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.'
My memory may be faulty, but I seem to recall reading that Miller died before his case came up.
LOL! I like this woman!
Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?
Justice Thomas agrees:
"-- If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything," including "quilting bees, clothes drives and potluck suppers."
When it comes to determining whether those regulations infringe on the the right to keep and bear arms, they will argue that it's a "collective" right, and the regulations only infringe on an "individual" right, which we don't have, so they can infringe on everything without having infringed on anything.
Exactly. -- The only real protection we have from the Congressional 'will of the majority' to regulate/prohibit arms, -- is an absolute refusal to "agree to disagree". [see my previous post]
I have long felt we should have a national service program where all, male and female alike, serve in the military (not some liberal do-gooder program) two or three years between high school and college. A program like this would help kids grow up and give them some basic job skills.
Generally I'm against government telling us what to do, but this is the exception in my thinking.
Again, "the people" meant "a particular group". When the second amendment was written, it meant enfranchised white males in a certain age group. The Founders could have written exactly that into the second amendment, but instead they allowed for the composition of that particular group to change over time.
Your implication is that politics drives the definition of the constitution. I'm saying the meaning of "the people" was expanded via amendment to the constitiuon, not a redefinition by the courts or Congress.
"Well, if "whole people" and "whole body of people" doesn't mean "all the people" then what does it mean? I guess words no longer mean what they once did..."
Where did you get the phrase "all the people"? No Founder or statesman ever used that phrase. You simply made it up, so you're the only one who knows what it means. Maybe you'll tell the rest of us?
I am saying "the people" meant the same thing as "the whole people" and "the whole body of people". In 1792, it did not mean everyone. And if you're saying that "all the people" is everyone, and that "all the people" is the same as "the people", then you're wrong.
"If you're going to call me on this pedantic point to make your case, then you've already lost it."
The point is essential to the case. Whether the second amendment protects an individual right or a collective right depends on the definition of "the people" does it not? Certainly if "the people" means every person then the second amendment protects an individual right.
What if "the people" doesn't mean every person? Oh well, that's just a pedantic point. Why is robertpaulsen focusing on such idiocy? We all know the U.S. Supreme Court will just gloss over that phrase.
Move along. Nothing to see here.
Of course it's a right. I never said it wasn't a right. As a matter of fact, if you would have simply read what I wrote, you'll see that I said it was "a reasonably restricted RIGHT.
"And yes, you could revoke an entire class of people from driving, it’s happened on several occasions based on age, physical or mental disability, legal status"
That's not revoking. That's a reasonable restriction of a right based on the safety and welfare of others and which applies to every person.
You said a privilege may be revoked. If that's true, then that means we can revoke the driving privileges of ALL Mexican Americans if we wanted to, right?
"Our other rights are not restricted anywhere like our 2nd Amendment rights are."
Forgetting about the 1st amendment? Laws against libel, slander, fighting words, swearing, hate speech, sexual harrassment, etc. And McCain-Feingold.
Now you can go right ahead and defend each and every one of those 1st amendment speech restrictions. I know you can. Just as others can defend 2nd amendment gun restrictions.
I'm guessing that it will be asserted that, just as certainly, if it does not mean "every person" in absolute terms - if any evidence of implied or explict exception can be found - that is sufficient to deny there was ever any intent that it be considered an individual right.
Actually he was forced to die.
We were discussing a hypothetical and whether or not the U.S. Supreme Court could have exonerated Mr. Miller on second amendment grounds yet still not have clarified whether the second amendment protected an individual right or a collective right.
I say they could have. William Tell claims that an exoneration of Mr. Miller (an individual) on second amendment grounds is proof that the second amendment protects an individual right.
(In my opinion, using that logic, perhaps it means the second amendment only protects male felons.)
The second amendment protects the gun rights of individuals in a particular group. The gun rights of individuals outside this particular group are protected by their state constitution.
And there's the opening for the "Supremacy Clause" arguments that will surely follow once we accept that proposition.
