The Man Who Defeated the D.C. Gun Ban

Yesterday The Washington Post ran a surprisingly positive profile of Cato Institute legal scholar Robert Levy, who organized and bankrolled the lawsuit that resulted in this month's federal appeals court decision overturning key provisions of D.C.'s gun ban. Levy, who deliberately steered clear of the pro-gun lobby, says he does not own any firearms and probably never will, but he believed the right to armed self-defense was worth vindicating:

Like other critics of the law, Levy cites the District's annual triple-digit homicide totals and its "ridiculously high rate of crime" in the past 30 years as evidence that the statute has not made Washington safer. Its only impact, he said, has been to disarm honest residents in their homes, leaving them vulnerable in a violent city.

To Levy the libertarian, though, the effectiveness of the law—its success or failure in curbing crime—isn't the core issue. What matters most to him is whether the statute unjustly infringes on personal liberties. He doesn't dispute that "reasonable" gun controls are permissible under the Second Amendment. But the District's law amounts to "an outright prohibition," Levy said, and "that offends my constitutional sensibilities."

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  • ||

    What is "reasonable"? Violent felons? WMD? Fully automatic rifles? "Concealable" guns like pistols? All guns except those in the hands of the government?

  • Christopher Monnier||

    > To Levy the libertarian, though, the effectiveness of the law-its success or failure in curbing crime-isn't the core issue. What matters most to him is whether the statute unjustly infringes on personal liberties...

    Hmmm...after reading Virginia Postrel's newly-posted essay at Cato Unbound I'm not so sure this is all that *positive*. Doctrinaire libertarianism (which says that something is bad because it infringes on a natural right) is out; empirical libertarianism (which says that something is bad because it produces bad results) is in.

    Interesting...

  • ||

    What is "reasonable"?

    I propose two standards as benchmarks for weapons that are reasonable for citizens to own:

    (1) No "area effect" weapons (that is, no artillery, grenades, and the like) as they really have no use in personal defense.

    (2) Any weapon the police are issued should be available to (other) citizens as well. The police are not the military, they are civilians, and any weapons they are issued should be considered by definition civilian weapons.

  • squarooticus||

    Precisely, Kwix. My point when people bring up "common-sense gun control" is always that once you give anyone the power to determine whether you can exercise a given right, it ceases being a right and becomes a privilege that can be revoked or parceled out capriciously.

    In this particular case, I'd much rather live in a world in which everyone from felons to Jesus (with or without the bong) was packing than ours, in which lawful people find it much harder to possess and carry than criminals because the criminals simply ignore all the gun control laws that lawful people feel compelled to obey.

    Kyle

  • ||

    I read it the other day. The only thing I found surprisingly positive about the article was that they didn't outright call him a nutjob.
    They also actually said the word "libertarian" a few times.
    I certainly came away with a positive view of Mr. Levy, but I am inclined towards liking the guy. It would be interesting to ask someone outside of libertarian circles what they thought of the article.

  • Guy Montag||

    (1) No "area effect" weapons (that is, no artillery, grenades, and the like) as they really have no use in personal defense.

    You really make it tough to go fishing.

    (2) Any weapon the police are issued should be available to (other) citizens as well. The police are not the military, they are civilians, and any weapons they are issued should be considered by definition civilian weapons.

    How about the last court definition of any standard issue infantry weapon, which is the same list as what the cops are getting now anyway.

  • biologist||

    RC, I disagree with your rationale on #2. if the justification for the right to bear arms is for the populace to act militarily in time of need, then the populace should be able to get the same ordnance as the infantry.

  • ||

    What is "reasonable"?

    I once read that in the parlance of the times "arms" meant those weapons an infantryman could carry. Seems reasonable. Or alternately I suggest those weapons that would be necessary for a large majority of our populace to defeat a concerted military move against it. And keep in mind the US military could hardly be expected to move on Chicago in the same manner it did Fallujah. I know; very arbitrary and ill defined. Just my 2¢.

  • ||

    If you insist on an interpretation of a right devoid of subjective criteria, you will never get anywhere. I don't just mean practically you will never get where you want to be, but conceptually such positions just don't hold up. There is interpretation involved in every right, and such is unavoidable.

    We should fight, as Levy did, for an interpretation that covers the rationale for asserting the right (i.e. self protection is basic) while not denying that there is a reasonableness standard in play. Kudos to Bob Levy for the tactical approach here.

  • ||

    (1) No "area effect" weapons (that is, no artillery, grenades, and the like) as they really have no use in personal defense.

    Unless one is defending oneself from a military (including one's own state's military).

