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The Individualized Second Amendment

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The first question about the D.C. gun case is, how will they rule? Reporters who observed the oral argument today seem nearly certain that 1)a majority of the Court will find some individual right to gun ownership in the Second Amendment, and 2)the D.C. gun ban will be struck down. All observers also point out that most of the interesting questions will come in the scope of the Second Amendment rights identified by the Court: what kind of regulations short on an outright ban of a large class of gun might pass constitutional muster? Given the minimalism that tends to characterize the late Rehnquist and Roberts Courts, my guess is that they will say very little about how the newly identified right will apply in future cases. (Scalia’s dismissal of Dellinger’s claim that finding an individual right would make it harder to ban machine guns or armor-piercing bullets makes it unlikely that even he will press for a particularly broad rule.)

The other question is whether this is a good thing. As with most constitutional issues of any interest, the text is unclear and can plausibly support both positions, so we’re left with a largely pragmatic judgment. I don’t really have a problem with where the Court seems headed. At least in a context of a federal system where weapons can be easily acquired right outside District limits, it’s hard to argue that the D.C. ban is an especially effective public safety measure, and it’s a very broad restriction. And although I’m often skeptical of minimalism, I think in this case leaving future cases open to particularized judgments that balance Second Amendment rights against the reasonableness and effectiveness of regulations makes a lot of sense.

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  • From what I heard of the oral arguments, the apparent majority overlooked the first half of the text and put all its emphasis on the second–the part that reads “the right of the people to keep and bear Arms, shall not be infringed.” The result is easy to predict.
    So much for “strict constructionism.”

  • Rudy G

    the Court will find some individual right to gown ownership Do you just get to own the gown or do you get you wear it?

  • rea

    Yeah–I would think the right to gown ownership would stem from the right to privacy, as in Lawrence, Roe, and Griswold, rather than anything in the 2nd Amendment.

  • witless chum

    Can the Supreme Court make an impartial decision related to gowns? I mean, they call those things robes, but who are they kidding?

  • I’m not a lawyer, and I’m certain I’m not the first person to think of this, but is ammunition covered by the Second Amendment? Are bullets considered arms, assuming that the Court makes this a personal right? Or could a state place harsh restrictions on the ability of a citizen to purchase ammunition inside its limits?

  • Jennifer

    The constitution promised me the right to bear arms, and all I got was this lousy T-shirt.

  • Brautigan

    I was listening to some of the oral arguments, and was struck with the following.
    I can envision the court saying that it is an individual right, but the “reasonableness” of regulations with regard to that right are contingent upon the purpose of the 2nd amendment – i.e., the “well-regulated militia.” But ensuring that individuals have the right to own firearms for the purpose of being able to muster a local militia virtually guarantees that bans on automatic weapons, handguns, et al, would be unreasonable, since these are precisely the sorts of weapons an effective militia would need.
    That 18 gauge shotgun with the full choke? Not so much.
    A ruling like that might at least have the effect of highlighting just how anachronistic the 2nd amend is, and how stupid the approach of strict constructionists.

  • howard

    scott, i’m not a lawyer, but a few years back, i looked at the last time the supreme court ruled on the second ammendment (which was back in the ’30s). the ruling, essentially, was that the ammendment gave you a right to own the arms available at the time the second ammendment was written.
    if you have a moment, can you please do a posting about this ruling: it would be very helpful to see the supreme court precedent discussed.
    Incertus, you’ve put your finger on a long-time favorite of mine: i’ve given up on gun control on the grounds that there are way, way, way too many guns out there for it to make any difference at this point.
    instead, i favor heavily taxing and controlling bullets.

  • James Wimberley

    Remember: spellcheckers are no good against homophones. It’s public safety you unoriginal mistypist.

  • Bloix

    Any time the court says that the test is “reasonableness,” you’ve moved into judicial legislation. The tools of legal reasoning, which is what justices are supposed to be expert in, provide no help in determining what is or not reasonable. And the justices have no particular expertise in social organization or cultural expectations. They obtain their views of what’s reasonable from their own life experiences and the editorial pages of the publications they read.They don’t know what’s reasonable for a person in circumstances different from their own, and they rarely acknowledge that they don’t know.

