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.'

If 10 BATFE agents start at one end of a neighborhood in some pro-gun states, I doubt more than 8 will walk away from the first house they approach. Continue a 20% loss per house and I see a definite loss of interest in enforcing this law.

I guess you missed the lack of outpouring of support this thing garnered?

If Hillary! decides to confiscate guns, there will be resistance, and those who resist will be marginalized as child molesters and gun hoarders and cultists, and popular opinion will grow against us.

Ask the Poles. It can always happen again.

"So what IS your point?"

The point is that if the U.S. Supreme Court is going to conclude that the second amendment protects a collective right, then I don't want it going to the U.S. Supreme Court.

Everyone's sitting around in this big circle jerk talking about how one lousy DC Circuit ruling "got it right" and that we need to hurry up and get this issue in front of the U.S. Supreme Court where they will, of course, rule that the second amendment protects an individual right and we'll all get to walk around with full-auto M-16A's.

I'm simply pointing out that may not happen and why I think it may not happen. Excuse me for having a f$%^ing opinion.

Anything upsets your little world and you get all bent out of shape. You and some of the other unnamed posters on this thread are Sarah Brady's best friends. You with your ignorance will get guns banned faster that she ever will.

So, stay closed-minded. Ignore my posts (please). If someone challenges what you KNOW to be true, just call them names. You and your buddies are real good at that.

I have no clue as to why you're even on this forum. Do you?

"...the right to keep and use a weapon (for whatever reason) is not an inalienable right (like life, liberty or property)"

Then, we don't agree - it appears that your contention on the right of self-defense is flawed in that you're trying to hold mutually exclusive concepts, not to mention what happens to real people in real life situations when such a situation is allowed, that is a prohibition on self-defense. When the most likely criminal threat faced by a person or persons during burglary, robbery, rape, murder, etc is a criminal with a firearm, how is it that the right of self-defense precludes arms?

I'm simply pointing out that may not happen and why I think it may not happen. Excuse me for having a f$%^ing opinion.

You are damn welcome to your opinion. But your opinion about what "the people" in 2A means is a stretch at best. Not that leftist judges won't agree with your stretch, they have.

I'll chalk that up to exasperation.

I have no clue as to why you're even on this forum. Do you?

Yep. I believe in limited Government power and expansive personal freedom. I used to believe the Republican party did too. I still think free speech is the best way to advance that idea. So far, Jim lets me do that here.

right to keep and use a weapon

Which one might consider now "a permission" to keep and use, so we have discussed. This right (as most would define as was penned by the founding fathers) was lost a long time ago with states,cities made laws on what "weapons" may fall under civilian ownership in the way of self protection.

Even nonlethal pepper spray can incur criminal or civil liability.

The government and/or said militia will make advances in technology for protection of the whole. The civilian has already been stripped of "the right" to bear arms considered "unreasonable" in killing power.

The evil of men, at any cost, at any time, are prepared for attack(s) where and when they see fit. Be Damned the law, your rights to Life, Liberty And The Pursuit Of Happiness.

We can only be vigilant.

robertpaulsen said: "The second amendment protects the RKBA as part of a Militia."

So the pre-existing "right of the people to keep and bear arms" was just a right of people to serve in militias and did not extend to personal protection? Or do you claim that the militia clause narrows the pre-existing right?

You keep claiming that one can look to the states to protect the right to keep and bear arms for purposes OTHER than militia service. But what would the state constitution say? Would it say, "the right of the people to keep and bear arms shall not be infringed"? How would this prohibition against infringement be different from that which is explicit in the Second Amendment?

Experts in grammar have stated that the dependent clause in the Second Amendment DOES NOT narrow the explicit independent clause? If the pre-existing right to keep and bear arms included self-protection, then THAT is what is protected from infringement. Do you claim that the grammar experts are wrong?

robertpaulsen said: "Identify where Congress gets the power to disarm an 85-year-old woman living alone in her home. You can't. You're rambling. "

So you agree with the Parker decision? I had no idea. Congress has exercised its power to disarm EVERYONE in Washington, D.C. for about thirty years now. Why don't YOU tell ME where they get that power? Probably the Commerce clause, don't you think?

Plus, the second amendment protected the RKBA of those people from federal infringement only.

Wrong. It says that "...the right of the People to keep and bear arms shall not be infringed." It didn't say - as the 1st Amendment does, "Congress shall pass no law..." The 2nd clearly doesn't apply to just the Congress (i.e. just the Feds).

