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.'
~~~~ We, as a society, decide which rights we will protect --- We can choose not to protect your rights --- . If and when a majority of the people decide that we should, then we will. Given that we're a self-governing nation, there's nothing to stop the majority from deciding this. ~~~
That may be, but the militia were not what you’d call “well regulated” in the manner that you are referring to.
Actually, at the time of writing of the BOR, the term "regulated" had a much broader meaning, which in modern language means something much closer to "smoothly functioning".
Remember, we were at the very beginning of the industrial revolution. Mechanisms which seem commonplace to us today, were just beginning to be seen.
Pendulum clocks had regulators, and so did steam engines. The purpose of the regulator on a steam engine was to keep it running at a constant speed.
Whom among us is willing to put forth the proposition that challenges God?
~~~ California can ban all guns if they so chose. There's nothing in the state constitution (one of six states, I believe) about the right to keep and bear arms. ~~~~
Some communitarians here agree. -- They claim:
~~~ California can ban all guns if they so chose. There's nothing in the state constitution (one of six states, I believe) about the right to keep and bear arms. ~~~~
The definition of "the people" differs, depending on the subject -- the Founders used the phrase to mean "the particular group".
If they meant every individual they would use the term "citizens", or "persons" or "he/him".
As an example, Article I, Section 2 of the U.S. Constitution reads (in part): "The House of Representatives shall be composed of members chosen every second year by the people of the several states ..."
There, "the people" only referred to white, male, citizen landowners -- not everyone.
The fifth amendment refers to "person", protecting the individual right of everyone.
f 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.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.
Actually, at the time of writing of the BOR, the term 'regulated' had a much broader meaning, which in modern language means something much closer to 'smoothly functioning'.
CurlyDave
"-- A "well-regulated" militia is not a prohibited militia but one that is well drilled.
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. --"
The power to regulate v. the power to prohibit
Address:http://www.freerepublic.com/focus/f-news/1419654/posts
I’ve never understood why there is any question in the wording of the 2nd Amendment.
This is in a document known as “The Bill of Rights,” which was designed by the founders to protect state and individual rights from encroachment by the federal government.
There are 2 parts to the amendment. Only one of those 2 parts directly addresses a right. So that it the “main” part of the amendment.
The words “people” and “state” are used in the Bill of Rights. They are NOT interchangeable. If they were, there would be no reason to use both words, or to make a distinction between the two, as can be seen in the 10th Amendment.
“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.”
The first part of the Amendment is a justification for the second. It’s that simple.
Unfortunately, the SCOTUS decided that “Congress shall make no law” doesn’t really mean “Congress shall make no law” either...
Mark
That is an excellent explication of the prefatory clause of the 2nd A. I wasn't a good enough student in English to say whether the syntax of the 2nd A is tortured or not but the logic is straightforward and direct and you have succinctly nailed it. Quite simply, there is only one way the sentence makes sense. Cultural/social/linguistic shifts have not altered that.
...if they have to define everything--down to what the meaning of "is" is.
This is what it boils down to: do you analyze the law as it was written, in the context it was written, with the meaning it was written, or do you believe in "emanations" and "penumbra" and changing meaning over time and interpreting it in light of international law, etc, etc, etc.
I cannot for the life of me understand these people who believe that the Constitution is a living, breathing document open to constant reinterpretation. It means what the authors intended it to mean, period
Everywhere else in the Constitution and Bill of Rights where the words "the people" is used, it is meant as an individual right. How can it suddenly mean a state right when used in the Second?
I'm not a scholar of 18th Centuryese but that statement seems rather unambiguous to me.
6 of my family members just got back from a 12 day trip to Israel. Every one of them is a hard core supporter of gun control, and pretty darned liberal. I'm pretty much the "black sheep" of the family, due to my views, especially on gun control.
While we were looking at photos they took, there were people with M16s in nearly every photo. The bus driver and tour guides had M16s slung over their shoulders. They said how weird it was with all these people wearing guns over there. How there were these young kids in shorts and t-shirts with guns, and how these "cute little army girls" all carried guns. One cousin remarked "I don't think that those guns were really loaded." I looked him in the eye and said "of course they're loaded. They might not have a round chambered, but you can bet that the magazines were fully loaded." He said he didn't think so, so I asked, "why not?" His response was, "well, with all those guns around, I sure wouldn't start up any trouble." My final response to him was, "What use is an unloaded weapon when someone starts shooting at you? Do you think that a terrorist would be put off by an unloaded gun? This isn't some game, those 'cute little army girls' are in the military, they're soldiers, and they may very well be called on to kill or lay down their lives for their people, and even for you if you're over there when the next war breaks out. A major part of your tour guides and bus driver's job is to defend you from terrorists. And that's done with a loaded gun."
At that point he, and the rest of my relatives who had been in Israel got these sick looks on their faces.
Mark
The communitarians among us insist that Congress or State legislators have the power to define "the people" depending on the how prohibitive they want the "law" to be.
Did you ask him why he doesn't think that same principle would work here in the states?
Does it say the right of the militia to keep a bear arms shall not be infringed?
Does it say the right of the state to keep and bear arms shall not be infringed?
Does it say the right of the people to keep and bear arms shall not be infringed?
I take it that it never occurred to your relatives that being in Isreal meant that they could have been blown to bits or shot to ribbons at any moment?!? What an amazing ability people have for constructing a world of their own and thinking of it as reality. Did they think there is one Isreal for newsclips of ME conflict and another Isreal for tourists?
BTTT!
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