Great Idea; Awful Timing

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Legislation introduced in the Senate would finally repeal Washington, D.C.'s sweeping gun ban. Normally, even the introduction of such a bill would be unadulterated good news. The only problem is, it may preempt a still broader victory for gun rights.

As Reason readers already know, attorneys and Cato Institute scholars Gene Healy and Bob Levy are in the midst of bringing a Second Amendment lawsuit challenging the city's gun ban. This is probably the best shot at a pure Second Amendment victory in the courts we're going to see for a while. The law being challenged is a particularly comprehensive denial of even the most basic gun rights, it allows the Second Amendment question to be reached without dealing with hairy incorporation issues (because the feds have jurisdiction over D.C.), and the plaintiffs are as sympathetic a group as a lawyer could possibly ask for. A victory there would transform the national gun rights debate—but that can't happen if the suit's target is taken off the table too soon.

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  1. joe:
    1st. only if you don’t think it counts as violent crime when a government employee does it for the government (re Reno.)
    2. libertoids? what are you then- a liberaltoid?
    and is al gore an altoid?

  2. Jacob,

    The word “libertoid,” like “humanoid,” is meant to encompass both those described by the root word, and those similar, but not identical, to them. Libertarians are a diverse lot, intellectually, and have arms reaching into many different strains of thought. My use of the word “libertoid” is a recognition of this diversity, and is therefore a sign of respect.

    Yeah, that’s it.

  3. I regard the Cato gamble as being essentially a no-lose proposition.

    On the one hand, if they win, we will have an enforceable Second Amendment for the first time, really, ever, and the opportunity to use it to do all kinds of good things for liberty.

    On the other hand, if they lose, what changes, exactly? The Second Amendment has never been a restraint on legislatures. The only thing protecting gun rights now is public opinion, and it is unlikely that many opponents of gun control will change their minds after a SCOTUS decision saying the Second Amendment doesn’t really mean what it says.

    A repudiation of the Second Amendment by the Supreme Court leaves basically at the status quo ante, since the Second Amendment is essentially a dead letter now.

  4. To answer tievsky’s question, I was appalled by Lawrence, for precisely the reason he cites. I am also not impressed by claims that the Cato gun suit is litigation in defense of the Constitution. That very claim is made for nearly all litigation that reaches the Supreme Court, sometimes rightly but at least as often because the more honest statement that “we are bringing this case because the legislative process will not do what we want when we want it” is not considered seemly, even by Justice Kennedy.

    For the judiciary to retain the public’s respect, and hence preserve its own effectiveness, it must avoid overreaching. That is not its responsibility alone but also that of the citizenry, particularly that part of the citizenry that is tempted to talk, and sometimes even to believe, arrant nonsense about “majority tyranny” and “persecution of the minority.” A large number of libertarians would instantly come to share this position if the Supreme Court did respond to the Cato gun suit with an opinion they did not like.

  5. ” I am also not impressed by claims that the Cato gun suit is litigation in defense of the Constitution”

    Huh? If Congress passes a law that clearly contravenes at least one highly plausible reading of a Constitutional amendment, how is it NOT “litigation in defense of the Constitution” to challenge that law? I fail to understand this argument at all.

  6. My bad for bringing up Lawrence, a case I will admit that, due to the nature of the text in that instance, is prone to ambiguity. For some reason I just assumed, Zathras, that it would play on your sympathies.

    But this case is far clearer. If the 2nd Amendment has any meaning–any meaning close to the text, that is–it must mean that the D.C. gun ban is unconstitutional. If litigation is good for anything, this is it.

    Are you objecting to litigation per se or are just appalled that individuals would want to see legislation delayed so as to allow a test case to progress? I really don’t see the problem with either.

  7. For the judiciary to retain the public’s respect, and hence preserve its own effectiveness, it must avoid overreaching. That is not its responsibility alone but also that of the citizenry, particularly that part of the citizenry that is tempted to talk, and sometimes even to believe, arrant nonsense about “majority tyranny” and “persecution of the minority.” A large number of libertarians would instantly come to share this position if the Supreme Court did respond to the Cato gun suit with an opinion they did not like.

    how to prevent it from overreaching? the answer at
    http://www.sobran.com/columns/2003/030701.shtml

  8. Is Zathras suggesting that were Congress to pass a law banning all criticism of the President, Cato or some like-minded organization would be wrong to challenge that litigation in court?

  9. ” . . .sometimes even to believe, arrant nonsense about “majority tyranny” and “persecution of the minority.” A large number of libertarians would instantly come to share this position if the Supreme Court did respond to the Cato gun suit with an opinion they did not like.”

    Only because a SCOTUS decision that gutted a Consitutional protection would be clearing the way for tyranny of the majority.

