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 you claim that there is some context that indicates other than what I have stated, then supply the context."

The Militia references are solely to support the prosecution's argument -- that the types of weapons protected by the second amendment are only those weapons suitable for a Militia. How else is he to make his argument without referencing the Militia, or the military, or the common defense?

And only one sentence of those seven mentions a connection between the weapon and membership in a Militia. One sentence in the entire brief and you think that's an argument for Militia membership?

Taken out of context, sure, why not. In context, however, and reading the entire brief, anyone can see that the thrust of the prosecution's argument is that only Militia-type weapons are protected.

robertpaulsen said: "If shotguns are Militia-type weapons (as you insist) and protected by the second amendment, and individuals are protected (as you insist), why wasn't the case dropped?"

Because the Supreme Court ruled that MILLER could be prosecuted under NFA 34 IF the prosecution could prove that the shotgun was not a militia-type weapon. If the prosecution had proceeded it may well have been that the prosecution would decide that it could not prove that the weapon is not militia-type and thus they would have to drop the case for lack of evidence that a prosecutable crime had been committed. Lacking evidence that the specific shotgun possessed by Miller was not militia-type, then the prosecution would have to drop the case.

But the prosecution had no authority to require militia membership of Miller or anybody else. They had argued before the Supreme Court for such a finding and it was NOT GRANTED.

robertpaulsen said: "In context, however, and reading the entire brief, anyone can see that the thrust of the prosecution's argument is that only Militia-type weapons are protected."

A significant part of the prosecution's brief is an attempt to challenge the scope of the Second Amendment by use of common law rulings which concern themselves with WHO had a right to keep and bear arms of any type and what activities they might carry out while bearing such arms. That is in support of the argument in the summary that only people in an organized militia are protected.

In postings in other threads you have stated that the Supreme Court IGNORED this argument of the prosecution. Now you claim that the argument doesn't even appear.

I will repeat the sentence you claim is out of context: "Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. "

Notice that this sentence contains no suggestion that there is any limitation on the type of arms used by people who are members of the state militia or other similar military organizations. The sentence is claiming that ONLY such people are protected, regardless of the arms possessed. It is an argument entirely separate and distinct from the argument that the possession of only some weapons is protected.

"That is in support of the argument in the summary that only people in an organized militia are protected."

What a load of BS. It was in support of the type of arms protected -- Militia-type arms. That's exactly how the Miller court read the argument and that was exactly what their ruling was based on.

For you to say the prosecution was arguing that only people in an organized militia are protected is pure wishful thinking, unsupported by fact.

"In postings in other threads you have stated that the Supreme Court IGNORED this argument of the prosecution."

Yes, they flat-out ignored any "argument" that only people in an organized militia are protected. There was no such argument. It's in your head. You cannot support it. The Miller court ruling on the type of arms protected is proof.

"The sentence is claiming that ONLY such people are protected, regardless of the arms possessed."

Yes. And other sentences claim that military members are protected. Other sentences claim that people collectively are protected for their common defense and security. Other sentences claim that the protection is for public defense purposes.

Now, instead of taking that one sentence out of context, as is your wont, you instead put all of the sentences together, it becomes clear that the Founders had the security of the collective public in mind, meaning that the type of arm needs to be suitable for this purpose.

The prosecution said, "If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which right is supposed to have been retained, is stated."

In other words, if the government can infringe some arms and not others, it's important to state why. And that's what the prosecution did.

tpaine said: "What a strange web these socialists weave, - when their intent is to deceive."

That web is supported by the key deception of claiming that Miller supports a "collective right", a term which I am confident our Founders would not recognize, especially as applied to the Bill of Rights.

The anti-gunners future hangs on a slender thread that will be forever broken by a Supreme Court decision affirming Parker. If the Supremes rule that the right to keep and bear arms as protected by the Second Amendment is an individual right, then who can make the claim that it is not "fundamental", given its prominent position in the Bill or Rights.

That fundamental nature triggers the protection of the Fourteenth Amendment. The rest is just a mopping up operation of challenging the nationwide tyranny of shifting the burden of ineffective "crime-control" onto the backs of law-abiding gun owners.

Beware of the man who claims conservative credentials, while he argues that our US Constitution was not intended to protect our individual rights from state or local government infringements.

These men claim that 'We, -as a society', decide which rights we will protect --- And if 'We' choose not to protect your right to do [whatever], so be it. If and when a majority of the people decide that we should protect a right, then we will. Given that we're a self-governing nation, there's nothing to stop the majority from deciding this.
--- For instance, if there's nothing in a state constitution about the right to keep and bear arms [and States can change their constitutions by super-majority decisions], - then --- States can ban all guns if they so chose.

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