D.C. ♥ Armed Self-Defense

Jacob Sullum | March 19, 2008

Defending the Washington, D.C., gun ban before the Supreme Court yesterday, Walter Dellinger insisted it was never the city's intent to prohibit residents from using rifles and shotguns for self-defense in the home. All it wanted to do, Dellinger said, was ban handguns, because they are highly portable, readily concealable, easily stolen, and uniquely suited to urban crime. Even if (as seems likely) the Supreme Court rules that the Second Amendment protects an individual right to arms, he said, it should uphold the handgun ban as a "reasonable regulation":

Chief Justice John Roberts: What is reasonable about a total ban on possession?

Dellinger: What is reasonable about a total ban on possession is that it's a ban only on the possession of one kind of weapon, of handguns, that's been considered especially dangerous....There is no showing in this case that rifles and [shotguns] are not fully satisfactory to carry out the purposes [of self-defense].

But as Roberts, Justice Samuel Alito, and Justice Antonin Scalia noted, D.C. requires that all firearms, including long guns, be kept "unloaded and disassembled or bound by a trigger lock or similar device." The statute does not include an exception for self-defense. It thus seems to rule out unlocking and loading a gun even while under attack, let alone keeping one loaded and unlocked in case of an attack. Dellinger nevertheless maintained that the law does not prohibit the possession of functional firearms in the home, contrary to the interpretation the city has offered in previous cases and the one it implicitly endorsed at the U.S. District Court level in this case.

The District, which initially was openly contemptuous of the argument that D.C. residents should be allowed to defend themselves with guns, apparently has warmed to the idea. "It is a universal or near universal rule of criminal law that there is a self-defense exception," Dellinger said. "We have no argument whatsoever with the notion that you may load and have a weapon ready when you need to use it for self- defense." He added that "there ought to be an opportunity for the District of Columbia to urge its construction, which would allow for a relatively robust self-defense exception to the trigger lock provision." To which Scalia replied:

I don't understand that. What would that be—that you can, if you have time, when you hear somebody crawling in your bedroom window, you can run to your gun, unlock it, load it, and then fire? Is that going to be the exception?

Dellinger said he reads the storage requirement as permitting two options: "unloaded and disassembled" or "bound by a trigger lock" (as opposed to "unloaded and disassembled" or "unloaded and bound by a trigger lock"). In other words, it's OK to keep a gun loaded as long as it's locked, which Dellinger said can be accomplished with a combination lock that can be removed in three seconds. Two justices wondered if the operation would be that fast in an actual emergency:

Scalia: You turn on the lamp next to your bed so you can turn the knob at 3-22-95...

Roberts: You turn on the lamp, you pick up your reading glasses...

At another point Dellinger said a good test case would involve "a loaded gun on [the] night stand, no children present, without a trigger lock." If a gun owner could escape conviction for violating the storage requirement in those circumstances, he said, "I think then the statute might well be constitutional." If not, "in my view, it probably wouldn't be."

Note that all of Dellinger's proposed end runs around the plain language of the storage requirement involve getting arrested for exercising the fundamental right of self-defense and hoping the courts will be sympathetic—a situation that, as I argued last week, should be considered unacceptable. In the end, Dellinger basically invited the Court to throw out the storage provision, saying, "if we are wrong about that and the trigger lock [requirement] is invalid, that has no effect on the handgun ban."

A transcript of the oral arguments is available here (PDF). A ruling is expected in June.

Help Reason celebrate its next 40 years. Donate Now!

Try Reason's award-winning print edition today! Your first issue is FREE if you are not completely satisfied.

|3.19.08 @ 2:12PM|#

Thanks for keeping up with this case, Jacob. I'm waiting with bait breath to see how it turns out.

Episiarch|3.19.08 @ 2:13PM|#

I can't possibly take the time to read the transcript, but it sounds like ~~Dillinger~~ Dellinger got his ass handed to him for trying to make such contradictory, stupid arguments. It sounds very positive. Is that your take too, Jacob?

Urkobold™|3.19.08 @ 2:21PM|#

SAGE, YOU FOOL, THAT'S "BATED BREATH." THE VIKING MOOSE, OUR EXPERT AT ALL THINGS BATING, ASSURES THE URKOBOLD THAT THIS IS SO.

