The Gun Case
The big news today in the press and the blogs is the argument in the D.C. gun case, District of Columbia v. Heller. The transcript is available on the Supreme Court website, and there is audio at CSPAN.
CJLF did not file a brief in Heller. We apply our limited resources where they are most needed. Everybody and his dog filed in Heller, and one more brief on the massive heap would be unlikely to make any difference. We have occasionally filed briefs despite a large number of amici where we had some special expertise to add, such as a historical perspective on habeas corpus in the Guantanamo detainee cases, but that wasn't the case in Heller.
Even so, we are following the case with interest. Guns are an issue that cuts both ways when it comes to the interests we serve -- victims of crime and the law-abiding public. Guns are used both to commit crimes and to defend against crimes. We have supported the rights of victims of crime to use force in self-defense and to arrest perpetrators, and twice we have supported defendants in criminal cases where we believed the defendant was the victim and the supposed victim was the perpetrator. At the same time, we support the authority of the government to punish more severely people who use guns to commit crimes and to bar possession of guns by convicted felons.
For these reasons, we are hoping for a moderate result in Heller. The D.C. law barring law-abiding people from possessing handguns in their own homes for self-defense is over the top. In the oral argument today, it appears that Justice Kennedy is going to come out as a strong proponent of a right of self-defense, and that is a good sign. On the other hand, we hope that Doug Berman's wish does not come true, and that the decision does not provide substantial grounds for arguing that gun possession is a fundamental right that cannot be lost, even by committing a felony.
On page 78 of the transcript, the attorney for the challengers said this:
In the Fifth Circuit, for example, we have the Emerson decision now for seven years, and the way that that court has examined the Second Amendment when they get these felon and possession bans and drug addict and possession challenges, what they say is, these people simply are outside the right, as historically understood in our country. And that's a very important aspect to remember, that the Second Amendment is part of our common law tradition, and we look to framing our practices in traditional understandings of that right to see both the reasonableness of the restrictions that are available as well as the contours.
Sounds good to us. Mark Sherman, reporting on the case for AP, concludes that the Court is leaning toward recognizing an individual right independent of the militia but subject to some regulation.