that bearing arms is an individual right, in existence even prior to the writing of the Constitution. The ruling puts the court at odds with 10 of the 11 other federal appeals courts, which have ruled that bearing arms is a just a collective right, meant only to ensure that the civilians who serve in state militias are armed.

This doesn't mean that the D.C. decision applies here, but the conflicting rulings invite the intervention of the U.S. Supreme Court, where three sitting justices--Ruth Bader Ginsburg, Antonin Scalia and David H. Souter--said in a 1998 dissent that "bearing arms" goes beyond a collective right in the context of a well-ordered militia. Combined with the votes of recent conservative appointees, the high court could sweep away draconian laws that don't even allow the possession of a handgun to protect yourself and your family in your home.

Self-defense is hardly an esoteric legal question for Hale DeMar, a Wilmette resident who was fined $750 in 2003 after shooting a man who burglarized his home for two consecutive nights. DeMar's fine wasn't for defending himself but for possessing a handgun, meaning that he should have used a baseball bat, I guess. Or called out the militia. (The burglar, Morio Billings, recovered from his wounds and got a 7-year sentence. He got out after serving 2 1/2 years and was promptly arrested for burglary, in Wilmette.)

The idea that you can't use arms to protect yourself in your own home would have stunned James Madison and the other authors of the Constitution and Bill of Rights, if the appeals court's reading of history is correct.

The court's decision came in the case of a federal guard who was permitted to carry a gun at work but, upon application to the District of Columbia, was forbidden to keep one at home. The guard and other plaintiffs sued, claiming they had a right to possess "functional weapons" at home that would be readily accessible for self-defense. They weren't challenging laws against carrying a gun outside the home or other restrictions, such as handgun registration.

The district argued that the wording of the 2nd Amendment ("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") does not "bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today's National Guard," the court said in summarizing the case. This is called the "collective-right" model, often cited by gun-control advocates, as opposed to the individual-right model, often cited by right-to-arms advocates.

Some collective-rights advocates go as far as arguing that the 2nd Amendment was written for the exclusive purpose of preserving state militias, and therefore individuals have no claim whatsoever on its protections. Some argue that there's no individual right because the "militia" of the late 1700s no longer exists; or that today's analogue, the National Guard, supplies its own weapons, or that today's weapons are different than flintlocks. To carry the logic of that last notion to its extreme, I supposed its proponents would argue that you can keep all the flintlocks you want at home.

The court swept away this logic with a close examination of the history, concluding: "The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes [hunting, self-defense] in addition to whatever militia service they would be obligated to perform for the state." Self-defense, the court said, meant resistance to either private lawlessness or the "depredations" of a tyrannical government, foreign or domestic.

I'd add this to what the court said: Arguing that you have only a "collective" right to bear arms as part of a militia is as ludicrous as saying that the Bill of Rights protects your free speech rights only as a part of a larger group, such as the American Civil Liberties Union.

Self-defense is a self-evident human right. Thankfully, a court finally has reaffirmed that the Constitution and common sense are in alignment on your right to defend yourself, using reasonable force (i.e. a handgun, but not a bazooka) within your own home.

15 comments:

Lou said...

Thanks for a wonderfully insightful column. I like to think of some of the anti-gun, anti-religious as "comma challenged." They read some of the first 10 Amendments only up to the first comma. In the first Amendment they read up the "congress shall make no law respecting the establishment of religion {comma} but then ignore what follows - "or prohibiting the free excercise thereof," In the Second Amendment they read up until the first camma after "security os a free State {comma} but ignore what follows - "the right of the people to keep and bear Arms shall not be infringed."

The phrase "the people" is mentioned five times in the Bull Of Rights but somehoe the "antis" only choose to see four of them.

Anonymous said...

I hope that the Supreme Court takes on this issue and clarifies that the Second Amendment means what it says, not what a bunch of mayors (some corrupt as here in Chicago) pretend it says.

Anonymous said...