THE URKOBOLD DOES NOT CARRY FIREARMS IN THE DISTRICT OF COLUMBIA. HOWEVER, HIS BODYGUARDS DO AND DO SO WITH EXTREME PREJUDICE.

|3.19.08 @ 2:23PM|#

I've seen 5-4 predictions. I wonder at what levels of "watering down" (for lack of a better term) we would see a 6-3 or even a 7-2 decision?

highnumber|3.19.08 @ 2:24PM|#

sage's breath smells like nightcrawlers!

|3.19.08 @ 2:25PM|#

I've seen predictions ranging from 5-4 to 7-2.

I'm going to stick with being cautiously optimistic.

Does anyone who's more familiar with the Supreme Court know if examining these pre-ruling discussions is a valid technique for predicting the outcome?

Also, watching the left wing media absolutely LOSE THEIR FUCKING MINDS over this has been the high point of my month.

Other Matt|3.19.08 @ 2:29PM|#

Also, watching the left wing media absolutely LOSE THEIR FUCKING MINDS over this has been the high point of my month.

I'd concur with that opinion.

|3.19.08 @ 2:32PM|#

It was just glorious to read Dalia Litwich whine in Slate yesterday about how evil conservatives were trying to enforce a constitutional right that would have the courts mucking around in the business of gun laws for the next 50 years. She actually said that without irony. Watching liberals meltdown over this and argue that the Constitution should be read to restrict individual rights is just fabulous.

javier|3.19.08 @ 2:32PM|#

back in the founders day you had to bring your own weapon to even join a militia, so dellinger's militia only claim is retarded. The people are armed to ensure an armed militia will be available.

Tym|3.19.08 @ 2:35PM|#

I wonder at what levels of "watering down" (for lack of a better term) we would see a 6-3 or even a 7-2 decision?

Yes, but will they shoot it down?

|3.19.08 @ 2:35PM|#

John-

That's one specific example of what I'm talking about.

Elemenope|3.19.08 @ 2:41PM|#

Also, watching the left wing media absolutely LOSE THEIR FUCKING MINDS over this has been the high point of my month.

Oh, I dunno. The big bad left-wing media has never slobbered over gun control the way the right continually drools over abortion. It simply doesn't register in the same way to most people.

The only whining that I have heard thus far has been lefties hammering on the "well, you're only into judicial restraint when it isn't one of your precious rights on the block" argument, which FWIW is absolutely fucking true.

p.s. I'm thinking 6-3.

|3.19.08 @ 2:43PM|#

One potential outcome of this is that military grade weapons will be lawful... M4s for all.

|3.19.08 @ 2:45PM|#

I actually read the entire manuscript. It is not at all clear that more than ROberts, Scalia and Alito are leaning toward an individual rights interpretation.

|3.19.08 @ 2:47PM|#

It was a joke, yo.

Not to be pedantic, but is every news service printing the second amendment wrong? They are all placing a comma between "Arms" and "shall." I thought there was no comma there. Could someone clear that up for me?

Victor|3.19.08 @ 2:49PM|#

One technical point: you aren't supposed to put a trigger-lock on a loaded firearm. Why? Because attempting to do so means fooling with the trigger of a loaded firearm! Bang!

All trigger locks come with instructions which emphasize that they must only be used on unloaded guns. Certified shooting instructors are trained to teach students never to try to attach a trigger lock to a loaded gun.

Dellinger is an idiot.

|3.19.08 @ 2:52PM|#

sage

My copy has a comma there.

I just hope we don't get Kelo'd again.

Victor,

That is a really good point. I have never owned a trigger lock so I had never thought about it but rule number one in firearms safety is never fuck with the trigger of a loaded weapon.

Elemenope,

That is not true. The right to bear arms is an explicit right in the Constitution. Conservatives have never agrued against rights spelled out in the constitution, only against creating rights that are not there or were concieved of at the time of the writing.

shecky|3.19.08 @ 2:53PM|#

FWIW, I'm not seeing this as a very passionate issue on the left. Maybe I'm looking in the wrong place, but for example a quick search on dailykos for "Heller" yielded no hits in the last month.

