Guns, Coffee, and Bodily Autonomy

Speaking of fundamental rights and Starbucks Locked, Loaded, and Ready to Caffeinate reports on the campaign by gun-rights advocates “to carry unconcealed weapons in the 38 or more states that have so-called open-carry laws allowing guns to be carried in public view with little or no restrictions.”  Open-carry advocates are “showing up at so-called meet-ups, in which gun owners appear at Starbucks, pizza parlors and other businesses openly bearing their weapons.”  Unlike Peet’s and California Pizza Kitchen, Starbucks has not adopted a uniform no-guns policy.  “The political, policy and legal debates around these issues belong in the legislatures and courts, not in our stores” said Starbucks.  Some gun-rights supporters criticize the open-carry movement.  The founder of the Second Amendment Foundation said “I’m all for open-carry laws, but I don’t think flaunting it is very productive for our cause. It just scares people.”  The National Rifle Association does not embrace open-carriers.  Its spokesman said the N.R.A. “supports the right of law abiding people to exercise their self-defense rights in accordance with state local and federal law,” and left it at that.

Expect this issue to create strange bedfellows.  Some liberal constitutional scholars interpret the Second Amendment to protect the individual right to gun ownership, in line with individual rights protected by the rest of the Bill of Rights.  A few weeks ago the U.S. Supreme Court heard arguments in McDonald v. City of Chicago, a challenge to Chicago’s gun ownership ordinances.   McDonald involves the issue of the whether the 14th Amendment applies the Second Amendment to the states, an issue with repercussions on individual rights far beyond gun ownership.  The linked Newsweek article puts it this way:

At the heart of the left-leaning dissenters’ argument is a plea for consistency. For decades, liberals have insisted that the Constitution assumes—even if it does not explicitly spell out—a right to bodily autonomy. This right, long disputed by conservatives, is a basis for arguments in favor of abortion rights and gay rights. Liberals who support gun rights find a similar implied right to own weapons: after all, they say, what is the right to bear arms but the ability to protect your body from criminals as well as the government? . . .  The [Constitutional Accountability Center’]s main concern in weighing in on the McDonald case isn’t to secure gun rights but to set a precedent that will expand individuals’ protection under the Bill of Rights to the state level. That would, they hope, bolster liberal constitutional arguments in favor of stronger due-process and abortion-rights protections.

Not all liberals adopt this position, arguing instead that the Second Amendment protects collective security through state militias.  Needless to say, conservative scholars arguing against restrictions on gun ownership are not eager for the McDonald decision to become a Trojan horse bearing liberal social doctrines.  The Court will decide McDonald before its term ends in June.

A Gun for Everyone

While making an argument that it was foreseeable for a gun to be introduced into a hostile crowd confronting a person they thought to be a car thief, I said in class  that there were more guns in the U.S. than people.  No one tracks gun ownership so it is impossible to say, but I was probably wrong.  The best estimate appears to be that there are about 200 million privately owned guns in the U.S.  That’s still a lot of guns.  I stand by my argument.

Why Not Give a Bible?

“America LOVES GUNS and GAS!” If you purchase a Ford or GM car or truck this month from Max Motors in Butler, MO the dealer will throw in either a card for $250 in gas or a handgun. The dealership’s owner recommends the pocket-sized Kel-Tec .380 pistol. Most purchasers are opting for the handgun. The owner credits the promotion to Barack Obama’s remarks about people clinging to their guns and their Bibles: “I found that quite offensive. We all go to church on Sunday and we all carry guns.”

Must be a tough church. (Thanks to Z!)

Court to Consider D.C. Gun Ban

The U.S. Supreme Court announced that it will hear the appeal in Parker v District of Columbia, the March 2007 decision from the D.C. Circuit Court of Appeals striking down the D.C. law banning possession of handguns. The Court will hear arguments next March. This challenge to the D.C. handgun ban, which I discussed in one of the Second Amendment posts earlier this year, could provide a definitive ruling on whether the Second Amendment embodies an individual rights or collectivist theory of the right to keep and bear arms. Whether it reverses the D.C. circuit and upholds the constitutionality of the D.C. gun ban or not, the decision in the midst of the presidential campaign is certain to polarize a deeply-divided country.

