Friday, February 08, 2008

The Heller Posse: A Roundup of Briefs: The NRA

The filing of "friends of the court" briefs in support of Heller in District of Columbia vs. Heller has begun in earnest in anticipation of Monday's filing deadline.

As I wrote in Heller: The Good Guys Shoot Back, With Effect,

D. C. vs. Heller has been called the most significant constitutional case of the year. It's easily that. It is also the most important Second Amendment case ever. If decided incorrectly, it may well over time affect our understandings of our rights under each of the others of the first ten amendments.
This is the first of a series to roundup and review what Heller's friends are writing.

The National Rifle Association will carry weight with the court, just because it is a leading voice on the issue. All in all, the Association did a good job. It put forward all of the arguments which we've heard and said through the years, as well as a few new items that will surely enter common usage.

Right up front, and proud of it, the basics:
The most significant effect of the District’s handgun ban is to effectively deny law-abiding citizens the freedom to exercise their common law right to self-defense, a right exercised by millions of citizens annually and one that is sorely needed in the District.
They do a great job of pointing out the basic incoherence of D. C.'s arguments.
Petitioners’ reading of the Second Amendment, under which a government could disarm the people by the expedient of disbanding the organized militia, is at war with the Amendment’s plain text and must be rejected.

More importantly, Petitioners’ argument confuses a goal of the Amendment with the means selected to achieve that goal. Even assuming for sake of argument that the Framers were contemplating only empowering the Militia as a check on the national government, they did not seek to achieve that goal by preserving for state governments the authority to organize and arm the Militia.
In addition to providing some authority over the militia to the States, the Framers sought to effectuate their purpose of guarding against federal overreaching by guaranteeing the right of the people to keep and bear arms. That they would approach the issue in this way was perfectly sensible. As an initial matter, while an oppressive federal government might seek to raid militia depots as the British attempted at Lexington and Concord, arms dispersed among the people would prove far more difficult to confiscate.
They add some fascinating historical items that don't show up in the NYT.
After the war, President Truman expressed the nation’s gratitude for the NRA’s contributions, stating: During the war just ended, the contributions of the Association in the matter of small-arms training aids, the nation-wide pre-induction training program, the recruiting of experienced small-arms instructors for all branches of the armed services, and technical advice and assistance to the Government civilian agencies aiding in the prosecution of the war—all contributed freely and without expense to the Government—have materially aided our war effort.
The historical foundation:
The risk of conditioning a right to keep and bear arms on federal regulation of the Militia was foreseen by George Mason, who warned “Congress may neglect to provide for arming and disciplining the militia * * * for Congress has an exclusive right to arm them * * *. Should the national government wish to render the militia useless, they may neglect them and let them perish.” 3 Elliot, Debates in the Several State Conventions on the Adoption of the Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 379 (2d ed. 1836). Thus, the Second Amendment guarantees a right to the people for a reason. However Congress elects to organize the Militia at any given time, “the right of the people to keep and bear arms” was enshrined in the Constitution to ensure that the people would always remain a bulwark for “the security of a free State.”
As many know, the NRA has used a theme over the years that the Second Amendment is the first protection of the others. Here they runs with that.
In arguing that strict scrutiny should not be applied to laws infringing rights guaranteed by the Second Amendment, Petitioners assert that Second Amendment rights are not “fundamental.” See Pet. Br. at 38–39 & n. 9, 43 & n. 11. In this, Petitioners could not be more mistaken. As the Framers made clear in the very text of the Second Amendment, they considered the right to keep and bear arms “necessary to the security of a free State.” Under this Court’s First Amendment jurisprudence, this explicit connection between the right to keep and bear arms and the preservation of democratic self-government compels a conclusion that the Amendment guarantees a “fundamental” right.

