Lock your doors! Turn out the lights! The Supreme Court is considering the Second Amendment!

There has been a great deal of consternation in the blogosphere lately about the Bush administration siding with Washington, D.C. in D.C. v. Heller, the gun ownership case currently before the Supreme Court:


http://armsandthelaw.com/archives/2008/01/government_file.php


http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=59674

As you probably know, conflict over interpretation of the Second Amendment has traditionally been among two camps. On one side are those who stress the "well-regulated Militia" portion of the text and hold that this means there is only a collective right of society to maintain a militia or a modern equivalent such as a national guard. To them, there is no individual right to posess firearms spelled out in the Constitution. On the other side are those who stress the "right of the people to keep and bear Arms" portion of the text and insist that this does make gun ownership an individual right. (See generally Sanford Levinson's The Embarrassing Second Amendment 99 Yale Law J. 637 (1989), reprinted in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Robert J. Cottrol, ed., New York: Garland Publishers, 1994.)


Clearly David Hardy is in the individual right camp. But so too is the Bush Administration he criticizes in the first link above. In the spring of 2001, the first Bush Attorney General, John Ashcroft, wrote to the Executive Director of the NRA, assuring him "Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms," see H. Richard Uviller and William G. Merkel The Militia and the Right to Arms, or How the Second Amendment Fell Silent, Durham, NC: Duke University Press, 2002, p. 218. Ashcroft reiterated this position in a memorandum he sent to all United States' Attorneys later that year endorsing the ruling in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). He wrote:


"Emerson is... noteworthy because... the Fifth Circuit undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment 'protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and beartheir own firearms. . . . The Court’s opinion also makes the important point that the existence ofthis individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse. In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment."


http://www.usdoj.gov/osg/briefs/2001/0responses/2001-8780.resp.pdf , see p. 26


Has there been a right turn in the Justice Department? Are they now asserting that the Second Amendment is a collective and not an individual right?


No. The Department's Heller brief, which Hardy's website links, makes it clear that the position the Bush Justice Department took in Emerson is still in effect,


http://armsandthelaw.com/archives/07-290tsacUnitedStates.pdf , see p. 5.


So at least for the remainder of this Presidential administration, there is no debate in the Executive offices whether the Second Amendment is a collective right or an individual right. The individual rights position--David Hardy's camp--is the official stand of the U.S. government. The current disagreement between David Hardy and the DOJ is on just how much--or how little--the government can interfere with that right and not a conflict over interpretation of the Second Amendment per se.


That's not to say that when the Supreme Court issues a ruling in Heller, they won't reject the individual rights interpretation currently in vogue. After all, no High Court Justice ever wrote in a judicial opinion that the Second Amendment protected an individual right until 1997, when Clarence Thomas did so in a concurrence, Printz v. United States 521 U.S. 898, 938, see also Uviller and Merkel, p. 13. If the majority does rule consistent with Thomas's 1997 view, look for a dissent by two or three justices arguing that the Second Amendment is only a collective right.


It's certainly possible, however, that in Heller the Court will skirt the issue on the range of Second Amendment interpretation and go directly to consideration on the facts of the case. And if in this or any subsequent cases, it becomes a matter where a plaintiff has to show that the government is unduly infringing on the right to possess firearms, history suggests that the standard for showing that gun regulations are overly burdensome is going to be quite stiff.

Firearm regulations, you see, have been stringent for a long time. I've heard NRA members argue, and I'll bet you have too, that if the government gets its foot in the door with the most minimalist laws on the possession of guns, it will pave the way towards making it harder and harder to acquire weapons, and ultimately perhaps impossible to do so. What this view misses is that gun laws have a long heritage; regulation isn't just something hippies thought up in the late sixties. Nearly a century ago, Oregon passed a law not only requiring a permit to own a handgun, but also mandating that a pistol owner must have two written affidavits of good moral character. New York State in 1911 declared that no one in an urban area could own a gun without a license, and also that gun sellers must keep records and refrain from selling to anyone who could not produce a permit. Michigan in 1925 enacted legislation that required a permit to carry a concealed weapon. Furthermore, said the Wolverine State, you must be a "suitable" person" and have "reasonable cause" for a concealed weapon before you would be issued one. (See Lawrence M. Friedman, American Law in the 20th Century, New Haven, CT: Yale University Press, 2002, p. 241.)

I'm rather certain that the notion of Michigan or any other government deciding whose cause to carry a concealed weapon is "reasonable" or not is precisely the type of government intrusion into weapons possession that troubles the NRA and Mr. Hardy. That's their right; this is America and we generally believe in limited government. But the twentieth century historical record is, I would argue, far more significant as a means of determining which regulations are permissible and which are unreasonably onerous than a debate on exactly what James Madison and his friends meant when they created the Second Amendment in the eighteenth century.

And anyway, no right, not even those in the Bill of Rights, is absolute. Oliver Wendell Holmes famously observed that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic," Schenck v. United States 249 U.S. 47, 52 (1919). It would be peculiar to hold that protection of gun rights must be so stringent as to protect a man who carries an unlicensed concealed weapon to the theater.