The Second Amendment: Is the Court interested?
Nearly ten years ago, Supreme Court Justice Clarence Thomas wrote: “This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment….Perhaps, at some future date, this Court will have the opportunity to determine whether Justice [Joseph] Story was correct when he wrote that the right to bear arms ‘has justly been considered, as the palladium of the liberties of a republic.’ ” (Concurring opinion in Printz v. U.S., June 27, 1997). Since that time, the Court has refused repeatedly to take up the issue.
Whether it can be induced to do so is a revived question, now that a divided D.C. Circuit Court has ruled unqualifiedly that the Second Amendment “protects an individual right to keep and bear arms…The activities it protects are not limited to militia service, nor is an individual’s enjoyment of the right contingent upon his or her continued or intermittent enrollment in the militia.” The 2-1 ruling came Friday in Parker, et al., v. District of Columbia, et al. (Circuit docket 04-7041); it can be found in the All Opinions link at the Circuit Court’s website. A direct link can be found on Howard Bashman’s How Appealing blog.UPDATE: Also thanks to Howard Bashman: here is a link to all of the briefs filed in the case.
That ruling overturned a decision nearly three years ago by U.S. District Judge Emmet G. Sullivan in Washington, who found no individual right to have or keep guns. Sullivan wrote that, while the challengers to a District of Columbia gun control law “extol many thought-provoking and historically interesting arguments for finding an individual right, this Court would be in error to overlook sixty-five years of unchanged Supreme Court precedent and the deluge of circuit case law rejecting an individual right to bear arms not in conjunction with service in the Militia.”
Since Justice Thomas’ suggestion of a new look at the Second Amendment’s meaning, a look he implied would be a sympathetic one for him on the individual right interpretation, the Court has repeatedly turned down appeals seeking to raise that very issue. Its most notable denials came on June 10, 2002, and Dec. 1, 2003.
In the Court’s denials of review in June 2002, the Justices refused to review a Fifth Circuit Court ruling that the Second Amendment does protect an individual right to have a gun for private use (Emerson v. U.S., Supreme Court docket 01-8780) and a Tenth Circuit decision finding only a collective right for members of a state militia (Haney v. U.S., docket 01-8272). A signfiicant facet of those two cases was that the Justice Department, for the first time, took a position in favor of an individual right interpretation, reflecting a change of mind promoted by then-Attorney General John Ashcroft.
In the denial in December 2003, the Court declined to review a Ninth Circuit decision expressly disagreeing with the Fifth Circuit’s analysis in Emerson (Silveira v. Lockyer, docket 03-51).
The Court may have refused to hear both of those cases because it was debatable whether the appeals courts’ musings about the scope of the Second Amendment were necessary to the actual decision in the individual cases. That was the point made by the opposing briefs in all of those cases, including the Justice Department itself. (The Court has also turned down later appeals seeking to raise the Second Amendment issue, most recently in January of last year in Seegars v. Gonzales, 05-365, a case focusing on who would have a right to sue to challenge the same D.C. gun control law that was at issue in Friday’s ruling by the D.C. Circuit. In February of last year, the Justices refused to hear an appeal on whether the Second Amendment even applies to the states, through the Fourteenth Amendment [Bach v. Pataki, 05-786].)
It is commonly assumed that the new D.C. Circuit case ultimately will reach the Supreme Court, even if it does go first through possible en banc review at the Circuit level. The Parker case was begun four years ago as a project of the Cato Institute, a Washington-based think tank with a libertarian philosophy, and it has been viewed widely as a major test of the Second Amendment question. It attracted a wide array of amici, including 13 states supporting the challengers to the D.C. gun law and four states on the other side. The Justice Department had no role in the case. There is no indication anyone intends to give up on the case at this point.
But the dissenting opinion on Friday, by Circuit Judge Karen LeCraft Henderson, raises a threshold issue that may well linger around the case as it proceeds further. She dismissed the majority opinion by Senior Circuit Judge Laurence H. Silberman (joined by Circuit Judge Thomas B. Griffith) as mere dicta. “The meaning of the Second Amendment in the District of Columbia is purely academic,” Judge Henderson wrote. “The District of Columbia is not a state within the meaning of the Second Amendment and therefore the Second Amendment’s reach does not extend to it” — a variation, peculiar to the District of Columbia, of the reasoning of six federal appeals courts in finding that the Second Amendment does not apply to the states at all (the issue that the Supreme Court declined to hear in the Bach case in February 2006).
