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The Second Amendment Goes to Heller

The shoot-out between gun-control forces and gun-rights defenders moves into the Supreme Court when its justices hear oral arguments March 18, 2008, in District of Columbia v. Dick Anthony Heller . They’ll consider whether the Second Amendment guarantees an individual’s right to keep and bear arms or whether it merely protects a collective militia right.

The Second Amendment reads: "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. " Not by the federal government, that is.

The Constitution and its first ten amendments circumscribed the power of the central government over the states and their citizens. The Bill of Rights did not apply to the states. In the 1900s, however, the court discovered the Fourteenth Amendment, barring the states from denying to their citizens the rights “of citizens of the United States,” incorporated some Bill of Rights’ personal freedoms, like First Amendment free speech. Not Second Amendment protections though. There is no personal right to a militia.

Sixty-nine years ago, when in United States v. Miller it last considered the matter, the court said the amendment protects a right "that has some reasonable relationship to the preservation or efficiency of a well regulated militia, " and, "It must be interpreted and applied with that end in view. "

Last year, Dick Heller persuaded the court to reconsider. He says the amendment secures an individual right that the District of Columbia’s 1976 gun-control law violates by banning new ownership of handguns. By Heller’s sights, the amendment’s clauses should be read in isolation, divorcing the right to keep and bear from the militia business. It doesn’t matter that the District isn’t a state since the city is a creature of the federal government and, incorporated or no, the right is federal.

The District says the amendment’s pieces are interdependent and the militia clause cannot be divorced from the keep and bear segment. Moreover, since it isn’t a state as envisioned by the amendment, the amendment doesn’t apply to the district. And it has infringed no right to arms anyway because it allows long arms.

A good deal more has been said on both sides, and you are encouraged to listen, read, and judge for yourself.

A thoughtful evaluation of the cases and authorities suggests that, if there is an individual right, it is not one the amendment protects. That’s not to say there is no individual right. Only that the militia-purposed amendment should be read to be silent about it, and no one’s the worse. There is a right to self-defense, and agreement among state constitutions that ownership and use of arms are corollary rights.

The Second Amendment has never defeated a gun-control statute. It appears, however, that four justices favor an individual rights reading. A fifth would make it law. If it is a right fundamental to the scheme of justice, under Benton v. Maryland it appears incorporation against the states is certain and automatic.

Just as certain is that gun control will go on. Even a fundamental right may be reasonably regulated in the interests of the public good, wherever that right resides.

A decision is due in June.

While you are waiting, you can read the 68 briefs filed in the case.