December 09, 2007
Gun Control vs. Gun Rights
Restricting arms ownership reasonable
Suspected bank robbers Jack Miller and Frank Layton were long scoped out by federal authorities. On April 18, 1938, they were arrested in Arkansas for carrying an illegal sawed-off shotgun. Their lawyers claimed the law requiring registration of the firearm violated the Second Amendment's guarantee of "the right of the people to keep and bear arms." A district court agreed. But the case went to the U.S. Supreme Court.
The court's unanimous opinion was unequivocal: The Second Amendment was designed as a collective right to bear arms, for individuals involved in state militias -- not as an individual right. Just to be clear, Justice James Clark McReynolds, explaining the decision from the bench the morning he delivered it, said: "We construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia."
The 8-0 opinion included Charles Evans Hughes who, like McReynolds, was a staunch conservative; Louis Brandeis, the court's most liberal voice; Hugo Black, the Antonin Scalia-like literalist of his day; and Felix Frankfurter, a fanatic of judicial restraint.
Perhaps that's why, with that sort of cross-cut unanimity, the court hasn't often felt the need to pick up a Second Amendment case (it has done so directly all of five times, including three in the 19th century), while lower courts overwhelmingly interpreted the amendment as a collective, rather than an individual, right. Perhaps that's also why the Justice Department in 2002, led by then-Attorney General John Ashcroft, made headlines when it unilaterally decided to interpret the Second Amendment as attorneys for Jack Miller and Frank Layton had in their failed defense in 1939.
The Bush administration has narrowed its interpretation of numerous constitutional guarantees. Its interpretation of the Second Amendment is the only exception. The reinterpretation had serious implications, especially in relation to a 1975 ordinance in Washington, D.C., that bans the possession of handguns outright. On Nov. 20, the Supreme Court agreed to hear a case challenging D.C.'s ban, which an appeals court found unconstitutional in March.
A head-on clarification of a constitutional right should never be feared. Interpreting the law is what the Supreme Court does. Second Amendment law is ripe for interpretation because over the decades, the states have used the absence of a clear, modern ruling to carve out their own interpretations. The worry with Chief Justice John Roberts' court is that the 1939 precedent will be merely advisory. Still, it's difficult to imagine even this sometimes reactionary court endorsing a locked-and-loaded reading of the Second Amendment.
No reading supports the opinion that it grants an individual right to bear arms except when the individual is part of an organized group -- a militia or the military. If anything, it's the only amendment that explicitly endorses government regulation on top of a narrowly defined right, for good reason. Assume that individuals had the right to bear arms without regulation. Does that mean individuals have the right to have armories in their basements? Anti-aircraft guns in their backyards? Scud missiles on the family farm? Of course not.
Historically, courts, state and federal legislatures have imposed reasonable limits on the possession of firearms, such as assault weapons between 1994 and 2004. Whether the ban works or not to stop crime is a separate issue. The question is whether government has the authority under the Constitution to impose bans or require that guns be registered or kept locked. It clearly does.
That's not to say that there isn't a case to be made for expanding the individual's right to bear arms. But strict regulations also should be assumed. The First Amendment, after all, has none of the regulatory language of the Second. But limits and regulations on speech -- from libel and slander laws to broadcast regulations to truth-in-advertising and campaign-advertising requirements -- fill a book. The Second Amendment, its importance and value as unquestioned as the rest of the Bill of Rights, needs its own well-regulated book.
Gun Control vs. Gun Rights
Restricting arms ownership reasonable
Suspected bank robbers Jack Miller and Frank Layton were long scoped out by federal authorities. On April 18, 1938, they were arrested in Arkansas for carrying an illegal sawed-off shotgun. Their lawyers claimed the law requiring registration of the firearm violated the Second Amendment's guarantee of "the right of the people to keep and bear arms." A district court agreed. But the case went to the U.S. Supreme Court.
The court's unanimous opinion was unequivocal: The Second Amendment was designed as a collective right to bear arms, for individuals involved in state militias -- not as an individual right. Just to be clear, Justice James Clark McReynolds, explaining the decision from the bench the morning he delivered it, said: "We construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia."
The 8-0 opinion included Charles Evans Hughes who, like McReynolds, was a staunch conservative; Louis Brandeis, the court's most liberal voice; Hugo Black, the Antonin Scalia-like literalist of his day; and Felix Frankfurter, a fanatic of judicial restraint.
Perhaps that's why, with that sort of cross-cut unanimity, the court hasn't often felt the need to pick up a Second Amendment case (it has done so directly all of five times, including three in the 19th century), while lower courts overwhelmingly interpreted the amendment as a collective, rather than an individual, right. Perhaps that's also why the Justice Department in 2002, led by then-Attorney General John Ashcroft, made headlines when it unilaterally decided to interpret the Second Amendment as attorneys for Jack Miller and Frank Layton had in their failed defense in 1939.
The Bush administration has narrowed its interpretation of numerous constitutional guarantees. Its interpretation of the Second Amendment is the only exception. The reinterpretation had serious implications, especially in relation to a 1975 ordinance in Washington, D.C., that bans the possession of handguns outright. On Nov. 20, the Supreme Court agreed to hear a case challenging D.C.'s ban, which an appeals court found unconstitutional in March.
A head-on clarification of a constitutional right should never be feared. Interpreting the law is what the Supreme Court does. Second Amendment law is ripe for interpretation because over the decades, the states have used the absence of a clear, modern ruling to carve out their own interpretations. The worry with Chief Justice John Roberts' court is that the 1939 precedent will be merely advisory. Still, it's difficult to imagine even this sometimes reactionary court endorsing a locked-and-loaded reading of the Second Amendment.
No reading supports the opinion that it grants an individual right to bear arms except when the individual is part of an organized group -- a militia or the military. If anything, it's the only amendment that explicitly endorses government regulation on top of a narrowly defined right, for good reason. Assume that individuals had the right to bear arms without regulation. Does that mean individuals have the right to have armories in their basements? Anti-aircraft guns in their backyards? Scud missiles on the family farm? Of course not.
Historically, courts, state and federal legislatures have imposed reasonable limits on the possession of firearms, such as assault weapons between 1994 and 2004. Whether the ban works or not to stop crime is a separate issue. The question is whether government has the authority under the Constitution to impose bans or require that guns be registered or kept locked. It clearly does.
That's not to say that there isn't a case to be made for expanding the individual's right to bear arms. But strict regulations also should be assumed. The First Amendment, after all, has none of the regulatory language of the Second. But limits and regulations on speech -- from libel and slander laws to broadcast regulations to truth-in-advertising and campaign-advertising requirements -- fill a book. The Second Amendment, its importance and value as unquestioned as the rest of the Bill of Rights, needs its own well-regulated book.
