Column: Stirring the Second Amendment Pot

By: Christopher Dunn Last week’s massacre of students at Virginia Tech University, combined with New York City Mayor Michael’s Bloomberg’s recent aggressive anti-gun efforts, have made gun control a hot topic of conversation not only in New York but across the country. Meanwhile, a dramatic ruling last month from the United States Court of Appeals for the District of Columbia Circuit — in a case in which New York City participated — threatens to derail gun-control measures but may provide the Supreme Court with an opportunity to address definitively the meaning of the Second Amendment of the United States Constitution. That succinct (but replete with commas) amendment provides, “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.” Long debated has been whether this language affords individuals a general right to own firearms or whether it applies specifically only to firearms connected to state militias. That debate has largely played out in the legislative arena, but that may now change. The Second Amendment and the Supreme Court To appreciate the significance of the D.C. Circuit’s recent ruling, it is important first to understand the Supreme Court precedent that preceded it. And setting aside a few occasional references to the Second Amendment, that precedent begins and ends with the Court’s 1939 ruling in United States v. Miller. Miller arose out of the criminal prosecution of two men accused of transporting a unregistered short-barreled shotgun from Oklahoma to Arkansas in violation of the National Firearms Act and its implementing regulations. The defendants challenged the prosecution on the grounds that the relevant statutory provisions violated the Second Amendment, and the United States District Court for the Western District of Arkansas agreed and dismissed the indictment. On a direct appeal, the Supreme Court unanimously reversed. In doing so, the Court focused immediately on the central role that the militias play in the meaning of the Second Amendment: In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. The balance of the opinion consists of a series of paragraphs discussing various aspects of militias and their role in the colonies and then concludes with the simple observation: “We are unable to accept the conclusion of the court below and the challenged judgment must be reversed.” Upending Gun Control in the District of Columbia With Miller as the most recent and most meaningful Supreme Court precedent, a panel of the D.C. Circuit took on a District Court decision rejecting a Second Amendment challenge to certain provisions of the District of Columbia’s strict gun-control law. While Second Amendment challenges typically arise in the course of criminal prosecutions, Parker v. District of Columbia was a civil lawsuit (and presumably a test case) affirmatively challenging gun-control provisions. The plaintiffs in Parker challenged a provision that generally bars the registration of handguns with certain narrow exceptions, a provision that prohibits carrying a pistol without a license “as that provision would prevent a registrant from moving a gun from one room to another within his or her home,” and a provision requiring that all lawfully owned firearms be kept unloaded and disassembled or bound by a trigger lock or similar device. The District Court had rejected the challenge, concluding that the Second Amendment does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today’s National Guard. The plaintiffs appealed, prompting a notable array of amicus curiae submissions. Filing briefs in support of the challenge were Attorney Generals from thirteen states (Texas, Alabama, Arkansas, Colorado, Florida, Georgia, Michigan, Minnesota, Nebraska, North Dakota, Ohio, Utah, and Wyoming), the Congress on Racial Equality (CORE), something called the American Civil Rights Union (not to be confused with the American Civil Liberties Union), and, of course, the National Rifle Association. Filing briefs in support of the statute were Attorney Generals from Massachusetts, Maryland, and New Jersey, as well as attorneys representing New York City, San Francisco and Chicago; and, of course, the Brady Center to Prevent Gun Violence. On March 19 a split panel of the D.C. Circuit reversed the District Court and held that the challenged provisions violated the Second Amendment. The majority’s lengthy opinion — characterized by the dissent as “add[ing] another fifty-plus pages to the pile” of Second Amendment “dueling dicta” — reads more like a doctoral thesis than a judicial decision. At the outset the majority identified “two camps” in the Second Amendment debate: On one side are the collective right theorists who argue that the Amendment protects only a right of the various state governments to preserve and arm their militias. So understood, the right amounts to an expression of militant federalism, prohibiting the federal government from denuding the states of their armed fighting forces. On the other side of the debate are those who argue that the Second Amendment protects a right of individuals to possess