Commentary: The government and gun rights
More than five years ago, on May 6, 2002, the U.S. government told the Supreme Court — for the first time — that it had changed its decades-long position on gun rights. In footnotes dropped into two documents urging the Court not to hear two Second Amendment cases, the U.S. Solicitor General (then Theodore B. Olson) formally put before the Justices the government’s new support for an individual right to have guns for private use.
The footnote recalled that the government had previously argued in court filings that the Second Amendment “protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia.” But it then added: “The current policy of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any military or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of firearms that are particularly suited to criminal misuse.”
Attached to the brief was a copy of a November 9, 2001, memo by Attorney General John Ashcroft to all U.S. attorneys outlining the changed position. (Ashcroft in May 2001 had already made his views known in a letter to the the National Rifle Association, saying “let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms….I believe it is clear that the Constitution protects the private ownership of firearms for lawful purposes.”)
Those statements were included in briefs in opposition to Haney v. U.S. (docket 01-8272) and Emerson v. U.S. (01-8780). The Court denied review of both, without comment, on June 10 of that year.
Now that the Supreme Court has finally accepted for review the issue raised in those and other unsuccessful appeals, the question immediately arises whether the Justice Department will join in the new case — District of Columbia v. Heller (07-290) — granted review on Tuesday.
Because the Heller case seeks to test the meaning of the Amendment as it applies to a federal entity — the District of Columbia, it would appear that the outcome of the case would have a direct bearing on the constitutionality of an array of federal gun control laws. That is more than enough of a governmental interest to justify a brief on the merits stating the government’s current view. But will it?
The government did not file any brief when the Heller case was in the D.C. Circuit Court, nor did it join in the case as the Supreme Court pondered whether to hear it. But now that the case is on the Supreme Court’s docket for decision, it has vastly greater potential significance — legal and political.
In strictly legal terms, the Department presumably has an interest in assuring that, even if the case results in a decision in favor of an individual right to have a gun, it leaves room for “reasonable” controls on gun possession and use. While state governments are likely to make the same point in coming amicus briefs (as four of them did at the petition stage), only the Solicitor General could make that argument on behalf of federal legislation.
In political terms, the briefing in the Heller case will be unfolding as the new presidential election season begins to intensify, almost surely making gun control into a campaign issue.
The District of Columbia’s opening brief is due in 45 days — that is, the first week in January. If the government is to get into the case as an amicus on the side of those claiming an individual right to guns, its brief would be due by the second week in February. The case is expected to be scheduled for oral argument in the week of March 17. If the government moves into the case (it does not have to have the Court’s permission to file an amicus brief), it very likely would ask for some of the argument time.
The Bush Administration has been very close to the gun rights community — indeed, gun rights advocates, including the NRA, were strong supporters of George W. Bush for the presidency, and they claimed a major share of the credit after he was elected. In fact, high-level NRA officials said after the election that they expected to have special influence at the White House.
If the question of the Solicitor General taking part in the case is seen as a matter of protecting the federal interest in “reasonable” gun control, then it might not become a major political issue as the Department decides whether to get involved. But if the White House were to make it into a political question, that might raise some difficult moments for the new Attorney General, Michael B. Mukasey, who has vowed political independence from White House influence.
This is an interesting theory but it runs into the boring fact that Mr. Mukasey has already stated that he believes the Second Amendment to be an individual right and thus may personally not desire to strongly support some existing Federal restrictions.
See this article from the Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2007/11/01/AR2007110102306.html
-Gene
Comment by Gene Hoffman — November 21, 2007 @ 11:17 am
Perhaps, the decision in this case will serve to bring all sides of the debate together. Perhaps not.
From an individual rights perspective, it is rather difficult to argue against the right to bear arms, either historically or Constitutionally.
Specifically, the inclusion of a Bill of Rights in the Constitution was designed to protect the people from too much government control. What better way to do so than to give the people, either collectively or individually, the right to take up arms against and unruly tyrant.
The collective right cannot exist without the individual right, since it makes little sense to leave the states in charge of guns, to be handed out to individuals in case of need. That position defies logic in that the government would be in control of the very means by which the founders and the Constitution allow for a forced change in the government, viz., arms.
We cannot live in a completely safe world with padding and bars. It is in the manner of which we handle dangers that we show our mettle as citizens.
Guns are not the problem, just an instrumentality by which problems are resolved. Taking away the guns will not eliminate the underlying issues.
As an adult-run society, we have an obligation to pay for our individual liberties with the necessary risks involved in securing those freedoms. Sometimes those risks may involve a cost in lives of some of our citizens, however tragic that may be, to maintain our liberty to effectively govern ourselves and the government we choose.
