Friday, June 27, 2008

SOME THOT ON LEGAL REASONING

LEGAL READING

I have spent a good part of the last two days reading the U.S. Supreme Court decision District of Columbia, et al. v. Heller.
All 68 pages worth.
At Issue is whether the District of Columbia - the governing body of the city of Washington D.C. (D. C. = District of Columbia)- has the right to ban the possession of handguns by all residents of the city.
Particularly, the court considered the question whether the District Law violated the Second Amendment to the U.S. Constitution.
Which reads:

"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."

The decision of the Court was a 5-4 split.
The arguments of the two sides split along two lines of thought.
1) The majority said that the Amendment had two parts - the Militia clause, and the "keep and bear" clause.
They read this as the Militia clause did not limit the "keep and bear" clause.
By this, they meant that there were more reasons for a citizen to keep and bear arms than just to be able to join in a state militia, when necessary.
Among these reasons were protection of individual/family/property from assault, robbery, etc., hunting, and sports.
Thus, any laws that limit the ability of a citizen to keep (posses) and bear (use) arms (weapons) violated the second amendment to the Constitution.
This is because such laws not only constrained the ability of citizens to participate in the Militia, it also constrained their ability to protect themselves.

2) The minority said that the Militia clause DID limit the applicability of the "keep and bear" clause.
This being the case, the lack of a need for a state Militia in modern times, reduced the need for citizens to posses and use weapons.
They did acknowledge the value of possessing weapons for personal protection and defense of property.
The minority cited several laws passed down through American history that limited the right to posses and/or carry and/or use firearms.
The reasoning being that no "right" delineated in the Constitution is absolute and without some "reasonable" limits.
By their reasoning, the D.C. prohibition on owning a handgun was a reasonable limitation on the right because, 1) it still allowed possession of rifles and shotguns, 2) the high incidence of crime and murder in the city involving handguns made the ban an "acceptable" attempt to improve public safety.

SOME THOTS

I was intrigued to see the lack of one overriding perception by the justices.
There was a good bit of discussion over the meaning of the "keep and bear" clause.
To me, this is quite simple.
To "keep" means to retain in one's possession.
To "bear" means to (literally) expose, or more properly, to use.
The reason these terms were left as spare as they are was not to save ink.
It was because it was generally and widely understood that virtually everyone owned a weapon of some kind.
"Arms" were not limited to just guns.
Swords, and knives were also considered to be "arms".
Especially in reference to the militia.
But most people had a gun.
And nearly every citizen used them on a regular basis.
Primarily for killing animals for food, but also for killing predatory animals or pests, and finally, for personal protection of family and property.
Given that, there was no need for the framers of the Constitution to elaborate on the concept.

The dissenters go into the reasons the D.C. council used to justify the handgun ban.
They quote several statistics about gun-related deaths in the United States used by the D.C. council.
The motive is to justify the motives and reasoning of the council.
And the dissenters deem the process and resulting prohibition "reasonable".

What is interesting is that more recent statistics on gun-related deaths in the U.S. presented to the court in this case, demonstrate that the D.C. ban on handguns has had NO effect on crime or deaths in Washington, D.C..
In fact, crime and gun-related deaths have increased.
If statistics were a reasonable justification for passing the law in the first place, then, ten years of new statistics that show the handgun ban of no effect (or of making the level of public safety even worse), should be reason to repeal it.
But the dissenters tried to blunt this last point by saying that just because facts show a changed situation, that does not prove that the law in question CAUSED the change.

Point granted.
But that rule of logic can also be applied to the process of enacting the ban in the first place.
That makes the rule of logic in question null.

Given the latest statistics, the D.C. council should try the opposite tactic, to wit: repeal the handgun ban, and issue a gun of choice to every family that wants one and offer training in how to use it in the context of self-defense and protection of home and property.

A SIDE NOTE

It was mentioned in both arguments that certain people are prohibited from possessing a firearm in most states - felons.
Those who have been convicted of a crime.
It can be assumed that this common limitation is based on experience with ex-convicts in numerous communities across the nation.

Interestingly, in almost every discourse on the penal system in this country, the stated goal of the prison system is to rehabilitate the criminal.
Yet this prohibition of guns to felons (and other civil restraints) admits that the judicial system in this country is a failure when it comes to rehabilitating citizens convicted of a crime.
If a former prisoner is truly rehabilitated, why should he/she be prohibited from participating in every right and function of regular citizens?
He/she has paid his/her debt to society and is now fully able to rejoin the citizens he/she offended.

But law is a function of experience.
Bad experiences in society yield specific laws.
If felons are commonly prohibited from possessing firearms, there must be a reason.

The only logical conclusion must be that felons are NOT rehabilitated.
In other words, ex-convicts are not able to behave as citizens in ways that are acceptable to society.
Stated another way, ex-convicts are not generally good citizens.

Given this admission, does this not make a good case for the death penalty?
If a former convict cannot be trusted with a firearm for lawful purposes, as is any other law-abiding citizen, then what good is he/she to society?
Perhaps, it would be wiser for the community to rid itself of those it cannot trust to behave in socially acceptable ways.

In a similar way, convicted sex offenders are required by law to notify the local authorities where they live, and are restricted from living in certain areas, such as near schools.
Why is this if they are truly rehabilitated?

It must be that they are NOT rehabilitated.
And, as such, liable to commit the same type of crime again.
That being the case, then sex offenders should be killed by the state to protect its citizens from further harm.
.
.

No comments: