06/30/08 – Brian Doherty – The Scott Horton Show

Alright y'all, welcome back to Anti-War Radio.
Our first guest today is Brian Doherty, he's the senior editor at Reason Magazine, he's the author of This Is Burning Man, Radicals for Capitalism, and is working on a new book, Gun Control on Trial.
He has an article in the LA Times from just the other day, the gun rights fight isn't over, about the recent Supreme Court decision in the case of District of Columbia vs.
Heller.
Welcome back to the show Brian.
Scott, it's great to be here.
It's good to have you on.
Very interesting decision the other day, and interesting article you wrote about it.
Let me try and cheat and figure out if we can make this about foreign policy just a little bit so that we fulfill the technicality and we can run the archive at AntiWar.com.
I just read Chris Hedges' book, Collateral Damage, and one of the things in that book, it's just the point of view of the soldiers, telling about their day-to-day lives there as soldiers in Iraq.
And one of the stories was about the gun control laws, I think in Mosul or something, and how one day the law was, well you can have an AK, and then the next day the law was, well you can have an AK, but you can only have it at your house, you can't leave the house with it.
And then the next day the law would change, and the next day the law would change again, and here are our American soldiers and Marines over there acting as the international ATF, and they can't even make up their mind from one day to another whether the Iraqis are allowed to have guns or not.
They can't even make up their mind one day to another whether an Iraqi with a gun is automatically a threat to them, or whether that's just an average guy trying to get by in the world, or what.
You have innocent people shot, you have home raids, and all these things based on these kind of silly laws about not how guns are used, but how they're possessed.
Sure.
You know, I wish I could say that this Supreme Court decision would mean that that situation you just described in Mosul could not happen in America, but unfortunately the decision didn't go that far.
I would say it was a good decision for people who believe in gun rights, but it was good in a very limited way, and almost the best thing you could say about it is if it had gone the other way, that is if the court had declared that there was no individual right to possess arms enshrined in the Second Amendment, that would be even worse.
But they did the good thing, they did the right thing in the narrowest way possible.
Basically the only kind of gun control that this Supreme Court decision in Heller sort of took off the table is a complete ban, which is the law that was at issue.
I'll sort of set up what the case was about if people haven't been following it.
Washington, D.C. since 1976 has completely banned having a functional firearm in your home.
Handguns, you can't register them, you can't own them unless they're grandfathered in from having had them before 1976.
Rifles and long guns, you can register them, you can own them, but there's also a regulation that says that at all times, with no exception for self-defense use, your rifle and long gun have to be either disassembled or unloaded and trigger-locked, which means there's never a time legally that you can ever use the darn thing.
It was those laws that were being challenged in this case, and it was those laws that Justice Scalia and four other justices said go too far and violate the Second Amendment's individual right to possess weapons.
Now if you just read the Second Amendment, which reads that 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, you might think that it had always been the case that the courts understood that Americans had an individual right to possess weapons, but unfortunately...
But this is the first time they've ruled that, isn't it?
Right, exactly.
It's the very first time.
For the last 60 years, they've just stayed away from the topic.
As we know, and as our audience probably knows, the Supreme Court is a very political institution.
They're an institution that has the privilege to decide for themselves what issues they're going to think about and what issues they're not going to think about.
So they've just stayed away.
It's not that there hasn't been hundreds and thousands of gun laws that most certainly infringe on our Second Amendment rights, and it's not that people haven't sued to challenge them, but they never have gotten to the Supreme Court, because the Supreme Court has just chosen to stay away from the topic.
Okay, now how could it be that the court has ruled that, oh no, this does in fact mean what it says, that the right of the people to keep and bear arms shall not be infringed, never mind state militia units and what have you.
How can they rule that, and then strike down this gun ban, and yet apparently leave the window open for every other gun law in the books in this country?
Well, the Supreme Court has always interpreted all of the rights that are supposed to be enshrined and defended by our Constitution as being regulatable in many ways.
They've developed this extra-constitutional set of legal doctrines called scrutiny standards, where they decide that, okay, certain rights are key and vital, and so they can't be violated without the government having a really, really, really good reason to violate it.
They turn the whole point of the Constitution on their heads, and that's the way they've approached every one of our rights, that they're not uniquely disrespecting our gun rights by doing this.
They disrespect all our rights all the time.
Some people wanted them in this position to declare what level of scrutiny gun control regulations have to meet, but they punted on that issue.
They were not specifically asked to decide it, so they chose not to decide it.
This means that, like Roe v.
Wade or any other of these huge Supreme Court decisions, it doesn't really settle anything in particular.
It's just going to pave the way for dozens and dozens of further lawsuits challenging gun control laws as people try to figure out, okay, what is this decision going to mean down the line?
Two interesting cases were filed the very next day.
One, a challenge to the city of Chicago's handgun ban.