Random Articles

As the blog train begins powering up for the fall, a few news articles have caught my wandering attention:

  • 100,000 Gone Since 2001 (Bob Herbert, The New York Times 14-Aug-07) 100,000 people have been murdered in the U.S. since 9/11. “No heightening of consciousness has accompanied this slaughter, which had nothing to do with terrorism. The news media and most politicians have hardly bothered to notice. At the same time that we’re diligently confiscating water and toothpaste from air travelers, we’re handing over guns and bullets by the trainload to yahoos bent on blowing others into eternity in armed robberies, drug-dealing, gang violence, domestic assaults and other criminal acts.”
  • A New York Times article about former Surgeon General Dr. Richard H. Carmona, recounting how the Bush administration muzzled Carmona and politicized the post, quotes Carmona as saying “I increasingly witnessed a government that was more and more using theology and ideology to drive its policies and its people — stem cells, abortion, Plan B, the war and many more . . . Our go-it-alone so-called cowboy diplomacy has in fact isolated us from the world more than ever in our history.” The story is consistent with this administration’s promotion of cronyism, political loyalty, and ideological purity over competence, expertise, and fact-based analysis.
  • A Grass Roots Effort to Grow Old at Home discusses the movement to foster aging in place (a term which always makes me think of “ripening”) by delivering social, medical, and support services to elders in their homes. I read the article to be certain it credits Beacon Hill Village for its leadership role in this movement; it does. The executive director of Beacon Hill Village is a good friend and I’m pleased to see this non-profit acknowledged for its pioneering efforts.
  • Last, Who Owns the Concept if No One Signs the Papers? discusses an issue that students raise frequently: how can I prevent others from copying my great idea? The quick-and-dirty answer is this: you cannot protect ideas. You can protect the particular manifestation or expression of an idea through a patent, copyright, or trade secret, whichever might apply. The article focuses on the dispute between Cameron and Tyler Winklevoss, founders of ConnectU, and Mark Zuckerberg, founder of Facebook. The Winklevoss twins engaged Zuckergerg’s services as a coder to work on ConnectU, their Harvard University-based social network site. They claim Zuckerberg copied their sites program code and business plan to start Facebook and want Facebook’s assets turned over to them. The Winklevoss twins never paid Zuckerberg for his services, promising him to pay him later if they made money, and apparently never asked him to sign a non-disclosure agreement. Jason Pontin, the article’s author, states “I suspect that Facebook would not exist had it not been for ConnectU” but nevertheless concludes that ConnectU does not have a case against Zuckerberg.

Cause for Hopelessness

I noticed the headline, Poor Kids Living in a War Zone, and clicked on the link. I thought it might be about the Taliban’s terror killings in Afghanistan. I was wrong. Bob Herbert’s column in yesterday’s New York Times discussed the 34 children killed in Chicago’s black and Latino neighborhoods since last September, 34 murders that occurred far below national media radar. The story of Seung-Hoi Cho’s murder of 32 people at Virgina Tech saturated the news; a Google search for <“Virgina Tech” shooting> just produced over 1.7 million hits. Until Bob Herbert’s column the story of these murdered Chicago school children had escaped my notice. Why? These murders occurred over ten months, not a few hours, but that alone does not explain our “passivity and a lack of public outrage” over the Chicago deaths. As Herbert says “most people know (and take for granted) that boys and girls growing up in America’s inner cities often have to deal with conditions that can fairly be compared to combat.” It’s disturbing that this statistic reinforces my own sense of hopelessness at changing the outcome. Herbert cites the litany of causes: too many handguns, sub-standard education, lack of positive after-school activities, lack of summer job programs, and abdication of parental–and particularly paternal–responsibility. I would put more emphasis on parental responsibility, yet while providing a tidy answer one cannot put sole blame on parents and community leaders. How do you learn social norms of responsibility in a vacuum? Irresponsibility breeds irresponsibility. I’m surprised that Herbert fails to cite the lack of economic opportunities. Creating jobs is related to improving the quality of education, but there is certainly a direct relationship between the two.

