Legally Speaking: Gunning For a Change-The Court Takes Aim At The Second Amendment

John G. Browning Dec. 13, 2007, 9:22am

They are simple words � "the right of the people to keep and bear arms, shall not be infringed" � that liberal commentators have called "maddeningly ambiguous," even while justifying constitutional rights (like privacy) that go unnamed in the Constitution.

Yet for all of the controversy surrounding gun control laws, the Second Amendment has not been considered by the U.S. Supreme Court in nearly 70 years. All of that is about to change, as the highest court in the land announced recently that this spring it will review the case of Parker v. District of Columbia, the first federal appellate opinion to overturn a gun control law on the ground that the Second Amendment protects individual rights. A decision will likely be issued by early summer, set against the backdrop of a heated 2008 presidential campaign.

While it seems worlds away, the grand marble edifice that is the Supreme Court building is only a few blocks from the mean streets of Washington, D.C., which inspired the very law at issue in the case.

For 31 years, it has been illegal to buy, sell or own a handgun in our nation's capital; while residents may keep shotguns or rifles, they can do so only if they are stored unloaded and either disassembled or disabled with trigger locks.

Dick Heller, a 65-year-old security guard living in a drug-ridden, high crime Washington, D.C., neighborhood challenged the city's ban. For Heller, who is licensed to carry a weapon for his job guarding federal buildings, the law leads to a stunning and dangerous contradiction; after a day protecting federal employees, he must turn in his gun and return to a home he can't protect.

The District of Columbia's gun ban, while it may have stripped weapons from honest citizens, hasn't exactly reduced violence; Washington has one of the highest violent crime rates in the nation, and as of early December 2007, 169 people were murdered there this year. Shrugs D.C. attorney general Linda Singer (who argued in favor of the ban) "we would have far more guns in the city" without the law.

For decades, Americans in general and legal scholars in particular have argued about gun control laws and the meaning of the Second Amendment, which 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."

Did the Framers intend to protect an individual right to bear arms, or is this amendment an anachronism, intended to provide for long-defunct state militias but rendered meaningless today?

For years, the liberal press and academia have argued that not only is the Second Amendment an embarrassing relic from a bygone age, but that truly enlightened jurists should just void the thing, substituting judicial whim for the democratic process of debate and legislative deliberation.

They put forth anti-gun rights "scholarship" like the 2000 book "Arming America" by Emory University historian Michael Bellesiles, which "proved" that gun ownership was never a major part of American society and that America's "gun culture" is based on nothing more than a myth (which begs the question- what did the pioneers use to settle the frontier? Harsh language?)

Bellesiles' work became the darling of the liberal establishment, winning rave reviews from The New York Times as well as Columbia University's prestigious Bancroft Prize. There was just one problem: the whole thing was a sham, furthered with "evidence" that was either nonexistent or fabricated. The Bancroft Prize was revoked, and even New York Times commentator Garry Wills admitted "The book is a fraud."

For far too long, liberal legal scholars and judges have dismissed the Second Amendment as essentially a dead letter that protects a collective right to have self-armed private citizens (in the form of a militia) and not an individual right. In fact, prior to the U.S. Court of Appeals for the D.C. Circuit's March 2007 ruling striking down the District of Columbia's ban on guns, nine federal appeals courts had rejected this individual rights theory.

But in doing so, legal scholars and judges have tried to engage in a certain degree of intellectual dishonesty or at the very least, intellectual inconsistency. The same minds capable of interpreting the Constitution to find the most elusive of "rights" never envisioned by the Framers seem perfectly willing to overlook plain language when it doesn't suit their socio-political agenda.

Justice Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit summed up this inconsistency in dissenting from a 2003 ruling rejecting an individual right to keep and bear arms:

"Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that 'speech, or�the press' also means the Internet [for First Amendment purposes] and that 'persons, houses, papers and effects' also means public telephone booths [for Fourth Amendment purposes].

When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases�But�when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us�.Expanding some to �.gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it's using our power as federal judges to constitutionalize our personal preferences." (emphasis added)

If liberal scholars interpreted the Second Amendment the way they construed the rest of the Bill of Rights, we would have law professors arguing in favor of mandatory gun ownership. And why should the D.C. Circuit's opinion come as such a surprise, anyway? The Second Amendment is contained in the Bill of Rights- the section of our Constitution that deals exclusively with individual liberties. As if this point needed greater emphasis, the Amendment itself refers explicitly to "the right of the people."

The Court's 58 page opinion finds additional support in the Framers language: by pointedly guaranteeing a right to "keep" arms as well as to "bear" them, Justice Silberman says, our Founding Fathers chose a term implying ownership or possession of a functioning weapon by an individual for private use. In writing for the court's majority, Silberman convincingly argues that the Framers, fresh from the overthrow of the British monarchy, saw the Second Amendment as a way of codifying a natural right to private use of firearms for not just putting food on the family table but also defending against the "depredations of a tyrannical government."

In what might prove to be a preview of the Supreme Court's analysis, the D.C. Circuit doesn't take the position that Second Amendment rights are absolute. After all, freedom of speech doesn't grant carte blanche for hate speech or libel, any more than freedom of religion would protect human sacrifice. The appeals court acknowledged that Washington D.C. might be able to justify reasonable regulations in the name of public safety, such as requiring proficiency testing, registration requirements, or concealed-carry restrictions.

As with so many of the issues tackled by the Supreme Court, the swing vote next spring could come down to Justice Anthony Kennedy. If the justices reject the D.C. Circuit's position that there is an individual right to gun ownership, then the District of Columbia's ban and presumably other federal, state and local gun-control measures will remain intact. The Court might also take a partial stance- adopting the individual rights view but nevertheless upholding the D.C. ban as a reasonable public safety measure.

But the possible outcome that has many observers monitoring this closely (not to mention the support of D.C.'s appeal made by states heavily invested in gun control, like Illinois and New York) is the chance that the Supreme Court will affirm the D.C. Circuit and strike down Washington's ban. If that happens, there will likely be a wave of lawsuits attacking the constitutionality of gun control measures currently in effect in cities and states across the country.

Those who founded this great nation knew firsthand the value of individual freedoms, including the freedom to disagree with an existing government and the right to keep and bear arms as a check against tyranny.

While it has been a persistent and tragic irony that for 31 years the residents of our nation's capital haven't been able to share in this freedom, the days of liberal academics and jurists cherry-picking individual rights from the Constitution may be numbered.

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