A Clean Shot

[thedrifter]

A Clean Shot
By Robert VerBruggen
Published 3/18/2008 12:09:44 AM

Today the Supreme Court will hear oral arguments in DC v. Heller, perhaps the most important Second Amendment case in the history of the world. The decision is expected in June. The justices will seek to answer, in their own words
Whether the following provisions -- D.C. Code secs. 7 2502.02(a)(4), 22 4504(a), and 7 2507.02 -- 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.

Those "provisions" virtually ban handguns and require that long guns be stored in non-functioning states. The DC Circuit Court of Appeals answered that question with a resounding "yes it's unconstitutional."

If a reminder is needed, the amendment in question 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."

Second Amendment defenders should feel loosely optimistic right now. They've done a good job of presenting their arguments to the court. The four "usual suspect" conservative judges (Roberts, Scalia, Thomas, Alito) are almost certainly on their side, so these arguments only need to convince one more. However, they should know that even if they win, they've got a long battle ahead of them.

The individual-right view of the Second Amendment is, roughly, this: The law came from militia-related concerns, but it accomplished its goals by granting the American people, as individuals, a right to keep and bear arms.

This guaranteed an armed populace that could resist outside invaders -- "the militia" comprised the fighting-age male population, and the Framers distrusted standing armies -- and also one that could stand guard against government tyranny.

Of course, times have changed since then, but that doesn't nullify a constitutional amendment.


BY CONTRAST, the District claims that the Second Amendment only protects arms-bearing when it relates to military service. A number of appeals courts have taken to this view, mainly by misreading the 1939 Supreme Court case U.S. v. Miller.

That case did uphold a federal sawed-off shotgun ban, but it did so because the law's challengers failed to show such a gun has a militia use -- not because the challengers themselves weren't militia members. In his confirmation hearings, Chief Justice Roberts was right in saying the case "sidestepped" the issue.

Both sides and their supporters have filed countless briefs, and each can claim some of the brightest minds in law and history. There have been some blows to the individual-right side, including the Bush administration's surprise betrayal. However, by and large, Heller's supporters have put forth a compelling case that draws on history and precedent.

Sheer numbers help as well. A majority of both houses of Congress have supported overturning the laws. So have a majority of states, calling for the court to limit their lawmaking powers. Vice President Dick Cheney signed a brief with the members of Congress, in essence publicly repudiating the administration's stance.

There are even rumors that, in oral argument, the solicitor general will deviate from those arguments that he put forth in his brief.


BUT EVEN IF the individual-right view prevails, the gun movement will face significant obstacles. The biggest is that the Bill of Rights was meant to restrict only the federal government. That has changed slowly, as a series of court cases have applied most, but not all, of the provisions to the states, "incorporating" them through the Fourteenth Amendment.

Since the District of Columbia is a part of the federal government, not a state, the court has no need to decide whether the Second Amendment is similarly incorporated. So even if pro-gunners win, they'll have to take up another round of lawsuits to touch gun bans outside of DC, but with the assurance that, once incorporated, the amendment will clear cut most gun laws.

As with most Second Amendment law, the precedent surrounding incorporation is old and scant. The Supreme Court explicitly rejected the idea, first in U.S. v. Cruikshank (1875), again in Presser v. Illinois (1886). However, though the Fourteenth Amendment was ratified seven years before Cruikshank, it wasn't until the 20th century that incorporation doctrine began taking hold elsewhere.

For example, Cruikshank said this of the First Amendment:
[It] prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This ... was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. ... It is now too late to question the correctness of this construction.

However, it proved to be not too late in 1937, when the court incorporated freedom of assembly. Earlier court cases are not likely to hold much sway on the Second Amendment's incorporation, one way or the other.

The bottom line for the pro-gun crowd is: Keep your fingers crossed and your powder dry this morning, and don't get too excited if things break your way in June. There's a long fight ahead.

Ellie

[thedrifter]

Gun-Rights Showdown
By RANDY E. BARNETT
March 18, 2008; Page A22

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several D.C. citizens contending that the ban on the possession of operable firearms inside one's home violates the Second Amendment. The Circuit Court of Appeals for D.C. agreed and held the ban to be unconstitutional. However it is decided, Heller is already historic. For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions. The majority and dissenting opinions in this case will be taught in law schools for years to come. Here's a layman's guide to the significance of the case:

- Heller will be decided on originalist grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the "dead hand of the past." They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical; and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the "dead hand" of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual "right to keep and bear arms" that "shall not be infringed." In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intention of the Framers of the Second Amendment was to protect the continued existence of "a well regulated militia," the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution.

- The Second Amendment protects an individual right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called "collective right" of states to preserve their militias -- notwithstanding that, everywhere else in the Constitution, a "right" of "the people" refers to an individual right of persons, and the 10th Amendment expressly distinguishes between "the people" and "the states." Now even the District asserts the new theory that, while this right is individual, it is "conditioned" on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won't be based on a "collective" right of the states.

Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much effect on current gun laws. Here's why:

- Heller is a federal case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the 14th Amendment, which limits state powers.

Nowadays, the Court asks whether a particular right is "incorporated" into the Due Process Clause of the 14th Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward -- especially given the overwhelming evidence that the right to keep and bear arms was among the "privileges or immunities of citizens" to which the 14th Amendment refers. Those who wrote the amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias.

Finally, Heller involves a complete ban on operable firearms in the home. No state has a comparable law. And under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would be gun rights.

But although the implications of striking down the D.C. gun ban are limited, a decision upholding an unqualified individual right in Heller would still be a significant victory for individual rights and constitutionalism. To shrink from enforcing a clear mandate of the Constitution -- as, sadly, the Supreme Court has often done in the past -- would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

Mr. Barnett is a professor of constitutional law at the Georgetown Law Center and a counsel on an amicus brief in Heller filed by the Academics for the Second Amendment.

Ellie

[thedrifter]

March 18, 2008, 6:00 a.m.

Going Up for Second
Gun rights@SCOTUS.

By John R. Lott Jr.

If courts made their decisions based on public opinion, the case that the U.S. Supreme Court will hear today on the District of Columbia’s handgun ban would seem to be easy to decide. The polls and the sheer number of those filing amicus briefs support an individual right to owning guns. Yet, the Justice Department’s brief, while technically also supporting an individual right, has made this debate much more complicated and, for the first time in American history, even compelled a vice president to file his own brief.

A Gallup poll in February found that 73 percent of Americans believe that Second Amendment protects an individual right. On top of that, 305 members of Congress, 31 states, and the Department of Justice all make the same claim. Support is bipartisan. On the other side, only a minority of Democrats — 18 members of congress and attorney generals from five states — signed briefs arguing that it isn’t an individual right.

Even among presidential candidates, Hillary Clinton, John McCain, and Barack Obama all reach the conclusion that there is an individual right to owning guns. Prominent liberal Democratic legal academics such as Akhil Amar, Sanford Levinson, and Laurence Tribe have reached similar conclusions.

Perhaps all this is not surprising given that the Second Amendment is part of the Bill of Rights, and everyplace else in the Constitution that discusses “the right of the individual” the Supreme Court has consistently interpreted this phrase to mean precisely what it seems to mean, that an individual right, not the right of the government, is protected. Even if there were any remaining doubt, the debate over the 14th Amendment, which applies the Bill of Rights to the states, made it clear that Congress wanted to protect blacks against Southern states that were trying to disarm them after the Civil War.

Yet, all that agreement hides a very significant difference. The debate today will likely be over what protection is given this individual right.

Some, such as the vice president, the 305 members of Congress, and the 31 states, want to treat the Second Amendment like the rest of the Bill of Rights, requiring the same hurdles for the government to justify that a regulation is “reasonable.” Others, such as the Bush Department of Justice, argue that an “unquestionable threat to public safety” from unregulated guns requires that a lower standard must be adopted. Strongly hinting that D.C.’s handgun ban and requirement that long guns always be kept locked and unloaded could be upheld under this lower standard.

But this public-safety argument faces serious problems. After the ban went into effect in early 1977, D.C.’s murder rate rose dramatically. Only in one year since the ban has the murder rate gotten as low as it was in 1976. But it is not just that D.C.’s murder rates rose, they rose dramatically relative to other cities. In the 29 years that we have data after the ban, among the 50 largest cities, D.C.’s murder rate was either first or second for 15 years and fourth for another four years. By contrast, in 1976 D.C.’s murder rate ranked 15th. Over all, violent crime also soared.

But these problems don’t just represent something unique about D.C. Chicago experienced an increase after its ban in 1982. Even island nations from Ireland to Jamaica, whose borders are relatively easy to control, have experienced large increases in murder and violent crime after gun bans. For example, after handguns were banned in 1997, the number of deaths and injuries from gun crime in England and Wales increased by an amazing 340 percent in the seven years from 1998 to 2005.

There is real irony about the Justice Department argument. It is the old, oft derided “slippery slope” argument so often used by opponents of gun control. The Justice Department worries that if the government can’t ban handguns, it won’t be able to ban private ownership of machine guns. The specter of machine guns is raised ten times in their brief.

No one expects the court to completely end gun control any more than the First Amendment’s “Congress shall make no laws” has prevented the passage of campaign-finance regulations. But a lot is at stake today before the Supreme Court. If D.C.’s handgun ban is upheld, the Second Amendment will hold little practical meaning. Even if the ban is struck down, the decision will likely only rule out the most extreme of regulations: a complete ban on handguns.

— John R. Lott Jr. is the author of More Guns, Less Crime (University of Chicago Press, 2000) and a senior research scientist at the University of Maryland.

Ellie