Yesterday, unbeknownst to itself, the Supreme Court heard arguments in a gay-rights case. To most people, admittedly, District of Columbia v. Heller is a gun-rights case. In fact, it's the most important gun-rights case in decades, one that may cast a shadow for decades to come. But to gay Americans, and other minorities often targeted with violence, Heller is about civil rights, not shooting clubs.
Nine years ago, one of the first columns I wrote for National Journal told the story of Tom G. Palmer. One night some years ago in San Jose, he found himself confronting a gang of toughs, as many as 20 of them, intent on gay-bashing him. Taunted as a "faggot," threatened with death, Palmer (and a friend) ran for their lives, only to find the gang in hot pursuit. So Palmer stopped, reached into his backpack, and produced a gun. The gang backed off.
If no gun? "There's no question in my mind," Palmer told me in 1999, "that my friend and I would have been at least very seriously beaten, and maybe killed."
Today Palmer lives in Washington, D.C., which has the most restrictive gun-control law in the country. You can't own a handgun in Washington unless it was registered before 1976 (or unless you are a retired D.C. police officer). You can own a shotgun or rifle, but it must be disassembled or locked (except while being used for lawful recreation or at a place of business; you can protect your store, in other words, but not your home). In Washington, therefore, Palmer could not legally protect himself with a gun, even if the gay-bashers had chased him right into his home.
Although gay life in America is safer today than it once was, anti-gay violence remains all too common. The FBI reports more than 7,000 anti-gay hate crimes in 2005 alone, and since 2003 at least 58 people have been murdered because of their sexual orientation. Perhaps because gay-bashings often begin in intimate settings, the home is the single most prevalent venue for anti-gay attacks. In public, of course, gay-bashers make sure that no cops are around. For that matter, sometimes the police are part of the problem, responding to gay-bashings with indifference, hostility, sometimes abuse.
Those facts are from an amicus brief that two gay groups—Pink Pistols and Gays and Lesbians for Individual Liberty—have filed in Heller. Pink Pistols is a shooting group, formed partly in reaction to stories like Palmer's (and partly, full disclosure, in reaction to an article I wrote urging gays to take up self-defense with guns).
"Recognition of an individual right to keep and bear arms," says the brief, "is literally a matter of life or death" for gay Americans. The Heller plaintiffs are asking the Supreme Court to strike down Washington's gun law as unconstitutional. One of those plaintiffs, not coincidentally, is an openly gay man: Tom Palmer.
At issue is the legal meaning and reach of the controversial Second Amendment, which says: "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." Oddly, the Supreme Court has not definitively ruled on the amendment's meaning. The last important precedent came down a long time ago, in 1939, and it left the issue murky.
In most of the time since then, conventional wisdom assumed that the amendment confers no right on individuals, but instead empowers the states to form militias and other armed forces. In recent years, however, that interpretation has lost ground under academic scrutiny. It has become clearer that the Founders believed just what the amendment said: The people have a right to own firearms of the sort that would have been used in militia service in those days—that is, pistols and long guns.
Why would the Founders have cared? One reason is as relevant today as ever: Guns were needed for self-defense, a prerogative the Founders regarded as fundamental to freedom. As John Locke wrote, "If any law of nature would seem to be established among all as sacred in the highest degree, … surely this is self-preservation."
The second reason, by contrast, strikes modern Americans as archaic, if not embarrassing: States' armed populations could resist and overthrow a tyrannical central government, acting as an insurrectionary militia—much as Americans had recently done in overthrowing British rule. That may have made sense in 1790, but today the insurrectionary rationale would seem to imply a right to keep and bear surface-to-air missiles and grenade launchers, among other things.
Between a right to keep and bear nothing and a right to keep and bear surface-to-air missiles lies a whole lot of middle ground. That the Supreme Court may finally provide some guidance is thus major constitutional news. But what should the Court do?
It could make the Second Amendment a dead letter by finding that it guarantees no individual right at all. This is what the District of Columbia wants. But judicially repealing the Second Amendment would be a mistake, both as a matter of constitutional literacy and also, more important, on moral grounds. The Declaration of Independence's great litany, "life, liberty, and the pursuit of happiness," puts life first. A law that prevents people from defending their own lives, even in their own homes, denies the most basic of all human rights.
Instead, the Court could adopt the District's fallback position, which is that even if there is an individual right to gun ownership, the right is so weak that the District's gun law doesn't violate it. This would also be a mistake. If a near-total ban on handguns—even for self-defense in the home, and bolstered by a prohibition on operable long guns—does not violate the language and intent of the Second Amendment, then nothing possibly could.
What the plaintiffs in Heller want the Court to do is throw out the D.C. law as unconstitutional, without necessarily saying what other kind of law might pass muster. This keep-it-simple approach has a lot going for it. The Court would place an outer boundary on the argument over the Second Amendment, saying, in effect, "Right now we're presented with an easy case, so we'll make an easy call: The government can't indiscriminately ban guns in the home. What else the government may or may not be able to do we'll decide some other time, when those cases make their way to us."
But that approach would leave some ambiguity about the Second Amendment's reach, which is why the Bush administration is uncomfortable with it. The administration worries that flatly overturning the District's law could leave federal gun laws—restrictions on machine guns, for instance—vulnerable to challenge, so it is asking the Court to declare the Second Amendment a kind of intermediate right, one that individuals hold in principle but that the government could often override in practice.
That idea seems strange at best, mischievous at worst. It asks the Court to enshrine a new kind of constitutional right: a "sort of" right, which makes a libertarian gesture but won't get in Washington's way. Think of it as Big Government constitutional conservatism. For the Bush administration, importing Big Government conservatism into the part of the Constitution designed to protect individuals from Big Government may be par for the course, but it would be a far cry from what the Founders had in mind for the Bill of Rights.
A fifth approach makes more sense: The Court would overturn the District's law and add an explanation. Without trying to lay out detailed standards, the Court would clear up confusion about the Second Amendment by unambiguously identifying the core right it protects as reasonable self-defense by competent, law-abiding adults.
Reasonable self-defense leaves room for firearms regulation. Exotic and highly destructive weapons could be restricted or banned, because no one needs a machine gun or grenade launcher for protection against ordinary crime. Felons, not being law-abiding adults, could still be barred from gun ownership.
Most of the government's gun laws, in fact, would have no trouble passing the self-defense test (as the Heartland Institute calls it in an amicus brief), because most gun laws are reasonable and don't leave people defenseless. As for the insurrectionary purpose of the Second Amendment, the Court could either repudiate it explicitly or pass over it in silence, consigning it to irrelevance.
The self-defense test is good policy, because it aligns the Second Amendment with modern needs and sensibilities. It is good law, because it rescues the amendment from being a dead letter or an embarrassment.
And it is morally sound, because it honors in law what gay people know in our hearts: Being forced into victimhood is the ultimate denial not only of safety but of dignity.
© Copyright 2008 National Journal
Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.