Interesting opinion on gun rights
Tacoma, WA - August 5, 2007
THE NEWS TRIBUNE Published: August 5th, 2007 01:00 AM
Before long, champions of the Second Amendment could be learning a bitter truth: You win a battle and lose it at the same time.
Gun advocates may be within sight of one of their grand objectives - a ruling by the U.S. Supreme Court that the right to bear arms belongs to you and me, not the government and not the National Guard. But if they do win, some of them may be startled by the next question: What difference does it make?
What makes their victory plausible is a March appeals court ruling that struck down the District of Columbia's almost worthless ban on guns kept in private homes. (Despite the law, the rate of armed crime in the district is sky high. The slogan has proved true - only the outlaws have guns.) A panel of the U.S. Court of Appeals for the D.C. Circuit held that - contrary to long-standing legal orthodoxy - the Second Amendment protects an individual right, not a collective one.
D.C. officials decided last month to appeal the ruling, which could ultimately put the issue in the lap of the Supreme Court.
Because the Supreme Court's conservative majority tends to give much weight to the original intent of constitutional language, there's a healthy chance it will agree - as the National Rifle Association and others have been saying all along - that the amendment bars the kind of blanket gun ban D.C. adopted in 1976.
Under the orthodox view, the Second Amendment was adopted to guarantee "a well regulated Militia" - emphasis on regulated. Arms in the homes and hands of private citizens (free white men, in the 18th century) ensured, as in Switzerland today, that the militia had a ready source of armed personnel. So the "right" is collective, not individual. If anyone can claim it, one argument goes, it's the National Guard and similar state forces, the successors of the 18th-century militia.
But respected constitutional scholars - such as Michael D. Dorf of Columbia University - have been challenging this line of thinking. They note that, elsewhere in the Bill of Rights, the word "people" refers to individual citizens. And the entire Bill of Rights was drafted to protect citizens from government, not empower an arm of government.
For that matter, the founders assigned "powers" - but not "rights" - to government. Rights belonged to citizens, not the state.
Getting back to original intent, there doesn't seem to have been any debate in the early years of the republic that individuals had a right to keep and bear arms. The founders also feared professional armies, which kings had routinely used to enforce their power. The National Guard - under the control of the Pentagon - looks a lot more like a professional army than the citizen militia the founders hoped would counter an overbearing national government.
OK. Let's say this maverick view of the Second Amendment wins out in the Supreme Court, as well it might.
Some gun-rights advocates might imagine that such a legal triumph would make existing restrictions on firearms fall like dominoes. But there's only one domino that we know for sure would fall: the toothless ban in the District of Columbia.
One reason is "incorporation." Originally, the Bill of Rights curbed only the power of the federal government. In the 20th century, the Supreme Court decided that some liberties in the Bill of Rights are incorporated in the 14th Amendment's Due Process Clause and thus also curb the power of state governments. No state can expose a criminal defendant to double jeopardy, for example, because the high court extended that restriction to the states in 1969.
But the Supreme Court has been selective in incorporating rights. One right it hasn't insisted that states honor is - you guessed it - the right to keep and bear arms. Until the Second Amendment is incorporated, states will remain be free to regulate firearms to their hearts' content, within the limits of their own constitutions.
The Washington Constitution, for example, says, "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired." But there's no telling how the Washington Supreme Court would apply that language.
Let's say the U.S. Supreme Court's conservative majority does incorporate the Second Amendment, which is conceivable. Even then, there's no guarantee the state and local restrictions on firearms will come toppling down.
The mere recognition of a right doesn't automatically void all laws that appear to violate that right. If the court sided with the maverick view of the Second Amendment, it would still consider laws on a case-by-case basis as lawsuits bubbled up to it. In deciding these cases, it might choose to employ a loose standard called the "rational basis test."
Under this standard, a law is struck down only if no rational legislature could have decided it served a legitimate purpose. This test probably wouldn't knock down more than a few gun regulations beyond a D.C.-style ban.