  • Mike T

    I must agree that the DC gun ban is not an effective pubic safety measure.

  • Cliffy

    Bloix, you might well be right about that, but “reasonableness” is a concept throughout the common law (and which goes back at least a few centuries), so there’s little that can be done about the problem globally without shitcanning the whole of American jurisprudence.
    In practice, “reassonableness” tests in constitutional law typically mean that any sort of regulation passes constitutional muster as long as it doesn’t completely circumscribe the right at issue; this regulation is one of the few that might fail that test.
    As to the ultimate question of the case, I think the 2d A. demands some individual right of gun ownership. I’m no historian of the Amendment (certainly not that one), but ISTM that the tenor of the time would have recognized role of the well-regulated militia to **oppose** the exercise of federal power as well as support it in appropriate circumstance. IMO such a power is extremely limited if you have to go to the quartermaster to avail yourself of weapons, because it’s easy for the Army to just lock that guy up.
    And once you admit that the right of individual ownership exists at all, then you can have all sorts of restrictions on it that are “reasonable,” but a complete ban isn’t one of them.

  • T. Paine

    I second Mike T: One of my colleagues worked in a legal clinic serving juveniles last year; one of her clients was shot and killed two days ago. That said, I don’t know what would be MORE effective.

  • Cliffy

    The D.C. gun ban would be an effective public safety measure if Maryland and Virginia weren’t havens for straw purcahasers. However, the inability to buy handguns legally in the District probably does somewhat limit the number of guns around.

  • Any time the court says that the test is “reasonableness,” you’ve moved into judicial legislation.
    It’s no more “legislative” then determining that an ambiguous phrase in the Constitution provides an extremely broad right.

  • homophones
    I do not think that this word means what you think it means.

  • Come July you’ll see that the text could not “plausibly support both positions” – as that’s a bit of a stretch.
    If you look back to the time of the original writing you’ll realize the people needed to be available to take up their own arms to fight off invaders (aka England). I believe, judging from the oral testimony, that the judges will rule just that – probably 7-2; determining the 2A does indeed provide this individual right. However it will still be up to the states to set the regulations on legal acquisition.
    I think I’ll go to the range today and celebrate the freedom the Constitution allows!

  • strategichamlet

    “Given the minimalism that tends to characterize the late Rehnquist and Roberts Courts, my guess is that they will say very little about how the newly identified right will apply in future cases”
    Isn’t the Supreme Court’s primary role to provide tests and guidelines to the lower courts for solving cases? Assuming they strike down the DC ban and say little else New Jersey and California (and elsewhere) will erupt with lawsuits. Is the plan to live in legal chaos until the Supremes have had a chance to separately hear cases on waiting periods, “assault weapons” bans, etc.?

  • If you look back to the time of the original writing you’ll realize the people needed to be available to take up their own arms to fight off invaders (aka England).
    Which is an asinine reason to continue that interpretation of the Amendment. We don’t need that ability right now, nor are we likely to in the near future.

  • fuyura

    I’ve always wondered why a state doesn’t just pass an act using the 2d amendment’s wording:
    An Act to Regulate the [State] Militia (the following wording probably would need to be adjusted a bit)
    1. The militia exists solely to protect the state from outer space monsters and has no affiliation whatsoever with the National Guard or the regular forces of the United States.
    2. All adult residents of the state are members of the militia except criminals and crazy people. (definitions follow)
    3. Weapons allowed (at individual member’s expense) for militia members
    4. Acceptable places to procure weapons (if some states have state booze, why not firearms?)
    and so forth.

  • snoey

    Any indication in the tea leaves as to how the court would rule on licensing and registration issues? If the first clause has any meaning at all it should permit, and indeed encourage, a system at least as comprehensive as the one we have for drivers and vehicles.

  • If the court finds an individual right in the 2d Amendment, that right will be a fundamental right, and any local regulation will be subject to strict scrutiny. (The state must show compelling governmental interest in the regulation, and the availability of any less restrictive means of regulation will render it unconstitutional.) The kind of reasonableness test people have been talking about here is usually associated with rational basis review, which is applied to unenumerated rights that are not fundamental. (Caveat: I am not yet a lawyer.)

