Because most philosophies that frown on reproduction don't survive.

Tuesday, March 04, 2008

Laurence Tribe on "Sane Limits"

Constitutional law professor Laurence Tribe has an editorial in todays Wall Street Journal on the case regarding Washington DC's total handgun ban which will be coming before the Supreme Court shortly. His conclusion (if that's not too strong a word) is that the second ammendment does indeed protect some sort of individual right to bear arms (as opposed to the "collectivist" view, which holds that this merely protects the right of each state to maintain the National Guard) but that the court must refrain from overturning the ban based on a fully indivial interpretation because that would (in his mind) suggest that almost no limits could be placed on said individual right.
It is true that some liberal scholars like me, having studied the text and history closely, have concluded, against our political instincts, that the Second Amendment protects more than a collective right to own and use guns in the service of state militias and national guard units. Opponents of the District's flat ban on handgun possession have cited my words to the court and in newspaper editorials in their support.

But nothing I have discovered or written supports an absolute right to possess the weapons of one's choice. The lower court's decision in this case -- the D.C. Circuit Court of Appeals found the District's ban on concealable handguns in a densely populated area to be unconstitutional -- went overboard. Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms.

For the Supreme Court to go any further than this in overturning the lower court's decision -- for it to hold, for instance, that no firearms ban could violate the Second Amendment unless it were to prevent states from organizing militias in their collective self-defense, as the District appears to urge -- would gratuitously fan the flames of doubt about the court's commitment to core constitutional principles, and would save no lives in the process.

Equally foolish would be a decision tilting to the other extreme and upholding the lower court's decision simply because the right to bear arms is, judicial precedent to the contrary notwithstanding, a right that belongs to citizens as individuals. Such a holding would confuse the right to bear arms with a right to own and brandish the firearms of one's choosing.
Now, professor Tribe does something rather mischievious here in suggesting that if the total ban on handguns is overturned, there will thus be a right to "brandish the firearms of one's choosing". If he's going to talk about gun laws, he ought to be (and in his more considered moments doubtless is) aware that it is illegal even in areas with very open gun laws and concealed carry laws to branding the firearm of one's choosing. such brandishing is classified as "disturbing the peace" and gets the brandisher taken to jail and the gun confiscated.

I think he also errs (and shows a certain unfamiliarity or lack of care about gun use) when he says, "Under any plausible standard of review, a legislature's choice to limit the citizenry to rifles, shotguns and other weapons less likely to augment urban violence need not, and should not, be viewed as an unconstitutional abridgment of the right of the people to keep or bear arms."

What reasons might a citizen reasonably want to own guns for? Well, according to the constitution, in order to protect against tyrrany. For fighting against one's own government, the AK-47 is certainly traditional, though any weapon which is semi-automatic, a fires fairly small cartridge (and thus has low recoil), and possesses the capacity to function reliably with little maintenance will do. Still, though it might be fun to own an AK some day, I don't think this should be the priority assigned in what we make sure citizens have readily available. I have it in me to hope that the time when we are forced into resisting our own government by force of arms is rather distant.

Generally, it's argued that citizens mostly have the right to use guns for sport: hunting, target shooting and even (according to Senator Obama) fishing. Hunting requires a rifle or shotgun. Target shooting (especially if done at an indoor range in the city) is at least as often done with handguns as with rifles. I'm not clear how you fish with a gun, other than shooting fish in the proverbial barrel.

Honestly, though, if I lived in DC, one of the reasons I would have near the top of my mind would be potentially using a gun to protect myself and my family in our home. In the close confines of a house or apartment, a handgun is much more maneuverable than a long gun. Handguns also fire larger, slower bullets which in most cases will not travel through walls and injure innocent people three apartments away. (If you shot at an intruder in your apartment with a deer rife, you could easily kill someone several several apartments away.)

