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.'

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.

No, Robert, Freemen is the term you are using for purposes of this discussion. Not I. I've already made that plain, and you are immediately trying to define the terms of this discussion in direct contravention to my earlier stated definition and limitations.

Nice try, tho. It's always a bit easier to control a discussion when you think you can set the definitions and scope of the discussions on the fly.

I don't play that game.

Getting back to the discussion and definition (!) of the term, "People", among other things, you must understand the bit about white male landowners was a bit of very important political reality. The Great Men who wrote our founding documents did what the could, given political realities at the time.

They couldn't abolish slavery, even if they had wanted to. It simply wasn't politically possible in that time. They couldn't introduce universal sufferage, even if they had wanted to, for the same reasons.

No, there was a lot they couldn't do. But they took the gamble that what they did do would be accepted by those who mattered at the time, and that their vision would grow even as the country, and the times, grew with it.

These revolutionary and (to established governments) dangerous documents were, by their stated goals, meant to offer their vision to posterity, and I'm quite sure they realized their posterity would be quite different than it was in their day.

These were men of vision, possessed of ideals in a certain time frame when giants truly walked the earth. I'm sure they realized that that time frame would not be frozen ad infinitum. Men of vision can think like this.

While they knew and acknowledged that a government was a necessary evil, they also knew that, given time, it is the wont of governments to expand and appropriate power at the expense of those it deems most likely to give up that power.

These Great Men were revolutionaries all. The knew that the corruption that envelopes men when assuming power would eventually work to undo the magnificent thing they had created.

Give that, they also knew a "reset button" was necessary to assure continued survival of the ideals embodied in the Constitution, and thus the very same ideals that they themselves had and offered up to the world.

That "reset button" is the Second Amendment.

At the time, it was undoubtedly felt that the best way to insure this was through the "militia", which at the time was politically palpable to most everyone. Again, they did what they felt they could politically do.

They did it thusly, stating it this way rather than, "Everybody gotta get guns", because they knew that down that path lay anarchy, and that simply wasn't an option. (Still isn't.)

They still most assuredly wanted as many people as possible to have the option of gun ownership. The simple fact that guns are mentioned at all should be the point of illumination. Men are free when they can tell the usurpers to bug off, and can back that up by force of arms.

Make no mistake - they still agree to be governed, but governed by a reasonableness that the Framers offered.

The evil that they, and we, fear now stalks the land. In the coming days, the very genius of their words will be tested as never before. It is good that we still have the guns.

But if the government ever comes to confiscate those guns, under whatever ruse, and they succeed, a very dark time will fall over the planet, for as Ronald Reagan and countless other Conservatives have warned, America is mankind's last, best hope, and if we fall, there is no place to hide.

It only seems to happen infrequently today, but at every turn, when government seeks to expropriate power at our expense, the automatic reply must always be a resounding "NO"!

And ultimately, the best way to insure that is to make sure we have, and keep, the guns.

CA....

Our Rights Are Absolute. [But Not For Public Safety?]
American Handgunner, Nov, 2000 by Jeff Snyder

The statement of rights in the Bill of Rights is categorical, and contains no exceptions other than the use of the word "reasonable" in the Fourth Amendment.
This unequivocal form suggests that the rights do not vary to suit the circumstance and are not subject to exceptions.

Our rights are, in fact, absolute:
Congress shall make no law abridging the freedom of speech, or of the press; the right to keep and bear arms shall not be infringed; the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and so forth.
Are our rights absolute, or are they in fact subject to "reasonable" regulation in the interest of public safety or for other good purpose?

Let's take as an example what is possibly the most bedrock "common sense" gun control restriction on the books: the prohibition against the ownership or possession of firearms by convicted felons.
By "convicted felons" we mean those who have been convicted of a felony, but are no longer serving time or on probation, and have been released back into society.

There seems to be no comprehensive historical or legal investigation of this exception. The restriction seems not to have existed at the time the right to keep and bear arms was memorialized in the 1689 English or 1789 American Bill of Rights.
The great commentator on the English common law, Sir William Blackstone, makes no reference to such an exception.

