Gun Rights
A California trial court has just struck down a San Francisco ordinance banning gun possession within the city.
The city statute was deemed to be in violation of California state law, in particular the Penal Code, which states that no 'state entity' can require licenses or permits for firearms. On this basis, an outright ban of the type San Francisco passed was seen as beyond the scope of the law (Any interested legal-eagles can read the full decision here. Interestingly enough, the hearing judge is the grandson of Supreme Court Chief Justice Earl Warren!).
Now, if memory serves, we've never had a big Second Amendment discussion on this blog. Well, events have conspired to change that! What I'd like to get in the way of feedback from you is really two-fold:
1) What is your interpretation (professional or otherwise) of the Second Amendment? What rights does it entail and in which situations? Which restrictions are allowed?
2) Consistent with your interpretation above, what sort of gun ordinances do you favor in your (relevant) jurisdiction, if any? Why?
I'm more than willing to let the discussion on point "2" range pretty freely, since everyone's reasoning will be based on different experiences and statistics, but I would like it if point "1" responses are based on more than "The outcome I want is X, so that's my interpretation, too." Have at it!
posted by Joshua @ 4:36 PM
2 Comments:
1. The second amendment is tough for me. I hate guns for the damage they cause, for the way they turn schools into prisons, for the way they rip families apart and prop up gangs as a proud way of life in the parts of the country most in need of education. But I've also held guns and shot guns, and loved every minute of it. I wish I had access to a skeet shooting range. You'd never see me again. I've never been hunting, and I can tell you right now that I would hate the early-morning hours it involves, but I can still understand the appeal.
So I'm torn, even more so when you consider that nobody is (or at least should be) talking about kseet or rifle ranges or hunting when they talk about the second ammendment. As my brother told me when I was young, "The framers weren't trying to ensure that a man could go out and hunt for his dinner. I doubt that they would ever imagine that "right" could be threatened." No, the framers were setting out to provide a government which would be incapable of oppressing its citizens, and so to ensure that the citizens could hold their own, they wrote in absolute provisions for the pen in the first ammendment, and absolute provisions for the sword in the second. Now some free speech is "good" and some is "bad., just as some gun usuage could be characterized as "good" or "bad." The problem I run into here, philisophically, is that the best gun use is in reality probably value-neutral, whereas the worst is, you know, murder. And nobody dies from free speech. And cases of "bad" gun use are much more clear-cut in both intent and consequence than cases of "bad" free speech. Guns are a tool to kill people, pretty plainly and simply, more plainly in the way described by the Bill of Rights. So how to look at this one...?
2. I look at it as a metter where, if any federal or state legislation is made, it should be made on the basis of mandatory training and registration, to ensure safety and responsibility, but State and Federal government shouldn't interfere with local decrees. In my locality (NYC) guns simply aren't allowed. This is as it should be. In New York, you could be using your gun in your apartment to defend yourself and still kill/maim the person next door. That and the gangs would swiftly be out of control, as would everybody crazy and morally righteous enough to try to take them on by themselves. To live in NYC is to tacitly accept that stronger government is needed in order to survive and thrive. I imagine it's similar in San Francisco, but those living in Bakersfield would probably disagree. The city gun ban is in place because the grand majority of residents favor it. If New York State suddenly overturned it, choas would erupt in hundreds if not thousands of preventable deaths, to no good end. At the same time, they shouldn't institute a state-wide ban which wouldn't suit the needs of those living outside the city.
I fear the precedent that this line of thinking could bring to other rights, such as the idea that in one community, someone could be fined for blasphemy, because state and local laws didn't apply, but I'll take my chances. It's better than revoking rights at the national level. I especially hate the idea that, because of our strong army, the "well-armed militias" are unnecessary, mainly because I hate to imagine the day when people say, "Well, the National Press does such a good job, a free independent press is really irrelevent, isn't it? Much as I hate to admit it, sometimes freedoms must be traded for safety, but when this occurs, better it happen on a local, more representative level than on a federal one.
I practice tax law as a profession, but constitutional law as my hobby. I could write you a dissertation of what I believe the 2nd Amendment to protect, but I would rather point out what surprises me about your post. You start by affirming the 2nd Amendment right in (1) but then destroy it in (2). Would you be in favor of requiring registration of those that wish to exercise their right to free speech? Have you been trained and registered to a government standard to write the opinion you just wrote? Additionally, since NYC (where I grew up) is part of the United States, the 2nd Amendment applies there just the same as it applies everywhere else. There is no exception for densely populated areas.
I now live in VA where guns are relatively easy to obtain (to the ire of your Mayor). We have a dramatically lower crime rate, including violent crime, then across the border in the District of Columbia (and NY) where guns have been totally ban for a very long time. When we in VA changed our law and made it easier for Virginians to obtain permits to carry concealed handguns, those that opposed it claimed blood would flow in the streets, similar to your concern for NYC. It has been a decade since VA made the change and, rather than turning red, the streets have actually become safer, as crime in general, and violent crime in particular, has decreased steadily.
There is an appellate court case currently pending in DC that challenges the DC gun ban as unconstitutional and a violation of the 2nd Amendment. Hopefully they will reach the correct conclusion because though I am a law abiding citizen who is licensed to carry a concealed handgun in VA (requires training, a background check and application to a court), I have to avoid crossing the DC line in my travels because doing so would transform me into a felon.
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