The New Court and the Second Amendment
Watch out; here it comes. Bush’s new Wingnut-loaded Supreme Court is about to be tested on one of the most contentious legal issues outside of Roe v. Wade: the meaning of the Second Amendment. It has accepted a case challenging Washington D.C.’s ban on handguns. A key hint on how the court will consider the matter is showcased in the question posed by the court concerning the issue:
Whether the [D.C. Code provisions] violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
That question squarely focuses this case as a means for tearing down the long-standing interpretation of the Second Amendment as related to the state militias. It seems fairly evident that this case was pulled in by the conservative bloc, that they feel they have as good a chance as ever to turn the Second Amendment into what they want it to be, and so they are taking this shot at it.
I’ve made my own views on this pretty clear: I think that historically, it is crystal clear that the Second Amendment was only intended to make the states feel safer in their rights to maintain state militias and so to protect against a strong, standing national army that could oppress them. I also believe that there is an individual right to keep and bear arms; it simply is not established in the Second Amendment. There is a long historical precedent for personal gun ownership, and therefore it is one of those non-enumerated rights enshrined in the Ninth Amendment, the one that guarantees the rights we take for granted (e.g., the right to bear children) as well as the rights we have held historically (e.g., gun rights).
To me, all of this couldn’t be more clear. But what is also clear is that conservatives have painted themselves into a corner on the matter: they can’t acknowledge the Ninth Amendment, because it completely trashes their beloved ideal of strict constructionism, the one that allows them to deny people civil rights, specially crafted to legitimize a host of conservative issues that don’t jibe with the spirit of the Constitution. As a result, conservative jurists have simply ignored or out-and-out tried to deny the Ninth Amendment; Judge Bork dismissed it as an “inkblot.” Scalia has tried to argue it into irrelevance, suggesting that the rights enumerated by the Ninth Amendment cannot be interpreted by judges–leaving only the laughable alternative of Congress deciding which rights Congress is not allowed to restrict. Thomas is similarly evasive, trying to claim that the 14th Amendment somehow gets in the way.
Long story short, I believe that the right to keep and bear arms exists, whether the court finds it convenient to recognize or not, but also that gun rights are like any other rights: they have limits, boundaries which are drawn where the rights of other people, usually in the form of public safety, are threatened. The right to speak freely is limited where it threatens to damage the health, lives, or reputations of others. Your right to be secure in your person, house, papers, and effects is limited where reasonable cause exists that you may have committed a crime that limits the rights of others. And so on. Gun rights are not exempt, though many in the pro-gun crowd seem to believe that it holds some exalted, singular, untouchable status above and beyond all other rights.
The question now is, how will this case going before the Supreme Court fall? Well, first, let’s look at the law at the center of the case. Washington D.C., long plagued with gun violence, has banned handguns, and, according to those trying to overturn it, has laws on all other guns which require them to be “disassembled” or to have trigger locks. Really, the “disassembled” thing is not relevant, likely highlighted to make it sound as oppressive as possible. It doesn’t sound as bad if you’re just required to have a lock on the trigger which can be removed in a few seconds. That’s why they are arguing that D.C. law “amount[s] to a complete prohibition of all functional firearms within the home” for self-protection. But really, this is less about being able to protect one’s home, and more about challenging the Second Amendment.
A bigger question is what, exactly, does the right wing of the court desire to do with this? Simply reinterpreting the Second Amendment as granting an individual right is not enough; going only that far would still not do anything to limit gun control, such as licensing, registration, waiting periods, background checks, limits on sales of large numbers of weapons, etc. etc. It would mostly just overturn total gun bans, and those are pretty rare. In order to score points other than symbolically–which may indeed be their goal–they’ll have to somehow rule on this in a way that would make a big dent in gun control laws as well. For example, they would have to rule that no one can make laws which would even in limited ways inhibit people from freely using guns for home defense… and then we’d be in dangerous territory.
The right-wing bloc on the court is pretty predictable: Scalia and Thomas will almost certainly want to take this as far towards the right-wing ideal as they can; Roberts and Alito will likely play along. (I shudder to think of the America they would create if only those four got to decide how everything is run.) The left wing of the court, Stevens, Souter, Ginsberg, and Breyer, are likely to reaffirm the long-standing interpretation of the Second Amendment as inextricably tied to militia service.
The clear consensus is that Kennedy will be the swing vote. But how will he swing? Both sides of the issue are skeptical; I have seen right-wingers comment doubtfully about Kennedy, and left-wingers are nervous. Orin Kerr at the Volokh Conspiracy believes that Kennedy will fall in the middle, agreeing that it’s a personal right, but also holding that gun rights can be freely regulated. Still, that’s just a guess.
