Lawyers, Guns and Money (Supreme Court May Have To Define Second Amendment)

This time, the Supreme Court may have to decide what the Second Amendment means. But how much will really change?

“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.” U.S. Constitution, Amendment II

Earlier this year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the District of Columbia’s stringent gun-control regulations, ruling squarely that the Second Amendment protects an individual’s right to bear arms.

In the cultural and legal battle over gun control, the decision was the proverbial shot heard ’round the world.

The ruling—in Parker v. District of Columbia—marked the first time a gun law has been found unconstitutional based on the Second Amendment, and it set up a direct conflict among the circuits. Nine federal appeals courts around the nation have adopted the view that the amendment guarantees only the collective right of organized state militias to bear arms, not an individual’s right. (A 5th Circuit panel found that individuals have gun rights but upheld the regulation in question, so both sides claim that ruling as a victory.)

In May, when the full D.C. Circuit Court refused to grant a rehearing en banc, the stage seemed set for a showdown in the Supreme Court, which has thus far managed to dodge the question of whether the Second Amendment guarantees an individual’s right to bear arms.

According to HLS Professor Mark Tushnet, author of “Out of Range: Why the Constitution Can’t End the Battle Over Guns” (Oxford University Press, 2007), earlier petitions were cluttered by issues that allowed the Court to decline review or avoid the Second Amendment question. But Parker “is more straightforward,” Tushnet says, and the Court will have a tougher time avoiding the issue.

If Parker is the long-awaited “clean” case, one reason may be that lawyers for the National Rifle Association—who helped steer the legal strategy of the plaintiffs and backed them financially—have learned from earlier defeats, and crafted the case to maximize the chances of Supreme Court review. For one thing, it is a civil case, not a criminal one, and the six plaintiffs, in the words of NRA President Sandra Froman ’74, are “ordinary people whose lives are impacted by not having the right to protect themselves.” They include a woman who lives in a high-crime area and has been threatened by drug dealers, a gay man assaulted because of his sexual orientation and a special police officer for the Federal Judicial Center.

In addition, the laws challenged in Parker are among the most stringent in the nation: Handguns cannot be registered in the district; those registered before a 1976 ban cannot be carried from one room to another without a license; and any firearm in a home must be kept unloaded and either locked or disassembled.

Also important, says Tushnet, is the fact that because Parker emanates from the District of Columbia, where only federal law applies, it doesn’t involve the overlaying question of whether the Second Amendment applies to a state by way of the 14th Amendment—a question that clouded an earlier case involving one city’s complete ban on handgun possession. He adds that a number of states urged the Court not to take that case, and the solicitor general did the same in another one.

Pro-gun activists like Froman are confident that the Court will hear an appeal by the district in Parker, and they say that they couldn’t have gotten this far without help from an unlikely quarter: liberal law professors. In the past 20 years, several prominent legal scholars known for liberal views, including Professor Laurence Tribe ’66, have come to believe that the Second Amendment supports the individual-rights view. In the 2000 edition of his treatise “American Constitutional Law,” Tribe broke from the 1978 and 1988 editions by endorsing that view. Other liberal professors, including Akhil Reed Amar at Yale Law School and Sanford Levinson at the University of Texas at Austin, agree.

“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe said in a recent New York Times interview. “I have always supported as a matter of policy very comprehensive gun control.”

Froman says the fact that Tribe and others reversed their interpretation in recent years has had enormous influence. Indeed, the majority opinion in Parker, written by Judge Laurence H. Silberman ’61, referred specifically to Tribe’s revised conclusion.

The 27 words of the Second Amendment may be the most hotly contested in the Constitution. Gun-control advocates and opponents read its tortured syntax entirely differently. Each side resorts to what Tushnet calls “a simplified version of constitutional analysis” to support its viewpoint, looking solely at the wording of the amendment and what the language meant in 1791 rather than at whether society has changed in the meantime and what judicial precedents offer guidance. In “virtually no other area in constitutional law” is analysis done that way, he says, although he’s not sure why.

“There’s very little guidance on what the actual meaning of the Second Amendment is,” says Froman, a Tucson lawyer who was interviewed by the Bulletin when she returned to HLS in early April to speak on a panel. “The courts have talked a lot about the Second Amendment but have always been nibbling around the periphery. There’s never really been ‘Let’s explain and elaborate on what it means.’”

For Anthony A. Williams ’87, who served as mayor of the District of Columbia from 1999 until earlier this year and vigorously enforced the district’s gun laws during his tenure, the meaning of the amendment is unambiguous, no matter what interpretive theory is used. “Let’s take [Justice Antonin] Scalia’s approach,” he says. “I think the framers’ intent was to see to it that [through] militias, states as sovereign entities had a right to arm themselves. To me, it’s not about individuals—it’s about groups.”

But Froman firmly reaches the opposite conclusion: “A lot of people say that the prefatory clause of the Second Amendment—the words ‘A well regulated militia …’— limits the active clause pertaining to bearing arms. They want to say that means you can only exercise the right to keep and bear arms as part of a militia, meaning as part of the National Guard, forgetting that the National Guard didn’t exist then.”

“Remember,” Froman adds, “the Second Amendment guarantees a right—it does not confer a right. It’s God-given. It’s natural. The right of self-survival is a basic instinct of any organism.” The Constitution “acknowledges that.”

Tushnet believes that if the Court grants certiorari, it will ultimately overturn the decision of the D.C. panel. “My gut feeling is that there are not five votes to say the individual-rights position is correct,” he says. “[Justice Anthony] Kennedy comes from a segment of the Republican Party that is not rabidly pro-gun rights and indeed probably is sympathetic to hunters but not terribly sympathetic to handgun owners. Then the standard liberals will probably say ‘collective rights.’”

But Tribe is less confident of that prediction. Should the case reach the Supreme Court, he told The New York Times, “there’s a really quite decent chance that it will be affirmed.”

If that happens, Tushnet says, it is unlikely to end all gun regulation, because the Court would probably tailor its decision narrowly to reach consensus. The three-judge panel in Parker struck down only D.C.’s tight laws. “Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible,” he says.

Tushnet says the gun-control debate is an intractable one in which neither side will move, and a constitutional “answer” from the Supreme Court will be something of a nonstarter. Like the arguments over abortion and stem-cell research, he says, the argument over guns is in truth another battle in the culture wars and cannot be solved by constitutional analysis because neither side can be persuaded.

No gun-control strategy with any chance of surviving the political process would have a significant effect on overall gun violence or crime, Tushnet believes. To say so publicly would be the boldest and most honest stand that a major politician or candidate could take, he adds.

The tragic shootings on the campus of Virginia Tech seem to have changed no one’s position: “People responded to it in exactly the way you would expect,” Tushnet says. Supporters of gun control sought stricter laws and better enforcement, and the NRA advocated that teachers and others be armed to protect themselves.

Activists on both sides bear out that observation. Williams believes that the district’s gun laws were having a demonstrable effect on gun-related violence. “When I started as mayor, we had well over 200 homicides a year,” he says. “We brought that down to below 160, so we made serious inroads in reducing violent crime; but still, in many neighborhoods, the situation is horrific.”

Says Froman: “Statistically, the parts of the country with the greatest number of firearms have the lowest rates of violent crime with guns. It’s easy to understand why. Let’s say there were 30 people in this room, and this was a state that allowed people to carry concealed weapons for self-defense, and a criminal walked in. At least half the people in the room would draw down on the criminal. That would be the end of it.”

Froman had nothing to do with guns until, some 25 years ago, someone tried to break into her Los Angeles home. “I was terrified,” she says. “It was a real epiphany for me, for someone who had never been a victim of crime, who never thought I needed to protect myself.” The next day, she walked into a gun shop to purchase a weapon. She has been a staunch gun advocate ever since.

Does Froman ever worry about repercussions, given that she’s at the center of such a heated issue? “I live in a very rural area, at the end of a long driveway,” she says. “People ask me, ‘Don’t you get scared?’ I say, ‘Are you kidding? I have a clear shot all the way to the road.'

In fact, if your line of reasoning is trying to discern the direction of future SCOTUS decisions, as opposed to discussing the natural right and wrong of the matter, I’m probably in partial agreement with your prognostication. See my post at 125.

When the Founding fathers wrote "the people" they meant "a particular group". They did NOT mean "all persons". That's the only point I'm trying to make.

Back in 1792, "the people" who were protected by the second amendment were as I described for the reason I described. Over the years, what constitutes "the people" has changed, either by statute or by constitutional amendment. But it still doesn't mean "all persons".

Don’t know if it’s been stated or not but the NRA has nothing to do with the Parker case AT ALL. They’ve actually tried derailing it on several occasions. First by filing their own broader suit and attempting desperately to combine the two. The NRA lost their suit while CATO and Parker won theirs. The second time was when the NRA attempted to get legislation fast tracked through Congress that would have made the matter moot.

The plaintiff in the case, Parker and the people backing him have adamantly refused funding from ANY group or individual specifically so they will remain beholden to no one. This way, the NRA and other shaky groups can’t take over the case.

The author of this article needs to print a correction on the matter.

And the NRA needs to sit down and STFU.

Mike

"The militia act of 1792 was moot as soon as it was employed"

Or soon thereafter. The usefulness of state militias was debunked in the War of 1812. Some say the corresponding usefulness of the second amendment went with it.

"The real intent of the Founding Fathers on gun ownership ..."

