On Tuesday, unbeknownst to itself, the Supreme Court will hear 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 in this space 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.
12 Comments for “It’s Self-Defense, Stupid”
posted by Bobby on
” because no one needs a machine gun”
—-Hold on, there are 50,000 people authorized by the federal government to own machine guns, they’re not members of the military, they just went through an extremely complicated process, and not one of them has commited a crime. So I take exception with your machine gun thing.
I do hope the self-defense argument will prevent and SCOTUS will right a wrong that has affected thousands of vulnerable Washington DC residents. This is not europe, you shouldn’t have to be a cop or a celebrity to carry a gun.
Power to the people!
posted by Jason on
Bobby, your comment doesn’t make sense. You might need to elaborate more. Jonathan said “because no one needs a machine gun or grenade launcher for protection against ordinary crime”
I don’t see how pointing out that 50,000 people have gone through the proper channels and committed no crimes establishes a “need”. It merely establishes a number. We don’t know the motives of those 50,000 people, and I have a hard time believing they “need” a machine gun for protection against ordinary crime. For example, some could be collectors, or involved in the manufacture of machine guns.
Please elaborate and perhaps we’ll understand.
posted by Richard J. Rosendall on
A lot of people take positions on constitutional questions based purely on their personal preferences. But as a member of a small minority, I think that approach is foolhardy. On campaign financing, for example, my personal inclination would be to do a lot of regulation for the reasons that, say, Barney Frank would give. I certainly agree with Barney a lot more than I do with Mitch McConnell. But I think that Mitch McConnell and George F. Will are right constitutionally, that limiting what can be spent in a political campaign constitutues unconstitutional limitation on First Amendment freedom of speech.
Similarly, I have no interest in owning a gun, and I have often joked, as a resident of 17th Street in the Dupont Circle neighborhood in response to Pink Pistols activism, that “Gee, that’s all we need–a bunch of drunken queens coming down the street after closing time with guns.” But here too I think my personal preference runs up against the constitution, for reasons that Jon states. DC’s gun ban is overly restrictive. For me that is an inconvenient truth, but I think it is true nonetheless.
posted by Brian Miller on
I have a hard time believing they “need” a machine gun for protection against ordinary crime.
Sort of like a right-wing conservative has a difficult time believing some gay men “need” to have hundreds of different sex partners a year.
Would you put everything up to majority vote based on someone else’s assessment of what you “need?”
There be dragons.
posted by Jason D on
Brian,
I can be a little slow, so I’m not sure what you’re getting at:
“Sort of like a right-wing conservative has a difficult time believing some gay men “need” to have hundreds of different sex partners a year.
Would you put everything up to majority vote based on someone else’s assessment of what you “need?”
There be dragons.”
I haven’t had hundreds of different sex partners, nor do I want to. Not that it’s any of your business, but I found out, despite my efforts to the contrary : promiscuity just isn’t for me.
I’m also not sure how that’s analogous to owning a machine gun. If regular handguns are like a surgeon’s knife, a machine gun is like a bulldozer. Does the average crime victim find himself attacked by dozens of assailants at once, nevermind the collateral damage to property and bystanders that are inevitable with automatic weaponry?
Seriously, is any part of the country that bad that people need machine guns and grenade launchers? If so, don’t you think giving people access to bigger firepower is only going to escalate whatever issues are leading to that level of danger? Sounds like something the national guard should be handling, not average people.
And again, how is self defense related to sexual activity?
posted by Brian Miller on
I haven’t had hundreds of different sex partners, nor do I want to. Not that it’s any of your business, but I found out, despite my efforts to the contrary : promiscuity just isn’t for me.
I’m also not sure how that’s analogous to owning a machine gun. If regular handguns are like a surgeon’s knife, a machine gun is like a bulldozer. Does the average crime victim find himself attacked by dozens of assailants at once, nevermind the collateral damage to property and bystanders that are inevitable with automatic weaponry?
It’s analogous for a simple reason.
YOU think people shouldn’t be able to own machine guns, because they don’t need to, and you’re going to save lives by banning them due to fewer gun deaths.
Conservatives often think gay men shouldn’t be able to have sex, because they don’t need to, and they’re going to save lives by banning it due to fewer HIV transmissions.
Both are centrally-managed nanny-state approaches where some people are deciding “what’s best” for everyone, and in the process, robbing individuals of their own right to decide for themselves what’s best for them.
posted by Bobby on
Jason, laws aren’t always about needs.
Nobody needs to read controversial books, nobody needs to smoke, nobody needs to play Grand Theft Auto, but different laws allow you to do those things, because even if others don’t think you need to, your individual needs are the ones that matter, not society’s needs.
I know lots of conservatives that say nobody needs to be gay, nobody needs to have gay sex, nobody needs to have sex before marriage.
Humans have that fascist impulse to tell others what they need and don’t need. I prefer to let the individual make his or her own decisions.
