SCOTUS Opportunity on 2nd Amendment today
posted at 1:55 pm on March 18, 2008 by Ed Morrissey
The Supreme Court hears arguments today on the Washington DC gun ban, a case that presents the biggest opportunity in 70 years to define the application of the 2nd Amendment. Is the right to keep and bear arms an individual right, or a right of communities to arm themselves only in the context of organized militias? John Lott takes a look at the issues involved and the opportunity the Court has to settle the long-running argument:
A Gallup poll in February found that 73 percent of Americans believe that Second Amendment protects an individual right. On top of that, 305 members of Congress, 31 states, and the Department of Justice all make the same claim. Support is bipartisan. On the other side, only a minority of Democrats — 18 members of congress and attorney generals from five states — signed briefs arguing that it isn’t an individual right.
Even among presidential candidates, Hillary Clinton, John McCain, and Barack Obama all reach the conclusion that there is an individual right to owning guns. Prominent liberal Democratic legal academics such as Akhil Amar, Sanford Levinson, and Laurence Tribe have reached similar conclusions.
Perhaps all this is not surprising given that the Second Amendment is part of the Bill of Rights, and everyplace else in the Constitution that discusses “the right of the individual” the Supreme Court has consistently interpreted this phrase to mean precisely what it seems to mean, that an individual right, not the right of the government, is protected. Even if there were any remaining doubt, the debate over the 14th Amendment, which applies the Bill of Rights to the states, made it clear that Congress wanted to protect blacks against Southern states that were trying to disarm them after the Civil War.
Yet, all that agreement hides a very significant difference. The debate today will likely be over what protection is given this individual right.
Some, such as the vice president, the 305 members of Congress, and the 31 states, want to treat the Second Amendment like the rest of the Bill of Rights, requiring the same hurdles for the government to justify that a regulation is “reasonable.” Others, such as the Bush Department of Justice, argue that an “unquestionable threat to public safety” from unregulated guns requires that a lower standard must be adopted. Strongly hinting that D.C.’s handgun ban and requirement that long guns always be kept locked and unloaded could be upheld under this lower standard.
The split in the Administration and in Congress mirrors the split in the nation on this question, but it really isn’t that difficult. The rights enumerated in the first eight amendments to the Constitution all reflect individual rights. In fact, that was the entire purpose of the Bill of Rights — to address the rights of the individual, as the main document reflected the interests of the states in relation to the federal government and the structure of the federal government instead.
Will the Court finally acknowledge this? The language remains as clear as when it was written, as does the context of the 2nd Amendment’s inclusion in the document. It will deal a body blow to efforts to ban weapons, especially as designed in Washington DC. Lott engages in the argument about whether the ban has been effective — clearly, it has not — but that’s a secondary argument. A court interested in judicial modesty will recognize that DC violated the 2nd Amendment and simply uphold the lower court’s rejection of it.
We’ll see if we have that kind of court. In the meantime, we may ask why the Bush administration has decided to argue on behalf of an unconstitutional infringement of gun rights. John Lott will appear on Thursday’s Ed Morrissey Show to discuss this issue and the arguments at the Court today.
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