The Parker case, at least as it emerged from the Circuit Court panel on Friday, does not appear to have a “standing” problem, as did the prior appeal that went to the Supreme Court on the District’s gun control law (the Seegars case, denied review in January 2006 — a case, incidentally, from which Chief Justice John G. Roberts, Jr., was recused because he had been on the D.C. Circuit when it denied en banc review of that case).
The three judges on the Circuit panel agreed that one of the six Washington residents who filed the challenge did have a right to go to court to make the challenge. That individual was Dick Anthony Heller, a D.C. special police officeer who is allowed to carry a handgun on duty as a guard at the Federal Judicial Center, but wishes to have one at his home; he said he lives in a high-crime neighborhood in Washington. He applied for and was denied registration to own a handgun for personal use.
The majority opinion appears to strike down the D.C. law’s flat ban on registering handguns, so far as it applies to having a gun “within the home or on possessed land,” and its requirement of a license for a gun within the home or on “possessed land.” That is what the six challengers sought in their lawsuit, and what the Circuit Court panel said it was ordering.
Judge Henderson, in dissent, argued that Heller only had a right to challenge the denial of a permit for his pistol under a specific section of the local law, and disputed the majority view that Heller had successfully challenged not only the provision that led to the denial of a permit for possession, but also provisions requiring guns to be kept unloaded and disassembled or bound by a trigger lock or barring the carrying of any pistol not registered. The majority found those clauses, too, to be unconstitutional, as restricting Heller’s right under the Second Amendment to have a gun available for personal protection in his home.
Interesting case even if the majority appears a bit too sure of itself in such a debatable subject.
The U.S. v. Miller case spoke of the “common defense.” This discussion of ‘personal’ defense might be different [see, e.g., Saul Cornell’s “A Well Regulated Militia.”]. Thus, it might not be useful to treat such cases as 2A matters.
A ‘privilege and immunity’ to have guns for personal defense, for instance, would avoid the dissent’s arguments. See also, the 1980s 2nd Cir. Quicili ruling on handguns … the dissent spoke of a right to privacy in one’s home, including to protect oneself. Finally, the value of personal weapons for personal defense clearly was important to freemen after the Civil War, and some have pointed to a EP value to women as well.
Other arguments can be made, surely, including that personal defense has public value in dealing with crime etc. But, it seems to me that just as this case wouldn’t necessarily apply to the states (though the majority’s reasoning likely would), the continual use of the 2A in this fashion seems a bit off.
It is surely important for the people to be involved in the militia (and jury/voting), and it has individual rights flavor, but having a gun to protect oneself in one’s home is probably not the core concern of the 2A.
Comment by Joe Paulson — March 10, 2007 @ 11:59 am
Won’t pretend to have a studied eye on the jurisprudence in this area although I’m likely to ramp up if cert is granted.
Guess owning a gun is an economic liberty so maybe the privileges and immunities idea isn’t so far off in terms of some visions, although I favor substantive due process in this area as well. So narrowly tailored police power regs would be okay but blanket prohibitions like DC ought to be right out.
As I have often said blogging on my other favorite subject, heating equipment, if it is a crime to buy an oil boiler, only criminals will own oil boilers. (see, e.g. http://forums.invision.net/index.cfm?CFID=3363936&CFTOKEN=c089ff-2b0b0675-4db9-47a7-ae0d-ab338ec16149&CFApp=2&reset=Y )
It seems self evident that self defense in the home isn’t a textual premise, but the question is whether the protection is broader than the purpose. If it is non-core purposes that tend towards an armed citizenry, it follows that those rights shall not be abridged lest the motive for maintaining personal firearms diminishes thus effectively disarming the citizen militia.
But I didn’t sign in to babble, rather this appears to be the place where conspiracies against the Volokh conspiracy are reported and ever since they were noted as having several astute comments on this 2nd amendment case, the site will not load.
Maybe the DC mayor who was whining about this has launched a Denial of Service attack on Volokh.
Brian Bishop
Comment by occidental tourist — March 10, 2007 @ 10:37 pm
but having a gun to protect oneself in one’s home is probably not the core concern of the 2A.