  • MFA

    Seems to me, if the law is found unconstitutional, DC simply needs to re-write it to ban only those guns longer than, say, 2″ and with calibers greater than .005″.
    Guns which meet these restrictions may be owned, but must not be carried concealed; they can however be worn as a lapel pin.
    Or perhaps that they must all be pastel pink in color.
    .

  • mds

    I’ve always found it funny* that the only amendment in the Bill of Rights that explicitly mentions “well-regulated” also somehow defines the only right that cannot be restricted at all, even by the states. And that this view is frequently advocated by the same people who are completely hostile to a similar absolutist interpretation of the First Amendment.
    *(“Funny” not as in “Ha-ha,” but as in “I’ve just been diagnosed with antibiotic-resistant TB.”)

  • Northern Observer

    So is the US a free fire zone yet?

  • strategichamlet

    MFA – do you find that level of restriction to be acceptable constitutional doctrine when you actually support the right in question? How do you feel about Carhart?

  • drip

    Scott says homophones I do not think that this word means what you think it means. It was certainly misused when applied to “public” and “pubic” or”gown” and gun” which allowed us some merriment at the indefatigable Scott’s expense. I particularly enjoyed the crack about robes. But what do you call it when your spellcheck passes a word that is the wrong word? Is there a name for this?

  • Cliffy

    strategichamlet, yours is a reasonable formulation of what the Court should be doing, but not one that is accepted by all or a majority of its members. Scalia, for instance, would say emphatically that the Court’s role is to rule on the cases before it, and leave any issues they can up to Congress and state legislatures. Otherwise, he’d say, you substitute the Court’s judgment for the peoples’ (or their proxies in the legislatures). I find this rather persuasive, although there’s a happy medium somewhere.
    snoey, and this is related to the above, I don’t think the Court will make a lot of pronouncements about what licensing regulations are acceptable. But presumably they would allow some — we’ll have to wait for the next case to make it up there.
    mds, it is ironic. Although to be fair to the Court, it seems likely given the oral argument that they are not going to embrace a similarly absolutist view.
    I’m always interested when D.C. issues come before the Court, because, y’know, they live here mostly. Do they listen to the D.C. Politics Hour with Kojo and Jonetta? Do they read Loose Lips? You figure they have to have some exposure to that stuff because they’re political creatures, and D.C. politics is an awesome spectator sport. If so, how does the local view influence them in ways that wouldn’t apply if this case were about a gun ban in Camden, New Jersey? Are they even a little worried that reversing the gun ban could theoretically lead to one of their kids getting shot?

  • anonymous

    And that this view is frequently advocated by the same people who are completely hostile to a similar absolutist interpretation of the First Amendment.
    And the opposite.
    I find it amazing that people can state that laws against drugs are unjust infringement on individual rights but have no problem with blanket bans on gun ownership.
    The truth is that there are segments of the population who possess the same irrational fear of firearms that some people possess for drugs.

  • anonymous

    But ensuring that individuals have the right to own firearms for the purpose of being able to muster a local militia virtually guarantees that bans on automatic weapons, handguns, et al, would be unreasonable, since these are precisely the sorts of weapons an effective militia would need.
    What?
    A .30-06 or most any other decent hunting rifle would make a fine basic weapon for a militia engaged in harassing attacks. They are long range and accurate and would be fine for shoot-and-scoots in rural areas.

  • anonymous: I can hunt with a handgun, so it’s a hunting device too.

  • Brautigan

    The truth is that there are segments of the population who possess the same irrational fear of firearms that some people possess for drugs.
    Call me crazy, but when somebody points a loaded joint at me, my first instinct is not to run away.

