Supreme Court Poised to Rule on the Second Amendment

Last October 14^th, I posted an article on AssociatedContent, stating that a re-examination of the Second Amendment to the Constitution and the concept of gun control were overdue. The needs and demands of the eighteenth century, when the Second Amendment to the Constitution was drafted, are not totally applicable to current society. The proponents of gun control and those in favor of a virtually unfettered right of an individual's right to own a gun unfortunately tend to think in terms of slogans and bumper stickers. Others profess to be hunters who choose to search for their food rather than visiting the local supermarket, establishing their ability to conquer unarmed deer.

The Second Amendment has engendered controversy and argument that far exceed the length of the Amendment itself. The Amendment states, in full: "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."

Contextually, this amendment is unique. Each of the other provisions of the Bill of Rights creates a limitation on the power of Congress to take certain actions. No qualifying terms are used, no "reason" for the prohibition is offered. (Parenthetically, there is a similar qualifier or rationale in the Decalogue. Among the prohibitions, one must not kill, lie, steal, covet, and so forth is the direction that one should "honor mother and father". This is a positive command and is accompanied by the explanation, ". . . so that your days may be long. ")

So, what is the purpose of the qualifying phrase, "A well regulated militia being necessary ..."? Is the Amendment designed to provide for an organized militia with which the nation's safety can be secured or is it a guarantee that each individual has the right to possess a firearm. Those opposing any restriction on gun ownership commonly choose to ignore the qualifying phrase.

The answer is, likely, both, with the major emphasis on the former. To really understand the Second Amendment, one must appreciate the context in which it was drafted, the societal conditions of the eighteenth century and the historical experiences that made it important.

If anyone is interested in the historical background of the Amendment and its qualifying phrase, my earlier article may be helpful.

The only Supreme Court case directly in point is United States v Miller, decided in 1939. Jack Miller and Frank Layton were bank robbers and makers of moonshine They were arrested for transporting a sawed-off shotgun in violation of a Federal Firearms Act; their defense was that they had a right to "bear arms" under the Second Amendment. The Court, in a confusing decision that all sides of the gun debate claim to be in their favor, held that some restrictions on gun ownership was allowed and, in any event, a sawed-off shotgun was not a weapon used by a militia.

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

The District of Columbia found itself in 1976 awash in homicides, armed robbery and guns, lots of guns. The District enacted an ordinance that banned handguns under most circumstances, required guns in a private home to be stored disassembled, unloaded or secured by a trigger lock. There were some exceptions but, generally, the District's ordinance was one of the most stringent in the country.

A few years ago, six residents of the District of Columbia brought suit in the District Court challenging the ordinance. Shelly Parker, Tracey Ambeau, Tom Parker and George Lyon wished to keep a handgun in their respective homes for self defense; Gillian St. Lawrence has a shotgun at home but objected to having it disassembled and with a trigger lock; Dick Heller, a guard at a Federal Courthouse wanted to keep a handgun at home.

The District Court dismissed the petition on the ground that the bearing of arms guaranteed by the Second Amendment was related to participation in an organized militia. On appeal, in which briefs were submitted by all sorts of advocacy groups and the Attorneys General of many states, the Court of Appeals reversed, holding, in effect, that the qualifying phrase had no practical meaning.

It now appears that the United States Supreme Court has accepted this case for review, limited to this sole issue:

Whether the provisions of the statute "violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

The Supreme Court has agreed to review the Circuit Court's decision; oral argument will likely be scheduled for next spring, with a decision likely at the start of summer.

Both the advocates of gun control and the National Rifle Association are uneasy about the future ruling, the first to face basic interpretation of the Amendment since 1939. Moreover, the platforms of several Republican presidential hopefuls cite gun ownership as being almost sacred.

Into this mix and political atmosphere, a Supreme Court ruling could be as disruptive as Roe v Wade and the anti-discrimination cases of the 1950's.

There are no certainties on how the Court will decide - or even if the Justices sidestep the issues and treat the case narrowly. As of now, it is believed that Justices Ginsburg, Stevens, Souter and Breyer would be inclined to consider a right to bear arms to be a collective one related to a militia. Justices Scalia, Thomas, and Alito are believed to allow a broad right to bear arms; the Chief Justice has criticized the Miller case and would probably go along with the latter group and Justice Kennedy's position is unknown!

Stay tuned. It should be an exciting summer.