October 11, 2004

Defining “people”

By: Will Snyder

Washington, D.C. is becoming an All-American city. First the announcement was made that Major League Baseball would relocate the Expos to the capital. Then a few Congressmen said they would try to repeal the city’s gun ban, one of the strictest in the books. It seemed that D.C., with the exception of L’Enfant’s city plan, would finally wipe away its European tendencies.

Unfortunately, even if the gun ban was lifted, the city council could likely find some way to keep it in effect. After all, they’ve managed to get Marion Barry back into public service. And the reason D.C. would be able to keep guns out of the hands of city residents desperate for self protection is because of judicial inaction. Without a stringent definition of the Second Amendment, the courts have empowered states with numerous loopholes to water it down. And what many gun enthusiasts want to know is, does the Second Amendment mean firearm ownership is a fundamental individual right?

The rights of the Constitution have never been absolute. That’s a given. Libel sets a reasonable boundary for freedom of speech, and as far as I’m concerned, murder laws are reason enough not to misuse a firearm. But with a definition that is constantly in flux, some states have been able to turn the Second Amendment into a privilege.

Perfect examples of states responding to a gelatinous Second Amendment are bullet laws. Ammunition laws are the spur under the saddle of gun owners in anti-gun jurisdictions. Look at a map of the U.S. and take a guess which two states have the most nefarious ammo laws? Surprise, surprise, it’s California and Massachusetts. (New Jersey is a close third.) Those state governments allow their residents to own guns, but then impose license requirements, various fees, and transport regulations on bullets, essentially rendering gun rights useless. And that’s because governments at the local level don’t see the Second Amendment as an individual’s issue.

One strongpoint of the NRA’s pro-gun argument is noting the flaw of collective versus individual interpretation of the Second Amendment. The first case of the collective right theory (meaning the Amendment only applies to the militia) was Salina v. Blakesly announced by the Kansas Supreme Court in 1905. Since then the U.S. Supreme Court has ruled several times in favor of the militia and against individual protections. So, the second amendment only applies to its first clause, “a well-regulated militia” and not “the right of the people.” Funny, because under the First and Fourth Amendments “people” has repeatedly meant individuals. If the Constitution is meant to be interpreted on collective grounds, then shouldn’t a right freedom of “the press” only mean freedom of speech for an organized press operation? Worse, does it mean that fees should be imposed in order to write your opinion?

The old Western movie cliche, “a price on your head,” has unfortunately been turned on the innocent in New York City, where there’s “a price on your protection.” Gun laws there almost read like a tax code, with a page dedicated exclusively to fees. You can forget about handguns in most urban areas, and New York is no different. But for any long gun permit (that includes shotguns and rifles) citizens can expect annual or bi-annual fees that run in the hundreds of dollars. On top of that add stringent storage requirements (gun safes usually can’t be found at the Dollar General) and entry into a police database. When it’s all added up, gun ownership, a supposed right, is actually a small investment. While saving for your child’s education you might want to also look into mutual fund options that will help you save for a gun permit.

Charging for driver’s licenses, city water use, and sanitation is one thing. These are privileges of living in a certain area, but I’ve always interpreted the Bill of Rights as rights. And a right should be free of charge. Again, the inability of the courts to address these concerns leaves the door open for micromanagement.

One reason for the boondoggle of legal problems that guns create, is that no other amendment is correlated to technological advances the way the Second Amendment is. (Internet access is about the closest comparison, with the questions it raised on free speech.) Since so many constitutional experts love to bring the Founding Fathers into the fray posthumously, let’s do the same. It is perfectly reasonable to assume that no one in the Constitutional Congress foresaw automatic weapons or inner-city gangs. A thorny issue as well, is the idea that “arms” could include everything up to WMDs. Yet, the Founding Fathers did believe in the right to self-defense to a reasonable extent, reasonable enough to include it in their blueprint for government.

It is unlikely the rift between the Brady gun control crowd and the pro-NRA lobby will be healed. There is often very little middle ground, and the ambiguous rulings of the court empower both to believe they’re correct. Having grown up as a gun owner it’s difficult for me to understand the firearm control argument. Likewise, gun control advocates think I have a John Wayne complex. But we’re going in circles arguing for and against. The authoritative answer we need won’t be found in Congress diluting the country with more pro- and anti-gun laws. Like contestants in a spelling bee, both sides are looking for a definition to give them the right answer.

Will Snyder is a writer living in New York City.