Posted on 07/06/2007 4:34:01 PM PDT by fight_truth_decay
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.'
From the Militia Act of 1792 to the Dick Act of 1903, the United States lacked a uniformly enforced militia policy. The modern National Guard began with the Dick Act, which divided the militia into the organized militia, or National Guard, and the unorganized militia.
"The people" were the enfranchised body politic. By definition, it excluded certain persons.
"You believe that the only rights we have are the ones approved of by the judiciary. “Incorporated” you call it."
Starting in the 1900's, the process of "incorporation" selectively applied the Bill of Rights to the states. As written and as intended by the Founding Fathers, the Bill of Rights were only a restriction on the federal government.
"I keep pointing you toward Article VI para 2."
That says the U.S. Constitution (as a contract) supercedes all other contracts (eg, the Articles of Confederation), and is the Supreme Law. Article VI, Section 2, does not say that everything in the contract also applies to the states. That would be silly.
"And your wordplay doesn’t change the fact that the right to keep and bear arms pre-dates the Founding."
The right is inherent. But I'm talking about the protection of that right, not the right itself.
What you mean is that since militias are the foundation of securing the State, the right of all citizens Militia members to own and carry arms can't be screwed with in any way.
Come on. If Militias are indeed the foundation of securing the State, why protect that right for an 85-year old woman? That makes sense to you?
Yes, we protect her RKBA today. But for different reasons. Not because she's the foundation of our security.
Blacks didn't have the right to vote until 1870.
You can’t point out where it says what you claim, once again. Its not there. So your whole argument is based upon a fallacy.
You had better re-read Article VI para 2 again. It specifically says what you claim it doesn’t.
Just so we are clear here, this is the ENTIRE text of what I speak of:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
So yes, it DOES say what you said it doesn’t. The States are bound by it, your beloved black-robed tyrants are bound by it; it is the Law of the Land.
Any ruling made by the BRTs contrary to it has no force of law. They broke their oath of office when they made the ruling contrary to. Of course, they have been enforcing each others rulings for so long that that principal has been lost.
Time to remind them of it.
I'm sure the families of those 160 murder victims will rejoice over how "successful" the DC gun control laws were.
Come on. If Militias are indeed the foundation of securing the State, why protect that right for an 85-year old woman? That makes sense to you?
It sure does. If her son is off forming up with other citizens from his town, she may well have to "hold down the fort" at home in his absence. During WW2 a good many older guys formed local security watches with arms provided by themselves while most of the young men from their towns were over seas.
Besides, the point is your multiple definitions for "the people" comes straight from your arse. In your world, "the people" has a new meaning for every use of the phrase.
Of course the states are bound by it. But you're trying to tell me that Article VI, Section 2 applies everything in the U.S. Constitution to the states.
No? You're not? You're saying Article VI, Section 2 applies the Bill of Rights to the states, are you not?
Gosh, does that mean states can print money? Hey, that's in the U.S. Constitution. Doesn't it also apply to the states, as per your convoluted logic?
Or are you willing to admit that parts of the U.S. Constitution apply to the federal government and parts to the states and that Article VI, Section 2 says that the contract (the U.S. Constitution) is binding on both and supreme over every other contract?
You need to think a little and not simply parrot something you saw.
If you need more proof than that, I suggest you use Google.
Even better, today he might say “How strangely will the pervert tyrranize the plain meaning of words..”
My point is that you’ve asserted something that you not only can’t back up, but that isn’t true. And go bluster to someone else about Google, please.
What is your personal opinion about the right of self-defense? Do you think it should be prohbited, and how do you think the framers would respond to that today?
A completely hysterical argument on your part...
The US Constitution lays out what the duties of government are. Can a State print money? No, (and neither can the Federal government, as they may only MINT money) but they may issue gold and silver Coin for payment of debts. The document lays out some things very specifically. Some things it says only the Federal government can do, and reserves other things for the States or the People. But the States are bound to it as a whole, not that the State may ACT as the Federal government. That argument is specious, as are most of your assertions.
If the Federal government is prohibited from an action bearing upon the rights of the People, so are the several States. Hence the word ‘inherent’ our Founders were wont to use. We have inherent rights that may not be infringed, by any governmental authority, be it Federal or State. Or by your beloved BRTs. I get the impression that you work in the ‘legal’ profession. You have a tendency to bastardize words and concepts, warp clear meaning, and try to obfuscate the meaning of the word ‘is’.
Willian Jefferson Clinton, Hillary Rodham Clinton, and Charles Schumer do the same thing.
Clearly that is the direction that this particular brouhaha over the Second is trending and is one reason why some of us are a little concerned about intervention on this issue on the restriction side by the federal government, should that be the way the decision goes. How much latitude the states really have on the matter will almost certainly undergo some change out of this, and call me paranoid if you like, but it seems that gun control advocates would find it much easier to pass one draconian law nationwide than attempt to address the issue in the various states. In fact, they've tried that and with the AWB succeeded, at least partially.
Still, it would be interesting to get a definitive view, however narrow. The entire body of gun control law isn't likely to shatter because of it, however much I'd prefer that personally.
That's true. Lots of gray area but very little gray matter on the left.
I don't see 4 commas in that image. I see perhaps the three that are commonly accepted today but the 3rd one, the one that really makes no sense, is highly questionable to me. It does not look like any of the other commas in the document being much smaller and not elongated. It looks like a foreign object or an accidental touch of the pen to me.
robertpaulson: Some rights are individual. Some are of the whole people (or the people at large). So I agree.
Sophistry befitting a third grade squabble over a PB&J.
Again I ask; where? This must make over a half dozen times on this thread that you've been asked to document that claim. It's telling how assiduously you avoid doing so.
It was certainly not limited to only the people engaged in militia activities, nor was it limited to only people who would be required to engage in such activities.
I see no reason to believe that it was not the same people who were guaranteed their freedom of assembly, freedom of speech, and freedom of religion in the First Amendment.
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