  • M||

    Robert Levy's
    Left the skivvies
    On the Presumed Rights of a Defendant,
    Namely, the Second Amendment.

  • ||

    For entertainment, read the comments on this TNR article on repeal of the second Amendment:
    http://www.tnr.com/doc.mhtml?i=w070319&s=wittes031907

  • LarryA||

    I disagree with your rationale on #2. if the justification for the right to bear arms is for the populace to act militarily in time of need, then the populace should be able to get the same ordnance as the infantry.

    Actually, today the military small arms standard may be the more restrictive. As standard issue, infantry doesn't have concealable handguns or shotguns, for instance.

    What is "reasonable"?

    We could start with repealing all the "common sense" laws where the CDC study found no evidence showing they were effective.

  • ||

    Actually, today the military small arms standard may be the more restrictive. As standard issue, infantry doesn't have concealable handguns or shotguns, for instance.

    They might not be standard issue, but they are not that uncommon.

  • ||

    Unless one is defending oneself from a military (including one's own state's military).

    Well, true in a sense, but let's face it, if we get to the point where the US military is lobbing artillery shells at citizens, your backyard cannon isn't going to do much good.

    My admittedly very subjective line in the sand would be something along the lines of, "if my neighbor uses this to defend himself, how likely is he to take out my house while doing it?" So guns are generally fine, bazookas not so much.

  • ||

    To Levy the libertarian, though, the effectiveness of the law-its success or failure in curbing crime-isn't the core issue. What matters most to him is whether the statute unjustly infringes on personal liberties.


    Many people have discussions on the usefulness of this or that law. This is irrelevant, since discussions on utilitarian terms always end in a zero-sum game. What IS important is if a certain law infringes upon a person's liberties - "liberties" as defined by the freedom to act as one pleases limited only by the same freedom held by others. All law that defines a prohibition against the initiation of violence is in itself not a violation of liberties. A law that limits the number, kind and use of a weapon, by threat of force, IS violating a person's liberty. This is true whether there is a Second Ammendment or not.

  • ||

    Many people have discussions on the usefulness of this or that law. This is irrelevant, since discussions on utilitarian terms always end in a zero-sum game.

    Well, it's not totally irrelevant. Presumably most libertarians adhere to the philosophy because on some level they believe that, on the whole, a libertarian society does a better job of providing tangible benefits (economic prosperity, happiness, whatever) than other systems.

    At least, I've never heard anyone take the position that communism makes people happier and more prosperous than the free market but that a free market is nonetheless more desirable.

    If you accept that there is some consideration of practical effect in taking a libertarian stance, it is theoretically reasonable to take the position that there may arise an extreme situation where something another person does with their liberty may be so dangerous as to endanger the very benefits that the libertarian society is supposed to best provide. In this situation, again theoretically, it would be sensible to make an exception and pass a law, to avoid jeopardizing the entire experiment.

    For example, if your neighbor began building a nuclear weapon in his backyard, is that kosher with you? I think I'd be ready for a law against it.

  • ||

    The world is a better place because of Levy's work. My hat is off to him.

    His accomplishments have done much for the RKBA.

  • ||

    Hmmm...after reading Virginia Postrel's newly-posted essay at Cato Unbound I'm not so sure this is all that *positive*. Doctrinaire libertarianism (which says that something is bad because it infringes on a natural right) is out; empirical libertarianism (which says that something is bad because it produces bad results) is in.

    Actually, natural law philosophy has been making a comeback lately. Many libertarians of a philosophical bent avoid consequentialist justifications for libertarianism, because they aren't actually...uh..."libertarian" (Nozick, Gauthier, and Buchanan all justify it on non-consequentialist grounds). There's plenty of evidence to show that small amounts of government intrusion into many areas can improve the net result for everyone involved. The moment the evidence begins to swing in this direction, the consequentialist (or utilitarian) libertarian can no longer remain an honest libertarian.

    There are serious difficulties with natural rights philosophy, but it's no rotten tomato to be thrown out with yesterday's trash, and consequentialism is not a completely reliable alternative.

  • ||

    In colonial times, a free man had the right and responsibility to arm himself as an infantryman. Field pieces were the responsibility of the local militia as a unit. Lexington and Concord were attacked becasue the British were looking for the artillery and of powder and shot that the patriots had hidden from the king's men.

    So, perhaps the 2nd Amendment allows the Primrose Lane Block Club to own howitzers.

    Kevin

  • ||

    smappy sez Unless one is defending oneself from a military (including one's own state's military).

    I would assert that if you are in that situation, the legality of possessing (let alone using) the weapons you are employing is the least of your worries.

  • ||

    Re: reasonable.

    I'll again voice my opinion that NM's constitution gets it about right...

    "No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons."

    See back when we were the old west, we learned that only the bad guys need to hide their weapons. Hiding things is a sign that you're not willing to communicate openly with your neighbors. Just a sign that you're not trust worthy. In my view a responsible gun owner carries openly.

    I know that NM just went "shall issue." But I like the wording in the constitution.

  • Guy Montag||

    LarryA,
    Actually, today the military small arms standard may be the more restrictive. As standard issue, infantry doesn't have concealable handguns or shotguns, for instance.

    I am sort of with you. I vote for both.

    Both of my shotguns are legal without "extra" taxes and concealable under a duster. So are short-barrel rifles.

    Pistols, issued to military or cops, are always easy to hide.

    BTW, the only reason the US military stopped using shotguns for a while is becase of some sissy political crap like what we are hearing today about other issues. They are back, in force. Benellis and Mossbergs, etc.

  • Guy Montag||

    Hiding things is a sign that you're not willing to communicate openly with your neighbors.

    I don't flash the cash in my pocket nor the limit on my credit cards. Just the sneeky one that I am I guess.

  • Guy Montag||

    For entertainment, read the comments on this TNR article on repeal of the second Amendment:
    http://www.tnr.com/doc.mhtml?i=w070319&s=wittes031907


    97 when I went to the link, the first several are pretty cute.

  • ||

    Or alternately I suggest those weapons that would be necessary for a large majority of our populace to defeat a concerted military move against it.

    Yeah, to hell with the hummer, I wanna drive an Abrams to work every day. You just never know when a foreign army might invade.


    For example, if your neighbor began building a nuclear weapon in his backyard, is that kosher with you? I think I'd be ready for a law against it.

    Didn't we already try that approach? Lessee, Iran, N Korea, etc. Nope, a law ain't gonna save you.

    Driving an Abrams to work might. As soon as you find out your neighbor has started work in earnest, you invade & conquer his back yard.


    But what if your neighbor needs a nuke to stop an invading foreign army? I mean think about a serious Chinese invasion attempt, with us being out-manned around 10 to 1 or more.

    You should go and help your neighbor man, that's my advice.

  • Guy Montag||

    It is always so cute and predictible when the gun-grabbing Leftists toss out the nuclear weapons example.

    They never use fire in a crowded theater for a 1st Amendment example, but nuclear weapons in the bits of the Constitution that they hate are fine.

    Then they skip over to Amendment V and try to tell us that the government can take our property "for the greater good" if we are not using it properly, or just tell us how to use it without compensation.

  • ||

    One can themselves hold a natural rights view of liberty, but it is really hard to maintain at the end of the day that those natural rights one selects are other than value preferences.

    Consequences are where all libertarian advances will be made, mostly because consequences are applicable to people of differing value hierarchies.

    If you disagree with joe, why? I have two reasons: 1) He seeks to advance a type of outcome egalitarianism that I don't think is important at all (that is, he wants to violate rights I consider fundamental to advance something I consider unimportant); 2) I think he glosses over the negative consequences of policies he suggests.

    There is almost no point in talking about 1. 2 is where the action is.

  • ||

    "It is always so cute and predictible when the gun-grabbing Leftists toss out the nuclear weapons example."

    Well, you see, it's so very easy to make that argument, when the gun nut Rightists can't articulate any principle that would allow a line to be drawn between weapons allowable for private ownership and those appropriately forbidden.

  • dhex||

    no, it's the equivalent of "you want gays to marry? then why not polygamy? why not abolish marriage?"

    the whole gun control argument actually manages to be uglier than any other culture war brouhaha outside of abortion. i can understand why, but it still amazes me just how ugly it can get.

  • dhex||

    oh, to clarify, i wasn't pointing to this exchange as an example of ugliness. there are plenty of examples out there.

  • ||

    dhex,

    I can actually articulate principles that explain why marriage can expanded to include gay couples, but not polygamous groupings, and without calling for the abolition of marriage. Would you like me to?

    On the other hand, when you're arguing about parity between private citizens and the military, or you think "what part of shall not be infringed don't you understand?" is a comprehensive statement about the appropriate limits of private weapons ownership, then you are making a claim that there is no principled way to distinguish between owning a shotgun and owning a grenage, howitzer, or nuke.

  • ||

    "Hiding things is a sign that you're not willing to communicate openly with your neighbors.

    I don't flash the cash in my pocket nor the limit on my credit cards. Just the sneeky one that I am I guess."

    Well I guess as an anonymous poster I deserve that answer, but it is hardly the same thing.