I think the anti gun wave peaked quite a while ago, and most folks across the board are agnostic on the issue.

|3.19.08 @ 2:56PM|#

sage's breath smells like Nightcrawlers!

Eww.

|3.19.08 @ 2:57PM|#

"Gun control" has a real 1970's feel as an issue for the left, like Robert Redford and nuclear power. Most of my liberal and lefty acquaintances don't seem to get too excited about it any more. Maybe the fact that "shall issue" laws have not led to carnage in the streets has something to do with it. In the end, hard facts can eventually crush even the most rigid ideology.

|3.19.08 @ 2:58PM|#

Wayne: Clarence Thomas will side with individual rights too, I'm SURE of it. He just doesn't talk much at all. I don't think he has asked a question during oral arguments in over 2 years.

Kennedy will, as always, be the swing vote, although there is an indication that he's leaning toward joining the pro-gun votes.

My guess is that Roberts, Scalia and Alito will deliver a majority opinion. Kennedy will either join that decision or write a concurrence and Thomas will almost definitely write a concurrence. The end result will be that some sort of gun control will be maintained, but the ban will be partially overturned -- enough to allow a reasonable level of self-defense.

|3.19.08 @ 2:59PM|#

sage

My copy has a comma there.

This one doesn't.

I'm going to try to find a photo of the original parchment...sigh.

|3.19.08 @ 3:03PM|#

Note that all of Dellinger's proposed end runs around the plain language of the storage requirement involve getting arrested for exercising the fundamental right of self-defense

OK, legal eagles, do state-level assualt and homicide laws include explicit language in black-and-white providing for a self-defense exception, or is it sort of read into the law based on tradition, common law, or previous rulings?

|3.19.08 @ 3:06PM|#

Most of my liberal and lefty acquaintances don't seem to get too excited about it any more. Maybe the fact that "shall issue" laws have not led to carnage in the streets has something to do with it.

That's part of it. Also coming into play is that fact that a lot of the gun control agenda - background checks for purchases, for example - has been implemented and is considered so unremarkable that even the NRA not advocates for its enforcement.

The gun control lobby is comparable to MADD, in that so much of their original agenda is the law that only people with extreme ideas are really keyed up for more.

|3.19.08 @ 3:07PM|#

Found it on wiki. Yep, there's a comma.

|3.19.08 @ 3:09PM|#

The gun control lobby is comparable to MADD, in that so much of their original agenda is the law that only people with extreme ideas are really keyed up for more.

And yet MADD is still around, and far from trying to get in drunk people's cars they are instead trying to lock up parents whose kids happen to have a drink in their own home.

Not a good comparison for a gun lover like myself.

"OK, legal eagles, do state-level assualt and homicide laws include explicit language in black-and-white providing for a self-defense exception, or is it sort of read into the law based on tradition, common law, or previous rulings?"

Depends on the state. Generally the term "unlawfully" is read to encompass self defense since if you have a right of self defense you are not guilty of unlawfully killing someone. Some states will list out sepcific defenses to murder and assault in statute some states will do it through case law. Sometimes states will enact stautory language to explicitly over turn case law for example when states pass so called "make my day laws" which take away the duty to retreat within one's own home.

|3.19.08 @ 3:11PM|#

By the way, for intellectually inclined liberals, Larry Tribe changing his mind and deciding that 2A probably does protect an individual right was a huge deal. It would be difficult to overstate the prestige of Tribe in liberal legal circles.

|3.19.08 @ 3:13PM|#

The problem with gun rights is that the courts have avoided making any blanket statements about them. All of the amendments have been interpreted all over the place over the years, so what the Second Amendment really lacks is the judicial history that, say, the First Amendment has. There's also the question of whether the Second Amendment has been "incorporated", which will not be settled by a DC case.

Apropos of nothing: Americadome. 300 million go in, 150 million come out.

|3.19.08 @ 3:17PM|#

The comma issue is controversial. Original documents vary in the use of the comma(s).

"Gun control" has a real 1970's feel as an issue for the left...

I think the gun control impetus was largely a creature of the Baby Boomer generation, who came of age during the era of political assassinations, followed by the 70s increase in crime.