The Founding Fathers did not trust the federal government -- to think they'd look to it to protect their individual RKBA is ludicrous. Their state protected their RKBA.

"If the intent of the Constitution were upheld there would be NO gun laws, except those restricting felons."

The federal gun laws should reflect the wishes of the states.

"and the states are forbidden from writing and enforcing those of their own by virtue of the Constitution"

The second amendment never did, and still doesn't, apply to the states. When originally written, no amendment applied to the states. In my opinion, none should apply today.

Well, at least you agree that "the people" doesn't mean "all persons".

That is right. Illegal aliens, for example, do not have Constitutional protection. They may well possess the rights listed there, since rights derive not from the Constitution but from "Our Creator", but they are not a party to the legal contract between American citizens and the government known as the Constitution.

"The People" refered to in that document are those who are party to the contract, that is, all American citizens.

In reply to #67...

The first part of the phrase “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.” is explanatory, in other words is gives reason why the second part of the statement is there. It defines the basis on which the whole sentence exists.

An example of modern wording be... “Because a properly outfitted militia, being necessary to the security of the freedom of the citizens, the right of the people to keep and carry arms shall not be infringed.”

The wording is quite clear to anyone who understands English. All the “collective” rights BS arguements that are out there are based on pathetically poor English language skills. But it’s not hard to see how people today misread the Amendment since most of those idiots aren’t even “Smarter than a 5th grader.”

Mike

“When the second amendment was written, it only protected the right for white male citizens, 18-45 years of age. Non-whites (slaves) were not protected. Non-citizens, women, and children were not protected under the second amendment.”

You keep repeating this. I’m going to have to ask that you point out in the US Constitution where it says this. The only place ANY distinction was made was apportionment, and not in the context of any rights, but instead in the duties and commissions of the government.

You believe that the only rights we have are the ones approved of by the judiciary. “Incorporated” you call it.

I keep pointing you toward Article VI para 2. The Constitution IS the Supreme Law of the land, regardless of what your beloved judges do or do not say. Each state had to ratify the Constitution in its entirety, accepting all the principles and rights affirmed therein. The Bill of Rights applies across the board.

And your wordplay doesn’t change the fact that the right to keep and bear arms pre-dates the Founding.

None of your beloved black-robed tyrants can change that.

God help them if they try.

"in other words is gives reason why the second part of the statement is there"

If true, it's unique in the U.S. Constitution. The Founders somehow didn't think it necessary to do that elsewhere. I wish they would have, especially in the Commerce Clause.

"The wording is quite clear to anyone who understands English."

If the second amendment protected this right for "all persons", then I'd say you were right. But it doesn't. "The people" did not mean "all persons". It meant those qualified for the Militia.

It excluded non-whites. It excluded women and children. It excluded non-citizens.

What else are we to conclude, other than the second amendment protected the RKBA of individuals in the Militia from federal infringement?

We agree it protects a subset of "all persons". At the time it was written, however, that subset excluded everyone not qualified for Militia membership -- non-citizens, non-whites, women, and children.

See, you just make things up to fit your leftist world view. It doesn't say that anywhere. It doesn't say "the right of militia members to keep..." it says "the people. In modern English, it says that since militias are the foundation of securing the State, the right of all citizens to own and carry arms can't be screwed with in any way. Only lawyers and politicians are too stupid to be able to read and understand it. And that is only because their agendas cloud their comprehension skills.

“The usefullness of state militias was debunked in the War of 1812.” Jackson must not have heard of that. Further, most units from brigade size on down in the Civil War were raised as local and state militia, particularly in the South, but in the North as well,

“The Founding Fathers did not trust the federal government-—...)

Of course not. We shouldn’t either. As for individual right TKBA, I repeat: read the Federalist Papers, if you know what they are and where to find them.

“The federal gun laws should reflect the wishes of the states”:

The Constitution limits government, not individuals. I’m surprised you didn’t know that, because that’s what makes our constitution unique in the world. Consequently, the Constitution protects individual RTKBA, or should, even from the states. Re-read your post; you’re contradicting yourself.

You’re right about the Second Amendment not applying to states. It applies to individuals; therefore, you’ve talked yourself in to a circle.

When it comes to the “people” in carry of “arms” determined to include or not include a specific weapon. At one time “arms” could be defined as long bows as in my post #25 . Some “arms” are considered legal and some are not. The Government can escape “defined” arms in their arsenal. They can become the Goliath.

The laws of states, for instance, have determined what “arms” you can or cannot own, carry, even perhaps location of ammunition to that related firearm. Was the threat even ruled justified in your right to protect self, family, property, etc.

The enemy, lunatic and/or any criminal, however, abide by no laws laid out by lawmakers and politicians of the land.

Maybe more clearly understood in
http://armsandthelaw.com/archives/2007/03/dc_handgun_ban.php

Just my opinion.

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