Further, there's the little matter of the 14th Amendment. No, the 2nd hasn't been applied to the states via the 14th, as other Amendments have...but read the debates during the ratification of the 14th Amendment. A very comprehensive treatment and analysis of this can be found in the book "That Every Man Be Armed" by Steven Halbrook. The imetus behind the 14th was the denial by southern states of the RKBA of there new black citizens.

So, which government agency do you work for, anyway?

“Stuff and nonsense. Parker is a “clean” case because the lawyers from CATO worked hard to make it such. The NRA has done everything possible to keep it from being heard - from trying to take over the case, to filing parallel cases that include stacks of irrelevant issues that seem to have been intentionally designed to give the courts a reason to dismiss on other grounds, to trying to get Congress to repeal the ban rendering the case moot. The NRA does, finally, seem to have gotten on board with Parker, but the streng6h of the case has nothing to do with the NRA.”

Utterly, 100% correct. The NRA is, like a bunch of JBTs attacking the Branch Davidian compound, busy reinforcing the belief of those who think that the NRA is more about keeping their jobs than our guns. I’ve been an NRA member for 18 years, and I’m damned close to not renewing after the nonsense with Parker and the crap with NICS. Geez Louise, trying to stop the best pro-gun case to ever come down the pike and cooperating with Chucky Schumer in the same year!!!

His response was, "well, with all those guns around, I sure wouldn't start up any trouble."

My response to him at that point would have been to knock his head a couple of times with my knuckles, while simultaneously saying, "McFly! McFly! Is anyone home, McFly?"

Isn't "I sure wouldn't start up any trouble" kind of, you know THE WHOLE FRIGGIN' POINT?!

It never ceases to amaze me how utterly stupid some of our fellow tribe members can be when it comes to matters of self and national defense. It makes you wonder why everyone thinks that Jews are so smart - because the uber-lefty bliss-ninnies among us sure aren't.

In United States v. Cruikshank, 92 U.S. 542 (1875), the U.S. Supremne Court ruled that the second amendment "has no other effect than to restrict the powers of the national government." In other words, the second amendment doesn't apply to the states -- states are only restricted by their state constitution.

In Plessy v. Fergusen in 1896, the Supreme Court said that segregation was constitutional. Since Brown v. Board of Education in 1954, the Supreme Court has said the opposite. Which is correct? What does that have to say about Cruikshank?

"So the pre-existing "right of the people to keep and bear arms" was just a right of people to serve in militias and did not extend to personal protection?"

No. The pre-existing right extends to everyone. Whether or not that right is protected is up to each state. The federal government is not to interfere with a state's Militia.

"But what would the state constitution say?"

It would say what the citizens of that state wanted it to say depending on what right the citizens wanted to protect. Some state constitutions say nothing.

"Experts in grammar have stated that the dependent clause in the Second Amendment DOES NOT narrow the explicit independent clause?"

For someone who is real big on original intent, why would you turn to "experts in grammar"? Rhetorical.

I said before, the first part explains the second. Who are "the people" whose arms are protected in the second amendment? If the Founders meant everyone or all citizens they would have said so, as they did elsewhere in the constitution.

The first part clarifies that the federal government cannot interfere with a state's Militia. Didn't you at least take that away from the Miller decision?

Sorry. I thought you were talking in generalities. I didn't realize you were only referring to 85-year-old women in Washington, D.C.

Congress has police powers over Washington D.C. The D.C. stands for District of Columbia. It's not a state.

"So you agree with the Parker decision?"

So the Parker decision allows all 85-year-old women to arm themselves how they please? Wow. Sweeping reform, huh?

"Just curious, but are you going someplace other than Only-the-National-guard-and-the-police-should-be-trusted-with-guns? Are those the “people” you have in mind?"

What I have in mind wasn't the issue. What I wanted to know was what YOU had in mind.

It's not a trick question. The second amendment says "the people" have a RKBA. I'm asking you for, what, the third time, who those people are. Are they everyone? Only adults? All citizens? All male citizens? All persons?

And where did you get your definition of "the people"? Certainly you have an opinion on this. After all, it is the heart of the discussion in which you chose to participate.

Why in the world is this so much like pulling teeth? No one wants to answer this very basic question. Yet they'll line up in droves to pick apart, critize, and mock my definition.

New rule. I will no longer respond to any poster on this thread who has not offered his own definition of "the people" in the second amendment. 290 posts is enough of this bull$hit. Put up or STFU.

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