Or the court might apply the much more stringent "strict scrutiny" standard. This is designed to protect fundamental rights, and it is tight. A law restricting an individual liberty can survive strict scrutiny only if it serves a "compelling government interest" and is narrowly tailored to that purpose.
Even under this exacting standard, though, the Second Amendment champions wouldn't necessarily have their way with the courts.
Consider some of the regulations that crowd doesn't like:
A regulation, for example, requiring people to take gun-safety lessons and get a permit before buying a gun. Is there no compelling government interest in ensuring that people know how to use guns safely?
Or anti-trafficking laws that, typically, prevent people from buying more than one firearm a month. Without such a limit, gun-control proponents say, traffickers can buy large numbers of guns and resell them to criminals. That's an argument for public safety, a compelling government interest if there ever was one.
Or compulsory registration of firearms - the great bugaboo of gun advocates. This doesn't violate the "right to keep and bear" in any immediate way. You can keep and bear an arm if it's registered.
Opponents of registration talk about the possibility of a tyrannical government swooping down and confiscating all registered guns. But that is a hypothetical "parade of horrors" kind of argument the courts might not find persuasive.
Here's something to sober the celebration over the D.C. appeals ruling: Though its conservative author, Judge Laurence Silberman, dismissed the District of Columbia's ban on guns, he supported its requirement that guns be registered. That doesn't bode well for the Second Amendment absolutists.
The fact is, a fundamental constitutional liberty is never absolute. It lives in a legal ecology with public interests and other liberties. It ends when it bumps up too hard against one of them.
Freedom of speech, for example, doesn't let anyone incite to riot or threaten the life of the president. Freedom of religion doesn't allow blood sacrifice in violation of animal cruelty laws. Freedom of the press doesn't give newspapers a free pass to print libel or obscenity or disclose the movements of troops in wartime.
All constitutional rights have their limits. The individual right to keep and bear arms, if recognized, won't be the exception.
THE NEWS TRIBUNE Published: August 5th, 2007 01:00 AM
Before long, champions of the Second Amendment could be learning a bitter truth: You win a battle and lose it at the same time.
Gun advocates may be within sight of one of their grand objectives - a ruling by the U.S. Supreme Court that the right to bear arms belongs to you and me, not the government and not the National Guard. But if they do win, some of them may be startled by the next question: What difference does it make?
What makes their victory plausible is a March appeals court ruling that struck down the District of Columbia's almost worthless ban on guns kept in private homes. (Despite the law, the rate of armed crime in the district is sky high. The slogan has proved true - only the outlaws have guns.) A panel of the U.S. Court of Appeals for the D.C. Circuit held that - contrary to long-standing legal orthodoxy - the Second Amendment protects an individual right, not a collective one.
D.C. officials decided last month to appeal the ruling, which could ultimately put the issue in the lap of the Supreme Court.
Because the Supreme Court's conservative majority tends to give much weight to the original intent of constitutional language, there's a healthy chance it will agree - as the National Rifle Association and others have been saying all along - that the amendment bars the kind of blanket gun ban D.C. adopted in 1976.
Under the orthodox view, the Second Amendment was adopted to guarantee "a well regulated Militia" - emphasis on regulated. Arms in the homes and hands of private citizens (free white men, in the 18th century) ensured, as in Switzerland today, that the militia had a ready source of armed personnel. So the "right" is collective, not individual. If anyone can claim it, one argument goes, it's the National Guard and similar state forces, the successors of the 18th-century militia.
But respected constitutional scholars - such as Michael D. Dorf of Columbia University - have been challenging this line of thinking. They note that, elsewhere in the Bill of Rights, the word "people" refers to individual citizens. And the entire Bill of Rights was drafted to protect citizens from government, not empower an arm of government.
For that matter, the founders assigned "powers" - but not "rights" - to government. Rights belonged to citizens, not the state.
