Second Amendment
Issues Being Reconsidered
By Richard W. Crockett
The
Zephyr, Galesburg
On
November 24, the United States Supreme Court agreed to hear District of
Columbia v. Heller involving a
Washington D.C. gun law, passed in 1973 following the cityÕs being empowered
with home rule by congress. This
law restricts ownership of firearms. It has been 68 years since the court has
considered the issue of the Second Amendment and its reach in American
Constitutional Law. At that time
the court heard United States v. Miller (1939) and held that the Second Amendment does not protect
the right to possess a sawed off shotgun, with a barrel of less than eighteen
inches in length. Briefly, the
affect of the ruling was that the Second Amendment did not limit the power of
the states to regulate firearms, a power which is seemingly challenged by the
Fourteenth Amendment But now
the court is about to hear the Heller
case which may altar all of that.
However,
there is one issue that is new.
That issue is whether for the purposes of the Fourteenth Amendment, the
District of Columbia counts as a state, or is a separate entity, which is not a
state, but is a creature of the Federal government, and of Congress, and
consequently is restricted in the regulation of firearms by the Second Amendment.
But Congress is specifically empowered in the Constitution to create a district
Ònot more than ten miles squareÓ where they exercise Òexclusive legislation.Ó
If this be true, how can the District of Columbia escape the authority of the
Second Amendment? While this may not become the pivotal issue in this case, it
is one that muddies the legal waters. But it also may provide an out for the
Court, which allows it at once to cleanly outlaws the DC statute but not
interfere with the regulatory powers of the states over firearms. Such a ruling
could undermine much existing Federal law on the subject of firearms, including
the Brady Law, and other laws creating data bases of prohibited purchasers of
firearms If this is the
avenue chosen by the Supreme Court, it will not be necessary to decide the
question of whether the Second Amendment is also binding upon the states
through its doctrine of Òincorporation.Ó Still, proponents of gun regulation
may be fearful that the Supreme Court will use this as an opportunity for a
larger review of the Second AmendmentÕs status. But that statement may require
explanation. I wrote of this matter in an earlier issue of the Zephyr, and I am including some of what I wrote at that
time.
The
second Amendment to the U.S. Constitution provides that, Òa 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.Ó As part of the Bill of Rights, the second amendment appears
on its face to restrict only the national government from abridging the right
to keep and bear arms. This is
recognized as legal fact among scholars, and the authority usually cited for
this view is the beginning words of the first amendment. ÒCongress shall make no law. . . . Ó This
preface is interpreted to apply to all of the following amendments in the Bill
of Rights, and the Bill of Rights is binding upon the Congress and the national
government. Emphasis is upon the word, ÒCongressÓ and by implication with
language so specific, it appeared that states could make laws to abridge the right to keep and bear arms,
as well as other rights, but Congress could not.
A
second issue of interpretation of the Second Amendment in modern times is the
question of whether the protected rights under the amendment are ÒindividualÓ
rights or ÒcollectiveÓ rights. The
court of appeals, which struck down the D.C. statute, ruled that the rights
were individual rights. Proponents
of gun regulation usually argue that the rights in question are collective
rights, having to do with the Òwell regulated militia.Ó Opponents of gun laws
usually argue that these rights are ÒindividualÓ rights. Chief Justice John G.
Roberts said that this issue is a Òvery openÓ question, at his confirmation
hearing.
Following
the Civil War, the Congress sought to remedy the problem the Bill of Rights not
being binding upon the states by adding the Fourteenth Amendment. In the Fourteenth Amendment,
citizenship is defined, Òall persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside.Ó
This had not been done before, and citizensÕ rights were then stated. The language of the Fourteenth
Amendment continues, ÒNo State shall make or enforce any law which shall
abridge the privileges and immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without due
process of law, nor deny to any person within its jurisdiction the equal
protection of the laws.Ó The
states were now bound to honor the Bill of Rights. In this manner they fixed
the problem of state infringement upon the Bill of Rights as had happened
during slavery. Or, did they? The Supreme Court it turns out not only
articulates what the law means, but is also interested in management of the
Fourteenth AmendmentÕs implementation.
Incorporation is the name given to the method used by the Supreme
Court in allowing the Bill of
Rights to become binding upon the states on a case-by-case basis. On the face
of the matter to the layman, it should have happened the instant the Fourteenth
Amendment was adopted, but not so.
The legal process grinds slowly. And it has been a gradual process. It is understood that what is
ÒincorporatedÓ are the provisions of the Bill of Rights and it is said that
they are incorporated through the due process clauses of the Fifth and
Fourteenth Amendments. In other words, these Òdue process clausesÓ embrace or
include within their meaning the provisions of the Bill of Rights.
Two
amendments have not been incorporated. The Seventh Amendment, which guarantees the
right to a jury trial in suits at common law, involving more than twenty
dollars has not been incorporated as a restriction against the action of the
states. The other un-incorporated amendment is the Second Amendment. The affect
of this is that the states may make rules regulating firearms. Since
ÒincorporationÓ is crucial to restricting the power of the states, an
individual state could theoretically even outlaw firearms. But the national government could not,
because the Second Amendment prohibits that. The Supreme Court has ruled that the Second Amendment Òwas
not intended to limit the powers of the State governments in respect to their
own citizensÓ and Òhas no other effect than to restrict the powers of the
national government.Ó(1876) The court has permitted states to regulate militias
as described in the Second Amendment, but permitted the people to keep and bear
arms.(1886) In United States v.
Miller (1939) as mentioned above the
Court held that the Second Amendment does not protect the right to possess a
sawed off shotgun, with a barrel of less than eighteen inches in length. It remains that the Second Amendment is
not yet binding upon the states.
The
greatest irony in all of this is that the failure of the Supreme Court to
incorporate the Second Amendment and limit the power of states to regulate
firearms is consistent with conservative judicial philosophy, because it leaves
the issue to the states to regulate as they see fit. It is also consistent with
the largely urban, liberal wish to have gun control. This is of course
consistent with states rights doctrine, which in todayÕs world may be
politically obsolete. ÒIncorporationÓ
of the Second Amendment is what gun owners should want to see, in order to
minimize regulation of firearms. On the other hand, proponents of gun
regulation find themselves taking refuge in a conservative judicial philosophy,
which empowers the states at the expense of the national government. They should hope that the Supreme Court
does not reconsider whether the Second Amendment binding upon the states.
Thirteen states have filed briefs against the D.C. law, which may imply that
they have filed a brief against their own interest in regulating firearms if
the issue becomes one of whether the Second Amendment is to be
Òincorporated.Ó Four other
states are supporting the gun law.
Pediatricians, a group not known for their liberalism in many matters,
have filed a brief supporting the law while arms dealers as might be expected
have opposed it. Law as well
as politics seems to create strange bedfellows.
11/29/07