The best clue, however, seems to be found in this response by Kennedy to a question from Aaron Swartz in 2003:
Q: You esteem the Constitution, but it hurts us too. The right to bear arms and protection from self-incrimination have caused real problems for society.I disagree. The Constitution is the “single most brilliant and inspiring document in the history of western civilization”. These people who had only known monarchies managed to protect our rights and human dignities. The rule of law has three parts: 1) The Government is bound by the law. 2) All people are equal. 3) The individual has a core personality that cannot be violated.
I don’t lose sleep at night thinking about how to protect the Second Amendment. But protection from self-incrimination is important. We can’t let people be tortured.
It is fully possible that Kennedy might consider the individual right to keep and bear arms not to be vital enough to let the wingnut bloc have its way; certainly, there is enough room to simply dismiss consideration of the issue this time on the grounds that D.C.’s laws allow for enough firearms possession that individual rights, were they to exist by whatever interpretation, are not threatened by those laws.
One thing is for sure: this will be an interesting case to follow and study as it develops.
Well, I guess we’ll have to agree to disagree on some of your post. 😉 You’re right in how scary it is if the four righties were to get their way on everything; it’s as good an argument as any for electing a Democrat (and a *reasonable* one) as President.
However, while I agree with your reading of the Ninth Amendment (and despair at how the courts have neutered the obvious intent of the text over the years) I think you’re wrong about the Second. It clearly gives the people the right to keep and bear arms.
The Bill of Rights uses the specific phrase “the right of the people” three times:
in the First Amendment “Congress shall make no law respecting … the right of the people peaceably to assemble, and petition the Government for a redress of grievances.”
in the Second Amendment “…the right of the people to keep and bear Arms, shall not be infringed.”
in the Fourth Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”
Now, nearly nobody (including you, I suspect, Luis) argues that the First and Fourth Amendments apply to the State governments somehow. Yet when it comes to the Second, they do. Why? Because of the way that the Amendment reads. Its entire text:
“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. “
So it’s that first bit- which, to me, is clearly an explanatory phrase- that we get the trouble from. If that section before the first comma isn’t there, the Second Amendment is 100% intended to give the individual citizens the right to keep and bear arms.
How, then, does that phrase somehow LIMIT the people’s right? How does it get twisted into meaning that the States (and local municipalities) can somehow pass their own gun control rules and laws?
Well, in my opinion, it doesn’t. When we look at what “the militia” was back then, it’s pretty plain- it was everyone. Well, everyone who counted as a full-fledged citizen in that era, anyway. (Gotta remember that women couldn’t vote and non-whites were essentially non-citizens at the time.)
The second Militia Act of 1792 defined the militia:
That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…
Now, you can make an argument that the intent of this law was to make the militia “well-regulated”, as suggested by the first phrase in the Second Amendment. It’d be a pretty compelling argument, too. But it would miss the point.
The point is that to Congress of that era, “the militia” was EVERYONE. That’s obvious; every free, able-bodied white male citizen 18 to 45 pretty much everyone to them.
Take that into consideration, and the evidence that the Second Amendment was intended to ensure an individual’s right to arms becomes MUCH more compelling. In fact, I believe it becomes even more obvious.
What’s more, the Second Amendment doesn’t put any restriction on the people. It doesn’t say that they have to become a member of the militia.
That first phrase isn’t intended to make the following text somehow limited. It’s there to explain WHY it’s there. The reason that the right of the people to keep and bear arms is that a well-regulated militia (in other words, one that’s ready and able to fight) is necessary to the security of a free State.
We must remember that prior to this, the tendency was for governments to limit which citizens were allowed to have guns. By doing so, they could control their people- and hence, they wouldn’t be a “free State”. The Second Amendment is intended to lay out WHY people have the right to keep and bear arms, and then says that they DO have that right.
It’s not “only if they’re in the State’s well-regulated militia”; it’s all people. The intent is plain; the Founders wanted the government to be by, of, and for the people as a whole. One of the easiest ways to ensure that the government wouldn’t get out of hand was to ensure that the people, as a whole, were allowed to have enough guns to provide a check and balance (if you will) against repressive governments.
Now, you can argue that the need for the Amendment is gone. (I know some would disagree, but that’s neither here nor there.) But the fact is that it’s still there, and it hasn’t been changed by futher Amendment.
I think that when we read the actual text of the Second Amendment, it’s clear that it DOES have a clear right for the individual to own a weapon if they want. And I’d further say that the “well-regulated” militia bit doesn’t give the State the right to regulate those weapons, or have gun control, or whatever.
