Supreme Court Confronts the ‘Right to Bear Arms’
by Stephen P. Halbrook | View comments |
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The D.C. gun ban is in big trouble.
“That would be an odd ‘right of the people’ if limited to militias,” commented Chief Justice John Roberts in the Supreme Court hearing March 18 in District of Columbia v. Heller.
The case concerns whether the District of Columbia’s ban on handguns violates the Second Amendment guarantee that “the right of the people to keep and bear arms, shall not be infringed.”
Referring to the American Revolution, Justice Antonin Scalia noted that “tyrants took away the people’s weapons, not just those of the militia.”
For the American settlers, Justice Anthony Kennedy added, “Wasn’t there a need for self defense against Indian attacks, robbers, wolves and grizzlies?”
In recent years, Kennedy is the swing vote in close cases.
The founders were not concerned with personal protection, insisted Walter Dellinger — solicitor general during the Clinton Administration, and now arguing for D.C. — but only with “bearing arms” in the militia.
“Does the amendment have any effect today?” queried Justice Ruth Bader Ginsburg.
“Only if a federal law restrained state militias,” Dellinger responded.
So this “right of the people” has shriveled into a meaningless gesture exercised only by permission of the government. But the “exclusively militia” interpretation is only a facade. Those who deny this right of the people would be equally opposed to a robust state militia system in conflict with federal authority.
The text of the Constitution already had a militia clause. As Kennedy noted, the preamble to the Second Amendment — “a well regulated militia, being necessary to the security of a free state” — supplemented that clause. “My view is that the amendment guarantees a general right to bear arms without reference to the militia.”
And Scalia added that historically, English bans had been imposed on possession of arms by oppressed groups, such as Roman Catholics and Scottish Highlanders.
Which “arms” are constitutionally protected? One test is whether the arms are of a type “commonly possessed” by the people.
Dellinger tried to scare the court away from sanctioning handguns under this test, on the basis that it would also sanction machine guns, of which more than 100,000 are registered with the feds. Not an impressive number, given our population of 300 million.
Solicitor General Paul Clement argued, on behalf of the United States, that the right is individual, but that the court should not decide whether the D.C. ban is unconstitutional.
This “just don’t know” attitude may be explained by fears that the Justice Department’s prosecutions of citizens under this very ban for 30 years might be reopened.
Clement also worried that voiding the ban would question restrictions on machine guns and armor-piercing ammo, but Chief Justice Roberts reminded him that the only issue is handguns.
Justice David Souter found “keep and bear” to be a unitary concept “what is served by bear, if you can keep?” He quipped that “you do not bear arms to hunt; no one in the 18th century talked that way.”
“Keeping” refers to possession in the home, Clement responded, and “bearing,” to carry.
Jefferson sponsored legislation specifically referring to “bearing a gun” while hunting.
Alan Gura presented the case for Dick Heller, the court security guard who lives in Washington, D.C. and protects judges with a handgun by day, but is not trusted with having one when he goes home.
Justice Stephen Breyer queried how handguns had a militia purpose, and why was it not reasonable to ban them, given the high murder rate?
“The handgun ban,” Gura responded, “weakens military preparedness.”
Some seemed ready to scrap a militia arms test. “The second clause of the Second Amendment,” insisted Scalia, “goes beyond the militia — it is a right of the people. Why not acknowledge that?”
Kennedy stated that a machine gun is more related to the militia than the handgun, but the latter is relevant to the homeowner.
Stevens asserted that “only” two of the original states, Pennsylvania and Vermont, had arms guarantees referring to self-defense, and “all the others were for common defense.”
Yet only two other states — North Carolina and Massachusetts — had an arms guarantee, and both accorded the right to “the people,” even though they referred to common defense purposes. As Gura pointed out, those provisions were interpreted to recognize self-defense.
As is usual, the justices engaged in their own fencing match.
“Look at the murder rate, the crime statistics,” anguished Souter.
“All the more reason to allow homeowners to have handguns,” implored Scalia.
Long guns, even though they must be trigger-locked and unloaded, would do fine for home defense, Dellinger insisted as the last word. He could remove the lock in three seconds, albeit in daylight.
“And how long if you’re awakened at 3 a.m. and you reach for the lamp and your reading glasses?” Scalia asked, to general laughter.
Justice Clarence Thomas asked no questions. But a decade ago, in Printz v. U.S., he wrote an opinion appearing to favor the individual-rights view.
Looks like the Supreme Court is finally ready to recognize the Second Amendment as a real part of the Bill of Rights, and that D.C.’s ban is in big trouble.
