Skip to comments.Lawyers, Guns and Money (Supreme Court May Have To Define Second Amendment)
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 Columbias stringent gun-control regulations, ruling squarely that the Second Amendment protects an individuals right to bear arms.
In the cultural and legal battle over gun control, the decision was the proverbial shot heard round the world.
The rulingin Parker v. District of Columbiamarked 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 individuals 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 individuals right to bear arms.
According to HLS Professor Mark Tushnet, author of Out of Range: Why the Constitution Cant 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 Associationwho helped steer the legal strategy of the plaintiffs and backed them financiallyhave 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 doesnt involve the overlaying question of whether the Second Amendment applies to a state by way of the 14th Amendmenta question that clouded an earlier case involving one citys 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 couldnt 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 Tribes 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 hes not sure why.
Theres 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. Theres never really been Lets 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 districts gun laws during his tenure, the meaning of the amendment is unambiguous, no matter what interpretive theory is used. Lets take [Justice Antonin] Scalias 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, its not about individualsits about groups.
But Froman firmly reaches the opposite conclusion: A lot of people say that the prefatory clause of the Second Amendmentthe 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 didnt exist then.
Remember, Froman adds, the Second Amendment guarantees a rightit does not confer a right. Its God-given. Its 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, theres 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 ones 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 districts 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. Its easy to understand why. Lets 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 shes 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, Dont you get scared? I say, Are you kidding? I have a clear shot all the way to the road.'
''A well-regulated militia, being necessary to the security of a free state, the right of the militia to keep and bear arms, shall not be infringed.''
2nd Amendment PING
I could do without the SCOTUS review. I don’t think we’d get the votes due to Kennedy. Combine a ruling against 2A with the possibility of a dem controlled congress and presidency in ‘09 and I’d prefer to just take a pass.
Hard to believe that Republicans have had the presidency for 19 of the past 27 years and we cant get 5 pro-2A votes on the Supreme Court. Even harder to believe that we still debate this collective right BS.
On the other hand, maybe the people will define to the government the meaning of the second amendment.
I continue to think that “well regulated” means adequately organized and equipped. Also, I think that the militia is everyone able to fight in a crisis.
To do that, they need to be able to bring a gun.
The above is an exact picture of late 1700’s America. Calling forth the militia is essentially telling the farmers to put down their hoes and to pick up their guns.
The 2d amendment points out both the individual and the national interest in having armed citizens. Self-defense is a God-given right, AND it is useful for free nations.
Agree with everything you said.
My concern is that if SCOTUS rules against the decision using the “collective right” argument then the floodgates of gun control will be open as every anti-2A dem in govt will be yelling that we have no need for private ownership as we already have a National Guard.
There are a number of reasons why the National Guard cannot be the militia, but the one that strikes me is that they are permanently under the DOD. It is permanently provisioned by the DOD....states don’t buy tanks, jets, and missiles. Congress has it in the budget, so it is part of the standing army.
The “militia” would be more like the “draft.” (Incidentally, I support the draft, and think all this foolishness about “individual rights violated by a draft” is so much hogwash. If the situation is so dire that the militia must be called forth, then it’s our free nation or Donnie Draftdodger’s individual rights that’s the choice. I’ll choose a free nation any day.)
Bottom Line: How is the phrase “the people” defined in any OTHER amendments in which it appears?
A liberal professor is surprised his preconceptions about something are not supported by the facts? I assume before this he was content in having an opinion without any basis. These folks teach our young adults?
Which group of people were the Bill of Rights for again? I forget.
The meaning of the second amendment is a mystery only to lawyers for whom the meaning of the word “is” was equally mysterious.
Tribe is at least intellectually honest enough to admit his position does not line up with that of the FRamers, which puts him ahead of 98% of liberals.
I am glad to see that Professor Tribe has endorsed the plain reading of the Second Amendment.
Now I would very much like to see the 1934 NFA and the 1968 GCA struck down as unconstitutional infringements on the rights guaranteed by the Second Amendment.
"Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible," he says.
My concern is that if SCOTUS rules against the decision using the 'collective right' argument then the floodgates of gun control will be open -
The Court is not that politically stupid. Such a 'collective' decision would incite massive civil disobedience, akin to booze prohibition.
They will settle instead for the idiotic theory that 'regulations' can prohibit, - supposedly without infringing.
Then the work shifts, as Tushnet says, to proving that legislators in the USA have no delegated power to prohibit.
"The Second Amendment is one of the clearest statements of right in the Constitution. We've had decades of sort of intellectual gymnastics to try to make those words not mean what they say."
-- Benjamin Wittes, legal affairs analyst and guest scholar, Brookings Institution
"-- 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. --"
If our individual right is acnowledged, States like California are SOL with their unconstitutional prohibitions/infrigements. - Bet on it.
And, - bet that there will be a massive behind the scenes fight urging the Court not to hear Parker.
THE SECOND AMENDMENT IS ALREADY DEAD
By David Brownlow
July 19, 2005
Brownlow writes in part:
“Once we allowed our government to arbitrarily define the term arms as strictly limited to a few select types of rifles and pistols, we cleared the way for the regulation of gun style, gun size, gun caliber, gun rate of fire, barrel length, magazine capacity, as well as the explosive power of the shells, the type of projectile that can be launched from our arms, and on and on. In other words, we gave up any chance of a putting up a real fight against our occupiers when we allowed the occupiers to make up the rules. “
“But that is only half the problem. While we have permission to keep and bear what is essentially a 21st Century version of a muzzle loader, our federal and local police forces have been arming themselves to the teeth with the most advanced weapons and technologies our money can buy.”
“Sure, most of us can still hang onto our rifles, shotguns, and depending on where we live, our handguns which gives the false impression that we have a 2nd Amendment that actually protects our right to keep and bear arms. But, if we are only allowed to keep the guns they tell us we can keep, and if we are only allowed to carry them the way they tell us we can carry them, then, that is not a right, that is not a guarantee - that is a favor.”
“It would be more accurate to call it, The permission to keep and bear the arms. (2nd Amendment, Rev. A)”
Food for thought...
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