  • CJColucci

    In the late 18th century, and up until very recent times, there was no practical difference between standard-issue individual military weapons and civilian arms. Even here in heavily-regulated NYC, I can legally outfit myself (after jumping through some bureaucratic hoops) with an arsenal every bit as fearsome the ones my uncle (WWII) and father (Korea) were issued by Uncle Sam: a .30-06 semiautomatic fire rifle with a relatively small-capacity magazine and a .45 single-action semi-auto seven-shot pistol. They were functionally indistinguishable from anything I could get out of a sporting goods store for legitimate civilian use, except for the bayonet lug, and nobody’s afraid of thugs making bayonet charges. Hell, I could even go to a military surplus store and get something with a bayonet lug — though mostly you’d go that route just because it was cheaper. (The former Brady Law was often ridiculed fairly accurately, as the “ugly guns” law, because with the minor exception of magazine capacity limits and the ban on folding stocks, it didn’t affect any functional characteristic making “assault weapons” more concealable or deadly than routinely available sporting weapons.)
    Now, our soldiers are routinely issued weapons that have no legitimate civilian use, particularly automatic fire rifles. The Court is going to have to come up with some theory that keeps machine guns out of the hands of civilians, even though that is just what a “militia” would need today. A mealy-mouthed reasonableness” test that permits most regulation short of practical disarmament (maybe DC went too far, who knows?) is the likely candidate.

  • If you look back to the time of the original writing you’ll realize the people needed to be available to take up their own arms to fight off invaders (aka England).
    Contrast with:
    The Court is going to have to come up with some theory that keeps machine guns out of the hands of civilians, even though that is just what a “militia” would need today.
    Yes, but back in the day, the “arms” were black-powder muskets. Why don’t the originalists limit the right to that, just like they treat “cruel and unusual punishment”?
    In the alternative, in response to CJ, why should machine guns be off limits once we’ve gotten beyond black-powder muskets? Once we’re going away from the conservadroid originalist model (for which I have no fondness), it’s not clear to me where the Second Amendment stops once it’s an individual right.

  • Cliffy

    Which is the reason, paperwight, that this question should be decided in the legislatures, and not the courts.

  • anonymous

    The Court is going to have to come up with some theory that keeps machine guns out of the hands of civilians, even though that is just what a “militia” would need today.
    I dispute that is “exactly” what a militia would need today. A real machine gun, like an M60 or a SAW much less a heavier one, is a weapon that requires much more training to really use effectively than a rifle. It requires more training BOTH to learn how to operate AND to learn how to use well in combination with other people.
    Crew-serviced weapons are likewise suitable for the regular army but NOT for the militia. It does no good to arm people with weapons they do not have time to maintain proficiency in.

  • anonymous

    A real militia would need access to the kinds of weapons CJColucci mentioned – semi-automatic hunting rifles, bigger handguns like .45s, and shotguns. Those are the weapons that are suitable BOTH to the kind of occasional training we would expect members of a militia to have and the kinds of tasks they would be engaged in – which would NOT include pitched combat against professional enemies armed with heavy weapons.

  • Which is the reason, paperwight, that this question should be decided in the legislatures, and not the courts.
    No offense, but that’s a dead-end talking point. One legislature, the Constitutional Convention (and the ratifiyng states) passed a law we call the 2d Amendment. And now the question is to what extent other legislatures (like, for example, the DC city council or the people of DC) are allowed to operate within the bounds of the 2d Amendment.
    There is NO way to resolve that without a court. You need to decide what the two laws mean and how consistent or inconsistent they are. That is (even in the minimalist view) a proper role for courts.

  • It does no good to arm people with weapons they do not have time to maintain proficiency in.
    Yeah, so? If the right is an individual right and not one tied to participation in a state militia, I don’t see where we get to stop at small-magazine semi-automatic weapons, just because of a particular view of the value of more powerful weapons in the hands of amateurs (no matter how correct that view is).

  • Cliffy

    Courts giving legislatures wide lattitude to regulate and then occasionally defining boundaries when they’ve overreached (as clearly happened here) is not at all the same thing as a court delineating a specific regulatory scheme in advance of anyone actually asking for it. One recognizes that the people’s proxies in the legislature should be able to make the rules by which society is run, and the other doesn’t.

  • Cliffy, I have no idea what you’re on about. If you’re trying to define some minimalist scope for court action, I think the short answer is that appellate courts don’t work like that. They try to give lower courts (and legislatures) guidance about what how to proceed. That’s entirely appropriate.
    I’m not going to get into various theories of jurisprudence here, but there are some entirely appropriate roles for courts to play in defining the scope of individual rights, particularly when we’ve got a basic law (the Constitution as amended) that is (1) vague in many particulars, and (2) very very difficult to change (frankly, it’s impossible to change in any meaningful way with the current state-by-state political split, just as it has been for our history except for that period when the Civil War temporarily disenfranchised the reactionaries in the Southern States).

