Wednesday, June 25, 2008

Gun-rights decision expected tomorrow

With its term winding down, the U.S. Supreme Court is expected to release its long-awaited ruling at 10 a.m. tomorrow in the case of District of Columbia v. Heller. That's 7 a.m. my time, about when I'm making my coffee and trying to minimize the property damage inflicted on the furniture by my son, so I'll have to blog about it a bit later in the day. At issue is not only the constitutionality of Washington, D.C.'s handgun ban, but also the question of whether the Second Amendment protects an individual's right to keep and bear arms, or whether it's just so much wasted ink.

My guess, for what it's worth (not much) is that the justices will issue a decision that recognizes the right to bear arms as an individual one, but one so weakly protected as to permit pretty much every gun control law you can imagine short of an actual door-to-door confiscation. Imagine a First Amendment that permits the registration of printing presses, licensing of journalists and content restrictions on newspaper editorials and you have an idea of what I expect for the Second Amendment.

As I've written before, such a result may actually be more of a win for all but the hardest of hard-core gun control advocate than for advocates of the right to bear arms, because:

Confiscation will be off the table, most outright bans will become impossible, so gun owners will be less fearful of efforts to impose strictures on firearms use and ownership that just nibble around the edges. Gun controllers will probably still have the option of pushing for registration, permits and restrictions on concealed carry -- and they'll have a greater chance of success since the opposition will be less unified and resistant.

Frankly, most gun owners would just hear "the Second Amendment protects an individual right" without hearing the all-important "to do whatever local authorities tell you to do." Gun control would then lose much of its potency as a political issue and many restrictive laws that have been resisted so far would face an easier time of it in Congress and state legislatures.

Yes, confiscation would be off the table, but it was never realistically on the table. In countries where bans have been tried, resistance has been widespread. According to Dr. Franz Császár, a professor of criminology at the University of Vienna, "Non-compliance with harsher gun laws is a common event. In Australia it is estimated that only about 20% of all banned self-loading rifles have been given up to the authorities... Following the restriction in 1983 of certain 'military-style' rifles in Canada, the compliance rate was estimated as between 3 and 20% for different models."

Not surprisingly, compliance with gun bans has been no higher in the United States, where firearms carry heavy political baggage. In Can Gun Control Work?, James B. Jacobs, Warren E. Burger Professor of Law and Director of the Center for Research in Crime and Justice at New York University wrote, "In Boston and Cleveland, the rate of compliance with bans on assault rifles is estimated at 1%. Out of the 100,000 to 300,000 assault rifles estimated to be in private hands in New Jersey, 947 were registered, an additional 888 rendered inoperable, and 4 turned over to the authorities. In California, nearly 90% of the approximately 300,000 assault weapons owners did not register their weapons."

Any reduction in privately owned firearms might seem like an improvement to anti-gun zealots, but as Császár points out, "Stringent gun control changes the profile of the gun-owning population. What ever the reason for keeping guns may be, remaining owners tend to cling even more tightly to firearms. Noncompliance with restrictive rules makes the remaining owners immune against even very reasonable measures of the authorities."

So confiscation would certainly be widely defied and further polarize the country. Really, it's a non-starter.

But less-draconian laws? Registration and licensing laws might be on the table if gun-rights groups lazily declare victory after a weak declaration that the Second Amendment protects individual rights, of if gun owners get complacent. A lot of Americans -- myself included -- wouldn't obey such laws, but there would probably be higher compliance after a weak "victory" on Heller than there would be if the Second Amendment were simply declared a nullity. That is, advocates of individual rights might be better off outright losing this case than sort-of, kind-of winning. That would galvanize resistance to restrictive laws.

But maybe I'm wrong and we'll get a strong decision in favor of an individual right to bear arms. We'll find out tomorrow morning.



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