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.'

"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."

I cited the constitution. I'll cite it again for you.

Article I, Section 2 of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."

I will ask you simply, who are "the people" they're talking about? All individuals? Or will you finally admit that Article I, Section 2 is referring to a particular group of individuals -- only those allowed to vote?

Come on already. This isn't rocket science.

"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."

Maybe not today. We'll see what the U.S. Supreme Court says. But in 1792 that's what it referred to -- the "original meaning", if you will.

Are you a supporter of "original meaning" or "the constitution as a living document"?

"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."

The same people who were guaranteed their freedom of assembly, yes. The Founding Fathers did not limit the freedom of speech and freedom of religion to "the people".

"The definition of "the people" differs, depending on the subject -- the Founders used the phrase to mean "the particular group"."

So,to which particular group do amendments 1,4, and 9 refer? You use a mighty twisted logic, friend.

The term 'people' refers to the body of citizens of the United States,i.e., the body politic. Now, the ACLU might try and extend such a thing to enemy combatants at Gitmo, or drug dealers in Mexico (see US vs. Verdugo-Urquirdez), but that doesn't wash.

Now, I know that such a thing you will ignore, and move on to the next Second Amendment thread to spout the same stuff, but such an egregious (and intentional) effort to twist wording to suit your argument cannot go unanswered (well, actually it could, since responding might be considered by some as validation of your statement, but I'm particularly grumpy this morning).

In another post, you cite the Militia Act of 1792 claiming that somehow this circumscribes the right to bear arms. It doesn't. The purpose of the act was to describe and enable the structure (read:establish uniformity) of a militia for times of repelling invasion. The bit about requiring an individual to "provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power" refers to the expectation that those in the militia would show up for duty already armed (which makes sense--in an emergency such as an invasion, the government may not have the means to distribute arms, and the militia was not expected to throw rocks at the invaders).

Now, at this point, I expect you'll fall back on the Militia Act of 1903 (also known as the Dick Act). The Dick Act was put into place to correct deficiencies brought to light by the Militia Act of 1792. This act divided the militia into two parts-organized and reserve. The reserve portion of the Act still refers to 'able bodied men', i.e., those not members of what is now known as the National Guard. No where in the Dick Act is there a circumscription of the right to bear arms. One *might* argue that the Dick Act actually established something the Founders despised from recent history (recent referring to their time)--select militias.

Now, that all said, the only argument I've seen your closet gun-grabbing self that has any remote merit is the argument on incorporation. Unfortunate artifact from the 14th amendment. You want to argue banning guns from the general public, I suggest you take that tack.

"When the Second Amendment says, "the right of the people to keep and bear arms shall not be infringed", how can you suggest that the protection does not extend to the inherent right that you agree exists?"

Are you saying it must? Why must that federal protection extend beyond those who would serve in the Militia? Isn't that protection up to each state?

The decision to protect all other rights in the Bill of Rights was made by each state. But you're saying the federal government must protect this one particular right for all persons?

I don't understand.

"How does the fact that a well-regulated militia is necessary to the security of a free state, reduce the scope of the inherent right protected in the Second Amendment?"

Because "the people" in the second amendment refers to those qualified for a Militia.

"It would be so easy to word an alternative Second Amendment to apply the protection ONLY to service in a militia"

It does that already. Actually, it would be so easy to word an alternative Second Amendment to apply the protection to a wider group. The Founders could have said "all individuals", "all persons", or "all citizens" in lieu of "the people".

So, the right of self-defense cannot be taken away without individual due process, except that citizens decide which weapons weapons may be used and under what conditions? I’m paraphrasing there, but that should be pretty close.

This is absurd on its face because these issues are certainly not put to any sort of ballot. And make no mistake, self-defense is the real issue, not firearms. They are a proxy of sorts because they are singular and de facto the weapons of choice currently, there really isn’t any competition. Is it due process to prohibit citizens right of self-defense?

"Bob, let's say a state (California, for example) went door-to-door confiscating weapons (arms) from 'the people', including 18-45 year old, white males."

Going door-to-door without a warrant seizing private property from some individuals without due process or just compensation? Forget the second amendment -- so many other rights are being violated by that activity that the second amendment is moot.

Let me start by saying that there is no protection of the RKBA in the California State Constitution. Theoretically, California could seize all guns.

But, as you pointed out, doing so would infringe on the ability of Congress to call up a well regulated (armed and trained) state Militia, and would violate the U.S. Constitution.

"Who would the governor call?"

The California National Guard, which has replaced the citizen Militia in most states.

"All we would hear about from the anti-gunners would be "the Constitution is not a suicide pact" and that our Founders never meant for the people to have arms to challenge the authority of government."

All of our other rights are reasonably regulated. I see no reason why the second amendment would be an exception.

If the anti-gunners object to the individual right to keep and bear rocket launchers, perhaps legislation could be written to accomodate that. For example, "all personal rocket launchers are to be kept in the Militia armory".

"The latter requires that the right of the people to keep and bear arms not be infringed, including that of 85-year-old women."

The Founding Fathers did not expect 85-year-old women to need that right protected since 85-year-old women were not expected to defend the country. If the state wishes to protect her right, they certainly may.