  • PSP

    So DC should form a regulated militia on the Swiss model?
    A total gun ban, except that every adult mail must own a semiauto AR-15 and 100 rounds. Taking off the trigger lock on said weapon for anything but authorized milita purposes would be a criminal offense.
    This would satisfy the well regulated milita requirement, while simultaniously pissing off every gun nut in America.

  • MFA

    “MFA – do you find that level of restriction to be acceptable constitutional doctrine when you actually support the right in question? How do you feel about Carhart?” – strategichamlet
    But I don’t support the right in question.
    On it’s face the 2A was intended to allow citizens the right to form effective militias, and to prohibit governments from taking away the citizen-militia’s primary tool of defense. I would even be willing for the sake of discussion to set aside the clear fact that militias were necessary (before we had a standing army, or armed police, and when the population lived in isolated clumps in the wild, facing threats from marauders, private armies, and indigenous peoples who tended to resent being run off their ancestral land) and grant that one reason the FFs put the 2A in is to allow these militias to resist opressive governments. But…
    We have come a long way since them thar days and most of those conditions no longer exist. And if one believe carrying sidearms and stocking a few rifles and shotguns is going to deter the forces of the US Government gone wild in black helicopters, one is sadly deluded.
    I’d be willing to support a repeal of the 2A if found to guarantee an individual right; failing that, I would support a 100% registration requirement. Like we have for cars.

    As to Carhart: I support an amendment explicating the right to privacy implied by the core of the constitution, and as such am disappointed by the decision the stacked SCOTUS made in Gonzales v. Carhart.
    Thanks for asking.
    .

  • As one of your commenters have mentioned, I posted a response on my blog along the lines of the “militia” aspect of the argument.

  • strategichamlet

    MFA – I don’t think your interpretation is obvious, nor do many scholars, most Americans, or apparently a majority of Supreme Court justices (given the oral arguments the other day).
    “And if one believe carrying sidearms and stocking a few rifles and shotguns is going to deter the forces of the US Government gone wild in black helicopters, one is sadly deluded.”
    Are you paying any attention to what is going on in Iraq? Apparently civilians lightly equipped can be rather effective against the US Government gone wild.
    In an ideal world yes, we’d ammend the constitution to include an explicit right to privacy, to clarify the 2nd, etc., but in the real world we have to interpret the constitution in the most faithful way we can, and I for one think that a right to individual gun ownership and a right to medical privacy are the most consistent with the document as it stands now.

  • Patrick

    I will preface this by saying I am a dyed in the wool liberal. Always have been, always will be. I also happen to believe that the 2d Amendment confers an individual right as well as a collective right.
    Lots of folks will pull up a historical context and try to claim that the amendment is old, outdated, and comprehends a time of disorganization. It is just those times of disorganization and uncertainty which the Amendment is designed for. Remember that the Constitution is a giant “DO NOT DO LIST” to the Government, that we have since expanded to include State Governemnts through the incorporation of the bill of rights through the 14th Amendment. The idea, was to keep many powers vested in the people and amongst the powers to vote “which we later needed to define” Speak, “which we later needed to define” remain silent “you get where I am going”. Our founders distrusted government to do the right thing, and they distrusted government to be able or willing to protect the people, or keep religion separate, or not abuse its power. Katrina should have taught a lot of people an example. A nation and its government can lose its way so much that they can allow a disaster to occur for which a nation and its government are not prepared. At that point what the government has done before will affect the ability of a people to function. If you cannot protect yourself, as an individual, what good are you to a nation, to a government that counts on you for direction, for a vote. Look at what the purpose of a militia was for, what an individual is supposed to do to protect himself or herself. If people can gather together to speak, they can gather to defend each other, and they need not be required to act through a Government to do so. We have found in our Constitution in the last 200+ years individual rights, applied to the Federal and State Governments that did not exist when the Constitution was written. This is just the next one. It will not be a free fire zone, it is not now, and it will not become one. Giving Illinois Nazis the right to speak did not give rise to the 4th Reich afterall, but gun control helped raise the 3rd.

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