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District of Columbia v. Heller

I haven’t yet written an essay on the Right to Keep and Bear Arms on this page, although I have alluded to it in various ways. Unfortunately many people in this country don’t really like to talk about it and, in my opinion, that is because they don’t understand it. I’ve heard a number of union people refer to it as a “distraction” from what they feel is really important, the economic situation of union members and their desire to see unions grow and flourish as they once did. While those are laudable goals, their concerns and the meaning and importance of the Second Amendment are intimately related, and this needs to be sorted out. Now seems like a good time. Why now? A landmark case on this subject is brewing before the U.S. Supreme Court and talking about it and how the subject relates to many other things going on is in order.

Washington, D.C., Gun Ban Overturned

About thirty years ago, Washington, D.C., passed a law that made it illegal to possess a handgun and mandated that long guns — rifles and shotguns — must be unloaded and either be disassembled or wear trigger locks. One could ask “how can one defend oneself under those circumstances?” Good question! Let’s say that you live in Washington, D.C., some villain breaks into your apartment and threatens you and your family. Quick as lightening, you find the key to the trigger lock on your shotgun, unlock it, load a few shells in it, and put enough buckshot into the malefactor that he or she stops (dead or not) threatening you. One way or another, the cops show up and they tell you. “Ok, I see what happened here. You’re under arrest.” You protest “Why, I was just defending myself!?” The officer would then say “I know, I’m not arresting you for that. I’m arresting you for unlocking and loading your shotgun.” “But,” you protest “how could I have legally defended myself without doing that?” “Sorry,” says the officer, “that’s the law. Let’s go!” and off you go into a Kafkaesque nightmare.

The police officer was right. You had the legal right to defend yourself, but if you supplied the means to do it, you were violating the law and if the cops really did show up, you would go to jail. I kid you not! In the following years, we saw that criminals aren’t as stupid as we like to think: they realized that people couldn’t effectively defend themselves, even in their own own homes, and took full advantage of it. The dc crime rate skyrocketed. It swung up an down, as happens everywhere, but it tended to be one of the murder capitals of the country.

Eventually some dc residents got sick of the situation and had the guts to stand up and protest. They sued the city over its restrictions to their rights protected by the Second Amendment. Without going through all of the gory details, the court saw fit to dismiss all of the suits save one, because the court felt that the mere potential to be caught in such a legal bind wasn’t sufficient to give them standing to sue. The suit that was not dismissed was brought by a man named Heller, and what got him standing to sue was that he had the cojones to actually attempt to register a prohibited weapon. Heller lost in the lower court, but won in the appeals court. The case is now before the U. S. Supreme Court and is known as District of Columbia v. Heller. (The city is what is called the petitioner, since it lost in the lower-level court and is petitioning the Supreme Court in appeal of that ruling; the petitioner’s name always comes first – don’t ask me why, I’m not a blood-sucking lawyer. Heller is known as the respondent.)

The Heller Case a Learning Opportunity

The existence of this case makes it a particularly excellent time to learn about the Second Amendment, its history, meaning and how the courts and legal scholars have viewed it since it was created. Why? Because the attorneys representing Heller have created a web site about the case (www.dcguncase.com/blog/) and have posted everything about the case online. In particular, what is most informative are the legal briefs of the parties and, especially, the amicus curiae briefs. (Amicus curiae means, if you didn’t know already, “friend of the court” and it indicates that some person or organization who is not a party to the case wants to put his or her two cents in, for the Court’s consideration.) What this means for you and me is that a whole lot of people have spent a bunch of time and money succinctly summarizing whole libraries full of information, well-researched and annotated, that we can read to inform ourselves extensively on the subject. It’s an opportunity that (I hope) won’t need to happen again soon, if the good guys win.

I particularly recommend the following:

You will really, really learn something by reading these briefs. I haven’t recommended any of the briefs submitted by those supporting the city. I do plan to read some of them, though, because if one only reads one side of an argument, even if it’s what one already agrees with, one doesn’t learn the whole story. I recommend reading at least the brief submitted by the city and as many other as you have time for.

How Does Heller Fit In with Everything Else?

The idea behind the political system in the United States is this: the government was created by the people of the country and governs with the consent of the people. A constitution was written that gave certain powers to the government. Every power not explicitly granted to the government is retained by the people and the states. Our fundamental liberties are things we had before our ancestors created this government; neither the government nor the Constitution nor the Bill of Rights gave those liberties to us. This is stuff we should all have learned in grade school, but evidently a lot of people do not really grasp it very well. The Heller case fits into all of this because the District of Columbia passed a law that took away one of our ancient, fundamental liberties from the city’s residents and they are trying to get it back.

