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.