One thing I've noticed looking at CHL holder statistics published by the Texas DPS is that the bell curve (which is nonetheless pretty wide and flat) peaks around men in their late 50s / early 60s. I think as folks get older they begin to feel more physically vulnerable vs. the criminal ages, and their politics change accordingly. Thus the fading of the Boomers love of gun control.

|3.19.08 @ 3:22PM|#

What bugs me the most is the Constitution's odd silence about sword rights. Look what happened to the Scots!

|3.19.08 @ 3:28PM|#

Duh, crime. Of course, Kap.

Gun control, like a lot of issues, was driven by fear of crime during the 20-year crime wave from about 72-92.

It's tough to remember now, but being "tough on crime" used to be the most important political issue in the country. Mike Dukakis lost because of that issue. Think of the origins of "bleeding-heart liberal," and who liberals were supposed to have such sympathy for.

Today, the Justice Department can't even get the press to notice when they fearmonger about reduced crack sentences.

|3.19.08 @ 3:29PM|#

I think the gun control impetus was largely a creature of the Baby Boomer generation, who came of age during the era of political assassinations, followed by the 70s increase in crime.

For the most part, I would agree with this statement.

The main exception being the National Firearms Act.

|3.19.08 @ 3:33PM|#

Media, would you agree that NFA was a product of the Bonus Army, not the gangster years?

|3.19.08 @ 3:36PM|#

I like what Ted Nuggent said about the right to self defense in a interview.

Basically he said to forget the Constitution, laws, or anything else for that matter. As a living being on this planet given the gift of life we need not ask anyone to be allowed defend our life when in danger.

To me this says it all. Plain and simple you only have one life to lose and once its gone thats it. So in the end who is to say you can or can not defend yourself when they are not the ones in danger?

Last time I checked most animals will fight till the death to defend their lives and continue to live because the only alternative is assured death. There is no second chance when the shit hits the fan. Maybe this is why all those that would have us be defenseless often have so many people with guns around to protect them.

Sorry but I don't put the life of anyone with the exception of my family above mine. Just because your a jackoff politician doesn't give you the right to be defended while you insist the rest of us get slaughtered.

As for Dillpickle opening a trigger lock in 3 seconds lets see him do that from a dead sleep in the middle of the night in 3 seconds. What a dumbass.

|3.19.08 @ 3:46PM|#

And that's the natural rights argument. Which was once a central tenet of American liberty and was the critical tension between the Constitution and the contradictions in our system (incomplete suffrage, slavery, etc.).

|3.19.08 @ 3:47PM|#

Oh, and for anyone who's interested, Josh Sugarmann lists the street address of the Violence Policy Center, his employer as the location for his Federal License to deal in firearms.

You can see this for yourself by going to the ATF's online Federal Firearms License Holder EZ Check website and enter 1-54-XXX-XX-XX-00725 into the blank fields.

I find it interesting that the Executive Director of the nation's most virulently anti-gun 501(c)(3) non-profit has the a

er, has a license that is expressly issued by the BATFE for dealing in firearms.

Taktix®|3.19.08 @ 4:44PM|#

Found it on wiki. Yep, there's a comma.

The comma conundrum delves deeper than you think. Some say that a clerk who made copies for the Continental Congress added that coma after the fact.

I forget where I heard it, and therefore know not the credibility of the source, but it's worth a google...

Dammit! All that alliteration and I still misspelled fucking "comma."

Paul|3.19.08 @ 4:50PM|#

I've seen predictions ranging from 5-4 to 7-2.

I'm going to stick with being cautiously optimistic.

I'm predicting anything between 9-0 and 0-9.

|3.19.08 @ 4:50PM|#

Dellinger is an idiot.

More like a lying liar telling lies.

|3.19.08 @ 5:03PM|#

I have never owned a trigger lock

I have. I bought a couple of pistols that included a cheap one in the box.

I threw 'em away. If I'm going to lock a gun up, it goes in the safe. The ones that anre't not locked up, are loaded and ready to use.

|3.19.08 @ 5:13PM|#

I have no need for a 50 cent trigger lock because I've got a safe.

Paul|3.19.08 @ 5:15PM|#

Oh, I dunno. The big bad left-wing media has never slobbered over gun control the way the right continually drools over abortion.

