Tuesday, October 09, 2007

Second Amendment Update

A new lawsuit filed in Oregon will challenge a teacher's right to bring a concealed weapon to school. [MSNBC] This will be an interesting case that could test the limits of the second amendment. In the wake of school shootings, judges will likely be hesitant to allow weapons on school grounds, but we'll see how this turns out.


Juvenal said...

The U.S. Supreme Court's likely to weigh in on the Second Amendment this term in Parker v. District of Columbia (D.C. Circuit opinion here). The D.C. Circuit joined the Fifth Circuit (United States v. Emerson) in holding (in contrast to every single other circuit, including the venerable Ninth) that the Second Amendment guarantees an individual right to bear arms.

I'm not proficient in the art of counting Supreme Court votes, but I think the Supreme Court may reverse the D.C. Circuit and hold that the Amendment does not in fact guarantee an individual right to bear arms. The Court's decision in United States v. Miller, although not on point, seems to suggest that the right o keep and bear arms is guaranteed only to the extent that possession and use of the arms is reasonably related to the efficient functioning of a state militia. In Miller, they used that reasoning to hold that the Second Amendment did not protect a right to own and use a sawed off shotgun. A sawed off shotgun, the Court reasoned, was not the type of weapon ordinarily used militarily, so therefore its use or possession could not be reasonably related to the efficient functioning of a state militia. The 5th and D.C. Circuits read this as holding that as long as a weapon is of a type that is ordinarily used militarily, the Second Amendment protects an individuals right to own such a weapon. This appears to be a rather over-broad reading of Miller, and I think that a correct application of the Miller rationale and analysis would require, not only that the weapon used have some connection to the efficiency of a state militia, but also that the possession and use of the weapon have some connection to the efficiency of a state militia. This would appear to restrict the guarantee of the Second Amendment only to the keeping and bearing of arms within service within the state militia, as opposed to an unqualified individual right to bear arms.

Much of this hinges on the meaning of the word "militia," though, and based on the Supreme's interpretation of that word, they may well read in the Amendment an individual right to bear arms.

Any thoughts?

Anonymous said...

Miller is/was so strained. The idea that this is the one place where the "people" refers to state governments doesn't even pass the laugh test.

It's so obviously the product of a court trying to finesse the plain language of the amendment to accommodate political proclivities, much like so many of the opinions from that regrettable period in the Court's history that saw the death of Federalism.

But I don't doubt the court will vote as you suggest; I have absolute faith in Justice Kennedy putting his politics ahead of any coherent legal exegesis.

Anonymous said...

You have to be a cloistered Supreme Court justice to believe that shotguns aren't or weren't normally used militarily, especially by militias.

Juvenal said...


Interesting comments. Have you read this "strained" Miller opinion?

Miller did not attempt to interpret (or, as you prefer, "finesse") the word "people" as having a different meaning than in other constitutional provisions. Miller refers to "people" only twice -- once in quoting the amendment, and once in a footnote. In neither instance does it interpret "people" either broadly or narrowly. (As you unfairly charge it with having done) Miller rested entirely on the fact that there was no evidence that a shotgun with a barrel of less than 18 inches (ie a sawed off shotgun) was part of "the ordinary military equipment." It remanded to the district court for it to conduct a trial to see if there was such evidence. Seems entirely reasonable.

Or do you think that the first clause of the Amendment is entirely inoperative? That an individual has the right to keep and bear any kind of weapon, regardless of whether it has any connection to military use? Also, if your argument is that every individual has a right to use any and all kinds of weapons, where do you draw the line? Or is your argument that the second amendment guarantees an individual's right to keep and bear tactical nukes?

Anonymous said...

I certainly do not think the first clause is operative to restrict what is CLEARLY an individual right to encompass only those arms of "ordinary military equipment."
And, even if I did, I would not agree that a shotgun, sawed off or otherwise, is not "ordinary military equipment" now or at any time since the founding.

I just don't know of another constitutional example of purely horatory and prefatory language being read to so narrowly limit a subsequent, limitlessly broad reservation of individual rights.

Whether that means that individuals can possess nukes I don't know. But I think it certainly means individuals can keep and bear handguns and sawed off shotguns.

Juvenal said...

Why is it CLEARLY an individual right? Because you put it in all caps? As for no other individual right being narrowed because of prefatory language, that's a bit of a red herring is it not? The Second Amendment, is after all, the ONLY amendment with prefatory language. Interpreting an individual right to conform to the purpose behind that right is not a novel or remarkable interpretive technique -- e.g. lowered level of protection for purely commercial speech under the 1st Amendment.

Why is the language in the first clause purely hortatory? Please do point us to some evidence.
The courts can't pick and choose which clauses in the constitution are nice-to-have and which are binding, every clause in every provision must be given full effect. ("It cannot be presumed that any clause in the constitution is intended to be without effect" Marbury v. Madison) Your interpretation of the Second Amendment would leave the initial clause as vestigial surplusage, you have to provide some evidence that that was the intent of the framers, or that that is the only reasonable reading of the Amendment. So far you have n't done that.

Anonymous said...

"Why is it CLEARLY an individual right?" - The people, everywhere else in the constitution, refers to not the states and not the federal government. Excluding those two parties leaves little besides individuals.

"Why is the language in the first clause purely hortatory?" It seems that if you're going to use this to limit "shall not be infringed," you should be the one supplying the proof. But I'll indulge you with one iota off the top of my head. It's hornbook law that language like this in a gift would have no legal effect. E.g., "So that you may drive to work everyday, I give you my car," would not, under common law, operate to limit your rights to the car. It's precatory.

Juvenal said...

I don't argue that it refers to the federal government or to the States. It clearly and unambiguously refers to people, but that does not mean that the right granted is an individual right that is guaranteed to all people. The use of the word "people" in the bill of rights does not automatically grant an individual right. For instance, the use of the word "people" in the 10th amendment does not give every single individual the right to exercise powers not granted to the federal government or exercised by the states -- the 10th amendment clearly grants a collective right, as is evident from the context.

Interesting (and I don't mean that in a snarky way) theory on the prefatory language. Unfortunately the Supreme Court refuses to treat prefatory language in constitutional provisions as merely hortatory. For example, the patents clause reads: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" By your argument Congress could grant inventors and authors patents & copyright even if their writings and discoveries did not in fact promote the progress of Science and useful Arts. A notion that the Supreme Court unambiguously quashed in Graham v. Deere (383 US 1) : "The clause is both a grant of power and a limitation. This qualified authority *** is limited to the promotion of advances in the ‘useful arts. *** This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity ‘requires reference to a standard written into the Constitution." The Court refused to treat purely prefatory language as merely hortatory, but instead held that the prefatory language scoped and defined the substantive provision. Why is the prefatory language in the Second Amendment any different?

Anonymous said...

My understanding, and I don't have cites prepared, is that use of the word "people" in the constitution refers to individuals. The Ashcroft Justice Department documented this argument in 10s of pages - I'll rest on that for now.

Without arguing that the USSC was wrong in Graham, I think that the Bill of Rights is distinguishable from Article 1; the Bill of Rights being an incomplete enumeration of preserved individual rights too numerous to be named, and the other being in a laundry list of powers of the Congress. It would seem that one, being just a small list should be more broadly read. Moreover, in the 2d Amendment, the functional language is much more strident, i.e. "shall not be infringed" vs. "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." To wit, the precatory language in the Copyright clause is a much more functional portion of that clause. In fact, I'd almost argue it's not prefatory.