Wanted: A Straight Shooter

Shortly before the Thanksgiving holiday, the Supreme Court agreed to review a case from the Court of Appeals for the District of Columbia that invalidated a DC handgun ban. See Supreme Court to rule on right to keep handguns at home.

Gun control issues have received a lot of press lately in our area, both on a national and state level. Philadelphia is becoming known as Killadelphia because of out-of-control gun violence, yet the legislature in Harrisburg won't even consider even the mildest forms of gun control measures. Rendell can't sway panel on gun bills. The repercussions for even suggesting otherwise can be extreme. See A Chicken in Every Pot and a Gun in Every Home.

This, despite the fact, as I noted before, We're Number One, that "Pennsylvania leads the way with this ignominious 'honor' of having the highest black homicide rate in the country, with a per capita murder rate of more than six times the national average." Crime and violence -- mainly accompanied by guns -- has truly reached epidemic proportions, so much so that even a substantial majority of Pennsylvanians now support gun controls. STATE KEEPS SHOOTING BLANKS. Unfortunately, elected reprentatives in Harrisburg are owned by the gun lobby and they have long since ceased representing the interests of their constituents, so they frankly don't give a damn.

Our national gun fetish is no better.

The other evening, during dinner my husband (who is thankfully not a lawyer) and I discussed the pending Supreme Court case, as well as the likely outcome by the Court. Based upon his reading news articles and listening to radio and TV reports on the case, my husband concluded that the DC ban would certainly be held to be unconstitutional, since it infringes on the 2nd Amendment right to carry arms. He, like most people, believes that the Second Amendment restricts the government's ability to limit an individual's right to bear arms.

I tried to explain that the issue isn't that clearcut, that in fact the most recent Supreme Court case on the issue, suggests otherwise. As the LATimes article notes:

In its only ruling dealing directly with the 2nd Amendment, the Supreme Court in 1939 upheld a man's conviction for transporting a sawed-off shotgun across state lines and said these weapons had nothing to do with maintaining an effective state militia.

In their appeal, lawyers for D.C. cite this 1939 decision and argue that the words and history of the amendment show it was concerned with state militias, not individuals with guns. For example, the phrase "bear arms" is a military term, they say. The amendment "does not protect a right to own a gun for purely private uses," they maintain.

In fact, until the Bushies came along, the federal government's position on gun control was consistent with that view -- contrary to that which is espoused today. As with most of our constitutional rights, an argument can be made on either side of an issue. But back in the old ages (when I went to law school in the late 70s), this particular area of law was not the subject of much debate. As a Commentary on the Supreme Court blog, The government and gun rights, states:

More than five years ago, on May 6, 2002, the U.S. government told the Supreme Court — for the first time — that it had changed its decades-long position on gun rights. In footnotes dropped into two documents urging the Court not to hear two Second Amendment cases, the U.S. Solicitor General (then Theodore B. Olson) formally put before the Justices the government’s new support for an individual right to have guns for private use.

The footnote recalled that the government had previously argued in court filings that the Second Amendment “protects only such acts of firearm possession as are reasonably related to the preservation or efficiency of the militia.” But it then added: “The current policy of the United States, however, is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any military or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of firearms that are particularly suited to criminal misuse.”

Likewise, a recently reprinted Slate piece by Dahlia Lithwick , The Second Amendment, explained., reviewed the state of the law after then AG John Ashcroft announced a change in policy in 2001, finding "the state militia/collective rights test as a settled point of law:"

The Second Amendment provides that "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." The issue turns on whether that right to bear arms represents an "individual" or "collective" right. The NRA (and Ashcroft) advocate an affirmative individual right, akin to First Amendment free speech protections, granting us the right to have guns to hunt, protect ourselves, and hold government storm troopers at bay. Gun control activists and the Justice Department (save, apparently, for Ashcroft) hold that the right as it is codified in the Second Amendment only protects the states' authority to maintain formal, organized militias. Because the Second Amendment only concerns federal efforts to regulate firearms, state gun control efforts do not implicate the Second Amendment, and most gun laws are promulgated at the state level.