So there's definitely a reason aside from concealment (which is generally illegal without a license anyway) that people want to be able to own handguns in a place like DC. Dr. Tribe seems either not to know this, or perhaps to have allowed his political instincts (which he has stated oppose the individual ownership of guns) to overcome his ability to think clearly about the issue.


Anonymous said...

If you shot at someone with a .22 you could injure or kill a person next door in many, if not most, apartment complexes built in recent years. An inch of sheetrock would not slow down anything more than a BB gun, maybe a pellet gun.

Darwin said...

Your average apartment wall will consist of (at a minimum) two sheets of drywall (0.5 to .75" thick) with 2x4 studs every couple of feet. I'm not 100% on how a high velocity .22 LR round would behave (especially if it weren't a hollow point) but hand gun rounds tend to be heavy and slow moving, being designed for "knock down" power rather than velocity and penetration.

A hollow point handgun round will generally "mushroom" out to a size somewhere between a nickel and a quarter after going through two layers of drywall, and in the process expend a lot of its energy. So long as you're not using some insane sort of hand cannon, two walls will stop just about any handgun bullet.

Depending on what sort of bullets were used, that would probably stop a lot of rifle bullets as well.

The real advantage of handgun over rifle in regards to self defense is that they're easier to handle at close quarters.

Anonymous said...

That is what I said, 1" of drywall. I have shot just about type of gun that is legal and I have shot them at just about every commonly occurring piece of debris found around a farm. A .22 would still have plenty of velocity to cause harm after traveling through an 1" of drywall. The point is that few people would be shooting a .22 in this type of situation. No self-respecting gun dealer would sell a .22 to a person looking for a gun to use in self-defense.

A note, just down the road is a young girl who was shot in the head by a stray .22 while playing in her backyard. She is in a unresponsive condition. She likely will not recover. The sheriff still can't locate the source on the bullet.

Anonymous said...

Actually, most hollowpoint handgun bullets will not mushroom going through sheetrock. Hollowpoints expand through hydraulic pressure (they require a fluid to expand). A solid material like sheetrock is more likely to plug the hollowpoint cavity, causing it to be less effective when it hits, but also causing it to keep going farther.

Interestingly, a small caliber high velocity rifle bullet (like .223 Remington) is more likely to disintegrate when it hits sheetrock. The bits will still be moving fast, but they should have less energy to cause harm.

The biggest disadvantages of this type of rifle for home defense are size and muzzle blast. It can actually be superior in both stopping power and reduced overpenetration.

God bless!

Darwin said...

I believe the problem with hollow points and drywall is often that you end up with compressed drywall in the hollow, and the bullet then acts like a solid round.

If I owned a centerfire handgun (I don't; I have a .22 pistol and a variety of rifles) that I had ambitions of using for self defense, I'd keep it loaded with something like the Glaser Safety Slugs, which consist of a jacket filled with small shot designed to break up completely on impact. This both means they impart all their energy quickly without penetrating too far. They're specifically designed not to go through walls.

As it is (living in suburban Texas) I'm not terribly worried about using my guns for home defense. I keep a clip of hollow points in the case with my .22 pistol -- but the case is padlocked and lives on a high storage shelf, so it's not exactly quick to access.

A note, just down the road is a young girl who was shot in the head by a stray .22 while playing in her backyard.

This is the sort of thing that gives me fits when people talk about shooting at birds and such with a .22 -- oft times with no thought about where that bullet is going to head if they miss. Guns should never, ever be fired if you won't know what's down range of you and what will stop the bullet.

Patrick said...

Sorry to interrupt the gun talk, but I'm not sure about your critique of Dr. Tribe. He doesn't here deny the possibility that a law-abiding citizen might have good reasons for preferring a handgun to other firearms, and I don't think you deny that there are also reasons why citizens might collectively prefer that nobody have access to handguns. (Whether the government can effectively prevent the distribution of illegal handguns is, of course, another question.)

Just because the government might have the authority and good reason to prohibit something, doesn't mean that there aren't legitimate uses that will get proscribed as well. The law can't be perfect.