Getting back to original intent, there doesn't seem to have been any debate in the early years of the republic that individuals had a right to keep and bear arms. The founders also feared professional armies, which kings had routinely used to enforce their power. The National Guard - under the control of the Pentagon - looks a lot more like a professional army than the citizen militia the founders hoped would counter an overbearing national government.
OK. Let's say this maverick view of the Second Amendment wins out in the Supreme Court, as well it might.
Some gun-rights advocates might imagine that such a legal triumph would make existing restrictions on firearms fall like dominoes. But there's only one domino that we know for sure would fall: the toothless ban in the District of Columbia.
One reason is "incorporation." Originally, the Bill of Rights curbed only the power of the federal government. In the 20th century, the Supreme Court decided that some liberties in the Bill of Rights are incorporated in the 14th Amendment's Due Process Clause and thus also curb the power of state governments. No state can expose a criminal defendant to double jeopardy, for example, because the high court extended that restriction to the states in 1969.
But the Supreme Court has been selective in incorporating rights. One right it hasn't insisted that states honor is - you guessed it - the right to keep and bear arms. Until the Second Amendment is incorporated, states will remain be free to regulate firearms to their hearts' content, within the limits of their own constitutions.
The Washington Constitution, for example, says, "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired." But there's no telling how the Washington Supreme Court would apply that language.
Let's say the U.S. Supreme Court's conservative majority does incorporate the Second Amendment, which is conceivable. Even then, there's no guarantee the state and local restrictions on firearms will come toppling down.
The mere recognition of a right doesn't automatically void all laws that appear to violate that right. If the court sided with the maverick view of the Second Amendment, it would still consider laws on a case-by-case basis as lawsuits bubbled up to it. In deciding these cases, it might choose to employ a loose standard called the "rational basis test."
Under this standard, a law is struck down only if no rational legislature could have decided it served a legitimate purpose. This test probably wouldn't knock down more than a few gun regulations beyond a D.C.-style ban.
Or the court might apply the much more stringent "strict scrutiny" standard. This is designed to protect fundamental rights, and it is tight. A law restricting an individual liberty can survive strict scrutiny only if it serves a "compelling government interest" and is narrowly tailored to that purpose.
Even under this exacting standard, though, the Second Amendment champions wouldn't necessarily have their way with the courts.
Consider some of the regulations that crowd doesn't like:
A regulation, for example, requiring people to take gun-safety lessons and get a permit before buying a gun. Is there no compelling government interest in ensuring that people know how to use guns safely?
Or anti-trafficking laws that, typically, prevent people from buying more than one firearm a month. Without such a limit, gun-control proponents say, traffickers can buy large numbers of guns and resell them to criminals. That's an argument for public safety, a compelling government interest if there ever was one.
Or compulsory registration of firearms - the great bugaboo of gun advocates. This doesn't violate the "right to keep and bear" in any immediate way. You can keep and bear an arm if it's registered.
Opponents of registration talk about the possibility of a tyrannical government swooping down and confiscating all registered guns. But that is a hypothetical "parade of horrors" kind of argument the courts might not find persuasive.
Here's something to sober the celebration over the D.C. appeals ruling: Though its conservative author, Judge Laurence Silberman, dismissed the District of Columbia's ban on guns, he supported its requirement that guns be registered. That doesn't bode well for the Second Amendment absolutists.
The fact is, a fundamental constitutional liberty is never absolute. It lives in a legal ecology with public interests and other liberties. It ends when it bumps up too hard against one of them.
Freedom of speech, for example, doesn't let anyone incite to riot or threaten the life of the president. Freedom of religion doesn't allow blood sacrifice in violation of animal cruelty laws. Freedom of the press doesn't give newspapers a free pass to print libel or obscenity or disclose the movements of troops in wartime.
All constitutional rights have their limits. The individual right to keep and bear arms, if recognized, won't be the exception.
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