Academic

Taking Aim: The Supreme Court Runs Out of Ammunition in Interpreting the Second Amendment

By Robert Justin Lipkin

"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."

Read Linda Greenhouse's piece in today's NY Times: "The Supreme Court on Thursday embraced the long-disputed view that the Second Amendment protects an individual right to own a gun for personal use, ruling 5 to 4 that there is a constitutional right to keep a loaded handgun at home for self-defense.  . . .  The landmark ruling overturned the District of Columbia ban on handguns, the strictest gun-control law in the country, and appeared certain to usher in a new round of litigation over gun rights throughout the country.  . . .  The court rejected the view that the Second Amendment's 'right of the people to keep and bear arms' applied to gun ownership only in connection with service in the 'well regulated militia' to which the amendment refers.  . . .  Justice Antonin Scalia's majority opinion, his most important in his 22 years on the court, said that the justices were 'aware of the problem of handgun violence in this country' and 'take seriously' the arguments in favor of prohibiting handgun ownership.  . . .  'But the enshrinement of constitutional rights necessarily takes certain policy choices off the table,' he said, adding, 'It is not the role of this court to pronounce the Second Amendment extinct.'  . . . Justice Scalia's opinion was signed by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito, Jr." For the dissenting opinions continue reading here."

How Justice Scalia derives an individual right of self-defense from the Amendment's text is mysterious. Some scholars believe that he is justified in doing so because grammar and semantics require his conclusion. But in the logic of practical reasoning reasons and purposes limit the imperatives derived from them. I've written on this issue in ECA before and reprise an earlier post below. 

ECA, 17 February 2008

For the first time in over sixty years, the United States Supreme Court will soon decide one of the most polarizing constitutional controversies: What sort of regulations on guns does the Second Amendment prohibit. The last time the Court decided a Second Amendment case was in 1939 in Miller v. United States where the Court held that a twelve inch sawed off shotgun was not protected under the Second Amendment. In the present case, District of Columbia v. Heller, the Court will decide whether the District of Columbia's restrictive gun regulations, regulations making it virtually impossible to use a gun for self-defense even in one's home, violate the Second Amendment. The implications of the Court's decision in this case are enormous directly and indirectly affecting the constitutionality of gun control legislation throughout the nation.[1]

Although, the Second Amendment implicates tough moral, cultural, and social issues, the constitutional issue is this. While none of the rights contained in the Bill of Rights is absolutely inviolable, some of them, especially the right to free speech, require a strong judicial presumption of constitutionality. For a regulation to succeed, the government must have an unusually powerful justification. If the Court uses the free speech clause of the First Amendment as the model for applying the Second Amendment, gun control regulations will become virtually taboo. Had the Second Amendment said, "The right of the people to keep and bear arms shall not be infringed," gun rights and speech rights would require the same type of justification. But the Second Amendment includes a pesky, little preface, absent in the First Amendment, qualifying the right in question. And that's where the serious trouble begins.   

In deciding whether to uphold a lower court's decision striking down the district's regulations, the Supreme Court must decide what effect, if any, the clause--"A well regulated Militia[,] being necessary to the security of a free State"--has on the right contained in the clause "the right of the people to keep and bear Arms shall not be infringed"?[2] In earlier decisions, the courts have viewed the preface to be the reason the people have the right to keep and bear arms, namely, in order to equip a well-regulated militia. How should the Court now interpret the Second Amendment right in light of this qualifying preface?  The answer to this question is the core of this controversy.[3]

The vitriol surrounding this issue blinds proponents of gun rights to the existence of the preface, while undue emphasis on the preface tends to camouflage the right's existence. Constitutional integrity requires the Second Amendment to be read in light of its entire text. Focusing on one portion of text to the detriment of another in effect rewrites the Amendment. The Roberts' Court should be wary of handing down a decision that ignores any part of the constitutional text. If it is not, the Court will be making law from the bench usurping Congress' constitutional authority as lawmaker. 

Which interpretation of the Second Amendment should the Court embrace? The major contenders in this battle are two seemingly irreconcilable interpretations.  In one corner stands the state's right interpretation and in the other corner stands the individual rights interpretation. The former permits significant regulations of guns, while the individual rights interpretation makes it much more difficult to sustain such regulations.

