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.'
Agents Provocateurs are one thing. Their existence here has been long a matter of some conjecture. Our pet Statist is something of an entirely different order. Less someone to keep a conversation going and more like having Michael Moore posting openly...
You seem to be of the opinion that the Constitution and the Bill of Rights means whatever the courts say that it means. From a practical standpoint, we are stuck with their decisions. But that does not make them right or wrong in any given case.
Since the Supreme Court has been silent with respect to "incorporation", we do not benefit from such. But it cannot be that the meaning of the Constitution is like some political quantum physical experiment, where we can't know the proper outcome until the court rules.
At such time as the Supreme Court "incorporates" the Second Amendment, that will be their decision regarding what the Constitution has meant since the passing of the Fourteenth Amendment.
So you are free to tell us what you think they SHOULD DO. If they "incorporate" the Second Amendment does that mean that YOU were wrong concerning the meaning of the Second? Or does that mean the Supreme Court is wrong in "incorporating"?
Of course, he's got excuses as to why those "infringements" aren't in fact infringements. None of them make any more sense than his original anti-2A arguments.
Identify where Congress gets the power to disarm an 85-year-old woman living alone in her home. You can't. You're rambling.
You're making up silly hypotheticals that have no basis in fact just to get a reaction. Isn't that called trolling?
"I already stated my opinion that such an 85-year-old woman would be among "the people" in the Second Amendment."
Well, of course. If you believe the second amendment protects an individual RKBA, then that would include 85-year-old women.
And I'll just go ahead and assume you mean every person has the right (since you refused to answer my question) -- non-citizens, felons, parolees, illegals, foreign visitors, 4-year-old children, and the insane.
Do YOU want to go record with that?
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. [or, - may not]
You wrote:
Let's get on the record the following: "robertpaulsen is of the opinion that the Second Amendment is not a bar to Congress disarming an 85-year-old woman living alone in her home. That the Founders did not intend to deprive Congress of that power."
I'm surprised that the statist nit has not been picked that Congress "barred" the lady from having a gun.
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. [or, - may not]
You wrote:
Let's get on the record the following: "robertpaulsen is of the opinion that the Second Amendment is not a bar to Congress disarming an 85-year-old woman living alone in her home. That the Founders did not intend to deprive Congress of that power."
I'm surprised that the statist nit has not been picked that Congress "barred" the lady from having a gun.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Whoops! the nit has picked..
You are asked to identify where Congress gets the power to disarm an 85-year-old woman living alone in her home.
The DC 'law', empowered by Congress, says that 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.
Case closed.
Only since Marbury v Madison. 1803.
"From a practical standpoint, we are stuck with their decisions."
There are ways around it, but you're right.
"But that does not make them right or wrong in any given case."
True, but it does make their decision the law. And that's what's important.
"Since the Supreme Court has been silent with respect to "incorporation" ..."
It could be they're silent because they have nothing to say.
Let's make an assumption for sake of argument. Let's say, hypothetically, that the second amendment protects the RKBA of those in a state Militia from federal infringement.
Now, how do you go about incorporating that? A state may not infringe itself from not infringing on the right .... See what I mean?
Now, you're saying it protects an individual right so it's easy to incorporate. Sure, if it's an individual right. But you're getting ahead of yourself, aren't you?
"Or does that mean the Supreme Court is wrong in "incorporating"?"
Activist U.S. Supreme Courts took advantage of the 14th amendment's due process clause and "incorporated" most of the BOR. By doing so, thay have destroyed federalism. Were they wrong?
No, no more than a slick lawyer who takes advantage of a loophole in a contract. It's not wrong -- it's just not what the writers intended.
Fine.
Then tell me what you mean when you say "a right to self defense" and who is supposed to protect that right. Then I won't have to guess what you mean.
If they "incorporate" the Second Amendment does that mean that YOU were wrong concerning the meaning of the Second? Or does that mean the Supreme Court is wrong in "incorporating"?
