My Take on the Heller Argument

After listening to the oral arguments and reading a bunch of reactions to it, I think Alan Gura did a splendid job. At first I was a bit perturbed that he agreed a ban on machine guns might be “reasonable,” but as others have said, this was probably a tactical move to avoid scaring away any fence sitters. Likewise, the machine gun talk could have been a trap by the left half of the Court to get Mr. Gura to overstep the Miller precedent. This case isn’t about full autos though, so it’s kinda beside the point anyway.

There was another exchange that puzzled me. At one point, Justice Ginsburg asked if it would be reasonable to require a license to posses a gun, which Mr. Gura answered with:

Well, the government could set reasonable standards for that, Your Honor. The government could require, for example, knowledge of the State’s use of force laws. They can require some sort of vision test. They could require, perhaps, demonstrated competency. And those are the types of things that we sometimes see; background checks, of course. Those are going to be reasonable licensing requirements.

Again, I realize that he was just playing it cool, and only arguing against the ban since that’s all that’s at issue here. But where the heck did vision and competency testing come from? Given the precedent (or lack thereof) stacked against us, I can understand leaving licensing alone for the time being. But do we really want to volunteer competency testing?

Granted, this too could be strategery, so I’m really not blaming Mr. Gura for it altogether. However, I’ve seen it pop up in a number of discussions around the internet with more antis than usual pointing it out as if it’s a great new idea. The idea of competency-based licensing annoys me for two reasons:

First, if we allow the government to set training requirements, what is there to stop them from setting the standards impossibly high? For instance, the anti-gun loons in Australia are demanding a “rigorous training and testing program over a six month period” to earn a license. How many people would really be able to quit their job for half a year to take such a course? Even if the requirements aren’t that ridiculous, wouldn’t it be kind of hard to be competent with something you’re not allowed to own until you become competent? Sounds like a Catch-22 to me. And what about, say, someone in a poor rural area who can barely afford a $200 shotgun or rifle needed to put food on the table? Does his right to keep and bear arms go away if he can’t pay for some class?

Second, I fail to see how this even passes a rational basis test; let alone strict scrutiny. If the purpose is to prevent criminals from murdering people, wouldn’t training them to shoot effectively make them more likely to hit and kill their victims?! On the other hand, if the idea is to prevent accidental shootings, those are already exceedingly rare.

According to the CDC, there were only 789 Unintentional Firearm Deaths in 2005; which no doubt includes a good number of “misdiagnosed” suicides. Not to mention 683,396 law enforcement officers who have their own fair share of “accidents“. Given that there’s ~80 million people who own an estimated 290 million guns, 789 fatal accidents is statistically negligible.

To put that in perspective, there were 927 Unintentional Pedal cyclist Deaths and 19,656 Unintentional Fall Deaths in the same year. Ergo, there would be a far more compelling government interest in competency tests and licensing for bicycles, ladders, and windows in multistory buildings.