So the 2A and the 3A are completely unrelated?
Comment by Jacques McKenzie — March 11, 2007 @ 5:08 pm
“So the 2A and the 3A are completely unrelated?”
I’m not sure how this follows. The 3A guards against quartering of troops without consent, providing a privacy interest along with a nod toward the civil control of the military.
This goes nicely with a view of the 2A that focuses on a citizen militia, having a gun as part of a wider organized body, not for personal use, which was treated separately under the common law as a personal, not a civil right/obligation of citizenship.
Comment by Joe Paulson — March 12, 2007 @ 10:59 pm
BTW, as a sort of liberal parallel track, we also have Balkanization Blog … which mostly supports an individual rights view too.
Comment by Joe Paulson — March 12, 2007 @ 11:01 pm
The 3A guards against quartering of troops without consent, providing a privacy interest
If some drunken redcoats forcefully demand to quarter in my daughter’s bedroom, I’m shooting them.
Comment by Jacques McKenzie — March 13, 2007 @ 8:36 pm
This may be an irrelevant aside, but the Third Amendment (3A) is judicially enforceable as an individual right.
The Second Circuit has also held that the Third Amendment was enforceable against the states (via incorporation through the 14th Amendment) in Engblom v. Carey.
The D.C. Circuit has now held that the Second Amendment is an enforceable individual right against the federal government.
(To have held otherwise, or interpreted the Second Amendment as merely a collective state’s right, would have rendered the Second Amendment virtually meaningless in light of cases like Perpich curtailing the autonomy of state national guard units, thus violating the canon of constitutional interpretation that says that ever word and clause of the constitution must be given independent force and effect, see Holmes v. Tennison (1840) and Marbury v. Madison (1803)).
But the D.C. Circuit, of course, did not address (and did not need to address) whether Second Amendment rights are enforceable against he states through the 14th Amendment.
So the Second Amendment still has less protection than the Third.
Comment by Hans Bader — March 14, 2007 @ 11:23 am
When the second amendment was being debated in the U.S. Senate (in 1791? 1793?) it was then known as Article II of the Bill of Rights. During Senate debate, an amendment was offered to add the expression “for the common defense” after “the right to keep and bear arms”. But the Senate turned down this amendment. This is a strong indication that the founders (a majority of them) wanted the second amendment to be an individual right, not a collective one.
-David Stephens
Comment by Dave S — March 14, 2007 @ 12:13 pm
The ability of the feds to call up the militia does not in some fashion make the 2A a nullity. The 2A would still give the states the power to determine how best to arm its own militia, thus letting pro-gun states have the ability to have ‘liberal’ gun laws, perhaps even requiring gun ownership or training. A severe federal gun ban would thus be blocked.
If one thinks the 2A is a nullity per Perpich etc., it is per SC rule. Miller focused on the ‘common defense’, citing Aynette v. State that rejected the approach of the inferior court here. Even if correct, the DC Circuit has no power to overule Miller.
A single case, one that held the rule was so novel that immunity was granted, is not a great reflection of the power of the 3A. Meanwhile, official executive policy, de facto congressional policy, and many state courts recognize an individual rights rule. In practice, it is secured fairly well.
Comment by Joe Paulson — March 15, 2007 @ 11:18 pm
The amendment was ratified in 1791. Actually, it was originally the fourth amendment, two not being ratified, one of the original first two becoming the 27A.
The disposal of ‘common defense’ on its own, esp. in context of the understanding of the time, is not really such a clear matter one way or the other. Personal defense was deemed a right. It is questionalbe if it is the concern of the amendment … the ‘militia’ language that WAS included is only part of the reason why.
But, there is a debate, obviously.
Comment by Joe Paulson — March 15, 2007 @ 11:26 pm
I am mostly amazed by one issue regarding debates on the 2nd.
Advocates of the “individual” construe the emendment simply on the “right to bear arms” (isn’t it interesting that the term ‘bear’ is used instead of own or possess - another road obviously not explored) and simply ignore the Militia issues or pose some halfassed individual making up the militia takes his personal rifle to war crap.
So now I would like to hear, as a fool and a novice and a rank and order ordinary citizen, what the Militia part is and the centralization of weapons storage (armory)….means.
I would love to hear this.
Comment by harold d. house — April 9, 2007 @ 8:06 am