Tuesday, March 18, 2008

Interesting case

Another update, in the form of an op-ed, concerning the gun-rights case. Bold parenthetical material is mine.

Today, the Supreme Court will hear oral arguments in the case of Heller v. District of Columbia, a suit brought by several D.C. citizens contending that the ban on the possession of operable firearms inside one's home violates the Second Amendment....For the first time in recent memory, the Supreme Court will consider the original meaning of a significant passage of the Constitution unencumbered by its own prior decisions....Here's a layman's guide to the significance of the case:

- Heller will be decided on originalist grounds. Among law professors, enforcing the original meaning of the Constitution is highly controversial. Critics of originalism deny that we should be ruled by the "dead hand of the past." They prefer following Supreme Court precedents that may or may not be consistent with original meaning. Any justice who today professes a commitment to originalism is branded a radical (!); and all Supreme Court nominees are now grilled on their commitment to the doctrine of stare decisis. But what are old precedents if not the "dead hand" of dead justices?

Significantly, then, both sides in Heller are making only originalist arguments. The challengers of the law contend that the original meaning of the Second Amendment protects an individual "right to keep and bear arms" that "shall not be infringed." In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intention of the Framers of the Second Amendment was to protect the continued existence of "a well regulated militia," the right it protects was limited to the militia context.

So one thing is certain. Whoever prevails, Heller will be an originalist decision. This shows that originalism remains the proper method of identifying the meaning of the Constitution. (Quite heartening!)

- The Second Amendment protects an individual right. In the 1960s, gun control advocates dismissed the Second Amendment as protecting the so-called "collective right" of states to preserve their militias -- notwithstanding that, everywhere else in the Constitution, a "right" of "the people" refers to an individual right of persons, and the 10th Amendment expressly distinguishes between "the people" and "the states." (Hmmm...interpreting in context! Would that more people did that.) Now even the District asserts the new theory that, while this right is individual, it is "conditioned" on a citizen being an active participant in an organized militia. Therefore, whoever wins, Heller won't be based on a "collective" right of the states. (More heartening news!)

Still, a ruling upholding an unconditioned individual right to arms and invalidating the ban is unlikely to have much effect on current gun laws. (::grumbles::) Here's why:

- Heller is a federal case. Because the District of Columbia is a federal entity, Heller provides a clean application of the Second Amendment which, like the rest of the Bill of Rights, originally applied only to the federal government. Before a state or municipal gun law can be challenged, the Supreme Court will have to decide that the right to keep and bear arms is also protected by the 14th Amendment, which limits state powers.

Nowadays, the Court asks whether a particular right is "incorporated" into the Due Process Clause of the 14th Amendment, an unpopular doctrine among some conservatives. Of course, after recognizing an unconditioned individual right in Heller, affording it less protection from states than other enumerated rights now receive would be awkward -- especially given the overwhelming evidence that the right to keep and bear arms was among the "privileges or immunities of citizens" to which the 14th Amendment refers. Those who wrote the amendment were concerned about enabling black freeman and white Republicans in the South to protect themselves from violence, including terrorism by local militias. (For MK, personal defense is a hot topic, given his native Australia's gun control laws: here and here and here, to name only a few.)

Finally, Heller involves a complete ban on operable firearms in the home. No state has a comparable law. And under current Supreme Court doctrine, even the First Amendment rights of speech and assembly are subject to reasonable time, place, and manner regulations. So too would be gun rights.

But although the implications of striking down the D.C. gun ban are limited, a decision upholding an unqualified individual right in Heller would still be a significant victory for individual rights and constitutionalism. (YES!) To shrink from enforcing a clear mandate of the Constitution -- as, sadly, the Supreme Court has often done in the past -- would create a new precedent that would be far more dangerous to liberty than any weapon in the hands of a citizen.

I'm praying for a good decision; none of us wants any more Columbines, NIUs, etc.

5 comments:

magus71 said...

If D.C. wins this one, expect a lot of municipalities to follow suit.

As a former police officer, I'm against gun control. But, I will grant that "to keep and bare arms" doesn't mean everyone has the right to carry WMD around in his/her backpack. I cannot in good conscience though, force law-abiding citizens to give up something that could protect themselves and their families. This would be immoral. Even ancient Republics and Democracies such as Rome and Greece allowed their citizens to carry arms; we would be wise to learn from their example.

By the way--you're on my blogroll...:)

Hannah J said...

Keeping and "baring" arms will get us lots of flak with conservative Muslims (all right, I admit, I'm a spelling/grammar nitpicker :D).

Thanks for the link!

Aurora said...

Hannah, I'm sure I heard somewhere that the decision was one for the good guys...this time. So for now, Americans still have their 2nd amendment rights.

Anonymous said...

Hey, cut me some slack, I was tired! Besides, you made me spell Rennaissance for my blogroll...not nice, not nice at all. :)

magus71

MK said...

Thanks for the link back Hannah, it is indeed a hot topic for me. I resent that the nannying gun-grabbers won't let me protect myself and those i love with the easiest means available.