Do we need the Second Amendment? Is it wise for anyone that wants to own an assault weapon capable of firing hundreds of rounds a minute, to own 50-bullet magazines, and so forth? That, to me, is an entirely different discussion- and one that the gun control advocates might have a lot more luck with.
But the argument before the Supreme Court now is, to me, a mystifying one. I think it’s incredible that we’re even having it. The Second Amendment is, to me, obviously enshrining the individual’s right to own a gun, period, and I for one believe it’s high time that the Supreme Court struck down the set of laws that says otherwise.
So personally I’m hoping that Kennedy comes down on the side of “sure, DC’s laws are unConstitutional, and what’s more, the Second Amendment gives individuals the right to have guns”. It’s more rights to the people, which is a Good Thing, especially considering this age of the Government expanding its power and infringing on the Peoples’ rights.
We’ll just have to disagree on the Second Amendment. My view is, just because “the people” are mentioned outside a limiting context in two other amendments does not mean that there cannot be a limiting context in a third mention. I would state as I did before that the development of the Second Amendment included a clause for conscientious objection, something so antithetical to the expression of an individual right that it pretty much confirms the militia context and excludes the individual right. I would also point out that at the time, the right of possessing arms for personal use was probably considered a given, like the right to travel or the right to build a home. Likely the nebulous nature of the Second came from assuming the individual right while wording the amendment to protect the status of militias.
Either way, this point is moot from our point of view. We both agree that the individual right exists. The only bit of contention I’d reserve is the statement, “And I’d further say that the “well-regulated” militia bit doesn’t give the State the right to regulate those weapons, or have gun control, or whatever.” I’d say that’s a stretch, at the very least; interpreting “well-regulated” to mean “no regulations” is not something I can really go along with, especially when the expression “well regulated” is tied directly to the welfare of the State itself. I’d say that that phrase, if anything, says that only the state has the right to regulate the militia, as the militias were an organ of the State as opposed to a federal army.
Nor would any interpretation of the Second Amendment that I can imagine be immune from the same limitations applied to every right. There are always conflicts. And if any one right stands supreme over all others, it is not the right to keep and bear arms. Assuming an individual right, whether granted by the Second or the Ninth Amendment, does not preclude the application of limitations or control that still allow the possession of arms.
As for those who worry about gun control leading to gun bans, I would point out that D.C.’s gun laws are among the strictest in the nation; despite the Supreme Court interpretation of the Second Amendment as pertaining only to militias standing for seventy years, that’s about the furthest anyone has gone.
I have the feeling that we’ll come out of this with more or less the structure that we have now: gun possession pretty much universal, with controls applied at the state and local level to varying degrees.
“How, then, does that phrase somehow LIMIT the people’s right? How does it get twisted into meaning that the States (and local municipalities) can somehow pass their own gun control rules and laws?”.
The phrase before the first comma, indicates the purpose for the amendment: for the state to be able to create a militia.
When they wrote this they weren’t familiar with the future, just the past.
The revolutionary war was still in recent memory, So was the articles of confederation which vested sovereignty in the individual states, militias were the main vehicle for providing for the defense of the United States.
The purpose of the amendment then, is to allow individuals to own arms so that the state doesn’t have to worry about issuing out rifles and military kits to individuals. If there’s an emergency, they could just call the people together.
Ultimately the meanings of these amendments has to be construed from the supporting documents created at the time, like the Federallist Papers and the notes of James Madison and the authors of the amendment.
But the clause before the comma explicitly indicates to me that its a states right to regulate gun ownership. Especially if a states militia is no longer dependent upon drafting militias from the field with the idea that each person would supply his or her own weaponry. These days, you join the national guard, they give you your weapon. No one is bringing their weapons from home anymore. So the conditions that created the second amendment are gone.
In general, although supplemental to the issue, the most fundamental notion the constitution is the police power of the state. We are reminded of this frequently these days when state governments, or their agencies in municipal governments, exercise eminent domain to obtain private property and then give it to private developer for other purposes. States can do this because of their broad police powers.
In general, I find Luis’ suggestions the most compelling and interesting. What the court will do is anyones guess. But some on the conservative side might be wondering about the court’s institutional position or they ought to.
The first time the court overthrew a law, Marbury vs. Madison was around the turn of the 19th century. The next time they overthrew a law was in Dredd Scott case roughly a half century later. That opinion necessitated the civil war, nearly destroying the United States. More recently they did nearly the same thing in Bush v. Gore. Their recent decisions are increasingly absurd. They are in danger of losing their credibility on an institutional basis.
