On December 19, 2009, NBA star Gilbert Arenas and fellow Washington Wizards player Javaris Crittenton got into a heated argument over a card game, exchanging violent threats. (Arenas maintains that his were made in jest.) After Crittenton challenged him to a fistfight, Arenas told his younger teammate he was too old to fight him, but he’d burn his SUV or shoot him in the face instead. Crittenton answered that he’d shoot Arenas in his surgically repaired left knee.
Two days later, before practice at Washington, D.C.’s Verizon Center, Arenas placed four unloaded handguns on the chair in front of Crittenton’s cubicle in the team’s locker room with a note that read, “PICK 1.”
“You said you were going to shoot me,” Arenas reminded Crittenton. “So pick one.” Crittenton then flung one of the tendered guns across the floor and withdrew from his backpack one of his own (whether it was loaded is unclear), which he displayed for Arenas, holding it “below his waist and pointed downward,” according to the government’s proffer of facts. Any tension quickly dissipated, and soon the two were bantering together in the Jacuzzi.
That’s what Arenas did. Here are some things he did not do:
• hurt anyone;
• fire a gun;
• own illegal firearms;
• bring a loaded gun into D.C. or the Wizards’ locker room, let alone brandish one in a threatening manner. He didn’t even own any ammunition for the weapons in question.
On January 15, 2010, Arenas pled guilty to one felony count of carrying a pistol without a license in the District of Columbia, punishable by up to a $5,000 fine and five years in jail. On March 26, D.C. Superior Court Judge Robert Morin sentenced the player to 30 days in a halfway house, two years of probation, 400 hours of community service, and a $5,000 fine.
The judge got it about right—but only after three months of overkill from the other featured performers in the Arenas morality play: the overreaching prosecutors who pressed to lock him up, the tabloid heckler who mousetrapped the player with reckless smears, and the NBA commissioner who peremptorily wiped out Arenas’ season.
You don’t have to support gun control laws to see that Arenas committed a stupid act that could have ended far worse than it did. But you don’t have to support gun rights to see that he has paid a price grossly disproportionate to his mistake.
The Law After Heller
Arenas’ crime was jurisdictionally specific. His acts would likely have been legal at his home in Virginia, where no license is required to own a handgun and concealed-carry permits are issued based on criteria that Arenas seems to have satisfied. Even in D.C., if Arenas had been found with guns in his home or “place of business,” it would have been only a misdemeanor, punishable by a $1,000 fine and/or up to a year in jail. (Counterintuitively, the Wizards’ locker room did not qualify as Arenas’ “place of business,” which D.C. law defines as the place where the owner of an enterprise transacts its affairs.)
In 2008 the Supreme Court’s landmark ruling in District of Columbia v. Heller struck at the heart of D.C.’s blanket ban on gun possession. Explicitly recognizing an individual right to keep handguns in the home for self-defense, the majority opinion sowed doubt, among the general public and constitutional scholars alike, about the continuing viability and extent of the city’s highly restrictive gun laws. Arenas says he mistakenly believed that as a result of the decision he no longer needed a license to carry unloaded handguns in the city, when in fact D.C.’s post-Heller regulations continued to prohibit public possession of firearms in most situations. In an unusually broad 26-page sentencing memo making their case for a prison sentence, prosecutors ridiculed this “feigned ignorance of the law excuse,” noting that Arenas had attended a compulsory November 2009 briefing in which law enforcement officials explained D.C. gun laws to Wizards players.
It’s hard to evaluate the efficacy of the briefing—did it, for example, directly address the issue of unloaded guns?—without access to the unidentified (and un–cross-examined) players the prosecution cited as witnesses. But if the new gun rules were as easily mastered and non-controversial as the prosecution implied, why was a special briefing needed to explain them? The Heller ruling and the D.C. government’s recalcitrant response to it left the city’s comprehensive gun ban suspended in a confused and contentious atmosphere of constitutional limbo. Arenas’ misunderstanding of the law could have been feigned—who knows?—but in this shifting legal environment there is surely no reason to assume that it must have been.
There is wide agreement that the D.C. Council responded to the ruling with a minimalist compliance strategy designed to buy time until the Heller majority is supplanted by one more friendly to gun control. By creating formidable bureaucratic obstacles to gun ownership, George Mason law professor Ilya Somin wrote in a 2008 Legal Times article, the District’s new regulations “eviscerate the individual Second Amendment right that the Supreme Court has recognized.”
D.C. authorities argue that “the right to keep and bear arms” recognized in Heller does not include the right to have guns outside the home. But in keeping with its originalist approach to constitutional interpretation, the Heller majority looked for the meaning of “the right to keep and bear arms” in the ordinary usage of the Framers’ day, when “to bear” meant “to carry.” In a 2008 Syracuse Law Review article, Cornell law professor Michael C. Dorf wondered why the Framers would have crafted a constitutional amendment to protect the right of citizens to carry firearms from one room to another.
Writing for the majority in Heller, Justice Antonin Scalia sketched out a range of permissible exceptions to Second Amendment rights, including “laws forbidding the carrying of firearms in sensitive places such as schools and public buildings.” But “if it were possible for the government to ban all firearms possession outside the home, there would be little point in singling out ‘sensitive places,’ ” wrote Dorf. “There could be exceptions to the right to public carriage, but a complete ban on carrying firearms outside the home would appear to violate the Second Amendment as understood in Heller.” (Dorf isn’t grinding an ideological axe here. He personally favors trying to limit Second Amendment rights to possession within the home.)