I take it you're very young, Elemenope. I remember the halcyon days of the eighties. What happened is the media basically lost the debate because regular folks continued to own guns and want to own them despite constant media drooling and fifteen page editorials in Time magazine, then the nineties saw a precipitous drop in crime rates that couldn't be linked to any specific gun control measures. Then Democrats got beaten up at the polls whenever they opened their mouths about guns. The media drooled a lot about gun control issues, but they found it was merely a closed feedback loop where the only people listening were other media types.

Paul|3.19.08 @ 5:16PM|#

Dellinger is an idiot.

No he's not, he's a lawyer making idiotic arguments.

|3.19.08 @ 5:32PM|#

Walter Dellinger insisted it was never the city's intent to prohibit residents from using rifles and shotguns for self-defense in the home.

A politician tells a baldfaced lie! Stop the presses, that's never happened before!

So, isn't it about time for that clown to get busted smoking crack or something? That's what DC mayors do, isn't it?

-jcr

|3.19.08 @ 5:35PM|#

Hmmm. It's an interesting notion, but other than that, I don't know how likely the Bonus Army would have played into it.

I do recall finding a website once that had scans out of an old magazine about the Tommy Gun and how criminals were using them and they thusly needed to be banned. A cursory Google search isn't turning anything up, though.

The article itself was indistinguishable from the rantings of the anti-gun crowd with the exception that modern anti-gun advocates don't go on at length about how it's a bad idea to let black people own guns.

|3.19.08 @ 5:36PM|#

"the right of the people to keep and bear arms, shall not be infringed."

Comma be damned, it doesn't change the meaning. I could show this to a sixth grader and ask, what shall not be infringed? I bet he/she would have the right answer. It's plain friggin English.

|3.19.08 @ 5:42PM|#

John That is not true. The right to bear arms is an explicit right in the Constitution. Conservatives have never agrued against rights spelled out in the constitution, only against creating rights that are not there or were concieved of at the time of the writing.

I think this is a wrong way for conservatives to think. The constitution was intended to spell out the powers of government, not the rights of the people. Thus, no powers not expressly written were supposed to be available to the (Federal) government, and everything else belonged to the states or the people.

|3.19.08 @ 5:46PM|#

Not that many people here need to hear this, but it's Con. Law 101 that the Bill of Rights is intended to be a limit on government power, not a grant of rights. The rest of the Constitution is mostly concerned with defining the limited powers of government. Well, the formerly limited powers.

|3.19.08 @ 5:53PM|#

Thus, no powers not expressly written were supposed to be available to the (Federal) government, and everything else belonged to the states or the people.

That's crazy talk. The nine amendments of the Bill of Rights are clearly a cohesive framework that fully demarcates the powers and the rights delegated to the states and to the people.

|3.19.08 @ 6:18PM|#

I am, of course, joking.

J. P. Carlo|3.19.08 @ 6:48PM|#

Thus, no powers not expressly written were supposed to be available to the (Federal) government, and everything else belonged to the states or the people.

I think you're getting into double negatives here, with the concomitant ambiguity in meaning.

In any event, the Tenth Amendment makes that issue clear:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

In other words,

-If the Con says the Feds can do it, then they can. (Which means, they do.)

-If the Con says the Feds can't do it, then they can't. (Which means, they usually do anyway.)

-As per the 14th Amendment, the previous item applies to the states as well; a law prohibiting free speech or restricting due process, for example, is repugnant to the Con, so neither the states nor the Feds can do it. (But somebody please explain this to the GOP, and the Dems too.)

-If the Con says nothing about it, then the Feds still can't do it, no way no how. Those unenumerated rights are reserved to the states or to the people.

What's left unsaid is how the unenumerated rights are divided between the states and the people; that, presumably, is left to the states.

J. P. Carlo|3.19.08 @ 6:51PM|#

Oops, I left out my italicized comment for the last item in my previous post. it should read (not surprisingly):

(Yet they still do it anyway.)

|3.19.08 @ 7:43PM|#

J. P. Carlo

You are probably correct. NOT logic was never my strong suit. I often wrote inelegant code in order to avoid it. But you seem to have gotten my meaning anyway.

|3.19.08 @ 7:58PM|#

It would be difficult to overstate the prestige of Tribe in liberal legal circles.

Lawrence Tribe's prestige in liberal legal circles is as huge as a galaxy, and it can travel faster than the speed of light. It also is responsible for creating the universe, and is the ruler of all humankind.

