Great Expectations
November 23rd, 2007 by Syd
Great Expectations
There are high hopes for the upcoming review by the U.S. Supreme Court of the Parker vs. D.C. ruling which overturned the Washington D.C. handgun ban. The primary hope is that the court will finally issue a definitive statement that the Second Amendment does indeed guarantee the right of individual citizens to keep and bear arms, and in doing so, put to rest the ludicrous claim of the “collective right” which holds that the Second only refers to the right of states to maintain militias. I hope that this happens, but many of the expectations I have heard expressed in the pro-gun rights community go far beyond this modest expectation to include an overturn of all handgun laws and the abolition of the NFA of 1934 and the GCA of 1968. These things are not going to happen, or at least, not as a result of a Parker vs. D.C. (now Heller vs. D.C.). Noted gun writer, Dave Workman, says:
“There is considerable misunderstanding about what a favorable SCOTUS ruling would accomplish. There’s nothing in the Second Amendment — according to people who understand constitutional law better than me — to limit states from placing restrictions on gun ownership, through their “police powers.”
The Second Amendment is a limitation on federal government (i.e. Congress), not on the states, no matter what some of the purists contend, because there is some question whether the Second Amendment was ever incorporated to the states via the 14th amendment. Some say it was, others say it wasn’t. Until that is sorted out, perhaps by the upcoming ruling, the Amendment is a limit on the feds, not on the states.” – Dave Workman
Historian and legal scholar, Dave Kopel says:
“Despite hysterical fundraising campaigns by anti-gun lobbyists, a Supreme Court decision against the D.C. handgun ban would not invalidate the vast number of laws regulating but not banning these weapons in the U.S. Indeed, overturning even the Chicago bans would require a definitive future ruling on whether the Second Amendment is enforceable against state and local governments, or only against the federal government and federal enclaves such as D.C.” – Dave Kopel, “Court, capital and handgun” The Fort Worth Star-Telegram
If Workman and Kopel are correct, and I believe they are, a favorable ruling from SCOTUS on Parker will not accomplish such things as overturning the Chicago handgun ban. From SCOTUS Blog, we get a lucid description of the question the court will actually consider:
“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”
The first listed section bars registration of pistols if not registered before Sept. 24, 1976; the second bars carrying an unlicensed pistol, and the third requires that any gun kept at home must be unloaded and disassembled or bound by a lock, such as one that prevents the trigger from operating.
The Court did not mention any other issues that it might address as questions of its jurisdiction to reach the ultimate question: did the one individual who was found to have a right to sue — Dick Anthony Heller, a D.C. resident — have a right to challenge all three of the sections of the local law cited in the Court’s order, and, is the District of Columbia, as a federal enclave, even covered by the Second Amendment. While neither of those issues is posed in the grant order, the Court may have to be satisfied that the answer to both is affirmative before it would move on to the substantive question about the scope of any right protected by the Amendment.
The D.C. Circuit ruled that the Amendment does apply to the District because of its federal status, subject to all provisions of the Constitution. At this point, therefore, it appears that the Court’s review may not reach a major question — does the Second Amendment also protect individual rights against state and local government gun control laws? But a ruling by the Court recognizing an individual right to have a gun almost surely would lead to new test cases on whether to extend the Amendment’s guarantee so that it applied to state and local laws, too. The Court last confronted that issue in Presser v. Illinois, in 1886, finding that the Amendment was not binding on the states.” Source
Neither Rapture nor Armageddon
It is possible that the Parker/Heller decision could turn out to be the biggest non-event in recent memory. This decision will lend great momentum to whichever side of the debate is affirmed. It is clear, however, that a positive decision will not result in machine guns going on sale at the corner hardware store, nor will a negative decision result in JBT’s kicking down the front door to seize our deer rifles. Regardless of how this decision comes down, we will still have a lot of work to do in securing and advancing our gun rights.
See also:
I am hoping that Heller v. DC will put gun control and the Second Amendment front and center as an issue in the ‘08 elections.
Even at the local level, Heller v. DC may have folks asking those who are running for office to state their stand on an individuals right to keep and bear arms.
It should be interesting.
Machine guns at the local hardware store. Now that’s freedom! If it’s not going to happen with this SCOTUS decision, maybe Ron Paul could do it with an executive order or Mike Huckabee could get Chuck Norris to make it happen. Just kidding!
Good article! All our eggs are not in this basket.
In this article Dave Workman is quoted as saying “The Second Amendment is a limitation on federal government (i.e. Congress), not on the states”…
I’ve read this reasoning elsewhere before. Can someone please explain it? I don’t fully understand. It’s saying that the rights guaranteed by the US Constitution are only federal in nature and that they don’t apply to state law? That makes no sense! If this reasoning is accepted as true, then theoretically the Bill of Rights can individually be legislated to be ineffective. If the first amendment comes under this reasoning then STATES can legislate control of the press and and pass laws “respecting an establishment of religion, or prohibiting the free exercise thereof”, and denying citizens “to petition the government for a redress of grievances”.
Am I understanding this correctly? If the Bill of Rights apply only to federal law, then within the borders of any given state, they can be legislated to be nonexistant, practically speaking.
While I don’t agree with it, this seems to be the case, although it’s a fuzzy area in the law, AFAIC. That is why you have never had a successful challenge to a state firearms law based on the Second Amendment, and it is why laws like Chicago’s handgun ban may not be in the jeopardy that many people seem to think it is. The gun laws that really affect my life are the Kentucky Constitution and the Kentucky Revised Statutes. The Second may be a guiding light, but it doesn’t directly determine whether I can legally carry a handgun or not.
There are many issues surrounding this debate. One of which should not even be getting at merit at all and that is if the 2nd should apply to DC and other US Enclaves.
Here is why I think this way, if the 2nd only applies to “States” and not territories or enclaves then the same arguement could be made for the 13th amendment which prohibits slavery. Think about it for a moment.
The issue regartding application to the states involves ” incorporation of the Second Amendment by the 14th Amendment’s Due Process and Equal Protection of the Laws clauses as “”Civil Rights”" which are fundalmenal, and therefore must be enforced against the States. The language of the amendment indicates it applies to Federal government, and hence to areas it controls, or delegates authority to control, such as territories, and the District of Columbia.
In the Warren Court’s hayday, Most of the Bill of Rights was ” Incorporated into the 14th amendment, save only the 2 and 3rd amendments, and the clause in the seventh amendment regarding civil lawsuits minimum claims provision giving the Federal Courts jurisdiction to hear the claim. There are comments from both Justices Douglas and Black that the whole Bill of Rights should be applied to the states( Incorporated ) in a number of cases, in dissenting opinions, but the majority of the court never adopted that broad view of Incorporation.
This case narrowly involves a unit of government formed and funded and controlled by Congress, which is bound by whatever interpretation the Court gives to the Second Amendment. We think that legal scholarship is on the side of Individual Rights positions taken by pro-gun advocates. This would leave the question of deciding whether the Amendment is ” Incorporated into the 14th amendment so as to restrict State conduct for a later case.
The methodology being taken here by Heller’s lawyers is the step by step approach to civil rights litigation during the last century, and therefore has great precedent. If the Court does rule that the Second Amendment protects an Individual RIGHT, it will have a profound affect on American politics, particularly those involving large cities that have banned guns or vastly restricted law abiding citizens from being able to defend themselves, both from criminals, and crooked politicians.