Monday, February 11, 2008

Stay Tuned for the Case of the Century: DC v. Heller

The Second Amendment case scheduled for argument in the U.S. Supreme Court on March 18, District of Columbia v. Heller, is one of the most highly-anticipated Supreme Court cases in many years - and with good reason, for in constitutional terms DC v. Heller is a once-in-a-lifetime (or even a once-in-several-lifetimes) case.

Think of it this way. Every year the Supreme Court decides important cases involving whether the government infringes a particular individual right that the Court has previously recognized as protected under the Constitution, whether it be the 1st amendment right to practice the religion of one’s choice, the 4th amendment right to be free of unreasonable governmental search and seizure, the 5th amendment right not to have property taken by the government without just compensation, the 8th amendment right not to be subjected to cruel and unusual punishment - and so on.

Much less frequently, maybe only once every few decades, the Court decides a case that fundamentally changes how we view a particular constitutional right. For example, in 1954 the Court decided Brown v. Board of Education, which reversed its earlier position, held since before the turn of the twentieth century, that “separate but equal” laws do not violate the 14th amendment’s guarantee of equal treatment. After Brown, then, all so-called “Jim Crow” laws were unconstitutional. Some twenty years later in 1973, the Court decided Roe v. Wade, which found that the “liberty” protected in the 5th and 14th amendment due process clauses is broad enough to include certain “privacy” interests, such as the right of a woman to choose whether to have an abortion free of government prohibition. Roe opened the door to the Court’s acknowledgement of other liberty interests protected under the 5th and 14th amendments, including the right of individual personal autonomy to engage in private consensual sexual conduct free of government interference in the landmark 2003 case Lawrence v. Texas.

While Brown, Roe, and Lawrence are all hugely important in defining the scope of the freedom enjoyed by Americans, even they “only” involved the interpretation of previously-acknowledged constitutional rights – i.e., the right of “equal protection” in Brown, and the right of “liberty” in Roe and Lawrence. DC v. Heller, by contrast, involves a right that most courts throughout American history have held does not even exist. Under this prevailing view, courts have held there is no individual right to keep and bear arms; rather, the Second Amendment protects the right of persons to keep and bear arms only insofar as the State authorizes them to do so in the interest of maintaining a militia.

There just are not many constitutional provisions like the Second Amendment (the Ninth Amendment and the Fourteenth Amendment privileges or immunities clause being other notable examples), where the very existence of a right suggested in the text of the Constitution goes unacknowledged by the Supreme Court. Accordingly, a case like DC v. Heller comes along extremely rarely – maybe only once every century or more.

What is it in particular about the Second Amendment that makes its meaning so uncertain? After all, the context of the amendment’s placement within a grouping of nine other amendments in a “Bill of Rights” designed to protect individual rights from government interference would seem to suggest that the Second Amendment likewise protects an individual right. The text itself, however, is no model of clarity. By stating, “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,” the amendment opens itself up to argument on whether it is intended to protect only a collective State right as opposed to an individual right. And as noted, virtually every federal and state court considering the question over the past century has adopted the former perspective - until now.

It remains to be seen how the Supreme Court will decide this question. At the least, its decision to review the DC Circuit Federal Court of Appeals’ conclusion that the Second Amendment protects an individual right will provide a fascinating rare look at history in the making. Whatever its outcome, DC v. Heller is destined to become one of a small handful of household-name Supreme Court cases in the Nation’s history.