It would be fanciful to posit that the Framers, having recently fought a war of independence against oppressive British rule that relied upon the participation of citizen soldiers bearing personal arms, would not deem the right to keep and bear arms a right fundamental to democratic self-rule.
Of course, because it has trained so many officers over the past century, the NRA is close to our police forces, and they bring that strength to the factual presentation.
In seeking to justify the District’s laws, Petitioners and their supporting amici assert that there is a compelling government interest in protecting citizens from the criminal misuse of handguns and from firearms accidents. The laws in question, however, are not narrowly tailored to meet either purpose.
This will be a cornucopia of facts available to support arguments for decades to come, a real treat for numbers people.
To the extent the District’s handgun ban was intended to reduce murder and other violent crime in the District it has been a complete failure, disarming law-abiding citizens while leaving criminals as dangerous as ever. In 1975, the year before the District enacted its handgun ban, there were approximately 1,774 violent crimes committed in the District for every 100,000 residents, including 32.8 murders. While the violent crime rate dipped from 1976 to 1979, it was greater than the 1975 rate in 14 of the following 18 years, peaking at 2,920 violent crimes per 100,000 in 1993—nearly 65% higher than in 1975. Likewise, the District’s murder rate exceeded the 1975 rate each year from 1987 through 29 2005, and was commonly more than twice as high. In 1991—fifteen years after the handgun ban was enacted—the District’s murder rate, at 80.6 per 100,000, was 146% higher than in 1975.9 Perhaps most revealing, in 2006—three decades after the handgun ban was enacted—the District’s murder rate remained 29.1 per 100,000, only 11.3% lower than the 1975 rate of 32.8. The nationwide murder rate, on the other hand, fell from 9.6 to 5.7 per 100,000 during this period, a far greater decline of 40.6%. Murder rates in the District are not only far higher than in the nation as a whole (in 2006, the District’s rate was more than five times the national average), they are also greater than in most other comparably-sized cities. The District’s murder rate of 29.1 per 100,000 in 2006 was third highest among the 48 jurisdictions with more than 500,000 residents; only four other comparably-sized cities that year had a murder rate even as high as 20. All told, whatever the District’s expectations in enacting the handgun ban in 1976, three decades of evidence conclusively demonstrate that it has been an absolute failure. It has burdened the Second Amendment rights of the District’s residents to very little, if any, effect. It is long past time for the District’s experiment, at the expense of law-abiding citizens, to end.

Overwhelming evidence shows that firearms, including handguns, are the most effective and safe means of deterring burglars and other home invaders. See Ikeda et al., Estimating Intruder- Related Firearm Retrievals in U.S. Households, 1994, 12 Violence and Victims 4, 363 (Winter 1997) (according to CDC, an estimated 497,646 homeowners believed that they scared away an intruder using a firearm in 1994); Kopel, Lawyers, Guns, and Burglars, 43 Ariz. L. Rev. 345, 346 (Summer 2001). Victims who resist with a firearm are less likely than other victims to lose their property to a burglar. See Kleck & Gertz, Armed Resistance To Crime: The Prevalence and Nature of Self-defense with a Gun, 86 J. Crim. L. & Criminology 150, 151 (Fall 1995); Tark & Kleck, Resisting Crime, 42 Criminology 861, 882 (Nov. 2004). In the majority of cases, the burglar flees as soon as he discovers the victim is armed, and before a shot is ever fired. See Kleck & Gertz, supra, at 164 (explaining survey data showing 2.2 million to 2.5 million defensive gun uses annually in the United States, most without firing a shot, and the vast majority are handgun uses). Notably, aware of high rates of home ownership of firearms, burglars in the United States have a strong tendency to forego intrusion when homeowners are likely to be present. See Kopel, supra, at 346. By contrast, British and other European homeowners, who are generally subject to stricter gun control laws, are three times as often as American homeowners to be home when burglaries occur.

The need for functional firearms, including handguns, to defend oneself in one’s own home is no less today than when the right to self-defense was first articulated centuries ago. The threat of home invasion, for example, is ever present in the District and has become a problem of pressing concern.

In the face of such threats, and the lack of an enforceable duty under District law for the police to actually protect District residents, the need for firearms for self defense is even more important.
In summary, the notion that handguns can serve “no legitimate purpose” in the District is simply wrong. Law-abiding citizens in the District, like citizens nearly everywhere else in our nation, have a substantial legitimate need for functional firearms, including handguns, for self-defense. The District’s handgun ban and use and trigger-lock restrictions, on the other hand, serve no legitimate purpose and must be struck down.
This is a good solid brief from a good friend to have.

UPDATE: A PDF of the NRA brief is here. H/T to Coloradan.

The NRA also points to the contributions made to a safer society by its 50,000 instructors, a nice and welcome touch.

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