The Public Policy

A Clean Shot

The Second Amendment gets its day in court.

By 3.18.08

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Today the Supreme Court will hear oral arguments in DC v. Heller, perhaps the most important Second Amendment case in the history of the world. The decision is expected in June. The justices will seek to answer, in their own words

Whether the following provisions -- D.C. Code secs. 7 2502.02(a)(4), 22 4504(a), and 7 2507.02 -- violate the Second Amendment rights of individuals who are not affiliated with any state regulated militia, but who wish to keep handguns and other firearms for private use in their homes.

Those "provisions" virtually ban handguns and require that long guns be stored in non-functioning states. The DC Circuit Court of Appeals answered that question with a resounding "yes it's unconstitutional."

If a reminder is needed, the amendment in question reads, "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."

Second Amendment defenders should feel loosely optimistic right now. They've done a good job of presenting their arguments to the court. The four "usual suspect" conservative judges (Roberts, Scalia, Thomas, Alito) are almost certainly on their side, so these arguments only need to convince one more. However, they should know that even if they win, they've got a long battle ahead of them.

The individual-right view of the Second Amendment is, roughly, this: The law came from militia-related concerns, but it accomplished its goals by granting the American people, as individuals, a right to keep and bear arms.

This guaranteed an armed populace that could resist outside invaders -- "the militia" comprised the fighting-age male population, and the Framers distrusted standing armies -- and also one that could stand guard against government tyranny.

Of course, times have changed since then, but that doesn't nullify a constitutional amendment.

BY CONTRAST, the District claims that the Second Amendment only protects arms-bearing when it relates to military service. A number of appeals courts have taken to this view, mainly by misreading the 1939 Supreme Court case U.S. v. Miller.

That case did uphold a federal sawed-off shotgun ban, but it did so because the law's challengers failed to show such a gun has a militia use -- not because the challengers themselves weren't militia members. In his confirmation hearings, Chief Justice Roberts was right in saying the case "sidestepped" the issue.

Both sides and their supporters have filed countless briefs, and each can claim some of the brightest minds in law and history. There have been some blows to the individual-right side, including the Bush administration's surprise betrayal. However, by and large, Heller's supporters have put forth a compelling case that draws on history and precedent.

Sheer numbers help as well. A majority of both houses of Congress have supported overturning the laws. So have a majority of states, calling for the court to limit their lawmaking powers. Vice President Dick Cheney signed a brief with the members of Congress, in essence publicly repudiating the administration's stance.

There are even rumors that, in oral argument, the solicitor general will deviate from those arguments that he put forth in his brief.

BUT EVEN IF the individual-right view prevails, the gun movement will face significant obstacles. The biggest is that the Bill of Rights was meant to restrict only the federal government. That has changed slowly, as a series of court cases have applied most, but not all, of the provisions to the states, "incorporating" them through the Fourteenth Amendment.

Since the District of Columbia is a part of the federal government, not a state, the court has no need to decide whether the Second Amendment is similarly incorporated. So even if pro-gunners win, they'll have to take up another round of lawsuits to touch gun bans outside of DC, but with the assurance that, once incorporated, the amendment will clear cut most gun laws.

As with most Second Amendment law, the precedent surrounding incorporation is old and scant. The Supreme Court explicitly rejected the idea, first in U.S. v. Cruikshank (1875), again in Presser v. Illinois (1886). However, though the Fourteenth Amendment was ratified seven years before Cruikshank, it wasn't until the 20th century that incorporation doctrine began taking hold elsewhere.

For example, Cruikshank said this of the First Amendment:

[It] prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This ... was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. ... It is now too late to question the correctness of this construction.

However, it proved to be not too late in 1937, when the court incorporated freedom of assembly. Earlier court cases are not likely to hold much sway on the Second Amendment's incorporation, one way or the other.

The bottom line for the pro-gun crowd is: Keep your fingers crossed and your powder dry this morning, and don't get too excited if things break your way in June. There's a long fight ahead.

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About the Author
Robert VerBruggen is an associate editor at National Review. You can follow his writing here.