Tuesday, March 18, 2008

Second Amendment Oral Arguments in Supreme Court

I had the privilege today of hearing personally the oral arguments in the U.S. Supreme Court of the major Second Amendment case, DC v. Heller.

From the questioning, it sounds like the U.S. Supreme Court will find the Second Amendment protects an individual right - a welcome development, as I discuss in an OpEd published in today's Detroit Free Press.

Interestingly, the sides were really not that far apart - both correctly note that reasonable regulation of guns is acceptable. Where they differ is whether a "reasonable" regulation includes an outright ban on guns, as DC argues; or whether an outright ban is "unreasonable," as Heller argues (and agreed with by the lower court in this case).

Here's the text of the Free Press OpEd:

The U.S. Supreme Court will hear arguments today about whether individuals have the right to own a gun -- one of the most important constitutional law cases of the past 100 years.

The reason this case, D.C. v. Heller, is so important is that it involves an individual right guaranteed in the Bill of Rights that most lower courts throughout American history have held simply does not exist. The U.S. Supreme Court, by contrast, has never addressed the question of whether the Second Amendment protects an individual right, and in fact has heard only one Second Amendment case in well over a hundred years (1939).

The Supreme Court in D.C. v. Heller has a chance finally to do the right thing and settle the question that the Second Amendment protects an individual right. This would be a positive step, because a faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster all of our rights, both enumerated and unenumerated (e.g., right to privacy), when we adopt an expansive view of individual liberty.

As for what this case means to the average person, let's say average-Joanne wants to keep a gun under her pillow at night for security; while average-Joe, for the common good of society, wants Congress to prohibit her and everyone else from doing so. Who wins?

Joanne wins, and can keep her gun, if the Supreme Court upholds the lower court decision that the Second Amendment protects an individual right. Joe wins, and the government can ban guns (as the District of Columbia did in this case), if the court holds that the amendment instead protects a "states' right" to arm the people collectively.

But the fact is both Joanne and Joe also win under the individual right position. To say the Second Amendment protects an individual right simply means that the government cannot prohibit firearms, but nothing prevents their reasonable regulation. Other individual rights, such as First Amendment freedom of speech, are properly subject to government regulation, though never prohibition.

An increasing number of courts now conclude that the Second Amendment was intended to protect an individual right.

The reason the amendment has been misinterpreted for so long is that its language is unclear. 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 states' right as opposed to an individual right. Virtually every federal or state court considering the question over the past century has adopted the former perspective -- until now.

By recognizing that the Second Amendment protects an individual right subject to reasonable regulation, the court will protect both average-Joanne's individual right to own a gun and average-Joe's common-good interest in regulating them.

MICHAEL ANTHONY LAWRENCE, a professor at Michigan State University College of Law, is the author of "Second Amendment Incorporation through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" in the Missouri Law Review (Winter 2007). He blogs at http://www.progressiveliberty.blogspot.com/.

Just another note beyond the OpEd - the sorts of acceptable regulations, even when the Second Amendment is interpreted to protect an individual right, would include those offered recently by the New York Times editorial page :

“Requiring background checks for every gun purchase. That means closing the egregious loophole that permits unlicensed dealers to sell firearms at gun shows without conducting any background check.

“Limiting purchases to one gun a month in order to defeat traffickers who use straw purchasers to buy weapons in bulk and then resell them on the street.

“Once again banning the sale of military-style assault weapons and high-capacity ammunition magazines like those used by the Virginia Tech and Northern Illinois University killers.”