Does the 2nd Amendment provide a right to self defence in one's home? (D.C. suit)

Great Debates
#1

The Cato Institute has filed suit to overturn parts of Washington D.C.'s gun law. The plaintiffs are asking the federal court to prevent D.C. from barring the registration of handguns, banning the possession of functional firearms within the home, and forbidding firearms from being carried from room to room without a license. “This is not about carrying a machine gun on the streets,” says Levy. “It’s about having a garden-variety handgun in your own home.”

Background:

Cato has filed on behalf of some appealing plaintiff’s.

Who will win this case? Who should win?

The lawsuit is Parker v. District of Columbia and the full text of the complaint is available at http://www.cato.org/pubs/legalbriefs/gunsuit.pdf.

#2

IANAL but I think that the citizens are going to lose. Since 9/11 the government has been slowly chipping away at the constitution. The city will probably put the “anti terrorism” spin on it and make the plaintiffs out to be troublemakers. Personaly I think it is an unenforceable law and just there to make the public think that the city is doing something. How will the police know if you walk around your house with a loaded shot gun? With all of the illegal guns floating around D.C. already , I think the police have more important things to worry about than people who FOLLOW THE LAW and register their guns.

#3

I’m no legal expert, but I’d say that the recognition of a right to self defense existed in the U.S. before there was a Constitution, or even an official independent nation state here.

It seems it was recognized in the Declaration of Independence, since specifically outlined were the right to ‘life, liberty and the pursuit of happiness.’ Those things seem to this average citizen to include defending oneself from being murdered.

As the police are under no obligation to provide protection for an individual whose life has been threatened, and the Second doesn’t actually grant a right, it forbids the infringement of a right, I can’t seem to understand what grounds DC bases its law on.

I find it more than a little difficult to wrap my brain around the idea that anyone would want to deprive someone of the means to protect him or herself. Nothing I have ever read about those who wrote the DoI or the Constitution indicated they thought people should be defenseless, and I certainly can’t imagine telling someone they’ve got to take their chances against an armed gang, and do it bare handed.

If Ms. Parker got a gun, and she shot someone who tried to kill her… (sorry for borrowing from John Grisham)

If I were the police, I would not arrest her.
If I were the DA, I would not charge her.
If I were the judge, I would throw the case out of court.
If I were the jury, I would not convict her.
If I were the mayor, I’d give her a medal.

I think that regardless of whether it’s spelled out in the Constitution, people have a right to defend their own lives with the best means they can get. It seems absurd and cruel to try to prevent that.

#4

The working of it seems to indicate that it is a right that existed before the US Gov’t was formed and this amendment does not grant any right to the people, it forbids gov’t from denying it. This is in sharp contrast to the 1st “Congress shall make no law”. THis in effect establishes a right, also interestingly enough doesn’t restrict states or local gov’ts.

There is a changing tide when it comes to the 2nd and the words written can’t be denied forever. I think it’s time that all these antigun laws are overturned.

#5

I’m not sure this question warrants a thread of its own, but if it does, then I suppose one can be opened.

In the case of Ms. Parker, someone struggling to better a community who has been threatened by those with serious intent to do harm, would it be justifiable to break the law?

If so, would you (in her shoes) risk it and take your chances with a judge and jury if you did shoot an attacker?

Would that be civil disobedience?

#6

Oh, I don’t know about that. I think there’s pretty substantial evidence that some people will go on denying the introductory clause forever.

#7

Denying it?

Nobody’s denying it exists. It exists as all subordinate clauses do, only to add extra information to the independent clause, which stands fine on its own.

Of course there will always be lawyers who don’t understand that in English, a subordinate clause does not the meaning of the sentence make.

#8

Of course, there will always be firearms fans who don’t understand that in the law, courts are required to give effect to every word in a statute or constitutional provision.

#9

Better to be judged by 12 then carried by 6 I guess.

Marc

#10

Now now, minty green, surely even you can understand that giving ‘effect’ doesn’t mean giving more than is due.

It’s a subordinate clause that outlines one of the reasons such a right was important, not a dominant clause that defines the only circumstance the right is valid.

Or would you try to argue that since the Fourth only says ‘person, papers, and effects’ that a record stored in a computer about someone’s taxes is fair game without a warrant because the authors of the bill of righs didn’t include that?

#11

There will always be some who misinterperate (intentionally or not) the introductory clause but hopefully their numbers will shrink to irrelevance.

Even Cecil agrees:

#12

All hail Chief Justice Cecil.

#13

minty, since this is a subject you’ve study a bit, would you comment on the OP? It seems to me that the 2nd Amendment isn’t much related to self-defense, as I don’t think that self-defense means you get to have particular weapons to defend yourself. Also, is the DC City Council the correct entity to outlaw guns in DC, or is that something Congress needs to do?

#14

ISTM that two issues jump out:

  1. If the 2nd Amendment means anything, it ought to permit guns in the home for defensive purposes. That seems like the minimal amount of freedom to bear arms.

  2. D.C. statutes prohibit guns in the home de facto, although not de jure.

#15

Actually, Robb, I have no firm opinion about the merits of this lawsuit. That’s partially because I’m confused about who is responsible for the ban and what the precise legal status of D.C. is. The Second Amendment is a restriction on the federal government, not the states, but what the heck is D.C.? Sorry, I’ll have to let this one play out a while.

december:

I refer you again to the first 13 words of the amendment, which have nothing to do with “guns in the home for defensive purposes.” Given that 18th century firearms were worse than useless for defense against criminals, that kind of self-defense could hardly have entered anyone’s mind at the time. (Don’t you love original intent?)

“A burglar! My trusty firearm will dispatch the ruffian! Just as soon as I fill it with powder, pack in the wadding, insert a ball, ram the load home, prime the trigger, send a prayer to Divine Providence that it doesn’t explode in my hand, and hope against hope that the shot fires true.”

#16

I think those who wrote the Second Amendment would find the idea of questioning the right to defend one’s home so ridiculous that it wasn’t even considered.

#17

You have a good point, minty. Following your logic, the 2nd Amendment would allow the government to ban handguns, but not mortars, tanks and Daisy Cutter bombs.:eek:

Of course, it’s established law that the government may ban those weapons of war. So, I will stick with my point that if the government may ban guns in the home, then the 2nd Amendment gives no right to bear arms whatever.

#18

Libertarians–the party that sent free fake toy guns to Harlem.

No no no no no!!!

#19

Something occurred to me reading another thread in GQ [here](http://boards.straightdope.com/sdmb/showthread.php?s=a
4a3cfabc0115c1eed40500f4f330fd5&threadid=162334/) about Roe vs Wade.

Could the aspect of the law relating to carrying a gun from room to room be interpreted as a violation of the fourth amendment? It sure seems like it’s an invasion of your privacy to set such a limitation on gun ownership within the home of the gun owner. Am I way off base here?

#20

**

First, arms is a group of which firearms is a subset.

You seem to imply that the “original intent” would be that they had no intention to protecting a right to self defense because firearms of the time aren’t as useful as they are now in such a role.

Personally, I think it wasn’t even a consideration. The right to defend one’s home was so accepted and basic that it’d be considered ridiculous to debate on whether or not to specifically protect it. It’d be like specifically protecting the right to breath air.

And your logic seems to be faulty, at best, if you’re advocating this ban.

“Can we own firearms at home for self defense?” “No! The original intent was to provide for militias, and so only military weapons are protected!”

“Well, can we have military arms then?” “No, of course not, they’re much too dangerous!”

I’m not an expert in 18th century weapons - but there was a compelling reason that the loading had to be done immeadiately before firing (as opposed to well before)?