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.'
Also, there were "the regulars," troops that were the professionals. What made them "regular" was their uniform dress, training, and arms.
When applied to the militia, that meant they were to have some kind of battlefield uniformity, the most important of which was arms.
Revolutionaries (known as "Americans", "Whigs," "Congress-Men" or "Patriots") had the active support of the population. About 15 to 20 percent of the population supported the British Crown after 1775 and were known as Loyalists (or Tories). Loyalists fielded perhaps 50,000 men during the war years in support of the King.When the war began, the Americans did not have a professional army or navy. Each colony provided for its own defenses through the use of local militia. Militiamen were lightly armed, slightly trained, and usually did not have uniforms. Their units served for only a few weeks or months at a time, were reluctant to go very far from home, and were thus generally unavailable for extended operations. Militia lacked the training and discipline of regular soldiers but were more numerous and could overwhelm regular troops as at the battles of Concord, Bennington and Saratoga, and the siege of Boston. Both sides used partisan warfare but the Americans were particularly effective at suppressing Loyalist activity when British regulars were not in the area.[2]
German troops serving with the British were called "Hessians." (C. Ziegler after Conrad Gessner, 1799)Seeking to coordinate military efforts, the Continental Congress established (on paper) a regular army in June 1775, and appointed George Washington as commander-in-chief. The development of the Continental Army was always a work in progress, and Washington used both his regulars and state militia throughout the war. About 250,000 men served as regulars or as militiamen for the Revolutionary cause in the eight years of the war, but there were never more than 90,000 total men under arms at one time. Armies were small by European standards of the era; the greatest number of men that Washington personally commanded in the field at any one time was fewer than 17,000. This could be attributed to tactical preferences, but it also could be because of lack of powder on the American side. [3]
They = the Founding Fathers.
"No free man shall ever be debarred the use of arms." ~Thomas Jefferson, 1776
Actually, the complete quote is, "No free man shall ever be debarred the use of arms in his own lands." (He wanted that phrasing in the Virginia State Constitution. It was rejected.)
"What is the militia? It is the whole people, except for a few public officials." ~George Mason, 1788"
Some rights are individual. Some are of the whole people (or the people at large). So I agree.
The rest have to do with "the people". I've already explained what that means.
The U.S. Constitution spelled out "the people", leaving it up to each state to set up their voting criteria. At the time, only white, male, citizen landowners were allowed to vote. Not all persons. That was my point -- "the people" did not mean "all persons".
I think Oleg Volk just slapped any handy sight on Longarm’s A2.
I agree, that rifle needs optics with some magnification to get the most out of it.
True. But states are still free to form their own, well-regulated state Militia, protected by the second amendment. I believe Texas and a couple of others have their own.
Only wannabee gun grabbers find the 2nd Amd “ambiguous.”
Great post, that’s a keeper!
Good to see you’re back...I hope it doesn’t delay the completion of EF&D 3.
"A well regulated militia being a necessity to a free State, the right of the people to keep and bear arms shall not be infringed."
I don't know when all those extra commas got inserted, but they're not in the original document.
L
Conventional [socialistic] wisdom holds that United States v. Cruikshank settled the question of the Second Amendment's applicability to state governments.
However, in the haste to dispose of Second Amendment claims, the background against which the Cruikshank decision took place is ignored.
Moreover, language in the opinion, as well as a half century of Supreme Court doctrine, calls into serious question the continuing viability of either the holding or the reasoning.
Cruikshank, decided during Reconstruction, "was part of a larger campaign of the Court to ignore the original purpose of the Fourteenth Amendment -- to bring about a revolution in federalism, as well as race relations."
The Supreme Court found that despite the passage of the Fourteenth Amendment, the First Amendment to the Constitution "was not intended to limit the powers of the State governments in respect to their own citizens, but to operate on the National government alone."
Under the Court's construction, because the right of the people to peaceably assemble was neither "created" by the Constitution, nor "was its continuance guaranteed, except as against congressional interference," the people must look to the states for protection of this right.
The Court relied on much the same reasoning in dismissing the claim that the defendants conspired to hinder the complainants' right to "[bear] arms for a lawful purpose."
First noting that "bearing arms for a lawful purpose" was "not a right granted by the Constitution," [was not "created" by the Constitution] the Court held that the Second Amendment's language "means no more than it shall not be infringed by Congress" seeing that internal police powers were "not surrendered or constrained by the Constitution of the United States."
The Supreme Court devoted exactly one paragraph in the entire opinion to the Second Amendment issue, an issue that was arguably ill-framed in the first place.
Not only was there little analysis, but what analysis there was with regard to the First Amendment issue is now outdated when considered in light of the Supreme Court's incorporation decisions.
Yet, socialistic lower courts continue to cite this case for the proposition that the Second Amendment poses no obstacle to state gun control legislation, even if it amounts to an outright ban on certain types of arms.
So Oleg did that image for you? He’s a cool guy. I’ve been watching his work, since days of the first incarnation of TheFiringLine forums. I download pretty much everything of his that I come across.
It’s amazing how many immigrants to this country appreciate their freedoms so much more, than many born and bred on these shores.
Now you're hitting a nerve.
I may have to private-post another hiatus-opus until completion of Foreign Enemies.
I agree, but the extra 2 commas have been there so long that they’re just accepted as original.
Your reading would be that the "extra words" change the meaning such that the federal government can infringe the right to keep and bear arms for any purpose other than militia duty. Is that not so?
"A well-read electorate being necessary to a free nation, the right of the people to own and read books shall not be infringed."
The sentence above would then mean that the right own and read books is limited to books about elections. Isn't that what you support?
I'm reading that on another machine. Now get busy you slacker!
L
I concur. I send people to that site regularly.
That precise point is masterfully disposed of at reply 70.
Must reading, for those who are not being intentionally obtuse.
''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.''
Additionally, if "the people" is a code word for "the States", then the 10th Amendment really reads "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the States."
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