Precedent

You might ask “Why should I care? I don’t own a gun and I don’t live in Washington, D.C.” You should care because the U.S. legal system works on the basis of precedent. Once something gets established, it can spread across the country as other courts rely on it as the right way to do things, and they can be hard to undo. Do you remember the Dred Scott decision by the Supreme Court in 1857? The Court ruled that African Americans could not be citizens of the country, even if they weren’t slaves, and that slaves were property that could not be taken from their owners without due process. It also ruled that the country could not prohibit slavery in federal territories, from which new states are formed. It took a civil war and two constitutional amendments (xiii and xiv) to undo that precedent. As another example, remember the Plessy v. Ferguson decision by the Supreme Court in 1897? That became the precedent that allowed deliberate racial segregation in education for the next 57 years, throughout the country, until it was overturned by Brown v. Board of Education in 1954.

Whether or not you currently own a firearm, or even whether you like or dislike guns, is irrelevant. You might want to change your mind someday. Although hunting and recreational shooting are activities protected by the Second Amendment, they aren’t the main issues, as you’ll discover if you spend some time studying the legal briefs mentioned above. The real point is our ability to defend ourselves from criminals and to help defend our communities in the case of some broader event like terrorism or invasion. Ask your self this: how many people, in the last seconds before they become the victim of a criminal or madman, say to themselves “Boy, I’m sure glad I don’t have a gun!”? Do you truly want to be permanently barred from having that means of self-defense at the time you might need it? Remember, as I have written elsewhere, the police are under no obligation to help you.

Polarization

We all know how politically polarized the U.S. is now, from top to bottom. Some of the reasons are complex, but one is particularly important and not complex if you take a little time with it, and it’s the issue I’ve been discussing. The country is so evenly divided on many issues that neither side can make much progress because it can’t muster enough of a majority to do anything substantial, nor to undo the damage it thinks the other side is doing.

Trying to Fix Things

I’ve spent much of my adult life working in, around and for labor unions, so I’m going to draw examples from that area. Unions would like to grow and gain the economic strength they had in the middle of the last century. Also, millions of workers would like to be represented by unions, but are not, because under the present climate, the deck is stacked so much against unions that it is difficult to win a representation election. To add to the problem, unions have difficulty mobilizing their current members to get them active in the affairs of the union and to get them to help organize new members. What does this have to do with the Second Amendment? A lot!

In the past few decades, the national leadership of the afl-cio has passed resolutions in support of gun control a number of times. They never consulted the union members whom they ultimately represent before they did that. The afl-cio council is composed of the leaders of individual affiliate unions, so those union leaders made their votes without consulting their members, either. In the same period, there has been a gradual changeover of the top leaders of unions to people who generally think of themselves as liberal or progressive, or sometimes a little radical. Those are the same groups of people who, in the Democratic Party, have been the motivators behind the gun control laws that have been passed. Unions have, in general (under the guidance of the leaders) avoided taking an independent stance in national politics and have, instead, cast their lot with the Democrats, wherever that might lead.

The actual working members of the unions, however, feel differently. They tend to oppose such laws. (According to a Washington Post poll, 25% of union members are also nra members.) They hunt and shoot recreationally, and they tend to be firm believers in having a gun around to defend themselves, if necessary. And the millions of potential union members in unorganized companies tend to be a lot more like the working union members than the leaders! It’s easy to see that there is a major division there, and there is also another group of people caught in that chasm — the local union leaders and activists, and the employees of the national union, the “reps” who assist local unions to negotiate contracts and process grievances and arbitrations. This latter group came to their positions from out of the working union members and are closer to them in their ideas, but their paychecks are signed by the national union’s president and their job is to further the president’s policies.

Struggle for Unity

How can unions possibly be unified enough to motivate members to get more involved in organizing and other union affairs when many members don’t feel that they can trust their leaders? How can unions hope to again be viewed as organizations that operate in the general interest if they take political positions that even many of their members disagree with? Many of the local union leaders and activists and reps are dedicated to building the union and they are very frustrated. They want members and potential members to stop getting “distracted” about things like the Second Amendment and stick to the economic issues when they vote for candidates. However, they don’t take the time to consider how they might be viewed by the working members: how can I really trust the union to protect my rights, when the union won’t even take a stand to protect our fundamental liberties? Why should I vote for the Democrat that the union is recommending when there is this other person who says that he or she stands for defending the Second Amendment and my right to protect myself and my family? Which is the group that’s getting “distracted” from what’s really important??

Until all levels of union leadership figure out that question, unions will remain in their current quagmire, not able to politically help change their circumstances, not able to restore the activity of their members to levels like in the era when the organizations were created, nor able to halt their slow slide into irrelevance and obscurity.

Conclusion

The Second Amendment is not the only subject on which people are divided, but it is one of the important ones, especially inasmuch as it stands for an attitude of protecting the ideals that this country supposedly stands for. It will be extraordinarily difficult for any person or group to become the champion that helps unify the people of this country unless that person or group is also viewed as the champion of all of our fundamental liberties, without picking and choosing among them. This is the essence of why I think it’s important to learn about District of Columbia v. Heller and the ideas and history behind it.

February 19, 2008


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