Strict constructionist is another problem. Strict construction would seem to guarantee separation of church and state. Some Bozo from first antioch baptist church might not get this, but Supreme Court nominees should and must to avoid discrediting themselves.
I have more to say on Strict constructionism as it is necessary to build ideological rule and is contrary to the long anglo american history of the United States.
Here’s the thing- even if you accept that the purpose of the rest of the Second Amendment is that the State needs to be able to establish a well-regulated militia, it still doesn’t water down the reality of what the rest of it says.
Say it said this: “Because the State needs to have a well-armed militia, the right of the people to keep and bear arms shall not be infringed.” Okay, we’ll accept that in today’s world, the State doesn’t need you to bring your own musket; they can supply you with a really slick M16. Do you still have the right to keep and bear arms?
Of course you do. It’s a right granted to the people. Not to the State (states’ rights are laid out throughout the document) or to the federal government; it’s specifically reserved to the PEOPLE.
That, to me, is one of the most compelling things about it. The Tenth Amendment makes it extremely clear that the rights in the Constitution are either delegated to the United States, or prohibited to the States, or are “reserved to the States respectively, or to the people.”
They plainly drew lines between stuff that went to the federal government, to the State(s), and to the people. The Second Amendment is so clearly TO THE PEOPLE that I’m always surprised when I see perfectly intelligent people (such as yourselves!) actually arguing that the people aren’t guaranteed a right to keep and bear arms by the Second. 😉
I accept that you don’t read it that way; I’m just surprised that it’s even in contention. There’s many issues that, it seems to me, are easily viewed in different ways. Even abortion- which I come down strongly on the pro-choice side of- seems to be one that intelligent, wise people of good conscience can come down on different sides on.
The Second Amendment? Not even close. The first part of it says why they’re doing it, but the second part plainly and obviously says that “the right of the people” and that’s exactly what it means.
Just like the First guarantees “the right of the people peaceably to assemble, and petition the Government” and the Fourth guarantees “the right of the people to be secure…”.
Anyway, I’ll settle for Luis saying that the right to keep and bear arms is in the Ninth. He’s just wrong about it NOT being in the Second.
It is, and people have to really twist and torture the meaning of the first part to see otherwise, IMO.
See, here’s the thing about Luis’ argument that the Second doesn’t grant individual rights. To buy that, you’d have to buy that they were suddenly changing the language that’s found everywhere ELSE in the original Constitution and Bill of Rights.
See, everywhere else, when they mean “the State” they say a right or responsibility is reserved by “the State”. When they say “the people”, they mean an individual right. Yet suddenly, in the Second, when they say “the right of the people” they mean the State somehow? No, I don’t think so.
I’ll buy Tim’s suggestion- it’s for the purposes of the STATE… but it’s still an individual right granted to THE PEOPLE. I believe this because, well, it says so. 😉
The idea that the phrase “the people” can’t be used collectively, if it has already been used a number of times on a page in the singular sense, seems usually to be one of the first things brought up by those who believe in the individual-rights interpretation of the Second Amendment.
But the phrase “the people” is classified as a collective noun. Like other collective nouns it can be used either collectively or it can be “singularized.” There is no law requiring a collective noun to be used in only one of those ways on a page — or even in the same sentence.
Look, for instance, at what the authors of the famous “Pennsylvania Minority Report,” often cited by Second Amendment gun-rights people, did in one of their proposed constitutional amendments. They applied the words “the people” both ways while only writing it down once:
“[N]o law shall be passed for disarming the people [collective] or any of them [singular].”
As for the discussion about the militia and the Militia Act of 1792, I would like to point out that the act was not really an effort to organize the militias of the states. The effort was mainly to reorganize and standardize. The actual title of the act, in fact, was “An Act more effectually to provide for the National Defence by establishing an Uniform Militia throughout the United States.” Emphasis on the “Uniform.”
Well regulated state militias already existed in 1789 and 1792. Militiamen had long been enrolled, assigned to companies, mustered, and trained for service. These state militias were regulated under state law. The very title of Pennsylvania’s 1780 militia law, still in effect in 1792, emphasizes that fact: “An Act for the Regulation of the Militia of the Commonwealth of Pennsylvania.” The act was long and packed with rules and regulations.
One of the ironic changes made by the federal act of 1792 was to narrow the extent of militia service in Pennsylvania. The age bracket for militiamen was changed from 18-53 to 18-45.
The individual-rights interpretation of the Second Amendment would, for Pennsylvania and other states with similar militia laws, have “recognized” the right of militiamen to obey their own states’ militia laws that required them to provide their own arms. Sounds a bit weird, doesn’t it.