Gun control and the District of Columbia
posted by Jennifer Collins
The Supreme Court should be deciding in the next couple of weeks whether to grant cert in the case challenging the District of Columbia’s law in essence banning residents from possessing handguns. (Michael O’Shea has done an admirable job over at Prawfs collecting various materials related to the cert petition). As a former assistant U.S. attorney in D.C., I’ve been following the case with interest, and I do expect that the Court will grant cert. I think it’s worth acknowledging the primary functions of the law as it’s used by prosecutors in DC: the gun ban is both a preventive detention statute and an intelligence-gathering tool. At one time when I was a prosecutor, we were prohibited from extending a plea offer in gun cases unless the defendant agreed to come into the office (with his attorney, of course) and be “debriefed” about his knowledge of criminal activity in the city. The statute was also a mechanism for locking up individuals perceived as violent, but against whom other cases could not be brought for whatever reason. It’s pretty simple to prove beyond a reasonable doubt that an individual was in possession of a gun without a license and a lot tougher to prove that he committed a violent crime. These functions may not be relevant to the question whether the statute is constitutional, but it’s worth acknowledging that invalidating the gun ban will surely have a tremendous impact on crime-fighting in the District.
October 25, 2007 at 12:17 pm
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Responses (13)
anon - October 25, 2007 at 2:40 pm
“The statute was also a mechanism for locking up individuals perceived as violent, but against whom other cases could not be brought for whatever reason.”
This is an interesting statement coming from a former prosecutor. Frankly, I think the effect of removing the gun ban is positive if it eliminates a “mechanism” with which the government can “lock up” citizens who have not committed a crime (aside from the gun possession at issue) beyond a reasonable doubt. Many of the civil liberty issues arising in the context of national security are a result of the federal government violating the rights of those it “perceives” as terrorists. Until reasonable doubt is replaced by “perception” in our justice system, I think prosecutors should rely on more “laws” and fewer “mechanisms.”
Jennifer - October 25, 2007 at 3:37 pm
I was not offering an opinion on the advisability of these practices, but simply noting that they exist and will obviously be affected by the outcome of this litigation. Indeed, I think the length of the potential jail sentence that is attached to gun possession in D.C. is quite troubling. I will note that the office was indeed relying on a law that was valid at the time, however, even if one disagrees with the existence of that law as a policy or legal matter.
Craig Martelle - October 25, 2007 at 4:51 pm
I understand that cases are easier to prove in these cases, but I think public policy supports the deterrent factor. Let’s work to reduce crime on its face, rather than seek methodologies to punish the criminals. This leaves the victims as victims who cannot protect themselves. Let’s reduce the number of victims, as opposed to maintaining a status quo of violent crime – some get punished harshly while an equal number step up to take their place.
No advocate of gun control will ever put a sign outside of his/her home stating that “This is a gun-free home.” Why? Because it passes the basic logic test. It makes the victims easier targets, even for non-violent criminals. Violent crime is and has been too high in our nation’s capital. The experiment in gun control has not worked. Even the UK has noticed the rise in violent crime the more that your law-abiding citizens are prevented from arming themselves. Harvard’s Law & Public Policy has a good article on the subject (Spring 2007 issue).
Thanks for the insight as to why this policy is in effect. Any methodology to root out criminal elements is useful. Unfortunately, after years in force, I don’t believe the numbers support this policy as the most effective in reducing crime.
Melodyl - October 25, 2007 at 9:37 pm
When the government fears the people, there is liberty. When the people fear the government, there is tyranny.” –Thomas Jefferson…
People of your stripe scare me so. You are in a position of power where quite obviously your moral compass should ban you from such a position. Criminals do need to be in jail, but it appears you are attempting to broaden the definition of criminal to a point everyone you do not agree with, could be labeled and persecuted at your pleasure.
The D.C gun ban has been an utter failure; it has been used as a crutch to assist people who are basically lazy and incompetent to justify a pay check. As with most of the public officials in D.C. they are poor in there professions and in my personal and professional experience, could and can not make it in the private sector.
Regardless of your unilateral wet dream of a dictatorship, we are still a country of laws, and rights that were set out by the founding fathers to control tyrants in government like you and your ilk.
scott - October 26, 2007 at 5:00 pm
Its funny isn’t it that the perception of gun-owners is that we’re all “law and order” advocates – the type of people that would advocate what Ms. Collins has here – a police state mentality that says its better to find some law to lock people up with than worry about whether that is justice or not. And laws forbidding the owning or carrying of guns are perfect for that mentality.
In reality, most gun-owners I know are FAR more concerned with individual liberties and due process of law than those on the left are. I’ve know for quite a while that for most police and nearly all prosecutors its not about justice – its about LAW ENFORCEMENT, and that if “you are not COP – then you are little people”.
The sanctimonious left disgusts me.
