The recent Heller III decision from the D.C. Circuit Court of Appeals was not completely unanimous; Judge Karen LeCraft Henderson dissented from the decision authored by Judge Douglas Ginsburg, stating that she would have upheld all elements of the D.C. law as being constitutional. That’s not too surprising. Judge Henderson, who was appointed to the Court of Appeals in 1990 by then-President George H.W. Bush, has had a history of being unfriendly to the right to keep and bear arms. When the original Heller case came before her in 2007 . . .
(at the time, it was styled Shelley Parker et al v. District of Columbia–before every Appellant except Dick Heller had their case dismissed for lack of standing,) Judge Henderson dissented, arguing that the Second Amendment could not possibly apply to the District of Columbia, because the District wasn’t a state. That’s a rather novel interpretation, given that prior to the ratification of the Fourteenth Amendment, the entirety of the Bill of Rights was intended to apply to the federal government, and that the D.C. government’s legal authority comes exclusively from the federal government itself.
In sum: Judge Henderson is not exactly out in front defending right to keep and bear arms. Which makes the first part of her dissent a little eyebrow-raising, where she implicitly trashes the idea that a lot of recent academic studies on gun control are worth a damn.
Firearm policy is a “complex and dynamic” issue implicating “vast amounts of data” that the legislature is “far better equipped” to gather and analyze. Such “information can be difficult to obtain and the impact of certain conduct difficult to assess,” due to the different challenges facing different jurisdictions and the multiple factors that contribute to gun violence. Indeed, the data that does exist is either incomplete or influenced by partisanship: (Citations omitted.)
Judge Henderson then goes on to quote rather extensively the 2015 book American Political Culture: An Encyclopedia on the subject.
Few topics in the realm of U.S. justice and politics elicit a more polarizing response than that of gun control. . . . At the center of the debate is the fundamental question of whether firearms, specifically those owned and wielded by private citizens, do more harm than good in deterring violent crime. Despite intense scrutiny from so many fields, however, scholars have reached few solid conclusions to date. The answers to even basic questions (who is victimized, how many are victimized, and at what cost are they victimized) are fiercely disputed, resulting in a nebulous yet hotly contested understanding of the interplay between guns and crime. . . . Data exists to support both sides; the difficulty lies in separating partisanship and underlying attitudes from empirical observation and objective analysis. In truth, the isolation of such objectivity may be a logical impossibility.
“Logical impossibility”. You don’t say.
There has been a push toward publication of studies with an ideological anti-gun tilt in academic journals of questionable veracity, as has been reported in TTAG and other venues. Institutions such as the Johns Hopkins Bloomberg School of Public Health’s Center for Gun Policy and Research (gee, I wonder where they get their funding?) have had their academic minions churning out anti-gun screeds for years, which are then duly parroted by Bloomberg-funded propaganda outlets like The Trace, and broadcast by a credulous (complicit?) media.
Given that most of the gun control studies we’ve been seeing lately have been almost uniformly arguing against the right to keep and bear arms, it is gratifying to see that Judge Henderson, even though she apparently is unwilling to protect the Bill of Rights when it comes right down to it, still is intellectually honest enough to acknowledge that the plethora of anti-gun “science” we’ve been seeing lately are all just so much humbug.
In other news – Judge Henderson isn’t the only one playing against type in the Heller III decision. Judge Patricia Millett — appointed to the Court of Appeals by President Obama in 2013 — joined Judge Ginsburg’s opinion striking down several parts of the District’s firearms laws. In fact, according to Newsbusters.com, Millett was one of the judges for whom Democrats nuked the filibuster to ensure her confirmation to the bench.
Perhaps this shouldn’t be a surprise. According to her bio, Judge Millett holds a “second degree black belt in Tae Kwon Do.” I wonder if her affinity for self defense might have influenced her attitude at all?
DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.