The Second Amendment: Is the Court interested?
on Mar 9, 2007 at 2:30 pm
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.
