Lawyers, Guns and Certiorari

The Supreme Court may again be ready -- after an interval of 68 years -- to tackle a Second Amendment case that touches upon the core of the relationship between guns, people and the law. On Friday morning, the justices will consider whether to accept for review District of Columbia v. Heller, a case widely watched and followed by advocates on both sides of this debate.

As it tries to convince the justices to overturn a lower court ruling and to reinstate its ban on the possession and registration of handguns, the District of Columbia states the question raised by its case succinctly: "Whether the Second Amendment forbids the District of Columbia from banning private possession of handguns while allowing possession of rifles and shotguns." Dick Heller and Co., meanwhile, are asking the justices to affirm the lower-court ruling by determining that the Second Amendment guarantees to citizens the right to a "functional firearm." It's a dispute that has the potential to generate a Second Amendment ruling for the ages.

And ages it's been since the court last mustered up the courage to confront the peculiar language of the Second Amendment. The last time the justices tried to dissect the meaning of the amendment, Hitler had not yet invaded Poland and Ted Williams was in his first month playing baseball. It was May 15, 1939, and the Rooseveltian Court issued a unanimous ruling against two gun owners who had carried a shotgun across state lines in violation of a federal gun registration law.

Unfortunate for those now-long-gone gun owners. And unfortunate for us because the justices back then were unable or unwilling to truly offer a comprehensive analysis of the scope of the amendment. Does it create an individual right to bear arms that cannot be regulated away by Congress? Does it apply only to federal laws? Does it apply only to militias? Who has standing -- the legal right to sue -- in such cases? Does it matter that the regulation at issue here comes from the District of Columbia, which is technically neither a state nor the "federal government"?

The list of questions is endless. And thus so are the ways in which our modern-day justices could both resolve the case and duck the central question about the scope of the amendment. No matter what the final result, I'm hoping the court will take the case and then issue a substantive ruling. It's time we heard what the Supreme Court says about this area of the law, and time the justices modernized an outdated and unworkable Second Amendment analysis.

By Andrew Cohen |  November 6, 2007; 7:51 AM ET
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Posted by: | November 6, 2007 11:18 AM

The Brethern have ducked, dodged, and twisted to avoid visiting the 2nd amendement for nearly as long as I have been alive... My bet is they will still dodge it and let the lower court ruling stand...

The issue for them is that they know they will be forced to uphold the 2nd Amendment; giving the people an unfettered right to arm themselves, which is what the framers intended in order to prevent the newly created government from imposing a tyranny like King George had imposed... The Court will be obligated to strike down all gun regulation laws that conflict with the 2nd Amendment. As good liberals, appointees of Presidents, and members of the privileged class, the majority of the court would eat worms and have Newt Gingrich as Chief Justice before that...

Posted by: DR. O | November 6, 2007 11:37 AM

Could be worse...we could have O'Connor still on the court and get a truly hair-splitting opinion that does nothing but resolve the case in the most narrow fashion possible. Either way, I still think 5-4 with Kennedy being the swing vote will be most likely and he will either write the opinion or write a concurrence that weakens either side by hinting that he could switch his vote under different circumstances.

Posted by: William Smith | November 6, 2007 12:40 PM

The Second Amendment: '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.'

It is difficult to interpret this Amendment because it is ambiguous. Its ambiguity is enhanced by the absence of traditional sentence structure. Its clumsiness adds to the difficulty of constructing this Amendment. Nevertheless, the task must be tackled successfully.

When I read and construct this amendment it seems that its primary purpose is to acknowledge that a well regulated Militia is necessary for the security of a free state.

When it refers to the right of the people to keep and bear arms the word 'people' is collective. It does not refer to a citizen or an individual. It is clear that the Amendment is saying that it is the State which shall be entitled to have the militia.

The words 'a well regulated militia' refer to a defence organisation managed by the free state: nowadays this is an army, airforce, navy and marines.

However, one can take a contrary point of view when constructing this Amendment and say that it is the right of the people, as individuals, to bear arms. However, one must still look at the only stated reason why they can bear arms: so that there can be a well regulated militia.

If it means that individuals can bear arms it seems to constrict their use to the arms being used in the militia. In other words, this right to bear arms does not permit individuals to bear arms for any other purpose such as sport, love of guns, hunting etc.

It is proper that a sensible construction is given to this Amendment. One based on self-interest or aspirations has no relevancy to its meaning.

This summary is incomplete because I could, if given enough time, examine the meaning and application of each word and phrase.

