Court has chance to rule on just what the Second Amendment means
A Supreme Court case that originated in the urban byways of Washington, D.C., may end up having important implications for gun owners of the north country and the rest of the nation. The nine justices recently heard arguments in the case of the District of Columbia v. Heller, a challenge to the District's total ban on private citizens possessing handguns. When the court announces its decision, and that may be only weeks away, we may finally get an authoritative ruling on just what the Second Amendment means. Or the court may avoid controversy, kick the can down the road, and wait for another case.
Despite widely held views to the contrary, the United States Supreme Court has never held that the Second Amendment protects an individual's right to own firearms for private use.
Oh, I know, presidential candidates talk about defending this God-given right and the National Rifle Association makes it seem that the private citizen can own any weapon he or she pleases. Even the media sometimes echoes this belief — but the court itself has never quite signed off on that notion. A few justices have made cryptic statements that the amendment is an "individual" right — but you still need a five-person majority to establish a precedent.
Don't get me wrong. Don't mistake this to mean that I necessarily agree with the Supreme Court's reluctance in the past to tackle this thorny issue. I'm just saying that they haven't.
I think strong arguments can be made on both sides of the debate on whether the Second Amendment is a private right, a state right, or both. In the early republic, full citizenship meant the privilege of keeping and bearing arms in a local militia. Of course that meant only adult, white males back then. But if that trend had continued, it would, as we sloughed off our racist and sexist past, have included all law-abiding adults today — which is tantamount to saying that it is both a state and an individual right.
Those on the other side can make an equally potent argument that such militias went out of fashion after the War of 1812. In that conflict, "citizen" militias proved to be unruly and unmanageable. These irregulars often did not respond very well to military command. Since these citizen-soldiers were ultimately "replaced" by trained officials such as law enforcement officers and the state guard, the Second Amendment, gun-control advocates argue, should only be interpreted as a state's collective right to form "well-regulated" militias.
Whose right? I'll leave that determination to the court. After a long silence, will this august body finally settle this contentious matter once and for all?
It has been almost 70 years since the Supreme Court last dealt directly with the Second Amendment, when it issued a vague ruling in United States v. Miller that both sides of the debate have claimed favor their position. The case involved whether the amendment's reference to a "well-regulated militia" covered an unlicensed, sawed-off shotgun taken across state lines. The court said that it didn't.
In Miller, the court pretty much ignored the issue of whether a private right existed or not. So why do many people assume that the court has already read this interpretation into the meaning of the Second Amendment?
This kind of misunderstanding about the Bill of Rights is not unusual. Many folks wrongly believe the First Amendment gives journalists the right to withhold their confidential sources when their testimony is called for in a criminal matter. Or that the same amendment gives religious groups the right to not comply with laws that interfere with their religious practices.
Not true. These "rights," if we possess them at all, come not from the First Amendment, but from other sources of law — state constitutions, federal or state law — but not the Bill of Rights. Maybe we should have broader rights — maybe the court has got it all wrong — but, again, that's an entirely different argument.
The Bill of Rights only sets the basement of our rights — the minimal standards that all government bodies must adhere to — it doesn't set the ceiling. The Supreme Court has often been stingy when it comes to interpreting that venerated document, leaving it to other institutions such as Congress, executive agencies, state courts, or state legislatures to expand our current rights, or create new ones.
There is also the small matter of who has to abide by the Second Amendment.
Not all provisions of the Bill of Rights apply to all levels of government. Even today, more than 200 years after the passage of the first 10 amendments to our Constitution, the federal courts have never said that the 50 states have to observe the Third Amendment, or have grand juries convene to send up criminal indictments as the Fifth Amendment supposedly requires. Nor have they held that the states are under the Second Amendment — probably because it doesn't make sense to apply what is seen as a state right against the states.
The point is whatever the words of that provision may mean, or the court tells us they mean, a decision that only checked federal authority would be a toothless ruling — even if the court did go so far as to say that the Second Amendment speaks to a private freedom.
The court may surprise us yet with the Heller case and go the distance on all these matters. But I strongly doubt that the nine Supremes will issue a broad ruling holding that the private citizen possesses an untrammeled right to keep and bear many kinds of weapons — especially in this post-9-11 world. The Supreme Court is accustomed to issuing narrow rulings. The justices could restrict their ruling to the regulation of handguns. They could simply say that the D.C. law is a "reasonable restriction" and leave the matter of what exactly the Second Amendment means to another case. Or they could issue a somewhat broader ruling holding that the District's law violates the Second Amendment, but indicate that their holding has no applicability to the states. Or the opposite: that since the Second Amendment only refers to state militias, a federal territory such as the District of Columbia is free to regulate firearms as they please.
The Heller case has already generated some interesting fallout in the lower courts. Initially, the district court upheld the ban, but it was reversed on appeal in a 2-1 decision. NRA spokesman Wayne LaPierre at first did not favor the case going forward to the Supreme Court. No doubt he was worried that an adverse ruling by that tribunal might saddle gun owners with a bad precedent. It might be better to leave things the way they are. Ironically, liberal Harvard Law professor Laurence Tribe believes there is a "decent chance" that gun owners' rights will be vindicated when the court announces its decision.
It is also worth noting that when the Miller ruling came down in 1939 it was written by arch-conservative Justice J.C. McReynolds. Back then, many conservative justices were into gun control — not gun freedom. Will that trend continue? Or will the Right-leaning Roberts Court depart from precedent?
The decision is expected sometime this summer — right in time for the general election. Maybe by that time the Democrats will have picked a nominee. Gun regulation has been a persistent loser issue for that party — the crazy uncle you don't talk about on the campaign trail. You can be sure the Republicans will remind them of that no matter how the high court decides.
Tim Gordinier is an assistant professor in the Politics Department at SUNY Potsdam.
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