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.
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