Shotgun News, October 1, 2008, pp. 22-24

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The Heller Aftermath

The U.S. Supreme Court ruled in our favor: the Second Amendment protects an individual right. But the Court can make decisions—and yet opponents continue to drag their heels.

In Worcester v. Georgia (1832), the U.S. Supreme Court ruled in favor of the Cherokees in their legal struggle with the State of Georgia.¹ Congress and President Jackson weren’t happy with the Court’s decision, nor could they be. Democrats were in charge of Congress, the Georgia legislature, and the White House, and there was a racial minority whose land needed stealing. President Jackson is widely reputed to have said, “The Court has made their decision. Now let us see them enforce it.” And unfortunately for the Cherokees, the Court lacked the power to enforce the law.

The Cherokees had done everything that they could to integrate into white America society. They farmed. They were Christians. They had newspapers printed in the Cherokee language. They owned black slaves—just like their neighbors. But that wasn’t enough. They were soon driven off their lands to what is now Oklahoma, on what is called the “Trail of Tears” because so many Cherokees starved or died of exposure.

This wasn’t the first time that Democrats decided that they didn’t need to abide by the Constitution, or the Supreme Court’s understanding of it. In 1954, the Supreme Court ruled that racial segregation of public schools was unlawful. Unlike the later decisions, which compelled bussing and bizarre redrawing of school district lines, Brown v. Board of Education (1954) simply stopped the absurd situation where black kids and white kids were walking or taking buses past neighborhood schools—just because of the color of their skin. And yet this was too much for some Americans. In 1963, George Wallace, the Democratic Governor of Alabama, gave a speech in which he insisted that he was not going to follow the law: “In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny… and I say… segregation today… segregation tomorrow… segregation forever.”² It is somewhat amusing to see how a Democrat could define allowing kids to attend the public school closest to their home, regardless of race, as “tyranny.”

It looked for a few weeks after the Heller decision that we were going to get a repeat of this. I was rather hoping for the D.C. mayor to give a speech promising: “handgun bans today… handgun bans tomorrow… handgun bans forever.” When Dick Heller, who had filed the original suit, tried to register his handgun (as the law requires), D.C. police insisted that he could not, because he was trying to register a “machine gun.” What? Well, under D.C. law, a machine gun doesn’t just include weapons that fire more than one round per trigger pull—it also includes any gun that can fire more than twelve shots without reloading.³ You know, like a Browning Hi-Power, a Beretta 92, most of the full-sized Glocks, and vast numbers of other guns. Aren’t you cool? According to the D.C. government, you now own a machine gun!

The good news is that after a bit of squabbling, reality finally started to hit, and as I write this article, the newspapers are showing a picture of a smiling Dick Heller, walking out of the D.C. police headquarters with his gun registration⁴—meaning that it is now legal for him to have a handgun in his home for self-defense. It was a struggle, and there are still a fair number of hoops required to register a handgun in D.C., but it is at least now possible. We’ll work on getting rid of the sillier provisions of their gun law later.

What is quite impressive isn’t just what happened in D.C. It is what happened in cities with similarly restrictive handgun bans. In some cases, the threat of lawsuit was enough to get them to repeal. In other cities, the government didn’t wait for a suit. Evanston, Illinois, repealed their handgun ban in response to the threat of suit, as did Morton Grove and Oak Park, also in Illinois.⁵ What makes this so remarkable is that the Heller decision didn’t strike down state and local handgun bans; it only ruled that the federal government couldn’t ban handguns. Yet most people with half a brain can see that the same reasoning that imposes most of the rest of the Bill of Rights on the states and local governments, will apply to the Second Amendment as well—and they don’t relish wasting public funds on a suit that they expect to lose.

I referred to these elected officials as having at least half a brain. How should we characterize the elected officials who are still fighting to preserve their absurd gun control laws? Chicago, for example, which has effectively banned all new handguns since 1981, by refusing to register them, is still fighting a lawsuit filed by Alan Gura. (Gura was the lead attorney in the Heller case.)⁶ San Francisco has been trying to enforce a ban on possession of guns in public housing projects for some months, and isn’t backing down.⁷ This particular ban is especially outrageous, and hits close to home. Someone who helped with research for my last book is living in a San Francisco public housing project. (He is dying of AIDS—and he has few housing options.) Shortly after the new policy was announced, he emailed me a copy. It not only prohibits him from having a gun in his home—it prohibits having a water pistol in his home. Why, you ask, would you prohibit a toy? Because the lunatics that run San Francisco city government are trying to eliminate a culture of violence—and even a water pistol, to their way of thinking, is part of that culture of violence.

Justice Scalia’s opinion in the Heller case was very clear that the Second Amendment did not invalidate laws prohibiting convicted felons from possessing guns. The amicus briefs submitted by our side, to the extent that they discussed this subject at all, agreed: convicted felons may be prohibited from possessing guns. But in the weeks after Heller, criminal defense attorneys across America decided to give it a try, arguing that felon in possession laws violated the Second Amendment. Judges overwhelmingly pointed to Scalia’s remarks, and rejected the claims.