Government belongs to us and the means to manage it derives from our right to change it, even if that means change from revolution.
I will be curious as to how th Court decides this case.
Comment by Timothy C. Rauhoff — November 21, 2007 @ 11:38 am
I would appreciate an explanation from a knowledgeable proponent of individual gun rights as to why the Second Amendment — if it indeed endorses individual gun rights– starts with that rather troubling, perhaps exclusionary, ablative absolute relative to “…militia(s)..”
If the Founding Fathers truly wanted to promote individual rights, would they not have simply said so?? Just a layman’s opinion, but– given the actual wording– it seems it takes a convoluted interpretation of the Second Amendment to come away with individual gun rights.
Comment by Michael Kress — November 21, 2007 @ 1:10 pm
it is rather difficult to argue against the right to bear arms, either historically or Constitutionally.
And yet, pretty much every court to consider this question before the DC Circuit managed to do so. Guess all of those judges just didn’t manage to have Mr. Rauhoff’s superior insight.
Look, I don’t know what the answer will be — personally, I find the individual rights theory unpersuasive — but I do know that it’s not “difficult to argue” either side. The text, and its history, have ample ambiguity to exploit either way.
Comment by Glenn Edwards — November 21, 2007 @ 1:29 pm
I am stunned at the comment Timothy Rauhoff presented. It is one of the best explanations to the Second Amendment that I have ever heard. Perfectly stated.
I am curious as well on how the Court decides this case. I know a lot of people seem to believe that the right to bear arms doesn’t specifically mean the people, but of the States right to maintain a militia. Problem with that statement is that the militia is comprised of individuals. Even in the Revolutionary war you had the Regulars (Government funded and trained troops) and you had the Militia (Individually recruited individuals that fought with whatever firearm they owned). People say we have a militia in the National Guard, except the National Guard is exactly that…NATIONAL. It is funded and run by the government.
I do not think there is much room for interpretation on the Second Amendment. The Constitution starts off as We the People, and the Second Amendment clearly states, the right of the people to keep and bear arms.
Comment by Steven M. Beiter — November 21, 2007 @ 1:55 pm
As both a law enforcement officer and handgun carry permit instructor, I’ve followed the second amendment debate closely for years. Now that the Supreme Court has decided to hear Heller, I believe we are at a defining moment in the gun control debate. Personally I hold to the individual right belief. I feel the constitution means what it says (making me a strict constructionist I suppose). If the court upholds the individual right theory, then the gun control groups will have a fit.
If the court adopts what I’ve come to call the “Clintonian” (since Bill Clinton was the first person I heard espouse this view) view of the constitution as a “living document,” and supports the state theory, then I fear the country is in for some dark days. As I tell my handgun permit classes, if second amendment doesn’t mean what it says, how long before the other 10 amendments don’t really mean what they say (the sixth amendment has been on shaky ground in wartime going back to Lincoln). I could see a day when the 4th amendment no longer protects from search and seizure, or the fifth no longer protects your right to remain silent (can you say waterboarding).
The quote often attributed to Benjamin Franklin “Those who would trade freedom for security deserve neither” has never been more true. Proponents of the state as all knowing, all providing are strangling our country. I was raised to believe you could go as far hard work and intelligence would take you, and each person was responsible for themselves. Individualism is being (ruthlessly in some cases) suppressed and our country is the worse for it. A clear upholding of Heller might someday be remembered as the turning point when individualism began its comeback.
Happy Thanksgiving
Comment by Mike Voncannon — November 21, 2007 @ 2:33 pm
Steven Beiter’s comment is spot on, and particularly spot on with respect to Timothy Rauhoff’s comment. I’d only add for the benefit of Glenn Edwards and Michael Kress that the basic concepts enshrined within the Second Amendment can be truncated into the following plain language:
Individual citizens of each state may organize a militia constituted by the people themselves and their privately owned firearms.
So understood, and from a textual standpoint, and if you accept the “individual” versus “collective” right distinction, there are a least two “individual” rights present: the individual right to own (i.e, “keep”) and carry (i.e., “bear”) arms, in addition to at least two “collective” rights: to assemble (i.e., to form a “militia”) and train together (i.e., to be “well regulated”) (and presumably under a command). The “necessary to the security of a free State” provides the then-understood rationale (for the original intent folks).
Also, if one takes a look at Federalist No. 46, James Madison notes the “advantage” of Americans “being armed,” and advantage that Americans “possess over the people of almost every other nation.”
