For gun control proponents and opponents a lot is riding on a former security guard for the Supreme Court Annex. Next Tuesday , the Supreme Court will hear arguments over whether the District of Columbia's ban on handguns and its requirement that any rifles or shotguns remain locked violates the plaintiff, Dick Heller's, constitutional rights.
Whatever the court decides, no one expects them to end gun control any more than the First Amendment's "congress shall make no laws" has prevented the passage of campaign finance regulations. The decision is likely to be limited to just whether a ban "infringed" on "the right of the people to keep and bear arms."
If the D.C. ban is accepted by the court, it is hard to believe that any gun regulation will ever be struck down. If the court strikes it down, where the courts draw the line on what laws are considered "reasonable" regulations will take years to sort out .
Thus far the District of Columbia has spent a lot of time making a public policy case. Their argument in their brief to the court is pretty simple : "banning handguns saves lives."
Yet, while it may seem obvious to many people that banning guns will save lives, that has not been D.C.'s experience.
The ban went into effect in early 1977, but since it started there is only one year (1985) when D.C.'s murder rate fell below what it was in 1976. But the murder rate also rose dramatically relative to other cities. In the 29 years we have data after the ban, D.C.'s murder rate ranked first or second among the largest 50 cities for 15 years. In another four years, it ranked fourth.
For Instance, D.C.'s murder rate fell from 3.5 to 3 times more than Maryland and Virginia's during the five years before the handgun ban went into effect in 1977, but rose to 3.8 times more in the five years after it.
Was there something special about D.C. that kept the ban from working? Probably not, since bans have been causing crime to increase in other cities as well. D.C. cites the Chicago ban to support its own. Yet, before Chicago's ban in 1982, its murder rate, which was falling from 27 to 22 per 100,000 in the five years, suddenly stopped falling and rose slightly to 23 per 100,000 in the five years afterwards.
Neither have bans worked in other countries. Gun crime in England and Wales increased 340 percent in the seven years since their 1998 ban. Ireland banned handguns and center fire rifles in 1972 and murder rates soared — the post-ban murder rate average has been 144 percent higher than pre-ban.
How could this be? D.C. officials say that the ban will disarm criminals. But who follows a ban and turns their guns in? Criminals who would be facing long prison sentences anyway if they were caught in a crime, or typically law-abiding citizens? By disarming normal people, a gun ban actually makes crime easier to commit.
Unfortunately, the Department of Justice has actually sided with D.C. in important parts of the case, and the court has granted Solicitor General Paul Clement 15 minutes to make his argument. While largely paying lip service to the Second Amendment being an "individual right," the Department of Justice brief argues that an "unquestionable threat to public safety" from unregulated guns requires a lower standard must be adopted in defending it than is used to defend the rest of the Bill of Rights. But if they really believed that their evidence showed this, just as with the classic exception for the First Amendment of "falsely shouting fire in a theater," it wouldn't be necessary to treat the Second Amendment differently .
But what has not gotten much attention is that for the first time in U.S. history an administration has provided conflicting briefs to the Supreme Court. Vice President Dick Cheney has put forward his own brief arguing that the Second Amendment guarantees an individual right that is no different than freedom of speech.
The DOJ constitutional argument is similar to that of D.C. It argues that since the government bans machine guns, it should also be able to ban handguns. And they claim that D.C. residents still retain a right to self-defense because the city doesn't ban locked shotguns and rifles. Locks, they claim , "can properly be interpreted" as not interfering with using guns for self-protection.
Factual errors underlie the rest of the argument — for in D.C., rifles and shotguns become illegal as soon as they are unlocked. That means the city can prosecute anyone who uses one in self-defense, even if it was locked before the incident. Is that a "reasonable" restriction on self-defense? Gunlock requirements are also associated with more deaths and more violent crime as they make defensive gun uses more difficult. Machine guns are also not banned .
It makes sense that the DOJ is backing the ban, given that it would lose regulatory power if it were struck down. As the DOJ lawyers note in the brief, striking down this ban could "cast doubt on the constitutionality of existing federal legislation."
The Department of Justice and D.C. politicians can talk all they want about how necessary handgun bans are to ensure public safety and the "reasonableness" of the restrictions. But hopefully the Supreme Court will see past that. At some point, hard facts must matter. This is one point where public safety and individual rights coincide.
*John Lott is the author of "Freedomnomics" and a senior research scientist at the University of Maryland. Lott recently consulted with the Independence Institute on changes in D.C. crime rates. Maxim Lott is a junior at the College of William & Mary.