See? It's not difficult. So, hah!

LarryA|3.19.08 @ 8:07PM|#

At another point Dellinger said a good test case would involve "a loaded gun on [the] night stand, no children present, without a trigger lock."

So only empty-nesters can defend themselves. Think of the children!

I'd also like to see a nightstand big enough to hold a rifle or shotgun.

THE URKOBOLD DOES NOT CARRY FIREARMS IN THE DISTRICT OF COLUMBIA. HOWEVER, HIS BODYGUARDS DO AND DO SO WITH EXTREME PREJUDICE.

See the Buckeye Firearms Foundation brief (PDF) in reference to the D.C. position on private security.

They are all placing a comma between "Arms" and "shall." I thought there was no comma there. Could someone clear that up for me?

There's a hi-res image of the original BoR at www.archives.gov. Remember to look at the fourth article, as two of the proposed amendments weren't adopted. The short answer is "yes."

rule number one in firearms safety is never fuck with the trigger of a loaded weapon

That's Rule 2. Rule 1 is "Always point your firearm in a safe direction."

OK, legal eagles, do state-level assault and homicide laws include explicit language in black-and-white providing for a self-defense exception, or is it sort of read into the law based on tradition, common law, or previous rulings?

AFAIK most if not all contain some form of "justification of use of force and deadly force" laws. In Texas, where I teach, it's found in Chapter 9 of the Penal Code. There's a Texas DPS Concealed Handgun Laws booklet here. (PDF) See particularly p 57-60.

You're welcome to come take my class.

|3.19.08 @ 8:17PM|#

I don't understand that. What would that be-that you can, if you have time, when you hear somebody crawling in your bedroom window, you can run to your gun, unlock it, load it, and then fire? Is that going to be the exception?

Obviously, the solution is for the District to include in its handgun ban a clause requiring anyone breaking into a residence to "knock and announce" and then allow sufficient time for the homeowner to unlock, assemble and load his gun.

|3.19.08 @ 8:21PM|#

|3.19.08 @ 9:41PM|#

thank God I live in TX. I would be such a felonious bastard in commieville, erh...D.C. how can one read the second amendment and come to any other conclusion than the fact we are guaranteed the right to self-protection individually? Hell, if it weren't for a maligned militia at the time, there wouldn't have been a need for a constitution, much less a new country. Lefties should be on the first boat back to good ole mother England if they are so upset. Better yet, Australia. good luck defending yourself against gun toting shitheads when all you have is a knife...Gun control kills innocent citizens.

|3.19.08 @ 10:43PM|#

joes asks OK, legal eagles, do state-level assualt and homicide laws include explicit language in black-and-white providing for a self-defense exception, or is it sort of read into the law based on tradition, common law, or previous rulings?

In the California code, there is an explicit provision for justifiable homicide, i.e. self-defense. Surprisingly, it allows deadly force not just for the protection of life, but of property also - which I used to think was only a provision of Texas law.

|3.20.08 @ 9:36AM|#

The big bad left-wing media has never slobbered over gun control the way the right continually drools over abortion. It simply doesn't register in the same way to most people.

It used to be a huge issue, in the 70s and 80s, right up there with forced busing of kids into much much worse school districts. Both issues have since faded away, largely because most people realized the left was wrong.

LarryA|3.20.08 @ 10:30AM|#

It used to be a huge issue, in the 70s and 80s, right up there with forced busing of kids into much much worse school districts. Both issues have since faded away, largely because most people realized the left was wrong.

The MSM isn't pushing gun control so much for the same reason the politicians are carefully avoiding the issue. Too much public opposition. But if you think it has "faded away" search Thomas.gov for introduced federal legislation.

On the state level there are a number of new gun control ideas perculating, including serial numbering cartridges, ballistic "fingerprinting," microstamping, smart guns, "assault rifle" bans, etc.

I keep track of Texas legislation on the Texas Concealed Handgun Association site. Every year, mostly the same suspects trot out their gun control bills. I don't expect 2009 to be any different.

Reason Magazine

Get Reason E-mail Updates!

Site comments/questions:

Media Inquiries and Reprint Permissions:

Editorial & Production Offices:

advertisements