Comment by Benjamin P. Hayek — November 21, 2007 @ 2:52 pm
Glen, Michael, I’d suggest you get educated before you comment again. It is simply not so that nearly every court has decided against an individual rights position. US v. Miller, commonly cited as the SCOTUS weighing in on the collective rights side, does no such thing; in fact, the decision in Miller presupposes an individual right. A reading of Miller (more than the civics book blurb) makes that clear.
I’ll say again what I wrote previously: It will be nearly impossible for an intellectually honest Court to decide the 2nd amendment does not mean what it says. The weight of the text, the writings of the founders and those of that era (this was not remotely controversial to them, as they well understood the point), the historical and philosophical foundations of this country, dating to the Magna Carta and through the Glorious Revolution of 1688; all of these make a denial that the RKBA is an individual right untenable with a straight face. How does one defend an unwritten right, based on a “penumbra,” if one cannot recognize a clearly textual one? (of course, that did not prevent the SCOTUS from botching Kelo, and your private property yours subject only to the whim of your friendly local politically well-connected real estate developer).
That does not mean it is an unbounded right; just as 1st amendment rights are limited by “time/place/manner” regulation, so too may 2nd amendment rights be placed within reasonable boundaries. The real fight is over what is “reasonable.” An absolute ban, such as DC has, is not, according to the incredibly well-reasoned decision before the lower court. That may provide a base floor, but does not answer the harder questions. This case is, thus, not the end of 2nd amendment litigation; in fact it may be just the beginning.
Comment by James R. Watts — November 21, 2007 @ 4:12 pm
What’s the likelihood the Supreme Court will “Call for the Views of the Solicitor General (CVSG)?” If it does then the question of whether the SG should seek permission to file an amicus brief will go away…
Comment by Mark Seecof — November 21, 2007 @ 4:37 pm
“I would appreciate an explanation from a knowledgeable proponent of individual gun rights as to why the Second Amendment — if it indeed endorses individual gun rights– starts with that rather troubling, perhaps exclusionary, ablative absolute relative to “…militia(s)..”
If you substitute the era correct common usage definition for “Well Regulated” with a contemporary usage, e.g. Well Trained or Well Prepared (not the incorrect “well controlled” usage) the 2nd makes a whole lot more sense.
In order to have a well prepared militia, being neccessary for the preservation of a free state/country, the right of the people … etc.
In short, “the people” (same “people” as in the 1st amendment) have to be able to stay in practice, just in case we need them to defend against a domestic or foreign threat to their freedom.
An archaic concept?
Considering the tens of millions of disarmed civilians executed by European and Asian “lawful governments” over last century and the success of guerilla fighters with simple explosives and side arms, maybe not such an antique concept after all.
Comment by Don Petersen — November 21, 2007 @ 4:59 pm
“That does not mean it is an unbounded right; just as 1st amendment rights are limited by “time/place/manner” regulation, so too may 2nd amendment rights be placed within reasonable boundaries. The real fight is over what is “reasonable.” An absolute ban, such as DC has, is not, according to the incredibly well-reasoned decision before the lower court. That may provide a base floor, but does not answer the harder questions. This case is, thus, not the end of 2nd amendment litigation; in fact it may be just the beginning.” Comment by James Watts
Well said, while I think it’s clear that an individual right exist, I don’t believe it’s an unfettered one. I am most interested in what rule the court propose to regulate such a right.
Comment by Chee Foong Chew — November 21, 2007 @ 5:27 pm
Sure - I’ll get on board for “reasonable time/place/manner” restrictions on firearms akin to those on speech; since all of those restrictions on speech are based on USE of speech. And we already HAVE TPM restrictions on firearms usage…
Comment by Ian Argent — November 21, 2007 @ 6:06 pm
I don’t know about all the state constitutions, but those of Illinois and Michigan specifically state that the militia consists of “all able-bodied persons” above the age of full citizenship, or words to that effect. That is, as a reasonably able-bodied citizen first of Illinois and now of Michigan I *am* automatically under my state constitution a full member of the state militia.
Maybe some gun-grabbers will say that the National Guard has taken over the functions of the state militia, but that’s *not* what the state constitutions say, and the US Constitution says squat squared about ‘National Guards’.
As a member of the militia, I should be entitled to ‘keep and bear arms’ albeit I can agree with reasonable restrictions.
Comment by JorgXMcKie — November 21, 2007 @ 6:49 pm
The “militia” introductory phrase is certainly puzzling, and the language sows this confusion that (hopefully) will be explained by the Court.
