OutRight: Gay Rights and Gun Defense

Defending the practical matter of self-defense.

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 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 (GLIL). 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.

From 1995 to 2005, according to the FBI, more than 13,000 incidents of antigay hate violence were reported by law enforcement agencies. When you consider that fewer than half of all violent crimes are reported, it is certain that even this number seriously underestimates the problem.

Worse still, gays are often afraid to report antigay crimes. There is a sorry history of  hostile or skeptical police response, public disclosure of the victim’s sexual orientation, and even physical abuse by the police themselves. Investigative bias and lack of police training further complicate the picture. The upshot is that gays must be responsible for their own defense; they cannot rely solely on law enforcement for it.  

Antigay hate crimes share several other characteristics that make the use of firearms for self-defense especially significant. Such crimes are unusually brutal, often involving multiple and vicious attacks. They are highly likely to involve multiple assailants. Attackers themselves often use guns, making anything short of a like defense almost completely ineffective.

Surprisingly, almost one-third of antigay bias crimes occur in the home, the precise location where the D.C. gun law forbids the effective possession of firearms for self-protection.

It’s true that gun possession does not guarantee protection from violent crime. The gun may be incompetently used, for example. But where the Constitution itself protects an individual right, it is not for the government to say the citizen may not enjoy the right simply because she may not make effective use of it.   

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”).

If the Second Amendment protects only the collective right of a state’s citizens to possess arms within a militia, and if gays may be excluded from that militia, then the Second Amendment is a dead letter for gay Americans. They have no rights on the subject the government is bound to respect.  

I do not own a gun. Frankly, I don’t much like them and have never felt I needed one for protection. But for many other gay people, especially the ones living on the margins of life in crime-prone or antigay areas, owning a gun is one important part of a comprehensive plan for protecting life and property.

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.

Writing from the conservative side, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.


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