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Attorneys Debate Effects of Gun Ban Override

June 26, 2008 at 12:00 AM EDT
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The Supreme Court's landmark decision overturning the gun ban in the District of Columbia Thursday may have far reaching effects. Peter Nickles, D.C. Attorney General, and Ted Cruz, former Texas Solicitor General, debate the impact of the decision.
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TRANSCRIPT

JUDY WOODRUFF: For two different views on the impact of today’s Supreme Court decision, we turn to Peter Nickles. He is the Washington, D.C., attorney general. He led the legal team that put together the case for the district.

And R. Ted Cruz, he served as Texas’ solicitor general from 2003 until May of this year. He filed a friend-of-the-court brief against the D.C. handgun ban.

Ted Cruz, to you first. Your reaction to the court’s ruling?

R. TED CRUZ, Former Solicitor General, Texas: Today’s decision, I think, was a terrific decision. It was consistent with the plain text of the Bill of Rights.

The basic question in this case is: Does the Second Amendment mean what it says?

On the face of it, the Second Amendment protects the right of the people to keep and bear arms. And yet, in the past several decades, academic commentators had tried to limit that so that no individual American could claim that right.

Today, a majority of the court squarely held that every American has a constitutional right, protected in the Bill of Rights, to keep and bear arms.

JUDY WOODRUFF: Peter Nickles, speaking for the district, this was blow to the district.

PETER NICKLES, Attorney General, Washington, D.C.: This was a blow. And I think it’s a very bad decision, in that it throws off decades of precedent. All the circuit courts in the United States, as Marcia has said, came down the other way. The 1939 decision of the Supreme Court came down the other way.

The district law has been in effect since 1976. And we have found that that law, which was instituted to deal with surging violence in Washington, D.C., has worked. You ask any cop on the beat or any guy in the fire department who goes into these homes, has it helped? They all agree it has helped.

So now we have to deal with the fact that the Supreme Court 5-4, throwing off all this precedent, has found some clear meaning as to an individual right to bear arms, despite all the history involved. And now we’re prepared to go forward and ensure that there is strict regulation of that right.

Gun control's effect on crime rates

R. Ted Cruz
Former Solicitor General, Texas
The District of Columbia has had this draconian gun law for over three decades, and yet it has consistently led the nation in murder rates and in crime rates.

JUDY WOODRUFF: Ted Cruz, as somebody who thinks the district law was misguided, what do you say to this argument from Peter Nickles that it helped keep the crime rate in the district low, lower than it would have otherwise been?

R. TED CRUZ: Well, Judy, I'd have two responses. First of all, strict gun control laws don't work, and they've never worked where they've been applied.

The District of Columbia has had this draconian gun law for over three decades, and yet it has consistently led the nation in murder rates and in crime rates.

The simple reality is that, when you have strict gun control -- and in D.C., it was a ban. Law-abiding citizens could not own operable firearms. When you have a ban like that, the law-abiding citizen is disarmed and only the criminals keep the guns.

The empirical data, the research that's been shown shows consistently when you disarm the citizenry you leave them vulnerable and, as a result, you see criminal activity go up.

And, in fact, the people who are most severely impacted are the low-income, are women and minorities.

In D.C., wealthy residents live out in Bethesda or Chevy Chase or Old Town Alexandria. They have a vibrant police department. They don't have a crack house next door.

But single moms that are struggling to work in Anacostia are facing a legal system where they're told they can't protect themselves if a robber comes in the window.

JUDY WOODRUFF: Let me just quickly get Peter Nickles to respond to that, and then I want to ask you about something else the court said today.

PETER NICKLES: There's a lot of rhetoric in that statement. I don't think the empirical evidence supports what Mr. Cruz says.

And, moreover, if you talk to the cops, if you talk to the residents who are in these Anacostia-type areas, in Trinidad, where there's significant crime, I don't think anyone favors the removal of this gun ban.

So one can use a lot of rhetoric, but the fact is that the data show that, for decades, the crime rate in Washington has been going down and, in the last two or three years, significantly down.

Some restrictions remain on gun use

Peter Nickles
Attorney General, District of Columbia
We've asked our police department within 21 days to come up with some detailed regulations as to how an individual can apply to register a handgun [...] You're going to have to meet certain qualifications.

JUDY WOODRUFF: Now, today the court majority did rule that there can be -- it said there can't be a complete ban, but it said there can be some restrictions on the use of guns. Is it clear to you, right now today, as you sit here, what those restrictions can be?

PETER NICKLES: I think it's clear to me, and we may end up in litigation. But we've asked our police department within 21 days to come up with some detailed regulations as to how an individual can apply to register a handgun.

This is not a situation where you can walk out in the street with a handgun. You're going to have to meet certain qualifications.

