Angst from the Brady Bunch

Today, I had actually planned to write about something other than the Federal Appeals Court ruling striking down the Washington DC gun ban. So much is being written about it on the gun forums and blogs, by people who have so much more knowledge about it than I do, that I figured I'd leave it to them, at least for the moment, and write about something else.

Leave it to the Brady Bunch to lay waste to my best laid plans. Their "news" release yesterday somehow managed to cram into two short paragraphs enough effluvia to overwhelm a major city's sewage treatment infrastructure (say what you want about Helmke--you have to admit that he's efficient). Anyway, I simply could not resist the urge to respond.

The 2-1 decision of the U.S. Court of Appeals for the D.C. Circuit in Parker v. District of Columbia striking down the District of Columbia’s handgun law is judicial activism at its worst.

Judicial activism!?! Perhaps I can be forgiven for momentarily wondering if Paul had somehow developed a sense of humor, or at least an appreciation of irony. That, of course, is not the case--Helmke was not making a joke, and is really arguing that a court decision that says that the Second Amendment means what it says is "judicial activism." He would have us believe that twisting the Bill of Rights into a meaning that supports a desired (by him) outcome is the proper role for judges. It's a strange world he lives in.

By disregarding nearly seventy years of U.S. Supreme Court precedent, two Federal judges have negated the democratically-expressed will of the people of the District of Columbia and deprived this community of a gun law it enacted thirty years ago and still strongly supports.

The "nearly seventy years of U.S. Supreme Court precedent" Paul accuses the judges of "disregarding" is actually nearly seventy years of silence from the Supreme Court on Second Amendment issues. Helmke would apparently have us believe that since 1939, the Supreme Court has repeatedly ruled in favor of the "collective rights" interpretation of the Second Amendment. Not so--the Supreme Court has not heard a single case dealing specifically with the Second Amendment since United States v. Miller, in 1939.

Interestingly enough, by the way, United States v. Miller in no way validates the "collective rights" interpretation of the Second Amendment. The decision did indeed state that prosecuting the defendant under the National Firearms Act, for his possession of an unregistered sawed-off shotgun, was not in conflict with the Second Amendment. However, this decision had nothing to do with a mythical "collective right"--it was based on the Court's (erroneous) belief that a sawed-off shotgun would not serve as a useful militia weapon, and its possession is thus not protected by the Second Amendment.

If one thinks about that, it becomes rather startling that civilian disarmament advocates want to talk about U.S. v. Miller at all. The gun ban lobby routinely singles out a class of firearms (be it so-called assault weapons, .50 caliber rifles, etc.) for attack, "because it has no sporting use, and is meant for the battlefield," and thus should be banned. This completely ignores the fact that Miller's Second Amendment defense failed precisely because the Court believed his weapon had no utility on the battlefield. That's right--by the U.S. v. Miller precedent, defending the right to possess any given type of weapon depends not on proving it has a "sporting use," but on proving that it has a military one. Forget bans of so-called "assault weapons" and .50 caliber (or larger!) rifles, never mind restrictions on fully automatic weapons--ownership of these types of arms is precisely what the Second Amendment is intended to protect.

It would seem that Helmke and his allies would be better served trying to make us forget U.S. v. Miller--not pointing to it as justification for draconian gun laws.