Preview: The Second Amendment case

By Lyle Denniston
on Nov 2, 2007 at 6:05 pm

Nearly seven decades ago, the Supreme Court analyzed the meaning of these words: “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.” Those are the words of the Second Amendment, written into the Constitution on Dec.15, 1791. The Court has not examined the meaning of those words since the ruling in U.S. v. Miller, on May 15, 1939. The debate over what the Court meant — and over what those words mean — has continued with growing intensity. Still, the Court has refused repeatedly to resolve the constitutional debate. The occasion for it to do so may have arrived. Both sides, in District of Columbia v. Heller (07-290), have asked the Court to grant review. The case is a pure, and outwardly simple, test of the Second Amendment — although there are complications that might limit the scope of any final decision. The Court is expected to take its first look at the Heller case at its private Conference on Friday, Nov. 9. At the same time, the Court will consider a cross-appeal, Parker v. District of Columbia (07-335), by five District of Columbia residents seeking to enter the case as parties. The post below previews the Court’s examination of the two appeals.

Background

“Guns” – a single word, but one that is powerfully packed with controversy, and with social and political meaning. In America’s culture wars, that word is as capable of stirring up emotions as is the word “abortion” or the simple phrase “gay rights.” Americans have been arguing about access to guns since before they had a national government and a federal Constitution. And their English forebears were at odds over that issue even before the reign of Charles II in the middle 1600s. It is part of the American heritage, and of the American national psyche, to be agitated over guns.

Harvard law professor Mark Tushnet has written that “the fights over the Second Amendment are really about something else…about how we understand ourselves as Americans.” The Supreme Court, if it agrees to hear the District of Columbia controversy, will not even attempt to supply such an understanding. At most, it would provide only a legal – a constitutional – definition. It has the option, it it takes on the controversy, of ruling on a grand scale, or on a quite modest one. Whatever it may be able to do — and however divided a final decision might be — that review, if undertaken, could shape in a significant way what it means to talk of, or legislate about, “gun rights.”

The 1939 case of U.S. v. Miller was about a double-barrel, 12-gauge shotgun. carried from Claremore, Okla., to Siloam Springs, Ark., by Jack Miller and Frank Layton, apparently in violation of a federal gun registration law. Miller and Layton defended themselves by claiming a Second Amendment right to have the gun. They lost their case in a unanimous Supreme Court decision. The exact meaning of that ruling is still very much in dispute. The new case of District of Columbia v. Heller is about a handgun, a pistol, that Dick Anthony Heller would like to keep in his home in Washington, D.C. He tried to register it with the city, but was turned down — the city has banned the registration, and thus the possession, of all privately owned handguns. Heller, like Jack Miller and Frank Layton, argues that he has a Second Amendment right to have the gun in his home for self-defense; he says he lives in a high-crime neighborhood. Heller, so far, is winning.

The D.C. Circuit Court, dividing 2-1, ruled last March 9 that Dick Heller has a Second Amendment right — an individual, personal right — to have that gun, and to keep it at home, loaded and unlocked. “Once it is determined that handguns are ‘Arms’ referred to in the Second Amendment, it is not open to the District to ban them,” the Circuit Court ruled — the first time that any federal appeals court has relied upon the Second Amendment and an “individual right” theory to strike down any law that seeks to control guns. “We conclude,” the Circuit Court majority said, “that the Second Amendment protects an individual right to keep and bear arms.”

The Court ruled that only Heller, among the six local residents who challenged the handgun ban, had a sufficiently strong interest in the case that he had “standing” to sue. It is that part of the ruling that is under challenge in the cross-appeal by the five other Washingtonians.

Washington’s Mayor Adrian M. Fenty and the city government have told the Supreme Court that the city has been regulating handguns “and other dangerous weapons” since 1858. Three years after the nation’s capital city was freed in 1973 to make its own laws (rather than have Congress legislate for it), the City Council passed the gun law that is now before the Supreme Court. That 1976 law, forbidding registration of any gun “originally designed to be fired by use of a single hand,” was the result of what city officials now call “a targeted effort to prevent needless death and injury from that class of weapons.” Handguns, city officials believed then and now, “pose a particularly serious threat to public safety” — both because of the potential for accidents, especially involving children, and the potential for rampant use by criminals.

Analysis

The conventional reason that the Supreme Court often relies upon in agreeing to hear a dispute, including a constitutional controversy, is present in the Heller case: the federal appeals courts are split on what the Second Amendment means. Moreover, in an unusual twist, the District of Columbia’s own highest court, the local Court of Appeals, disagrees with the D.C. Circuit on the question, so the conflict is vivid in Washington..

One other federal appeals court, the Fifth Circuit Court, has read the Second Amendment to embrace a private, individual right, but it did not go ahead and use that theory to strike down a federal gun control law at issue there. All other federal appeals courts have taken a turn at analyzing the Amendment, and all but one (which did not take a conclusive position) have said that the Amendment only protects the right to have a gun when serving in a state militia or a modern equivalent — such as the National Guard.

It is a somewhat curious facet of the history of the Second Amendment that, unlike most of the other parts of the Bill of Rights, it simply does not apply to state or local laws. Thus, the numerically much greater array of state laws on gun control — such as laws against carrying a concealed gun — are not immediately affected by the Amendment, however it is interpreted.

In a process that began in the late 19th Century, the Court has “incorporated” almost all of the other guaranteed constitutional rights into the scope of the Fourteenth Amendment, thus applying them as limits on state and local government activity. But the Supreme Court has never reconsidered an 1886 decision, in Presser v. Illinois, saying that the Amendment is not binding on the states.

Thus, the jurisprudence of the Second Amendment is almost wholly confined to laws enacted by the federal government. The District of Columbia is something of a governmental curiosity, and that could complicate Supreme Court review of its handgun ban. While the District is considered by Congress to be a state for some purposes, that is not universally the situation. In the Heller case, the D.C. Circuit ruled that the Second Amendment does apply to the District because the city “is a Federal District, ultimately controlled by Congress…The Supreme Court has unambiguously held that the Constitution and Bill of Rights are in effect in the District.”

That part of the ruling raises these potential issues: First, is the District, as the seat of the national government, not a “free State” of the kind mentioned in the Second Amendment so the Amendment’s guarantee of access to arms for a state “militia” does not even apply; second, is it a state like all of the regular states and thus, because of the 1886 decision in the Presser case, the Amendment does not apply; and, third, is it a unique federal enclave that — like the rest of the federal government — does have to obey the Second Amendment?

The city’s appeal does not spend much time on those issues; it is interested in having an answer on the meaning of the Second Amendment because that is what divides the lower courts, but says that, whatever that meaning turns out to be, it should not outlaw the handgun ban.  The challengers to the local law certainly do not want the questions raised; they need to rely on the Amendment to win. Still, the questions are presumably within the Court’s reach if it wants to examine them, because they were addressed in the lower court. Thus, should the Justices find that the Amendment does not even apply, then it would never get to a ruling on what the Second Amendment covers, or on the constitutionality of the city’s handgun ban.

The city also does not contest Dick Heller’s right to have sued over the pistol ban. But that is open to the Court to question, if it wishes. Should the Court grant the cross-appeal to examine who has “standing” to bring pre-enforcement challenges to District of Columbia or federal laws, that could put more focus even on Heller’s right to sue. It may be something of a reach for the Court to opt to address the “standing” issue because it is common to leave alone the question of others’ right to have sued, if one in the group was entitled to bring the case.

There is another facet of the case that could produce a decision without a final declaration on what the Second Amendment means. The Court could say that, whatever the outer limits of authority are allowed by the Amendment, it does not forbid “reasonable regulation” of gun possession. That could lead it to focus solely on whether the flat ban on handguns was “reasonable.” That might settle nothing on the issue of whether there is an individual right guaranteed by the Amendment.

And there is still a further complication that could confront the Court: the two sides do not agree on what question should be before the Court on the Second Amendment. The city phrased it as a test of its power under the Amendment to ban pivate possession of handguns “while allowing possession of rifles and shotguns.” That is, comparatively, a narrow question, since it suggests that the city had no intention of totally disarming its citizens.

Because the challengers interpret the D.C. gun law as broader than a ban only on pistols, they have suggested that the Court address a broader question — whether the Second Amendment guarantees a right to have “functional firearms, including handguns.” The city law, they note, requires that any gun being kept at home — including a rifle or shotgun — must be kept disassembled or have a lock on the trigger. The law, they argue, is “a complete prohibition of the possession of all functional firearms” at home. This would take the Court more deeply into the intricacies of the local law; that, of course, may not be a deterrent to the Court’s review. It depends upon how basic the Court wants its inquiry to be.

The cross-appeal by the local residents raising the “standing” issue grows out of a controversy that has continued for more than a decade in the D.C. Circuit. It involves Circuit precedent that limits the right to bring a lawsuit to challenge a law, requiring proof that the challenger faces a specific, personal threat of being prosecuted. This, the residents’ appeal argues, allows government officials to avoid review of a potentially invalid law simply by not issuing threats of prosecution. The key precedents, perhaps by coincidence, have come in earlier attempts to challenge federal or D.C. gun control laws — including, as it happens, an earlier, failed attempt to challenge the same handgun ban at issue now.

As a result of the “standing” doctrine against pre-enforcement challenges, the residents’ appeal asserted, officials can talk broadly about how rigorously they will enforce a law, and yet avert a challenge simply by not arresting or actually prosecuting those who seek to sue. That puts a “large class of cases” beyond judicial review, the appeal argued. “In demanding individualized threats of prosecution, a pre-enforcement challenge is virtually always too early,” it said.

The city has opposed Supreme Court review of this issue, saying it would complicate the Second Amendment dispute and noting that the Supreme Court as recently as January 2006 refused to review one of the D.C. Circuit’s precedents on the issue involving this same law.

Other filings in the cases

If the Court grants review of the Heller case, it almost certainly will draw a wide array of amici filings. At this stage, the list is short. Four states, however, have sought to make the stakes seem higher even though the Second Amendment does not now apply to limit state and local gun control laws. The D.C. Circuit decision, those states argued, “has the potential to influence judicial interpretation of both the Second Amendment and state constitutional provisions.” They urged the Court to reject the appeals court’s rationale, and to reaffirm the “states’ traditional authority to protect public safety through the exercise of the police power to restrict access to certain types of firearms.”

A group of childrens’ rights organizations support the city’s appeal, arguing that handguns pose a particular threat to “children’s physical and mental health.” Gun-related injuries, those groups contended, have a major impact on the nation’s public health system.

Joining in urging the Court to resolve the Second Amendment issue is a conservative advocacy group, the American Civil Rights Union. In doing so, it supports the challengers, urging the Justices to uphold the ruling against the city’s handgun ban. That group also questions the city’s claim that the handgun ban has helped control crime.

The ACRU also supports Supreme Court review of the “standing” issue raised in the cross-appeal. Nothing would be gained, it asserted, for someone to have to violate the law in order to test the constitutionality of the gun ban. Also supporting the cross-appeal are a coalition of gun show promoters and advocacy organizations that support an individual right interpretation of the Second Amendment.

Merits Briefs

One point emerges with utmost clarity in the large file of written arguments in this case: consensus is so totally lacking on all of the major issues that the Justices essentially will be on their own in interpreting the core meaning of the Second Amendment. The choices are presented as either/or, with little or no nuance or subtlety. The lengthy merits briefs of the two parties, plus 67 friend-of-Court briefs, run in totally opposite directions on what the Founding parents had in mind in writing the Amendment, on the application of the Amendment to the District of Columbia (and, impliedly, to the states), on the social science findings about whether gun control reduces violence, and on the constitutional meaning – if there is any – in Congress’ frequent adoption of gun control laws.

Of course, popular and academic views about the Second Amendment have been polarized for decades, but the stark display of such complete opposites in legal reasoning – expressed in a single case – may well make the Court’s task more difficult. From the briefs, it would seem that the Court, having not ruled on a Second Amendment case in almost 69 years (and, even then, having ruled somewhat uncertainly), is being urged to make the grandest of constitutional pronouncements at the first real opportunity, Where in that fundamental disagreement does a Court find room for compromise sufficient to gather five votes – unless it would be to bypass all of the big issues, and settle for something that would decide only the constitutional status of that governmental novelty, the District of Columbia? That, of course, is the alternative issue that the District government and its mayor put forth in their brief, arguing that the Amendment simply does not apply in the federal city; that might be the narrowest issue that a Court somewhat inclined toward minimalist rulings could find in the case (unless it could generate a “standing” issue, which is not contested). To be sure, the District’s status, too, is vigorously contested.