An army composed of ordinary citizens rather than professional soldiers.
A military force that is not part of a regular army and is subject to call for service in an emergency.
The whole body of physically fit civilians eligible by law for military service.
[Latin mīlitia, warfare, military service, from mīles, mīlit-, soldier.]
This the group you talking about being protected by the 2nd?
"Driving is a privledge, not a right.
So, no you may not." [restrict the right to keep & bear arms]
"A privledge may be revoked... not a right. See the difference?"
A privilege is nothing more than a reasonably restricted right.
The power to reasonably regulate does not include the power to forbid, restrict, or prohibit.
"-- Even those who read the Second Amendment as a "collective" rather than an individual right on the basis of this preface concede--indeed their theory requires them to insist--that the power to regulate the militia that the Constitution elsewhere confers upon Congress does not include the power to forbid or prohibit the militia.
By their interpretation, the sole purpose of the Second Amendment was to protect the continued existence of the state militias. --"
R. Barnett
Of course, - Barnett refers to honest supporters of Constitutional rights, - not socialists who use 'collective rights' in the prohibitive communitarian way.
This group:
"I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, 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; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes."
-- Militia Act of 1792
Every white male citizen 18-45 is enrolled by the above criteria. Looks like a civil rights issue to me. Of course that is what this whole thread is about. I see your point about any other race or gender not having any 2nd amendment protections. /s
Of course there is this.
§ 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
Nor children, nor the elderly, nor non-citizens, nor the infirm. The second amendment covered less than 20% of the population at the time it was written -- a far cry from "everyone".
"Of course there is this ... 2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
Would you call the unorganized militia "well regulated with officers appointed by the state"? Unless that's the case, I can't see how you expect the second amendment to apply.
Unless you're one of those "the constitution is a living document and it means what I say it means" kind of guys.
You're turning "original intent" on its head. The fact that machine guns didn't exist in 1792 doesn't mean they are subject to government control. It means that they aren't.
You're take on original intent would saddle us with protection for muskets but not for modern self-loading handguns.
Similarly, original intent regarding "the people" and the right to keep and bear arms would include anybody who had an enforceable right to self defense. Once the courts brush away the "collective rights" nonsense and the idea that "the right of the people" is simply a right of a militia or the right of a state, what remains is an individual right to keep and bear arms for one's self, one's family, one's community, and one's nation.
Your lack of logic here astounds me. You continue to claim that Miller, regardless of any attachment to a militia, can not be prosecuted for lack of a tax stamp on some weapons, but continue to claim that does not constitute an enforceable individual right for Miller.
You are the one who pointed out that children would not have an enforceable right to keep and bear arms. If Miller had been a child, the Supreme Court could have dodged the whole matter of the scope of the Second Amendment by simply finding that "the people" does not include minors in this case.
Similarly, the Supreme Court did NOT have to know anything about the shotgun if they could have decided that the scope of "the people" in the Second Amendment did not include Miller. THAT makes Miller an individual rights decision. It clearly protected MILLER'S shotgun and would have prohibited the imposition of a tax stamp.
Your claim that the cite of Sonzinsky establishes that the Second Amendment, or any other provision of the Bill of Rights, can be infringed by a tax is similarly preposterous.
The logic of the Miller decision does not suggest anything about the scope of the people protected by the Second Amendment except that it eliminates completely the one claim most dear to anti-gunners; that the Second Amendment protects only members of a militia. Had that been the opinion of the Miller court, they had an obligation to say so. This argument was made by the prosecution and was rejected by the Supreme Court.
Had the prosecution suggested that Miller could be excluded because of a past criminal history, they were free to make that argument, and the Supreme Court's decision would then reflect the Court's opinion on the matter.
Miller's protection was to be based solely on the nature of the weapon. That's MILLER'S protection, not protection for the shotgun. Shotgun's could still be prohibited to felons, or illegal aliens, or minors, or anybody else who could not claim protection from the Second Amendment. The Miller decision was that MILLER could not be denied the protection of the Second Amendment.
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