Thanks for calling our attention to this court case. Not sure where things will go with this, but it is good to see the courts are finally willing to curb some of the more ridiculous gun laws.

I will admit, I am fairly liberal overall. I diverge from many democrats on the issue of gun laws. Actually, I think my beliefs are more in tune with true liberal concept of civil rights. I believe we have a right to defend ourselves when the police cannot. Despite the generally effective police force in Chicago, they cannot be everywhere.

One area of gun laws that drives me absolutely nuts is the Chicago gun "Registration" laws. Many Chicagoans are unaware how draconian they are. Many think they are just registration rules. Fill out a form, and you are done. But they are quite a bit more severe, and very poorly thought out.

I own several bolt action rifles, and a muzzle-loader rifle. None of these are likely to be used by criminals. They are nearly impossible to conceal. There only useful purpose is target shooting and hunting. Yet, I have to contend with:

- A form that can be compared with a 1040 long form. One for each gun, each notarized and several photos, etc. Little boxes, redundant info, etc. Perhaps the most poorly designed forms I have ever seen. One for each gun I own.

- I have to fill out, get notarized and file these every 12 months.

- If I do not get it filled out and approved PRIOR to receiving the gun (whether I bring it into Chicago or not), it will be rejected and I have to go through a bunch of other forms, and risk a police raid, to prove I have sold or destroyed the guns. I will never be able to register that gun, forever.

- If I do not get the forms IN THEIR HANDS 60 days PRIOR to the expiration (again, every 12 months), it will be rejected and I have to go through a bunch of other forms, and risk a police raid, to prove I have sold or destroyed the guns. I will never be able to register that gun again, forever.

When I mention this situation to non-gun-owners, they are generally surprised. They assumed most of the objections were just misplaced paranoia.

It is these kinds of laws that need to be removed, or at least greatly narrowed.

As a 43 year resident of Chicago, I recognize the need for strict gun law enforcement. The problem is, and I am sure I am "preaching to the converted", it is these kinds of laws that are ridiculous and criminalize otherwise law-abiding citizens. The solve nothing other laws do not already address and victimize those of us that would like to follow the law.

The net effect of this law, is few follow it. Nobody with a brain is going to do so. It is more risk following the law, than taking a risk and breaking it.

Anonymous said...

For those that find this stuff interesting, here is a link to the decision:

http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf

Midwestern Progressive said...

Hilarious that you trot out the Hale Demar story to buttress your embarassing attempt to defend unfettered gun ownership and vigilantism.

Decent, law-abiding gun owners recoil at Demar's feeble, failed attempt to mete out cowboy justice as a failed vigilante.

Nice work, there, Mr. Byrne. Using Demar shows just how putrid your arguments are.

Perhaps you thought we'd forgotten how Demar declined to change his locks; declined to vacate his house until the potential security threat could be eliminated; slept in a room with two small children with a loaded handgun on the floor; declined to call police as soon as he learned that his home had been breeched; opened fire without warning, missing his target repeatedly while simultaneously blocking all exits to his home, so the invader could flee; all this shooting, by the "father" while his own children were in the house.

We haven't forgotten.

The only person who posed a risk to Demar and his children was Demar.

Nice choice, that, using Demar to buttress your argument for unfetterd gun ownership. Using him makes gun law supporters case for them.

Don P. said...

Wow, an Op Ed column about guns that actually makes sense!

Thank you for a logical and fair article on the recent DC court decision, striking down the most restrictive of the gun laws in the District of Columbia. I'm not used to seeing that kind of approach in regard to anything relating to guns or gun control in the Tribune Op Ed page.

The trite, overused, and massively ineffective solution of, "if one gun control law fails to solve the problem - keep passing more" that has been used in Washington DC and here in Chicago is finally being seen for the sham that it is. Funny thing how criminals that don't obey laws against theft or battery have no problem ignoring laws about owning and carrying guns, isn't it?