    I fail to see how disagreeing with a SCOTUS decision is somehow necessarily inconsistent with being opposed to tyranny of the majority. Sometimes SCOTUS enables tyranny of the majority, sometimes it impedes it.

    I doubt that Mr. Dreyer means to imply that “tyranny of the majority” is always arrant nonsense, but his post sures reads that way.

  10. Mr. Dreyer was only quoting me. I’m sure he did not mean that prosperous people in a free country yelling about “tyranny” were talking arrant nonsense, nor that “tyranny of the majority” was in all conceivable circumstances arrant nonsense. I don’t believe the second proposition either. I do pretty much believe the first, however.

  11. A free country? Where would that be?

  12. “I don’t doubt libertarians’ devotion to gun rights, or gay rights, or drug rights, but I am starting to wonder how devoted they are to democracy.”

    I’m not devoted to democracy at all. It would be nice to have a Constitutional Republic once again, however.

  13. this sounds stupid, but is this the same Bob Levy who writes advice column over the asinton post comics page?

  14. No, you’re thinking of Bob LevEy.

  15. “A victory there would transform the national gun rights debate” Huh? Are total bans on firearm ownership in place elsewhere? Are they even being considered? A victory in this case would do nothing more than bring a radical outlier into line with the mainstream.

  16. This item takes a good shot at being the most concise summary of why I distrust libertarians. Given the choice between legislation and litigation, they go for litigation every time. In the name of liberty they generally prefer to have a court seize people by the throat and command them to obey, as opposed to seeking approval for their views from representatives freely chosen.

    On the specific issue of firearms regulation in the District I’m personally a little ambivalent. For the District to have gun laws wildly different from those of neighboring states invites evasion of these laws. Though the District’s laws are pretty clearly unwise, they have been duly enacted by the legislative body with authority for the District, chosen by people who live in the District. Congress has the right to overrule the District, of course, but just because it has the right to do something does not mean this is necessarily a good idea.

    For libertarians looking for a “victory,” though, this aspect of the question is irrelevant. They will place their bet on a judge. If they lose, they will just go looking for another judge. I don’t doubt libertarians’ devotion to gun rights, or gay rights, or drug rights, but I am starting to wonder how devoted they are to democracy.

  17. Zathras, there’s already law, written by the people who founded this country and reaffirmed (albeit indirectly) by voters countless times. It’s called the Constituion, maybe you’ve heard of it? And by that law this local ordinance was illegal and unconstitutional when it was passed. One of the beauties of a republic where individual rights are guaranteed is that a mere referendum doesn’t allow the majority to trample one’s rights because you still have redress through the courts.

  18. First, Zathras, it’s worth noting that I think all the libertarians here are fans of the legislation–some might simply want to see it passed after this court case is over.

    Second, I’d understand your complaint about favoring litigation over legislation if libertarians were endorsing litigation-by-any-means. But we’re talking about the defense of the Constitution. If the legislature won’t respect the Constitution because of political pressures, why not go to an institution that will defend it?

    Did you shed tears over Lawrence v. Texas for striking down laws approved by majorities across the country? Would you consider that democratic?

    To be candid, you’re right to doubt libertarians’ devotion to democracy. Every libertarian I’ve known has preferred democracy to any other political system as a general matter, but democracy is a means, not an end, and it’s not even a very good means, but simply the best one out there. Without fighting to keep government to its constitutionally limited powers in the courts, it is extremely unlikely that voters will do it themselves at the ballot box.

  19. Joe-
    I think you’re taking too narrow a view here; it’s been at best ambiguous since Miller even whether the 2nd Amendment protects an individual’s right to own a gun for self-defense. Clarification on that score would be an important foundation stone for future legal challenges.

  20. If the repeal were successful, wouldn’t that transform the national gun-rights debate as well. DC is a major city known for its urban decay and crime problems. Wouldn’t a gun-rights victory (whether by legislation or litigation)ultimately have a positive effect on similar efforts nationwide, especially if it is deemed to be a “success” in reducing burglary,street crime, etc.? Couldn’t citizens in Chicago cite DC’s success with a repeal to their legislatures or city council, just as easily as they could cite the federal caselaw?

  21. “No, you’re thinking of Bob LevEy.”

    you’re right… i’m sorry. that was idiotic of me.

  22. Zathras,

    Actually, I can’t speak for all libertarians, but my impression is that most are distinctly uncomfortable with “democracy”, especially its common definition as “majority rule”.

  23. One thing’s for sure. If gun control is significantly rolled back in the district–irrespective of whether it happens through legislation or a court ruling–the nation’s capitol will prove to be THE showcased natural experiment on the overall effect of gun control.

    The stakes are enormous.

