Wednesday, May 30, 2007

2nd Amendment--Predictions

For almost three-quarters of a century, lawyers and scholars have debated the meaning of the Second Amendment, which reads: "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." Conservatives say the words plainly endow individuals with a liberty to own weapons; liberals read the first clause as limiting that right to the collective use of guns in state military bodies. The Supreme Court hasn't directly spoken on the Second Amendment in almost 70 years, and never definitively endorsed either side.

This uncertainty soon will be over, thanks to the D.C. Circuit's three month old opinion in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007). The Parker court voided the District of Columbia's absolute gun ban, and the full Appeals court recently denied a request for re-hearing. So what next?
  • The case will go to the Supreme Court. It's perfect for the Supremes, because the law and policy at issue are so extreme--DC bans all pistols; even rifles and shotguns must remain unloaded and either be disassembled or have a trigger lock. The DC law makes plain, for example, that you can't take the trigger lock off your shotgun even if you are being robbed. So, effectively, the law prevents me from owning a gun.

  • The Supreme Court will affirm the DC Circuit decision, for several reasons:

    1. the District Court decision (which upheld the gun-ban) quoted that part of the Second Amendment related to the right to "bear arms" without quoting the language about the right to "keep. . .arms" -- a laughable over-stretch.

    2. the left interprets the 1939 Miller case as if it held that the Second Amendment right had to have some relationship with the Militia. What the case actually held was that the gun had to have some relation with the Militia. See United States v. Miller, 307 U.S. 174, 178 (1939) ("In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."). Under Miller, we have the right to own bazookas.

    3. according to "progressives," the Second Amendment endows no individual right, only a group right belonging to the Militia. Trouble is, no other Constitutional Amendment has been interpreted as collective. If the left read the rest of the Bill of Rights as closely as they do the Second Amendment, state legislatures could defeat free speech (the First Amendment says only "Congress") and wiretapping would be unrestricted (the Fourth Amendment covers only "persons, houses, papers, and effects").

    4. in determining that the Second Amendment enshrines an individual right, the Parker court relied on a decision I'd never heard of, United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), a case concerning acts taking place in Mexico. There, the Supremes distinguished the Fourth Amendment from other Constitutional provisions including the Second Amendment:
      That text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people." Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," Brief for American Civil Liberties Union et al. as Amici Curiae 12, n.4, "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble") (emphasis added); Art. I, 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the people of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
      494 U.S. at 265. Along with well-known dicta in cases like Dred Scott v. Sandford, 60 U.S. 393, 450 (1856) ("Nor can Congress deny to the people the right to keep and bear arms"), this suggests the Supreme Court already has decided that the Second Amendment is an individual right, not a collective one that requires participation in a Militia.

    5. even if the Militia remains relevant, the current Congressional definition of Militia (adopted in 1792) is broad enough to void an absolute prohibition like DC's: "The Militia of the United States consists of all able-bodied males at least 17 years of age and . . under 45 years of age." 10 U.S.C. § 311.

    6. finally, Court liberals will have to start from the amoeba--the dissent in the D.C. Circuit, by Judge Karen LeCraft Henderson, is founded on the supposition that the District of Columbia, not being a state, is not reached by the Second Amendment, which is tied to the "security of a free State." To some extent, this dissent assumes the collective rights theory (i.e., that the second clause of the text does not itself establish an individual right). Apart from that, the disssent is, well, kooky, and won't contribute to any leftist opinion at the Supremes.

  • Conclusion: After the Supreme Court affirms, a year from now, I'll be able to purchase and own the pistol I've always wanted--the Sig Sauer P239 DAK.


Stan said...

Great post, but how do you think SCOTUS will uphold the DC decision?

I'm not terribly familiar on SCOTUS procedure, but isn't there a chance they'll go overboard similar to what they did with Roe? Perhaps listing circumstances where infringements are ok? That's what I'm afraid of.

Nice gun too, I like the two tone.

Carl said...

I've no doubt the "collective" view will get a few votes--Stevens and Souter for sure. But the retrenching consequences of so limiting the Bill of Rights are unlikely to command a majority--even Liberal law prof Lawrence Tribe thinks Parker will be affirmed. And unlike abortion, the Supremes don't have a "tabula rossa" to interpret; they must write something that uses and explains the words of the second amendment.

Though I think two-toned guns went out with two-toned cars.

Stan said...

two toned cars are out???

Carl said...

Unless you count British Racing Green and a tan top as two-toned. . .

Henry said...

What do you mean, the District Court upheld the ban? They struck it down based on the Second Amendment and cited it in their decision. That is why the mayor of DC, not the plantiffs, is thinking about taking it to the Supreme Court.

Carl said...


The District Court below "granted the District's motion to dismiss on the grounds that the Second Amendment, at most, protects an individual's right to 'bear arms for service in the Militia.'" See Parker, slip op. at 5. The DC Circuit then reversed that decision.

Henry said...

Thanks Carl, I see I was confused between the district court and the circuit court.

Carl said...

It is confusing, given the similar names of the courts and the fact that the District Court decision is, as far as I know, un-published.

MaxedOutMama said...

Carl, I thought is was "tabula rasa"?

Unless, of course, you were referring to this.

Two-toned cars are out????

Carl said...

M_O_M: You're right--which is why I flunked English two straight years in high school (true!). But why do you think the high court will reverse Parker?