But it’s inconceivable that the Founders would have any confusion about an individual right to keep and bear arms. That was so much a part of the Revolution and the American Spirit, and continued to be implicit in the expansion and development of the country.
More likely that the amendment is imprecise because it was just taken for granted that an individual had that right, and this 2nd Amendment received little attention/redrafting because it needed so little discussion.
Comment by Tom Barnard — November 21, 2007 @ 6:57 pm
Contrary to what Mr. Watts and Mr. Hayek claim, the interpretation of the Second Amendment is far from cut and dry, and intellectual honesty certainly does not require one to support a strong individual right to keep and bear arms for private use. First, the individual / collective dichotomy is a false one; the question certainly should not turn on that, and the court’s decision likely will not. Clearly there is an individual right; of what scope is the key question.
What is clear is this: the Second Amendment at the time was understood to protect the rights of individuals to bear arms in well-regulated state militias. The debates of both the Congress and the various state ratification conventions, along with the text of the Amendment itself, make this abundantly clear. The concern of the Framers was the balance of federal and state control over the militia. At minimum, the Framers simply never contemplated whether this militia-related right would limit the states’ already existing ability to regulate weapons under their police powers. Several historians have highlighted the rather remarkable array of gun regulation which both predated the Constitution and continued to exist after it, with nary a thought that such regulation would violate the Second Amendment or cleared individual rights protections in state constitutions.
Moreover, the actual text of the amendment stands in stark contrast to the drafts urged by, among others, the lone minority dissenter from PA’s ratification convention. That language, unlike the text of the 2A, would have provided explicit protection for the use of weapons for hunting and personal defense. That it was roundly criticized and rejected speaks volumes about the original understanding of the Amendment.
Of course, one can take a broader view of the Framers’ intention and note that, although the militia was viewed as the vehicle for preserving the security of a free state against potential federal tyranny, that security - not the militia - was the Amendment’s ultimate aim. Accordingly, any law that almost completely disarms the people would strike at the heart of what the 2A was ultimately designed to protect - the security of citizens. Furthermore, originalism is not everything, and an evolved understanding of the 2A in light of the experience of the Civil War and of freedmen in the South certainly makes a strong case for a broader individual right.
But it is also simply wrong to say that Miller did not decide a 2A question, as it most certainly did. it directly held that the Second Amendment must be interpreted and applied in light of its purpose of preserving the effectiveness and efficiency of the militia. Certainly it is a somewhat ambiguous opinion, but this statement is one that the Court should accord some weight.
The bottom line is that there are strong arguments in favor of both a strong individual right and a “sophisticated collective right,” which is really an individual right of limited scope. To say that there is a clear-cut right answer here is a virtually indefensible position.
Comment by Steve Mattingly — November 21, 2007 @ 7:06 pm
What has me worried is the way SCOTUS put the question.
“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?”
The way that I read it, it sounds like the old “right of the states” argument is DOA.
However, I could see SCOTUS ruling that the Second Amendment applies only to members of a state-regulated militia. What constitutes a state-regulated militia gets left for the future…but note that no state HAS to have a militia at all.
Would it be right? NO! But right and law have little to do with SCOTUS rulings.
Comment by Mike McDaniel — November 21, 2007 @ 9:39 pm
I am concerned that all of a sudden the matter of whether or not bearing arms is an individual right is even being questioned at all. It has been interpreted that it is an individual right since it was written. States have even continued this idea in their own state Constitutions, i.e., the Colorado State Constitution:
“The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”
–Article 2, Section 13, Colorado Constitution
The right of no **person** to keep and bear arms… shall be questioned. It’s as simple as that. “Person” “He” - all words to describe individuals.
Now then - what is the motivation for questioning this? I think it is as simple as some anti-gun groups wanting to find a way, any way to start disarming law abiding citizens.
Well - here is what I want you to think about: When you disarm the law abiding citizens, who will be disarming the criminals? And don’t say that our elected representatives will pass laws and provid funds to bolster the police departments. The nearest police officer will still possibly take the rest of my life to respond to my home when it is being invaded by predatory criminals.
My right to self preservation is absolute. My right to bear arms is a tool by which I carry out the right to live.
Comment by William Flinn — November 21, 2007 @ 10:01 pm
I agree with James R. Watts. In my opinion the collective rights theory is the modern day equivalent of the “separate but equal” doctrine. None of the Justices would dare risk their supreme (pun intended) scholarly credibility by adhering to such an utterly baseless theory which requires that hundreds of years of supporting writings be completely discarded in favor of flim-flam logic which first appeared only in the last thirty years. I’m going out on a limb and predicting that the individual rights theory wins 9-0. Any Justice that would adopt the collective rights theory may as well advocate for the separate but equal doctrine. Both are equally intellectually disengenuous; the latter has, thankfully, been relegated to the ash heap of history. We can only hope that the collective rights theory joins separate but equal in that same ash heap.