Of course, the irony is that Republicans only seem to assert the primacy of states' rights when dealing with the "Southern Strategy," otherwise -- not so much. The "less government" party now wants to wrest control of gun laws from the state level, so that it can dictate the rules (or lack thereof).

It hardly needs saying that the National Rifle Association has spent many years (and tremendous sums of money) promoting the idea that gun ownership is an inalienable right, subject to nary a limitation. In so doing, they have over time managed to convince the general public that this was as the original framers of our constitution intended. The relentless, persistent campaign has worked. Most people believe that is the accurate view of the 2nd Amendment.

Not so. As Kenneth Lasson writes on the op-ed pages of the Baltimore Sun, Pro-gun scholars twist Constitution:

But the blunderbuss proliferation of newly minted gun-rights advocacy perverts both the historical context and plain meaning of the Second Amendment.

Until 1989, virtually all law professors had endorsed the view that citizens have a collective right to raise an army but no inherent individual right to carry guns. Then the Yale Law Journal published a confounding essay by Sanford Levinson of the University of Texas that appeared to advocate "insurrectionist" theory - that the Second Amendment was designed to ensure the people's ability to confront a tyrannical government. In short order, Akhil Reed Amar of Yale and William Van Alstyne, then of Duke, published similarly ambiguous pieces (the latter suggesting that the right extends to handguns but not howitzers).

Buoyed by such high-profile support, the NRA undertook aggressively to promote still more friendly scholarship. In 1992, it funded Academics for the Second Amendment. In 1994, it launched an annual essay contest, offering $25,000 for the piece that best reflected its positions. In 2003, it gave $1 million to George Mason University School of Law to establish the Patrick Henry Professorship of Constitutional Law and the Second Amendment. More than 50 articles endorsing the individual right have been published in the last 15 years, many of them written by lawyers who worked for gun-rights organizations.

The impact has been substantial, as Lithwick notes:

Why do opinion surveys show that most American citizens believe in the individual rights position? Some legal scholars call this widespread public conviction a "hoax" and "false consciousness." Some contend that the NRA has done a spectacular job of spinning an individual right out of law review articles, John Wayne movies, and effective propaganda.

In fact, based upon the oft-repeated litany of the NRA, you would think that the "individual rights" view was beyond question. Yet, as Lasson observes:

The overwhelming weight of available historical evidence is that the Founding Fathers' primary concern was to empower state militias. Records of gun regulation in eight of the original 13 states - Maryland among them - strongly suggest that private ownership and use of firearms were not countenanced.

The Founders gave the first clause of the Second Amendment careful attention, revising it several times and considering it essential to the whole. Though the sentence can be parsed in a variety of ways, it's very hard to deny that the first clause modifies the one that follows - that the right to bear arms is dependent upon the need to maintain a well-regulated militia.

But, even assuming for the sake of argument, that the individual right to bear arms is in fact the intent of the 2nd Amendment, see, e.g., Supreme Court Agrees to Hear D.C. Gun Case -- which it no doubt will be when the conservative Supreme Court rules on this case sometime this spring -- that does not unnecessarily translate into an absolute prohibition on the right of the government to regulate their possession and use. See, The government and gun rights.

That, I think, has been my major problem with the position taken by the gun proponents. After all, I may be part of the anti-gun liberal lobby, but my spouse & I were both born and raised in Scranton, deep in the heart of gun country. We are steeped in a gun owning tradition. Our friends and family members are gun owners. Even today, the schools in Scranton are closed for the first day of hunting season.

What is most infuritating to me is the fact that the NRA and other gun advocates basically take the position that no laws can intrude upon the free and open possession, use (and misuse) of guns. Ownership is one thing. Lack of regulation is another. The NRA is drunk with its power to control the lack of laws and sadly, Killadelphia is living with the results of that mistaken stance daily.

One can only hope that the Supremes won't make it a free for all on guns.

Tags: Constitutional law, Law, 2nd Amendment, guns, Philadelphia, Philly, Commentary, Supreme Court