How many more times are we all going to be subjected to another eminently predictable Father Pfleger, Jesse Jackson, Mayor Daley, Blago (make up your own combination) etc. press conference at another "Englewood Community Gun Buy Back" with displays of military style guns provided by the Chicago police and reports of "xxxx guns removed from the streets for the children".

Then the next day, when the cameras are gone and the reporters moved on to the next Mayoral planned event, we hear of two more children killed in the crossfire of two gangs fighting over drug selling territory.

Passing more laws that only impact on the law abiding is a sop to the ignorant and uninformed to make the politicians look like they are doing something. If they wanted to really impact crime put first offenders involved in gun crimes, of any age, in prison for a minimum of 10 years. Second offense earns them 20 more.

But the same crowd that holds those press conferences feels that would be cruel and unusual punishment for a 15 year old gang banger caught using a 9mm to hold up a Citgo station. So we continue to recycle criminals that use guns and pass more restrictions on a target shooter in Kankakee.

Even as the Circuit court declared the DC laws unconstitutional, Daley is spending both money and political capital in Springfield to impose Chicago's proven ineffective style gun control and confiscation on the rest of the state. Of course he and the rest of the folks in favor of it already have armed bodyguards don't they?

It has worked so well for him in Chicago for the last 25 plus years hasn't it?

Here's hoping the courts view Chicago gun laws as equally unconstitutional./

Thank you again for your editorial.

Nate C. said...

Absolutely spot on. Nice work. It's time for our local government (and many elsewhere) to wake up and get real about trusting and empowering their citizenry.

Something that's always struck me as funny and odd is this question about the intent of the 2nd Amendment. Self-defence opponents insist that the 2nd Amendment is about government militias having the right to be armed. What kind of nonsense is that? Why the heck would the amendment right after the great and glorious First be about empowering armies to bear arms?!

Wake up, people, wake up!

Craig said...

Dennis, you are my new hero! Seriously... Bravo man!

dwlawson said...

Great article...I find it a bit amusing that you mentioned having flintlocks but in truth, my flintlock and percussion muzzleloading pistols have to be kept downstate as they indeed are illegal in Chicago.

Anonymous said...

Gteat news, but don't think Mayor
" little dick" Daley will take this sittind down. His father the last real mayor chicago had would think his son was a sissy boy.

Anonymous said...

FYI - The US Court of Appeals for the District of Columbia is not exactly "the nation's second-highest court." It is just one of 12 co-equal circuit courts, all one level below the Supreme Court.

Nola Blogger said...

It's fairly amazing that there can be any debate about this at all, what with that little thing called the Second Amendment.

Kevin said...

My congratulations on getting this column published in the Trib. Not only is it an excellent and well-written piece, I'm stunned that it made it past the editorial board.

Bravo, sir.

MIke K said...

"DeMar did not, for example, change or install new locks on his doors on Dec. 29, 2003, the day he awoke to discover that a burglar had stolen a set of house keys and other items from the $1.2 million home on a lakefront cul-de-sac close to the Bahai Temple that DeMar, 55, a divorced restaurateur, shares with his 10-year-old son and 8-year-old daughter."

This is truly hilarious. The victim didn't harden the target so it is his fault that the burglar came back and vigilante justice when he shot the criminal. It is this thinking that made New York uninhabitable and another reason why I did not return to the city of my birth after my medical training was completed. The man who shot the criminal is DIVORCED ! Wow ! He has a 1.2 million dollar house ! Wow ! I'm not sure what the Bahai temple has to do with the story but I'm sure it makes the shooting even less justified.

I divide my time between Orange County, CA and Tucson, AZ. Any slight impulse I might have had to return to the city I spent my first 18 years in has been squelched once again. Thank you, "We haven't forgotten."

Stephen Schade said...

Mr. Byrne:

The Appeals Court decision overturned decades of legal precedent. In that regard it is just like the Dred Scott decision, which was perhaps the most dreadful in American history.

People with guns in the home are several times more likely to get shot. Is this what we really want for our kids?