Comment by Wayne Jacobs — November 21, 2007 @ 10:06 pm
“Reasonable” restrictions?
That is more difficult that it seems. For one thing, the phrase “shall not be infringed” has to be considered if the 2nd is to be taken seriously.
Currently gun control laws box the fundamental right in on three sides. They try to regulate (1) the hardware itself (grips, barrel lengths, sights, ammunition material, “suitability for sporting use”, etc); (2) the time, place, or manner of carrying or storage (mandatory gun locks, no guns in school zones or Post Offices, etc); or (3) the person doing the keeping and carrying. Surely restrictions on only one of these would be sufficient and “reasonable”. The most promising of these choices is restriction of the person (ie, licensing).
To stand any chance of passing muster re “right of the people, shall not be infringed”, whatever the qualifications for licensing, they should be such that nearly all adult citizens do, or can, qualify. For one thing, that probably means that many licensing fees have to be eliminated or sharply reduced. The long list of crimes which disqualify a person in perpetuity from gun possession also have to be reduced - far too many minor crimes are casually claimed to make the perpetrator a “violent felon”.
Comment by tom swift — November 21, 2007 @ 10:16 pm
As far as I know, the 2nd amendment has never been repealed, making it illegal for the US government to say we can no longer bear arms.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That makes all discussion to the contrary, moot.
Comment by Thomas Aldrich — November 21, 2007 @ 10:27 pm
The “militia” introductory phrase is certainly puzzling, and the language sows this confusion that (hopefully) will be explained by the Court.
But it’s inconceivable that the Founders would have any confusion about an individual right to keep and bear arms. That was so much a part of the Revolution and the American Spirit, and continued to be implicit in the expansion and development of the country.
More likely that the amendment is imprecise because it was just taken for granted that an individual had that right, and this 2nd Amendment received little attention/redrafting because it needed so little discussion.
Comment by Tom Barnard — November 21, 2007 @ 6:57 pm
The 2nd ammendment is VERY clearly written:
Amendment II
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.
A well regulated militia, during the period which this was written, referred to a LOCAL volunteer militia, which was used to defend the the settlement.
The right of the people to keep and bear arms was an effort to ensure the local people had armed volunteers from which to form a militia to protect their settlement.
Those were the intended purposes of our Founding Fathers. Twisting it to mean anything other than their original intent IS ILLEGAL.
Consider this: During all the early wars, ALL our Military Forces, were VOLUNTEERS. For example, during the Civil War, the designation for troops from my area was called, 125th Regiment, New York VOLUNTEER Infantry.
Comment by Thomas Aldrich — November 21, 2007 @ 10:33 pm
Steve Mattingly said:
“At minimum, the Framers simply never contemplated whether this militia-related right would limit the states’ already existing ability to regulate weapons under their police powers.”
Well yes, since just about the entirety of the first 10 amendments were aimed at restraining the federal government, not state and local governments.
Blame the courts of the past 70 years for interpreting the 14th amendment as “incorporating” these rights against state/local abridgment.
Comment by Stephen Jaros — November 22, 2007 @ 12:21 am
The framers of The Constitution and The Bill of Rights absolutely considered the Second Amendment
to be the right of the individual. They had left
a land where the Government did not represent
the common man’s rights. They designed our
country so the Government is to answer to the
citizen and not the other way around. The First
Amendment sets the basis of the most fundamental
thing needed in a free society, The right of
free speech and assembly. The Second Amendment
is there so that the First Amendment ( and all
of the others) can be protected against government
abuse . If the Second Amendment does not pertain
to the individual, then what good is it??
Comment by Joel Peterson — November 22, 2007 @ 2:38 am
You have to look back at history and examine whether or not the framers intended the general public have the right to bear arms. part of the reason that England ultimately lost the colonies was because the COULD’NT account for all of the weapons the people possessed. I believe that history will show that in order to preserve and protect our form of government it’s necessary for law-abiding citizens to possess firearms. Every crazy dictator that’s come along and taken over a country somewhere else has had to disarm the general public first. I don’t think the Holocaust would’ve happened if those victims had been armed to begin with.
