Supreme Court Agrees to Hear D.C. Gun Case

By Jeralyn, Section Supreme Court
Posted on Wed Nov 21, 2007 at 06:38:00 AM EST
Tags: Second Amendment (all tags)

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Finally. After almost 70 years, the Supreme Court has agreed to decide a case that may decide, once and for all, whether the Second Amendment confers an individual right to bear arms.

I believe it does. The Second 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."

There are three principal views: The individual view, collective view and an intermediate one.

Under the individual view, a person has a personal right to bear weapons or arms regardless of whether they are members of any militia or engaged in military service or training. We therefore may bring claims or defend claims based on that right, just as we can with other provisions of the Bill of Rights, such as the right to free speech or right to be free from unreasonable searches and seizures.

More...

Under the collective view, the Second Amendment applies to states, not individuals, allowing them the choice to establish and maintain armed and organized militia units, such as the National Guard.

The intermediate view, called a "sophisticated collective rights model," takes the position that the Second Amendment provides an individual right to possess and bear arms only with respect to a person's service in an organized state militia, such as the National Guard.

The resolution may depend on how the Supreme Court defines, among other things, A "right of the people." My take: A "right of the people" means a right of individuals, not a state.

The Bill of Rights, as a whole, consists of a collection of rights guaranteed to people, not government. The inclusion of the Second Amendment in this group of rights suggests that's how the framers viewed it.

The case is Parker v. District of Columbia and involves a challenge by six, law-abiding individuals to the gun control laws in the District of Columbia. The Court of Appeals for the D.C. Circuit (sharing the view of the 5th Circuit in the Emerson case and diverging from the opinions of almost all the other circuits) found the D.C. law unconstitutional and ruled the Second Amendment conveys an individual right to bear arms. Its opinion is here (pdf).

The Supreme Court has phrased the issue it will decide in the Parker case as:

....whether provisions of the District's law "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."

My prediction (which may just be wishful thinking): The Supreme Court affirms the Appeals court and finds the Second Amendment confers an individual right to bear arms.

A liberal blogger who agrees with me: Taylor Marsh.

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Supreme Court Agrees to Hear D.C. Gun Case | 21 comments (21 topical)

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How do courts draw the line on "arms"? (5.00 / 1) (#3)
by joejoejoe on Wed Nov 21, 2007 at 04:56:40 AM EST

What is the definition of "arms" under right to bear arms? Is there a difference between a rifle, a handgun, a sawed-off shotgun, a .50 caliber machine gun, and an RPG? A well-regulated militia circa 2007 has RPGs and .50 cal. guns. In 1787 they had muskets.

It's cases like these that make 'originalists' look like they are pulling the law out of their arses because the power and force of modern arms was never contemplated by the founders. If you're going to allow people to own guns based on possible membership in citizen militias then it only makes sense to allow them to own modern militia weapons. I'm not advocating for citizen ownership of RPGs but I can't see how you can use the language of the second amendment ("militia") to justify any view for or against and then put your head in the sand about what a militia looks like in 2007.

Defining Arms (1.00 / 1) (#15)
by Jim in AZ on Wed Nov 21, 2007 at 10:10:42 AM EST

Well, if we take the strict Contstructionist/Originalist/Scalialist point of view, we need to define arms as what the writers of the amendment intended.

Uzis? No.

Muskets? Okay.

Nuclear warheads? No

Canon balls? Okay.

Cop-killer bullets? No.

Musket balls? Okay.

If Scalia and Thomas vote any differently than this, they aren't following the original intent of the framers of the 2nd Amendment and therefore are not strict constructionists.

/tongue in cheek


: That's, of course, absurd. (5.00 / 1) (#16)
by Deconstructionist on Wed Nov 21, 2007 at 10:14:48 AM EST

That's the same as arguing the 1st amendment would not protect speech on radio, television or the internet, etc., because those media did not exist at the time. Scalia does not make such stupid arguments and you shouldn't ascribe your stupid arguments to him. If you want to critique his arguments you need to understand his arguments not substitute inanity of your own fabrication to him.

THAT is the question. (none / 0) (#7)
by lilybart on Wed Nov 21, 2007 at 08:05:25 AM EST

I guess we can stop Iran from getting the bomb, but I should have the right to the bomb in my home.


As I stated below (none / 0) (#9)
by Deconstructionist on Wed Nov 21, 2007 at 08:14:41 AM EST

finding an individual right is NOT tantamount to prohibiting all regulation.

Even if we assume "arms" were interpreted as broadly as possible to mean any weapon, finding an individual right to bear arms would not mean that government regulations could not distinguish between a .22 squirrel gun and a nuclear weapon.

Obviously, the extent of the government's interest in regulating different weapons is, well, different. What government could not do is make the samne sort of stupid argument in support of a regulation as made here by suggesting that we have to ban the .22 because we have a interest in preventing nuclear holocaust.


Police weapons (none / 0) (#20)
by Abdul Abulbul Amir on Wed Nov 21, 2007 at 03:21:08 PM EST

It seems to me that a citized would have a right to any weapon that the police use. If its too over the top for law abiding civilians that that holds for the cops as well.

BTW, when written it applied to state of the art military weapons.


Commas (5.00 / 1) (#4)
by hgardner on Wed Nov 21, 2007 at 06:54:24 AM EST

The two quoted versions of the Second Amendment have different numbers of commas. I think the three-comma version is the original and that makes it more likely the right is the state's. Sorry, Jeralyn, I work in Philly and people are dying because the state legislature won't let the city invoke even the most modest of regulations.

: You're right about the third comma (none / 0) (#17)
by roy on Wed Nov 21, 2007 at 11:13:30 AM EST

You can see a high-resolution scan of the original document here and the third comma is visible, if just barely.
However, I don't see how that makes the states rights interpretation any more appropriate. To my modern eyes, it just makes the sentence grammatically incorrect.

I hope you are right (none / 0) (#1)
by Jgarza on Wed Nov 21, 2007 at 01:47:46 AM EST

if the opposite is true it will be another republican rallying cry.

I'm just cynical enough... (none / 0) (#5)
by Molly Bloom on Wed Nov 21, 2007 at 07:10:22 AM EST

There is a school of thought out there that what the GOP fears most is actually winning a case overturning Roe v.Wade because they then lose an issue to round up there base, many of whom would stop voting Republican, because they don't agree with anything else the GOP stands for, but they are single issue voters.

I am just cynical enough to wonder if the remaining felonious five together with their 2 additions would decide better to give the GOP a rallying cry for the upcoming election, by a 5-4 ruling against individual ownership? After all, a group that would issue a ruling which, by its terms, was never be used again, but just so happened to give their candidate the election, is capable of anything and only believes in power, not law.

I also agree with Joe below. How far does this individual right to bear arms go? Do you think your local homeowner association nut cases should have RPG's?


You are wrong on Roe (none / 0) (#8)
by lilybart on Wed Nov 21, 2007 at 08:07:35 AM EST

Do you really think the religious right will stop at overturning Roe? Hell no. They plan Federal regulations against abortion and human life ammendments.

Every state will be fighting over abortion again too. Overturning Roe will energize the base to fight over this FOREVER. Keeping Roe is the only way to keep some civility over this issue.


no doubt (none / 0) (#12)
by Rojas on Wed Nov 21, 2007 at 08:55:10 AM EST

this an individual ruling has the potential to take a fair amount of wind out of their sails. While Krugman argues it was about about race and there is certainly some truth to that, the amount of sophistry and just out right lies on this issue has drove a wedge between the DNC and their natural base.


I'm not convinced (none / 0) (#13)
by Deconstructionist on Wed Nov 21, 2007 at 09:09:40 AM EST

that an individual right vindication will "take the wind out of the 'gun lobby's' sails." Again, we must remember that only an extremely restrictive (near total ban) regulation of handguns is under scrutiny in this particular case.

If the court finds and individual right and this particular regulation that is so broad and expansive as to violate that right we still have just as many if not more APPLICATION controversies to come. The NRA and other gun freedom advocates will have plenty of issues to and plenty of appeals available to raise money and influence electoral politics.

I think the "political" significance is more that a "collective" finding and an upholding of the DC ban will energize the gun lobby and allow it to have an even greater short-term (2008) impact on electoral politics. I don't think that is going to happen though because I think the court will hold that the 2nd confers an individual right. A harder to predict question is whether the strict scrutiny/compelling interest test, the rational basis test or some intermediate level of scrutiny will be held to apply.


: I'm not talking about the 'gun lobby's' sails (none / 0) (#14)
by Rojas on Wed Nov 21, 2007 at 09:42:58 AM EST

but the gun lobby has effectively become a republican lobby. This was by choice of the DNC.

Is this a late-night news dump? (none / 0) (#2)
by oculus on Wed Nov 21, 2007 at 01:52:58 AM EST

One liberal blogger definitely doesn't agree with you.

One thing people need to understand (none / 0) (#6)
by Deconstructionist on Wed Nov 21, 2007 at 07:32:14 AM EST

An individual constitutional right is not absolute-- even a "fundamental" one.

Even a "fundamental" right may be restricted by government to meet a compelling governmental need. If a compelling need is found to exist, then the issue becomes whether the regulation is narrowly tailored to meet that compelling need. Other rights may be restricted based upon a mere showing of a rational basis for the regulation.

Finding that the 2nd amendment confers an individual right to bear arms (which I also believe is the only reasonable interpretation) does not mean that all government regulation of arms will be unconstitutional.

This single issue has the potential to bring (none / 0) (#10)
by Rojas on Wed Nov 21, 2007 at 08:35:38 AM EST

millions back into the fold on the progressive side.
The simple fact of the matter is bush never would have made it to the govenor's mansion if Ann Richards had not refused to allow a concealed carry provision on the ballot in Texas.
He'd still be selling crackerjacks and Ann (for the most part, a true populist progressive) very likely would have gone on to Washington.
It will be interesting to see how this unfolds, but an honest review will clearly place this as an individual right a "right of the people".

Familiar? (none / 0) (#11)
by Deconstructionist on Wed Nov 21, 2007 at 08:37:48 AM EST

"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."

Note that in this passage "States" and "people" are both used and separated by the disjunctive "or."

In light of this use of these words by the same people at the same time in the same document, it seems illogical to suggest that in the 2nd amendment the drafter meant "states" when they used "people."

It seems to me, that whether we use a grammatical, textual or historical analysis there is no support for the argument that the 2nd Amendment was meant to mean that only the States through establishment of militias had the "right" to bear arms. Moreover, in a textual contect, the drafters tended to use the word "power" when referring to government and "right" when referring to individuals.

From a grammatical standpoint the first clause of the 2nd cannot be construed as a limiting clause restricting the meaning of the operative clause but merely as an explanatory clause setting forth a reason for the operative clause. If I write: "well stocked libraries being necessary to a literate state, the right of the people to keep and read books shall not be infringed," would that mean that states can ban the individual possession of books?

From the historical perspective, remember we had very recently won our freedom from Britain and the law of Britain at the time was that the individual had no right to bear arms and the Crown had absolute power to allow or prohibit any person from having a weapon. That is the state of affairs against which we rebelled.

It is limited to DC, so it won't affect the states (none / 0) (#18)
by eric on Wed Nov 21, 2007 at 11:42:26 AM EST

I think it is pretty well settled law that the Second Amendment does not apply to the states. This case is different because it is DC. The protections of the Second Amendment, whatever they are, do apply to DC because it is Congress making the law.

However, I don't think that the second amendment would prohibit a ban on personal ownership of weapons, so I think the ban is fine. The SC may disagree, but it won't mean anthing for the rest of us. This case simply isn't on point with state or local bans, because those are not affected by the Second Amendment.

I would (none / 0) (#19)
by Wile ECoyote on Wed Nov 21, 2007 at 02:04:39 PM EST

love to hear all of the candidates on this subject. Mostly we will hear the mean, evil republicans. The awesome, angelic dems will duck out.

Gun control (none / 0) (#21)
by jeremy12 on Fri Nov 23, 2007 at 08:36:05 PM EST

I hope the Supreme Court overturns the Appeals court decision. Guns don't make us safe or free. We need to get guns and tasers out of the hands of everyone, including the police.