Thursday, March 13, 2008

Second Amendment Case - The Technical Arguments

What specific technical arguments will the Supreme Court hear in DC v. Heller, the historic Second Amendment case to be argued before the Court on March 18, 2008, in which the Court will decide whether the Second Amendment protects a States’-right, as opposed to an individual-right, to keep and bear arms? (Basically, if the amendment is found to protect an individual right, Congress may not ban an ordinary person from having a gun.)

The Second Amendment states, “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.” This language is far from clear, so it is understandable how, based on the text alone, one could argue either that the amendment protects a States’-right or an individual-right.

There is general agreement among all that the first, prefatory clause (“A well regulated Militia, being necessary to the security of a free State,”) declares the amendment’s civic purpose - insuring the continuance of the militia system; but there is major disagreement on whether that purpose was exclusive of the second, operative clause (“the right of the people to keep and bear Arms, shall not be infringed”). Supporters of the individual-right interpretation argue the prefatory clause is not exclusive – i.e., that it merely announces the desirability of a well-regulated militia and informs the meaning of the ambiguous term “Arms” within the more broadly-stated operative clause that follows. They argue the more natural reading of the operative clause is to guarantee to the people an individual right to keep and bear arms free of government infringement.

In contrast, supporters of the States’-right approach argue, in the words of the lower court, “that the prefatory clause declares the amendment’s only purpose – to shield the state militias from federal encroachment – and that the operative clause, even when read in isolation, speaks solely to military affairs and guarantees a civic, rather than an individual, right.”

There is further disagreement on the meaning of the amendment’s individual words and phrases, such as “the people.” Individual-right supporters note that the phrase is also found in the First, Second, Fourth, Ninth, and Tenth Amendments, all of which protect an individual right against government infringement. It follows, they argue, that the most natural reading of “people” in the Second Amendment would be to apply the word in terms consistent with its usage elsewhere in the Bill of Rights. In contrast, proponents of the States’ right theory read “’the people’ to mean some subset of individuals such as ‘the organized militia’ or ‘the people who are engaged in militia service,’ or perhaps not any individuals at all - e.g., ‘the States.’”

The Court will also consider the meaning of “to keep and bear arms.” While supporters of the collective-right theory will point to convincing evidence that the phrase was commonly used in the founding era to mean “soldiering,” individual-rights theorists will cite equally convincing evidence from contemporaneous state constitutional provisions suggesting the phrase was also understood to include the carrying of arms for self-defense and other private purposes.

Likewise, “a well regulated Militia” is subject to dramatically varying meanings under the different viewpoints, and the Court will hear detailed and convincing arguments both ways. While the individual rights position argues that the word “Militia” is synonymous with “the people,” States’-right advocates offer a much more limited definition in which the Militia was a group of adult men well-regulated and organized by the State as a civilian fighting force. As the lower court observes, “The crucial distinction between the parties' views then goes to the nature of the militia: [Individual-right proponents] claim no organization was required, whereas the [States’-right adherents] claim a militia did not exist unless it was subject to state [regulation,] discipline and leadership.”

Finally, the Court will consider the impact of U.S. v. Miller in 1939, the only case in the past century-plus in which the High Court has addressed a Second Amendment issue. While each side will lay claim to Miller as precedent for its respective position, in the end Miller is, in a word, inconclusive. If anything, Miller’s reasoning in holding that the word “Arms” in the Second Amendment does not include sawed-off shotguns would seem to favor the individual-right position.

In conclusion, regardless of how the Court decides in DC v. Heller, the case should be entertaining theater.