Your statist opponent 'answers' by claiming that activist U.S. Supreme Courts took advantage of the 14th amendment's due process clause and "incorporated" most of the BOR.
When in reality activist U.S. Supreme Courts in the Jim Crow era denied that the 14th amendment's due process clause applied to the bill of rights.
Thus, later Courts invented "selective incorporation" to 'most' of the BOR, - when in fact, - all of the BOR's have always applied to all levels of government in the US of A.
Socialists and statists claim that by doing so, Courts have destroyed federalism. They are wrong, in that States still have enormous powers to ignore unconstitutional 'laws'.
That they do not do so is a political problem, made by those same socialists/statists.
Excellent post...
In the socialist/statist world, “the people” are whomever majority rule says they are.
We already established that, I’m not sure why you want to go over plowed ground again?
Self-defense currently means a firearm - typically a handgun, rifle, or shotgun depending on the necessity.
It bothers me not one bit. As long as evolving understanding of the language is in the direction of more liberty for more people, and less power for government to encroach, I favor it. Since you have beat the horse to death that blacks were prohibited from their rights under "original intent", shall I conclude you wish to return to that? After all, most of the original gun laws you love and the court decisions you site with relish were aimed at preventing them a means to defend themselves.
That is correct. The definition of "the people" has changed over time. But the Founder's original intent, the Founder's original meaning of "the people", were those white, male, citizen landowners who were entitled to vote and formed the group from which some were selected for Militia duty.
And again you wring a pound of lie from an ounce of truth. If you are saying that 16th century norms were too restrictive as concerns women and minorities, I agree. All the other crap you invented about who "the people" are is just that. "The people" in the 2A have a right to keep personal arms, separate any militia duty. And if those "people" include a greater share of the populace today than previously, that is a good thing.
Besides, you still haven't shown me where only those eligible to vote have rights. Are you saying women could be subject to unreasonable searches because they couldn't vote? Could they be imprisoned without trial for writing their opinions? Could the government arrest them for attending church? Perhaps they could be drawn an quartered because they weren't allowed to vote? If not, why not? See how stupid your assertion is?
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.
You seem to always come back to Article I, Section 2 as your main point of defense. You apparently don't know much about the times back then, Robert.
I suspect your basis of defense of your position on this is the tired and worn position of the ultra radical left about the founding of this nation, and it's attendant documents, is the result of efforts of old, bigoted white men who were doing little more than looking out for themselves and their toadys.
In the 1770s and 1780s, men , invariably white, were the body politic. That's simply the way it was at that time. As the nation grew and expanded, and underwent trial by fire, the base that is the body politic has expanded with it.
We now have a body politic consisting of men and women of all races and creeds. They all pay taxes, all have the right to exercise their franchise by voting, and all pledge allegiance to the country.
But no children, Robert. Sorry. Why'd you put that bit of idiocy in there?
Thus, this is the body politic circa 2007. Just as farmers and shopkeepers who were white in that day made up the "body politic", so this expanded definition fits the bill at this time in history. It is still the body politic!
Your invoking Article I, Section 2, while ignoring the Bill of Rights themselves is not a particularly intelligent approach to tackling this question, but it's not the first time you've used twisted logic to arrive at fallacious end points in an argument.
Nothing personal, mind you - it's just that you don't seem to have a good grasp of the situation when arguing to bring people into your fold.
And while it's still on my mind, the "particular groups" approach to interpreting the Constitution (I'll admit, first time I've ever seen it used) does have a basis in fact. They seemingly were addressing all of their efforts at one group in particular - free men!
CA....
>At that point he, and the rest of my relatives who had been in Israel got these sick looks on their faces.<
I would have loved to have been a fly on the wall to observe the sick looks.
No, you didn't. You dodged it.
Who are "the people" in the second amendment? All persons? All citizens? All males?
Do you know?
I guess I'm trying to figure out why you believe the rest of must protect that right, and where you got the list of weapons. You response is so random, I don't even know where to begin.
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