According to the state's rights interpretation, the Second Amendment guarantee was designed to prevent the fledgling federal government from daring even to think about disarming the state militias which was, at the time, the primary military force used to defend the states. If the federal government could disarm a state's militia, it could in effect banish the militia entirely. The reason states were intent on constitutionally protecting their militias was simply their distrust of standing armies and the conviction that an armed militia could prevent unconstitutional domination by the federal government.[4] In short, according to this position, the right to keep and bear arms is a right of a state government to form and arm what in contemporary America we know as the National Guard.[5] Since, according to this interpretation, gun rights are inextricably linked to state militias, regulations which do not affect a state's militia are beyond the Amendment's scope. In fact, the most recent Supreme Court case, Miller v. United States decided in 1939, made clear that only guns that were part of a well-regulated militia are subject to Second Amendment protection. This doomed sawed off shotguns which were the guns in question in the Miller case.

State constitutions during the founding era sometimes included prefaces which qualified the various rights in question; however, none of the other rights in the Bill of Rights do. The Founders must have had a reason for including a preface in the Second Amendment, but not in the First Amendment or any other provision in the Bill of Rights.  Consequently, it seems clear that the founders had no intention of making the right to keep and bear arms a right of individuals; their goal was to protect republican community, not liberal license.

By contrast to this historical explanation, the individual rights interpretation resonates with contemporary sensibilities. In this view, the Second Amendment's right is a right of individuals just like the right to freedom of speech. Although the Second Amendment has a civic purpose expressed by its preface, if Americans are to realize their birthright of liberty, the right to own guns must be equally as significant as the right to free speech. Both contribute to liberty which the Constitution was designed to articulate and defend. Moreover, the only practical way to ensure that the militia remains viable is for individuals to be armed. Interpreted in this fashion, the Roberts' Court should strike down the District's restrictive gun regulations.

What will the Court decide? Is the right in the Second Amendment a right of states or an individual right of persons? Predicting what the Court will do is a risky business, but a few things seem clear. The Court will neither embrace a muscular state's rights position nor an unqualified individual rights position. Indeed, there exists the distinct possibility that the Court will split the difference between these competing interpretations. If so, the smart money is on Justice Anthony Kennedy, typically the swing vote since Justice O'Connor retired, to tip toe between these competing interpretations leading the Court to fashion a compromise. The Second Amendment contains a significant individual right, but not one not requiring an unusually powerful reason for its regulation as is required in the free speech cases. If the government's reason for regulating gun rights is reasonable, that is, if it does not present an undue burden on gun owners, then the regulation will be upheld. For example, hunters and individuals keen on guns for self-defense can count on Second Amendment protection. By contrast, licensing and background checks, machine bans, gun-free zones, and other regulations not posing an undue burden on gun owners would permissible. The District's regulation making it virtually impossible to use a gun for self-defense in one's home will be struck down. This compromise might work for the moment, but neither side will be entirely satisfied. The result is likely to be a firestorm of litigation over what counts as a "reasonable" regulation, and when precisely does one place an "undue burden" on gun rights. Judicial compromises rarely resolve hot-button controversies.  They just postpone debate until another day. 
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[1]  The decision will apply directly to federal laws regulating guns, but only indirectly applying to state laws.  Before state laws can be brought under the gambit of the Second Amendment, the Court must first decide whether the Second Amendment is incorporated through the Due process Clause of the Fourteenth Amendment to state laws.

[2] Characterizing the issue in this manner sidesteps the question of whether the right's clause in the Second Amendment is the same right as the one in "The right to keep and bear arms . . ." One could argue that the preface does not merely qualify the right but renders it dependent on the preface for its content, that is, for its scope and limits.  Of course, this argument depends on giving the comma less weight than most observers would claim it has.

[3] The Second Amendment is a paradigmatic case of a poorly drafted provision.  Does it say anything more than "Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." This seems to tie the right more closely to its justification. It also brings out more clearly the anachronistic element in the Amendment.

[4]  The idea that an armed citizenry could prevent a tyrannical United States' government from getting away with oppression or even sufficiently harassing the United States government  into submission or even if slow down oppressive practices to a significant degree is implausible in the extreme. If that's so, and since the Framers believed a militia was a better form of self-defense than a standing army, the question arises whether the Amendment is still relevant to our changed circumstances.

[5] It remains controversial whether the Second Amendment's militia language can be reasonably regarded as referring to the National Guard or whether it refers to some larger subset of the people.

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Full post as published by Essentially Contested America on June 27, 2008 (boomark / email).