I really hope the Supreme Court rules in favor of the citizens of this country being allowed to own firearms freely. I fear that there will be bloodshed, violence, and revolt if you try to take guns away from law-abiding Americans. Watch the Presidential race heat up as speculation on this case intensifies. Eventually, the American public will decide this issue through voting. If the Court rules in favor of gun control, I think there will be a Constitutional Amendment drafted within minutes of the ruling, or a new Congress will be elected by the voters to draft and pass one.
Either way, I don’t think that the American public will stand for being dis-armed, however long it takes.
Comment by Timothy Lyon — November 22, 2007 @ 10:06 am
Just a curious question, why did the goverment change its position on gun rights? Is that an indication that governments in the past didn’t think such an individual right exist?
Comment by Chee Foong Chew — November 22, 2007 @ 11:32 am
There is no way you can protect yourself from an out of control government with a hand gun or hunting rifle. In Iraq every farmer citizen was packing an AK-47 when our troops arrived and they didn’t stand a chance of protecting themselves from Saddams’ troops.You could run a bothersome insurgency as is being done there now. Is the second amendment the right to hunt,to protect yourself from criminals or a citizens’ right to counter an out of control government. I would hope it is all of these.
Comment by chris berns — November 22, 2007 @ 12:35 pm
With respect to Mr. Mattingly, I agree that “clearly there is an individual right; of what scope is the key question.” I think it pretty clear, though, that the individual right is not necessarily linked to militia membership. In other words, on my view optional militia membership is merely enabled by private ownership of arms, which seemed to be the primary justification for the individual right at the time of framing. Hence, it is because of the constitutional right to keep and bear arms that individuals may also lawfully form militias (after all, it is most conceivable that the Constitution might allow private individuals to keep and bear arms but forbid them from forming a militia).
On my view of the Second Amendment, the “right to keep and bear arms so long as one is a member of a militia” argument – while plausible – makes little sense. I agree with Mr. Mattingly’s historical analysis to the extent that the debates of Congress and various states debated the individual right within the context of the additional freedom to form militias, but I don’t think anyone at that time seriously contemplated militia membership as a necessary precondition to keeping and bearing arms. In fact, I think it was the exact opposite.
Finally, and at the end of the day, my only other respectful disagreement with Mr. Mattingly is his characterization of this case, for while I agree that this case is not “clear cut” or “cut and dry” (and don’t recall using either expression), I don’t find this case “hard” in the Dworkinian sense. In other words, while the answer is perhaps not obvious given the existence of good faith arguments for either side, I don’t expect this case to pose any significant exegetical problems for the Court (except for the obvious – defining what a “reasonable restriction” is, which is (I think) Mr. Mattingly’s key point).
Happy Thanksgiving!
Comment by Benjamin P. Hayek — November 22, 2007 @ 3:41 pm
If the Second Amendment protects individual rights, then what is the limiting principal, if any? Can an individual “keep and bear” a Howitzer? A grenade launcher? A small thermonuclear device?
Comment by Richard McKewen — November 22, 2007 @ 10:16 pm
The simple answer to Mr. McKewen’s query turns on whatever the reasonable definition of “arms” is.
Stephen P. Halbrook uses the phrase “firearms and other common hand-carried arms,” which I believe (obviously) encompasses rifles, shotguns, and handguns, all of which were “common” at the time of framing. Since Howitzers, grenade launchers, and small thermonuclear devices were not “common” (the didn’t exist) at the time of framing, these are obviously excluded by the original intent. And since none of those items are “common” in the present-day context, even “the living Constitution” excludes them, too. So, I’d argue, the limiting principle is the commonality of the firearm.
Comment by Benjamin P. Hayek — November 23, 2007 @ 9:14 am
I agree with those who think the Court will rule that it is an invididual right and those who think that this is the beginning, rather than the end of litigation on this matter.
If the first amendment jurisprudence is any guidance(and I think it has to be), the question of what is reasonable will produce a slew of different and inconsistent opinions on the matter. An obvious question is what is the standard of review for second amendment issues? What if the Court held that any restrictions on gun ownership are subject to strict scrutiny, the way content regualtions on speech are. I do not know is even a licensing system would qualify under that standard, at least as it is traditionally applied.
I think that it will be intersting to see if Scalia, with his preference for bright line rules, goes along with anything other than a bright line rule in this case.
In another issue that I do not see brought up is the fact that possession of a weapon is a crime in certain circumstances. Depending on how the Court rules, the case might open up tons of criminal appeals.