David Hardy - October 29, 2007 at 12:07 pm
It’d seem to me that both those objectives could be met with almost any regulatory scheme, even liberal “shall issue” carry permits. Odds are that any person suspected of an ongoing violent criminal career would (a) already have a sufficient criminal record to bar his getting a permit and/or (b) not desire the official attention that would come from filing an application and receiving a permit. So they’d still be running afoul of the law if they carried.
happycynic - October 29, 2007 at 12:40 pm
So basically D.C. wants to convict people of crimes without any due process. When you break Ms. Collins argument down, that’s basically what she is saying. D.C. knows that someone is violent, but cannot prove said violence in accordance with the protections of due process. So being a typical governmental entity, it wants an easy button allowing it to convict someone of being violent without having to satisfy those pesky due process requirement – many of which exist to ensure that the correct individual is the one, and only one, deprived of life, liberty, or property.
Enter the D.C. gun ban. Now, with simple gun possession carrying the same penalty as many actual violent crimes, D.C. doesn’t have to be bothered by the petty requirements of due process. The DA can convict anyone whom he thinks is “violent” under the possession statute. And this is supposed to be a good thing because the DA just KNOWS that he is guilty, even though there isn’t enough evidence to persuade 12 citizens.
And I wonder what happenes when someone is arrested who doesn’t have any “knowledge of crime in the area” to offer for a plea bargain? In drug cases, at least, there are plenty of people sitting in jail for relatively minor roles in the drug trade who, for whatever reason, were unable to offer anything juicy for a plea bargain.
I’ll take the protections offered by the founding fathers over D.C.’s version of protection any day of the week and twice on sundays.
Jennifer - October 29, 2007 at 1:21 pm
Let me try to be clear here. I am NOT endorsing the tactics described in my initial post. I am simply describing the fact that they existed (at one time, at least), because of my belief that the more information we have, the better and more thoughtful a debate we can have about gun policies in the District of Columbia. The tenor of some of the comments above, however, certainly suggests that it will be difficult, to say the least, to have a thoughtful and respectful debate. That is obviously unfortunate.
Kevin P. - October 29, 2007 at 1:53 pm
But Ms. Collins, you do seem to endorse these practices here in your last sentence:
It is lawful for law-abiding citizens to own handguns almost everywhere in America and lawful to carry them outside the home (after licensing) in the vast majority of states. Yet the rest of the country manages to have a better criminal justice system than DC. Perhaps DC has such incompetent police officers that they have to resort to these thuggish guilty-until-proven-innocent tactics? And not surprisingly, those don’t work either.
Sebastian - October 29, 2007 at 6:55 pm
Guys,
This is a great example of how to turn someone off to your message. Here you have a blogger making a factual assertion, and not offering up any judgment call about it either way, and you folks are making all kinds of assumptions about what she believes, and then attacking her based on those assumptions.
We’re not going to persuade people like this. Stick to commenting on what was said, and avoid making assumptions about the person that said it.
Matt - October 30, 2007 at 9:43 am
Ms. Collins,
Invalidating the gun ban will not suddenly make the lives of prosecutors or police harder. Look at it from the standpoint of what would be affected if the ban is held as Unconstitutional.
Thinks about it. All the ban being overturned says is that private citizens would be able to keep functional arms in their homes without needing a permit to assemble them or use them in self-defense within said confines. And probably within any regulatory scheme the District comes up with that remains short of the bar set by Parker/Heller.
How does this affect the lives of prosecutors in gathering intelligence? Anyone carrying a firearm on their person outside their home (not referring to cased transport here under FOPA’86) will still be in violation of DC law. It will still serve as evidence against them for a weapons charge.
As to in the home, yes, prosecutors will be hamstrung in the sense that finding a gun in a house does not automatically lead to an “unlicensed gun charge” which can lead to further investigation. More often than not, however, such circumstances include more than just an “unlicensed gun”. Probably “unlicensed drugs” too.
The ban being gone will hardly make a difference in the vast majority of cases. In the ones that it does make more difficult, don’t you think that would be a reasonable balance against the rights of the majority of law-abiding private citizens to keep arms in their homes? Why should the laws favor making the prosecutors job easier? Their job is to prove cases. If anything, it affects prosecutors not a whit since it is police, not prosecutors that turn up the initial evidence that they then use to proceed forward with an investigation.
Why should DC be special with such laws to “aid prosecutions” when virtually every other state gets along fine without them? Even in draconian anti-gun states, the gun charges have no trouble sticking but are brought in additional to other criminal acts rather than the gateway charge to them. Virginia and Maryland seem to have no such issues on this front. DC is no different.
The ban was struck down because the harm it is causing among the citizens is greater than the harm it would cause law enforcement by not having it. Sorry if law enforcement is going to have a slightly harder job but it is the job they signed up for. They’ll simply have to adapt to new rules. Rules that already exist everywhere else and don’t seem to hamstring other agencies in other states.
Paul - November 15, 2007 at 2:08 pm
As a former US attouny you probably won’t like this opinion from the 5th circuit court of appeals which basically makes it legal for “certain” felons convicted in Louisiana to own guns if 1. their civil rights are restored by Article, 1 Secion, 20 of the Louisiana constitution and 2. they are no longer prohibited from possing firearms by virute of RS 14:95.1 http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_dupaquier.txt
Brett Bellmore - November 15, 2007 at 9:56 pm
“he ban was struck down because the harm it is causing among the citizens is greater than the harm it would cause law enforcement by not having it.”
It was? I was under the impression that it was struck down because it violated an amendment to the Constitution. One which doesn’t, so far as I can see, institute any balancing test between harm done to citizens and help to police.
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