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.'
Invented crap? You're the expert.
You're the one telling me that the second amnendment protects an individual right because "the people" in 1792 were everyone. Well, not Negroes, because they weren't citizens. Citizens, it protects citizens. Well, citizens, yes, but not women and children.
This is like a Monty Python skit, for crying out loud.
Little by little you get closer to the truth. "The people" referred to in the second amendment were not everyone. That was my point. "The people" in the second amendment only referred to the members of the Militia.
State constitutions protected the individual right to keep and bear arms. Still do.
"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?"
Those are totally off-topic, and I have no intention of going down those paths. If you have something that supports your point, post it.
How about you don't? Why don't you just hang your hat back over at DU where your views are welcome?
It is rationally indisputable that at least three States, CA, NY, and Ill, allow infringements on our rights to own and carry arms.
And that is my point, utter bullshit.
Well, not Negroes, because they weren't citizens. Citizens, it protects citizens.
Yes. Citizens. And if Negros were considered property, then I guess they weren't considered citizens.
Well, citizens, yes, but not women and children.
I have answered that specious assertion. Show me where women were had no rights as citizens and had no rights under the Constitution because they were not able to vote. And I addressed that children have fewer rights and responsibilities because they are, well, children. It is just foolish that you continue to repeat that nonsense.
Those are totally off-topic, and I have no intention of going down those paths.
Off topic? That is your whole premise, only white male landowners between 18 and 45 have Constitutional rights. This is the corner you paint yourself into, so answer the question. 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? If not, why not? According to you they are not "the people" and have no rights.
You got that right. The people will also prolly have to define good/bad, hot/cold, up/down, black/white, and the meaning of the word "is" to a government that is just as likely to read an opposite meaning into a word as to read the meaning the way any nine year old kid knows to be correct.
"But no children, Robert. Sorry. Why'd you put that bit of idiocy in there?"
The poster said "the people" referred to all citizens. Children are citizens. I was having fun.
"They seemingly were addressing all of their efforts at one group in particular - free men!"
Bingo! The Founders seemed to alternate between using the term "freemen" and "the people" (they also used "the people at large" and "the whole people"). But it all meant the same thing at the time -- us white guys with the money. Slaves, women, children, non-citizens -- you're all second tier.
"In the 1770s and 1780s, men , invariably white, were the body politic."
Correct. Only "the people" (freemen) had the right to vote. The freemen served in the Militia, and their right to keep and bear arms was not to be infringed by the federal government. The freemen assembled and petitioned the government, and that right was not to be abridged. There were rights that applied to the freemen, and only the freemen.
Yes, the body politic has since expanded. But my point was that, in 1792, "the people" in the second amendment did not mean everyone or every citizen. It meant those qualified to be in a Militia.
"Your invoking Article I, Section 2, while ignoring the Bill of Rights themselves is not a particularly intelligent approach to tackling this question"
It was the easiest way to demonstrate that "the people" did not mean everyone, since most people know that, in 1792, the right to vote was very restricted.
That's true.
Whoa! Either-or. So the Bill of Rights contains rights held by the people at large or by people as individuals.
He's saying that the BoRs applies equally to people at large or to individuals. You put the "either" in there not Gallatin. That shoots your entire argument all to hell. Not rocket science.
Even pedantic gasbags have their uses.
"Could they be imprisoned without trial for writing their opinions?"
Where does the U.S. Constitution say that "the people" have a right to free speech? It doesn't say that. Where does it say that "the people" have a right to a trial? It doesn't say that.
"Could the government arrest them for attending church?"
Where does the U.S. Constitution say that "the people" have freedom of religion? It doesn't say that.
You're making this "crap" up.
As to the fourth amendment, the original proposal from both New York and Virginia was:
"That every Freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property..."
In 1792, women were not Freemen.
That's irrelevant that's no longer the law.
Where does the U.S. Constitution say that "the people" have freedom of religion? It doesn't say that.
You're making this "crap" up.
You have completely jumped the shark on this one. You no longer have any credibility.
No. Humans have an inalienable right to self-defense, I’m sure we agree on that, at least I hope so.
It's relevant when you're trying to find the original meaning of the term "the people", and whether the Founders meant a collective right or an individual right.
In other words, it's relevant to the discussion on this thread.
I'll tell you what's irrelevant to the discussion. You, with your attitude.
Now that's just silly. Some rights applied to the people at large and some rights applied to individuals.
Words mean things.
The U.S. Constitution does not use the phrase "the people" in those areas you mentioned (speech, religion, or trials). It either says nothing or it refers to "persons" or "the accused".
When I referenced "free men", it was meant as just that - men who are free and men who yearn to be free. This is not to be confused with the term "freemen" that you mention. Two different things, two different meanings. And I didn't mean "freemen".
Please also note that I utilize the term "free men in the inclusive sense of humanity at large - both men and women. That is the reality today, even if it wasn't back then.
CA....
You're making this "crap" up.
Um, in the Bill of Rights, I think. That is part of the U.S. Constitution, ain't it Boss?
As to the fourth amendment, the original proposal from both New York and Virginia was:
"That every Freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property..."
And that language was NOT adopted, right? ....RIGHT!!!
So what IS your point? Except an entire thread of you pulling stuff out of your @$# and making a fool of yourself? WHAT, bobby? So you hate freedom, and worship government power. We all know that. Ad Nauseam, we know that. If there is a question of meaning, I prefer that interpretation that expands freedom and reduces government power, clearly you prefer the opposite. And that is well noted here. But you must really be embarrassed by the lengths you must go to in order to defend your predetermined conclusion. At least, I am embarrassed for you.
We do agree on that.
But the right to keep and use a weapon (for whatever reason) is not an inalienable right (like life, liberty or property). It is a natural right which may or may not be protected by a state.
You cannot use a handgun for self-defense in Chicago. Or Morton Grove, Illinois. Or Wilmette, Illinois.
"CHICAGO -- A 55-year-old Wilmette man was charged Thursday with weapons violations after he shot and wounded a burglar in his home more than a week ago."
"Hale DeMar, of 35 Linden Ave. in the north suburb, was charged with a misdemeanor for violating a state law that required firearm owners to have a valid Firearm Owner's Identification card, Wilmette police Officer Roger Ockrim said in a news release."
"DeMar was also cited for violating a village code that prohibits possession of handguns in Wilmette, the release said. Violation of the ordinance is a petty offense carrying a maximum fine of $750 upon conviction."
"And I didn't mean "freemen".
Freemen (or Freeholders) was the correct term for the group we were discussing, even if you didn't mean to use it.
Many things are different today than in 1792. But in order to determine if the second amendment protects an individual right or a collective right, we need to know what the Founders meant by "the people" in 1792.
And I contend that it wasn't every person or even every citizen.
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