Topic: Gun Control
After Heller; The New Gun Control

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D.C. versus Heller could have been better, or worse. But we have some control over the prognosis.

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by Random Outlier
(libertarian)
Sunday, June 29, 2008

One trouble with being is a libertarian gun freak is that my betters in Birkenstocks are prone to simper over their chablis that we're a bunch of unwashed rustics, smelling of gunpowder as we amble around in battered Levis and  cruddy boots.

Funny, that's just about what I looked like Thursday when I ambled out of  the reloading shanty where I was concocting a special load for the 30-30 lever gun.

The idea is to get the old Winchester's power down to a level that permits severely punishing stray dirt clods at 30 yards or so, living out my John Wayne fantasy without endangering anything beyond my vision. But  I digress.

I left the challenge in order to check on what nine old folks had to say about all that, and, sure enough, five of them figured the Constitution sort of permits it even if I don't join the National Guard.

Eventually I checked Nolan Chart and found two of my colleagues also interested, Michael Stahl and Dusty Sensiba. Each offered a literate treatment of the Heller decision and its limitations, and with their kind permission I associate myself with most of what they had to say.

As to the court's internal politics, the 5-4 split is too close for comfort. I had hopes that, somehow, we might capture Souter -- if not to  join the majority at least to offer an independent dissent distancing himself from the Second Amendment as a militia-only protection.

The leeway Scalia's majority opinion gives the regulators is displeasing. I suspect he, Alito, Roberts, and Thomas needed the statist language to bring Kennedy aboard and decided it was worth the cost. It probably was.

Mr. Sensiba and Mr. Stahl expose the dangers of the exceedingly narrow   Heller ruling which endorses, even as it seemingly reduces,  government power to regulate gun ownership and use. It may not be out of place here to restate the banal, but excruciatingly true, "The power to regulate, like the power to tax, is the power to destroy."

But I still celebrate a  decision which makes it harder for the politicians to do so. Even a casual  reading of the reaction reveals that the disarming clique is in disarray. I'll drink to that. Confusion to our enemies.   

Item 1: Heller creates a new presumption that because the Second Amendment guarantees an individual, as opposed to collective, right, the burden of proof shifts to the government when it seeks to control the citizen's right to firearms. That recalls the laudible action of the court a few years ago when it reluctantly upheld the confiscators in the New London eminent domain case but told the states they were perfectly free to rewrite their laws -- indeed invited them to do so -- to protect property owners from the mall developers. (My state did in  perhaps its only rational legislative moment in this decade. )

Item 2:  Heller shifts the focus from Washington, D.C. to the states and the cities, a nod to the libertarian principle of localism.  If, as a result of that, the decision creates a massive new jobs program for lawyers as they seek to overturn vulnerable gun-control laws in every middlesex, village, and farm, it's  okay by me, even if I have to tolerate Sen. Schumer on a horse. "The NRAs are coming! The NRAs are coming."  

Item 3: Heller recognizes at a constitutional level that holding a weapon for personal defense is an inherent right and about erases  the nonsensical notion that the only legitimate purpose of the personally held gun is "sportive."  As a matter of law we no longer need deal with the silly debate stated, roughly: "RESOLVED: That while it is permissable to shoot a pheasant, it is immoral, and therefore should be illegal, to employ a firearm against the excitable miscreant  with a knife at your throat."

Somewhere in the Heller reactions a writer noted the incrementalism of gun-right erosion, and of course he is correct.  Even before the 1939 Miller case governments assumed power to deny your forefathers the right to be armed. In the cattle-drive heyday, Sheriff Earp collected the cowboys' guns at the Dodge City line, and American history records many other weapons bans, notably against non-white people.

That writer was surprised and aghast that the Heller decision was not 9-0 and that it preserved much of the "mother-may-I" element of possessing and using firearms.  I'm afraid  he misunderstood the way things necessarily work in a large and messy society. It took time to lose freedoms. It will take time to restore them.

We abhor the incremental erosion of  liberties --  a chip here and a chip there  -- and our emotional demand for instant cure for creeping statism is understandable. But cures are hardly ever instant.

In wiping out the most draconian of the nation's firearms bans, the court has handed us a tool, duller than we would like, but still a sturdy thing. It is now the task to hone it and use it.

So let's just keep a sharper eye on those folks in the state legislatures and over at City Hall, eh? 

©2008 Random Outlier, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Sunday, June 29, 2008
Last modified: Monday, June 30, 2008

The views expressed in this article are those of Random Outlier only and do not represent the views of Nolan Chart, LLC or its affiliates. Random Outlier is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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