    Juan Carlos Espina

  • ||

    Hmmm...after reading Virginia Postrel's newly-posted essay at Cato Unbound I'm not so sure this is all that *positive*. Doctrinaire libertarianism (which says that something is bad because it infringes on a natural right) is out; empirical libertarianism (which says that something is bad because it produces bad results) is in.



    Well, "empirical libertarianism" works to a degree...the degree to which people listen to such claims before Mothers Against Evil and the Committee for Good Christian Living and "common sense" take over the discussion. (Or until the claims conflict with their own ideological leanings and are so rejected.)

  • LarryA||

    Many people have discussions on the usefulness of this or that law. This is irrelevant, since discussions on utilitarian terms always end in a zero-sum game. What IS important is if a certain law infringes upon a person's liberties - "liberties" as defined by the freedom to act as one pleases limited only by the same freedom held by others.

    I disagree on two grounds.

    1. There is certainly a usefulness argument. For instance, say that you have a war on drugs, spend vast resources and in cur great social pain, and end up with more drugs on the streets than before. Or (as in Britain) say that you ban firearms, destroy the "gun culture," and prohibit self-defense, and the violent crime rate and the gun crime rate skyrocket. It's a valid argument to say, "That approach isn't working. Let's try something else. And let's not copy that discredited approach elsewhere." It's also a much more persuasive argument for those not sharing the libertarian philosophy.

    2. The fundamental libertarian argument is "usefulness." The Founding Fathers didn't write the Declaration of Independence, Constitution, and Bill of Rights because they just believed in the concept of liberty. They did so because history had demonstrated to them that governments run by free individuals function better. They didn't guarantee freedom of speech, press, and religion and the right to freely assemble, petition the government, and keep and bear arms so we could individually be liberated. They did so because countries where such freedoms are secured from government interference prosper far beyond those where they are restricted.

    Hmmm...after reading Virginia Postrel's newly-posted essay at Cato Unbound I'm not so sure this is all that *positive*. Doctrinaire libertarianism (which says that something is bad because it infringes on a natural right) is out; empirical libertarianism (which says that something is bad because it produces bad results) is in.

    I'm not libertarian because it's a cool philosophy. I'm libertarian because liberty works.

    Hiding things is a sign that you're not willing to communicate openly with your neighbors.

    Actually many of the "concealed carry" laws were passed after the civil war. They allowed the open carry of handguns by blacks as well as whites. Of course, police could choose to stop anyone openly carrying and hassle them. It's just a coincidence that those stopped most often seemed to be black. If a handgun was concealed, however, you wouldn't know if a person was carrying.

    There is a point to this statement, though. When I carry concealed I don't have to put up with those who point and shriek, "Oh My God! A Gun! I'm Offended."

    Also a potential criminal, looking at a group of people, won't know which or how many he has to worry about if he tries to rob the place. I prefer the element of surprise over wearing a target as "first to take out."

    Well, you see, it's so very easy to make that argument, when the gun nut Rightists can't articulate any principle that would allow a line to be drawn between weapons allowable for private ownership and those appropriately forbidden.

    The laws we oppose have nothing to do with cannon or nuclear devices. As in the D.C. case, we're concerned with private ownership of handguns, rifles, and shotguns.

    The law enforcement/individual soldier test has been repeatedly advanced here. I suspect you don't like it because you'd rather the laws be considerably more restrictive. But it's still a bright line.

    On the other hand, when you're arguing about parity between private citizens and the military, or you think "what part of shall not be infringed don't you understand?" is a comprehensive statement about the appropriate limits of private weapons ownership, then you are making a claim that there is no principled way to distinguish between owning a shotgun and owning a grenade, howitzer, or nuke.

    Individual soldiers aren't issued howitzers or nukes. Grenades are actually not that destructive, and banning them is futile since functional substitutes are ridiculously easy to make if you want to break the law. Still, I'll trade hand grenades for rifles, pistols, and shotguns.

    The "shall not be infringed" argument speaks more to the type of restriction, not the type of arm. Completely banning the possession of handguns and requiring that long guns be dismantled and locked up to prohibit their use seems a tad "infringing." Apparently the D.C. court agrees.

  • ||

    LarryA,

    "There is a point to this statement, though. When I carry concealed I don't have to put up with those who point and shriek, "Oh My God! A Gun! I'm Offended."

    Also a potential criminal, looking at a group of people, won't know which or how many he has to worry about if he tries to rob the place. I prefer the element of surprise over wearing a target as "first to take out.""

    Good points as always. I know you spend a lot of time thinking of this issue.