The core issue – what is the nature of the “right” that the Second Amendment recognizes, and thus what was intended by the Amendment’s authors – is the most disputed point, as was expected. The city government ties gun possession rights solely to a military context; the challengers to the D.C. handgun ban tie it to personal liberty, as with other parts of the Bill of Rights. The arguments on this point in the two main briefs are lengthier, especially in their treatment of early American history, but the substantive dispute is no different than at the petition stage. (For a fuller discussion of the uses of history in the written arguments in this case, click here.)

Even if the Court should opt for an individual, private right to have guns, the two main briefs divide on how to judge when such a right were violated by a gun control law. The city government backs a reasonableness standard, the gun rights challengers favor “strict scrutiny.” And, it is no surprise, applying the standards that each advances would determine the fate of the handgun ban in the District.

About the only point on which there appears to be at least surface agreement between the two main contestants is that the Court does not have before it, in this case, any question of whether the Second Amendment applies to the states (through “incorporation” into the Fourteenth Amendment’s due process clause). But there are implications that might affect that issue, sooner or later, in both of the main briefs: the city, given its view of the purpose of the Amendment, suggests it was designed to protect the states not to “constrain [their] prerogatives”, while the challengers’ expansive view of the private, individual right could not easily be limited to a right running against the federal government alone.

The amici filings in the case (19 for the District, 47 for the challengers to the handgun ban, and one for the federal government purportedly not taking sides) not only echo the foundational disagreement on display in the parties’ briefs, but extend it considerably. There has been much focus on the Justice Department brief – including a recent newspaper column (apparently from inside the White House) suggesting that the government may abandon some key parts of it at the oral argument. Disturbed by the Solicitor General’s refusal to back them down the line, the challengers to the D.C. law list the Department brief on their website as supporting the District. Solicitor General Paul D. Clement urged the Court to find an individual right to privately possess handguns for self-defense in the home, but also suggested that the D.C. Circuit Court was wrong in using a hard-and-fast rule and should be told to reconsider, using a more flexible standard. There is much in the amici filings that expresses the outrage of the gun rights community to the Solicitor General’s position. The D.C. challengers are mild, by comparison, in their response to the Solicitor General, leaving the harsher judgments to amici – especially the adjective-filled brief of the Goldwater Institute, a conservative research and advocacy group (accusing the government, for example, of an “uncomfortable straddle” and of advancing arguments that fail both on principle and logic or that rise from “flawed premises”).

The other amicus filing that has drawn considerable notice is one by Vice President Cheney, in his role as presiding officer of the Senate, along with a majority of the members of each the House and the Senate. That brief explicitly endorses the Circuit Court ruling, thus advocating a nullification of the handgun ban. (The brief was written by Fairfax, Va., attorney Stephen P. Halbrook, who for years has been writing tracts advocating the individual rights view of the Second Amendment.) One of the main thrusts of that brief is that the history of Congress’ legislation on gun regulation shows a clear pattern of favoring the individual rights view. Naturally, that interpretation of the congressional activity is directly disputed by a brief filed by 18 current Democratic members of the House. That brief suggests that Congress has not felt constrained by the Second Amendment in enacting a wide array of gun control laws.

Among the amici filings are dueling arguments, on each side of the issue, from former high-ranking officials of the Justice Department. There are directly contradictory interpretations of the impact of gun control on violence. There are pro and con arguments on whether guns cause, or prevent, more violence against women, gays, racial and religious minorities, the elderly, and the disabled. There are totally contradictory interpretations of the Court’s 1939 and 19th Century rulings on the Second Amendment – and dueling interpretations of whether the current Court should feel bound, under a theory of stare decisis, by any of those rulings. The state governments, and prosecuting attorneys, also line up on both sides, with differing views on the impact that a ruling in the D.C. case will have on state power to pass gun-regulating laws.