Another to the city of San Francisco's ban on weapon possession in its public housing.
These are two other issues that are going to have to be figured out, one of which is what's called the incorporation question.
Interestingly enough, the Bill of Rights, originally in a country that actually took federalism seriously, was not understood or intended to apply to the actions.
It was merely a restriction on the federal government.
The 14th Amendment changed that.
The 14th Amendment, which was passed in an environment where lots of states and localities were violating lots of key civil rights, mostly of the newly freed African Americans in the South.
The 14th Amendment was intended to say, no, the states can't get away with completely abrogating Americans' rights either.
Through the 14th Amendment, the Bill of Rights is said to have been incorporated onto the state.
However, that incorporation is not automatic.
It has to be declared in a court decision.
There's never been a court decision that authoritatively stated that the Second Amendment has been incorporated through the 14th Amendment onto the state.
That's why the libertarian lawyers who launched this Heller case chose D.C.'s laws.
One reason was D.C.'s laws are particularly draconian and horrible, but so are Chicago's.
But D.C. was picked because as a federal enclave, it did not have to deal with this incorporation question.
So the incorporation question hopefully will be decided someday by the Chicago lawsuit.
I will say from my reading of Scalia's opinion, I think it will be incorporated.
I think a future case will declare that the Second Amendment, for whatever good it's going to do us, is going to apply to state and local laws as well.
Okay.
Now, somebody pointed out that there's some language in there about guns that might happen to be dangerous and unusual.
Right.
Right.
I think that, again, we're going to have to wait and see what that means.
There are two reasons why that line was in there.
The more fanciful one, of course, and if you're a libertarian gun rightser, you've probably run into this on occasion, if you try to state that the Second Amendment declares a unequivocal and unregulatable right, they'll go, oh, you think people should be able to own nuclear weapons?
Right.
That obviously takes that off the table.
The more prosaic explanation for why that line is in there is that Scalia was thrown a bone to the Bush administration because the Bush administration, though ostensibly supportive of gun rights.
I mean, Ashcroft, Bush's first attorney general, in his first year in office, issued a Department of Justice statement that declared that the Department of Justice believed that the Second Amendment protected an individual right.
However, they were a little scared by the original appeals court decision in the Heller case.
The appeals court decision was actually better than the Supreme Court decision in many ways in the broad way in which it defended our right to own guns.
The Bush administration got a little scared by that opinion and thought that if it was upheld in all its particulars, that the federal ban on the ownership of new machine guns might be vulnerable.
So basically, Scalia was trying to say that, okay, we do have a right to own arms, but they need to be sort of common, everyday sort of arms that most people might own, like handguns and pistols, that it's not necessarily going to apply to these more exotic and unusual weapons like machine guns.
However, the funny thing is, of course, one of the reasons why machine guns are exotic and unusual is that it's essentially illegal to own them.
It's like if they outlawed pistols, 20 years from now, pistols would be exotic and unusual, right?
Yeah.
Well, and I'm kind of confused, too, because I guess what he's saying here is that the Second Amendment has nothing whatsoever to do with even possible one-day service in any sort of militia.
I remember the Miller case from 1937 or whatever it was.
Didn't they rule that the guy who sought off shotgun could not possibly be useful in a military situation, even though, of course, the last war had been World War I and they used sought-off shotguns every day there, but the sought-off shotgun couldn't be a useful military weapon in the militia, so therefore this ban on taking them across state lines still holds up, et cetera, like that.
Yeah.
Miller is interesting.
Miller was the last time that the Supreme Court really dealt with the Second Amendment at all, back in 1939.
They dealt with it in a particularly sort of perfunctory and thoughtless way.
It was a particularly interesting case because the Miller side of that case, their lawyer didn't even file a brief, so it was essentially completely unopposed.
The Supreme Court, this very sort of tossed-off five-page decision, said something that has made the gun grabbers believe for 60 years that the Supreme Court had said that we don't have an individual right to use weapons.
They didn't say that at all.
What they said, as you just alluded to, is that the weapon at issue in the case, which was a sought-off shotgun that had been taken across state lines without its license needed under the 34th Federal Firearms Act, whatever, that weapon, according to the Supreme Court, did not have a militia use.
First of all, as you just pointed out, that's not true to begin with.
But second of all, they were not saying whether the right adhered to an individual or adhered only to the state.
They were merely saying that whoever the right adhered to, it only applied to commonly used militia arms and that the sought-off shotgun did not apply.
Of course, the interesting twist on that, if we took that completely seriously, is that that should mean that people should be able to have grenade launchers and machine guns and possibly even the nuclear weapons, because those are the kind of weapons that our modern military uses.
So what Scalia, again, completely divorced from anything in the actual Constitution was trying to do in this decision is add this caveat that, okay, we have an individual right to own weapons.
