May 28, 2008

Gays and Guns

Though it's gotten very little attention in the gay press, an important case affecting the lives of gays and lesbians is now pending in the U.S. Supreme Court. The case challenges the constitutionality of the District of Columbia's unusually strict gun-control law, which bans handguns and effectively prevents people from possessing firearms for self-defense in their own homes.

A brief filed in the case, on which I offered some counsel, argues that the law is especially harmful to gay Americans. The brief joins a large coalition of groups, including the National Rifle Association, arguing for individual rights under the Second Amendment.

The brief was filed on behalf of Pink Pistols and Gays and Lesbians for Individual Liberty. Pink Pistols is an international group formed a few years ago with the basic mission of advocating gun ownership and training in the proper use of firearms by gay people. GLIL is a libertarian gay group that consistently defends individual rights.

There are now over 45 Pink Pistols chapters nationwide, and more are starting up every day. They are dedicated to the legal, safe, and responsible use of firearms for self-defense of the sexual-minority community.

The gay gun-rights brief argues that the D.C. gun-control law violates the Second Amendment, long the forgotten and some say most "embarrassing" part of the Bill of Rights. The Second Amendment 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."

Many people have long argued that the reference to "a well-regulated militia" means that the right is limited to citizens serving collectively in a modern-day military force, like the National Guard. Under this interpretation, the amendment would not protect any individual right to bear arms outside the militia context, meaning that the government can entirely ban private gun ownership, even guns needed for self-defense in the home.

However, as even many liberal scholars now acknowledge, that interpretation makes little sense of the text and history of the amendment and of the Bill of Rights generally, which contains a series of individual rights.

The gay gun-rights brief adds an important perspective to this argument. It makes several points about the connection between firearms, gay rights, and the practical self-defense needs of gay Americans.

First, the brief argues that the right to keep and bear arms is especially instrumental for a population at once subject to pervasive hate violence and inadequate police protection.…

Second, the gay gun-rights brief points out that unless the Second Amendment protects an individual right to possess firearms, gay Americans are effectively disqualified from any exercise of the right. That's because under the current prevailing interpretation of the Constitution, the government may entirely exclude gays and lesbians from military service ("the militia").…

Gun ownership might, at the very least, give them peace of mind. And widespread knowledge that many gays are packing might give their would-be attackers second thoughts. Gun rights are gay rights.

Dale Carpenter is a law professor. He can be reached at mailto:OutRight@aol.com. Some of his past columns can be read at http://www.indegayforum.com. http://ebar.com/columns/column.php?sec=outright

Comments (8)

Yeah, the brief by the Pink Pistols doesn't agree that the militia definition is collective--it simply posits that if the militia is collective, and gays are excluded from "militia/military", then gays can't have guns for self-defense.

Posted by: woody-dingo | June 2, 2008 10:18 AM    Report this comment

unevrno:

At the time, punctuation was kinda random. There are supposed to be several different comma-versions of the document extant at the time.

The courts have held that "reasonable restrictions" are possible.... IMHO, "reasonable" depends on who's talking, and that's a slippery slope. (Don't forget, too, that "well regulated" meant simply "working well", back when a clock was about the most complex machine you'd ever see. It has nothing to do with regulations of the "thou shalt not...." variety.

(About my comment earlier: "I don't think the discrimination b the military is relevant." I was referring to my initial comment that the militia in question is NOT the "organized militia" that the anti's think the Constitution refers to.)

Regards,

Posted by: SMM Associates | May 31, 2008 3:03 PM    Report this comment

First off, I think that two of the commas in the statement are put there in error.....maybe a tired Jefferson was reading from their draft while a tired Hancock was writing, "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". Take away the first and third commas, please, and the statement becomes eminently sensible.....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.

Also, I've always wondered about that "shall not be infringed" part. If the Constitution trumps all lesser laws, does that not mean that NO laws restricting gun ownership can exist anywhere in the country? That even convicted felons can "keep and bear arms"? After all, who is to say that a paroled or rehabilitated felon does not need or deserve the right to protect his life or the lives of his family or friends, or members of society at large?

I know....would YOU give a felon a firearm? Probably not. I probably wouldn't, either. However, if you're going to claim that "the right of the people to keep and bear Arms, shall not be infringed", then doesn't it follow that you must accept ALL the ramifications of that statement?

Keep politics out of it. The Constitution, as always, is BY the people and FOR the people.

Period.

Posted by: unevrno | May 31, 2008 11:56 AM    Report this comment

AARGH....

I support the Pink Pistols, but the logic that says "Gays aren't allowed to join the militia" presumes that "the militia" is exactly what the gun-grabbers say it is....

The "militia" the Founding Fathers refer to is an "unorganized" group - if you're within the age limits (and there's a good deal of argument that says that those are "suggestions"), you're a member, like it or not. I suppose the neighbors could kick you out if you showed up in a tutu, but that's not what this is about.

We have forgotten this.... When seconds count, help is only minutes away....

The gay community has a right to self defense, and an obligation to participate in the common defense. I don't think the discrimination by the military is relevant.

Just IMHO, of course.

Regards

Posted by: SMM Associates | May 31, 2008 10:16 AM    Report this comment

"Don't know a single Dem who would like to take away your guns."

H. Clinton, B. Obama

Not personally maybe...

Posted by: DAVID M | May 31, 2008 8:23 AM    Report this comment

Come on Robert J. I am a liberal Dem. and I am packing. Don't know a single Dem who would like to take away your guns.

Posted by: Robert R | May 30, 2008 4:34 PM    Report this comment

All hands on deck, yes we need all the help we can get. I hope this does not turn out to be the NRA's Rev. Wright. It doesn't bring an interesting point: The Democrats claim they are for special interest groups and their rights...as long as it fits their agenda. It is time for people that vote Democrat to realize this. The Democrats want to take away your rights, that gives them power.

Posted by: Robert J | May 29, 2008 8:03 AM    Report this comment

It will take everyone to fend off the gun-grabbers.

Posted by: woody-dingo | May 28, 2008 7:30 PM    Report this comment

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