If you had asked me, six months ago, whether there was any problem with felon in possession laws, I would have thought the question was pretty silly. I would have agreed that there are too many felonies: that many crimes have been made into felonies that are properly misdemeanors. Should non-violent crimes such as turning back a vehicle odometer prohibit someone from owning a gun? This seems excessive. I would have agreed that there is a strong argument that if a person was convicted of a felony thirty years ago, but has otherwise been an upstanding member of society, perhaps it doesn’t make sense for this person to remain prohibited from gun ownership. But I would not have disputed that the government has the authority to disarm felons. After all, felonies in 1791, when the states ratified the Second Amendment, were capital crimes. Not just murder and rape, but even burglary (breaking into an unoccupied house or business to steal property) was a capital crime. My theory was that if the government had the legal power to execute you for a crime, prohibiting you from owning guns for life was a lesser punishment, and within their authority.

As I have been looking into the question a bit a more deeply, I have been astonished at what I have found. It appears that the first law prohibiting convicted felons from owning a gun was passed in 1923, unsurprisingly, by California,⁸ and upheld the following year by the California Supreme Court.⁹ There might well have been laws before that point prohibiting convicted felons from owning guns, but no one that I know has been able to find one. For more than a century, American governments released convicted felons from prison, and felt no need to prohibit them from owning guns. Why?

Let me be clear on this. I think there is a very strong public policy argument for prohibiting convicted violent felons from owning guns. If someone commits murder, rape, or robbery, it is not a particularly odd idea that such a person is likely to be dangerous to others, and allowing them to possess a gun is certainly a bad idea.

I recognize that not everyone agrees with me. I have had more than a few thoughtful gun rights activists suggest that if someone is so dangerous that they shouldn’t be allowed to have a gun, perhaps they are so dangerous that they shouldn’t be out on the street. There’s some merit to this idea, because unless we adopt extraordinarily restrictive gun control laws, there seems to be no way to disarm convicted felons, except by keeping them in prison. Still, I think most people would shudder at the cost of keeping every convicted felon in prison for life.

That’s a pragmatic argument for felon in possession laws. Part of what has gotten America in the state that it is in today is that too many judges make decisions based not on what the Constitution says, or what its original meaning was, but based on what they think the Constitution should say. If we want the courts to respect the original meaning of the Second Amendment, we need to respect original meaning in a consistent and honest way. At this point, the evidence suggests that the Framers did not intend to disarm people who had served their sentences, and been released. I would love to see evidence otherwise; in the meantime, those who are challenging felon in possession laws have an important point, which I suspect the Supreme Court is going to have to deal with one of these days.

Still, I’m not putting any effort out to help get felon in possession laws struck down. If the Supreme Court were to rule what the historical evidence suggests—that once a felon has completed their sentence, that their Second Amendment rights are restored—it is going to cause a firestorm of negative reaction. I am a lot more concerned about protecting the rights of law-abiding adults to keep and bear arms—and that’s why my primary focus these last few weeks has been on the Fourteenth Amendment question.

You may recall from Government class in high school that the Fourteenth Amendment extends most of the Bill of Rights to the states. The states may not deny a person his First Amendment rights to freedom of speech, of the press, of religious worship. The states may not deny a person protection from warrantless searches, or bail (except in capital crimes). But there are a number of protections of the Bill of Rights that the Supreme Court has not yet extended to the states—and the Second Amendment is one of them.

Why? This is a long, involved story—one that I may inflict on my readers in another column. It is sufficient to say that a number of lawyers and historians are now working on preparing the legal arguments for why the Fourteenth Amendment was intended to apply the Second Amendment to states and local governments. The historical evidence in support of this position is actually stronger than the evidence we used to win the Heller case.

If we win such a case, then a great many state laws will almost certainly fail. What about New York’s restrictive licensing of handguns? It would certainly be struck down. Ditto for Massachusetts. The current discretionary concealed handgun licensing laws of New York, California, Massachusetts, New Jersey, and Maryland, would certainly be struck down.

I would like to think that the assault weapon bans of California, New York, New Jersey, and a few other states, would also be struck down—but I’ve learned that the emotional reactions of judges to such weapons often take precedence over logic, evidence, and facts. There is a real possibility that the courts might strike down complete bans on assault weapons for being too restrictive, requiring these states to replace the bans with a less restrictive licensing system.

All of these possibilities, however, are likely to be foreclosed if President Obama gets to appoint justices to the Supreme Court. I rather doubt that my readership includes many who were taken in by Obama—but my next column will emphasize how critically important it is for gun owners to elect McCain, who has been generally a friend to gun owners—and defeat Obama, one of the few Democrats that would make gun owners beg for Hillary Clinton as an alternative.

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2006), is available in bookstores. His web site is http://www.claytoncramer.com.