They should be weapons that have some possible military application, but they shouldn't be all weapons that have military application.
It should only be the ones that are kind of commonly used by civilians, so that pistols and handguns, rifles and shotguns, it might apply to, but machine guns and all these other things that the military actually uses all the time, but that civilians tend not to, are not going to be protected.
And again, this has nothing to do with what it says in the Constitution.
This is just sort of the way the courts work.
They're basically politicians.
They're trying to say things that they think are going to fly with the public.
They think that handguns will fly, but they know machine guns won't.
Yeah.
Well, now, see, let me criticize you on your specificity of language there.
You keep using the word machine gun, and this is not a phrase that politicians ever use.
The term is assault weapon, and that's about as vague, as dangerous and unusual.
It means a scary-looking gun that some woman Democrat congressman doesn't like, but doesn't know anything about.
It doesn't have to be fully automatic at all.
Yeah, well, it actually is more technically about machine guns, because the assault weapon ban actually, which passed in the 90s, actually doesn't exist anymore.
That got sunsetted out back in 2004 and 2005, so it's not really about that BS language of assault weapons, which, as you just pointed out, are generally semi-automatic weapons.
We're talking about this 86 law that, for the most part, banned fully automatic, genuine machine guns.
People will sort of loosely say that, oh, it's illegal for an American to own a fully automatic machine gun.
That's not technically true, either.
I might even be ...
There's a reason that lawyers earn those high fees, I'm afraid, which is that actually having a complete understanding of all these laws requires hundreds and hundreds and hundreds of hours of memorization.
I might be misspeaking a little bit on this.
I'm sure people out there can correct me, but as I understand it, there's this 86 law that banned the sale and possession of any fully automatic weapon made after that date.
I believe it is still technically legal to own a fully automatic machine gun if it was made prior to 86, but you can't sell or possess new ones.
I actually am talking about fully automatic weapons here.
That BS, semi-automatic assault gun thing, is fortunately not an issue right now.
That law got sunsetted out back in 2004.
Well, yeah, it does seem, though, that he's leaving the language open a little bit, so that maybe ...
Oh, completely, yeah.
Both gun rights people and the gun grabbers should understand.
The gun rights people should be a little bit excited by this opinion.
The gun grabbers should be a little bit angered by the opinion, but don't get too excited or too angry, because it was a really narrow opinion.
It basically just said, we can regulate your ability to carry, possess, sell guns in an almost infinite variety of ways, ways that we're not really going to explain to you, but you can't completely ban people's ability to have a usable weapon in their home.
It has no effect on the whole concealed carry question.
They may decide in the future that, okay, you can only have your functional firearm in the home.
The opinion doesn't explain that one way or the other.
As I said, there's going to be dozens and dozens of future legal challenges to all sorts of gun regulations before we figure out what this opinion means, but it definitely does not mean that we have a wide-ranging right that the court can be expected to respect.
Now you even write in your article for the L.A.
Times that Handgun Control Incorporated or the Brady Center, or whatever they call themselves now, immediately put out some spin that said, okay, this is a great victory for us, because now that the court has said there cannot be an outright ban, then that means everyone who argues with us by saying that what we're working for is an outright ban, we can throw all their arguments out the window and tell them, well, never you mind that.
All we want to do is register them and lock them and put a video camera in your gun safe.
Yeah, it's funny.
They had that spin ready from the beginning.
I interviewed one of the Brady bigwigs the very day after the hearings in the Heller case, and for people who are paying careful attention, we all knew exactly how this was going to come down, because you had, of course, the four so-called conservative justices who everyone knew were going to come down on the side of the gun rights, and then you had the four so-called liberal ones who you knew weren't, and then, as usual, you had Kennedy, who was considered the wild card, and the questions Kennedy asked in the hearing made it quite clear that he did believe that there was an individual right to own a gun, so everyone knew that the individual rights position was going to win.
We didn't know exactly how broad a victory would be.
It turned out to be a very narrow one, so the Brady people knew they had lost instantly, so they were instantly working on their spin, and it was, as you just said, they're like, oh, look, you know, we never really wanted to completely ban guns, which is not true.
They do want to completely ban guns.
They did fight on D.C. side really hard in this case, but, you know, the NRA and all these gun nuts, they've made their bread and butter off the fear that the federalists come banging on your door to take away your guns, and that's how they scare people into giving them money, and that's how they scare people into opposing these very rational, you know, reasonable gun regulations.
Now that they can say there's never going to be a complete ban, then we can do everything else.
We can make sure that no one can sell guns within two miles of any school.
You know, we can make sure that you can't carry your gun outside.
We can make sure that your gun has to be stored in one room and the ammo in the other and all that nonsense, so they're not that afraid.
I mean, they've always known that laws as radically anti-gun as D.C.'s and Chicago's were not going to fly many other places, so they really didn't lose much, the gun grabbers, in this case, and they may well be right.