arms for private use. To these individual right theorists, the Amendment guarantees personal liberty analogous to the First Amendment’s protection of free speech, or the Fourth Amendment’s right to be free from unreasonable searches and seizures. Between these two camps, explained the majority, were “some entrepreneurial scholars [who] purport to occupy a middle ground between the individual and collective right models.” According to the court, “The most prominent in-between theory developed by academics has been named the “sophisticated collective right” model. The sophisticated collective right label describes several variations on the collective right theme. All versions of this model share two traits: They (1) acknowledge individuals could, theoretically, raise Second Amendment claims against the federal government, but (2) define the Second Amendment as a purely civic provision that offers no protection for the private use and ownership of arms.” With this as a conceptual framework, the majority in one paragraph addressed the relevant case law from the lower courts, stating that they “are divided between these competing interpretations.” In support of this proposition the opinion noted that every circuit to have addressed the issue except one (the Fifth) had adopted the “collective right model” (that is, the militia-based approach); that state appellate courts, “whose interpretations of the U.S. Constitution are no less authoritative than those of our sister circuits, offer a more balanced picture”; and that the Justice Department had recently adopted the individual right model. As for the Supreme Court’s decision in Miller, the opinion did not mention it by name at this point but instead stated, “Because we have no direct precedent – either in this court or the Supreme Court – that provides us a square holding on the question, we turn to the text of the Second Amendment.” The court then launched into an exhaustive (and exhausting) parsing of the amendment’s language and punctuation (complete with invocation of the Oxford English Dictionary, Webster’s, and Dr. Johnson’s Dictionary “–which the Supreme Court often relies upon to ascertain founding-era understanding of text”) and a related examination of a lengthy list of historical sources, including such obscure (and seemingly questionable) ones as a “statement in the report issued by the dissenting delegates at the Pennsylvania ratification convention.” Taken together, this analysis led the majority, many pages later, to conclude that the Amendment does not protect “the right of militiamen to keep and bear arms.” The operative clause [“the right of the people to keep and bear Arms shall not be infringed”], properly read, protects the ownership and use of weaponry beyond that needed to preserve the state militias. . . . We therefore take it as an expression of the drafters’ view that the people possessed a natural right to keep and bear arms, and that the preservation of the militia was the right’s most salient political benefit–and thus the most appropriate to express in a political document. After all this, the Parker majority turned to relevant Supreme Court precedent in general and United States v. Miller in particular. That ruling, the panel concluded, was “most notable for what it omits.” Specifically, the D.C. Circuit majority opinion contended that the government in its brief to the Supreme Court in Miller had argued that the Second Amendment did not confer an individual right of gun ownership but instead conferred only a right relating to militias. Because the Supreme Court, according to the D.C. Circuit, did not expressly address that issue in those terms, the Miller decision – notwithstanding its lengthy discussion about militias – cannot be understood to stand for proposition that the amendment was limited to gun ownership connected to militias. Given all this, the Parker majority concluded that the Second Amendment creates a broad right to gun ownership: “[W]e conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad).” And in light of this conclusion, the court ruled unconstitutional the District’s ban on registering handguns, its ban on carrying guns (at least as applied within a home), and its requirement that guns in the home be disassembled or secured with a trigger lock. The Future of Gun Control and Parker On April 4 the District of Columbia filed a petition seeking review by the full D.C. Circuit of the Parker panel decision. En banc reviews in the D.C. Circuit are far more common than in the Second Circuit, and it seems likely the full court will hear the case. Should it not or should the full D.C. Circuit reach the same conclusion as the panel, the Second Amendment may well be headed to the Supreme Court. With a split in the federal circuits and given the magnitude of the issues presented in Parker, the Court might well take the case. That would present an interesting conflict between the Court’s general contracting of constitutional rights and a push by the Bush Administration and other gun-rights advocates to dramatically expand at least one guarantee in the Bill of Rights.