    However, the point of prohibitions on concealed carry isn't about what is best for the person carrying the gun. It is about what is best for the community. Having an easy way to distinguish between those who are responsibly exercising their rights and those who are carrying a weapon for nefarious purposes is, I would submit, the primary motivation to restrict concealed weapons. Rights have costs. It's just that simple.

  • ||

    "Having an easy way to distinguish between those who are responsibly exercising their rights and those who are carrying a weapon for nefarious purposes is, I would submit, the primary motivation to restrict concealed weapons. " - NM

    How about distinguishing between people "responsibly exercising their rights" and those "carrying a weapon for nefarious purposes" by the actions of those individual citizens rather than assuming someone who carries concealed is up to no good? That's like me assuming that you're a criminal because you're DWB (Driving While Black).

    Also, if it works for cops, it probably works even better for violent criminals. If everyone has to carry openly, the criminals know who to shoot first.

    "However, the point of prohibitions on concealed carry isn't about what is best for the person carrying the gun. It is about what is best for the community." - NM

    How does it in any way help the community to have the one guy carrying openly get shot first when if he'd carried concealed he'd have been able to defend those around him from a violent attacker?

    "Rights have costs. It's just that simple." - NM

    Spoken like a guy looking for a reason to restrict someone else's freedoms and/or capacity for self-defense without any evidence that shows that such restrictions benefit either the gov't or the citizen.

  • ||

    Rob,

    "How about distinguishing between people "responsibly exercising their rights" and those "carrying a weapon for nefarious purposes" by the actions of those individual citizens rather than assuming someone who carries concealed is up to no good?"

    That might work. It requires a more subtle assessment and will have a higher error rate, but fine. Historically, however, it would be more typical to trust the guy who carries openly more than the one who feels he has something to hide. The symbolic nature of weapons needs to be recognized.

    "If everyone has to carry openly, the criminals know who to shoot first. "

    So. Again, that is an argument about how concealed carry benefits the concealer. I don't dispute that.

    "How does it in any way help the community to have the one guy carrying openly get shot first when if he'd carried concealed he'd have been able to defend those around him from a violent attacker?"

    Thank you oh glorious savior for your help, but gimme a break.

    "Spoken like a guy looking for a reason to restrict someone else's freedoms and/or capacity for self-defense without any evidence that shows that such restrictions benefit either the gov't or the citizen."

    Spoken like the man who most often accuses others of Ad Hom attacks on this board as if he is above it. (I am not. I do it all the time).

    Try a reasoned response. I don't see your counter arguments as "evidence" that my position is wrong. Just conjecture on your part. Try again. Maybe without the junior high taunts.

  • ||

    Tried to post this several times….

    "That might work." - NM

    Uh, actually, ID'ing criminals by their criminal behavoir is the ONLY way to ID criminals. You don't get to arrest people based on how they dress... Do you really think that you can tell who criminals are by looking at them? No? Then HOW someone carries a legal weapon is no different than the way that they legally drive a car.

    "It requires a more subtle assessment and will have a higher error rate, but fine." - NM

    How so? ID'ing a criminal should be based on their criminal activity, not on how they dress, what car they drive, or how they choose to carry a weapon that it is legal for them to carry.

    "Historically, however, it would be more typical to trust the guy who carries openly more than the one who feels he has something to hide." - NM

    Tell that to the Lone Ranger...

    "The symbolic nature of weapons needs to be recognized." - NM

    Right along with the symbolic nature of hammers, saws, and all other tools, right? That's just right off the sanity reservation, bud...

    "So. Again, that is an argument about how concealed carry benefits the concealer. I don't dispute that." - NM

    No, it's an argument about how concealed carry benefits everyone EXCEPT criminals and open carry doesn't benefit anyone OTHER THAN criminals.

    When I say this: "How does it in any way help the community to have the one guy carrying openly get shot first when if he'd carried concealed he'd have been able to defend those around him from a violent attacker?" - NM

    You respons with THIS? "Thank you oh glorious savior for your help, but gimme a break."

    Try addressing the common sense argument that you clearly have no reasoned response to.

    "Spoken like the man who most often accuses others of Ad Hom attacks on this board as if he is above it. (I am not. I do it all the time)." - NM

    I never claimed to be entirely above it. But that was hardly an Ad Hom attack - I simply said that the tack you take is the sort normally taken by the kind of guy whose goals are to restrict other people's rights.

    "Try a reasoned response. I don't see your counter arguments as 'evidence' that my position is wrong. Just conjecture on your part. Try again. Maybe without the junior high taunts." - NM

    That's good advice. You should take it...

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