You're going to have to be an adult. You're going to have to be fingerprinted. You're going to have to know about the D.C. gun laws.

You're going to have to be in a situation where you haven't been convicted of a felony or violent crime or mentally incompetent for the last five years. You will not be able to register automatics or semi-automatics. So this will be a very strict regime of registration.

JUDY WOODRUFF: Ted Cruz, will there be agreement on what restrictions will be OK? We're already hearing, for example, from the National Rifle Association that they're going to be looking at local laws around the country to try to challenge them.

R. TED CRUZ: I think there will surely be additional litigation, but I think it's worth underscoring what this case was about was not whether gun control is or isn't a good policy idea. Mr. Nickles can call what I had to say rhetoric, but it's ultimately looking at the economic data.

The question before the court, though, was much simpler than that. It is, does the Constitution protect this individual right?

And the position of the District of Columbia was that no American had any individual right under the Constitution to keep and bear arms. That was a radical interpretation, and the majority of the Supreme Court unequivocally rejected it.

More litigation to come

R. Ted Cruz
Former Solicitor General, Texas
The city of Chicago, for example, has ordinances that I think are put into substantial question as a result of this decision.

JUDY WOODRUFF: And so what effect do you see around the country? In terms of other -- does this automatically call into question most other gun restrictions on the books?

R. TED CRUZ: I don't think it does. What the court said was draconian laws like D.C.'s, laws that are, in effect, blanket bans, are going to be unconstitutional.

The city of Chicago, for example, has ordinances that I think are put into substantial question as a result of this decision.

On the other hand, the court said there are other reasonable regulations. The example it used is the prohibition on felons possessing firearms. And the court said those are presumptively legal.

So it identified two extremes: one, laws that are really total bans on any private law-abiding citizen owning a firearm; and at the other level, a sensible, reasonable restriction.

In between, I think we'll probably see litigation, and the gray area over time will be filled in.

JUDY WOODRUFF: Peter Nickles, do you see the spectrum the same way?

PETER NICKLES: I think there's going to be a tremendous amount of litigation. I think, as Marcia indicated, the dissenters, particularly Justice Breyer, said, "Why have we done this? What have we created? We are giving birth to a mass of litigation."

Because it's very easy to say you can regulate reasonably, but what does that mean? Justice Scalia only had the couple of words about certain areas of reasonableness.

And so I think there will be challenges up and down the line. I think there will probably be challenges to what it is I've indicated we intend to do in Washington.

But we're fully comfortable with the fact that the kind of measures I've outlined will be consistent with the Supreme Court and upheld by the courts.

Clarity or confusion?

Peter Nickles
Attorney General, District of Columbia
I think the majority opinion is simplistic, with all due deference, and there is no constitutional right that is absolute. And that's what the dissenters said.

JUDY WOODRUFF: So, Mr. Cruz, it sounds like Mr. Nickles is arguing that this could open the door to more confusion rather than more clarity here.

R. TED CRUZ: Well, I think Mr. Nickles' response was revealing, because I think this decision at the Supreme Court reveals a fundamental divide between justices about what their role is.

And he said that, in dissent, the dissenters argued, why are we doing this? Why are we getting into this issue? But I think what the majority laid out is the reason the court did this is because the right is protected in the Constitution.

And it's not the court's job to be a super-legislature, to decide what's good policy, what isn't good policy. The court's job is to enforce the Constitution.

And right there in the text of the Constitution is the Second Amendment. It's right after the First Amendment.

And, in fact, one of the things that was a substantial impetus for this challenge is a number of prominent legal academics, academics on the left, like Sanford Levinson, like Larry Tribe, like Akhil Amar, have pointed out, if we're going to be at all intellectually consistent, we can't read the First Amendment as protecting important rights, we can't read the Fourth Amendment as protecting important rights, and because we don't like guns ignore the Second Amendment.

JUDY WOODRUFF: You want to respond to that?

PETER NICKLES: I think the majority opinion is simplistic, with all due deference, and there is no constitutional right that is absolute. And that's what the dissenters said.

Every constitutional right -- the gentleman talked about the First Amendment. You can't go into a crowded theater and yell, "Fire." You can't put pornography on your Web site.

And what Justice Breyer said was, "OK, let's assume for a moment that the right is an individual right to bear arms. But why can't an urban center, confronted by violent crimes and murders, deal with it in a reasonable way and have the court decide whether it's dealt with that right reasonably?"

This majority did not give us any opportunity to argue why this law, in effect since 1976 with great success, has been reasonable.

JUDY WOODRUFF: All right, we are going to have to leave it there. Peter Nickles and Ted Cruz, gentlemen, thank you both.

PETER NICKLES: Thank you.

R. TED CRUZ: Thank you.