I asked Joyce Lee Malcolm, author of To Keep and Bear Arms: The Origins of an Anglo-American Right, whether she was aware of such a prohibition during the 17th and 18th centuries. She said that she was not, but that it would have been something of a non-issue, because most felonies in those days were crimes punished by death.
Clayton Cramer's excellent history of the treatment by the courts of the right to keep and bear arms, For The Defense Of Themselves And The State, contains intermittent discussions of the exception. The first American court cases to discuss the exception appear in the early 1900s, suggesting that the state statutes creating the exception were also enacted at about that time.
Early and modern state court cases upholding the exception did so on the ground that the Second Amendment does not apply to state legislation, and does not prevent the enactment of gun control restrictions for the public welfare. The exception was enacted into federal law in the Gun Control Act of 1968.
Later state court cases uphold the statutes outlawing possession or ownership by felons against challenges under state constitutions. In this regard, the experience of New Hampshire is instructive. (What follows is recounted from Clayton Cramer's book.)

In 1978, a proposed constitutional amendment recognizing the right to keep and bear arms was put to the voters. The proposed amendment, however, contained clauses permitting the state to regulate the manner of carrying weapons and excluding felons. The amendment failed to pass.
In 1981, the amendment was again put to a vote of the people, this time without the two clauses, and it passed.
In 1990, however, the New Hampshire Supreme Court upheld the statute prohibiting possession of a firearm by felons under the New Hampshire right to keep and bear arms. Please note the degree of respect afforded to the question of the rights of persons expressed in the heart of the court's argument in support of its decision:
"As the defendant concedes, the State constitutional right to bear arms is not absolute and may be subject to restriction and regulation. Assuming that the right to bear arms is no more absolute than the right of free speech... a restriction... may be sustained if it 'narrowly serve[s] a significant government interest...' The government interest served by the statute, protection of human life and property, is patently significant."
Thus, the court upheld a man's conviction on the basis of a concession by the defendant, implicitly agreed to by the court, without citation to any authority by the defendant and an assumption!
Implicit in the court's statement is the assumption that the felon exception serves "the protection of human life and property."
Here is the belief that ex-felons, as a class without distinction or degree, despite the fact that numerous felonies are not violent crimes against persons, will with a regularity sufficient to justify legislative action and an incursion upon the right to bear arms, commit crimes with guns.

Such is the precedent, such is the intellectual rigor and concern, that establishes a permanent exception to a right.
Consider, in this light, the notion that the courts are the guardians of your rights.

Can an ex-felon be denied his right to free speech or free press? Can he be denied the right to assemble, or the free exercise of his religion? May convicted felons be subject to unreasonable and warrantless searches and seizures? May they, upon arrest for a subsequent crime, be denied due process of law, the right to trial by jury and, when convicted, may they be subject to cruel and unusual punishment?

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Our Constitution says no, an ex-felon does not lose all those obviously inalienable rights. - Isn't it amazing that only the right to own and carry arms is lost because of a felony DUI?

Well, in response to your first question, some notable quotes, from people who were there....

RICHARD HENRY LEE (Signed Declaration of Independence, introduced resolution in Continental Congress to become independent, proposed Bill of Rights from beginning, author of Anti-Fed Papers, Congressman and Senator from Virginia): "A militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms." 1788 (Federal Farmer, p.169)

"To preserve liberty it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them..." 1788 (Federal Farmer)

JOHN ADAMS (Signed Declaration of Independence, Continental Congress delegate, 1st Vice President, 2nd President): "Arms in the hands of citizens (may) be used at individual discretion...in private self-defense..." 1788(A Defense of the Constitution of the Government of the USA, p.471)

SAM ADAMS (Signed Declaration of Independence, organized the Sons of Liberty, participated in Boston Tea Party, Member of Continental Congress, Governor of Massachusetts): "And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the right of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; ...or to prevent the people from petitioning , in a peaceable and orderly manner; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions." (Debates of the Massachusetts Convention of 1788, p86-87)

JAMES MADISON (Drafted Virginia Constitution, Member of Continental Congress, Virginia delegate to Constitutional Convention, named "Father of the Constitution", author of Federalist Papers, author of the Bill of Rights, Congressman from Virginia, Secretary of State, 4th President): "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation.. (where) ..the governments are afraid to trust the people with arms…." (Federalist Papers #46)