I mean, obviously, they're spinning to not seem like things have gone too badly for them, but I think they may actually be right.
I think the narrowness of this opinion, the obvious willingness of the Supreme Court to officially recognize a right, but then say it can be regulated up the wazoo so it becomes meaningless, may well mean that the Heller decision isn't going to be good news for gun rights down the line.
Yeah, that cause and effect and long-term consequences and things, it'll be interesting to watch how that shakes out.
Let me ask you one more thing.
My understanding of the beginning of the Second Amendment, this is the excuse, the reason why, the security of a free state, the idea that the men, the average citizens of any given state, that they have the right to pick up their guns to make sure that their state stays free, and to me that always seemed to mean they were talking about the right to keep the federal government out if it came to that.
After all, we are talking about the founding fathers here who just won a revolution and so forth and so on.
But I read, I think it was Will Griggs' piece on LewRockwell.com this morning, he says that Scalia mentions the free state in the context of the entire union, the nation-state itself, from Maine to San Diego kind of thing, and that basically your right to bear arms ultimately does mean your right to be in the militia, which can be controlled by the Congress in the Constitution.
Here's how I read what Scalia was doing.
The founding fathers embedded two distinct and equally important ideas in the Second Amendment, which is why there are two phrases, one of which is the idea that just as human beings on Earth, you know, we have this right, a right not created by the Second Amendment but protected by it, to be able to defend ourselves.
And you can read all sorts of language in Blackstone and the history of the English Bill of Rights that make it quite clear that it was so widely understood that it didn't have to be spelled out, that in that era we knew that human beings had the right to defend themselves and their family and their property, and they had the right to have weapons to do so.
But there was also a political context built into it, which is we have the right not only for personal self-defense against robbers and wolves on the frontier or whatever, but we also have the right to what you might call civic self-defense against a tyrannical government.
And they understood that very well, having, as you said, just come out of a revolution in which their political masters made many attempts to disarm them, despite the English Bill of Rights stating that weapons possession was one of the ancient and inviolable rights of the British people.
So they had both that political element and the personal defense element.
Scalia didn't really talk about the political element.
And again, I've read the decision twice, but again, I will not swear on a stack of Bibles that there's not elements of it that I missed or elements of it that I didn't fully understand their connotations.
But I read the decision of Scalia basically avoiding the political content of it.
He didn't want to address the question of whether we have the right to own weapons because we might need to fight off a tyrannical government.
He just stuck to the we have a right to own weapons because we have a right to self-defense in our home.
So I think, sad as it seems, it's pretty obvious to me that no Supreme Court justice is going to authoritatively discuss the fact that we have a right to fight back against the government when it's violating our rights.
That's going way too far politically now, even though it was a completely natural, understood thing that every politically savvy American understood very well when the Bill of Rights was first written in.
But yeah, the right of revolution, I would say, is a right that the federal government is no longer going to recognize, even though the Constitution did inherently recognize it with the Second Amendment.
Yeah.
Well, you know, that's funny because I would think that that would be safe, that it would simply sound like a little bit of radical rhetoric, but it didn't like the American people are going to overthrow a damn thing anyway.
And the Bill of Rights is, I mean, this is the whole premise of our government.
It says it right in the Declaration of Independence, which I know they ain't buried that one yet.
We still invoke that when we're about to celebrate it here next week.
And it says in there that it is our right, it is our duty, Brian, to alter or abolish a government that becomes destructive of the ends of protecting our natural rights.
You said it.
It's true, but I think it would be hoping for a little too much to hope that any representative of our current federal government is going to recognize that, unfortunately.
All right.
Well, hey, listen, I really appreciate you coming on the show, by the way.
Tell me about this book, Gun Control on Trial.
Sure.
I'm wrapping it up right now.
I had to wait till the decision came down to sort of write my conclusion.
But it's going to be a book that tells every bit of the story of the Heller case from beginning to end and sort of frames it with all of the historical, legal, and empirical arguments about guns and the role of guns in America.
I'm hoping it'll be a sort of a very breezy, one-stop shop for people to understand all of the issues that were involved in the Heller case and what it might mean down the line.
And it should be out by or around October from the Cato Institute.
Well, that's great.
Yeah.
I'd love to read that.
It sounds like a very interesting story to know all the background on and to see, I guess, as the cases unfold from here, to have that background knowledge to watch as the rest of the cases unfold.
Indeed.
Because, unfortunately, it's going to continue to be a big issue in the courts and in Congress, though, for decades to come.
Yep.
All right, everybody.
That's Brian Doherty.
He's the senior editor at Reason Magazine.
He's the author of This Is Burning Man and Radicals for Capitalism.
The new one is Gun Control on Trial.
And his new article in the LA Times is called The Gun Rights Fight Isn't Over.