Jim Castagnera: The Firearms Dilemma





[Jim Castagnera is the Associate Provost and Associate Counsel at Rider University.]

After the U.S. Constitution was completed, some of the founders felt that the document --- devised after the predecessor Articles of Confederation failed to provide sufficient central authority to keep the newly liberated colonies from one another’s throats --- gave the federal government too much power. The upshot of this fear was the Bill of Rights, i.e., the first ten amendments. During the ensuing 200-plus years, each of the ten has produced volumes of court decisions and scholarly comments. The Second Amendment is no exception.

Amendment number two 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.” What these few words really mean has been the source of considerable controversy, most recently on June 26, 2008, when a majority of U.S. Supreme Court justices declared a District of Columbia gun-control law unconstitutional. Justice Antonin Scalia, writing for the majority, stated, "In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense....”

One of the dissenting justices in this 5-4 decision, Justice John Paul Stevens, retorted that the court's judgment was "a strained and unpersuasive reading" which overturned longstanding precedent, and that the court had "bestowed a dramatic upheaval in the law." Stevens added that the Second Amendment was notable for the "omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense,” such as is present in the Declaration of Rights in Pennsylvania.

Observers on both sides of the gun-control debate contend that the decision will stimulate a lot more legislation and litigation. Some prosecutors express concern that wily defense attorneys will find ways of reopening cases, where personal possession of weapons was an important issue. Gun-control advocates predict that the decision will energize gun-rights advocates to challenge more and more federal and state gun-control laws. One police officer commented on NPR that with this decision America has entered the Age of Rambo.

The National Rifle Association argues that “guns don’t kill; people do.” True… but most people who kill, kill with guns. Living on the edge of a city which logs some 400 homicides a year, mostly deaths by gunshot, I often wish that Philadelphia had the laws in place to somehow get the guns off the streets. But, like every attorney worth his salt, I see the other side of the case.

Since Nine-Eleven, America has become increasingly more security conscious. In the face of the excesses of Abu Ghraib and Guantanimo, the Supremes have shown themselves to be on the side of due process of law, handing the Bush Administration one defeat after another regarding prisoners’ rights to fair and speedy trials. Meanwhile, airports have become fortresses and boarding a plane can involve stripping oneself of laptop, liquid toiletries, belt, shoes, jacket, metal prosthesis, and pocket change. The federal government has begun the building of a billion-dollar fence along our southwestern border to keep the Mexicans out. And we are embroiled in two wars, one of which undoubtedly was entered in the midst of a fog of lies, e.g., that Hussein had weapons of mass destruction and was in league with Al Qaeda. Last but not least, Congress appears about to enact legislation giving retroactive immunity to phone companies that cooperated in federal wiretaps since Nine-Eleven. All of the above suggest that on the scales of justice, civil liberties concerns currently are outweighed by national security considerations, and the Supreme Court may be the individual’s only true champion.

In “Casablanca” a German officer asks Rick if he can imagine the German army in New York City. Rick replies that there are some New York neighborhoods that are too dangerous for the Nazis to dare to invade. In “Armageddon: A Novel of Berlin” (1963), novelist Leon Uris made a similar point. He had one of his characters wonder out loud about how long the round up of Germany’s Jews by the Gestapo would have persisted had every Jewish man met his oppressors at the front door, pistol in hand, and taken at least one down with him. Echoing this point, some commentators on last year’s massacre at Virginia Tech have suggested that students and faculty should be encouraged to arm themselves.

While I don’t endorse that latter view, I can’t dismiss the Humphrey Bogart/Leon Uris argument that an armed populace might be a potent counterforce against government abuse of civil liberties, as well as --- ala Justice Scalia’s majority opinion in District of Columbia v. Heller --- a source of self-defense against criminals.

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