March 18, 2008

An Individual Right

Today was one of the most interesting days in Supreme Court history. District of Columbia v. Heller involved a challenge to the District’s gun control laws, which pretty much outlawed all firearms in private residences within the District. Heller was a security guard who wanted to keep a handgun in his house for personal protection, and he brought a declaratory relief challenge to the law. The federal court for the District of Columbia struck down the law, saying in its holding that the Second Amendment provides a fundamental, personal right to own a weapon.

There has been no Supreme Court jurisprudence on the scope and application of the Second Amendment aside from a single case in 1939 that obliquely indicated that the “well-regulated militia” clause indicated that the purpose of the amendment was military in nature and not intended to create private, individual rights. The argument derived from this case is that back in the 1790’s, it was thought that all wars would be fought like the Revolution, so every able-bodied man needed a musket in case he was called to muster to arms and serve in the local or state militia. Since then, we’ve created a professional military, both at the federal and state level (the “state militia” being replaced now by the National Guard) and therefore there is no need of individual firearm ownership and the Second Amendment is little more than an anachronism.

I’ve never bought into that argument. Seems to me that the Second Amendment does create an individual right to own a weapon. Perhaps the framers of the amendment were thinking about local militias but at the same time, it is abundantly clear to me that they wanted to make sure that people could have weapons. But the fact of the matter is, we really don’t know; the case from the thirties only discussed the “militia” argument in dicta and there has never been any case that has directly addressed the Second Amendment at all.

So today the Heller case became the biggest thing to hit the Supreme Court since Bush v. Gore, the 2000 Presidential election case. Akin Gump’s Supreme Court blog has a summary of the oral arguments which may be faster to read than the arguments themselves, which result in a ninety-one page transcript because the argument was more than two hours long. For instance, I’m heartened to note that Justice Kennedy, who looks like he’ll be the swing vote, considers the Amendment to possess an “operative clause,” meaning that there must also be a clause that is something other than “operative”. Of course, we’ll just have to see how it goes, but it’s looking like a 5-4 finding in favor of the existence of the individual right.

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