Comment by Chris Ciotoli — November 23, 2007 @ 2:53 pm
Let’s not forget documented history when speaking of original intent. When the article that would become the Second Amendment was before the Senate, a motion was put forth to add four words to the operative clause. These words were to appear after “bear arms” resulting in the clause reading, “the right of the people to keep and bear arms, for the common defense, shall not be infringed.” This motion was put to a vote and clearly rejected. Why? This was the perfect opportunity to declare a sole purpose for the protection for the right to arms and tie it exclusively to militia duty. By not declaring this exclusivity, it is obvious the protection of the right was meant to be general in nature, and in doing so, provide for the means of a well regulated militia if necessary.
Comment by Richard N. Burdette — November 23, 2007 @ 6:24 pm
Unless one had been personally present during the actual drafting of our U.S. Constitution to question the signers,reading between the lines and assuming what they meant for then and now is invalid. Give them all praise for their brilliance
Comment by Ms. G. Odonnell — November 24, 2007 @ 10:22 pm
Stephen P. Halbrook States that “Since Howitzers, grenade launchers, and small thermonuclear devices were not “common” (the didn’t exist) at the time of framing, these are obviously excluded by the original intent”.
I have strong reservations against a reading in that light.
The first amendment is not read in the same light. If it were, cameras held by reporters would not be covered by the first amendments “freedom of the press”, nor did video or internet exist at that time, therefore they would be unprotected.
At the time the BOR was ratified, there were cannons. A howitzer is the modern day extension of a such a weapon. Just as a 9 millimeter pistol is the modern day extension of a revolutionary war era handgun.
That said, I don’t think everyone needs a howitzer.
I do not however agree with a “common at the time” reading of any part of the bill of rights.
Comment by Saen P Fahey — November 25, 2007 @ 3:08 am
well, Stephen P. Halbrook uses the phrase, Benjamin P. Hayek says the rest.
In the interest of accuracy.
Comment by Saen P Fahey — November 25, 2007 @ 3:10 am
“Stephen P. Halbrook uses the phrase “firearms and other common hand-carried arms,” which I believe (obviously) encompasses rifles, shotguns, and handguns, all of which were “common” at the time of framing. Since Howitzers, grenade launchers, and small thermonuclear devices were not “common” (the didn’t exist) at the time of framing, these are obviously excluded by the original intent. And since none of those items are “common” in the present-day context, even “the living Constitution” excludes them, too. So, I’d argue, the limiting principle is the commonality of the firearm.:”
Unfortunately, you’re incorrect in at least a couple of points. There were contemporaneous examples of privately owned cannons, and even warships (as the Constitution accepts - a letter of Marque and Reprisal is useless without the ability to use it - which requires a warship).
Likewise, the “grenades” of the period were able to be privately owned, etc.
I don’t like arguements based on the “destructive power” of current armaments as opposed to those of the era of the Founding Fathers, because of the inherebt applicability to other rights (such as the 1st amendment).
Comment by Ian Argent — November 25, 2007 @ 11:41 am
SCOTUS WILL strike down the D.C. Law beacause it is UNREASONABLE and ARBITRARY…the day WILL come when U.S citizens will be forced to defend their lives with their privately owned weapons…..
Comment by peter tammaro — November 25, 2007 @ 8:59 pm
Do you have the quote for what Mukasey said in “vow[ing] political independence from White House influence”, including the context in which the statement you are referring to was made? I would be very surprised if then-Attorney General designate Mukasey said anythign that would preclude consultation with the White House through the proper channels (e.g. SG or Deputy AG with White House Counsel or Deputy Counsel) on what position the Department plans to take before the Supreme Cout on a novel constitutional question. That kind of consultation took place routinely under Ronald Reagan, George H.W. Bush and Bill Clinton as well as this President. It’s one of the reasons we have elections.
Comment by Lee Liberman Otis — November 26, 2007 @ 11:22 am
With respect to Ms. G. Odonnell’s comment, I don’t believe that any serious proponent of “original intent” subscribes to her characterization of what actually goes into the process (e.g., “reading between the lines,” etc.). Rather, “original intent” folks recommend that – when the meaning of the text is unclear – one examine other sources available (e.g., “legislative history,” other contemporaneous texts on the subject, such as correspondence and the Federalist Papers, etc.). Hence, most “original intent” people focus first on the text alone, and then on other sources if the text is reasonably ambiguous. In other words, seances or other supernatural tools are not required to reasonably ascertain the Framers’ intent.
With respect to Mr. Ian Argent, I’d first note that my proposed “limiting principle” of “commonality” (which is by no means original with me) was offered in response to an invitation to provide one by Mr. McKewen. Needless to say, I think it an abundantly reasonable reading, supported by the text itself, the original intent of the Framers, and more contemporary scholarship on this issue.