Now, do I need a machine gun? Well, if 20 or 50 or 100 neo-nazis decide to attack my property at the same time, a handgun with 12 bullets may not be enough, I might not even have time to reload. I could hire bodyguards, but they can cost from $50,000 to $150,000 a year, sometimes more, besides, I don’t have that kind of money.
I do think that if social order where to fall, if citizens where rioting in the streets, invading businesses and the government was collapsing, having a machine gun might be useful.
I point out the 50,000 registered machine gun owners to prove that legal ownership of powerful weapons does not create problems.
posted by Jason D on
“YOU think people shouldn’t be able to own machine guns, because they don’t need to, and you’re going to save lives by banning them due to fewer gun deaths.
Conservatives often think gay men shouldn’t be able to have sex, because they don’t need to, and they’re going to save lives by banning it due to fewer HIV transmissions.”
Sorry, brian, this just doesn’t hold up. The “need” argument you’re employing doesn’t hold up.
Why? A gun is an object, a possession.
Sex is an action, not a possession.
With machine guns we’re talking about defense, what’s too much, what’s too little: it’s not an end to defense altogether. It’s also a life and death argument. With a gay sex ban, it is an end to sex altogether. It is not life and death, merely livelyhood.
Regulating personal sexual interactions between consenting adults is nowhere close to regulating gun ownership. If you have difficulty discerning the difference between an AK-47 and a man — you really have no business talking to me about ethics.
No one is born with a gun in their hand. I’ve been gay forever. It’s with me morning noon and night. A gun must be acquired and can be confiscated: my sexuality cannot.
You cannot toss them into the same wash and expect them to come out the same. It’s like putting dry-clean only in with your whites.
But let’s say they are analagous. Why stop at machine guns? Shouldn’t I be allowed to decide for myself if I need a nuclear warhead? Perhaps to properly defend myself, I need anthrax, too. They say the best defense is a good offense.
If you say “no” or “that’s ridiculous” to these arguments it means two things:
1) You’re right, they are ridiculous, I was exaggerating to prove a point, that point is…
2) You agree that a line exists between what is “necessary” and what is “too much”. Your post suggests you don’t agree that a line exists, if the average person should not have a nuclear warhead — then you agree it’s okay for people to decide “what’s best” for everyone. We may quibble over where that line should be, but don’t try to tell me you don’t believe there should be one.
posted by Bobby on
“Sex is an action, not a possession.”
—Sex is a choice, just like guns. Some people choose not to have sex.
“With a gay sex ban, it is an end to sex altogether. It is not life and death, merely livelyhood.”
—What’s the name of the republican senator? Kern? She said that gay sex was more dangerous than Islam and terrorism. Consider gays who bareback, are they not killing people? At least indirectly through disease? In fact, in most states it’s a crime for an HIV+ person not to inform his partner of his status.
“Regulating personal sexual interactions between consenting adults is nowhere close to regulating gun ownership.”
—It’s all about FREEDOM, get it? Sexual freedom, self-defense freedom, speech freedom, religious freedom, it’s all connected.
“No one is born with a gun in their hand. I’ve been gay forever. It’s with me morning noon and night.”
—Yeah? Well plenty of people still think it’s a choice. If you only fight for the freedoms you care about, don’t bitch when others fight against your freedoms. I wish people took George Orwell more seriously, then people would realize that in the fascist states, both sexuality, firearms, and all kinds of freedoms are denied. So far the europeans seem to accept gays, but if they ever change their minds, gays will have nothing to defend themselves against the state.
“A gun must be acquired and can be confiscated: my sexuality cannot.”
—In Saudi Arabia and Iran, at best you’d be whipped, at worse you’d be decapitated. Sexuality can be controlled through intimidation.
“2) You agree that a line exists between what is “necessary” and what is “too much”. Your post suggests you don’t agree that a line exists,”
—No, I draw the line at machine guns. What most libertarians and freedom fighters believe is that the government should never be more powerful than the people. It is the government that has to fear the people and not the other way around. That’s why in England the government can put cameras all over the place, demand a national ID, and engage in all kinds of controversial measures (including prohibiting people from carrying knives). Because neither Labour nor the Torries are afraid of the average brit.
In Holland, gays are being gay bashed, perhaps because gun control has allowed bands of muslim gangs to maim with impunity.
If gays where into guns the way they’re into techno, our community would be invincible. Even gay bashers would end up admiring us, thinking ” if those queers are so strong and so willing to fight back, maybe they’re not such bad people after all.”
posted by Richard on
I doubt very much that the highest court in the land is going to find a constitutional right of citizens to own a machine gun.
They might find some sort of legal right for adult, lawful and responsible firearms, but the Supreme Court are not libertarians and neither is the Constitution.
posted by libertymad on
Anti-gun laws are harmless. That’s why mass murderers choose no gun areas to shoot everyone on sight.
posted by Jason D on
Bobby,
“No, I draw the line at machine guns. ”
so there you go, we both agree to limits, lines, we just don’t agree to where they should be.