11.11.2007

A Second Amendment Case in the Chamber?


















SCOTUS will likely decide whether or not to take District of Columbia v. Heller, the D.C. Circuit handgun ban case, within the next few days. If it does, it will mark the first time since 1939 that the court has considered a Second Amendment issue head-on, as it did in U.S. v. Miller.

Of course, the prospect of a high court case has ripped open the old grammar battle over the meaning of the text of the Second. That's right. One comma is to blame for all the ballistic bedlam.

Really, at issue is the question of whether one has a constitutionally protected right to own a firearm as an individual (of if the Second Amendment merely grants a "collective right" through states' rights to militias - which have since been subsumed into the National Guard).

While the D.C. Circuit ruled for the first time that a citizen does have such a right...

Most other U.S. courts have said the Second Amendment does not contain a right to have a gun for purely private purposes.

Chief Justice Roberts, during his confirmation hearings, did not count U.S. v. Miller as dispositive with respect to the Second Amendment:

"...the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue."

Yet the discussion in Miller seems at first glance to cleave decidedly to the notion that the opening phrase in the Second Amendment is not mere throat clearing:

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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

(So, does the final sentence indicate a greater likelihood of a right to individual firearm ownership if the weapon is part of the ordinary military equipment and its use could contribute to the common defense (today, say an M16?).

"The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [...] With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Yet, after these pronouncements and a look at militia statutes - that required individual ownership by militia members - the court rounds things out by noting that while it cannot uphold the particular ruling of the court below...

Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed.

Did the court believe it had settled those variant conclusions by determing the scope of the right guaranteed? Or had it merely ruled on the Second Amendment in a limited fashion as applied? For a nice paper outlining the veritable banana clip full of problems entailed in the decision, go here.


















For me, a chief concern with an absolutist textualist reading of the Second Amendment that limits it to permitting militias and a "collective right" is how irregular such a reading seems in light of the rather expansive interpretations given to the other Amendments in the Bill of Rights. I don't know if it's a good thing, but interpretation has undeniably been other than absolutely textual.

Take the First Amendment, for example. Read strictly, Congress could make no law regarding any of the diverse topics encompassed within it. And yet few - yes, there were/are some absolutists out there - have held it to that highly restricted interpretation.

Really, what right hasn't been found in the penumbra of some collection of Amendments? With the Second Amendment, it seems that reading personal rights liberally into the text is railed against because the right in question is perceived as politically conservative. Thus, because it is less politcally correct than, say, a liberalizing Eighth Amendment expansion against some form of torture, it is cause for taking up arms. Pun intended.

As Mr. Mac VerStandig wrote quite presciently:

Excepting the 3rd Amendment, which has long neared anachronistic status, the entire Bill of Rights has been well stretched over time – but for the 2nd Amendment. In the 1st Amendment we have found heightened standards for libeling a public figure; in the 4th Amendment we have found a nuanced test for when people reasonably expect privacy; in the 5th Amendment and 6th Amendment we have found a mandatory police soliloquy; in the 7th Amendment we have found a loose conception of “common law;” in the 8th Amendment we have found cause to flip-flop on the death penalty; in the 9th Amendment we have found a veritable secret cache of privacy rights; and in the 10th Amendment we have found a decaying check on elastic clause potency.

And, as VerStandig also elucidates, the purpose of Constitutional Amendments in the Bill of Rights, excepting the Tenth, is to reserve liberties to the people:

Such plainly ignores the very nature of the Bill of Rights – a series of amendments meant to endow the people (who happen to be sovereign in this nation) with rights in the face of an otherwise powerful government. Excepting the 10th Amendment, which does confer a catch-all right unto the states, the entirety of the historical text is patently aimed at giving the people their own security, whether it be in the form of property rights, speech rights or – should tyranny grip the Republic – gun rights.

I would go further and add the Ninth Amendment to VerStandig's exception (gingerly and anticipatorily distinguishing "the people" from individuals, as we're dealing with supposed 'collective rights') and say that the other eight reserve rights specifically to individual persons, not merely "the people" collectively, as it might be read in the Ninth and Tenth Amendments.

If read differently, however, - and, let's say, in the face of a finding that the Second Amendment was limited to militias - could not the Ninth Amendment itself provide the basis for a private right to gun ownership? Coupled with the de facto longstanding tradition of private gun ownership, it strikes me as a reasonable argument even if the Second Amendment is found to be merely a husk.

VerStandig's final observant point is that if the Second Amendment is indeed outdated, the option of repealing an Amendment with another Amendment is an option, as was seen with the overturn of Prohibition (Twenty-First Amendment proposed, you'll note, by a Wisconsin Senator).

I, for one, hope the high court takes the handgun case. After decades of political and cultural wrangling over the right to bear arms, a nice legal treatment/debate of the Second Amendment might prove thrilling.