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DearMr Halbrook,
This is a revised version of a Comment I left to a previous article:
“The right of the People to keep and bear Arms” is about the only remaining ‘right’ that has any semblance of ‘substantive’ content. To whittle it down in any way would reduce it to the level of our other ‘rights’ – a ‘procedural expectation’.
Hopefully you are right, and the Court is leaning towards overturning the ‘ban’.
But it seems that the proponents of the ban have been less than ‘creative’ in their arguments. The Brief could simply have argued that the ‘right’ to bear arms is realized through the elected representatives of the People ‘arming’ law enforcement authorities. That would neatly get round the “shall not be infringed” provision. The Brief could thus have argued that the peoples’ ‘right’ is exercised by ‘proxy’. The rationale would be that the ‘right’ is ‘defined’ and ‘limited’ by the provision “being necessary to the security of a free state”.
If the argument were put that way, the ‘right’ as we know it would simply disappear. The Court would have to ask itself how the ‘right’ to bear arms could most effectively be implemented in order to achieve the ‘objective’ of preserving the “security of a free state”.
From there it would a simple matter to assert that the “security of a free state” requires, even demands, that arms be kept out of the hands of ordinary citizens (because unrestricted possession of arms could be ‘threat’ to the “security of a free state”), and that the ‘right’ be reserved to law enforcement which would “keep and bear Arms” on behalf of the People in the interests of preserving “the security of a free state.”
Of course, I would strongly disagree with such an interpretation, but we should make no mistake about it, it is coming – if not now, then soon.
The European Court of Human Rights (ECHR) in the case of Konrad and Others v Germany applied precisely such an argument when upholding Germany’s prohibition of Homeschooling. The ECHR said this: “any interference [with rights to family life, education, freedom of thought, etc] would …be justified as being provided by law and necessary in a democratic society and in the public interest of securing the education of the child.” [I refer to this case in my book Freedom v A Tyranny of Rights]
Simply substitute the bearing of Arms into that reasoning, and the ‘right’ to “keep and bear Arms” is gone. It could go like this – ‘any interference with the “right of the people to keep and bear Arms” would be justified as “being necessary to the security of a free state”, and the ‘right’ would thus be exercised on behalf of the people through the arming of law enforcement officers appointed by the state for that purpose – the preservation of “the security of a free state”’
Joseph BH McMillan http://www.freedomvrights.com
Comment by Joseph BH McMillan | April 3, 2008
Requiring an individual to belong to a militia in order to "keep and bear arms" would be like requiring an individual to work for a newspaper in order to exercise any free speech rights.
Chief Justice John Roberts' comment, “That would be an odd ‘right of the people’ if limited to militias” is right on target (no pun intended) because even people living under dictatorships have this right.
Comment by sedonaman | April 4, 2008
Sedonaman, perhaps the ‘right’ being exercised by the State, rather than the People, could be a barometer of dictatorship?
The only problem with that is that most countries of the world would come within the definition!
Joseph BH McMillan http://www.freedomvrights.com
Comment by Joseph BH McMillan | April 5, 2008
I am glad to see there is, at least, one free-thinker at the so-called Independent Institute. I was beginning to think it was a 'liberals only' club (conservatives need not apply). I don't mind a think-tank being liberal, but it shouldn't then masquerade as non-partisan. There are two ways to run a non-partisan establishment. One is to staff the place with equal numbers of partisans, the other is to staff it with people who ridiculously straddle the fence while avoiding giving offense.
Most of what I've read both here and at that site (by I.I. authors) is, in fact, overwhelmingly liberal. I will grant most I.I. writers points for scholarship (even where it tends to cherry-picking), and suppose they really do believe themselves more non-partisan than they write. We've seen, for example, a good deal of Mr. Eland's stealth partisanship in recent weeks in regard to Iraq. Suffice it to say Dr. Halbrook makes a refreshing exception to this rule. He has presented arguments and tactics for both sides, even while making known his own feelings in the matter. If he writes this frankly over at I.I., he must be under considerable pressure from his collegues. Bravo!
Comment by Bob Stapler | April 8, 2008
Joseph BH McMillan/;
"…perhaps the ‘right’ being exercised by the State, rather than the People…"
Just a fine point here. The State doesn’t have rights; only persons have rights. The State has only authority. Since the Second Amendment is part of the Bill of Rights [of persons or people], IMHO, this couldn’t be used to argue only the State has the "right" to bear arms. As I have indicated before, no other country to my knowledge needs a "Second Amendment" authorizing it to bear arms.
But then again, anything can be rationalized within the law.
Comment by sedonaman | April 9, 2008