For example: “Arms were common,” writes Leonard Levy in his Origins of the Bill of Rights at 140 (2001), and notes on the next page Thomas Jefferson’s famous quip: “Let your gun therefore be the constant companion of your walks.” On 143 Levy continues: “Massachusetts in 1780 was the first to use the phrase ‘to keep and bear arms.’ John Adams was responsible for it; in his monumental two-volume defense of the constitutions of the States, he argued that arms in the hands of individual citizens are subject to their discretion to defend themselves.” And on 144, Levy notes that Samuel Adams argued that our Second Amendment “expressly provide that [the Amendment] could never be construed ‘to prevent the people from keeping their own arms,’” which was rather prescient given that our Supreme Court did precisely that in its subsequent (albeit sparse) Second Amendment jurisprudence.
Thus, any objection turning on the mere existence of grenades, cannons, and warships (even if at least one of each was privately owned) has no logical force unless one can additionally show that any of those weapons was “commonly owned” at the time of Framing. Since none of them were, Mr. Argent’s objection is easily met and disposed with.
Last, with respect to Mr. Fahey’s comment, I’ll only note that any proposed theory of constitutional interpretation that requires “logical extensions” of any given concept is more deserving of a presumption of doubt than accuracy. To be sure, it has been by discarding the text, ignoring the Framer’s intent, and relying on a chain of “logical extensions” that have led us to this curious state of affairs (i.e., one where interpreting a constitutional provision as simple and basic as the Second Amendment is now a deeply mysterious and puzzling task for many).
In any event, I appreciate the comments and fondly look forward to the Supreme Court finally weighing in on these issues.
Comment by Benjamin P. Hayek — November 26, 2007 @ 11:30 am
I highly recommend Jack N. Rakove’s article “The Second Amendment: The Highest Stage of Originalism” from the April 2000 Chicago-Kent symposium. It will give pause to some who clearly are convinced that the original understanding of the amendment wass that it would protect the rights of individuals to keep and bear arms for all purposes without substantial state regulation. Another interesting read is “A Well-Regulated Right: The Early American Origins of Gun Control” located at 73 Fordham L. Rev. 487, which details the extensive array of early gun regulations that no one saw as inconsistent with the Second Amendment or any stronger right in a state constitution. The original understanding of the amendment was simply not as one-sided as most here seem to assume.
Comment by Stephen J. Mattingly — November 26, 2007 @ 10:59 pm
All the talk of howitzers and grenades need not apply - as the Framers considered these ordinace, not arms. Ownership of other “crew served” armament (tanks, rockets) are also not protected.
Anyone attempting to scare the public into tossing out the constitution’s 2nd amendment based on the idea it allows their neighbor to own a nuke, is squarly mislead.
USA Today poll has a 97% pro-individual rights result based on over 7,000 votes. Scanning all the various blogs, it appears the overwhelming opinion is the right of the people, not the right of the government.
This may be because nearly any ordinary citizen could offer a simple explanation as to why the right of the people to own arms is protected. It requires a law professor to try and convolute an explain as to how the constitution’s 2nd amendment does not cover the right of the people.
Although that is not direct evidence in and of itself, it’s still a note worthy observation.
Comment by Robert Conrad — November 27, 2007 @ 7:15 am
If they rule it to be collective, what’s to stop them from doing the same with the first amendment as well. I personally believe that it is an individual right, Government has powers, Citizens have rights. The Constitution clearly states how Government is run, the Bill of rights is all about the individual rights of US Citizens. Government does not need rights if it has powers, if you have power you’ve got it all.
Comment by Andy Bohan — November 27, 2007 @ 1:51 pm
The wording of the grant to cert suggests the Supreme Court considers it individual right:
“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?”
Notice is says “… violate the Second Amendment rights of individuals …” So, they are determining whether or not the law violates these rights, not whether or not the right exists.
Comment by Robert Conrad — November 28, 2007 @ 6:35 am
Not necessarily. They might find that it doesn’t “violate the Second Amendment rights of individuals” because those individuals have no such rights.
Comment by Sean Chisholm — November 28, 2007 @ 9:14 am
If 2e extends the right to keep and bear arms to
(citizens) individuals then the clause in 2e “,shall not be infringed.” must exclude all encroachments upon those rights(licensing,banning specific arms etc.), making such ‘gun-laws’ unconstitutional! Gun control IS the right to keep and bear arms.
Comment by Jack Moore — December 2, 2007 @ 9:49 pm