Two Schools of Thought

I wrote briefly recently about the Second Amendment, a post that prompted a spirited and articulate discussion. An article in yesterday’s New York Times provides fodder to continue that discussion. Written by Adam Liptak and titled A Liberal Case for Gun Rights Sways Judiciary, the article discusses what for liberals amounts to embracing the dark side–the individual rights view of the Second Amendment. There are two approaches to reading the Second Amendment, which reads “[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.” The collectivist view, long embraced by liberal legal scholars, holds that the Second Amendment protects the right of states to maintain militias. The individual rights view championed by the National Rifle Association and other pro-gun (or anti-government) groups holds that the Second Amendment protects the right of individuals to own guns. What is new is that some influential liberal legal scholars–the Times article mentions Larry Tribe, Akhil Reed Amar, and Sanford Levinson–have embraced the individual rights view. In Levinson’s words “[t]he standard liberal position is that the Second Amendment is basically just read out of the Constitution.” Paraphrasing Levinson the article states “If only as a matter of consistency . . . liberals who favor expansive interpretations of other amendments in the Bill of Rights, like those protecting free speech and the rights of criminal defendants, should also embrace a broad reading of the Second Amendment.” Law professor Carl Bogus criticizes this liberal apostasy as intellectually dishonest: “[c]ontrarian positions get play . . . Liberal professors supporting gun control draw yawns.”

I have no position on Second Amendment scholarship to throw into the ring. My interest is moved largely by the uncertainty in the law. My blog post and the discussion following generated a number of questions about why, at this point in our history, Second Amendment jurisprudence is so muddled. The lack of a clarifying Supreme Court ruling as to whether the collectivist or individual rights position embraces the controlling view is noteworthy. The Times article notes that the “Court has not decided a Second Amendment case since 1939,” a “somewhat cryptic” ruling cited since 1939 by both collectivists and individual-right-ists to support their interpretation. It is a curious state of affairs. The Second Amendment is the black sheep of the Bill of Rights, the provision over which liberals and conservatives execute a do-si-do and change their partners.

The case that brought this doctrinal switcheroo to the fore is Parker v District of Columbia, a March 9, 2007 decision of the the United States Court of Appeals for the District of Columbia Circuit (478 F.3d 380) striking down a District law that banned residents from keeping handguns in their homes as a violation of the Second Amendment:

To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment’s civic purpose, however, the activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.

478 F.3d 380, 395. The court’s opinion cites Tribe’s and Levinson’s respective work in support of its ruling. If the Supreme Court hears Parker v District of Columbia the muddle may disappear.

Second Amendment

In a recent post about the Virginia Tech shootings I wrote “[d]epending on which side of the gun debate you listen to, either Cho obtained his weapons because it is too easy to buy guns or Cho’s violence claimed so many victims because not enough people carry guns to defend themselves.” A few people have suggested that I conjured up that last position. I did not imagine this argument, as these quotations show:

  • “This is exactly the situation where one armed student, faculty, or staff could have cut this short.” (1)
  • “Communities that recognize and grant Second Amendment rights to responsible adults have a significantly lower incidence of violent crime than those that do not.” (2)
  • “Had I been on campus today, and otherwise been entitled to carry firearms for protection and been deprived of that, I don’t think words can describe how I would have felt, knowing I could have stopped something like this.” (3)
  • “How many other people like Cho are out there . . . Nobody knows, and it is because of that clear and present danger that Americans should not be browbeaten or bullied into surrendering their civil right to have a firearm for personal protection. (4)
    1. Bryan Fischer, Second Amendment: designed for Virginia Tech,
    2. Fred Thompson, Signs of Intelligence, (yes Law & Order fans, this is that Fred Thompson)
    3. WorldNetDaily, State quashed bill allowing handguns on campuses,
    4. Second Amendment Foundation, SAF Says Virginia Tech Case Underscores Importance of Second Amendment Right,