In summary, the simplistic assumption that this Amendment gives an individual the right to bear arms for any purpose must be rejected. I think that the Amendment makes sense if it is read this way: 'A well regulated Militia, being necessary to the security of a free State, ... shall not be infringed.' In other words, it is the State that has the right to have this well regulated militia which, given the historical period, provided that it is the right of the people to keep and bear Arms. Of course, this can be done in other ways such as the people being those who are part of a standing army. It cannot be expanded to that people, in their private capacity, bear the arms to secure the freedom and security of the state.

The militia must be made up of people. At the time the Amendment was drafted there was no standing army. In times of war, it was expected that the people would come together to create a well regulated militia and that they would bring their arms because they were needed to ensure the security of a free State. However, this historical observation of how the militia would be formed when needed did not guarantee individuals the right to bear arms. Today, individuals bear arms of all kinds but they will not ever be used as part of a well regulated militia and it is not intended by the Militia that they will be so used and the individuals who bear them cannot expect to use those arms in the Militia.

This Amnedment does not permit, as a matter of right, individuals to bear arms.

Posted by: Robert James | November 6, 2007 03:16 PM

The statement regarding the militia is merely a statement of justification for private ownership of weapons. When the 2nd Amendment was written, a militia was composed of citizens who were expected to provide their own firearms and other weapons. Indeed, at the time, most free individuals owned, and were expected to own, a functional firearm for their own defense and for their contribution to the common defense. Our current situation, where military weapons are kept from the hands of the average citizen, and where people not only expect the police to protect them but are actually fearful of protecting themselves from violence, was inconceivable to them. Mr. James is wrong, and the DC Court was correct. A militia, well-regulated or otherwise, cannot exist if the citizens are prohibited from owning weapons.

Posted by: Tom Nystel | November 6, 2007 03:52 PM

Posted by: Mark in Austin | November 6, 2007 11:07 PM

I really don't see the court making an expansive ruling. They could go as far as striking down all federal gun laws, but I doubt that they'd go that far. Seeing as the law in question only applies to handguns, they might decide to narrowly strike down federal laws that keep a person from owning one, but keep the laws restricting how and where they can be carried and used. Even individual rights can have limits. They might also uphold the law on the basis that the Federal government can narrowly regulate which firearms are permissible and which aren't, as long as people are permitted to own some guns, others could be regulated.

They could also decide to maintain the status quo by upholding previous rulings that the 2nd Amendment only applied to militias, although I suspect they won't do that.

It's seriously doubtful that they will go so far as to apply their ruling to the states. The issues there are very different, and the states would need to be given an opportunity to defend their own statutes before the court.

Posted by: Al | November 7, 2007 09:09 AM

At the time the 2nd amendment was written, a 'well regulated militia' was composed of "we" the citizens. The majority of arms available to this 'well regulated militia' at that time were their own. Should the inevitable occur, "we" the citizen would again become that very militia of old, and therefore must never give up our right to keep and bear arms. Our forefathers knew this. Society has forgotten. There is no sustainable 1st amendment without the 2nd. The government should never be permitted to disarm the law abiding public. In the same worst case scenario, any redress of grievances to the government must be made from one of strength. Nothing will ever come of a petition to government made from an unarmmed people. This is what our fore fathers were thinking 231 years ago.

Posted by: James K. | November 7, 2007 10:34 AM

If all the other admendments in the bill of rights are about personal rights. Why would they put a state rights issue in the second most supporting role?

Posted by: J Van Wyk | November 7, 2007 12:03 PM

The analyst didn't mention the analysis of the word "arms" which is a chronologically moving target. When Amendment 2 was written, arms were knives, swords and ball-and-powder guns. Repeater rifles, semiautomatic pistols, multishot revolvers. stun guns, TASERs, etc. hadn'tbeen invented yet. And who knows what lies in the future? Star Trek-type "Phasers"or other, as yet unimagined, beam weapons? If the USSC is going to make a ruling valid "for all time", they must consider the possible future of "arms" and who the possessors could/should be.

Posted by: Greg | November 7, 2007 02:07 PM

Greg, at the time of the writting of the Second Amendment multishot handguns were available, with handguns boing common. Even the English were not confiscating handguns when doing arms confiscations in the colonies. I think you should look into the history of firearms before making any such claims.

Posted by: Andy | November 7, 2007 02:24 PM

It is a right of the people. Those who have a problem with II should press for a constitutional convention and repeal it.

Posted by: | November 21, 2007 11:50 AM

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