Saturday, March 10, 2007

Ruling of Transcendent Importance

This post is completely about the recent ruling by the DC Circuit Court of Appeals that the Second Amendment is an individual right. If that matter doesn't interest you, stop reading now.
Is anyone still here? I'll operate on the assumption that someone is.
Let me just give you some background on this, and why it is important. First off, the text of the Second Amendment:

A 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.

The meaning of this amendment, and its application to American life, has been hotly debated for about the last fifty years. The last time this matter was taken up by the Supreme Court was the Miller case in 1939. This case, in which a person was arrested for illegal possession of a sawed-off shotgun, was the first test of the National Firearms Control Act of 1934 (the first major, sweeping Federal law on the subject), which outlawed said weapon. Miller (the defendant) was arrested for having a sawed-off shotgun, but was released because the US District Court found that the Act was unconstitutional under the Second Amendment. The government appealed the ruling, which eventually made its way to the Supreme Court. The SC overturned the lower court decision.
However, this is where the debate gets tricky. The SC overturned the lower court decision because it could find no evidence that a sawed-off shotgun was useful in the service of the militia. The reason for this was that no evidence was presented to the Court at all, as the defendant, Miller, had died in the interim and had no one there to present his side of the case (it has since been established that such weapons were in fact used in the trenches of WWI, a piece of evidence that might have caused the Court to rule in a different way).
However, the decision has since been interpreted by all the Circuit Courts of Appeal (one step under the SC) to mean that, because Miller was not a member of a militia, he had no right to appeal under the Second Amendment. This has become known as the Collective View of the Second Amendment, meaning that people only have a right to have guns if they are enrolled in a government-sanctioned, organized force (today, the National Guard is the closest we have an organized militia, an armed forced that is only called up in times of danger or disaster). However, as the National Guard, or militia as the Courts have defined it, acts virtually at the will of the government itself, this interpretation effectively renders the Amendment meaningless: Under their interpretation, the Amendment forbids the government from forbidding itself from arming its own militia (!).
However, a closer look at the Miller decision itself shows that the Court wasn't concerned over Miller's membership in a militia, but rather if the weapon involved was useful in a militia's service. The decision turned on this question: The weapon's eligibility under the Second Amendment, not the man's. To reiterate, the Court decided the weapon was not eligible because no evidence was presented showing its eligibility.
The Supreme Court has not again addressed the question of what the Amendment protects, and with near uniformity, the Appeals Courts have subsequently ruled that the Amendment does not protect an individual's right to own a gun, since they are not members of a militia (this argument itself can be effectively countered, as under US Code, all males age 18-45 are considered members of the unorganized militia, but that is another, very long argument).
The uniformity has hit the skids in recent years, though. In 2001, the Fifth Circuit Court of Appeals, in the Emerson case, ruled in favor of an Individual interpretation (that the Amendment protects a citizen's right to own a gun, regardless of membership in any militia), and in 2003, the Ninth Circuit (I'll restrain my urge to call them the Ninth Circus; many illogical decisions come from that Circuit, and they are the most overturned by the Supreme Court), in the Lockyer opinion, reasserted their support for the Collective interpretation.
Most often, when two Circuits interpret law in a fundamentally different way, the Supreme Court will step in and decide the matter, setting the precedent for all lower Courts. However, neither case actually involved the overturning of an existing law. In Lockyer, the Collectivist ruling meant that the law in question was Constitutional. In Emerson, though the Individualist viewpoint was taken, the Court decided that the law in question was still Constitutional because it was a very narrow restriction, forbidding gun ownership from someone who was under indictment (Courts have routinely ruled that even fundamental rights can be subject to reasonable restrictions; ie, the First Amendment doesn't allow you to scream "Fire!" in a crowded movie theater). Because there were no laws overturned, the Supreme Court took a pass.
Which brings us to yesterday.
The DC Circuit Court ruled yesterday that the District's gun ban violated the Second Amendment, taking a Individualist stance. The District ban requires registration of all handguns, but forbids registration of any new ones after 1976, effectively disallowing any new resident from owning a handgun or existing residents from buying new ones. Also, any shotgun or rifle must be kept disassembled and inoperable. Under an Individualist interpretation, there is no possible way that the ban could be Constitutional. The ban is the most onerous in the country, yet, mysteriously, massive levels of gun crime still continue to afflict the DC area.
The ruling came from a three-judge panel, so the next step will be for the full Circuit to review it. If the full Circuit leaves the decision intact, the Supreme Court virtually must take up the question.
Frankly, I think this is long overdue. Personally, I think the meaning of the Amendment is obvious, both from its wording and its placement in the Bill of Rights (all the others manifestly protect the rights of individuals, except where expressly noted). For too long, gun control laws of dubious value have been passed at the behest of groups who cling to the Collectivist view, despite the fact that any intellectually honest person can see how non-sensical it is, and Courts have stubbornly stood on precedent despite increasing historical and constitutional research showing the Amendment to protect Individual rights. If the Supreme Court rules in favor of an Individualist view, than all future gun laws will have to be shown to be reasonable, narrowly targeted ordinances that don't affect a good, law-abiding citizen's right of self-defense, and the abolitionists will be the ones out the arguing for the repeal of an Amendment guaranteeing a fundamental freedom to all Americans.

0 Comments:

Post a Comment

<< Home