"And how does this justifies the banning of some otherwise-legal rifles because they have bayonet lugs?"

Huh?

The poster claimed that only anti-gunners were at odds with the wording of the second amendment. I simply corrected this misimpresssion.

"There were no arms which were not protected by the Second Amendment at the time of our nation's founding, and there are no arms which are not protected today. None."

Well, if a state does not consider a particular weapon to be a Militia-type arm, then the right to keep and bear it may be infringed. I'm sure you agree.

"If the people wish to reduce the scope of the word "arms" in the Second Amendment, they are free to do so using the amendment process. What they may not do is permit the Congress to violate the Bill of Rights or look to the courts to re-interpret the scope of the protection."

It's not even that complex. Each state has the responsibility of maintaining a well regulated Militia. Congress may not infringe on the ability of a state to perform that function. If Congress bans a certain weapon used by that state's Militia, the state may appeal that action to the U.S. Supreme Court.

I looked it up and there were more than I thought.

List of current State and Territory Defense Forces

Alabama State Defense Force
Alaska State Defense Force
California State Military Reserve
Connecticut State Militia Units
Georgia State Defense Force
Indiana Guard Reserve
Maryland Defense Force
Massachusetts State Guard
Michigan Volunteer Defense Force
Mississippi State Guard
New Jersey Naval Militia
New Mexico State Defense Force
New York Guard
Ohio Military Reserve
Oregon State Defense Force
Puerto Rico State Guard
South Carolina State Guard
Tennessee State Guard
Texas State Guard
Vermont State Guard
Virginia State Defense Force
Washington State Guard

"The term 'people' refers to the body of citizens of the United States,i.e., the body politic."

It did? Article I, Section 2 of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."

You're saying that all citizens voted in 1792? Men, women, and children?

I don't think so, amigo. And since that absolutely destroys the rest of your argument, I need not go any further until you regroup -- if you can.

Boy, that site really bothers you, doesn't it?

Yes. Because it gives opinion instead of stating facts backed up by those who wrote the Constitution and the Bill of Rights. It twists the plain meaning of their words.

You know, I would understand that if only you would refute it.

Not that you would acknowledge such. You are a troll. Also note: You haven't refuted a damn thing in this post.

Art 6 Para 2, the text of the 2nd Amendment, and the writings of those who WROTE, DEBATED, and PASSED such legislation hasn't corrected your idiotic gun grabber arguments. Not even the Gods could.

This doesn't make your "opinion" correct. Just treasonous and stupid.

"So, the right of self-defense cannot be taken away without individual due process, except that citizens decide which weapons weapons may be used and under what conditions? I’m paraphrasing there, but that should be pretty close"

It is.

"This is absurd on its face because these issues are certainly not put to any sort of ballot."

You mean, "mob rule"? No, they're not. In a representative republic, we elect representatives who pass these laws.

"Is it due process to prohibit citizens right of self-defense?"

You have the right to defend yourself. But what makes you think that you have the right to plant mines in your front yard or booby trap your front door or use a flamethrower to do so?

Look. If you want to live in a cabin above the tree line like some Jeremiah Johnson, I could give a FF what you do. Buy you come down off the mountain to live among society, you play by the rules of that society.

You have no inalienable right to defend yourself with a machine gun. Your state may protect your right to defend yourself with a weapon. If they do, they will define when and where and how that weapon may be used.

You shoot a bad guy in the back as he's running away from you, you may be arrested and thrown in jail. Dem's da rules.

"The people" are "all citizens". In every instance where it is found. Your ridiculous assertions don't change that."

Not true. I'll cite it one more time.

Article I, Section 2 of the U.S. Constitution reads, "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."

You're saying that all citizens voted in 1792? Men, women, and children?

I seem to recall that only white, male, citizen landowners voted in 1792. I'm wrong?

Yeah, yeah, yeah. Art 6 Para 2 applied the BOR to the states.

And for the next 150 years the states got away with violating the Bill of Rights left and right because ... what was it you said ... "this was perverted by the Judiciary"?

Oh sure. That makes much more sense that the fact that the BOR never did apply to the states to begin with. Countless, ever-shifting Supreme Courts over the years, all magically agreeing to pervert the U.S. Constitution.

It's a conspiracy!

It is irrationally claimed that 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.
"The people" in the second amendment did not mean "all persons". When the Founding Fathers wanted to protect the right of an individual, they referred to "person", or "citizen" or "he/him".

You countered that:

"-- The same 'people' are referred to in the 10th Amendment. [as in the 2nd]

Note that in a typically 'gutless' [as quoted above] manner, - there was no rational reply.

"We the People of the United States" refers to all of us, not just white male citizens, 18-45 years of age.
Non-whites (slaves or not) could bear arms, as many did in wartime or to protect their masters.
By common law, criminals/slaves/convicts could be prevented from bearing arms, - no others.
Non-citizens, women, and children could bear arms under the second amendment. Indisputably, many have.
"The people" in the second amendment meant "all persons".
The Founding Fathers wanted to protect the right of all individuals, referred to as "person", or "citizen" or "he/him", - or as "the people".

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