The Supreme Court and the Second Amendment

It has been since 1939 that the Supreme Court has agreed to hear a Second Amendment case, that one was US vs. Miller regarding a sawed off shotgun. The case had been decided against Miller in appeals court and the Supremes agreed to hear it, Miller in the mean time died, leaving no appellant, a moot case. The Court has aggressively avoided hearing cases involving the 2nd, and for the most part firearms rights organizations have preferred legislative fights. This has of course lead to quite a bit of speculation regarding why this issue has stayed out of Court for so long. The Washington DC case may end this long dry spell.

A lawsuit sponsored by Robert A Levy was filed against Washington DC by Dick Anthony Heller a security guard at a building which houses the federal judiciary administrative offices. Heller carries a handgun at work, he had applied for and was denied a permit to keep the gun at home. This denial gave him legal standing as an appellant to contest an arbitrary denial of 2nd Amendment rights. The lawsuit alleged that the Second Amendment is an individual right while Washington DC takes the stance that the Second only applies to state militia service, that the limitations only apply to the federal government, and finally that a handgun ban is a reasonable restriction in the interest of public safety and health. The three judge US Court of Appeals for DC disagreed 2/1, asserting that the 2nd is an individual right which allows for reasonable restrictions on people such as felons but that DC's outright prohibition and refusal to grant permits is unconstitutional.

Both sides have been spoiling for this fight, now the Supreme Court will decide whether to hear the case or not, known now as District of Columbia v. Heller, No. 07-290. The Second Amendment:

“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.”

The Framer's attempt to keep things simple with a single sentence did not anticipate the narrow arguments around language that has changed over the years and changes in culture. At the time the population could be described as primarily rural, in today's world most of the urban areas of the time would be regarded as rural, having a distinct effect on cultural outlooks. Another cultural aspect was the recent history of the Revolution and the rule of George III. The populace was quite familiar with the concept of a government expected to behave in one manner usurping the "ancient rights" of Englishmen. What the language of the time meant, what the writings surrounding ratification say, and what the English law antecedents say are not much in debate, the debate around the Second devolves into modern interpretation and agenda. This is a case where the use of specific language has caused confusion and the use of grammar rules well understood now opens the door to revisionism.

"Well regulated" was a military term meaning well equipped and turned out, today the term no longer is used in regard to military units, in fact only a single word "regulated" is used and that is in regard to bureaucratic rules being applied. Language has changed. The section of the 2nd regarding militias is a dependent clause which is used as a descriptive or explanatory phrase in a sentence regarding the independent clause which is the definitive meaning of the sentence. This usage is still recognized as proper grammar usage and sentence structure. This has not stopped the argument from being made that the dependent clause gives the states the right to arm their militia - the National Guard. Disregarding the incorrect grammatical interpretation of this clause as the operative wording this stance also ignores the definition of militia which was nearly all able-bodied free white men, not a State sanctioned military unit.

Over the years the Supreme Court has managed to avoid ruling on the Second, Miller was sent back to the Appeals Court and stood with the narrow definition of the Second being that the arms were of military utility and denying that a sawed off shotgun was such. Congress sidestepped the issue regarding full automatic weapons by passing a law which required a tax stamp, issued on payment and the meeting of essentially background check and also allowing Federal inspection of the weapon at the government's discretion - essentially a voluntary surrender of 4th Amendment rights. While this law is a discouragement to the ownership of that sort of firearm it is also not an infringement in the sense that an absolute ban is. An uncomfortable status quo was achieved. Firearm rights groups avoided having to take a criminal case to the Supremes, such a case has legal standing but would come to the Court from an uncomfortable direction, the current case involves a sympathetic appellant with legal standing.

The Supreme Court is now in a difficult position, if it refuses to hear the case the Appeals Court ruling stands and DC's handgun ban is overthrown, if it hears the case it must rule on the issue of individual right which has been the gun ban lobby's one refuge, unless the Supremes are willing to rule that public health and safety is so universally and inevitably at risk so as to trump a Constitutional guarantee. That is an extremely high hurdle to make and a demonstration that legal ownership is such a threat will be statistically very difficult. This is not a venue where the gun banners' media fueled emotional appeal based on the small percentages of devastation wreaked by legal possessors will carry much weight. This has obviously worked within legislative bodies and with a fair sized segment of the general population, but the Supreme Court is a bit different.

There are a multitude of reasons the Court has avoided this issue, public opinion and the interference with legislative bodies are all dissuasive reasons and rulings on very basic rights are of tremendous import, not ground the Supremes really care to tread. This is going to be interesting, and the fallout will be even more interesting.