  24. Yes, Arjay-
    I have noticed the same thing, at least in a fair number libertarians. The basic premise of equal rights, however, need not result in 51% of the people having 100% of the power. Cumulative voting, for example (where each individual will have an equal number of votes, say 5 votes, that can be assigned in any fashion to any candidate) allow small groups that are sufficiently organized or politically cohesive to guarantee that their voices are heard. This is used in electing boards of directors at companies to ensure small stockholders aren’t steamrolled over by larger ones. This is not “proportional representation” or “quotas” or anything that violates the equality principle, yet it keeps a minority ( and I don’t mean racial )from having to be bullied by the majority. Majority rule is sometimes not much more that “might makes right”.

  25. Zathras, What is despised is tyranny, whether an autocrat’s or that of a plurality. Being a fan of “democracy” in the United States does not equal siding with the tyranny of the majority–basic individual rights are enshrined in the Constitution for a reason, to protect the individual from the majority. The courts are the Constitutional mechanism for enforcing that protection.

    So should legislative efforts to minimize the loss of liberties to the government (representing the majority of voters) be made? Of course. But litigation in defense of liberty is no vice.

  26. I get it, Julian. It’s not the overturning of the law which would be a major victory, but a specific holding from the court written into their decision. OK.

    Chuck,

    Crime rates have been dropping in DC for years. Further reduction in crime after the striking of its posession law would not necessarily be linked in the public mind to legalized gun posession.

  27. Crime rates had been dropping for years, but there’s been a recent resurgence in the homicide rates.

  28. OK, but my point still holds. DC is currently seeing massive private redevelopment (much of it upscale) in areas that had been deteriorating for decades. The police presence, I’m told, is increasing. Point is, there will always be numerous other variables to point to when explaining any reduction in crime.

    How many of you libertoids think the studies of violence in Canadian villiages immediately after the introduction of television demonstrate anything about the link between television and violence?

  29. Joe–

    Well, there will obviously be huge wars over controlling for other variables. But it seems to me that everyone will be using the same parameters for their data set. Everyone will be looking at the trend in violent crime rates from the date that liberalization was enacted.

  30. Care to look at the trend in violent crime rates since Janet Reno was appointed Attorney General?

  31. It’s a very simple gamble that the boys from CATO are taking, in launching litigation that will almost surely land in the Supreme Court.

    They read the decisions in recent death penalty cases, the affirmative action cases and the sodomy case as being affirmations of a libertarian streak running through American law.

    If they are mistaken, and the Court is as Justice Thomas views it, slaves to the “faddish slogans of the cognoscenti”, then they are setting gun owners up for a truly disastrous high court loss, on the order of what Roe v. Wade was to abortion opponents.

    Oh well, not my problem. They can get my copy of Atlas Shrugged from me when they pry it from my cold, dead, uncaring, self-sufficient fingers.

  32. “Care to look at the trend in violent crime rates since Janet Reno was appointed Attorney General?”

    increased BBQed kiddies

  33. Hartin:

    i really meant: “since the tyranny of the majority can also be found in the rulings of the supreme court being careful not to inflame public opinion on affirmative action, abortion etc impeachment of supreme court justices (which the article suggests) must be re-opened as an option. (the last time they did it was 1804)

    “I’m sure he did not mean that prosperous people in a free country yelling about “tyranny” were talking arrant nonsense, nor that “tyranny of the majority” was in all conceivable circumstances arrant nonsense. I don’t believe the second proposition either. I do pretty much believe the first, however.”
    the first is crap, though, Zathras.
    1st, are all US citizens prosperous?
    2nd. is the US legal system a consatnt, completely consistent pro-freedom manifesto?

    now i am NOT saying, “most US citizens are not prosperous,” or “the US is not prosperous” or “the US is a police state” those would be stupid crap. i am saying, since not ALL laws are pro-freedom in the US (an assertion i find hard to deny) protesting the laws that are not in fact affirmations of freedom isn’t a slap in the face of perfectly good ones, but rather a desire for pro-freedom consistenc, which i think can reasonably be said of this case.

  34. “impeachment of supreme court justices (which the article suggests) must be re-opened as an option”

    If your concern is that the court not succumb to majoritarian pressures, then I’d think making impeachments more common would be counterproductive.

  35. i disagree, seeing as such impeachments are articulated to be only for deviation from the constitution in setting law. f.e. having sex w/ interns wouldn’t cut it, no electioneering would come into play, no private lives would be relevant, so basically constituional deviationism could be the only way to impeach one.

  36. Impeachment isn’t a recall election, and it’s dangerous to turn it into one.

    Ruling wrong isn’t a crime. You’d have to show corruption.

  37. I don’t think it would be possible to limit the grounds to “Constitutional deviation” without setting off a political circus.

    Just imagine the “liberal” Dems going after Rehnquist, Scalia, Thomas because of their dissents on affirmative action or abortion, and you will see what I mean.

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